ANY DIVIDENDS (OTHER THAN
DIVIDENDS PAYABLE SOLELY IN SHARES OF BORROWER'S COMMON STOCK OR ADDITIONAL
BORROWER'S PREFERRED STOCK MEETING THE REQUIREMENTS OF THIS SECTION 7.06(E)),
(II) MATURE OR BE MANDATORILY REDEEMABLE OR SUBJECT TO MANDATORY REPURCHASE OR
REDEMPTION OR REPURCHASE, IN EACH CASE IN WHOLE OR IN PART AND WHETHER UPON THE
OCCURRENCE OF ANY EVENT, PURSUANT TO A SINKING FUND OBLIGATION ON A FIXED DATE
OR OTHERWISE (INCLUDING AS THE RESULT OF A FAILURE TO MAINTAIN OR ACHIEVE ANY
FINANCIAL PERFORMANCE STANDARDS) OR (C) BE CONVERTIBLE OR EXCHANGEABLE,
AUTOMATICALLY OR AT THE OPTION OF ANY HOLDER THEREOF, INTO ANY INDEBTEDNESS OR
OTHER ASSETS, OTHER THAN BORROWER'S COMMON STOCK OR ADDITIONAL BORROWER'S
PREFERRED STOCK MEETING THE REQUIREMENTS OF THIS SECTION 7.06(E)).
SECTION 7.07
CHANGE IN NATURE OF BUSINESS.
ENGAGE IN ANY MATERIAL LINE OF
BUSINESS SUBSTANTIALLY DIFFERENT FROM THOSE LINES OF BUSINESS CONDUCTED BY THE
LOAN PARTIES AND
88
THE PLEDGED SUBSIDIARIES ON THE DATE HEREOF OR ANY BUSINESS SUBSTANTIALLY
RELATED OR INCIDENTAL THERETO.
SECTION 7.08
TRANSACTIONS WITH AFFILIATES.
ENTER INTO ANY TRANSACTION OF
ANY KIND WITH ANY AFFILIATE OF BORROWER, WHETHER OR NOT IN THE ORDINARY COURSE
OF BUSINESS, OTHER THAN ON FAIR AND REASONABLE TERMS SUBSTANTIALLY AS FAVORABLE
TO THE RESPECTIVE LOAN PARTY OR PLEDGED SUBSIDIARY AS WOULD BE OBTAINABLE BY
SUCH LOAN PARTY OR SUCH PLEDGED SUBSIDIARY AT THE TIME IN A COMPARABLE ARM'S
LENGTH TRANSACTION WITH A PERSON OTHER THAN AN AFFILIATE; PROVIDED THAT THE
FOREGOING RESTRICTION SHALL NOT APPLY TO TRANSACTIONS BETWEEN OR AMONG THE LOAN
PARTIES AND PROVIDED, FURTHER, THAT THE FOREGOING RESTRICTION SHALL NOT APPLY TO
THE SALE OF CERTAIN LAND AND ASSETS OF BROTMAN TO JHA WEST 16, LLC PURSUANT TO
THE EXERCISE OF ANY PURCHASE OPTION BY JHA WEST 16, LLC IN ACCORDANCE WITH THE
TERMS OF THE BROTMAN/JHA PURCHASE OPTION AGREEMENT AS IN EFFECT ON THE CLOSING
DATE AND TO INVESTMENTS IN BROTMAN PERMITTED UNDER SECTION 7.03(G), (H), (I) AND
(K).
SECTION 7.09
BURDENSOME AGREEMENTS.
EXCEPT WHERE REQUIRED UNDER
APPLICABLE LAWS, ENTER INTO OR PERMIT TO EXIST ANY CONTRACTUAL OBLIGATION (OTHER
THAN THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY NOTE DOCUMENT) THAT
(A) LIMITS THE ABILITY (I) OF ANY SUCH LOAN PARTY OR PLEDGED SUBSIDIARY TO MAKE
RESTRICTED PAYMENTS TO BORROWER OR ANY GUARANTOR OR TO OTHERWISE TRANSFER
PROPERTY TO OR INVEST IN BORROWER OR ANY GUARANTOR, EXCEPT FOR ANY AGREEMENT IN
EFFECT (A) ON THE DATE HEREOF AND SET FORTH ON SCHEDULE 7.09 OR (B) AT THE TIME
ANY SUCH LOAN PARTY OR PLEDGED SUBSIDIARY BECOMES A SUBSIDIARY OF BORROWER, SO
LONG AS SUCH AGREEMENT WAS NOT ENTERED INTO SOLELY IN CONTEMPLATION OF SUCH
PERSON BECOMING A SUBSIDIARY OF BORROWER, (II) OF ANY SUCH LOAN PARTY OR PLEDGED
SUBSIDIARY TO GUARANTEE THE INDEBTEDNESS OF BORROWER OR (III) OF BORROWER OR ANY
SUCH LOAN PARTY OR PLEDGED SUBSIDIARY TO CREATE, INCUR, ASSUME OR SUFFER TO
EXIST LIENS ON PROPERTY OF SUCH PERSON; PROVIDED, HOWEVER, THAT THIS
CLAUSE (III) SHALL NOT PROHIBIT ANY NEGATIVE PLEDGE INCURRED OR PROVIDED IN