Common use of Certain Additional Covenants Clause in Contracts

Certain Additional Covenants. At any time during which the Purchaser owns any outstanding Notes or the Warrant: (a) Prior to entering into any Claim Proceeds Purchase Agreement with any Person whose primary place of residence or business is located in a state in which there are no Persons with which the Company had previously entered into a Claim Proceeds Purchase Agreement, the Company shall (i) consult with legal counsel (which may or may not be licensed to practice in the Applicable State) with respect to the validity and enforceability of Claim Proceeds Purchase Agreements under the Applicable Law of the Applicable State and (ii) on the basis of such legal consultations, among other factors, attempt in good faith to make a considered business judgment with respect to the advisability of entering into such Claim Proceeds Purchase Agreement. (b) The Company shall cause to be done all things necessary to maintain, preserve and renew its corporate existence and all material licenses, authorizations and permits necessary to the conduct of its business. (c) The Company shall apply for and continue in force adequate insurance covering risks of such types and in such amounts as are customary for corporations of similar size engaged in similar lines of business. (d) The Company shall pay and discharge, when due and payable, all taxes, assessments and governmental charges imposed upon its properties or upon the income or profits therefrom (in each case before the same becomes delinquent and before penalties accrue thereon) unless the same is being contested in good faith and by appropriate proceedings and adequate reserves (as determined in accordance with GAAP, consistently applied) have been established on its books with respect thereto. (e) The Company shall pay and discharge, when due and payable, all interest and principal amounts payable under the Notes and any other indebtedness of the Company (in each case before the same becomes delinquent and before penalties accrue thereon), subject to the terms and conditions of the Notes and such other indebtedness, unless the same is being contested in good faith and by appropriate proceedings and adequate reserves (as determined in accordance with GAAP, consistently applied) have been established on its books with respect thereto.

Certain Additional Covenants. At In addition to (and not in limitation of) any time during which other restrictions imposed on the Purchaser owns any outstanding Notes or Credit Parties contained herein and in the Warrantother Loan Documents, Borrowers hereby covenant and agree in connection with the Permitted Restructuring that: (a) Prior to entering into any Claim Proceeds Purchase Agreement with any Person whose primary place of residence or business is located in a state in which there are no Persons with which the Company had previously entered into a Claim Proceeds Purchase Agreement, the Company Borrower Representative shall (i) consult with give Agent and its legal counsel prior written notice of any proposed name change, reincorporation or merger or consolidation of Parent, Holdings, any Borrower or any Subsidiary thereof in connection with the Permitted Restructuring or otherwise and will take all actions and execute and deliver all documents and instrument as requested from time to time by Agent to ensure Agent on behalf of itself and Lenders continues to have a valid, first priority (which may or may not be licensed subject only to practice in the Applicable Statepermitted encumbrances) with respect to the validity and enforceability of Claim Proceeds Purchase Agreements under the Applicable Law Lien upon all of the Applicable State and (ii) on the basis of Collateral after giving effect to any such legal consultationsname change, among other factorsreincorporation, attempt in good faith to make a considered business judgment with respect to the advisability of entering into such Claim Proceeds Purchase Agreement.merger or consolidation; (b) The Company Not later than ten Business Days after the Permitted Restructuring Start Date, Borrower Representative shall cause have delivered the following documents and opinions to be done Agent, in each case, in form and substance satisfactory to Agent: (i) legal opinion covering matters with respect to Parent, the other Credit Parties and the Loan Documents executed and delivered by Parent to Agent and Lenders, including due incorporation, valid existence, good standing, power and authority, enforceability, no conflict, valid creation and perfection of security interests, the Initial Merger and the Name Change Merger have been consummated in accordance with applicable law (which shall reflect the legality and effectiveness of such mergers in form and substance satisfactory to Agent and its counsel), and the continued enforceability of the Loan Documents and the Liens in favor of Agent and Lenders granted pursuant thereto after giving effect to such mergers, and such other matters as Agent may reasonably request; (ii) secretary's certificate of Parent as to incumbency and other matters together with following attachments (A) Articles of Incorporation of Parent, certified by Secretary of State of Minnesota, (B) bylaws of Parent, (C) board resolutions or consents authorizing execution of all things necessary to maintainLoan Documents by Parent, preserve and renew its corporate existence and all material licenses, authorizations and permits necessary to the conduct (D) good standing certificate issued by Secretary of its business.State; (c) The Company From and after the Closing Date, Parent shall apply for not (i) engage in any business activity other than business activities directly related to the provision of administrative