of any shares of class of any Capital Stock of such Borrower or
Guarantor now or hereafter outstanding, or set aside or otherwise deposit or
invest any sums for such purpose, or redeem, retire, defease, purchase or
otherwise acquire any shares of any class of Capital Stock (or set aside or
otherwise deposit or invest any sums for such purpose) for any consideration or
apply or set apart any sum, or make any other distribution (by reduction of
capital or otherwise) in respect of any such shares or agree to do any of the
foregoing, except that:
(A)
ANY BORROWER OR GUARANTOR MAY DECLARE AND
PAY SUCH DIVIDENDS OR REDEEM, RETIRE, DEFEASE, PURCHASE OR OTHERWISE ACQUIRE ANY
SHARES OF ANY CLASS OF CAPITAL STOCK FOR CONSIDERATION IN THE FORM OF SHARES OF
COMMON STOCK (SO LONG AS AFTER GIVING EFFECT THERETO NO CHANGE OF CONTROL OR
OTHER DEFAULT OR EVENT OF DEFAULT SHALL EXIST OR HAVE OCCURRED AND BE
CONTINUING);
90
(B)
BORROWERS AND GUARANTORS MAY PAY DIVIDENDS
TO THE EXTENT PERMITTED IN SECTION 9.12 BELOW;
(C)
ANY SUBSIDIARY OF A BORROWER OR GUARANTOR
MAY PAY DIVIDENDS TO A BORROWER;
(D)
PARENT MAY REPURCHASE CAPITAL STOCK FOR THE
PURPOSE OF FUNDING REQUIRED DISTRIBUTION OBLIGATIONS OF PARENT TO EMPLOYEES
PURSUANT TO ANY EMPLOYEE STOCK OWNERSHIP PLAN OF PARENT UPON THE TERMINATION,
RETIREMENT, DEATH OF ANY SUCH EMPLOYEE OR DIVERSIFICATION DISTRIBUTION PURSUANT
TO AND IN ACCORDANCE WITH THE ESOP AS IN EFFECT ON THE DATE OF THIS AGREEMENT
AND SECTION 410(28) OF THE CODE, IN ACCORDANCE WITH THE PROVISIONS OF SUCH PLAN;
PROVIDED, THAT, AS TO ANY SUCH REPURCHASE, EACH OF THE FOLLOWING CONDITIONS IS
SATISFIED: (I) SUCH REPURCHASE SHALL BE PAID WITH FUNDS LEGALLY AVAILABLE
THEREFOR, (II) SUCH REPURCHASE SHALL NOT VIOLATE ANY LAW OR REGULATION OR THE
TERMS OF ANY INDENTURE, AGREEMENT OR UNDERTAKING TO WHICH ANY BORROWER OR
GUARANTOR IS A PARTY OR BY WHICH ANY BORROWER OR GUARANTOR OR ITS OR THEIR
PROPERTY ARE BOUND, (III) EXCESS AVAILABILITY SHALL BE NOT LESS THAN $12,500,000
AS OF THE DATE OF THE PAYMENT AND AFTER GIVING EFFECT TO SUCH PAYMENT, AND
(IV) PARENT SHALL DELIVER TO LENDER A CERTIFICATE FROM AN AUTHORIZED OFFICER OF
PARENT CERTIFYING THAT AS OF THE DATE OF THE PAYMENT FOR SUCH REPURCHASE AND
AFTER GIVING EFFECT THERETO, BORROWERS AND GUARANTORS ARE AND WILL BE IN
COMPLIANCE WITH ALL REPRESENTATIONS, WARRANTIES AND COVENANTS AS SET FORTH IN
THIS AGREEMENT;
(E)
FARMER MAY PAY DIVIDENDS AND PAY OTHER
DISTRIBUTIONS IN RESPECT OF CAPITAL STOCK OF FARMER, PROVIDED, THAT,
(I) ADMINISTRATIVE BORROWER SHALL HAVE PROVIDED TO LENDER NOT LESS THAN TEN
(10) BUSINESS DAYS' PRIOR WRITTEN NOTICE OF THE INTENTION OF FARMER TO PAY SUCH
DIVIDENDS OR OTHER DISTRIBUTIONS (SPECIFYING THE AMOUNT TO BE PAID BY FARMER),
(II) EXCESS AVAILABILITY SHALL HAVE BEEN NOT LESS THAN $12,500,000 FOR THE TWO
(2) CONSECUTIVE MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF ANY PAYMENT IN
RESPECT OF SUCH DIVIDENDS OR OTHER DISTRIBUTIONS, AND EXCESS AVAILABILITY SHALL
BE NOT LESS