any Person (the "Target") (in each case, a
"Permitted Acquisition") subject to the satisfaction of each of the following
conditions:
(1)
AGENT SHALL RECEIVE AT LEAST 10 BUSINESS
DAYS' PRIOR WRITTEN NOTICE OF SUCH PROPOSED PERMITTED ACQUISITION, WHICH NOTICE
SHALL INCLUDE A REASONABLY DETAILED DESCRIPTION OF SUCH PROPOSED PERMITTED
ACQUISITION;
(2)
SUCH PERMITTED ACQUISITION SHALL ONLY
INVOLVE ASSETS LOCATED IN THE UNITED STATES AND COMPRISING A BUSINESS, OR THOSE
ASSETS OF A BUSINESS, OF A SIMILAR TYPE ENGAGED IN BY OBLIGORS AS OF THE CLOSING
DATE, AND WHICH BUSINESS WOULD NOT SUBJECT AGENT OR ANY LENDER TO REGULATORY OR
THIRD PARTY APPROVALS IN CONNECTION WITH THE EXERCISE OF ITS RIGHTS AND REMEDIES
UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS OTHER THAN APPROVALS APPLICABLE
TO THE EXERCISE OF SUCH RIGHTS AND REMEDIES WITH RESPECT TO OBLIGORS PRIOR TO
SUCH PERMITTED ACQUISITION;
(3)
SUCH PERMITTED ACQUISITION SHALL BE
CONSENSUAL AND SHALL HAVE BEEN APPROVED BY THE TARGET'S BOARD OF DIRECTORS;
(4)
NO ADDITIONAL INDEBTEDNESS, CONTINGENT
OBLIGATIONS OR OTHER LIABILITIES SHALL BE INCURRED, ASSUMED OR OTHERWISE BE
REFLECTED ON A CONSOLIDATED BALANCE SHEET OF OBLIGOR AND TARGET AFTER GIVING
EFFECT TO SUCH PERMITTED ACQUISITION, EXCEPT (A) LOANS MADE HEREUNDER,
(B) ORDINARY COURSE TRADE PAYABLES, ACCRUED EXPENSES AND UNSECURED INDEBTEDNESS
OF THE TARGET TO THE EXTENT NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING OR WOULD RESULT AFTER GIVING EFFECT TO SUCH PERMITTED ACQUISITION AND
(C) INDEBTEDNESS PERMITTED UNDER SUBSECTION 7.1(G);
(5)
THE BUSINESS AND ASSETS ACQUIRED IN SUCH
PERMITTED ACQUISITION SHALL BE FREE AND CLEAR OF ALL LIENS (OTHER THAN PERMITTED
ENCUMBRANCES);
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(6)
AT OR PRIOR TO THE CLOSING OF ANY PERMITTED
ACQUISITION, AGENT WILL BE GRANTED A FIRST PRIORITY PERFECTED LIEN (SUBJECT TO
PERMITTED ENCUMBRANCES) IN ALL ASSETS ACQUIRED PURSUANT THERETO OR IN THE ASSETS
AND EQUITY SECURITIES OF THE TARGET, AND HOLDINGS AND OBLIGOR AND THE TARGET
SHALL HAVE EXECUTED SUCH DOCUMENTS AND TAKEN SUCH ACTIONS AS MAY BE REQUIRED BY
AGENT IN CONNECTION THEREWITH;
(7)
AT THE TIME OF SUCH PERMITTED ACQUISITION
(BEFORE AND AFTER GIVING EFFECT TO SUCH PERMITTED ACQUISITION AND ALL LOANS
FUNDED IN CONNECTION THEREWITH), EXCESS AVAILABILITY SHALL EXCEED $12,500,000;
(8)
WITHIN FIVE (5) BUSINESS DAYS FOLLOWING
DELIVERY OF THE NOTICE REFERRED TO IN CLAUSE (1) ABOVE WITH RESPECT TO ANY
PERMITTED ACQUISITION OTHER THAN A PERMITTED SMALL ACQUISITION (UNLESS OTHERWISE
REQUESTED BY AGENT WITH RESPECT TO ANY PERMITTED SMALL ACQUISITION), BORROWER
SHALL HAVE DELIVERED TO AGENT, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
AGENT:
(a)
a pro forma consolidated balance sheet,
income statement and cash flow statement of Holdings and its Subsidiaries (the
"Acquisition Pro Forma"), based on recent financial statements, which shall be
complete and shall fairly present in all material respects the assets,
liabilities, financial condition and results of operations of Holdings and its
Subsidiaries in accordance with GAAP consistently applied, but taking into
account such Permitted Acquisition and the funding of all Loans in connection
therewith, and such Acquisition Pro Forma shall reflect that average daily
Excess