Common use of Permitted Acquisition Clause in Contracts

Permitted Acquisition. any Acquisition by any Borrower in a transaction that satisfies each of the following requirements: (a) such Acquisition is not a hostile acquisition or contested by the Person to be acquired; (b) the assets being acquired (other than a de minimis amount of assets in relation to Borrower’s and its Subsidiaries’ total assets), or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the business of Borrower and its Subsidiaries or a business reasonably related thereto; (c) both before and after giving effect to such Acquisition, each of the representations and warranties in the Loan Documents is true and correct; (d) no Default or Event of Default shall have occurred and be continuing or would result from the consummation of such Acquisition; (e) as soon as available, but not less than 30 days prior to such Acquisition, the Borrowers have provided Agent (i) notice of such Acquisition and (ii) a copy of all available business and financial information reasonably requested by Agent including pro forma financial statements, statements of cash flow, and Availability projections; (f) not later than 15 Business Days prior to the anticipated closing date of such Acquisition, Borrowers shall have provided the Agent with copies of the acquisition agreement and other material documents relative to such Acquisition, which agreement and documents must be reasonably acceptable to Agent; (g) the aggregate purchase consideration payable (including deferred payment obligations, but excluding issuances of Equity Interests of Clearwater) in respect of all Acquisitions made during the term of this Agreement shall not exceed $50,000,000; (h) if such Acquisition is an acquisition of the Equity Interests of a Person, the Acquisition is structured so that the acquired Person shall become a wholly-owned Subsidiary of a Borrower and, in accordance with Section 10.1.9, an Obligor pursuant to the terms of this Agreement; (i) if such Acquisition is an acquisition of assets, the Acquisition is structured so that an Obligor (or a newly organized Subsidiary that becomes an Obligor) shall acquire such assets; (j) the assets being acquired (other than a de minimis amount of assets in relation to the assets being acquired) are located within the United States, or the Person whose Equity Interests are being acquired is organized in a jurisdiction located within the United States; (k) no Debt will be incurred, assumed, or would exist with respect to Borrower or its Subsidiaries as a result of such Acquisition, other than Debt permitted under Section 10.2.1 and no Liens will be incurred, assumed, or would exist with respect to the assets of Borrower or its Subsidiaries as a result or such Acquisition other than Permitted Liens; and (l) both before and after giving effect to any such Acquisition, Modified Availability is greater than $50,000,000. In no event will assets acquired pursuant to a Permitted Acquisition constitute Eligible Accounts, Eligible Inventory or Eligible Semi-Finished Inventory prior to completion of a field examination and other due diligence acceptable to Agent in its discretion.

Permitted Acquisition. any Any Acquisition by the Borrower or any other member of the Borrower in a transaction Affiliated Group that satisfies meets each of the following requirementscriteria: (ai) the capital stock (or other equity interests) or assets acquired in such Acquisition relates to a line of business similar to the business in which the Borrower Affiliated Group is not engaged on the Closing Date, (ii) if required by applicable law, the board of directors and the shareholders or the equivalent of such other Person has approved such Acquisition, (iii) in the case of an Acquisition of the capital stock (or other equity interests) of another Person, such Person shall become a hostile acquisition wholly-owned direct or contested by indirect Subsidiary of the Borrower or, in the case of a merger between the Borrower and another Person, the Borrower shall be the surviving entity, or in the case of a merger between another Person to be acquired; (b) and a member of the assets being acquired Borrower Affiliated Group (other than a de minimis amount of assets in relation to the Borrower’s and its Subsidiaries’ total assets), or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicableupon consummation of such merger, the business surviving entity shall be a direct or indirect wholly-owned Subsidiary of the Borrower and, if the surviving entity is a Domestic Subsidiary, a party to the Subsidiary Security Documents, (iv) the Borrower shall provide the Administrative Agent with at least 14 days' prior written notice of each such Acquisition and its Subsidiaries such information relating thereto as the Administrative Agent may reasonably request, (v) no Default or a business reasonably related thereto; (c) Event of Default shall exist, in each case both before and after giving effect to such Acquisition, each (vi) the properties and assets acquired by the Borrower or other member of the representations Borrower Affiliated Group in connection with such proposed Acquisition shall be free from all liens, charges and warranties in the Loan Documents is true and correct; encumbrances whatsoever, other than Permitted Encumbrances, (dvii) no Default or Event of Default shall have occurred and be continuing or would result from the upon consummation of such Acquisition; (e) as soon as available, but not less than 30 days prior to such the Acquisition, the Borrowers Administrative Agent shall have provided Agent (i) notice a valid, perfected, first-priority security interest in all of such Acquisition the properties and assets being acquired by the Borrower or other member of the Borrower Affiliated Group subject to Permitted Encumbrances, and (ii) a copy of all available business and financial information reasonably requested by Agent including pro forma financial statements, statements of cash flow, and Availability projections; (f) not later than 15 Business Days prior to the anticipated closing date of such Acquisition, Borrowers shall have provided the Agent with copies of the acquisition agreement and other material documents relative to such Acquisition, which agreement and documents must be reasonably acceptable to Agent; (gviii) the aggregate purchase consideration payable (including deferred payment obligations, but excluding issuances all cash and non-cash consideration and any assumption of Equity Interests of ClearwaterIndebtedness) in respect of for all Acquisitions made during occurring after the term of this Agreement Closing Date shall not exceed $50,000,000; (h) if such Acquisition is an acquisition 15% of the Equity Interests Borrower's Consolidated Tangible Net Worth, determined as of a Person, the Acquisition is structured so that end of the acquired Person shall become a wholly-owned Subsidiary most recently completed fiscal quarter of a Borrower and, in accordance with Section 10.1.9, an Obligor pursuant to the terms of this Agreement; (i) if such Acquisition is an acquisition of assets, the Acquisition is structured so that an Obligor (or a newly organized Subsidiary that becomes an Obligor) shall acquire such assets; (j) the assets being acquired (other than a de minimis amount of assets in relation to the assets being acquired) are located within the United States, or the Person whose Equity Interests are being acquired is organized in a jurisdiction located within the United States; (k) no Debt will be incurred, assumed, or would exist with respect to Borrower or its Subsidiaries as a result of such Acquisition, other than Debt permitted under Section 10.2.1 and no Liens will be incurred, assumed, or would exist with respect to the assets of Borrower or its Subsidiaries as a result or such Acquisition other than Permitted Liens; and (l) both before and after giving effect to any such Acquisition, Modified Availability is greater than $50,000,000. In no event will assets acquired pursuant to a Permitted Acquisition constitute Eligible Accounts, Eligible Inventory or Eligible Semi-Finished Inventory prior to completion of a field examination and other due diligence acceptable to Agent in its discretionBorrower.

