Common use of AFFIRMATIVE AND NEGATIVE COVENANTS Clause in Contracts

AFFIRMATIVE AND NEGATIVE COVENANTS. Until all of the Senior Indebtedness has been Finally Paid, without the prior written consent of Senior Lenders: (a) no Loan Party shall discharge the Subordinated Indebtedness other than in accordance with its terms and the terms hereof; (b) Subordinated Creditor shall not demand or accept from any Loan Party or other Person any consideration which would result in a discharge of the Subordinated Indebtedness other than in accordance with its terms and the terms hereof; (c) Subordinated Creditor shall not hereafter give any subordination in respect of the Subordinated Indebtedness; (d) no Loan Party shall hereafter issue any instrument, security or other writing evidencing any part of the Subordinated Indebtedness, and Subordinated Creditor shall not receive any such writing, except upon the condition that such instrument, security or other writing shall bear the legend referred to herein and a complete copy thereof shall be furnished to Senior Agent; and (e) neither any Loan Party nor Subordinated Creditor shall take any action contrary to Senior Agent’s and Senior Lenders’ priority position over Subordinated Creditor that is created by this Agreement. In addition to the foregoing, Subordinated Creditor acknowledges and agrees that: (i) the Senior Creditors have relied on the terms and provisions of this Agreement in executing and delivering the Senior Documents and in making the extensions of credit contemplated thereby and shall continue to rely on such terms and provisions in making extensions of credit from time to time pursuant to the Senior Documents, and (ii) Subordinated Creditor shall not contest or challenge (or support any other Person in contesting or challenging) (A) the validity, perfection, priority or enforceability of the Senior Indebtedness, the Senior Documents or any Liens of the Senior Agent and the Senior Lenders in the Collateral securing the Senior Indebtedness or (B) the validity or enforceability of the subordination provisions contained in this Agreement.

AFFIRMATIVE AND NEGATIVE COVENANTS. Until (v) Mortgagor will promptly perform and observe all the terms, covenants and conditions required to be performed and observed by Mortxxxxx xx lessee under the Lease, within the periods (exclusive of grace periods, if any) provided in the Lease, and will do all things reasonably necessary to preserve and keep unimpaired its rights under the Lease. Mortgagor will furnish the Mortgagee, upon demand, proof of payment of all items which are required to be paid by the Mortgagor pursuant to the Lease. Mortgagor shall not waive any of its material rights under the Lease, or refrain from exercising any material right or remedy accorded to it under the Lease on account of any material default by the lessor thereunder, or release the lessor from any material economic liability without first obtaining the written consent of Mortgagee which consent shall not be unreasonably withheld, conditioned or delayed. (vi) In the event Mortgagor shall violate any of the covenants specified in subparagraph (i) above, then Mortgagee shall have the right (but shall not be obligated) to take any action, without allowing for expiration of any period of grace, as Mortgagee may deem necessary or desirable to prevent or cure any default of Mortgagor under the Lease or any default of the lessor thereunder, it being agreed that upon receipt by Mortgagee from the lessor under the Lease of any notice of default, Mortgagee shall be entitled to rely thereon and take any of the aforesaid action even though Mortgagor denies or questions the existence of any such default, and shall have the immediate right to enter all or any portion of the Mortgaged Property at such times and in such manner as Mortgagee deems appropriate in order to prevent or to cure any such default. (vii) For the purpose of preventing or curing any default by Mortgagor under the Lease, Mortgagee may after notice to Borrower and a reasonable opportunity for Borrower to act (but shall be under no obligation to) do any act or execute any document in the name of Mortxxxxx xx as its attorney-in-fact, as well as in the name of Mortgagee. Upon the occurrence and during the continuance of an Event of Default, Mortxxxxx xxxeby irrevocably appoints Mortgagee its true and lawful attorney-in-fact in its name or otherwise to do any and all acts and to execute any and all documents which in the opinion of Mortgagee may be necessary or desirable to prevent or cure any default under the Lease or to preserve any rights of Mortgagor in, to or under the Lease, including the right to effectuate a renewal of the Lease or to preserve any rights of Mortgagor whatsoever in respect of any part of the Mortgaged Property. (viii) The curing by Mortgagee of any default by Mortgagor under the Lease shall not remove or waive, as between Mortgagor and Mortgagee, the default which occurred hereunder by virtue of the default by Mortgagor under the Lease, and all sums expended by Mortgagee in order to cure any such default and costs and expenses incurred by Mortgagee in connection with the curing of such default shall be paid by Mortgagor to Mortgagee upon demand with interest thereon at the post-Default rate set forth in the Note from the date paid by Mortgagee. (ix) Mortgagor covenants and agrees that Mortxxxxx xxxl not surrender Mortxxxxx'x xeasehold estate and interest hereinabove described under the Lease, nor terminate or cancel the Lease, and that Mortgagor will not without the express written consent of Mortgagee modify, change, supplement, alter or amend the Lease in any material respect, either orally or in writing, and as further security for the repayment of the indebtedness secured hereby and for the performance of the covenants herein and in the Lease, Mortgagor hereby assigns to Mortgagee all of Mortgagor's rights, privileges and prerogatives as Lessee under the Senior Indebtedness has been Finally PaidLease to terminate, cancel, modify, change, supplement, alter or amend the Lease, and any such termination, cancellation, modification, change, supplement, alteration or amendment of the Lease, without the prior written consent thereto by Mortgagee, shall be void and of Senior Lenders: (a) no Loan Party shall discharge the Subordinated Indebtedness other