Common use of Permitted Acquisition Clause in Contracts

Permitted Acquisition. Any Acquisition by the Borrower or any other member of the Borrower Affiliated Group that meets each of the following criteria: (i) 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 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 wholly-owned direct or 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 and a member of the Borrower Affiliated Group (other than the Borrower), upon consummation of such merger, the 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 such information relating thereto as the Administrative Agent may reasonably request, (v) no Default or Event of Default shall exist, in each case both before and after giving effect to such Acquisition, (vi) the properties and assets acquired by the Borrower or other member of the Borrower Affiliated Group in connection with such proposed Acquisition shall be free from all liens, charges and encumbrances whatsoever, other than Permitted Encumbrances, (vii) upon consummation of the Acquisition, the Administrative Agent shall have a valid, perfected, first-priority security interest in all of the properties and assets being acquired by the Borrower or other member of the Borrower Affiliated Group subject to Permitted Encumbrances, and (viii) the aggregate consideration (including all cash and non-cash consideration and any assumption of Indebtedness) for all Acquisitions occurring after the Closing Date shall not exceed 15% of the Borrower's Consolidated Tangible Net Worth, determined as of the end of the most recently completed fiscal quarter of the Borrower.

Permitted Acquisition. Any any Acquisition by the any Borrower or any other member of the Borrower Affiliated Group in a transaction that meets satisfies each of the following criteriarequirements: (ia) such Acquisition is not a hostile acquisition or contested by the Person to be acquired; (b) the capital stock (or other equity interests) or assets being acquired in such Acquisition relates to a line of business similar to the business in which the Borrower Affiliated Group is 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 wholly-owned direct or 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 and a member of the Borrower Affiliated Group (other than the a de minimis amount of assets in relation to Borrower’s and its Subsidiaries’ total assets), upon consummation of such mergeror the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the surviving entity shall be business of Borrower and its Subsidiaries or 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, business reasonably related thereto; (ivc) the Borrower shall provide the Administrative Agent with at least 14 days' prior written notice of each such Acquisition and such information relating thereto as the Administrative Agent may reasonably request, (v) no Default or Event of Default shall exist, in each case both before and after giving effect to such Acquisition, each of the representations and warranties in the Loan Documents is true and correct; (vid) 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 properties and 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 by (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 other member its Subsidiaries as a result of the Borrower Affiliated Group in connection with such proposed Acquisition shall be free from all liens, charges and encumbrances whatsoeverAcquisition, 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 Encumbrances, Liens; and (viil) upon consummation of the both before and after giving effect to any such Acquisition, the Administrative 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 shall have a valid, perfected, first-priority security interest in all of the properties and assets being acquired by the Borrower or other member of the Borrower Affiliated Group subject to Permitted Encumbrances, and (viii) the aggregate consideration (including all cash and non-cash consideration and any assumption of Indebtedness) for all Acquisitions occurring after the Closing Date shall not exceed 15% of the Borrower's Consolidated Tangible Net Worth, determined as of the end of the most recently completed fiscal quarter of the Borrowerits discretion.

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 Documents”), including all schedules and exhibits thereto. The Permitted Acquisition Documents shall set forth the entire agreement and understanding of the 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 (including, any necessary member or comparable owner action) to authorize it, to execute, deliver and perform in accordance with their respective terms the Permitted Acquisition Documents to which it is a party. Each of the Permitted Acquisition Documents will have been duly executed and delivered by Borrower and, to Borrower’s knowledge, each of the other parties thereto and 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 enforcement of creditors’ rights generally. The execution, delivery and performance of the Permitted Acquisition Documents in accordance with their respective terms will not require any governmental approval or any other consent or approval, other than governmental approvals and other consents and approvals that have been obtained. All conditions precedent to the Permitted Acquisition pursuant to the Permitted Acquisition Documents shall have been fulfilled in all material respects and, as of the date of the consummation of the Permitted Acquisition, the Permitted Acquisition Documents shall not have 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 other member of Subsidiary to consummate any Permitted Acquisition and the Borrower Affiliated Group that meets each of the following criteria: (i) the capital stock (or other equity interests) or assets acquired in such Acquisition relates to a line of business similar foregoing representation shall only apply if, when and to the business in which the Borrower Affiliated Group extent that a Permitted Acquisition is engaged on the Closing Date, (ii) if required by applicable law, the board of directors consummated and the shareholders or the equivalent of such other Person has approved such Acquisition, (iii) in the case of an Permitted Acquisition of the capital stock (or other equity interests) of another Person, such Person shall become a wholly-owned direct or indirect Subsidiary of the Borrower or, in the case of a merger between the Borrower Documents are executed 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 the Borrower), upon consummation of such merger, the 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 such information relating thereto as the Administrative Agent may reasonably request, (v) no Default or Event of Default shall exist, in each case both before and after giving effect to such Acquisition, (vi) the properties and assets acquired by the Borrower or other member of the Borrower Affiliated Group in connection with such proposed Acquisition shall be free from all liens, charges and encumbrances whatsoever, other than Permitted Encumbrances, (vii) upon consummation of the Acquisition, the Administrative Agent shall have a valid, perfected, first-priority security interest in all of the properties and assets being acquired by the Borrower or other member of the Borrower Affiliated Group subject to Permitted Encumbrances, and (viii) the aggregate consideration (including all cash and non-cash consideration and any assumption of Indebtedness) for all Acquisitions occurring after the Closing Date shall not exceed 15% of the Borrower's Consolidated Tangible Net Worth, determined as of the end of the most recently completed fiscal quarter of the Borrowerdelivered.”