Permitted Acquisition. Any acquisition by the Borrower or any Acquisition by any other member of the Borrower in a transaction Affiliated Group that satisfies meets each of the following requirementscriteria: (a) such Acquisition is not a hostile acquisition or contested by the Person to be acquired; (bi) the capital stock (or other equity interests) or assets acquired in such acquisition relates to a line of business similar or complementary to the business in which the Borrower Affiliated Group is engaged on the Closing Date, (ii) the board of directors and, if required by applicable law, the shareholders or the equivalent thereof, of such other Person has approved such acquisition, it being acquired the intent that the acquisition be non-hostile in nature, (iii) in the case of a merger between the Borrower and another Person, the Borrower shall be the surviving entity, or in the case of a merger between another Person and a member of the Borrower Affiliated Group (other than a de minimis amount of assets in relation to the Borrower’s and its Subsidiaries’ total assets), or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicableupon consummation of such merger, the business surviving entity shall be a direct or indirect Subsidiary of the Borrower, (iv) the Borrower shall provide the Administrative Agent with written notice of each such acquisition as soon as practicable, but in no event more than 5 days after the closing thereof and its Subsidiaries such information relating thereto as the Administrative Agent may reasonably request promptly after the request therefor, (v) no Default or a business reasonably related thereto; (c) Event of Default shall exist, in each case both before and after giving effect to such Acquisitionacquisition, each (vi) the properties and assets acquired by the Borrower or other member of the representations Borrower Affiliated Group in connection with such proposed acquisition shall be free from all liens, charges and warranties in the Loan Documents is true and correct; encumbrances whatsoever, other than Permitted Encumbrances, (d) no Default or Event of Default shall have occurred and be continuing or would result from the consummation of such Acquisition; (evii) as soon as availablepracticable, but not less in no event more than 30 days prior to such Acquisition10 Business Days after the consummation of an acquisition (x) which results in a new, direct or indirect wholly-owned Domestic Subsidiary of the Borrower, the Borrowers Administrative Agent shall have provided a valid, perfected, first-priority security interest in the Accounts Receivable and Intellectual Property Rights and related assets of the Person being acquired (consistent with the security interests in favor of the Administrative Agent on the Closing Date) by the Borrower or other member of the Borrower Affiliated Group (isubject to Permitted Encumbrances) notice of and such Acquisition Domestic Subsidiary shall become a party to the Subsidiary Security Documents, and (iiy) a copy of all available business and financial information reasonably requested by Agent including pro forma financial statements, statements of cash flow, and Availability projections; (f) not later than 15 Business Days prior to the anticipated closing date of such Acquisition, Borrowers shall have provided the Agent with copies of the acquisition agreement and other material documents relative to such Acquisition, which agreement and documents must be reasonably acceptable to Agent; (g) the aggregate purchase consideration payable (including deferred payment obligations, but excluding issuances of Equity Interests of Clearwater) in respect of all Acquisitions made during the term of this Agreement shall not exceed $50,000,000; (h) if such Acquisition is an acquisition of the Equity Interests of a Securities in another Person, the Acquisition is structured Administrative Agent shall have a valid, perfected, first-priority pledge of the Equity Securities so that the acquired Person shall become a wholly-owned Subsidiary of a Borrower and, in accordance with Section 10.1.9, an Obligor pursuant to the terms of this Agreement; (i) if such Acquisition is an acquisition of assets, the Acquisition is structured so that an Obligor (or a newly organized Subsidiary that becomes an Obligor) shall acquire such assets; (j) the assets being acquired (other than a de minimis amount of assets in relation to the assets being acquired) are located within the United States, or the Person whose Equity Interests are being acquired is organized in a jurisdiction located within the United States; (k) no Debt will be incurred, assumed, or would exist with respect to Borrower or its Subsidiaries as a result of such Acquisition, other than Debt permitted under Section 10.2.1 and no Liens will be incurred, assumed, or would exist with respect to the assets of Borrower or its Subsidiaries as a result or such Acquisition other than Permitted Liens; and (l) both before and after giving effect to any such Acquisition, Modified Availability is greater than $50,000,000. In no event will assets acquired pursuant to a Permitted Acquisition Pledge Agreement, provided that in connection with acquisition of minority interests in any one or more Persons, the Borrower Affiliated Group shall not be required to pledge the Equity Securities of any such Person or Persons having total assets of less than $25,000,000 in the aggregate, and (viii) the aggregate consideration (including all cash and non-cash consideration and any assumption of Indebtedness, but excluding any Equity Securities of the Borrower) for such acquisitions which do not constitute Eligible AccountsInvestments, Eligible Inventory or Eligible Semi-Finished Inventory prior together with all Investments made pursuant to completion clause (viii) of a field examination the definition of Qualified Investments (but not any other provision of such definition), from and other due diligence acceptable to Agent in its discretionafter the Closing Date shall not exceed, when made, the sum of $225,000,000 plus 50% of the Borrower's Cumulative Excess Cash Flow.