than in accordance with its terms force and the terms hereof; (b) Subordinated Creditor shall not demand or accept from effect. So long as there is no Event of Default under, any Loan Party or other Person any consideration which would result in a discharge of the Subordinated Indebtedness other than covenants or agreements in accordance with its terms the Lease, Mortgagee shall have no right to terminate, cancel, modify, change, supplement, alter or amend the Lease. (x) Mortgagor covenants and the terms hereof; (c) Subordinated Creditor shall not hereafter give any subordination in respect of the Subordinated Indebtedness; (d) agrees that no Loan Party shall hereafter issue any instrument, security release or other writing evidencing any part of the Subordinated Indebtedness, and Subordinated Creditor shall not receive any such writingforbearance, except upon an express written agreement to release, of any of Mortgagor's obligations under the condition that such instrumentLease, security or other writing shall bear the legend referred to herein and a complete copy thereof shall be furnished to Senior Agent; and (e) neither any Loan Party nor Subordinated Creditor shall take any action contrary to Senior Agent’s and Senior Lenders’ priority position over Subordinated Creditor that is created by this Agreement. In addition to the foregoing, Subordinated Creditor acknowledges and agrees that: (i) the Senior Creditors have relied on the terms and provisions of this Agreement in executing and delivering the Senior Documents and in making the extensions of credit contemplated thereby and shall continue to rely on such terms and provisions in making extensions of credit from time to time pursuant to the Senior DocumentsLease or otherwise, shall release Mortgagor from any of Mortgagor's obligations hereunder, including Mortxxxxx'x obligations with respect to the payment of rent as provided for in the Lease and (ii) Subordinated Creditor shall not contest or challenge (or support any other Person in contesting or challenging) (A) the validity, perfection, priority or enforceability performance of all of the Senior Indebtednessterms, the Senior Documents or any Liens of the Senior Agent provisions, covenants, conditions and the Senior Lenders agreements contained in the Collateral securing Lease, to be kept, performed and complied with by the Senior Indebtedness or (B) the validity or enforceability of the subordination provisions contained in this AgreementLessee therein.

AFFIRMATIVE AND NEGATIVE COVENANTS. Until The DIP Documents shall contain usual and customary affirmative and negative covenants for facilities of this type, subject to the Documentation Principles; provided that, without limitation, the DIP Documents shall require: (i) two (2) business days’ advance delivery of all material pleadings, motions and other material documents filed with the Bankruptcy Court on behalf of the Senior Indebtedness has Loan Parties in the Chapter 11 Cases to the Ad Hoc Group’s Advisors, unless not reasonably practicable under the circumstances (in which case, as soon as reasonably practicable prior to filing); (ii) monthly financial statements; and (iii) at the reasonable request of the Ad Hoc Group’s Advisors or the DIP Lenders, weekly conference calls and/or video calls among the Loan Parties’ relevant senior management, the Loan Parties’ advisors, the Ad Hoc Group’s Advisors and the DIP Lenders, which update calls may cover the Loan Parties’ financial performance, the latest budget approved for variance testing, the Loan Parties’ variance reports, and the other information provided pursuant to the reporting covenant described above. Conditions Precedent to Closing and the Initial Borrowing The Closing Date under the DIP Facility, and the Initial DIP Draw, shall be subject to customary conditions to closing for facilities of this type, including, without limitation, the following: (i) no later than three (3) business days after the Petition Date, the Bankruptcy Court shall have entered the Interim DIP Order, and the Interim DIP Order shall be in full force and effect and shall not have been Finally Paidvacated, reversed, modified, amended or stayed without the prior written consent of Senior the Required DIP Lenders: ; (aii) no the preparation, authorization and execution of the DIP Documents with respect to the DIP Facility, in form and substance consistent with this DIP Facility Term Sheet and otherwise acceptable to the Loan Party shall discharge Parties, the Subordinated Indebtedness other than in accordance with its terms Required DIP Lenders and the terms hereofDIP Agent; (biii) Subordinated Creditor shall not demand or accept from any Loan Party or other Person any consideration which would result the delivery of a 13-week cash flow projection (the “Initial DIP Budget”)12 in a discharge of the Subordinated Indebtedness other than in accordance with its terms form and the terms hereof; (c) Subordinated Creditor shall not hereafter give any subordination in respect of the Subordinated Indebtedness; (d) no Loan Party shall hereafter issue any instrument, security or other writing evidencing any part of the Subordinated Indebtedness, and Subordinated Creditor shall not receive any such writing, except upon the condition that such instrument, security or other writing shall bear the legend referred to herein and a complete copy thereof shall be furnished to Senior Agent; and (e) neither any Loan Party nor Subordinated Creditor shall take any action contrary to Senior Agent’s and Senior Lenders’ priority position over Subordinated Creditor that is created by this Agreement. In addition substance acceptable to the foregoingRequired DIP Lenders, Subordinated Creditor acknowledges and agrees that: reflecting (i) the Senior Creditors have relied on Loan Parties’ anticipated cash receipts and disbursements for each calendar week during the terms period from the week in which the Petition Date occurs through and provisions including the end of this Agreement in executing and delivering the Senior Documents and in making the extensions of credit contemplated thereby and shall continue to rely on such terms and provisions in making extensions of credit from time to time pursuant to the Senior Documents, thirteenth calendar week thereafter and (ii) Subordinated Creditor a professional fee accrual budget