ANY MEMBER THEREOF) TO MAKE ANY PORTION OF THE TERM LOAN B
HEREUNDER DURING THE TERM LOAN B COMMITMENT PERIOD SHALL BE SUBJECT TO THE
FOLLOWING ADDITIONAL CONDITIONS PRECEDENT:
16
(I)
THE PROCEEDS SHALL BE USED FOR THE ACQUISITION (WHETHER BY MERGER
OR OTHERWISE) BY ANY BORROWER OR ANY SUBSIDIARY OF THE BORROWER OF EIGHTY
PERCENT (80%) OF THE OUTSTANDING CAPITAL STOCK, MEMBERSHIP INTEREST,
PARTNERSHIP INTEREST OR OTHER SIMILAR OWNERSHIP INTEREST OF A PERSON WHICH IS
ENGAGED IN A LINE OF BUSINESS SIMILAR TO THE BUSINESS OF SUCH BORROWER OR SUCH
SUBSIDIARY OF THE BORROWER, OR THE PURCHASE OF ALL OR SUBSTANTIALLY ALL OF THE
ASSETS OWNED BY SUCH PERSON;
(II)
AGENT SHALL HAVE RECEIVED FIFTEEN (15) DAYS PRIOR WRITTEN NOTICE
OF SUCH PROPOSED ACQUISITION FROM THE ACQUIRING PERSON;
(III)
SUCH ACQUISITION HAS BEEN (A) APPROVED BY THE BOARD OF DIRECTORS
OR OTHER APPROPRIATE GOVERNING BODY OF THE PERSON THAT IS THE SUBJECT OF THE
ACQUISITION OR (B) AGREED TO BY THE REQUISITE SHAREHOLDERS, MEMBERS, PARTNERS OR
OWNERS OF THE PERSON THAT IS THE SUBJECT OF THE ACQUISITION, AS REQUIRED UNDER
APPLICABLE LAW OR BY THE GOVERNING DOCUMENTS OF SUCH PERSON;
(IV)
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING OR WOULD RESULT AFTER GIVING EFFECT TO SUCH ACQUISITION;
(V)
SUCH ACQUISITION IS UNDERTAKEN IN ACCORDANCE WITH ALL APPLICABLE
REQUIREMENTS OF LAW;
(VI)
IF THE CONSIDERATION TO BE PAID IN CONNECTION WITH SUCH
ACQUISITION INCLUDES AN "EARN OUT", THE APPLICABLE PURCHASE AGREEMENT RELATED TO
SUCH ACQUISITION INCLUDES A MAXIMUM DOLLAR AMOUNT THAT MAY BE PAYABLE PURSUANT
TO THE "EARN OUT" PROVISIONS;
(VII)
AGENT SHALL HAVE RECEIVED A PRO FORMA BALANCE SHEET AND INCOME
STATEMENTS OF THE ACQUIRING PERSON AND ITS SUBSIDIARIES (AFTER GIVING EFFECT TO
THE PROPOSED ACQUISITION) AS OF THE THEN MOST RECENT FISCAL QUARTER ENDED FOR
WHICH A FINANCIAL STATEMENT HAS BEEN DELIVERED IN ACCORDANCE WITH SECTION 5.3,
TOGETHER WITH A CERTIFICATE OF THE ACQUIRING PERSON, IN FORM AND SUBSTANCE
SATISFACTORY TO AGENT, DEMONSTRATING THAT UPON THE CONSUMMATION OF SUCH
ACQUISITION, THE BORROWERS WILL BE IN COMPLIANCE WITH THE FINANCIAL COVENANTS
CONTAINED IN SECTION 6.16, SUCH EVIDENCE OF COMPLIANCE TO BE IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO AGENT;
(VIII)
AGENT SHALL HAVE RECEIVED FINANCIAL STATEMENTS WHICH INCLUDE
BALANCE SHEETS, INCOME STATEMENTS AND STATEMENTS OF CASH FLOWS OF THE PERSON
BEING ACQUIRED, (A) IN THE SAME FORM AND SUBSTANCE AS THOSE REQUIRED TO BE
DELIVERED BY THE BORROWERS UNDER SECTION 5.3, TO THE EXTENT SUCH ARE AVAILABLE,
OR (B) IF UNAVAILABLE, IN THE FORM RELIED UPON BY THE ACQUIRING PERSON IN
CONNECTION WITH SUCH TRANSACTION, IN EACH CASE FOR THE PREVIOUS THREE (3) FISCAL
YEARS, OR IF LESS THAN THREE (3) YEARS ARE EXISTING, FOR SUCH SHORTER PERIOD OF
TIME AS DOES EXIST;
(IX)
AGENT SHALL HAVE RECEIVED LIEN SEARCHES OR OTHER EVIDENCE
SATISFACTORY TO AGENT THAT THE SHARES OR OTHER INTEREST IN THE PERSON, OR THE
ASSETS OF THE PERSON, WHICH IS THE SUBJECT OF THE PROPOSED ACQUISITION ARE (OR
WILL BE