Permitted Acquisition. The definition of "Permitted Acquisition" set forth in Appendix A to the Participation Agreement is hereby amended and restated in its entirety to read as follows: "Permitted Acquisition" shall mean an acquisition or any Acquisition series of related acquisitions by any Borrower in a transaction that satisfies each GCA Credit Party of the following requirements: assets or all of the Capital Stock of a Person or any division, line of business or other business unit of a Person (such Person or such division, line of business or other business unit of such Person referred to herein as the "Target"), in each case that is in the same line of business (or assets used in the same line of business) as the GCA Credit Parties and the GCA Subsidiaries or whereby a substantial portion of the acquired business relies upon automated transactions, telephone representatives or telephony technology, so long as (a) such Acquisition is not a hostile acquisition or contested by the Person to be acquired; (b) the assets being acquired (other than a de minimis amount of assets in relation to Borrower’s and its Subsidiaries’ total assets), or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the business of Borrower and its Subsidiaries or a business reasonably related thereto; (c) both before and after giving effect to such Acquisition, each of the representations and warranties in the Loan Documents is true and correct; (d) no Default or Event of Default shall have occurred and be continuing then exist or would result from exist after giving effect thereto; (b) the Credit Parties shall demonstrate to the reasonable satisfaction of the Agent that the Credit Parties will be in compliance on a pro forma basis with all of the terms and provisions of the financial covenants set forth in Section 8A.9; (c) the agent under the Guarantor Credit Agreement, on behalf of the GCA Lenders, shall have received (or shall receive in connection with the closing of such acquisition) a first priority perfected security interest in all of the Capital Stock acquired with respect to the Target and the Target, if a Person, shall have executed a Joinder Agreement in accordance with the terms of Section 8A.10; (d) such acquisition is not a "hostile" public company acquisition and has been approved by the Board of Directors and/or shareholders of the applicable GCA Credit Party and the public company Target; (e) after giving effect to such acquisition, the sum of (i) the unused availability under the Aggregate Revolving Committed Amount plus (ii) the cash and Cash Equivalents held by the GCA Credit Parties plus (iii) the unused borrowing availability under any securitization facility of the GCA Credit Parties is greater than or equal to $10,000,000; and (f) with respect to any acquisition where the total consideration shall be (i) greater than $50,000,000 and less than or equal to $100,000,000, the Parent 2 <PAGE> shall have delivered to the Agent and each of the Primary Financing Parties not more than thirty (30) days after the consummation of such Acquisition; acquisition a reasonably detailed description of the material terms of such acquisition (e) as soon as availableincluding, but not less than 30 days prior to such Acquisitionwithout limitation, the Borrowers have provided Agent (ipurchase price and method and structure of payment) notice and of such Acquisition each Target and (ii) a copy greater than $100,000,000, the Parent shall have delivered to the Agent and each of all available business and financial information reasonably requested by Agent including pro forma financial statements, statements of cash flow, and Availability projections; the Primary Financing Parties not less than ten (f10) not later than 15 Business Days prior to the anticipated closing date consummation of such Acquisitionacquisition (A) a reasonably detailed description of the material terms of such acquisition (including, Borrowers without limitation, the purchase price and method and structure of payment) and of each Target, (B) audited financial statements of the Target, or company-prepared financial statements that have been certified by the Target, for the Target's two (2) most recent fiscal years and unaudited fiscal year-to-date statements for the most recent interim periods, which financial statements shall be consistent with any financial statements filed with the Securities and Exchange Commission in connection with such acquisition and (C) a certificate, in form and substance reasonably satisfactory to the Agent, executed by a Responsible Officer of the Parent (1) certifying that such Permitted Acquisition complies with the requirements of this Agreement and (2) demonstrating compliance with subsections (b) and (e) of this definition; provided, however, that an acquisition of a Target that is not incorporated, formed or organized in the United States (a "Foreign Target") shall only qualify as a Permitted Acquisition if each of the other requirements set forth in this definition shall have provided been satisfied and the Agent with copies of the acquisition agreement and other material documents relative to total consideration for all such Acquisition, which agreement and documents must be reasonably acceptable to Agent; (g) Foreign Targets does not exceed $50,000,000 in the aggregate purchase consideration payable (including deferred payment obligations, but excluding issuances of Equity Interests of Clearwater) in respect of all Acquisitions made during the term of this Agreement shall not exceed $50,000,000; (h) if such Acquisition is an acquisition of the Equity Interests of a Person, the Acquisition is structured so that the acquired Person shall become a wholly-owned Subsidiary of a Borrower and, in accordance with Section 10.1.9, an Obligor pursuant to the terms of this Agreement; (i) if such Acquisition is an acquisition of assets, the Acquisition is structured so that an Obligor (or a newly organized Subsidiary that becomes an Obligor) shall acquire such assets; (j) the assets being acquired (other than a de minimis amount of assets in relation to the assets being acquired) are located within the United States, or the Person whose Equity Interests are being acquired is organized in a jurisdiction located within the United States; (k) no Debt will be incurred, assumed, or would exist with respect to Borrower or its Subsidiaries as a result of such Acquisition, other than Debt permitted under Section 10.2.1 and no Liens will be incurred, assumed, or would exist with respect to the assets of Borrower or its Subsidiaries as a result or such Acquisition other than Permitted Liens; and (l) both before and after giving effect to any such Acquisition, Modified Availability is greater than $50,000,000. In no event will assets acquired pursuant to a Permitted Acquisition constitute Eligible Accounts, Eligible Inventory or Eligible Semi-Finished Inventory prior to completion of a field examination and other due diligence acceptable to Agent in its discretion.

