OF THE TWO
MERGING ENTITIES, (2) A GUARANTOR IS THE SURVIVING ENTITY IN ANY SUCH
TRANSACTION WHERE GUARANTOR IS ONE OF THE TWO MERGING ENTITIES AND BORROWER IS
NOT, AND (3) IF (1) AND (2) ARE NOT APPLICABLE, THEN A SUBSIDIARY IS THE
SURVIVING ENTITY RESULTING FROM ANY SUCH TRANSACTION, AND (Z) NO CHANGE IN
CONTROL OR OTHER BREACH OF ANY OTHER COVENANTS SET FORTH IN THIS AGREEMENT WOULD
RESULT THEREFROM (INCLUDING, WITHOUT LIMITATION, NO BREACH OF THE FINANCIAL
COVENANTS SET FORTH HEREIN DETERMINED ON A PRO FORMA BASIS ASSUMING THE
CONSUMMATION OF SUCH TRANSACTION).
7.4
INDEBTEDNESS.
CREATE, INCUR, ASSUME, OR BE
LIABLE FOR ANY INDEBTEDNESS, OR PERMIT ANY SUBSIDIARY TO DO SO, OTHER THAN
PERMITTED INDEBTEDNESS.
MAKE ANY PAYMENTS ON ANY PERMITTED NOTES, EXCEPT THAT
BORROWER MAY MAKE REGULARLY SCHEDULES PAYMENTS OF PRINCIPAL AND INTEREST ON THE
PERMITTED NOTES, AND MAY REPAY OR REPURCHASE THE 2009 UNSECURED SENIOR NOTES,
IF, IN EACH OF THE FOREGOING INSTANCES, (I) NO EVENT OF DEFAULT HAS OCCURRED AND
IS CONTINUING AT THE TIME OF SUCH PAYMENT OR WOULD RESULT FROM, OR AFTER GIVING
EFFECT TO SUCH PAYMENT, AND (II) WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, AFTER GIVING EFFECT TO SUCH PAYMENT, BORROWER WILL BE IN COMPLIANCE
WITH THE FINANCIAL COVENANTS SET FORTH IN SECTION 6.9 OF THIS AGREEMENT.
7.5
ENCUMBRANCE.
CREATE, INCUR, ALLOW, OR SUFFER
ANY LIEN ON ANY OF ITS PROPERTY, OR ASSIGN OR CONVEY ANY RIGHT TO RECEIVE
INCOME, INCLUDING THE SALE OF ANY ACCOUNTS, OR PERMIT ANY OF ITS SUBSIDIARIES TO
DO SO, EXCEPT FOR PERMITTED LIENS AND FURTHER WITH RESPECT TO FOREIGN
SUBSIDIARIES OF BORROWER, EXCEPT FOR INVOLUNTARY LIENS ARISING PURSUANT TO
STATUES OR LAWS UNDER THE COUNTRY OF ORGANIZATION THEREOF AND SPECIFICALLY SHALL
NOT INCLUDE LIENS FOR BORROWED MONEY OR LIENS THAT ANY SUCH ENTITY HAS
AFFIRMATIVELY AGREED TO IN A CONTRACT OR OTHER AFFIRMATIVE WRITTEN AGREEMENT,
DOCUMENT OR INSTRUMENT OF ANY KIND WHATSOEVER, PERMIT ANY COLLATERAL NOT TO BE
SUBJECT TO THE FIRST PRIORITY SECURITY INTEREST GRANTED HEREIN, OR ENTER INTO
ANY AGREEMENT, DOCUMENT, INSTRUMENT OR OTHER ARRANGEMENT (EXCEPT WITH OR IN
FAVOR OF BANK) WITH ANY PERSON WHICH DIRECTLY OR INDIRECTLY PROHIBITS OR HAS THE
EFFECT OF PROHIBITING BORROWER OR ANY SUBSIDIARY FROM ASSIGNING, MORTGAGING,
PLEDGING, GRANTING A SECURITY INTEREST IN OR UPON, OR ENCUMBERING ANY OF
BORROWER'S OR ANY SUBSIDIARY'S INTELLECTUAL PROPERTY, EXCEPT AS IS OTHERWISE
PERMITTED IN SECTION 7.1 HEREOF AND THE DEFINITION OF "PERMITTED LIEN" HEREIN.
7.6
MAINTENANCE OF COLLATERAL ACCOUNTS.
MAINTAIN
ANY COLLATERAL ACCOUNT EXCEPT PURSUANT TO THE TERMS OF SECTION 6.8(B) HEREOF.
7.7
DISTRIBUTIONS; INVESTMENTS.
(A) PAY ANY
DIVIDENDS OR MAKE ANY DISTRIBUTION OR PAYMENT OR REDEEM, RETIRE OR PURCHASE ANY
CAPITAL STOCK PROVIDED THAT (I) BORROWER MAY PAY DIVIDENDS SOLELY IN COMMON
STOCK; AND (II) BORROWER MAY REPURCHASE THE STOCK OF FORMER EMPLOYEES OR
CONSULTANTS PURSUANT TO RESTRICTED STOCK VESTING PLANS OR AS PART OF THE PAYMENT
BY SUCH EMPLOYEES OR CONSULTANTS FOR STOCK OPTIONS EXERCISED BY THEM; OR
(B) DIRECTLY OR INDIRECTLY MAKE ANY INVESTMENT OTHER THAN PERMITTED