ASSETS IN EXCESS OF $100,000,000 AND SUBSTANTIALLY ALL OF
THE ASSETS OF WHICH CONSIST OF INVESTMENTS REFERRED TO IN CLAUSES (I) THROUGH
(III), INCLUSIVE, AND CLAUSE (VIII), ABOVE; (X) LOANS FROM A BORROWER TO ANOTHER
BORROWER TO THE EXTENT PERMITTED BY SECTION 5.5(VI) HEREOF; AND (XI) IN ANY
SUBSIDIARY OF A BORROWER WHICH IS NOT WHOLLY-OWNED BY SUCH BORROWER, PROVIDED
THAT, WITH RESPECT TO THIS CLAUSE (XI), (A) THE AGGREGATE AMOUNT OF ALL SUCH
INVESTMENTS BY THE BORROWERS SHALL NOT EXCEED $10,000,000 AT ANY TIME, AND
(B) IMMEDIATELY PRIOR TO AND AFTER GIVING EFFECT TO ANY SUCH INVESTMENT, NO
EVENT OF DEFAULT SHALL EXIST.
5.10
SALE OF NOTES.
NO BORROWER SHALL, OR SHALL CAUSE OR PERMIT ANY OF
ITS SUBSIDIARIES AT ANY TIME TO, SELL, DISCOUNT OR DISPOSE OF ANY NOTE,
INSTRUMENT, ACCOUNT, OR OTHER OBLIGATION OWING TO SUCH BORROWER OR SUCH
SUBSIDIARY IN AN AMOUNT THAT IS MATERIAL TO THE BORROWERS AND THEIR RESPECTIVE
SUBSIDIARIES TAKEN AS A WHOLE, EXCEPT TO EITHER OF THE BANKS.
5.11
RESTRICTED PAYMENTS.
NO BORROWER SHALL, DIRECTLY OR INDIRECTLY
(THROUGH ANY AFFILIATE OR ANY SUBSIDIARY OR OTHERWISE), DECLARE, PAY OR MAKE ANY
RESTRICTED PAYMENT, UNLESS (I) NO EVENT OR CONDITION WHICH CONSTITUTES AN EVENT
OF DEFAULT, OR WHICH, WITH NOTICE OR THE PASSAGE OF TIME, OR BOTH, WOULD
CONSTITUTE AN EVENT OF DEFAULT, WOULD OCCUR BY REASON OF THE TAKING OF SUCH
ACTION, AND (II) NO BREACH OF THE COVENANTS, AGREEMENT OR OBLIGATIONS CONTAINED
IN SECTIONS 5.24 THROUGH 5.26, INCLUSIVE, OR 5.29 OF THIS AGREEMENT WOULD OCCUR
BY REASON OF THE TAKING OF SUCH ACTION IF SUCH COVENANTS WERE MEASURED AS OF THE
DATE SUCH ACTION IS PROPOSED TO BE TAKEN.
5.12
ERISA COMPLIANCE.
NONE OF THE BORROWERS NOR THEIR RESPECTIVE
AFFILIATES (AS DEFINED SOLELY IN THE SECOND SENTENCE OF SECTION 1.2), NO PENSION
PLAN, PLAN OR TRUST CREATED THEREUNDER, AND NO TRUSTEE, ADMINISTRATOR OR
FIDUCIARY THEREOF SHALL ENGAGE IN ANY PROHIBITED TRANSACTION (PROVIDED THAT THE
FOREGOING SHALL NOT APPLY TO ACTIONS OF AN UNRELATED INSTITUTIONAL TRUSTEE,
ADMINISTRATOR OR FIDUCIARY TO THE EXTENT THE AGENT AND EACH BANK REASONABLY
BELIEVES IT WILL BEAR NO LIABILITY, EITHER DIRECTLY OR INDIRECTLY, THROUGH ANY
52
PENSION PLAN, PLAN OR OTHERWISE, FOR THE ACTIONS OF SUCH INSTITUTION); NONE OF
THE BORROWERS NOR THEIR RESPECTIVE AFFILIATES AND NO PENSION PLAN OR TRUST
CREATED THEREUNDER SHALL INCUR ANY "ACCUMULATED FUNDING DEFICIENCY" (AS DEFINED
IN SECTION 412(A) OF THE CODE AND SECTION 302 OF ERISA) WHETHER OR NOT WAIVED,
OR SHALL FAIL TO SATISFY ANY ADDITIONAL FUNDING REQUIREMENTS SET FORTH IN
SECTION 412 OF THE CODE AND SECTION 302 OF ERISA; NONE OF THE BORROWERS NOR
THEIR AFFILIATES, NO TRUSTEE THEREOF AND NO ADMINISTRATOR OR FIDUCIARY THEREOF
SHALL TERMINATE ANY PENSION PLAN IN A MANNER WHICH COULD RESULT IN THE
IMPOSITION OF A LIEN ON ANY PROPERTY OF ANY BORROWER OR ANY OF ITS AFFILIATES;
AND EACH PLAN AND PENSION PLAN SHALL COMPLY IN ALL MATERIAL RESPECTS WITH ERISA.
5.13
PENSION PLANS.
5.13.1
WITH RESPECT TO ANY PENSION PLANS, THE