Common use of Certain Acquisitions Clause in Contracts

Certain Acquisitions. (a) Subject to the remaining provisions of this Section 5.13 applicable thereto and the requirements contained in the definition of Permitted Acquisition, as the case may be, the Borrower may from time to time after the Closing Date effect Permitted Acquisitions or, with the written approval of the Required Lenders, other Acquisitions, so long as: (i) with respect to Acquisitions occurring in any one fiscal year (including all of fiscal year 2003), the total Cash Acquisition Amount payable with respect to all such Acquisitions, whether Permitted Acquisitions or other Acquisitions for which the Borrower has obtained the prior approval of the Required Lenders, shall not exceed $30,000,000 in the aggregate for any fiscal year; and (ii) with respect to each Acquisition, no Event of Default is in existence at the time of the consummation of such Acquisition or would exist after giving effect thereto. (b) At the time of each Acquisition involving the creation or acquisition of a Subsidiary, the acquisition of capital stock or other equity interest of any Person, all capital stock or other interest thereof created or acquired in connection with such Acquisition shall be directly or indirectly owned by the Borrower, and the Borrower shall have complied with Section 5.12. (c) No Acquisition may be effected unless: (i) The Borrower has provided to the Bank all financial statements available with respect to the Acquisition target, including without limitation all internally prepared and/or compiled statements and, if available, audited financial statements, together with Borrower's estimate of the Acquisition target's expected earnings and EBITDA contribution to the Borrower following completion of the Acquisition; (ii) calculations are made by the Borrower of compliance with the covenants contained in Sections 6.9 through 6.12, inclusive, for the most recent calculation period ended immediately prior to the date of such Acquisition, on a pro forma basis as if the Acquisition had occurred on the first day of such period, and shall show that all such covenants will be complied with, giving effect to the pro forma consolidation of the business acquired, and if such Acquisition involves a Cash Acquisition Amount of $6,000,000.00 or greater and/or otherwise requires approval of the Required Lenders, such calculations shall be reasonably satisfactory to the Administrative Agent; and (iii) the Borrower in good faith believes that the financial covenants contained in such Sections 6.9 through 6.12, inclusive, will continue to be met on a quarterly basis for the one year period following the date of the consummation of the Acquisition on a quarterly basis. (d) No later than ten (10) Business Days prior to the anticipated closing date of any Acquisition other than a Permitted Acquisition, the Borrower shall deliver to the Administrative Agent and each Lender a copy of the executed letter of intent for such proposed acquisition, the most recent draft of the acquisition agreement and, as soon as available (and in any event prior to the actual day of closing), the fully executed acquisition agreement (including schedules and exhibits thereto). With respect to Permitted Acquisitions, the Borrower will deliver to the Administrative Agent and each Lender a copy of the executed acquisition agreement (including schedules and exhibits thereto) within ten (10) days following the closing of each such Permitted Acquisition. (e) The consummation of each Acquisition subject to this Section shall be deemed to be a representation and warranty by the Borrower that all conditions thereto have been satisfied, that the same is permitted in accordance with the terms of this Agreement and that the information submitted by the Borrower pursuant to subsection (c) is true and correct as of the date such certificate is given, which representation and warranty shall be deemed to be a representation and warranty for all purposes hereunder, including, without limitation, for purposes of Sections 3.3 and 7.1. (f) Any Acquisition other than a Permitted Acquisition will require written approval of the Required Lenders.

