Common use of Special Purpose Subsidiary Clause in Contracts

Special Purpose Subsidiary. Without the express prior written consent of Obligee, Special Purpose Subsidiary shall not, and the Company shall not permit Special Purpose Subsidiary (which term, as used in this Agreement, includes Special Purpose Subsidiary and its Subsidiaries) to, directly or indirectly: (a) create, incur, assume or suffer to exist any Indebtedness, other than Indebtedness under the Transaction Documents and, on a basis subordi- nate to the Indebtedness under the Transaction Documents consistent with the Intercreditor Agreement, Indebtedness permitted by Section 7.2(b); (b) create, incur, assume or suffer to exist any Lien upon the Capital Stock of Special Purpose Subsidiary or upon any of the property, assets or revenues of Special Purpose Subsidiary, whether now owned or hereafter acquired, other than Liens under the Transaction Documents and, on a basis subordinate to the Indebtedness under the Transaction Documents consistent with the Intercreditor Agreement, Liens securing Indebt- edness permitted by Section 7.2(b); (c) create, incur, assume or suffer to exist any Guarantee Obligation, other than Guarantee Obli- gations under the Transaction Documents and, on a basis subordinate to the Guarantee Obligations under the Transaction Documents consistent with the Intercreditor Agreement, Guarantee Obliga- tions in respect of Indebtedness permitted by Section 7.2(b); (d) except to the extent such merger, consolidation or amalgamation is of a Subsidiary of Special Purpose Subsidiary with and into Special Purpose Subsidiary, or between or among wholly owned Subsidiaries of Special Purpose Subsidiary, en- ter into any merger, consolidation or amalgam- ation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer or other- wise dispose of, all or substantially all of its property, business or assets; (e) except as expressly approved by the Board of Directors of the Company in connection with a Board-approved real estate development project, convey, sell, lease, assign, transfer or other- wise dispose of any of its property, business or assets (including receivables and leasehold in- terests), whether now owned or hereafter ac- quired; (f) declare or pay any dividend on, or make any pay- ment on account of, or set apart assets for a sinking or other analogous fund for, the pur- chase, redemption, defeasance, retirement or other acquisition of any Capital Stock of the Company other than the Preferred Stock, whether now or hereafter outstanding, or make any other distributions in respect thereof, either di- rectly or indirectly, whether in cash or prop- erty or in obligations of Special Purpose Sub- sidiary, except for dividends declared and paid by any Subsidiary of Special Purpose Subsidiary to Special Purpose Subsidiary or any Subsidiary of Special Purpose Subsidiary and except as per- mitted by Section 6.14(d)(iii) or (d)(iv) of the Investment Agreement; (g) except as expressly approved by the Board of Directors of the Company in connection with a Board-approved real estate development project, make, or enter into any agreement the perfor- mance of the terms of which would require Spe- cial Purpose Subsidiary to make (by way of the acquisition of securities of a Person or other- wise), any expenditures in respect of the pur- chase or other acquisition of fixed or capital assets; (h) except as expressly approved by the Board of Directors of the Company in connection with a Board-approved real estate development project, make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other Investment in, any Person; (i) make any optional payment or optional prepayment on, or optional redemption of, or purchase or otherwise acquire any interest in, any Indebted- ness other than any Indebtedness to Obligee; amend, modify or change, or consent or agree to any amendment, modification or change to any of the terms of any Indebtedness, including Foot- hill Debt, or any other agreement executed in connection with any Indebtedness; or amend any subordination provisions of any instrument gov- erning any Indebtedness; (j) except as permitted by Section 6.14(d)(iii) or (d)(iv) of the Investment Agreement enter into any transaction, including any purchase, sale, lease, loan or transfer exchange of property or the rendering of any service, with any Affiliate (other than any Subsidiary of Special Purpose Subsidiary), including the Company or any Subsidiary other than a Subsidiary of Special Purpose Subsidiary; (k) enter into any Sale and Leaseback; (l) enter into any agreement with any Person other than the Obligee pursuant hereto which prohibits or limits the ability of Special Purpose Subsid- iary to create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter ac- quired; (m) own any assets or properties (including cash, Cash Equivalents and Investments) on which Obligee does not have a perfected first lien pursuant to the Security Documents; or (n) create or permit to exist any Subsidiary.