with respect to the anticipated fees and expenses to be incurred by professionals retained by the Loan Parties and other professionals during the thirteen week period; (iv) the delivery of (i) a secretary’s (or other officer’s) certificate of the Borrowers and each of the other Loan Parties, dated as of the Closing Date and in such form as is customary for the jurisdiction in which the relevant Loan Party is organized, with appropriate insertions and attachments; and (ii) a customary closing officer’s certificate of the Borrowers; (v) all premiums, payments, fees, costs and expenses (including, without limitation, the fees and expenses of the Ad Hoc Group’s Advisors and all other counsel, financial advisors and other professionals of the DIP Lenders and DIP Agent (whether incurred before or after the Petition Date) to the extent earned, due and owing, and including estimated fees and expenses through the Closing Date) shall have been paid; provided that any such fees and expenses of the Ad Hoc Group’s Advisors and all other counsel, financial advisors and other professionals of the DIP Lenders and DIP Agent to be paid on the Closing Date must be invoiced at least one (1) calendar day prior to the Closing Date; 12 The Initial Budget and all subsequent Updated Budgets shall include $0 on account of the fees and expenses of any professionals retained by any official committee appointed in the Chapter 11 Cases and shall provide $0 on account of any fees, costs and expenses to investigate the Prepetition First Lien Lenders and Prepetition Second Lien Lenders, including the liens and claims of such lenders, provided that such requirement shall not contest be deemed to alter, modify or challenge (or support supplant in any other Person in contesting or challenging) (A) manner the validity, perfection, priority or enforceability of the Senior Indebtedness, the Senior Documents or any Liens of the Senior Agent and the Senior Lenders in the Collateral securing the Senior Indebtedness or (B) the validity or enforceability of the subordination provisions contained in this AgreementExisting Board’s fiduciary duties under applicable law.

AFFIRMATIVE AND NEGATIVE COVENANTS. Until The Borrower covenants and agrees with each Lender that, so long as this Agreement shall remain in effect and until all Participation Obligations shall have been terminated, the principal of and interest on all L/C Borrowings, all Fees and all other expenses or amounts payable under any Loan Document shall have been paid in full and discharged and all Letters of Credit have been canceled or have expired or such obligations have otherwise been fully Cash Collateralized or supported by a backstop letter of credit in a manner reasonably satisfactory to the applicable Issuing Bank and all amounts drawn thereunder have been reimbursed in full, the Borrower will and will cause each of the Restricted Subsidiaries to observe and perform all of the Senior Indebtedness has been Finally Paid, without the prior written consent of Senior Lenders: (a) no Loan Party shall discharge the Subordinated Indebtedness other than covenants applicable to it and its Restricted Subsidiaries set forth in accordance with its terms Article V and the terms hereof; (b) Subordinated Creditor shall not demand or accept from any Loan Party or other Person any consideration which would result in a discharge Article VI of the Subordinated Indebtedness other than First Out Facility (as in accordance with its terms and the terms hereof; (c) Subordinated Creditor shall not hereafter give any subordination in respect of the Subordinated Indebtedness; (d) no Loan Party shall hereafter issue any instrument, security or other writing evidencing any part of the Subordinated Indebtedness, and Subordinated Creditor shall not receive any such writing, except upon the condition that such instrument, security or other writing shall bear the legend referred to herein and a complete copy thereof shall be furnished to Senior Agent; and (e) neither any Loan Party nor Subordinated Creditor shall take any action contrary to Senior Agent’s and Senior Lenders’ priority position over Subordinated Creditor that is created by this Agreement. In addition to the foregoing, Subordinated Creditor acknowledges and agrees that: (i) the Senior Creditors have relied on the terms and provisions of this Agreement in executing and delivering the Senior Documents and in making the extensions of credit contemplated thereby and shall continue to rely on such terms and provisions in making extensions of credit effect from time to time at such time), which covenants, together with the definitions of such terms as may be used therein) are hereby incorporated herein by reference mutatis mutandis (as set forth herein) in their entirety. It is the express intent of the parties hereto that, at any time and at all times, the covenants deemed to be set forth herein be identical in all respects to those set forth in Article V and Article VI of the First Out Facility, as in effect at such time, mutatis mutandis, and that any breach of a covenant set forth in Article V and Article VI of the First Out Facility shall constitute a breach of covenant hereunder, but only to the extent such breach has not been effectively waived pursuant to the Senior Documents, and (ii) Subordinated Creditor shall not contest or challenge (or support any other Person in contesting or challenging) (A) the validity, perfection, priority or enforceability terms of the Senior IndebtednessFirst Out Facility, it being understood that any waiver of a breach of a covenant set forth in Article V or Article VI of the First Out Facility under the terms thereof shall be automatically deemed, without any action on the part of the Agents, the Senior Documents Issuing Banks or any Liens the Lenders hereunder, a waiver of such breach hereunder. If the First Out Facility shall terminate prior to the Consummation Date, the covenants as set forth in Articles V and VI of the Senior Agent First Out Facility shall, from such time of termination (and the Senior Lenders notwithstanding such termination), remain in the Collateral securing the Senior Indebtedness or (B) the validity or enforceability of the subordination provisions contained effect as negative covenants hereunder as they were in this Agreementeffect immediately prior to such termination.