Permitted Acquisition. any The acquisition by the Borrower of a majority of the voting ownership interests in an entity (provided, that if Borrower is acquiring less than all such interests in an entity, the acquisition will not be a Permitted Acquisition by any Borrower unless the Agents shall have approved the transaction), in a transaction that satisfies each connection with which all of the following requirementsconditions are met: (ai) the total cash portion of the purchase price for such Acquisition is not a hostile acquisition or contested acquisition, regardless of when paid, when aggregated with the cash portions of the purchase prices for any other acquisitions consummated by the Person Borrower during the period beginning on the Closing Date and ending on the Maturity Date, does not exceed $50,000,000; (ii) the aggregate total fair market value of the consideration paid in connection with all such acquisitions, regardless of how paid and when due and determined as of the date of consummation of the acquisition, does not exceed $100,000,000 for all acquisitions to be acquiredconsummated in any given twelve-month period; (biii) in the event any such acquisition involves a merger to which the Borrower is a party, the Borrower is the surviving entity; (iv) the assets being entity acquired (other than is primarily engaged in the same, a de minimis amount of assets in relation to Borrower’s and its Subsidiaries’ total assets)related, or a similar, line of business as the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the business of Borrower and its Subsidiaries or a business reasonably related theretoBorrower; (cv) both before and after giving effect to such Acquisitionacquisition on a pro forma basis, each the Borrower is in compliance with the covenants set forth in Section 9 hereof, as demonstrated by submission of the representations and warranties in the Loan Documents is true and correcta pro forma Compliance Certificate; (dvi) at the time of such acquisition, no Default or Event of Default shall have has occurred and be continuing or would result from is continuing; (vii) the consummation Borrower's acquisition of such Acquisition; (e) as soon as available, but not less than 30 days prior to such Acquisitionentity is being accomplished with the cooperation and consent of the management of, the Borrowers have provided Agent board of directors (iif any) notice of, the managing member (if any) of, and the requisite majority, if required, of such Acquisition holders of ownership interests in, the acquired entity, and (iiviii) a copy such acquisition has been approved by Borrower's board of all available business and financial information reasonably requested by Agent including pro forma financial statementsdirectors. Permitted Liens. Liens, statements of cash flow, and Availability projections; (f) not later than 15 Business Days prior to the anticipated closing date of such Acquisition, Borrowers shall have provided the Agent with copies of the acquisition agreement security interests and other material documents relative to such Acquisition, which agreement and documents must be reasonably acceptable to Agent; (g) the aggregate purchase consideration payable (including deferred payment obligations, but excluding issuances of Equity Interests of Clearwater) in respect of all Acquisitions made during the term of this Agreement shall not exceed $50,000,000; (h) if such Acquisition is an acquisition of the Equity Interests of a Person, the Acquisition is structured so that the acquired Person shall become a wholly-owned Subsidiary of a Borrower and, in accordance with Section 10.1.9, an Obligor pursuant to the terms of this Agreement; (i) if such Acquisition is an acquisition of assets, the Acquisition is structured so that an Obligor (or a newly organized Subsidiary that becomes an Obligor) shall acquire such assets; (j) the assets being acquired (other than a de minimis amount of assets in relation to the assets being acquired) are located within the United States, or the Person whose Equity Interests are being acquired is organized in a jurisdiction located within the United States; (k) no Debt will be incurred, assumed, or would exist with respect to Borrower or its Subsidiaries as a result of such Acquisition, other than Debt encumbrances permitted under Section 10.2.1 and no Liens will be incurred, assumed, or would exist with respect to the assets of Borrower or its Subsidiaries as a result or such Acquisition other than Permitted Liens; and (l) both before and after giving effect to any such Acquisition, Modified Availability is greater than $50,000,000. In no event will assets acquired pursuant to a Permitted Acquisition constitute Eligible Accounts, Eligible Inventory or Eligible Semi-Finished Inventory prior to completion of a field examination and other due diligence acceptable to Agent in its discretionby 8.

