DIVIDENDS RECEIVES AT LEAST ITS
PROPORTIONATE SHARE THEREOF, (III) THE BORROWER MAY DECLARE OR MAKE ANY DIVIDEND
OF THE CAPITAL STOCK OF TOPCO TO THE PARENT, (IV) THE BORROWER MAY DECLARE AND
MAKE DIVIDENDS OR DISTRIBUTIONS TO THE PARENT TO ENABLE THE PARENT TO, AND THE
PARENT MAY (A) PAY ANY INCOME, FRANCHISE OR LIKE TAXES, (B) PAY ITS OPERATING
EXPENSES (INCLUDING, WITHOUT LIMITATION, LEGAL, ACCOUNTING, REPORTING, LISTING
AND SIMILAR EXPENSES) IN AN AGGREGATE AMOUNT NOT EXCEEDING $2,000,000 IN ANY
FISCAL YEAR AND (C) SO LONG AS NO DEFAULT OR UNMATURED DEFAULT SHALL BE
CONTINUING OR RESULT THEREFROM, REPURCHASE ITS COMMON STOCK AND WARRANTS AND/OR
REDEEM OR REPURCHASE VESTED MANAGEMENT OPTIONS, IN EACH CASE, FROM DIRECTORS,
OFFICERS AND EMPLOYEES OF THE PARENT AND ITS SUBSIDIARIES, AND (V) SO LONG AS NO
DEFAULT OR UNMATURED DEFAULT SHALL BE CONTINUING OR RESULT THEREFROM, THE
BORROWER MAY MAKE DISTRIBUTIONS TO THE PARENT AND THE PARENT MAY REDEEM,
REPURCHASE, ACQUIRE OR RETIRE AN AMOUNT OF ITS CAPITAL STOCK OR WARRANTS OR
OPTIONS THEREFOR, OR DECLARE AND PAY ANY DIVIDEND OR MAKE ANY DISTRIBUTION ON
ITS CAPITAL STOCK, IN THE AGGREGATE, CALCULATED AS OF THE DATE SUCH DISTRIBUTION
IS MADE BY THE BORROWER, UP TO THE SUM OF (1) THE GREATER OF (A) $250,000,000
AND (B) AN AMOUNT EQUAL TO (X) $250,000,000 PLUS (Y) 25% OF CONSOLIDATED NET
INCOME (OR MINUS 25% OF ANY LOSS) IN EACH FISCAL QUARTER BEGINNING WITH THE
FISCAL QUARTER ENDING JUNE 30, 2005, PLUS (2) THE NET CASH PROCEEDS RECEIVED BY
THE PARENT OR THE BORROWER FROM THE EXERCISE OF STOCK OPTIONS ISSUED TO THE
DIRECTORS, OFFICERS AND EMPLOYEES OF THE PARENT, THE BORROWER OR THE BORROWER'S
SUBSIDIARIES; ALL SUCH PERMITTED AMOUNTS ACTUALLY PAID UNDER THIS CLAUSE
(V) DURING ANY PERIOD BEING THE "PERMITTED DISTRIBUTION AMOUNT" FOR SUCH PERIOD.
53
6.11.
MERGER.
THE PARENT AND THE BORROWER WILL NOT, NOR WILL THEY PERMIT
ANY SUBSIDIARY TO, MERGE OR CONSOLIDATE WITH OR INTO ANY OTHER PERSON, EXCEPT
THAT:
6.11.1
A GUARANTOR MAY MERGE INTO (I) THE BORROWER, PROVIDED THE BORROWER SHALL
BE THE CONTINUING OR SURVIVING CORPORATION, OR (II) ANOTHER GUARANTOR OR ANY
OTHER PERSON THAT BECOMES A GUARANTOR PROMPTLY UPON THE COMPLETION OF THE
APPLICABLE MERGER OR CONSOLIDATION.
6.11.2
A SUBSIDIARY THAT IS NOT A GUARANTOR AND NOT REQUIRED TO BE A GUARANTOR
MAY MERGE OR CONSOLIDATE WITH OR INTO ANY OTHER PERSON; PROVIDED, HOWEVER, THAT
IF THE EQUITY INTERESTS OF SUCH SUBSIDIARY HAVE BEEN PLEDGED TO THE AGENT AS
COLLATERAL, THEN SUCH MERGER OR CONSOLIDATION SHALL NOT BE PERMITTED UNLESS SUCH
SUBSIDIARY IS THE SURVIVING ENTITY OF SUCH MERGER OR CONSOLIDATION OR THE EQUITY
INTEREST OF THE SURVIVING ENTITY HAVE BEEN PLEDGED TO THE AGENT AS COLLATERAL OR
SUCH MERGER OR CONSOLIDATION IS APPROVED IN WRITING BY THE AGENT PRIOR TO THE
CONSUMMATION THEREOF.
6.11.3
THE BORROWER OR ANY SUBSIDIARY OF THE BORROWER MAY CONSUMMATE ANY MERGER
OR CONSOLIDATION IN CONNECTION WITH ANY PERMITTED ACQUISITION; PROVIDED THAT IN
ANY SUCH MERGER OR CONSOLIDATION TO WHICH THE BORROWER IS