AFFIRMATIVE AND NEGATIVE COVENANTS. Until all of the Senior Indebtedness has been Finally Paid, without the prior written consent of Senior Lenders: (a) no Section 9.9(i) of the Loan Party shall discharge the Subordinated Indebtedness other than Agreement is hereby deleted in accordance with its terms entirety and the terms following substituted therefor: (i) Indebtedness of any Borrowers evidenced by or arising under the Convertible Note Indenture as in effect on the date hereof; (b) Subordinated Creditor shall not demand or accept from any Loan Party or other Person any consideration which would result in a discharge of the Subordinated Indebtedness other than in accordance with its terms and the terms hereof; (c) Subordinated Creditor shall not hereafter give any subordination in respect of the Subordinated Indebtedness; (d) no Loan Party shall hereafter issue any instrument, security or other writing evidencing any part of the Subordinated Indebtednessprovided, and Subordinated Creditor shall not receive any such writing, except upon the condition that such instrument, security or other writing shall bear the legend referred to herein and a complete copy thereof shall be furnished to Senior Agent; and (e) neither any Loan Party nor Subordinated Creditor shall take any action contrary to Senior Agent’s and Senior Lenders’ priority position over Subordinated Creditor that is created by this Agreement. In addition to the foregoing, Subordinated Creditor acknowledges and agrees that: : (i) the Senior Creditors have relied aggregate principal amount of such Indebtedness shall not exceed $75,000,000, less the aggregate amount of all repayments, repurchases or redemptions thereof from and after such date, whether optional or mandatory, plus interest thereon at any of the applicable rates provided in the Convertible Note Indenture and/or in the Registration Rights Agreement executed in connection with the Convertible Note Indenture, each as in effect on the terms and provisions of this Agreement in executing and delivering the Senior Documents and in making the extensions of credit contemplated thereby and shall continue to rely on such terms and provisions in making extensions of credit from time to time pursuant to the Senior Documents, and date hereof; (ii) Subordinated Creditor Agent shall have received a true, correct and complete copy of the Convertible Note Indenture as in effect on the day hereof; (iii) such Indebtedness is and shall remain unsecured; (iv) Borrowers and Guarantors shall not, directly or indirectly, make, or be required to make, any payments in respect of such Indebtedness, except, that, Borrowers may make regularly scheduled payments of interest and fees, on an unaccelerated basis, in respect of such Indebtedness in accordance with the terms of the Convertible Note Indenture and/or the Registration Rights Agreement, in each case as in effect on the date hereof; (v) Borrowers shall not contest , directly or challenge (or support any other Person in contesting or challenging) indirectly, (A) the validityamend, perfectionmodify, priority alter or enforceability change any of the Senior Indebtednessmaterial terms of such Indebtedness or of any of the Convertible Note Indenture as in effect on the date hereof, except, that, Borrowers may, after prior written notice to Agent, amend, modify, alter or change the Senior Documents terms thereof so as to extend the maturity thereof or defer the timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness other than pursuant to payments thereof, or to reduce the interest rate or any Liens fees in connection therewith, or to make the provisions thereof less restrictive or burdensome than the terms or conditions of the Senior Agent and Convertible Note Indenture as in effect on the Senior Lenders in the Collateral securing the Senior Indebtedness date hereof, or (B) the validity make optional prepayments of principal or enforceability of the subordination provisions contained in this Agreement.interest or redeem, retire, defease, purchase or otherwise acquire such Indebtedness, or set aside or otherwise deposit or invest any sums for such purpose;"

AFFIRMATIVE AND NEGATIVE COVENANTS. Until So long as any of the Secured Obligations remains outstanding, the Pledgor shall, unless the Pledgee otherwise consents in writing, undertake all necessary actions to: (a) maintain any and all of the Senior Indebtedness has been Finally Paidtangible Pledged Assets at the Site and/or at the locations necessary for the performance of Pledgor<180>s obligations under the CFE Contract, without and obtain the prior written consent of Senior Lenders: (a) no Loan Party shall discharge the Subordinated Indebtedness other than in accordance with its terms and Pledgee for the terms hereof; removal thereof from the Site and/or such locations; (b) Subordinated Creditor shall not demand furnish to the Pledgee any information concerning the Pledged Assets as the Pledgee may from time to time reasonably request and permit the Pledgee or accept its designees, upon at least three (3) calendar days advanced notice, within working hours, at any time, to inspect, audit, and make copies of and extracts from any Loan Party or all records and all other Person any consideration which would result papers in a discharge the possession of the Subordinated Indebtedness other than in accordance with its terms Pledgor and, upon the request of Pledgee, deliver to the Pledgee certified copies of all such records and the terms hereof; papers; (c) Subordinated Creditor shall not hereafter