services to the Borrowers, including, but not limited to, accounting, legal, business development and continue in force adequate insurance covering risks of such types certain marketing services and in such amounts as are customary for corporations of similar size engaged in similar lines of business. other business activities directly related to being a holding company; (dii) The Company shall pay incur any Indebtedness other than (x) the Obligations and discharge, when due and payable, all taxes, assessments and governmental charges imposed upon its properties or upon (x) following the income or profits therefrom (in each case before the same becomes delinquent and before penalties accrue thereon) unless the same is being contested in good faith and by appropriate proceedings and adequate reserves (as determined in accordance with GAAP, consistently applied) have been established on its books with respect thereto. (e) The Company shall pay and discharge, when due and payable, all interest and principal amounts payable under the Notes and any other indebtedness consummation of the Company Initial Merger, the assumption by Parent of certain Indebtedness of Holdings existing on the Closing Date as described on Disclosure Schedule 1.1 (Permitted Restructuring); (iii) create or acquire any Subsidiaries (whether in each case before connection with any Acquisition or otherwise) except as expressly described on Disclosure Schedule 1.1 (Permitted Restructuring); or (iv) engage in any Acquisition except for the same becomes delinquent acquisition of Stock of Subsidiaries of Holdings and before penalties accrue thereon), subject to certain assets of Holdings in connection with the terms and conditions of the Notes and such other indebtedness, unless the same is being contested in good faith and by appropriate proceedings and adequate reserves (as determined in accordance with GAAP, consistently applied) have been established on its books with respect theretoPermitted Restructuring.

Certain Additional Covenants. At any time during which The following covenants are hereby added to the Purchaser owns any outstanding Notes or the WarrantAgreement and Seller's and Buyer's obligations with respect thereto shall survive Closing: (ai) Prior Seller agrees to entering into any Claim Proceeds Purchase perform all obligations of the Great Mall under the Cooperative Agreement with any Person whose primary place and to cause its work thereunder to be completed on or before March 1, 2004, and to enforce the obligations of residence or business is located the VTA thereunder, in a state manner sufficient to enable the issuance of a permanent certificate of occupancy for the parking structure on the Property (if the condition for which has not by then been released and the permanent certificate issued) (the "CO") and to enable Buyer to otherwise satisfy certain conditions to reuse of the 60,000 square feet which currently cannot be utilized pursuant to the conditional use permits issued for the Property (the "Reuse Conditions"). Seller agrees to escrow with Escrow Agent on the Closing Date the portion of costs to be paid by Seller pursuant to the Cooperative Agreement as provided in the current budget for the cost of the work attached thereto plus the amount of acquisition costs required to be funded by Seller thereunder ("Cooperative Agreement Escrow") currently estimated to be $497,045.00, which there are no Persons escrow will provide for payments to Seller on account of the costs of its work, an increase of the escrowed funds from time to time to reflect revised budgets and which will be assigned to Buyer pursuant to the conditional assignment attached as Exhibit G hereto. Seller's obligations hereunder shall not be subject to the Liability Cap Amount. Buyer hereby acknowledges and agrees that in addition to the work under the Cooperative Agreement, other conditions as set forth in Use Permit Amendments P-UA2002-18 and EIA No. P-EA20028, including but not limited to the Special Conditions (Item 6 of which is the work under the Cooperative Agreement) exist which must be satisfied and which will be Buyer's responsibility after Closing. Seller shall diligently pursue any and all approvals required to be obtained by it to enable the Cooperative Agreement work to be performed by it to be finished on or before the date set forth above and shall diligently perform such work in a manner which is in compliance with which all applicable laws, rules, regulations and permits issued therefor. If Seller fails to obtain the Company had previously approvals required to perform its work under the Cooperative Agreement, or if after obtaining same, Seller fails to perform its work to completion, or if, for any reason, the work under the Cooperative Agreement necessary to obtain the CO and satisfy the Reuse Conditions has not been completed by March 1, 2004, Buyer shall have the right to cause such work to be completed (and Seller shall at Closing assign pursuant to a conditional assignment in form attached hereto as Exhibit G, to Buyer all of its rights under the Cooperative Agreement and the Cooperative Agreement Escrow, whether then existing or coming into existence in the future and any other contracts entered or to be entered into a Claim Proceeds Purchase Agreementin furtherance thereof, provided that the Company exercise of Buyer's rights under such assignment shall (ibe as set forth in Exhibit G) consult with legal counsel (which may or may not and Buyer shall be licensed entitled to practice utilize the funds in the Applicable StateCooperative Agreement Escrow to cause such work to be completed. In addition, Seller shall indemnify, defend and hold harmless Buyer from and against any and all liabilities, losses, damages, liens (including