Permitted Acquisition. Neither Company shall nor shall any Acquisition by any Borrower in Guarantor (collectively, the "Loan Parties" and individually a transaction that satisfies each "Loan Party") acquire another Person or substantially all of the assets of another Person or make an Investment in another Person (any of the foregoing, an "Acquisition") except in accordance with and subject to the provisions of this subsection 6.4 and provided that such Loan Party satisfy the following requirements: minimum requirements (unless waived or otherwise permitted by Agent): (a) The Agent shall receive not less than fifteen (15) Business Days' prior written notice of such Acquisition, which notice shall include a reasonably detailed description of the proposed terms of such Acquisition is not a hostile acquisition or contested by and identify the Person to be acquired; anticipated closing date thereof; (b) the assets being acquired (other than a de minimis amount No Event of assets in relation Default shall exist prior to Borrower’s and its Subsidiaries’ total assets), or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the business of Borrower and its Subsidiaries or a business reasonably related thereto; (c) both before and after giving effect to such Acquisition, each Acquisition and the incurrence of any Revolving Loans or other Indebtedness in connection therewith; (c) Such Loan Party shall cause the representations Person acquired in any such Acquisition (the "Target") to guarantee the Obligations by executing and warranties delivering a guaranty substantially in the Loan Documents is true form and correct; substance as the Guaranties delivered by the Guarantors on the Closing Date; (d) no Default or Event of Default Such Target shall have occurred grant to Agent a first priority perfected security interest in its accounts receivable and be continuing or would result from inventory as security for the consummation obligations of such AcquisitionTarget under its guaranty of the Obligations, PROVIDED, however, if Agent and/or Lenders (i) do not provide working capital or other financing to fund the operations or business activities of any Target pursuant to subsection 7.17 hereof and such financing is otherwise provided by another financial institution in accordance with the terms of subsection 7.17, or (ii) such Target was acquired in connection with a stock acquisition and its accounts receivable and inventory are already subject to security interests in favor of a financial institution which provides working capital or other financing to fund the operations or business activities of such Target, then such Target shall not be required to grant security interests in its accounts receivable or inventory to Agent as aforesaid; and (e) as soon as available, but not less than 30 days prior to such Acquisition, the Borrowers have provided Agent and Lenders shall be granted (i) notice of such Acquisition and (iiby this provision are hereby granted) a copy right of all available business first refusal (subject to and financial information reasonably requested by Agent including pro forma financial statements, statements of cash flow, and Availability projections; (f) not later than 15 Business Days prior to the anticipated closing date of such Acquisition, Borrowers shall have provided the Agent with copies of the acquisition agreement and other material documents relative to such Acquisition, which agreement and documents must be reasonably acceptable to Agent; (g) the aggregate purchase consideration payable (including deferred payment obligations, but excluding issuances of Equity Interests of Clearwater) in respect of all Acquisitions made during the term of this Agreement shall not exceed $50,000,000; (h) if such Acquisition is an acquisition of the Equity Interests of a Person, the Acquisition is structured so that the acquired Person shall become a wholly-owned Subsidiary of a Borrower and, in accordance with Section 10.1.9, an Obligor pursuant the provision of subsection 7.17 hereof) to provide any working capital or other financing to fund the operations or business activities of any Target. Subject to the provisions of subsection 7.17, if Agent and/or Lenders do not, and another financial institution (hereinafter, a "Bank") does provide said financing on terms of this Agreement; (i) and conditions no less favorable to such Target than those offered by Agent and/or Lenders, then Agent shall, if applicable, release its liens on such Acquisition is an acquisition of assets, the Acquisition is structured so that an Obligor (or a newly organized Subsidiary that becomes an Obligor) shall acquire such assets; (j) the assets being acquired (other than a de minimis amount of assets in relation Target's accounts receivable and inventory if and to the assets being acquired) are located within extent required by a Bank in connection with securing the United Statesfinancing provided by it, or the Person whose Equity Interests are being acquired is organized provided, however that, in any event, such Target shall remain a jurisdiction located within the United States; (k) no Debt will be incurred, assumed, or would exist with respect to Borrower or its Subsidiaries as a result of such Acquisition, other than Debt permitted under Section 10.2.1 and no Liens will be incurred, assumed, or would exist "Guarantor" with respect to the assets of Borrower or its Subsidiaries as a result or such Acquisition other than Permitted Liens; and (l) both before and after giving effect to any such Acquisition, Modified Availability is greater than $50,000,000. In no event will assets acquired pursuant to a Permitted Acquisition constitute Eligible Accounts, Eligible Inventory or Eligible Semi-Finished Inventory prior to completion of a field examination and other due diligence acceptable to Agent in its discretionObligations.

Permitted Acquisition. Any acquisition by B&N or any Acquisition by any other member of the Borrower in a transaction Affiliated Group that satisfies meets each of the following requirementscriteria: (a) such Acquisition is not a hostile acquisition or contested by the Person to be acquired; (bi) the capital stock (or other equity interests) or assets acquired in such acquisition relates to a line of business similar or complementary to the business in which the Borrower Affiliated Group is engaged on the Closing Date, (ii) the board of directors and, if required by applicable law, the shareholders or the equivalent thereof, of such other Person has approved such acquisition, it being acquired the intent that the acquisition be non-hostile in nature, (iii) in the case of a merger between B&N and another Person, B&N shall be the surviving entity, or in the case of a merger between another Person and a member of the Borrower Affiliated Group (other than a de minimis amount of assets in relation to Borrower’s and its Subsidiaries’ total assetsB&N), or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicableupon consummation of such merger, the business surviving entity shall be a direct or indirect Subsidiary of Borrower B&N, (iv) B&N shall provide the Administrative Agent with written notice of each such acquisition as soon as practicable, but in no event more than 5 days after the closing thereof and its Subsidiaries such information relating thereto as the Administrative Agent may reasonably request promptly after the request therefor, (v) no Default or a business reasonably related thereto; (c) Event of Default shall exist, in each case both before and after giving effect to such Acquisitionacquisition, each (vi) the properties and assets acquired by B&N or other member of the representations Borrower Affiliated Group in connection with such proposed acquisition shall be free from all liens, charges and warranties in the Loan Documents is true and correct; encumbrances whatsoever, other than Permitted Encumbrances, (d) no Default or Event of Default shall have occurred and be continuing or would result from the consummation of such Acquisition; (evii) as