Certain Acquisitions. (a) Subject to the remaining provisions of this Section 5.13 applicable thereto and the requirements contained in the definition of Permitted Acquisition, as and subject to the case may beother terms and conditions of this Agreement, the Borrower may from time to time after the Closing Amendment Effective Date effect Permitted Acquisitions orAcquisitions, provided that (unless consented to in writing by the Required Lenders): (a) With respect to each Permitted Acquisition financed, in whole or in part, with the written approval proceeds of the Required Lenders, other Acquisitions, so long as: (i) with respect to Acquisitions occurring in any one fiscal year (including all of fiscal year 2003)Revolving Credit/Term Loans, the total Cash Acquisition Amount payable conditions set forth in Section 2.2(a) shall be satisfied with respect to all Borrowings comprised of such Acquisitions, whether Permitted Acquisitions or other Acquisitions for which the Borrower has obtained the prior approval of the Required Lenders, shall not exceed $30,000,000 in the aggregate for any fiscal year; andRevolving Credit/Term Loans; (iib) with With respect to each Permitted Acquisition, no Default or Event of Default is in existence shall have occurred and be continuing at the time of the consummation of such Permitted Acquisition or would exist immediately after giving effect thereto.; (bc) At Not less than five (5) days prior to the time of each Acquisition involving the creation or acquisition of a Subsidiary, the acquisition of capital stock or other equity interest consummation of any PersonPermitted Acquisition with respect to which the Acquisition Amount is $12,000,000 or more, all capital stock or other interest thereof created or acquired in connection with such Acquisition shall be directly or indirectly owned by the Borrower, and the Borrower shall have complied with Section 5.12. delivered to the Agent (cand the Agent shall provide the Lenders) No Acquisition may be effected unlessthe following items: (i) The Borrower has provided to a reasonably detailed description of the Bank all financial statements available material terms of such Acquisition (including, without limitation, the purchase price and method and structure of payment) and of each Person or business that is the subject of such Permitted Acquisition (each, a "Target") and draft copies of the primary material acquisition documents (it being understood that, with respect to the Acquisition targetSatellite Acquisition, including without limitation all internally prepared and/or compiled statements and, if available, audited financial statements, together the Agent shall be satisfied in its reasonable discretion with Borrower's estimate the terms of the Acquisition target's expected earnings and EBITDA contribution to the Borrower following completion of the Acquisitiondefinitive acquisition documents); (ii) calculations historical financial statements of each Target for the two (2) most recent fiscal years available and for any interim periods since the most recent fiscal year-end for which such interim statements are made available; (iii) projected income statements with respect to each Target for the five- year period following the consummation of such Permitted Acquisition, in reasonable detail, together with any appropriate statement of assumptions and pro forma adjustments; and (iv) a certificate executed by the chief financial officer or Vice President-Finance of the Borrower setting forth the Borrower's good faith calculation of the Acquisition Amount (together with any supporting calculations) and further to the effect that, to the best of his knowledge, (A) the consummation of such Permitted Acquisition will not result in a violation of any provision of this Section 5.15, (B) after giving effect to any Borrowings made in connection therewith, the Borrower is in covenant compliance with the financial covenants contained in Sections 6.9 through 6.12, inclusive, for 6.16 at the most recent calculation period ended immediately prior taking into account the Borrowing (such calculations to be attached to the date of such Acquisition, on a pro forma basis as if the Acquisition had occurred on the first day of such period, certificate) and shall show that all such covenants will be complied with, giving effect to the pro forma consolidation of the business acquired, and if such Acquisition involves a Cash Acquisition Amount of $6,000,000.00 or greater and/or otherwise requires approval of the Required Lenders, such calculations shall be reasonably satisfactory to the Administrative Agent; and (iiiC) the Borrower believes in good faith believes that the such financial covenants contained in such Sections 6.9 through 6.12, inclusive, will continue to be met on a quarterly basis for the one one-year period following the date of the consummation of such Permitted Acquisition (such calculations to be based on the Acquisition on a quarterly basisprojections required by subparagraph (iii) above and attached to the certificate). (d) No later than ten Within forty-five (1045) Business Days prior to days after the anticipated closing date end of any Acquisition other than a Permitted Acquisitioneach fiscal quarter, the Borrower shall will deliver to the Administrative Agent and each Lender (i) with respect to any Permitted Acquisition during such fiscal quarter, a copy of the executed letter of intent for such proposed acquisition, the most recent draft of the acquisition agreement and, as soon as available (and in any event prior to the actual day of closing), the fully executed acquisition agreement (including schedules and exhibits thereto). With ) and (ii) with respect to any Permitted AcquisitionsAcquisition during such fiscal quarter with respect to which the Acquisition Amount is less than $12,000,000, the Borrower will deliver items described in clauses (i), (ii) and (iii) of subsection (c) above, each in form and substance reasonably satisfactory to the Administrative Agent and each Lender a copy of the executed acquisition agreement (including schedules and exhibits thereto) within ten (10) days following the closing of each such Permitted Acquisition. (e) Agent. The consummation of each Permitted Acquisition subject to this Section shall be deemed to be a representation and warranty by the Borrower that all conditions thereto have been satisfied, that the same is permitted in accordance with the terms of this Agreement and that the information submitted matters certified to by the chief financial officer of the Borrower pursuant in the certificate referred to in subsection (cc)(iv) is above are true and correct as of the date such certificate is given, which representation and warranty shall be deemed to be a representation and warranty for all purposes hereunder, including, without limitation, for purposes of Sections 3.3 and 7.1. (f) Any Acquisition other than a Permitted Acquisition will require written approval of the Required Lenders.