mechanics' liens filed against the Property), costs, and expenses (including reasonable attorneys' fees) which in any way arise out of Seller's work under the Cooperative Agreement. Seller shall not amend the Cooperative Agreement in any way not contemplated in the Cooperative Agreement or in any manner which would materially adversely affect Seller's or the VTA's ability to complete the work to be performed under the Cooperative Agreement (or Buyer's ability to complete the work pursuant to the assignment if required) or to obtain the CO and satisfy the Reuse Conditions as and when provided for herein, without Buyer's written consent and shall promptly give copies of any notices given by or received by Seller thereunder to Buyer. In addition, Buyer shall be entitled to review and reasonably approve the form of easement agreements for access to be entered into pursuant to the Cooperative Agreement prior to execution of such easements. (ii) In connection with the "Notice of Proposed Escape Assessment" dated June 17, 2003, received by Seller from the Santa ▇▇▇▇▇ County Assessor ("Assessor") with respect to personal property taxes at the validity Property, Seller covenants that Seller will diligently respond to such notice and enforceability shall negotiate or otherwise obtain a resolution to the claims asserted by the Assessor for additional personal property taxes in a manner permitted by applicable law (including formal appeal), and to the extent any amounts are owed to the Assessor as a result of Claim Proceeds Purchase Agreements under such proceedings (including penalties and interest), Seller shall promptly pay the Applicable Law same (in all events before they become a lien on the Property). Seller further agrees that notwithstanding anything to the contrary in the Agreement, Seller shall not have the right to seek reimbursement from any Tenants of the Applicable State and (ii) on the basis of such legal consultations, among other factors, attempt in good faith to make a considered business judgment Property for any amounts paid by Seller with respect to such proceedings. In addition, to the advisability extent Seller becomes entitled to a refund of entering into real property taxes previously paid for the years 1999, 2000, 2001, and/or 2002 as a result of other proceedings or related appeals filed by Seller, promptly following Seller's receipt of any refund, Seller shall remit to Buyer an amount equal to the amount by which such Claim Proceeds Purchase real property tax refund exceeds that portion of the increased personal property taxes paid or to be paid by Seller pursuant to this Section which Seller, pursuant to the express terms of the Leases, would have been entitled to recover from the Tenants of the Property if it had remained the landlord thereunder. If Seller fails to pay any amount owed to Santa ▇▇▇▇▇ County pursuant to this Section when due (including any interest or penalties) or to remit the applicable portion of any such refund to Buyer within ten (10) days following the determination of the amount due, Buyer shall be entitled to draw upon the Holdback Escrow Funds in an amount equal to any such delinquencies and/or amounts owed, all as set forth in the Exhibit M Holdback Escrow Agreement. The obligations of Seller and Buyer hereunder shall continue to survive the Closing Date until all claims for refunds are finally resolved. (biii) The Company On or before November 15, 2003, Seller shall cause relocate the current pylon sign for the advertising of the Property located along Interstate 880 to property leased under the Lease Agreement between the Seller and City of Milpitas ("City"), shall perform all modifications to such sign and the 680 pylon sign for the Property as may be done required by applicable governmental authorities, including CalTrans and the City of Milpitas, and shall provide evidence to Buyer that the relocated 880 pylon sign is located on the property which is the subject of the Lease Agreement between Seller and the City of Milpitas. In addition, on or before December 15, 2003, Seller shall provide Buyer with evidence that all things necessary to maintainapplicable licenses, preserve permits and renew its corporate existence approvals for the pylon signs on Interstate 680 and 880 have been issued by CalTrans, the City of Milpitas, and all material licensesother governmental authorities having jurisdiction. In connection with such work, authorizations and permits necessary to the conduct of its business. (c) The Company Seller shall apply for and continue in force adequate insurance covering risks of such types and in such amounts as are customary for corporations of similar size engaged in similar lines of business. (d) The Company shall pay and discharge, when due and payable, comply with all taxes, assessments and governmental charges imposed upon its properties or upon the income or profits therefrom (in each case before the same becomes delinquent and before penalties accrue thereon) unless the same is being contested in good faith and by appropriate proceedings and adequate reserves (as determined in accordance with GAAP, consistently applied) have been established on its books with respect thereto. (e) The Company shall pay and discharge, when due and payable, all interest and principal amounts payable under the Notes and any other indebtedness of the Company (in each case before the same becomes delinquent and before penalties accrue thereon), subject to the terms and conditions of the Notes and such other indebtedness, unless the same is being contested in good faith and by appropriate proceedings and adequate reserves (as determined in accordance with GAAP, consistently applied) have been established on its books with respect theretoapplicable sign leases.