Permitted Acquisition. Any Acquisition 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 number of Equity Securities exceeding the Maximum Percentage after and solely because of (a) any action taken by the Borrower Company or any other member Affiliate of the Borrower Affiliated Group that meets each 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 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 following criteria: Shares in Equity Securities or Rights instead of cash) or (ib) the capital exercise by Hanlong of its rights to acquire Equity Securities of the Company pursuant to any provisions of the Securities Purchase Agreement, including Sections 6.4(d) and 8.5 of the Securities Purchase Agreement or (c) stock (or other equity interests) or assets acquired in such Acquisition relates to a line of business similar issued to the business in which Hanlong Parties under the Borrower Affiliated Group is 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 terms of the capital stock (or Bridge Loan Agreement; provided, however, that the Hanlong Parties shall be in breach of Section 2.1 if the Hanlong Parties and their Affiliates subsequently acquire additional Equity Securities other equity interests) of another Person, such Person shall become than as a wholly-owned direct or indirect Subsidiary result of the Borrower or, actions described in this Section 2.2 and their ownership after such acquisition would exceed 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 the Borrower), upon consummation of such merger, the 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 such information relating thereto as the Administrative Agent may reasonably request, (v) no Default or Event of Default shall exist, in each case both before and after giving effect to such Acquisition, (vi) the properties and assets acquired by the Borrower or other member of the Borrower Affiliated Group in connection with such proposed Acquisition shall be free from all liens, charges and encumbrances whatsoever, other than Permitted Encumbrances, (vii) upon consummation of the Acquisition, the Administrative Agent shall have a valid, perfected, first-priority security interest in all of the properties and assets being acquired by the Borrower or other member of the Borrower Affiliated Group subject to Permitted Encumbrances, and (viii) the aggregate consideration (including all cash and non-cash consideration and any assumption of Indebtedness) for all Acquisitions occurring after the Closing Date shall not exceed 15% of the Borrower's Consolidated Tangible Net Worth, determined as of the end of the most recently completed fiscal quarter of the BorrowerMaximum Percentage.

