ANY TWELVE (12) CONSECUTIVE
MONTH PERIOD, (A) THE DAILY AVERAGE OF THE EXCESS AVAILABILITY FOR THE
IMMEDIATELY PRECEDING NINETY (90) CONSECUTIVE DAY PERIOD SHALL HAVE BEEN NOT
LESS THAN FIFTEEN (15%) PERCENT OF THE LOAN LIMIT AND AFTER GIVING EFFECT TO ANY
SUCH PAYMENT IN RESPECT THEREOF, ON A PRO FORMA BASIS USING THE TOTAL BORROWING
BASE AS OF THE DATE OF THE MOST RECENT CALCULATION OF THE TOTAL BORROWING BASE
IMMEDIATELY PRIOR TO ANY SUCH PAYMENT, THE EXCESS AVAILABILITY SHALL BE NOT LESS
THAN FIFTEEN (15%) PERCENT OF THE LOAN LIMIT AND (B) ADMINISTRATIVE AGENT SHALL
HAVE RECEIVED PROJECTIONS REASONABLY SATISFACTORY TO IT FOR THE TWELVE (12)
MONTH PERIOD AFTER THE DATE OF ANY SUCH PAYMENT SHOWING, ON A PRO FORMA BASIS
AFTER GIVING EFFECT TO SUCH PAYMENT, EXCESS AVAILABILITY AT ALL TIMES DURING
SUCH PERIOD OF NOT LESS THAN FIFTEEN (15%) PERCENT OF THE LOAN LIMIT, AND (V)
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED NOT LESS THAN TEN (10) BUSINESS DAYS
PRIOR WRITTEN NOTICE OF THE PROPOSED INVESTMENT AND SUCH INFORMATION WITH
RESPECT THERETO AS ADMINISTRATIVE AGENT MAY REASONABLY REQUEST, INCLUDING THE
PROPOSED DATE AND THE AMOUNT OF SUCH INVESTMENT.
9.11
DIVIDENDS AND REDEMPTIONS
.
Each Borrower and Guarantor shall not, directly or indirectly, declare or pay
any dividends on account 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 OCCUR);
(B)
BORROWERS AND GUARANTORS MAY PAY DIVIDENDS TO THE EXTENT PERMITTED IN
SECTION 9.12 BELOW;
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(C)
ANY SUBSIDIARY OF A BORROWER OR GUARANTOR MAY PAY DIVIDENDS TO A
BORROWER;
(D)
BORROWERS AND GUARANTORS MAY REPURCHASE CAPITAL STOCK CONSISTING OF
COMMON STOCK HELD BY EMPLOYEES PURSUANT TO ANY EMPLOYEE STOCK OWNERSHIP PLAN
THEREOF UPON THE TERMINATION, RETIREMENT OR DEATH OF ANY SUCH EMPLOYEE IN
ACCORDANCE WITH THE PROVISIONS OF SUCH PLAN, PROVIDED, THAT, AS TO ANY SUCH
REPURCHASE, EACH OF THE FOLLOWING CONDITIONS IS SATISFIED: (I) AS OF THE DATE OF
THE PAYMENT FOR SUCH REPURCHASE AND AFTER GIVING EFFECT THERETO, NO DEFAULT OR
EVENT OF DEFAULT SHALL EXIST OR HAVE OCCURRED AND BE CONTINUING, (II) SUCH
REPURCHASE SHALL BE PAID WITH FUNDS LEGALLY AVAILABLE THEREFOR, (III) SUCH
REPURCHASE SHALL NOT