AND AS
OF THE DATE OF ANY SUCH REPURCHASE AND AFTER GIVING EFFECT THERETO, EXCESS
AVAILABILITY PLUS QUALIFIED CASH SHALL NOT BE LESS THAN THE SPECIFIED EXCESS
AVAILABILITY AMOUNT, (B) ANY SUCH REPURCHASE BY NY&CO SHALL NOT CONTRAVENE ITS
CERTIFICATE OF INCORPORATION AND BY-LAWS AND SHALL COMPLY WITH ALL APPLICABLE
PROVISIONS OF STATE AND FEDERAL LAW AND (C) AS OF THE DATE OF ANY SUCH
REPURCHASE AND AFTER GIVING EFFECT THERETO, NO EVENT OF DEFAULT SHALL EXIST OR
SHALL HAVE OCCURRED AND BE CONTINUING.
97
9.11
DIVIDENDS AND REDEMPTIONS.
No Borrower or Guarantor shall, 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)
ANY BORROWER MAY PAY DIVIDENDS TO ANY OTHER BORROWER AND ANY
GUARANTOR MAY PAY DIVIDENDS TO ANY BORROWER;
(C)
BORROWERS AND GUARANTORS MAY PAY (DIRECTLY OR INDIRECTLY)
DIVIDENDS TO NY&CO TO THE EXTENT REQUIRED TO PERMIT NY&CO TO REPURCHASE CAPITAL
STOCK CONSISTING OF COMMON OR PREFERRED 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:
(A) 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, (B) SUCH REPURCHASE SHALL BE PAID WITH FUNDS LEGALLY AVAILABLE
THEREFOR, AND (C) SUCH REPURCHASE SHALL NOT VIOLATE ANY LAW OR REGULATION OR THE
TERMS OF ANY INDENTURE, AGREEMENT OR UNDERTAKING TO WHICH LERNER IS A PARTY OR
BY WHICH LERNER OR ITS PROPERTIES ARE BOUND, AND (D) BORROWERS HAVE EXCESS
AVAILABILITY PLUS QUALIFIED CASH OF AT LEAST THE SPECIFIED EXCESS AVAILABILITY
AMOUNT AFTER GIVING EFFECT TO SUCH PAYMENTS;
(D)
BORROWERS AND GUARANTORS MAY PAY DIVIDENDS (DIRECTLY OR
INDIRECTLY) TO NY&CO FOR ANNUAL MANAGEMENT FEES AND COST REIMBURSEMENT PAYABLE
TO BEAR STEARNS MERCHANT MANAGER II, LLC, PURSUANT TO THE TERMS OF THE ADVISORY
SERVICES AGREEMENT DATED AS OF NOVEMBER 27, 2002, AS IN EFFECT ON THE DATE
HEREOF,