Common use of Ranking and Covenants Clause in Contracts

Ranking and Covenants. (a) Other than the First Priority Security Interest, no indebtedness of the Company or any subsidiary of the Company is senior to this Note in right of payment, whether with respect to principal, interest or damages or upon liquidation, dissolution or otherwise. Until this Note is fully paid and discharged in full, the Company shall not, and shall not permit any subsidiary of the Company to, directly or indirectly, incur any indebtedness for borrowed money (other than Permitted Indebtedness (as defined in Section 6.14 below)) unless such indebtedness is expressly subordinated to this Note pursuant to a written subordination agreement acceptable in form, scope and substance to the Holders of not less than a simple majority of the then outstanding aggregate principal on the 14% Notes, provided, however, that notwithstanding the foregoing, the Company may issue, without the consent of the Holders, up to a total of $20 million in aggregate principal amount of 14% or 12.5% convertible senior or subordinated secured notes (inclusive of this Note and all other 14% Notes) on substantially similar terms and conditions as this Note (the “Follow-On Secured Notes”). The Follow-On Secured Notes and any note issued by the Company pursuant to such proviso issued under the same terms shall rank pari passu with the Company’s obligations under this Note and may be secured equally and ratably by Xxxxx, on or with respect to any of the Company’s property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom and shall have the benefit, to the full extent that and with such priority as the obligations under this Note.

Ranking and Covenants. (a) Other than Except for Permitted Indebtedness specified in clause (a) of the First Priority Security Interestdefined term “Permitted Indebtedness” under the Purchase Agreement, no indebtedness Indebtedness for borrowed money of the Company or any subsidiary of the Company Subsidiary is senior to this or on a parity with the Note in right of payment, whether with respect to principalinterest, interest or damages or upon liquidation, liquidation or dissolution or otherwise. Until this Note is fully paid and discharged in full, the The Company shall will not, and shall will not permit any subsidiary of the Company Subsidiary to, directly or indirectly, incur enter into, create, incur, assume or suffer to exist any indebtedness for borrowed money (other than Permitted Indebtedness (as defined in Section 6.14 below)) unless such indebtedness is expressly subordinated to this Note pursuant to a written subordination agreement acceptable in form, scope and substance to the Holders of not less than a simple majority of the then outstanding aggregate principal on the 14% Notes, provided, however, that notwithstanding the foregoing, the Company may issue, without the consent of the Holders, up to a total of $20 million in aggregate principal amount of 14% or 12.5% convertible senior or subordinated secured notes (inclusive of this Note and all other 14% Notes) on substantially similar terms and conditions as this Note (the “Follow-On Secured Notes”). The Follow-On Secured Notes and any note issued by the Company pursuant to such proviso issued under the same terms shall rank pari passu with the Company’s obligations under this Note and may be secured equally and ratably by Xxxxxkind, on or with respect to any of the Company’s its property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom and shall have the benefittherefrom, except to the full extent expressly permitted by, and subject to any approval required under, the Transaction Documents. The Holder may require, in its sole discretion, that twenty percent (20%) of the proceeds (net of fees) attributable to the incurrence of any Indebtedness or issuance of Equity Interests by the Company or any Subsidiary in excess of Five Million Dollars ($5,000,000) (twenty percent (20%) of such proceeds in excess of Five Million Dollars ($5,000,000) is referred to as, the “Available Excess Proceeds”) be used to repurchase the Note (or the portion thereof being repurchased) at a purchase price equal to one hundred percent (100%) of the Principal and with such priority as accrued but unpaid interest then due and owing under the obligations under portion of the Note that is being repaid from the Available Excess Proceeds. For the avoidance of doubt, this NoteSection 3(a) shall not limit, modify or negate the Company’s obligation to obtain the consent of the Holder for any of the matters set forth in Section 8.11(II)(f) of the Purchase Agreement (including, without limitation, those matters specified in Sections 8.11(II)(e) and (f) of the Purchase Agreement).