give deliver notice of any subordination communication received in respect of the Subordinated Indebtedness; Pledged Assets to the Pledgee, concurrent with its required delivery pursuant to Section 6.03 of the Common Agreement; (d) no Loan Party shall hereafter issue at any instrumenttime, security or other writing evidencing any part and from time to time, at the expense of the Subordinated IndebtednessPledgor, exercise its rights and remedies hereunder, including, without limitation, defending the Pledged Assets and the security interest (including the priority thereof) of the Pledgee in and to the Pledged Assets against the claims and demands of all Persons, and Subordinated Creditor shall not receive any such writingpromptly execute and deliver further instruments and documents, except upon and take all further action that may be necessary or desirable, or that the condition that such instrumentPledgee may reasonably request, in order to perfect and protect the security interest granted hereby, or other writing shall bear to enable the legend referred Pledgee to herein exercise its rights and a complete copy thereof shall be furnished to Senior Agent; and remedies hereunder; (e) neither any Loan Party nor Subordinated Creditor at all times maintain the Pledged Assets in good working order and condition (subject to normal wear and tear), in the understanding that, in accordance with Article 361 of the LGTOC, the Pledgor shall take any action contrary to Senior Agent’s bear all costs and Senior Lenders’ priority position over Subordinated Creditor shall be responsible for the due preservation, repair, administration and collection of the Pledged Assets; (f) maintain the GNP Insurance Policy as required by the Common Agreement; provided that is created by this Agreement. In addition the Pledgor shall deliver to the foregoingOffshore Collateral Agent, Subordinated Creditor acknowledges with copy to the Pledgee, a certified copy of the Endorsement in respect of the GNP Insurance Policy within ten (10) Business Days following the date in which WestLB AG, New York Branch has given written notice to Grupo Nacional Provincial with copy to the Pledgor, that it waives its rights under Endorsement A dated June 4, 2003 of the GNP Policy. (g) contract and agrees that: maintain any necessary Insurance Policies covering all Pledged Assets as required by the Common Agreement and duly attached with an Endorsement designating the Offshore Collateral Agent as loss payee; within five (5) Business Days after the date any such Insurance Policy is contracted, the Pledgor shall deliver a certified copy of such Insurance Policy including the Endorsement thereof to the Offshore Collateral Agent with copy to the Pledgee. (h) except as permitted under paragraph (a) of Section 6.02 of the Common Agreement, refrain from creating or permitting the existence of any lien or ownership limitation upon or with respect to any of the Pledged Assets; (i) except as permitted under paragraph (n) of Section 6.02 of the Senior Creditors have relied on Common Agreement, refrain from selling, assigning or otherwise disposing, or granting any option of any nature and to any party in respect, of the terms Pledged Assets described in items (iv) and (v) of Clause 2.1 hereof, except for the transfer of ownership of any of the Pledged Assets in accordance with the provisions of this Agreement the CFE Contract, any Principal Subcontract, any Additional Project Contract or by operation of law; (j) refrain from undertaking any actions or omitting to undertake any action the undertaking of which, or omissions to undertake, could reasonably be expected to result in executing and delivering a decline in the Senior value of the Pledged Assets or in any of such Pledged Assets ceasing to exist; and (k) except as otherwise permitted by the Financing Documents and or as approved by the Pledgee in making writing, refrain from (i) canceling or terminating any of its relationships with any obligors in connection with the extensions of credit contemplated thereby and shall continue Pledged Assets, or consenting to rely on such terms and provisions in making extensions of credit from time to time pursuant to the Senior Documentsor accepting any cancellation or termination thereof, and (ii) Subordinated Creditor shall not contest waiving any default or challenge breach under, failing to enforce, forgive, compromise, settle, adjust or release, or agreeing to the variation of, any provision of any of the CFE Contract, the Principal Subcontracts any Additional Project Contract and the Insurance Policies, (iii) exercising any right to initiate any arbitration or support legal proceeding under any of the CFE Contract, the Principal Subcontracts, any Additional Project Contract and the Insurance Policies, or taking any action with respect to any arbitration proceeding initiated against the Pledgor under such documents, that seeks, or may reasonably be expected, to amend, rescind, terminate, invalidate, suspend or otherwise impair any Pledged Asset, and/or (iv) taking any other Person in contesting legal or challenging) (A) the validityadministrative action that seeks, perfectionor may reasonably be expected, priority to amend, rescind, terminate, invalidate, suspend or enforceability of the Senior Indebtedness, the Senior Documents or otherwise impair any Liens of the Senior Agent and the Senior Lenders in the Collateral securing the Senior Indebtedness or (B) the validity or enforceability of the subordination provisions contained in this AgreementPledged Asset.