Certain Acquisitions. (a) Subject Not less than ten (10) days prior to the remaining provisions consummation of this Section 5.13 applicable thereto and the requirements contained in the definition of Permitted Acquisition, as the case may beany Acquisition for an Acquisition Amount greater than $5,000,000, the Borrower may from time shall deliver to time after the Closing Date effect Permitted Acquisitions orAgent and each Lender, with in form and substance reasonably satisfactory to the written approval Agent, an officer's certificate executed by a Chief Executive Officer or the Chief Financial Officer of the Required LendersBorrower, other Acquisitionsaccompanied by detailed calculations, so long as: that (i) with respect to Acquisitions occurring in any one fiscal year (including all of fiscal year 2003), the total Cash Acquisition Amount payable with respect to all such Acquisitions, whether Permitted Acquisitions or other Acquisitions for which the Borrower has obtained the prior approval of the Required Lenders, shall not exceed $30,000,000 in the aggregate for any fiscal year; and (ii) with respect to each Acquisition, no Event of Default is in existence at the time of the consummation of such Acquisition or would exist after giving effect thereto. (b) At the time of each Acquisition involving the creation or acquisition of will not result in a Subsidiary, the acquisition of capital stock or other equity interest violation of any Person, all capital stock provision of this Agreement and no Default or other interest thereof created Event of Default exists or acquired in connection with will exist as a result of such Acquisition shall be directly or indirectly owned by the BorrowerAcquisition, and the Borrower shall have complied with Section 5.12. (c) No Acquisition may be effected unless: (i) The Borrower has provided to the Bank all financial statements available with respect to the Acquisition target, including without limitation all internally prepared and/or compiled statements and, if available, audited financial statements, together with Borrower's estimate of the Acquisition target's expected earnings and EBITDA contribution to the Borrower following completion of the Acquisition; (ii) calculations are made by the Borrower of confirming compliance with the covenants contained in Sections SECTIONS 6.9 through 6.126.14, inclusive, for the most recent calculation period ended immediately prior to the date of such Acquisition, on a pro forma basis as if the such Acquisition had occurred on the first day of such period. (b) Within ten (10) days after the closing of each Acquisition for an Acquisition Amount in excess of $5,000,000, the Borrower will deliver to the Agent and each Lender (i) a reasonably detailed description of the nature and line of business, and shall show the material terms of such Acquisition (including, without limitation, the purchase price and method and structure of payment) of each Person or business that all is the subject of such covenants will be complied withAcquisition (each, giving effect a "Target"); (ii) to the pro forma consolidation extent available, historical financial statements of each Target for the business acquired, two (2) most recent fiscal years available and if for any interim periods since the most recent fiscal year-end for which such Acquisition involves a Cash Acquisition Amount of $6,000,000.00 or greater and/or otherwise requires approval of the Required Lenders, such calculations shall be reasonably satisfactory to the Administrative Agentinterim statements are available; and (iii) the Borrower in good faith believes that the financial covenants contained in such Sections 6.9 through 6.12, inclusive, will continue projected income statements with respect to be met on a quarterly basis each Target for the one two-year period following the date of the consummation of the Acquisition on a quarterly basissuch Acquisition, together with any appropriate statement of assumptions and pro forma adjustments. (dc) No later than Within ten (10) Business Days prior to days after the anticipated closing date of any Acquisition other than a Permitted each Acquisition, the Borrower shall will deliver to the Administrative Agent and each Lender a copy of the executed letter of intent for such proposed acquisition, the most recent draft of the acquisition agreement and, as soon as available (and in any event prior to the actual day of closing), the fully executed acquisition