SHALL PAID WITH FUNDS LEGALLY AVAILABLE THEREFOR, (III) SUCH DIVIDENDS,
DISTRIBUTIONS OR REPURCHASES SHALL NOT VIOLATE ANY LAW OR REGULATION OR THE
TERMS OF ANY INDENTURE, AGREEMENT OR UNDERTAKING TO WHICH SUCH BORROWER OR
GUARANTOR IS A PARTY OR BY WHICH SUCH BORROWER OR GUARANTOR OR ITS OR THEIR
PROPERTY ARE BOUND, (IV) AS TO DIVIDENDS, DISTRIBUTIONS OR REPURCHASES IN ANY
FISCAL YEAR OF PARENT, ADJUSTED EXCESS AVAILABILITY SHALL HAVE BEEN NOT LESS
THAN $75,000,000 AS OF THE DATE OF THE MOST RECENT CALCULATION OF THE BORROWING
BASE PRIOR TO THE DATE OF ANY SUCH PAYMENT AND AFTER GIVING EFFECT TO THE
PAYMENT OF SUCH DIVIDENDS OR OTHER DISTRIBUTIONS OR REPURCHASES IN EXCESS OF
SUCH AMOUNT, ON A PRO FORMA BASIS USING THE ADJUSTED EXCESS AVAILABILITY AS OF
THE DATE OF THE MOST RECENT CALCULATION OF THE BORROWING BASE IMMEDIATELY PRIOR
TO ANY SUCH PAYMENT, ADJUSTED EXCESS AVAILABILITY SHALL BE NOT LESS THAN
$75,000,000, AND (V) AS OF THE DATE OF ANY SUCH PAYMENT AND AFTER GIVING EFFECT
THERETO, NO DEFAULT OR EVENT OF DEFAULT SHALL EXIST OR HAVE OCCURRED.
9.12
TRANSACTIONS WITH AFFILIATES.
EACH BORROWER AND GUARANTOR SHALL NOT,
DIRECTLY OR INDIRECTLY, PURCHASE, ACQUIRE OR LEASE ANY PROPERTY FROM, OR SELL,
TRANSFER OR LEASE ANY PROPERTY TO, ANY OFFICER, DIRECTOR OR OTHER AFFILIATES OF
SUCH BORROWER OR GUARANTOR, EXCEPT IN THE ORDINARY COURSE OF AND PURSUANT TO THE
REASONABLE REQUIREMENTS OF SUCH BORROWER'S OR GUARANTOR'S BUSINESS (AS THE CASE
MAY BE) AND UPON FAIR AND REASONABLE TERMS NO LESS FAVORABLE TO SUCH
92
BORROWER OR GUARANTOR THAN SUCH BORROWER OR GUARANTOR WOULD OBTAIN IN A
COMPARABLE ARM'S LENGTH TRANSACTION WITH AN UNAFFILIATED PERSON AND EXCEPT AS
OTHERWISE DISCLOSED TO AND APPROVED BY AGENT.
9.13
COMPLIANCE WITH ERISA.
EACH BORROWER AND GUARANTOR SHALL, AND SHALL CAUSE
EACH OF ITS ERISA AFFILIATES TO: (A) MAINTAIN EACH PLAN IN COMPLIANCE IN ALL
MATERIAL RESPECTS WITH THE APPLICABLE PROVISIONS OF ERISA, THE CODE AND OTHER
FEDERAL AND STATE LAW; (B) CAUSE EACH PLAN WHICH IS QUALIFIED UNDER
SECTION 401(A) OF THE CODE TO MAINTAIN SUCH QUALIFICATION; (C) NOT TERMINATE ANY
PENSION PLAN SO AS TO INCUR ANY MATERIAL LIABILITY TO THE PENSION BENEFIT
GUARANTY CORPORATION; (D) NOT ALLOW OR SUFFER TO EXIST ANY PROHIBITED
TRANSACTION INVOLVING ANY PLAN OR ANY TRUST CREATED THEREUNDER WHICH WOULD
SUBJECT SUCH BORROWER, GUARANTOR OR SUCH ERISA AFFILIATE TO A MATERIAL TAX OR
OTHER LIABILITY ON PROHIBITED TRANSACTIONS IMPOSED UNDER SECTION 4975 OF THE
CODE OR ERISA; (E) MAKE ALL REQUIRED CONTRIBUTIONS TO ANY PLAN WHICH IT IS
OBLIGATED TO PAY UNDER SECTION 302 OF ERISA, SECTION 412 OF THE CODE OR THE
TERMS OF SUCH PLAN; (F) NOT ALLOW OR SUFFER TO EXIST ANY ACCUMULATED FUNDING
DEFICIENCY, WHETHER OR NOT WAIVED, WITH RESPECT TO ANY SUCH PENSION PLAN; (G)
NOT ENGAGE IN A TRANSACTION THAT COULD BE SUBJECT TO SECTION 4069 OR 4212(C) OF
ERISA; OR (H) NOT ALLOW OR SUFFER TO EXIST ANY OCCURRENCE OF A REPORTABLE EVENT
OR ANY OTHER EVENT OR CONDITION WHICH