TO THE ADMINISTRATIVE AGENT ON
OR BEFORE THE CLOSING DATE OF SUCH ACQUISITION, EVIDENCE OF APPROVAL OF THE
ACQUISITION BY THE ACQUIREE'S BOARD OF DIRECTORS OR EQUIVALENT GOVERNING BODY OR
A COPY OF THE OPINION OF COUNSEL DELIVERED BY LEGAL COUNSEL TO THE ACQUIREE IN
CONNECTION WITH THE ACQUISITION WHICH EVIDENCES SUCH APPROVAL OR OPINES THAT
SUCH APPROVAL IS NOT REQUIRED;
(B)
(I) THE PERSON OR BUSINESS TO BE ACQUIRED SHALL BE IN A
SUBSTANTIALLY SIMILAR OR RELATED LINE OF BUSINESS AS THE BORROWER AND ITS
SUBSIDIARIES OR (II) THE ASSETS TO BE ACQUIRED SHALL BE USED BY THE BORROWER OR
ITS SUBSIDIARIES IN A BUSINESS WHICH IS SUBSTANTIALLY SIMILAR OR RELATED TO THE
LINE OF BUSINESS OF THE BORROWER AND ITS SUBSIDIARIES;
(C)
IF SUCH ACQUISITION INVOLVES THE BORROWER OR ANY SUBSIDIARY
GUARANTOR, THE BORROWER OR SUCH SUBSIDIARY GUARANTOR SHALL BE THE SURVIVING
PERSON AND NO CHANGE OF CONTROL SHALL HAVE BEEN EFFECTED THEREBY;
(D)
IF SUCH TRANSACTION INVOLVES THE ACQUISITION OF A NEW SUBSIDIARY,
THE BORROWER SHALL HAVE DELIVERED TO THE ADMINISTRATIVE AGENT BY THE TIME
REQUIRED PURSUANT TO SECTION 8.10 SUCH DOCUMENTS AS ARE REASONABLY REQUESTED BY
THE ADMINISTRATIVE AGENT OR THE REQUIRED LENDERS (THROUGH THE ADMINISTRATIVE
AGENT) PURSUANT TO SECTION 8.10;
15
(E)
PRIOR TO THE PROPOSED CLOSING DATE OF SUCH ACQUISITION, THE
BORROWER SHALL HAVE DELIVERED TO THE ADMINISTRATIVE AGENT AN OFFICER'S
COMPLIANCE CERTIFICATE FOR THE MOST RECENT FISCAL QUARTER END PRECEDING SUCH
ACQUISITION DEMONSTRATING, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY
THERETO, PRO FORMA COMPLIANCE (AS OF THE DATE OF THE ACQUISITION AND AFTER
GIVING EFFECT THERETO AND ANY EXTENSIONS OF CREDIT MADE OR TO BE MADE IN
CONNECTION THEREWITH) WITH EACH COVENANT CONTAINED IN ARTICLE IX;
(F)
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING BOTH BEFORE AND AFTER GIVING EFFECT TO SUCH ACQUISITION;
(G)
BOTH BEFORE AND AFTER GIVING EFFECT TO THE ACQUISITION AND ANY
EXTENSIONS OF CREDIT MADE IN CONNECTION WITH SUCH ACQUISITION, THE LIQUIDITY
AMOUNT SHALL BE GREATER THAN OR EQUAL TO $15,000,000; AND
(H)
AS OF THE CLOSING DATE OF THE ACQUISITION, THE PERSON OR BUSINESS
TO BE ACQUIRED SHALL NOT BE SUBJECT OR PARTY TO ANY MATERIAL PENDING OR
THREATENED LITIGATION.
"Permitted Liens" means the Liens permitted pursuant to Section 10.2.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, governmental authority
or other entity.
"P&H" means P&H Solutions Inc., a Delaware corporation.
"P&H Acquisition" means the acquisition by the Borrower of all of the issued and
outstanding Capital Stock of P&H.
"P&H Purchase Agreement" means that certain Agreement and Plan of Merger
(together with the exhibits and the schedules thereto) dated as of August 28,
2006 between the shareholders of P&H, as sellers and the Borrower, as buyer.
"Prime Rate" means, at any time, the rate of interest per annum publicly
announced from time to time by Wachovia as its prime rate.
Each change in the
Prime Rate shall be effective as of the opening of business