agreement (including schedules and exhibits thereto). With respect to Permitted Acquisitions. (d) Within thirty (30) days after the closing of a Acquisition for an Acquisition Amount less than $5,000,000, but greater than $2,000,000, the Borrower will shall deliver to the Administrative Agent and each Lender a copy of Lenders the executed acquisition agreement (including schedules and exhibits theretoinformation listed in subsection B(I) within ten (10) days following the closing of each such Permitted Acquisitionabove. (e) Acquisitions involving Borrowings may be effected by the Borrower and its Restricted Subsidiaries in compliance with Section 2.2(a)(ii) hereof. (f) The consummation of each Acquisition subject to this Section shall be deemed to be a representation and warranty by the Borrower that all conditions thereto have been satisfied, that no default or Event of Default exists or will exist as a result of such Acquisition, that any applicable conditions of SECTION 5.12 have been satisfied, that the same is permitted in accordance with the terms of this Agreement and that the information submitted by the Borrower pursuant to subsection (cA) above, if any, is true and correct as of the date such certificate is given, which representation and warranty shall be deemed to be a representation and warranty for all purposes hereunder, including, without limitation, for purposes of Sections SECTIONS 3.3 and 7.17. (f) Any Acquisition other than a Permitted Acquisition will require written approval of the Required Lenders.

Certain Acquisitions. (a) Subject In the event of a Competing Acquisition that results in the ITG Group either (x) discontinuing or being unable to continue the use, marketing and distribution of the System in a manner substantially similar to the remaining provisions of this Section 5.13 applicable thereto marketing and the requirements contained in the definition of Permitted Acquisition, as the case may be, the Borrower may from time to time after the Closing Date effect Permitted Acquisitions or, with the written approval distribution of the Required LendersSystem prior to the Competing Acquisition or (y) replacing the use of the System with a competing system (each, other Acquisitions, so long as: (i) with respect to Acquisitions occurring in any one fiscal year (including all of fiscal year 2003a “Competing Acquisition Event”), the total Cash Acquisition Amount payable with respect to all such Acquisitions, whether Permitted Acquisitions or other Acquisitions for which the Borrower has obtained the prior approval of the Required Lenders, shall not exceed $30,000,000 in the aggregate for any fiscal year; and (ii) with respect to each Acquisition, no Event of Default is in existence at the time of the consummation of such Acquisition or would exist after giving effect thereto. (b) At the time of each Acquisition involving the creation or acquisition of a Subsidiary, the acquisition of capital stock or other equity interest of any Person, all capital stock or other interest thereof created or acquired in connection with such Acquisition shall be directly or indirectly owned by the Borrower, and the Borrower shall have complied with Section 5.12. (c) No Acquisition may be effected unlessthen: (i) The Borrower has provided to Purchaser shall promptly notify the Bank all financial statements available with respect to the Acquisition target, including without limitation all internally prepared and/or compiled statements and, if available, audited financial statements, together with Borrower's estimate Selling Stockholders of the Competing Acquisition target's expected earnings and EBITDA contribution to the Borrower following completion of the Acquisition;Event in writing. (ii) calculations are made by To the Borrower of compliance with the covenants contained in Sections 6.9 through 6.12, inclusive, for the most recent calculation period ended immediately extent such Competing Acquisition Event has occurred prior to the Expiration Date, the Option has not been exercised and no Change of Control Event shall have occurred, then (1) The License Agreement shall become non-exclusive and shall be terminable by the Company at any time upon six months notice pursuant to Section 2 of the License Agreement, (2) the Purchaser and the Company shall give joint instructions to the source code escrow agent to terminate the Source Code Escrow Agreement, (3) the Option shall terminate and the Expiration Date