Subject to Section 2.b. below, during the Standstill Period, so long as at least one director of the Company is a MHR Director, none of the MHR Entities or any of their respective affiliates and associates, individually, or in any combination of two or more, shall, without the prior approval or written consent of a majority of the Non-MHR Directors:

Representations of the MHR Entities. The MHR Entities hereby represent and warrant to the Company that:

Each of the MHR Entities agree that if at any time during the Standstill Period any MHR Entity or any of its affiliates and associates becomes the owner of shares of voting stock of the Company such that the MHR Entities would, together with their affiliates and associates, in the aggregate own 20% or more of the voting power of the issued and outstanding shares of voting stock of the Company under circumstances in which the restrictions on “business combinations” would, but for the Waiver, be applicable to the Company and the MHR Entities (any event causing the MHR Entities and their affiliates and associates to own in the aggregate 20% or more of the voting power of the then issued and outstanding shares of voting stock of the Company, an “Additional Acquisition”), then, notwithstanding the Waiver referred to in Section 1 of this Agreement, from and after the Excess Date # the restrictions under DGCL 203 applicable to a “business combination” with an “interested stockholder” shall apply as a matter of contract pursuant to this Agreement (except as modified herein) to the MHR Entities and their respective affiliates and associates as if such Waiver had not been granted and as if the Additional Acquisition had caused each MHR Entity and its affiliates and associates to become an “interested stockholder” for purposes of DGCL 203 (except that, for all purposes of this Agreement, references to “15%” in DGCL 203 shall be deemed to be replaced with “20%”); and # the MHR Entities and their affiliates and associates will not engage in any “business combination” with the Company for a period of 3 years following the Excess Date, unless:

During the Standstill Period, so long as the MHR Entities are in compliance with the provisions of Section 2 of this Agreement, the Company will not, without the prior written consent of the MHR Entities, adopt a stockholder rights plan or similar “poison pill” rights plan triggered by the acquisition of less than 20% of the voting power of the then issued and outstanding shares of Voting Stock of the Company.

this Agreement has been duly authorized by all necessary corporate, partnership or limited liability company action, as the case may be, of each of the MHR Entities;

Affiliated Entities. As used in this Agreement, “Affiliates” includes the Company and each corporation, partnership, or other entity which controls the Company, is controlled by the Company, or is under common control with the Company (in each case “control” meaning the direct or indirect ownership of 50% or more of all outstanding equity interests).

No Loan Party is a Covered Entity.

upon consummation of the transaction which resulted in the MHR Entities and their affiliates and associates becoming the owner(s) of 20% or more of the voting power of the issued and outstanding shares of voting stock of the Company, the MHR Entities and their affiliates and associates owned at least 85% of the voting power of the voting stock of the Company outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the MHR Entities and their affiliates and associates) those shares owned # by persons who are directors and also officers of the Company and # employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or

at all times for the past three years, the MHR Entities, together with their affiliates and associates, in the aggregate, have not owned 15% or more of the Company’s Common Stock.

Agreements. Except for Permitted Encumbrances, neither ​ nor any ​ Party is party to any agreement or instrument (including any Major Contract), or subject to any restriction, which could reasonably be expected to materially adversely affect ​ or the Property, or ​’s business, properties or assets, operations or condition, financial or otherwise. ​ has not entered into any Major Contract other than those disclosed to ​ in writing prior to the Closing Date. ​ has delivered to ​ true, correct and complete copies of all Major Contracts. Each of the Major Contracts is in full force and effect. Neither ​ nor any ​ Party, nor (to ​’s knowledge, any prior owner of the Property) is in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any Major Contract or any other agreement or instrument to which it is a party or by which ​ or the Property are bound. ​ has no material financial obligation under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which ​ is a party or by which ​ or the Property is otherwise bound, other than # obligations incurred in the ordinary course of the operation of the Property as permitted pursuant to [Section 5.1] hereof, and # obligations under the Loan Documents. The Loan Documents contain provisions that render the rights and remedies of ​ adequate for the practical realization against the Property of the principal benefits of the security intended to be provided thereby, including realization by judicial or, if applicable, nonjudicial foreclosure.