AFFIRMATIVE AND NEGATIVE COVENANTS. Until the applicable Closing, in respect to the applicable Phase, Seller shall or cause to: (i) Subject to Casualty or any Taking (as those terms are hereinafter defined), maintain the applicable Phase and Phase Personal Property in good condition and repair and not commit or permit waste; (ii) Carry on its business in respect to the Project in the same manner as it has heretofore; (iii) Keep in full force and effect all insurance coverage required to be maintained by it pursuant to the Leases, applicable New Leases, the Mortgages, the Permitted Exceptions, and any easement agreements or other agreements or undertakings affecting the Project; (iv) Perform all of its obligations under the Senior Indebtedness has been Finally PaidContracts, Leases, applicable New Leases, Mortgages, Permitted Exceptions and any easement agreements or other agreements or undertakings affecting the Project; (v) Maintain and preserve its business organization intact; (vi) Maintain and preserve its relations with the Tenants, New Tenants under New Leases that are fully executed prior to the Closing, suppliers and customers; (vii) Except as provided in Paragraph 13.04 hereof, not voluntarily terminate, amend, modify, extend, renew, waive or accept the surrender of any Lease or New Lease or provision thereof, without Purchaser's prior consent, which consent shall not be unreasonably withheld or delayed; (viii) Not voluntarily terminate, amend, modify, extend, renew, waive or accept the cancellation of any Contract, Permitted Exception or any easement agreements or other agreements or undertakings affecting the applicable Phase or any provision of any of them, without the Purchaser's prior written consent, which consent of Senior Lenders: shall not be unreasonably withheld or delayed; (ix) Except as provided in Paragraph 13.04 hereof, not voluntarily enter into, accept or consent to any new (a) no Loan Party lease, occupancy agreement, subtenancy agreement, license agreement, concession agreement, (b) contract or agreement, personal property lease or agreement, and/or (c) lien, encumbrance, or security interest (including without limitation, mortgage, deed of trust, security agreement, assignment of leases or rents, collectively, "Mortgage") or other title exception or defect (including without limitation, easement, restriction, dedication), which shall discharge not be terminated on or before the Subordinated Indebtedness other than applicable Closing without the Purchaser's prior consent, which consent shall not be unreasonably withheld or delayed; (x) Not commence any action or proceeding or petition, apply for or consent to any action or proceeding, the effect of which may be to change the zoning of the Project or its assessed valuation (except for entering into New Leases); (xi) Not sell, assign or transfer the Project or any part hereof (except in the instance of New Leases as provided in Paragraph 13.04 hereof), including without limitation, the Intangible Property and the Personal Property; provided, however, that Seller may remove applicable Phase Personal Property for the purpose of promptly effecting necessary repairs or immediate replacement with Personal Property of like character and equal or better quality; (xii) Not demolish or materially alter the Improvements or any part thereof or otherwise adversely affect the value of the Project, without Purchaser's prior consent, which consent shall not be unreasonably withheld or delayed, except for (1) curing Unacceptable Conditions, Title Defects and Survey Defects, (2) completing Punchlist Work (as defined and provided in Paragraph 13.11 hereof), (3) constructing tenant improvements for Leases, (4) performing Seller's New Lease Obligations (as defined and provided in Paragraph 13.10 hereof), and (5) completing, in accordance with its terms and the terms hereof; Plans, any incomplete work. (bxiii) Subordinated Creditor shall Except as provided in Paragraph 9.01(xii) above, not demand materially alter the applicable Phase or accept from any Loan Party or other Person any consideration which would result in a discharge of the Subordinated Indebtedness other than in accordance with its terms and the terms hereof; (c) Subordinated Creditor shall not hereafter give any subordination in respect of the Subordinated Indebtedness; (d) no Loan Party shall hereafter issue any instrument, security or other writing evidencing any part of the Subordinated Indebtednessthereof, and Subordinated Creditor shall not receive any such writingincluding without limitation, except upon the condition that such instrumentby mining, security or other writing shall bear the legend referred to herein and a complete copy thereof shall be furnished to Senior Agent; and (e) neither any Loan Party nor Subordinated Creditor shall take any action contrary to Senior Agent’s and Senior Lenders’ priority position over Subordinated Creditor that is created by this Agreement. In addition to the foregoing, Subordinated Creditor acknowledges and agrees that: (i) the Senior Creditors have relied on the terms and provisions of this Agreement in executing and delivering the Senior Documents and in making the extensions of credit contemplated thereby and shall continue to rely on such terms and provisions in making extensions of credit from time to time pursuant to the Senior Documents, and (ii) Subordinated Creditor shall not contest or challenge (or support any other Person in contesting or challenging) (A) the validity, perfection, priority or enforceability of the Senior Indebtedness, the Senior Documents or any Liens of the Senior Agent and the Senior Lenders in the Collateral securing the Senior Indebtedness or (B) the validity or enforceability of the subordination provisions contained in this Agreement.excavating,

AFFIRMATIVE AND NEGATIVE COVENANTS. Until all Each of the Senior Indebtedness has Loan Parties hereby covenants and agrees that until all obligations owed to the Lender shall have been Finally Paidpaid in full, without the prior written consent approval of Senior Lenders: the Lender: (a) no the Loan Party Parties shall discharge the Subordinated Indebtedness not incur any Indebtedness, other than Permitted Indebtedness or as otherwise expressly permitted by this Agreement (“Additional Indebtedness”), unless the net proceeds to the Company of such Additional Indebtedness shall be used to prepay 100% of the then Outstanding Principal Amount of the Note (including any Default Amount and accrued interest thereon), or such Additional Indebted shall be approved in accordance with its terms and advance by the terms hereof; Lender; (b) Subordinated Creditor the Loan Parties shall not demand engage in the public or accept from private sale of any Loan Party securities, including convertible and non-convertible notes or debentures, Common Stock or Common Stock Equivalents, except for Exempt Issuances or as otherwise expressly permitted in this Agreement, the Note or other Person any consideration which would