soon as availablepracticable, but not less in no event more than 30 days prior to such Acquisition10 Business Days after the consummation of an acquisition (x) which results in a new, direct or indirect wholly-owned Domestic Subsidiary of B&N, the Borrowers Administrative Agent shall have provided a valid, perfected, first-priority security interest in the Accounts Receivable and Intellectual Property Rights and related assets of the Person being acquired (consistent with the security interests in favor of the Administrative Agent on the Closing Date) by B&N or other member of the Borrower Affiliated Group (isubject to Permitted Encumbrances) notice of and such Acquisition Domestic Subsidiary shall become a party to the Subsidiary Security Documents, and (iiy) a copy of all available business and financial information reasonably requested by Agent including pro forma financial statements, statements of cash flow, and Availability projections; (f) not later than 15 Business Days prior to the anticipated closing date of such Acquisition, Borrowers shall have provided the Agent with copies of the acquisition agreement and other material documents relative to such Acquisition, which agreement and documents must be reasonably acceptable to Agent; (g) the aggregate purchase consideration payable (including deferred payment obligations, but excluding issuances of Equity Interests of Clearwater) in respect of all Acquisitions made during the term of this Agreement shall not exceed $50,000,000; (h) if such Acquisition is an acquisition of the Equity Interests of a Securities in another Person, the Acquisition is structured Administrative Agent shall have a valid, perfected, first-priority pledge of the Equity Securities so that the acquired Person shall become a wholly-owned Subsidiary of a Borrower and, in accordance with Section 10.1.9, an Obligor pursuant to the terms of this Agreement; (i) if such Acquisition is an acquisition of assets, the Acquisition is structured so that an Obligor (or a newly organized Subsidiary that becomes an Obligor) shall acquire such assets; (j) the assets being acquired (other than a de minimis amount of assets in relation to the assets being acquired) are located within the United States, or the Person whose Equity Interests are being acquired is organized in a jurisdiction located within the United States; (k) no Debt will be incurred, assumed, or would exist with respect to Borrower or its Subsidiaries as a result of such Acquisition, other than Debt permitted under Section 10.2.1 and no Liens will be incurred, assumed, or would exist with respect to the assets of Borrower or its Subsidiaries as a result or such Acquisition other than Permitted Liens; and (l) both before and after giving effect to any such Acquisition, Modified Availability is greater than $50,000,000. In no event will assets acquired pursuant to a Permitted Acquisition Pledge Agreement, provided that in connection with acquisition of minority interests in any one or more Persons, the Borrower Affiliated Group shall not be required to pledge the Equity Securities of any such Person or Persons having total assets of less than $25,000,000 in the aggregate, and (viii) the aggregate consideration (including all cash and non-cash consideration and any assumption of Indebtedness, but excluding any Equity Securities of B&N) for such acquisitions which do not constitute Eligible AccountsInvestments, Eligible Inventory or Eligible Semi-Finished Inventory prior together with all Investments made pursuant to completion clause (viii) of a field examination the definition of Qualified Investments (but not any other provision of such definition), from and other due diligence acceptable to Agent in its discretionafter November 2, 2003, shall not exceed, when made, the sum of $105,000,000 plus 50% of the Borrower Affiliated Group's Cumulative Excess Cash Flow.

Permitted Acquisition. any Prior to consummation of a Permitted Acquisition, the Borrower shall have delivered to Lender complete and correct copies of each document and agreement executed in connection therewith (collectively, the “Permitted Acquisition by any Borrower in a transaction that satisfies each Documents”), including all schedules and exhibits thereto. The Permitted Acquisition Documents shall set forth the entire agreement and understanding of the following requirements: Borrower and the parties thereto relating to the subject matter thereof, and there will be no other agreements, arrangements or understandings, written or oral, relating to the matters covered thereby. Borrower shall have the power, and shall have taken all necessary action (aincluding, any necessary member or comparable owner action) such to authorize it, to execute, deliver and perform in accordance with their respective terms the Permitted Acquisition Documents to which it is not a hostile acquisition or contested party. Each of the Permitted Acquisition Documents will have been duly executed and delivered by the Person to be acquired; (b) the assets being acquired (other than a de minimis amount of assets in relation Borrower and, to Borrower’s and its Subsidiaries’ total assets), or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the business of Borrower and its Subsidiaries or a business reasonably related thereto; (c) both before and after giving effect to such Acquisitionknowledge, each of the representations other parties thereto and warranties will be the legal, valid and binding obligation of Borrower and to Borrower’s knowledge, such other parties, enforceable against Borrower and to Borrower’s knowledge, such other parties in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the Loan enforcement of creditors’ rights generally. The execution, delivery and performance of the Permitted Acquisition Documents is true in accordance with their respective terms will not require any governmental approval or any other consent or approval, other than governmental approvals and correct; (d) no Default or Event of Default other consents and approvals that have been obtained. All conditions precedent to the Permitted Acquisition pursuant to the Permitted Acquisition Documents shall have occurred and be continuing or would result from been fulfilled in all material respects and, as of the date of the consummation of such Acquisition; (e) as soon as available, but not less than 30 days prior to such the Permitted Acquisition, the Borrowers Permitted Acquisition Documents shall not have provided Agent been amended or otherwise modified and there shall not be any breach by the Borrower or, to Borrower’s knowledge, any other party thereto, of any term or condition of the Permitted Acquisition Documents. Upon consummation of the transactions contemplated by the Permitted Acquisition Documents to be consummated at the closing thereunder, the Borrower shall acquire good and legal title to the stock or assets and other property being transferred pursuant to the Permitted Acquisition Documents. None of the foregoing shall in any manner obligate the Borrower or any Subsidiary to consummate any Permitted Acquisition and the foregoing representation shall only apply if, when and to the extent that a Permitted Acquisition is consummated and the Permitted Acquisition Documents are executed and delivered.” (ik) notice Section 4.15 of the Credit Agreement is herby amended by inserting at the end of such Acquisition and Section, the words, “;provided, further, however, that for a period of not more than sixty (ii60) a copy days after the Amendment No. 1 Effective Date, the Meta Health Target may maintain one or more deposit accounts with XX Xxxxxx Xxxxx Bank so long as (a) with respect to any non-payroll account, any amounts credited to such account in excess of all available business and financial information reasonably requested by Agent including pro forma financial statements, statements of cash flow$50,000 are promptly, and Availability projections; in any event, within one Business Day, transferred to an account of a Company maintained with