Permitted Acquisition. Any Acquisition by In the case of any Permitted Acquisition, the Borrower has delivered to Lender complete and correct copies of the Acquisition Agreement and each of the other documents and agreements executed in connection therewith (collectively, the “Acquisition Documents”), including all schedules and exhibits thereto not less than five (5) days prior to the consummation of such Permitted Acquisition. The Acquisition Documents set forth the entire agreement and understanding of the applicable Credit Party or Credit Parties and the parties thereto relating to the subject matter thereof, and there are no other agreements, arrangements or understandings, written or oral, relating to the matters covered thereby and the Permitted Acquisition shall be consummated in accordance with the terms of the Acquisition Documents without any amendment, waiver or supplement to the terms thereof which would be adverse to the applicable Credit Party in any material respect. Each applicable Credit Party has the power, and has taken all necessary action (including, any necessary member or comparable owner action) to authorize it, to execute, deliver and perform in accordance with their respective terms the Acquisition Documents to which it is a party. Each of the Acquisition Documents has been duly executed and delivered by each applicable Credit Party and, to Borrower’s knowledge, each of the other parties thereto and is a legal, valid and binding obligation of each applicable Credit Party and to Borrower’s knowledge, such other parties, enforceable against each such Credit Party 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 enforcement of creditors’ rights generally. The execution, delivery and performance of the Acquisition Documents in accordance with their respective terms does not and will not require any governmental approval or any other member consent or approval, other than governmental approvals and other consents and approvals that have been obtained. All conditions precedent to the Permitted Acquisition pursuant to the Acquisition Agreement have been fulfilled in all material respects and, as of the Borrower Affiliated Group that meets each date of the following criteria: (i) the capital stock (or other equity interests) or assets acquired in closing of such Permitted Acquisition relates to a line of business similar to the business in which the Borrower Affiliated Group is engaged on the Closing Date, (ii) if required by applicable law, the board of directors Acquisition Agreement has not been amended or otherwise modified and the shareholders or the equivalent of such other Person there 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 wholly-owned direct or indirect Subsidiary of been no breach by the Borrower or, in the case to Borrower’s knowledge, any other party thereto, of a merger between the Borrower and another Person, the Borrower shall be the surviving entity, any term or in the case of a merger between another Person and a member condition of the Borrower Affiliated Group (other than the Borrower), upon consummation of such merger, the 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 Acquisition Documents, (iv) the Borrower shall provide the Administrative Agent with at least 14 days' prior written notice of each such Acquisition and such information relating thereto as the Administrative Agent may reasonably request, (v) no Default or Event of Default shall exist, in each case both before and after giving effect to such Acquisition, (vi) the properties and assets acquired by the Borrower or other member of the Borrower Affiliated Group in connection with such proposed Acquisition shall be free from all liens, charges and encumbrances whatsoever, other than Permitted Encumbrances, (vii) upon . Upon consummation of the Acquisitiontransactions contemplated by the Acquisition Documents to be consummated at the closing thereunder, the Administrative Agent applicable Credit Party shall have a valid, perfected, first-priority security interest in all of acquire good and legal title to the properties and assets being acquired by transferred pursuant to the Borrower or other member of the Borrower Affiliated Group subject to Permitted Encumbrances, and (viii) the aggregate consideration (including all cash and non-cash consideration and any assumption of Indebtedness) for all Acquisitions occurring after the Closing Date shall not exceed 15% of the Borrower's Consolidated Tangible Net Worth, determined as of the end of the most recently completed fiscal quarter of the Borrower.Acquisition Agreement”

Permitted Acquisition. Any Acquisition The acquisition of any Person, business, division, or specified group of assets by the Borrower or any other member of its Subsidiaries, provided that (1) the Borrower Affiliated Group that meets Agent and the Majority Banks approve, in their sole discretion, such acquisition in writing in advance or (2) each of the following criteria: conditions is met; (ia) the capital stock (or other equity interests) or assets acquired in such Acquisition relates immediately prior to a line of business similar to the business in which the Borrower Affiliated Group is engaged on the Closing Dateand after, (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 Personafter giving effect to, such Person shall become a wholly-owned direct or indirect Subsidiary of the Borrower oracquisition, 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 the Borrower), upon consummation of such merger, the 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 such information relating thereto as the Administrative Agent may reasonably request, (v) no Default or Event of Default shall then exist, in each case both before and after giving effect to such Acquisition, ; (vib) the properties and assets acquired aggregate consideration paid or to be paid by the Borrower or other member any of the Borrower Affiliated Group its Subsidiaries in connection with all such proposed Acquisition shall be free from all liensacquisitions (whether in the form of cash, charges and encumbrances whatsoeverstock (as valued for the purposes of such acquisitions) or the assumption of Indebtedness for borrowed money, debt or other than Permitted Encumbrances, (vii) upon consummation of the Acquisition, the Administrative Agent shall have a valid, perfected, first-priority security interest in all of the properties and assets being acquired similar monetary obligations by the Borrower or other member any of its Subsidiaries (including such Indebtedness in existence prior to the date of any such acquisition which was not incurred in connection with or contemplation thereof)) shall not exceed $10,000,000; (c) such acquisition shall have been approved by the board of directors and shareholders, if required, of such Person; and (d) either (i) such acquisition is the acquisition of assets only (for use in substantially the same line of business as the line of business of the Borrower) or (ii) such acquisition involves the purchase of the capital stock or other equity interests of a Person and each of the following conditions is met: (A) such acquisition is the acquisition of one hundred percent (100%) of the capital stock or other equity interests of such Person. (B) such Person is in substantially the same line of business as the Borrower, (C) not less than ten (10) Business Days prior to such acquisition, the Borrower Affiliated Group subject to Permitted Encumbrancesshall notify the Banks thereof, and (viiiD) contemporaneously with the aggregate consideration occurrence of such acquisition, the Borrower shall (including I) cause such Person to guaranty all cash of the Obligations hereunder pursuant to a Guaranty in form and non-cash consideration substance satisfactory to the Agent, which such Guaranty shall be a Loan Document hereunder, and (II) cause such Person to deliver to the Banks and the Agent (aa) evidence of proper corporate authorization, and (bb) legal opinions with respect to each of the matters and documents set forth in this clause (D), in each case, in form and substance satisfactory to the Agent and the Banks. Person. Any individual, corporation, partnership, trust, unincorporated association, business, or other legal entity, and any assumption government or any governmental agency or political subdivision thereof. Real Estate. All real property at any time owned or leased (as lessee or sublessee) by the Borrower or any of Indebtedness) for all Acquisitions occurring after the Closing Date shall not exceed 15% of the Borrower's Consolidated Tangible Net Worth, determined as of the end of the most recently completed fiscal quarter of the Borrowerits Subsidiaries.