result in a discharge Transaction Documents, unless the entire net proceeds to the Company of such sale shall be used to prepay an amount of the Subordinated Indebtedness other than in accordance with its terms Outstanding Principal Amount of the Note (including any Default Amount and the terms hereof; accrued interest) equal to such net proceeds; (c) Subordinated Creditor no payments of Indebtedness shall not hereafter give be paid to any subordination in respect Affiliate, other than payments of deferred compensation to members of the Subordinated Indebtedness; board of directors and employees of the Company; (d) no except for the Senior Lender, the Loan Party Parties shall hereafter issue not permit any instrument, security or other writing evidencing Person to have a Lien of any part of the Subordinated Indebtedness, and Subordinated Creditor shall not receive assets of any such writingof the Loan Parties, except upon for Permitted Liens (as defined in the condition that such instrument, security or other writing shall bear the legend referred to herein and a complete copy thereof shall be furnished to Senior Agent; and Security Agreement); (e) neither any the Loan Party nor Subordinated Creditor Parties shall take any action contrary to Senior Agent’s and Senior Lenders’ priority position over Subordinated Creditor that is created by this Agreement. In addition to the foregoing, Subordinated Creditor acknowledges and agrees that: (i) the Senior Creditors have relied on the terms and provisions of this Agreement in executing and delivering the Senior Documents and in making the extensions of credit contemplated thereby and shall continue to rely on such terms and provisions in making extensions of credit from time to time pursuant to the Senior Documents, and (ii) Subordinated Creditor shall not contest or challenge (or support any other Person in contesting or challenging) (A) the validity, perfection, priority or enforceability comply with all of the Senior Indebtedness, additional affirmative and negative covenants set forth in the Senior Documents or any Liens of the Senior Agent Note and the Senior Lenders in the Collateral securing the Senior Indebtedness or (B) the validity or enforceability of the subordination provisions contained in this Security Agreement.

AFFIRMATIVE AND NEGATIVE COVENANTS. Until all of the Senior Indebtedness has been Finally Paid, without the prior written consent of Senior Lenders: (a) no Loan Party shall discharge the Subordinated Indebtedness other than in accordance with its terms and the terms hereof; (bSection 9.9(i) Subordinated Creditor shall not demand or accept from any Loan Party or other Person any consideration which would result in a discharge of the Subordinated Loan Agreement is hereby amended and restated in its entirety to read as follows: (i) Indebtedness other than of any Borrowers evidenced by or arising under the Convertible Note Indenture as in accordance with its terms and effect on the terms date hereof; (c) Subordinated Creditor shall not hereafter give any subordination in respect of the Subordinated Indebtedness; (d) no Loan Party shall hereafter issue any instrument, security or other writing evidencing any part of the Subordinated Indebtednessprovided, and Subordinated Creditor shall not receive any such writing, except upon the condition that such instrument, security or other writing shall bear the legend referred to herein and a complete copy thereof shall be furnished to Senior Agent; and (e) neither any Loan Party nor Subordinated Creditor shall take any action contrary to Senior Agent’s and Senior Lenders’ priority position over Subordinated Creditor that is created by this Agreement. In addition to the foregoing, Subordinated Creditor acknowledges and agrees that: : (i) the Senior Creditors have relied aggregate principal amount of such Indebtedness shall not exceed $75,000,000, less the aggregate amount of all repayments, repurchases or redemptions thereof from and after such date, whether optional or mandatory, plus interest thereon at any of the applicable rates provided in the Convertible Note Indenture and/or in the Registration Rights Agreement executed in connection with the Convertible Note Indenture, each as in effect on the terms and provisions of this Agreement in executing and delivering the Senior Documents and in making the extensions of credit contemplated thereby and shall continue to rely on such terms and provisions in making extensions of credit from time to time pursuant to the Senior Documents, and date hereof; (ii) Subordinated Creditor Agent shall have received a true, correct and complete copy of the Convertible Note Indenture as in effect on the day hereof; (iii) such Indebtedness is and shall remain unsecured; (iv) Borrowers and Guarantors shall not, directly or indirectly, make, or be required to make, any payments in respect of such Indebtedness, except, that, Borrowers may make regularly scheduled payments of interest and fees, on an unaccelerated basis, in respect of such Indebtedness in accordance with the terms of the Convertible Note Indenture and/or in the Registration Rights Agreement as in effect on the date hereof; and (v) Borrowers shall not contest , directly or challenge (or support any other Person in contesting or challenging) indirectly, (A) the validityamend, perfectionmodify, priority alter or enforceability change any of the Senior Indebtednessmaterial terms of such Indebtedness or of any of the Convertible Note Indenture as in effect on the date hereof, except, that, Borrowers may, after prior written notice to Agent, amend, modify, alter or change the Senior Documents terms thereof so as to extend the maturity thereof or defer the timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness other than pursuant to payments thereof, or to reduce the interest rate or any Liens fees in connection therewith, or to make the provisions thereof less restrictive or burdensome than the terms or conditions of the Senior Agent and Convertible Note Indenture as in effect on the Senior Lenders in the Collateral securing the Senior Indebtedness date hereof, or (B) the validity make optional prepayments of principal or enforceability interest or redeem, retire, defease, purchase or otherwise acquire such Indebtedness, or set aside or otherwise deposit or invest any sums for such purpose;" (b) Section 9 of the subordination provisions contained Loan Agreement is hereby amended by inserting a new clause 9.24 therein to read as follows: "Minimum Amount of Excess Availability, Cash and Cash Equivalents. If the Leverage Ratio of Parent and its Subsidiaries (on a consolidated basis) as of the last day of each calendar month commencing with the month ending February 28, 2006, is greater than 3.00:1.00, then the Borrowers shall cause the sum of Excess Availability and the aggregate amount of all cash and Cash Equivalents maintained in this Agreementthe Borrowers' deposit accounts located in the United States and Canada to equal or exceed $7,500,000."