Certain Additional Covenants. At any time during which The Manager and the Purchaser owns any outstanding Notes or the WarrantFund hereby jointly and severally covenant and agree as follows: (ai) Prior unless otherwise directed or authorized by the Unitholders, to entering into use their best efforts to: (A) monitor all aspects of the Fund's affairs relevant to its continuing qualification as a unit trust and a mutual fund trust for purposes of the Income Tax Act (Canada), and will promptly notify First Associates Investments Inc. upon its becoming aware of any Claim Proceeds Purchase circumstance that may cause the Fund to fail to continue to so qualify; (B) monitor the level of ownership of Units held by persons who are not resident in Canada and notify holders of Units in the manner contemplated by the Trust Agreement with and the Agents as provided herein upon its becoming aware that: (1) more than 40% of the issued and outstanding Units are held by or for the benefit of persons who are not resident in Canada or circumstances exist that may reasonably be anticipated to result in such holding; or (2) a governmental body has proposed to change the Income Tax Act (Canada) or any Person whose primary place of residence or business is located other applicable legislation in a state in manner which there are no Persons with which reasonably could be expected to have a material adverse effect on the Company had previously entered into a Claim Proceeds Purchase Agreementtax consequences to holders of Units, including without limiting the Company shall foregoing, any change or proposed change whereby the Units may cease to be eligible investments not constituting "foreign property" for any of the various deferred income plans provided for by the Income Tax Act (iCanada) consult with legal counsel (which may or may not be licensed whereby amounts allocated to practice in the Applicable State) Unitholders with respect to the validity Fund's income cease to be deductible by it; (C) the Fund will at all times conduct its affairs so as to continue to enable the Fund to qualify as a mutual fund trust and enforceability of Claim Proceeds Purchase Agreements a unit trust under the Applicable Law Income Tax Act (Canada) and, in particular, the Fund will not carry on any business and will restrict its activities such that its only undertaking will be the investing of its funds in property in which a unit trust and a mutual fund trust are permitted by the Applicable State and Income Tax Act (Canada) to invest; and (ii) on to duly, punctually and faithfully do and perform all the basis of such legal consultations, among other factors, attempt in good faith to make a considered business judgment with respect to the advisability of entering into such Claim Proceeds Purchase Agreement. (b) The Company shall cause obligations to be done performed by them under all things necessary Material Agreements to maintain, preserve and renew its corporate existence which they are a party and all material licenses, authorizations and permits necessary to the conduct of its business. (c) The Company shall apply for and continue in force adequate insurance covering risks of such types and in such amounts as are customary for corporations of similar size engaged in similar lines of business. (d) The Company shall pay and discharge, when due and payable, all taxes, assessments and governmental charges imposed upon its properties or upon the income or profits therefrom (in each case before the same becomes delinquent and before penalties accrue thereon) unless the same is being contested in good faith and by appropriate proceedings and adequate reserves (as determined in accordance with GAAP, consistently applied) have been established on its books with respect thereto. (e) The Company shall pay and discharge, when due and payable, all interest and principal amounts payable under the Notes and any other indebtedness of the Company (in each case before the same becomes delinquent and before penalties accrue thereon), subject to the terms and conditions of the Notes and such other indebtednessthings which they represent in the Prospectus will be done by either of them (including, unless the same is being contested in good faith without limitation, make all such elections, filings and by appropriate proceedings and adequate reserves (as determined in accordance with GAAP, consistently applied) have been established on its books with respect theretodistributions).