THAN $12,500,000 IMMEDIATELY AFTER GIVING EFFECT TO ANY SUCH PAYMENT
OR DISTRIBUTION, (III) LENDER SHALL HAVE RECEIVED, NOT MORE THAN TWENTY (20)
BUSINESS DAYS PRIOR TO SUCH PAYMENT AND NOT LESS THAN FIVE (5) BUSINESS DAYS
PRIOR TO SUCH PAYMENT, CURRENT, UPDATED PROJECTIONS OF THE AMOUNT OF THE
BORROWING BASE AND EXCESS AVAILABILITY FOR THE ONE MONTH PERIOD AFTER THE DATE
OF ANY PAYMENT IN RESPECT OF SUCH DIVIDENDS, OTHER DISTRIBUTIONS, IN A FORM
REASONABLY SATISFACTORY TO LENDER, REPRESENTING BORROWERS' REASONABLE BEST
ESTIMATE OF THE FUTURE BORROWING BASE AND EXCESS AVAILABILITY FOR THE PERIOD SET
FORTH THEREIN AS OF THE DATE NOT MORE THAN TEN (10) DAYS PRIOR TO THE DATE OF
THE PAYMENT IN RESPECT OF SUCH DIVIDEND OR OTHER DISTRIBUTIONS, WHICH
PROJECTIONS SHALL HAVE BEEN PREPARED ON THE BASIS OF THE ASSUMPTIONS SET FORTH
THEREIN WHICH BORROWERS BELIEVE ARE FAIR AND REASONABLE AS OF THE DATE OF
PREPARATION IN LIGHT OF CURRENT AND REASONABLY FORESEEABLE BUSINESS CONDITIONS,
(IV) THE AMOUNT OF THE EXCESS AVAILABILITY AS SET FORTH IN THE PROJECTIONS
DELIVERED PURSUANT TO CLAUSE (III) ABOVE FOR SUCH ONE MONTH PERIOD SHALL BE NOT
LESS THAN $12,500,000, (V) THE AGGREGATE AMOUNT OF ALL SUCH PAYMENTS IN ANY
FISCAL YEAR SHALL NOT EXCEED $7,000,000, (VI) THE AGGREGATE AMOUNT OF ALL SUCH
PAYMENTS IN ANY FISCAL QUARTER SHALL NOT EXCEED $1,750,000 AND (VII) AS OF THE
DATE OF ANY
91
SUCH PAYMENT AND AFTER GIVING EFFECT THERETO, NO DEFAULT OR EVENT OF DEFAULT
EXISTS OR HAS OCCURRED AND IS CONTINUING; AND
(F)
PARENT MAY MAKE DISTRIBUTIONS OR PAY
DIVIDENDS TO THE ESOT IN CONNECTION WITH THE ESOP IN THE AMOUNTS OF REGULARLY
SCHEDULED PAYMENTS TO BE MADE THEREUNDER, IN ACCORDANCE WITH THE TERMS THEREOF
IN EFFECT ON THE DATE HEREOF; PROVIDED, THAT, AS TO ANY SUCH DISTRIBUTION OR
DIVIDEND, ALL PROCEEDS RECEIVED BY THE ESOT ARE USED BY THE ESOT TO REPAY THE
ESOP INDEBTEDNESS.
9.12
Transactions with Affiliates.
Each Borrower and
Guarantor shall not, directly or indirectly:
(A)
PURCHASE, ACQUIRE OR LEASE ANY PROPERTY
FROM, OR SELL, TRANSFER OR LEASE ANY PROPERTY TO, ANY OFFICER, DIRECTOR OR OTHER
AFFILIATE OF SUCH BORROWER OR GUARANTOR, EXCEPT:
(I)
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 BORROWER OR GUARANTOR
THAN SUCH BORROWER OR GUARANTOR WOULD OBTAIN IN A COMPARABLE ARM'S LENGTH
TRANSACTION WITH AN UNAFFILIATED PERSON;
(II)
AS PERMITTED UNDER SECTION 9.11(D) HEREOF; AND
(III)
PURSUANT TO THE PERFORMANCE BY ANY BORROWER OF ITS OBLIGATIONS
UNDER THE TERM S OF ANY STOCKHOLDERS AGREEMENT (INCLUDING ANY RIGHTS AGREEMENT
RELATED THERETO) TO WHICH IT IS A PARTY AS OF THE DATE HEREOF AND ANY SIMILAR
AGREEMENT WHICH SUCH BORROWER MAY ENTER INTO HEREAFTER; PROVIDED, HOWEVER, THAT
THE EXISTENCE OF, OR THE PERFORMANCE BY SUCH BORROWER OF OBLIGATIONS UNDER ANY
FUTURE AMENDMENT TO ANY SUCH EXISTING AGREEMENT OR UNDER ANY SIMILAR AGREEMENT
ENTERED INTO AFTER THE DATE HEREOF