NO LESS FAVORABLE TO SUCH
BORROWER OR GUARANTOR THAN SUCH BORROWER OR GUARANTOR WOULD OBTAIN IN A
COMPARABLE ARM'S LENGTH TRANSACTION WITH AN UNAFFILIATED PERSON; OR
(B)
MAKE ANY PAYMENTS (WHETHER BY DIVIDEND, LOAN OR OTHERWISE) OF
MANAGEMENT, CONSULTING OR OTHER FEES FOR MANAGEMENT OR SIMILAR SERVICES, OR OF
ANY INDEBTEDNESS OWING TO ANY OFFICER, EMPLOYEE, SHAREHOLDER, DIRECTOR OR ANY
OTHER AFFILIATE OF ANY BORROWER OR GUARANTOR, EXCEPT
(I)
REASONABLE CURRENT OR DEFERRED COMPENSATION TO OFFICERS,
EMPLOYEES AND DIRECTORS FOR SERVICES RENDERED TO BORROWERS AND GUARANTORS IN THE
ORDINARY COURSE OF BUSINESS, AND
(II)
AS PERMITTED UNDER SECTION 9.11 HEREOF.
9.13
COMPLIANCE WITH ERISA.
EXCEPT AS COULD NOT REASONABLY BE EXPECTED
TO HAVE A MATERIAL ADVERSE EFFECT, EACH BORROWER AND GUARANTOR SHALL, AND SHALL
WITH RESPECT TO ANY PENSION PLAN 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
99
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 non-exempt prohibited transaction which would be
reasonably likely to subject any Borrower or Guarantor or any ERISA Affiliate to
a material tax or penalty or other liability on prohibited transactions imposed
under Section 4975 of the Code or ERISA; (e) make all required contributions to
any Pension Plan under Section 302 of ERISA, Section 412 of the Code or the
terms of such Pension Plan; (f) not allow or suffer to exist any accumulated
funding deficiency, whether or not waived, with respect to any Pension Plan; or
(g) allow or suffer to exist any occurrence of a reportable event or any other
event or condition which presents a material risk of termination by the Pension
Benefit Guaranty Corporation of any Pension Plan that is a single employer plan,
which termination could result in any material liability to any Borrower or
Guarantor.
9.14
END OF FISCAL YEARS; FISCAL QUARTERS.
NY&CO SHALL, FOR FINANCIAL
REPORTING PURPOSES, CAUSE ITS AND ITS SUBSIDIARIES' (A) FISCAL YEARS TO END ON
THE FISCAL YEAR-END OF EACH YEAR, (B) FISCAL QUARTERS TO END ON FIRST
QUARTER-END, SECOND QUARTER-END, THIRD QUARTER-END, AND FOURTH QUARTER-END OF
EACH YEAR AND (C) FISCAL MONTHS TO END ON THE FISCAL MONTH-END SET FORTH ON
EXHIBIT F HERETO.
9.15
CHANGE IN BUSINESS.
NO BORROWER OR GUARANTOR SHALL, NOR SHALL IT
PERMIT ITS SUBSIDIARIES TO, ENGAGE IN ANY BUSINESS OTHER THAN THE BUSINESS OF
BORROWERS AND GUARANTORS ON THE DATE HEREOF AND ANY BUSINESS REASONABLY RELATED,
ANCILLARY OR COMPLIMENTARY TO THE BUSINESS IN WHICH LERNER WAS ENGAGED AS OF THE
DATE HEREOF.
9.16
LIMITATION OF RESTRICTIONS AFFECTING SUBSIDIARIES.
NO BORROWER OR
GUARANTOR SHALL, DIRECTLY OR INDIRECTLY, CREATE OR OTHERWISE CAUSE OR SUFFER TO
EXIST ANY ENCUMBRANCE OR RESTRICTION WHICH PROHIBITS OR LIMITS THE ABILITY OF
ANY SUBSIDIARY