shall be the date of such Acquisitionthe Competing Acquisition Event, on and (4) the Purchaser shall pay a pro forma basis as if purchase price adjustment to the Acquisition had occurred Company towards the purchase of Purchased Shares equal to the higher of (x) $1,000,000 and (y) 25% of the aggregate Gross Revenues for the period beginning on the first day of such period, date hereof and shall show that all such covenants will be complied with, giving effect to ending on the pro forma consolidation date of the business acquiredCompeting Acquisition Event; provided that, and if Gross Revenues have not exceeded $1,250,000 within the first six calendar months, or $2,500,000 within the first nine calendar months, from the Closing Date, as applicable, then no such Acquisition involves a Cash Acquisition Amount of $6,000,000.00 or greater and/or otherwise requires approval purchase price adjustment shall be paid. (B) The Company shall have an option, for six months from the date of the Required LendersCompeting Acquisition Event, such calculations shall be reasonably satisfactory to repurchase the Administrative Agent; andPurchased Shares from the Purchaser for $750,000. (iii) To the Borrower extent such Competing Acquisition Event has occurred prior to the fourth Additional Payment Calculation Date, the Option has been exercised and no Change of Control Event shall have occurred, then (A) No further Additional Option Payment Amounts shall be paid (including any Additional Option Payment Amounts accrued but unpaid) unless the sum of such unpaid amounts calculated in good faith believes that accordance with Section 2.5 is higher than the financial covenants contained amounts paid pursuant to (B) below in such Sections 6.9 through 6.12, inclusive, will continue which case the difference between the two shall be paid to be met the Selling Stockholders on a quarterly basis for the one year period following the date of the consummation of the Acquisition on a quarterly basisFinal Payment Date. (dB) No later The Purchaser shall pay to each of the Selling Stockholders their pro rata share based on the number of Option Shares sold by each Selling Stockholder: (1) if the Option Exercise Price was $4 million or more, but less than ten $6 million, $12 million, (102) Business Days if the Option Exercise Price was $6 million or more, but less than $9 million, $16 million, and (3) if the Option Exercise Price was $9 million or more, $18 million. In each case less (x) the Option Exercise Price and (y) any Additional Option Payment Amounts actually paid. (C) Subject to the terms of the Escrow Agreement, the Escrow Fund shall be released by the Escrow Agent to the Selling Stockholders. (b) In the event that ITG Group enters into negotiations (but not a binding contract) for a Competing Acquisition prior to the anticipated closing date of any Acquisition other than a Permitted AcquisitionExpiration Date, the Borrower Option has not been exercised and no Change of Control Event shall deliver have occurred, then the Purchaser shall promptly notify the Company of such fact in writing and the License Agreement shall become non-exclusive pursuant to the Administrative Agent and each Lender a copy Section 2 of the executed letter of intent for such proposed acquisition, the most recent draft of the acquisition agreement and, as soon as available (and in any event prior to the actual day of closing), the fully executed acquisition agreement (including schedules and exhibits thereto). With respect to Permitted Acquisitions, the Borrower will deliver to the Administrative Agent and each Lender a copy of the executed acquisition agreement (including schedules and exhibits thereto) within ten (10) days following the closing of each such Permitted AcquisitionLicense Agreement. (e) The consummation of each Acquisition subject to this Section shall be deemed to be a representation and warranty by the Borrower that all conditions thereto have been satisfied, that the same is permitted in accordance with the terms of this Agreement and that the information submitted by the Borrower pursuant to subsection (c) is true and correct as of the date such certificate is given, which representation and warranty shall be deemed to be a representation and warranty for all purposes hereunder, including, without limitation, for purposes of Sections 3.3 and 7.1. (f) Any Acquisition other than a Permitted Acquisition will require written approval of the Required Lenders.

