ADMINISTRATIVE BORROWER NOT LESS THAN TEN (10) BUSINESS DAYS' WRITTEN
NOTICE PRIOR TO THE DATE OF THE PAYMENT OF ANY DIVIDENDS OR PURCHASE OF CAPITAL
STOCK (SPECIFYING THE AMOUNT TO BE PAID BY BORROWERS), (II) SUCH DIVIDENDS AND
PURCHASES SHALL BE PAID WITH FUNDS LEGALLY AVAILABLE THEREFOR, (III) SUCH
DIVIDENDS AND PURCHASE SHALL NOT VIOLATE ANY LAW OR REGULATION OR THE TERMS OF
ANY INDENTURE, AGREEMENT OR UNDERTAKING TO WHICH SUCH BORROWER IS A PARTY OR BY
WHICH SUCH BORROWER OR ITS OR THEIR PROPERTY ARE BOUND, (IV) THE EXCESS
AVAILABILITY FOR EACH OF THE THIRTY (30) CONSECUTIVE DAYS IMMEDIATELY PRECEDING
THE DATE OF SUCH DIVIDEND PAYMENT OR PURCHASE SHALL BE GREATER THAN $50,000,000,
(V) AS OF THE DATE OF SUCH DIVIDEND PAYMENT OR PURCHASE AND FOR EACH OF THE
THIRTY (30) CONSECUTIVE DAYS IMMEDIATELY FOLLOWING THE DATE OF SUCH PAYMENT,
EXCESS AVAILABILITY SHALL BE GREATER THAN $50,000,000 (IT BEING AGREED THAT, IF
A PAYMENT IS MADE PURSUANT TO THE TERMS OF THIS CLAUSE (D) AND THE EXCESS
AVAILABILITY SHALL FAIL TO BE GREATER THAN $50,000,000 FOR ANY OF THE THIRTY
(30) CONSECUTIVE DAYS IMMEDIATELY FOLLOWING THE DATE OF SUCH PAYMENT OR
PURCHASE, THEN SUCH FAILURE SHALL, AUTOMATICALLY AND WITHOUT THE NECESSITY OF
ANY FURTHER ACTION, CONSTITUTE AN EVENT OF DEFAULT), (VI) THE AGGREGATE AMOUNT
OF SUCH DIVIDENDS AND PURCHASES SHALL NOT EXCEED $25,000,000 DURING ANY FISCAL
YEAR OR $50,000,000 DURING THE TERM OF THIS AGREEMENT, AND (VII) AS OF THE DATE
OF ANY SUCH PAYMENT OR PURCHASE AND AFTER GIVING EFFECT THERETO, NO DEFAULT OR
EVENT OF DEFAULT SHALL EXIST OR HAVE OCCURRED AND BE CONTINUING.
9.12
TRANSACTIONS WITH AFFILIATES.
EACH BORROWER
SHALL NOT, DIRECTLY OR INDIRECTLY:
(A)
PURCHASE, ACQUIRE OR LEASE ANY PROPERTY FROM, OR SELL,
TRANSFER OR LEASE ANY PROPERTY TO, ANY OFFICER, DIRECTOR OR OTHER AFFILIATE OF
SUCH BORROWER, EXCEPT IN THE ORDINARY COURSE OF AND PURSUANT TO THE REASONABLE
REQUIREMENTS OF SUCH BORROWER'S BUSINESS AND UPON FAIR AND REASONABLE TERMS NO
LESS FAVORABLE TO SUCH BORROWER THAN SUCH BORROWER WOULD OBTAIN IN A COMPARABLE
ARM'S LENGTH TRANSACTION WITH A PERSON THAT IS NOT AN AFFILIATE AND EXCEPT AS TO
(I) LOANS AND ADVANCES TO SUCH BORROWER PERMITTED UNDER SECTIONS 9.10(H),
9.10(I) AND 9.10(J) ABOVE AND (II) LICENSES OF INTELLECTUAL PROPERTY BY SUCH
BORROWER TO ITS SUBSIDIARIES OTHERWISE PERMITTED HEREUNDER; OR
(B)
MAKE ANY PAYMENTS (WHETHER BY DIVIDEND, LOAN OR OTHERWISE)
OF MANAGEMENT, CONSULTING OR OTHER FEES FOR MANAGEMENT OR SIMILAR SERVICES, OR
OF ANY INDEBTEDNESS OWING TO ANY OFFICER, EMPLOYEE, SHAREHOLDER, DIRECTOR OR ANY
OTHER AFFILIATE OF SUCH BORROWER, EXCEPT (I) REASONABLE COMPENSATION AND
REIMBURSEMENT OF EXPENSES TO OFFICERS, EMPLOYEES AND DIRECTORS IN EACH CASE FOR
OR IN CONNECTION WITH SERVICES RENDERED TO SUCH BORROWER IN THE ORDINARY COURSE
OF BUSINESS (INCLUDING EXISTING MANAGEMENT INCENTIVE PLANS) AND OTHER MANAGEMENT
AND DIRECTOR
94
COMPENSATION, RETENTION, BENEFIT, BONUS AND SEVERANCE PLANS ENTERED INTO IN THE
ORDINARY COURSE OF BUSINESS), AND (II) PAYMENTS IN RESPECT OF ANY SUCH
INDEBTEDNESS TO THE EXTENT PERMITTED UNDER SECTION 9.10 HEREOF.