Lender, (fb) with respect to any payroll account, other than amounts credited to such account to be paid to employees of the Meta Health Target not later more than 15 one Business Days Day prior to the anticipated closing date making of such Acquisitionpayments, Borrowers shall have provided any amounts in excess of $50,000 are promptly, and in any event, within one Business Day, transferred to an account of a Company maintained with the Agent with copies of the acquisition agreement Lender and other material documents relative to such Acquisition, which agreement and documents must be reasonably acceptable to Agent; (gc) the aggregate purchase consideration payable (including deferred payment obligations, but excluding issuances of Equity Interests of Clearwater) in respect of amount credited to all Acquisitions made during the term of this Agreement such accounts shall not exceed $50,000,000; 100,000 (h) if such Acquisition is an acquisition exclusive of any amounts credited to a payroll account to be paid to employees of the Equity Interests of a Person, the Acquisition is structured so that the acquired Person shall become a wholly-owned Subsidiary of a Borrower and, Meta Health Target as specified in accordance with Section 10.1.9, an Obligor pursuant to the terms of this Agreement; clause (i) if such Acquisition is an acquisition of assets, the Acquisition is structured so that an Obligor (or a newly organized Subsidiary that becomes an Obligor) shall acquire such assets; (j) the assets being acquired (other than a de minimis amount of assets in relation to the assets being acquired) are located within the United States, or the Person whose Equity Interests are being acquired is organized in a jurisdiction located within the United States; (k) no Debt will be incurred, assumed, or would exist with respect to Borrower or its Subsidiaries as a result of such Acquisition, other than Debt permitted under Section 10.2.1 and no Liens will be incurred, assumed, or would exist with respect to the assets of Borrower or its Subsidiaries as a result or such Acquisition other than Permitted Liens; and b))”; (l) both before Section 5.1 of the Credit Agreement is hereby amended by inserting, at the end of clause (c) thereof the words, “and after giving effect to so long as the Equity Subordination Agreement is in full force and effect, the Subordinated Convertible Notes and any such Acquisition, Modified Availability is greater than $50,000,000. In no event will assets acquired pursuant to Indebtedness incurred in connection with a Permitted Acquisition constitute Eligible Accounts, Eligible Inventory or Eligible Semi-Finished Inventory prior so long as such Indebtedness is subordinate to completion of a field examination the Obligations on terms and other due diligence conditions reasonably acceptable to Agent the Lender”; (m) Section 5.3 of the Credit Agreement is hereby deleted in its discretion.entirety and the following is hereby inserted in lieu thereof:

Permitted Acquisition. any Acquisition by any Borrower No Hanlong Party shall be in breach of Section 2.1 solely because such Hanlong Parties and their respective Affiliates become the beneficial owners of a transaction that satisfies each number of Equity Securities exceeding the following requirements: Maximum Percentage after and solely because of (a) such Acquisition is not a hostile acquisition or contested any action taken by the Person Company or any Affiliate of the Company (including the repurchase or redemption by the Company or any of its Affiliates of Equity Securities or Rights, the issuance of Equity Securities or Rights, including pursuant to an offer by the Company or any of its Affiliates to its security holders of rights to subscribe for Equity Securities, the expiration of Rights, or the declaration by the Company of a dividend in respect of any class of Equity Securities payable at the election of such security holders either in cash or in Equity Securities) in respect of which no Hanlong Party or Affiliate thereof shall have taken any action except as permitted to be acquired; taken by holders of Equity Securities or Rights in their capacities as such (including as a result of action taken by the Company or any of its Affiliates, as a result of action taken in accordance with Article VI, an election not to tender any of such Hanlong Party’s Equity Securities pursuant to any such offer to repurchase or redeem, an election to purchase Equity Securities or Rights pursuant to any such subscription offer or an election to be paid a dividend in respect of the Shares in Equity Securities or Rights instead of cash) or (b) the assets being acquired (other than a de minimis amount exercise by Hanlong of assets in relation its rights to Borrower’s acquire Equity Securities of the Company pursuant to any provisions of the Securities Purchase Agreement, including Sections 6.4(d) and its Subsidiaries’ total assets), 8.5 of the Securities Purchase Agreement or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the business of Borrower and its Subsidiaries or a business reasonably related thereto; (c) both before and after giving effect to such Acquisition, each of the representations and warranties in the Loan Documents is true and correct; (d) no Default or Event of Default shall have occurred and be continuing or would result from the consummation of such Acquisition; (e) as soon as available, but not less than 30 days prior to such Acquisition, the Borrowers have provided Agent (i) notice of such Acquisition and (ii) a copy of all available business and financial information reasonably requested by Agent including pro forma financial statements, statements of cash flow, and Availability projections; (f) not later than 15 Business Days prior stock issued to the anticipated closing date of such Acquisition, Borrowers shall have provided the Agent with copies of the acquisition agreement and other material documents relative to such Acquisition, which agreement and documents must be reasonably acceptable to Agent; (g) the aggregate purchase consideration payable (including deferred payment obligations, but excluding issuances of Equity Interests of Clearwater) in respect of all Acquisitions made during the term of this Agreement shall not exceed $50,000,000; (h) if such Acquisition is an acquisition of the Equity Interests of a Person, the Acquisition is structured so that the acquired Person shall become a wholly-owned Subsidiary of a Borrower and, in accordance with Section 10.1.9, an Obligor pursuant to Hanlong Parties under the terms of this the Bridge Loan Agreement; (i) provided, however, that the Hanlong Parties shall be in breach of Section 2.1 if such Acquisition is an acquisition of assets, the Acquisition is structured so that an Obligor (or a newly organized Subsidiary that becomes an Obligor) shall Hanlong Parties and their Affiliates subsequently acquire such assets; (j) the assets being acquired (additional Equity Securities other than a de minimis amount of assets in relation to the assets being acquired) are located within the United States, or the Person whose Equity Interests are being acquired is organized in a jurisdiction located within the United States; (k) no Debt will be incurred, assumed, or would exist with respect to Borrower or its Subsidiaries as a result of the actions described in this Section 2.2 and their ownership after such Acquisition, other than Debt permitted under Section 10.2.1 and no Liens will be incurred, assumed, or acquisition would exist with respect to exceed the assets of Borrower or its Subsidiaries as a result or such Acquisition other than Permitted Liens; and (l) both before and after giving effect to any such Acquisition, Modified Availability is greater than $50,000,000. In no event will assets acquired pursuant to a Permitted Acquisition constitute Eligible Accounts, Eligible Inventory or Eligible Semi-Finished Inventory prior to completion of a field examination and other due diligence acceptable to Agent in its discretionMaximum Percentage.