Permitted Acquisition. Any Acquisition acquisition by the Borrower B&N or any other member of the Borrower Affiliated Group that meets each of the following criteria: (i) the capital stock (or other equity interests) or assets acquired in such Acquisition 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 board of directors and the shareholders or the equivalent thereof, of such other Person has approved such Acquisitionacquisition, it being the intent that the acquisition be non-hostile in nature, (iii) in the case of an Acquisition of the capital stock (or other equity interests) of another Person, such Person shall become a wholly-owned direct or indirect Subsidiary of the Borrower or, in the case of a merger between the Borrower B&N and another Person, the Borrower 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 the BorrowerB&N), upon consummation of such merger, the 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 DocumentsB&N, (iv) the Borrower B&N shall provide the Administrative Agent with at least 14 days' prior written notice of each such Acquisition acquisition as soon as practicable, but in no event more than 5 days after the closing thereof and such information relating thereto as the Administrative Agent may reasonably requestrequest promptly after the request therefor, (v) no Default or Event of Default shall exist, in each case both before and after giving effect to such Acquisitionacquisition, (vi) the properties and assets acquired by the Borrower B&N or other member of the Borrower Affiliated Group in connection with such proposed Acquisition acquisition shall be free from all liens, charges and encumbrances whatsoever, other than Permitted Encumbrances, (vii) upon as soon as practicable, but in no event more than 10 Business Days after the consummation of the Acquisitionan acquisition (x) which results in a new, direct or indirect wholly-owned Domestic Subsidiary of B&N, the Administrative Agent shall have a valid, perfected, first-priority security interest in all the Accounts Receivable and Intellectual Property Rights and related assets of the properties and assets Person being acquired (consistent with the security interests in favor of the Administrative Agent on the Closing Date) by the Borrower B&N or other member of the Borrower Affiliated Group (subject to Permitted Encumbrances) and such Domestic Subsidiary shall become a party to the Subsidiary Security Documents, and (y) which is an acquisition of the Equity Securities in another Person, the Administrative Agent shall have a valid, perfected, first-priority pledge of the Equity Securities so acquired pursuant to a 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 Investments, together with all Acquisitions occurring Investments made pursuant to clause (viii) of the definition of Qualified Investments (but not any other provision of such definition), from and after the Closing Date November 2, 2003, shall not exceed 15exceed, when made, the sum of $105,000,000 plus 50% of the BorrowerBorrower Affiliated Group's Consolidated Tangible Net Worth, determined as of the end of the most recently completed fiscal quarter of the BorrowerCumulative Excess Cash Flow.