Ranking and Covenants. (a) Other than the First Priority Security InterestExcept as set forth on Schedule 1 attached hereto, no indebtedness of the Company or any subsidiary of the Company is senior to this Note in right of payment, whether with respect to principalinterest, interest or damages or upon liquidation, liquidation or dissolution or otherwise. Until this Note is fully paid and discharged in full, the Company shall not, and shall not permit any subsidiary of the Company to, directly or indirectly, incur any indebtedness for borrowed money (other than Permitted Indebtedness (as defined excluding accounts payable incurred in Section 6.14 below)the ordinary course of business) unless such indebtedness is expressly subordinated to this Note pursuant to a written subordination agreement acceptable in form, scope and substance to the Holders of not less than a simple majority of the then outstanding aggregate principal on the 14% Notes, provided, however, that notwithstanding Holder in its sole and absolute discretion. Notwithstanding the foregoing, the Company may issue, without the consent enter into an additional $__________ offering of the Holders, up to a total of $20 million in aggregate principal amount of 14% or 12.58% convertible senior or subordinated secured notes (inclusive of this Note and all other 14% Notesthe “Additional Offering”) on substantially similar terms and conditions as this Note Note, except that such notes shall be convertible for Common Shares at the lower of $.50 per share or the volume weighted average price of the Common Shares on the primary trading market on which the Common Shares are listed or quoted, for the ten (the “Follow-On Secured Notes”)10) trading day period ending on October 1, 2008. The Follow-On Secured Notes and any note issued by the Company pursuant to such proviso issued under the same terms Additional Offering shall rank pari passu with the Company’s obligations under this Note and may be secured equally and ratably by XxxxxLxxxx, on or with respect to any of the Company’s property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom and shall have the benefit, to the full extent that and with such priority as the obligations under this Note.

Ranking and Covenants. (a) Other than the First Priority Security Interest, no No indebtedness of the Company or any subsidiary of the Company is senior to this Note in right of payment, whether with respect to principalinterest, interest or damages or upon liquidation, liquidation or dissolution or otherwise. Until this Note is fully paid and discharged in full, the Company shall not, and shall not permit any subsidiary of the Company to, directly or indirectly, incur any indebtedness for borrowed money (other than excluding Permitted Indebtedness (as defined in Section 6.14 below)Indebtedness) unless such indebtedness is expressly subordinated to this Note pursuant to a written subordination agreement acceptable in form, scope and substance to the Holders of not less than a simple majority of the then outstanding aggregate principal on the 14% Notes, Holder in its sole and absolute discretion; provided, however, that notwithstanding the foregoing, the Company may issue, without the consent of the Holders, issue up to a total of $20 million in aggregate principal amount of 14% or 12.58% convertible senior or subordinated secured notes (inclusive of this Note and all other 14% 2012 Notes) on substantially similar terms and conditions as this Note (the “Follow-On Secured Notes”)Note. The Follow-On Secured 2012 Notes and any note issued by the Company pursuant to such proviso issued under the same terms shall rank pari passu with the Company’s obligations under this Note and may be secured equally and ratably by Xxxxx, on or with respect to any of the Company’s property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom and shall have the benefit, to the full extent that and with such priority as the obligations under this Note.

Ranking and Covenants. (a) Other than the First Priority Security InterestExcept as set forth on Schedule 1 attached hereto, no indebtedness of the Company or any subsidiary of the Company is senior to this Note in right of payment, whether with respect to principalinterest, interest or damages or upon liquidation, liquidation or dissolution or otherwise. Until this Note is fully paid and discharged in full, the Company shall not, and shall not permit any subsidiary of the Company to, directly or indirectly, incur any indebtedness for borrowed money (other than Permitted Indebtedness (as defined excluding accounts payable incurred in Section 6.14 below)the ordinary course of business) unless such indebtedness is expressly subordinated to this Note pursuant to a written subordination agreement acceptable in form, scope and substance to the Holders of not less than a simple majority of the then outstanding aggregate principal on the 14% Notes, provided, however, that notwithstanding Holder in its sole and absolute discretion. Notwithstanding the foregoing, the Company may issue, without the consent enter into an additional $__________ offering of the Holders, up to a total of $20 million in aggregate principal amount of 14% or 12.58% convertible senior or subordinated secured notes (inclusive of this Note and all other 14% Notesthe “Additional Offering”) on substantially similar terms and conditions as this Note Note, except that such notes shall be convertible for Common Shares at the lower of $.50 per share or the volume weighted average price of the Common Shares on the primary trading market on which the Common Shares are listed or quoted, for the ten (the “Follow-On Secured Notes”)10) trading day period ending on October 1, 2008. The Follow-On Secured Notes and any note issued by the Company pursuant to such proviso issued under the same terms Additional Offering shall rank pari passu with the Company’s obligations under this Note and may be secured equally and ratably by Xxxxx, on or with respect to any of the Company’s property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom and shall have the benefit, to the full extent that and with such priority as the obligations under this Note.