Permitted Acquisition. Neither Company shall nor shall any Acquisition by any Borrower in Guarantor (collectively, the "Loan Parties" and individually a transaction that satisfies each "Loan Party") acquire another Person or substantially all of the assets of another Person or make an Investment in another Person (any of the foregoing, an "Acquisition") except in accordance with and subject to the provisions of this subsection 6.4 and provided that such Loan Party satisfy the following requirements: minimum requirements (unless waived or otherwise permitted by Agent): (a) The Agent shall receive not less than fifteen (15) Business Days' prior written notice of such Acquisition, which notice shall include a reasonably detailed description of the proposed terms of such Acquisition is not a hostile acquisition or contested by and identify the Person to be acquired; anticipated closing date thereof; (b) the assets being acquired (other than a de minimis amount No Event of assets in relation Default shall exist prior to Borrower’s and its Subsidiaries’ total assets), or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the business of Borrower and its Subsidiaries or a business reasonably related thereto; (c) both before and after giving effect to such Acquisition, each Acquisition and the incurrence of any Revolving Loans or other Indebtedness in connection therewith; (c) Such Loan Party shall cause the representations Person acquired in any such Acquisition (the "Target") to guarantee the Obligations by executing and warranties delivering a guaranty substantially in the Loan Documents is true form and correct; substance as the Guaranties delivered by the Guarantors on the Closing Date; (d) no Default Such Target shall grant to Agent for the benefit of Lenders (i) a first priority perfected security interest in its accounts receivable and inventory, and (ii) unless otherwise consented to by the Required Lenders (such consent not to be unreasonably withheld) or Event of Default shall have occurred and be continuing or would result from the unless there is a valid pre-existing lien on such asset (i.e., a lien in effect prior to consummation of the Acquisition), a first priority perfected security interest in all other assets constituting Collateral, subject to Permitted Encumbrances securing Permitted Indebtedness; and (e) The Companies or Guarantors shall obtain the Required Lenders' prior written consent for the Acquisition in the event that: (i) excess Availability hereunder is less than $15,000,000 (taking into account the $5,000,000 reserve established in clause (c) of the definition of Borrowing Base): (x) on average for the thirty day period preceding any such Acquisition; (ey) as soon as available, but not less than 30 days prior to such Acquisition, on the Borrowers have provided Agent (i) notice date of such Acquisition and (ii) a copy of all available business and financial information reasonably requested by Agent including pro forma financial statements, statements of cash flow, and Availability projections; (f) not later than 15 Business Days prior to the anticipated closing date of such Acquisition, Borrowers shall have provided the Agent with copies of the acquisition agreement and other material documents relative to such Acquisition, which agreement and documents must be reasonably acceptable to Agent; (g) the aggregate purchase consideration payable (including deferred payment obligations, but excluding issuances of Equity Interests of Clearwater) in respect of all Acquisitions made during the term of this Agreement shall not exceed $50,000,000; (h) if such Acquisition is an acquisition of the Equity Interests of a Person, the Acquisition is structured so that the acquired Person shall become a wholly-owned Subsidiary of a Borrower and, in accordance with Section 10.1.9, an Obligor pursuant to the terms of this Agreement; (i) if such Acquisition is an acquisition of assets, the Acquisition is structured so that an Obligor (or a newly organized Subsidiary that becomes an Obligor) shall acquire such assets; (j) the assets being acquired (other than a de minimis amount of assets in relation to the assets being acquired) are located within the United States, or the Person whose Equity Interests are being acquired is organized in a jurisdiction located within the United States; (k) no Debt will be incurred, assumed, or would exist with respect to Borrower or its Subsidiaries as a result of such Acquisition, other than Debt permitted under Section 10.2.1 and no Liens will be incurred, assumed, or would exist with respect to the assets of Borrower or its Subsidiaries as a result or such Acquisition other than Permitted Liens; and (l) both before and after giving effect to any such Acquisition; and (z) on average for the thirty day period following any such Acquisition after giving effect to any such Acquisition. Such excess Availability requirement also requires that all of the Companies' debts, Modified Availability obligations and payables are then current consistent with past payment practices of the Companies; (ii) the Target is greater than $50,000,000acquired in a stock acquisition, or (iii) the acquired assets include real estate; provided however, that consent pursuant to clauses (ii) and (iii) hereof will not be unreasonably withheld. In no the event will assets acquired pursuant that the Required Lenders decline to a Permitted Acquisition constitute Eligible Accountsgive consent under either subsection (d)(ii) or subsections (e)(ii) or (e)(iii) of this Section 6.4, Eligible Inventory or Eligible Semi-Finished Inventory prior the Agent and Lenders hereby agree that the Companies shall have the right (but not the obligation) to completion of a field examination and other due diligence acceptable terminate the Financing Agreement without being required to Agent in its discretionpay the Early Termination Fee.