of the
assets constituting a business unit of, any other Person so long as, with
respect to any such acquisition, the following conditions are satisfied:
(A)
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING OR
WOULD RESULT FROM SUCH ACQUISITION;
(B)
THE BORROWER SHALL BE IN COMPLIANCE WITH THE FINANCIAL COVENANTS SET FORTH
IN SECTION 6.1, AFTER GIVING PRO FORMA EFFECT TO SUCH ACQUISITION AS IF IT HAD
OCCURRED ON THE FIRST DAY OF THE RESPECTIVE PERIODS MEASURED BY SUCH COVENANTS;
(C)
SUCH ACQUISITION SHALL BE CONSISTENT WITH THE BORROWER'S STATED MANAGEMENT
STRATEGY AS IN EFFECT ON THE CLOSING DATE, AND THE TARGET OF SUCH ACQUISITION
SHALL BE IN THE SAME OR A SIMILAR LINE OF BUSINESS AS THE BORROWER AND ITS
SUBSIDIARIES;
(D)
UNLESS SUCH ACQUISITION IS CONSUMMATED SOLELY WITH THE PROCEEDS OF CAPITAL
STOCK OF THE BORROWER OR IN EXCHANGE FOR SUCH CAPITAL STOCK, THE AGGREGATE
CONSIDERATION FOR SUCH ACQUISITION SHALL NOT EXCEED $50,000,000; PROVIDED, THAT
THE FOREGOING RESTRICTION IN THIS PARAGRAPH (D) SHALL NOT BE APPLICABLE TO ANY
ACQUISITION IF THE CONSOLIDATED LEVERAGE RATIO WOULD BE LESS THAN OR EQUAL TO
5.50 TO 1.0 AFTER GIVING PRO FORMA EFFECT TO SUCH ACQUISITION AS IF IT HAD
OCCURRED ON THE FIRST DAY OF THE PERIOD MEASURED BY THE CONSOLIDATED LEVERAGE
RATIO;
(E)
THE TARGET OF SUCH ACQUISITION EITHER (I) SHALL HAVE HAD POSITIVE
CONSOLIDATED NET INCOME BEFORE INTEREST, TAXES, DEPRECIATION AND AMORTIZATION,
DETERMINED IN ACCORDANCE WITH GAAP ("EBITDA") FOR THE PERIOD OF FOUR CONSECUTIVE
FISCAL QUARTERS OF SUCH TARGET MOST RECENTLY ENDED PRIOR TO THE DATE OF SUCH
ACQUISITION, OR (II) SHALL HAVE HAD POSITIVE PRO FORMA EBITDA FOR SUCH PERIOD
(SUCH PRO FORMA EBITDA TO BE DETERMINED IN ACCORDANCE WITH THE BORROWER'S
CUSTOMARY PRACTICES CONSISTENT WITH THE METHODOLOGY USED FOR ACQUISITIONS
CONSUMMATED IN THE FISCAL YEAR PRIOR TO THE CLOSING DATE);
(F)
THE BORROWER SHALL HAVE PERFORMED REASONABLE AND CUSTOMARY DUE DILIGENCE
WITH RESPECT TO SUCH ACQUISITION AND THE TARGET THEREOF, INCLUDING WITH RESPECT
TO ENVIRONMENTAL MATTERS;
(G)
THE BORROWER AND/OR THE APPLICABLE SUBSIDIARY SHALL HAVE OBTAINED ALL
MATERIAL THIRD PARTY CONSENTS AND APPROVALS REQUIRED IN CONNECTION WITH SUCH
ACQUISITION;
(H)
ENVIRONMENTAL AUDITS, IF ANY, PRO FORMA FINANCIAL STATEMENTS, APPRAISALS,
IF ANY, ACCOUNTING REVIEWS AND MATERIAL BUSINESS DUE DILIGENCE REPORTS
19
CONDUCTED BY THE BORROWER WITH RESPECT TO THE BUSINESS TO BE ACQUIRED SHALL HAVE
BEEN DELIVERED TO ADMINISTRATIVE AGENT NOT LESS THAN TEN BUSINESS DAYS PRIOR TO
CONSUMMATION OF SUCH ACQUISITION;
(I)
THE BORROWER SHALL HAVE REASONABLY DETERMINED THAT IT HAS ADEQUATE
LIQUIDITY AVAILABLE FOR WORKING CAPITAL; AND
(J)
SUBSTANTIALLY ALL OF THE ASSETS SO ACQUIRED ARE LOCATED IN THE UNITED
STATES OR CANADA OR, IF SUCH ACQUISITION IS STRUCTURED AS A PURCHASE OF STOCK,
THE PERSON SO ACQUIRED IS ORGANIZED UNDER THE LAWS OF A STATE OF THE UNITED
STATES, AND SUBSTANTIALLY ALL OF THE ASSETS OWNED BY SUCH PERSON ARE LOCATED IN
THE UNITED STATES OR CANADA; PROVIDED, THAT (I) THE BORROWER MAY ACQUIRE THE
STOCK OF A PERSON