SHALL BE
INCURRED OR OTHERWISE BE REFLECTED ON A CONSOLIDATED BALANCE SHEET OF BORROWER
AND TARGET AFTER GIVING EFFECT TO SUCH PERMITTED ACQUISITION, EXCEPT (A) LOANS
MADE HEREUNDER, (B) INDEBTEDNESS SECURED
43
BY PURCHASE MONEY LIENS AND CAPITAL LEASES ENTERED INTO IN THE ORDINARY COURSE
OF TARGET'S BUSINESS, PROVIDED THAT (1) THE PRINCIPAL AMOUNT OF SUCH
INDEBTEDNESS AND CAPITAL LEASE OBLIGATIONS WITH RESPECT TO SUCH CAPITAL LEASES,
TOGETHER WITH THE AGGREGATE AMOUNT OF ALL OTHER OUTSTANDING PURCHASE MONEY
INDEBTEDNESS AND CAPITAL LEASE OBLIGATIONS OF THE CREDIT PARTIES, SHALL NOT
EXCEED $1,000,000 AT ANY ONE TIME, (2) SUCH PURCHASE MONEY LIENS AND CAPITAL
LEASES ARE NOT CREATED IN CONTEMPLATION OF SUCH PERMITTED ACQUISITION AND SECURE
ONLY THOSE PRINCIPAL OBLIGATIONS AND ANY CHARGES OR INTEREST ACCRUING THEREON
WHICH SUCH PURCHASE MONEY LIENS OR CAPITAL LEASES SECURE ON THE DATE THAT SUCH
PERMITTED ACQUISITION IS CONSUMMATED, (3) SUCH INDEBTEDNESS DOES NOT EXCEED 100%
OF THE PURCHASE PRICE OF THE SUBJECT ASSETS, AND (4) SUCH PURCHASE MONEY LIENS
OR CAPITAL LEASES DO NOT EXTEND TO ANY ASSET OTHER THAN THE ASSETS BEING
PURCHASED OR ACQUIRED WITH SUCH PURCHASE MONEY INDEBTEDNESS OR THE ASSETS BEING
LEASED IN CONNECTION WITH SUCH CAPITAL LEASES, (C) CONTINGENT OBLIGATIONS AND
CONTINGENT LIABILITIES THAT DO NOT EXCEED $500,000 FOR EACH SUCH PERMITTED
ACQUISITION, (D) GUARANTEED INDEBTEDNESS PERMITTED BY SECTION 6.6, AND (E)
INDEBTEDNESS OF BORROWER INCURRED TO FINANCE SUCH PERMITTED ACQUISITION TO THE
EXTENT SUCH INDEBTEDNESS IS EXPRESSLY PERMITTED UNDER SECTION 6.3(A)(VII), (XV)
OR (XVI) AND TO THE EXTENT THAT NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND
IS CONTINUING OR WOULD RESULT AFTER GIVING EFFECT TO SUCH PERMITTED ACQUISITION;
(V)
THE SUM OF ALL AMOUNTS PAYABLE IN CONNECTION
WITH ALL PERMITTED ACQUISITIONS MADE AFTER THE CLOSING DATE (INCLUDING ALL
DEFERRED PAYMENTS, ALL NON-COMPETE PAYMENTS, ALL TRANSACTION COSTS, THE FAIR
MARKET VALUE OF ALL STOCK ISSUED IN CONNECTION THEREWITH AND ALL INDEBTEDNESS
AND ANY EARN OUT PAYMENTS OR SIMILAR OBLIGATIONS INCURRED IN CONNECTION
THEREWITH OR OTHERWISE REFLECTED ON A CONSOLIDATED BALANCE SHEET OF BORROWER AND
TARGET) SHALL NOT EXCEED $25,000,000 IN ANY FISCAL YEAR FOR ALL CREDIT PARTIES
COMBINED;
(VI)
ON A PRO FORMA BASIS, AFTER GIVING EFFECT TO
SUCH PERMITTED ACQUISITION, THE TARGET SHALL NOT HAVE INCURRED AN OPERATING LOSS
FOR THE TRAILING TWELVE-MONTH PERIOD PRECEDING THE DATE OF SUCH PERMITTED
ACQUISITION, AS DETERMINED BASED UPON THE TARGET'S FINANCIAL STATEMENTS FOR ITS
MOST RECENTLY COMPLETED FISCAL YEAR AND ITS MOST RECENT INTERIM FINANCIAL PERIOD
COMPLETED WITHIN SIXTY (60) DAYS PRIOR TO THE DATE OF CONSUMMATION OF SUCH
PERMITTED ACQUISITION;
(VII)
THE BUSINESS AND ASSETS ACQUIRED IN SUCH
PERMITTED ACQUISITION SHALL BE FREE AND CLEAR OF ALL LIENS (OTHER THAN PERMITTED
ENCUMBRANCES);
(VIII)
THE BORROWER SHALL BE THE SURVIVING ENTITY OF ANY
MERGER OR CONSOLIDATION INVOLVING BORROWER IN CONNECTION WITH ANY PERMITTED
ACQUISITION, AND AT OR PRIOR TO THE CLOSING OF ANY PERMITTED ACQUISITION, AGENT
WILL BE GRANTED A FIRST PRIORITY PERFECTED LIEN (SUBJECT TO PERMITTED
ENCUMBRANCES) IN SUBSTANTIALLY ALL THE ASSETS ACQUIRED PURSUANT THERETO,
CONSISTENT WITH THE