AFFIRMATIVE AND NEGATIVE COVENANTS. Until Notwithstanding any provision of this Section 9 to the contrary: (I) during any No Covenant Period, Borrower, the Guarantors and their respective Subsidiaries shall not be required to comply with any provisions of this Section 9; provided, however, that if the No Covenant Period shall cease, the obligations of Borrower, the Guarantors and their respective Subsidiaries to comply with the provisions of this Section 9 shall be (x) prior to the first Term Loan Conversion, as set forth in clause (II) below or (y) after the first Term Loan Conversion, as set forth in clause (III) below. (II) at any time prior to the first Term Loan Conversion but when a No Covenant Period is not in effect, Borrower, the Guarantors and their respective Subsidiaries shall be required to comply with the provisions of Sections 9.6(a)-(c), 9.11 and 9.23 (the “Limited Covenants”), but not any other provisions of this Section 9; provided, however, that (x) if it is determined that a No Covenant Period is in effect, the obligations of Borrower, the Guarantors and their respective Subsidiaries to comply with the provisions of this Section 9 shall be as set forth in clause (I) above and (y) upon the occurrence of the first Term Loan Conversion, the obligations of Borrower, the Guarantors and their respective Subsidiaries to comply with the provisions of this Section 9 shall be as set forth in clause (III) below. (III) at any time following the first Term Loan Conversion but when a No Covenant Period is not in effect, Borrower, the Guarantors and their respective Subsidiaries shall be required to comply with all of the Senior Indebtedness has been Finally Paid, without the prior written consent of Senior Lenders: (a) no Loan Party shall discharge the Subordinated Indebtedness other than in accordance with its terms and the terms hereof; (b) Subordinated Creditor shall not demand or accept from any Loan Party or other Person any consideration which would result in a discharge of the Subordinated Indebtedness other than in accordance with its terms and the terms hereof; (c) Subordinated Creditor shall not hereafter give any subordination in respect of the Subordinated Indebtedness; (d) no Loan Party shall hereafter issue any instrument, security or other writing evidencing any part of the Subordinated Indebtedness, and Subordinated Creditor shall not receive any such writing, except upon the condition that such instrument, security or other writing shall bear the legend referred to herein and a complete copy thereof shall be furnished to Senior Agent; and (e) neither any Loan Party nor Subordinated Creditor shall take any action contrary to Senior Agent’s and Senior Lenders’ priority position over Subordinated Creditor that is created by this Agreement. In addition to the foregoing, Subordinated Creditor acknowledges and agrees that: (i) the Senior Creditors have relied on the terms and provisions of this Agreement Section 9; provided, however, that if it is determined that a No Covenant Period is in executing effect, the obligations of Borrower, the Guarantors and delivering their respective Subsidiaries to comply with the Senior Documents and provisions of this Section 9 shall be as set forth in making clause (I) above. No action taken or omitted to be taken by Borrower, the extensions Guarantors or any of credit contemplated thereby and shall continue to rely on such terms and provisions in making extensions of credit from their respective Subsidiaries during a No Covenant Period or, at any time to time pursuant prior to the Senior Documentsfirst Term Loan Conversion, and (ii) Subordinated Creditor with respect to covenants other than the Limited Covenants, shall not contest give rise to a Default or challenge (or support any other Person in contesting or challenging) (A) the validity, perfection, priority or enforceability Event of the Senior Indebtedness, the Senior Documents or any Liens of the Senior Agent and the Senior Lenders in the Collateral securing the Senior Indebtedness or (B) the validity or enforceability of the subordination provisions contained in Default under this Agreement; provided, that for purposes of calculating compliance with Section 9.9(e)(iv) at any time when compliance with Section 9.9 is required hereunder, Indebtedness will be calculated as though Section 9.9 had been in effect during the entire period after the Closing Date.