Ranking and Covenants. (a) Other than the First Priority Security InterestExcept as set forth on Schedule 1 attached hereto, no indebtedness of the Company or any subsidiary of the Company is senior to this Note in right of payment, whether with respect to principalinterest, interest or damages or upon liquidation, liquidation or dissolution or otherwise. Until this Note is fully paid and discharged in full, the Company shall not, and shall not permit any subsidiary of the Company to, directly or indirectly, incur any indebtedness for borrowed money (other than Permitted Indebtedness (as defined excluding accounts payable incurred in Section 6.14 below)the ordinary course of business) unless such indebtedness is expressly subordinated to this Note pursuant to a written subordination agreement reasonably acceptable in form, scope and substance to the Holders of not less than a simple majority of the then outstanding aggregate principal on of the 14% 2009 Notes, provided, however, that notwithstanding . Notwithstanding the foregoing, in addition to the 2009 Notes, the Company may issue, without the consent of the Holders, up to issue a total of $20 10 million in aggregate principal amount of 14% or 12.58% convertible senior or subordinated secured notes (inclusive of this Note and all other 14% Notesthe “Additional Offering”) on substantially similar terms and conditions as this Note (the “Follow-On Secured Notes”)Note. The Follow-On Secured Notes and any note issued by the Company pursuant to such proviso issued under the same terms Additional Offering shall rank pari passu with the Company’s obligations under this Note and the Senior Secured 8% Convertible Notes issued by the Company in 2008 (the “2008 Notes”) and may be secured equally and ratably by XxxxxLxxxx, on or with respect to any of the Company’s property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom and shall have the benefit, to the full extent that and with such priority as the obligations under this Note.

Ranking and Covenants. (a) Other than Except as set forth in Schedule 3.1(dd) or as otherwise permitted in Section 4.10(a) of the First Priority Security InterestPurchase Agreement (the “Existing Indebtedness”), no indebtedness of the Company or any subsidiary of the Company is senior to to, or pari passu with, this Note in right of payment, whether with respect to principalinterest, interest or damages or upon liquidation, liquidation or dissolution or otherwise. Until this Note is fully paid Other than the Existing Indebtedness and discharged in fullany renewal, refinancing or replacement thereof that does not exceed the aggregate amount of the Existing Indebtedness and the borrowing availability under the related credit or loan agreements on the date hereof, the Company shall will not, and shall will not permit any Subsidiary to, directly or indirectly, enter into, create, incur, assume or suffer to exist any indebtedness of any kind, that is senior or pari passu in any respect to the Company’s obligations under the Notes, other than indebtedness secured by purchase money security interests (which will be senior only as to the underlying assets covered thereby) and indebtedness under capital lease obligations (which will be senior only as to the assets covered thereby); and the Company will not, and will not permit any subsidiary of the Company to, directly or indirectly, incur any indebtedness for borrowed money (other than Permitted Indebtedness (as defined in Section 6.14 below)) unless such indebtedness is expressly subordinated to this Note pursuant to a written subordination agreement acceptable in form, scope and substance to the Holders of not less than a simple majority of the then outstanding aggregate principal on the 14% Notes, provided, however, that notwithstanding the foregoing, the Company may issue, without the consent of the Holders, up to a total of $20 million in aggregate principal amount of 14% or 12.5% convertible senior or subordinated secured notes (inclusive of this Note and all other 14% Notes) on substantially similar terms and conditions as this Note (the “Follow-On Secured Notes”). The Follow-On Secured Notes and any note issued by the Company pursuant to such proviso issued under the same terms shall rank pari passu with the Company’s obligations under this Note and may be secured equally and ratably by Xxxxx, Lien on or with respect to any of the Company’s its property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom and shall have the benefittherefrom, except with respect to the full extent that and with such priority as the obligations under this NoteExisting Indebtedness.