Special Purpose Subsidiary. Without the express prior written consent of Obligee, Special Purpose Subsidiary shall not, and the Company shall not permit Special Purpose Subsidiary (which term, as used in this Agreement, includes Special Purpose Subsidiary and its Subsidiaries) to, directly or indirectly: (a) create, incur, assume or suffer to exist any Indebtedness, other than Indebtedness under the Transaction Documents and, on a basis subordi- nate subordinate to the Indebtedness under the Transaction Documents consistent with the Intercreditor Agreement, Indebtedness permitted by Section 7.2(b); (b) create, incur, assume or suffer to exist any Lien upon the Capital Stock of Special Purpose Subsidiary or upon any of the property, assets or revenues of Special Purpose Subsidiary, whether now owned or hereafter acquired, other than Liens under the Transaction Documents and, on a basis subordinate to the Indebtedness under the Transaction Documents consistent with the Intercreditor Agreement, Liens securing Indebt- edness Indebtedness permitted by Section 7.2(b); (c) create, incur, assume or suffer to exist any Guarantee Obligation, other than Guarantee Obli- gations Obligations under the Transaction Documents and, on a basis subordinate to the Guarantee Obligations under the Transaction Documents consistent with the Intercreditor Agreement, Guarantee Obliga- tions Obligations in respect of Indebtedness permitted by Section 7.2(b); (d) except to the extent such merger, consolidation or amalgamation is of a Subsidiary of Special Purpose Subsidiary with and into Special Purpose Subsidiary, or between or among wholly owned Subsidiaries of Special Purpose Subsidiary, en- ter enter into any merger, consolidation or amalgam- ationamalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer or other- wise otherwise dispose of, all or substantially all of its property, business or assets; (e) except as expressly approved by the Board of Directors of the Company in connection with a Board-approved real estate development project, convey, sell, lease, assign, transfer or other- wise otherwise dispose of any of its property, business or assets (including receivables and leasehold in- terestsinterests), whether now owned or hereafter ac- quiredacquired; (f) declare or pay any dividend on, or make any pay- ment payment on account of, or set apart assets for a sinking or other analogous fund for, the pur- chasepurchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of the Company other than the Preferred Stock, whether now or hereafter outstanding, or make any other distributions in respect thereof, either di- rectly directly or indirectly, whether in cash or prop- erty property or in obligations of Special Purpose Sub- sidiary, except for dividends declared and paid by any Subsidiary of Special Purpose Subsidiary to Special Purpose Subsidiary or any Subsidiary of Special Purpose Subsidiary and except as per- mitted permitted by Section 6.14(d)(iii) or (d)(iv) of the Investment Agreement; (g) except as expressly approved by the Board of Directors of the Company in connection with a Board-approved real estate development project, make, or enter into any agreement the perfor- mance performance of the terms of which would require Spe- cial Special Purpose Subsidiary to make (by way of the acquisition of securities of a Person or other- wiseotherwise), any expenditures in respect of the pur- chase purchase or other acquisition of fixed or capital assets; (h) except as expressly approved by the Board of Directors of the Company in connection with a Board-approved real estate development project, make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other Investment in, any Person; (i) make any optional payment or optional prepayment on, or optional redemption of, or purchase or otherwise acquire any interest in, any Indebted- ness Indebtedness other than any Indebtedness to Obligee; amend, modify or change, or consent or agree to any amendment, modification or change to any of the terms of any Indebtedness, including Foot- hill Foothill Debt, or any other agreement executed in connection with any Indebtedness; or amend any subordination provisions of any instrument gov- erning governing any Indebtedness; (j) except as permitted by Section 6.14(d)(iii) or (d)(iv) of the Investment Agreement enter into any transaction, including any purchase, sale, lease, loan or transfer exchange of property or the rendering of any service, with any Affiliate (other than any Subsidiary of Special Purpose Subsidiary), including the Company or any Subsidiary other than a Subsidiary of Special Purpose Subsidiary; (k) enter into any Sale and Leaseback; (l) enter into any agreement with any Person other than the Obligee pursuant hereto which prohibits or limits the ability of Special Purpose Subsid- iary Subsidiary to create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter ac- quiredacquired; (m) own any assets or properties (including cash, Cash Equivalents and Investments) on which Obligee does not have a perfected first lien pursuant to the Security Documents; or (n) create or permit to exist any Subsidiary.