Permitted Acquisition. Any Acquisition acquisition by the Borrower or any other member of the Borrower Affiliated Group that meets each of the following criteria: (i) the capital stock (or other equity interests) or assets acquired in such Acquisition 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 board of directors and the shareholders or the equivalent thereof, of such other Person has approved such Acquisitionacquisition, it being the intent that the acquisition be non-hostile in nature, (iii) in the case of an Acquisition of the capital stock (or other equity interests) of another Person, such Person shall become a wholly-owned direct or 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 and a member of the Borrower Affiliated Group (other than the Borrower), upon consummation of such merger, the 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 DocumentsBorrower, (iv) the Borrower shall provide the Administrative Agent with at least 14 days' prior written notice of each such Acquisition acquisition as soon as practicable, but in no event more than 5 days after the closing thereof and such information relating thereto as the Administrative Agent may reasonably requestrequest promptly after the request therefor, (v) no Default or Event of Default shall exist, in each case both before and after giving effect to such Acquisitionacquisition, (vi) the properties and assets acquired by the Borrower or other member of the Borrower Affiliated Group in connection with such proposed Acquisition acquisition shall be free from all liens, charges and encumbrances whatsoever, other than Permitted Encumbrances, (vii) upon as soon as practicable, but in no event more than 10 Business Days after the consummation of an acquisition (x) which results in a new, direct or indirect wholly-owned Domestic Subsidiary of the AcquisitionBorrower, the Administrative Agent shall have a valid, perfected, first-priority security interest in all the Accounts Receivable and Intellectual Property Rights and related assets of the properties and assets 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 (subject to Permitted Encumbrances) and such Domestic Subsidiary shall become a party to the Subsidiary Security Documents, and (y) which is an acquisition of the Equity Securities in another Person, the Administrative Agent shall have a valid, perfected, first-priority pledge of the Equity Securities so acquired pursuant to a 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 Investments, together with all Acquisitions occurring Investments made pursuant to clause (viii) of the definition of Qualified Investments (but not any other provision of such definition), from and after the Closing Date shall not exceed 15exceed, when made, the sum of $225,000,000 plus 50% of the Borrower's Consolidated Tangible Net Worth, determined as of the end of the most recently completed fiscal quarter of the BorrowerCumulative Excess Cash Flow.

Permitted Acquisition. Any Acquisition by The definition of "Permitted Acquisition" set forth in Appendix A to the Borrower Participation Agreement is hereby amended and restated in its entirety to read as follows: "Permitted Acquisition" shall mean an acquisition or any other member series of related acquisitions by a GCA Credit Party of the Borrower Affiliated Group that meets each assets or all of the following criteria: (i) the capital stock (Capital Stock of a Person or other equity interests) or assets acquired in such Acquisition relates to a any division, line of business similar 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 which the Borrower Affiliated Group is engaged on same line of business) as the Closing Date, (ii) if required by applicable law, the board of directors GCA Credit Parties and the shareholders GCA Subsidiaries or the equivalent of such other Person has approved such Acquisition, (iii) in the case of an Acquisition whereby a substantial portion of the capital stock acquired business relies upon automated transactions, telephone representatives or telephony technology, so long as (or other equity interests) of another Person, such Person shall become a wholly-owned direct or 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 and a member of the Borrower Affiliated Group (other than the Borrower), upon consummation of such merger, the 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 such information relating thereto as the Administrative Agent may reasonably request, (va) no Default or Event of Default shall exist, in each case both before and then exist or would exist after giving effect to such Acquisition, thereto; (vib) the properties and assets acquired by Credit Parties shall demonstrate to the Borrower or other member reasonable satisfaction of the Borrower Affiliated Group 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 proposed Acquisition shall be free from all liens, charges and encumbrances whatsoever, other than Permitted Encumbrances, (viiacquisition) upon consummation of the Acquisition, the Administrative Agent shall have a valid, perfected, first-first priority perfected security interest in all of the properties Capital Stock acquired with respect to the Target and assets being acquired 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 Borrower or other member Board of Directors and/or shareholders of the Borrower Affiliated Group subject applicable GCA Credit Party and the public company Target; (e) after giving effect to Permitted Encumbrancessuch 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 (viiif) 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 a reasonably detailed description of the material terms of such acquisition (including, without limitation, the purchase price and method and structure of payment) and of each Target and (ii) greater than $100,000,000, the Parent shall have delivered to the Agent and each of the Primary Financing Parties not less than ten (10) Business Days prior to the consummation of such acquisition (A) a reasonably detailed description of the material terms of such acquisition (including, 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 been satisfied and the total consideration for all such Foreign Targets does not exceed $50,000,000 in the aggregate consideration (including all cash and non-cash consideration and any assumption during the term of Indebtedness) for all Acquisitions occurring after the Closing Date shall not exceed 15% of the Borrower's Consolidated Tangible Net Worth, determined as of the end of the most recently completed fiscal quarter of the Borrower.this Agreement. 27.4