Certain Acquisitions. (a) Subject to the remaining provisions of this Section 5.13 applicable thereto and the requirements contained in the definition of Permitted Acquisition, as and subject to the case may beother terms and conditions of this Agreement, the Borrower may from time to time after the Closing Date effect Permitted Acquisitions orAcquisitions, provided that (unless consented to in writing by the Required Lenders): (a) With respect to each Permitted Acquisition financed, in whole or in part, with the written approval proceeds of the Required Lenders, other Acquisitions, so long as: (i) with respect to Acquisitions occurring in any one fiscal year (including all of fiscal year 2003)Revolving Credit/Term Loans, the total Cash Acquisition Amount payable conditions set forth in Section 2.2(a) shall be satisfied with respect to all Borrowings comprised of such Acquisitions, whether Permitted Acquisitions or other Acquisitions for which the Borrower has obtained the prior approval of the Required Lenders, shall not exceed $30,000,000 in the aggregate for any fiscal year; andRevolving Credit/Term Loans; (iib) with With respect to each Permitted Acquisition, no Default or Event of Default is in existence shall have occurred and be continuing at the time of the consummation of such Permitted Acquisition or would exist immediately after giving effect thereto.; (bc) At Not less than five (5) days prior to the time of each Acquisition involving the creation or acquisition of a Subsidiary, the acquisition of capital stock or other equity interest consummation of any PersonPermitted Acquisition with respect to which the Acquisition Amount is $12,000,000 or more, all capital stock or other interest thereof created or acquired in connection with such Acquisition shall be directly or indirectly owned by the Borrower, and the Borrower shall have complied with Section 5.12. delivered to the Agent (cand the Agent shall provide the Lenders) No Acquisition may be effected unlessthe following items: (i) The Borrower has provided to the Bank all financial statements available with respect to the Acquisition target, including without limitation all internally prepared and/or compiled statements and, if available, audited financial statements, together with Borrower's estimate a reasonably detailed description of the material terms of such Acquisition target's expected earnings (including, without limitation, the purchase price and EBITDA contribution to method and structure of payment) and of each Person or business that is the Borrower following completion subject of such Permitted Acquisition (each, a "Target") and draft copies of the Acquisitionprimary material acquisition documents; (ii) calculations historical financial statements of each Target for the two (2) most recent fiscal years available and for any interim periods since the most recent fiscal year-end for which such interim statements are made available; (iii) projected income statements with respect to each Target for the five- year period following the consummation of such Permitted Acquisition, in reasonable detail, together with any appropriate statement of assumptions and pro forma adjustments; and (iv) a certificate executed by the chief financial officer or Vice President-Finance of the Borrower setting forth the Borrower's good faith calculation of the Acquisition Amount (together with any supporting calculations) and further to the effect that, to the best of his knowledge, (A) the consummation of such Permitted Acquisition will not result in a violation of any provision of this Section 5.15, (B) after giving effect to any Borrowings made in connection therewith, the Borrower is in covenant compliance with the financial covenants contained in Sections 6.9 through 6.12, inclusive, for 6.16 at the most recent calculation period ended immediately prior taking into account the Borrowing (such calculations to be attached to the date of such Acquisition, on a pro forma basis as if the Acquisition had occurred on the first day of such period, certificate) and shall show that all such covenants will be complied with, giving effect to the pro forma consolidation of the business acquired, and if such Acquisition involves a Cash Acquisition Amount of $6,000,000.00 or greater and/or otherwise requires approval of the Required Lenders, such calculations shall be reasonably satisfactory to the Administrative Agent; and (iiiC) the Borrower believes in good faith believes that the such financial covenants contained in such Sections 6.9 through 6.12, inclusive, will continue to be met on a quarterly basis for the one one-year period following the date of the consummation of such Permitted Acquisition (such calculations to be based on the Acquisition on a quarterly basisprojections required by subparagraph (iii) above and attached to the certificate). (d) No later than ten Within forty-five (1045) Business Days prior to days after the anticipated closing date end of any Acquisition other than a Permitted Acquisitioneach fiscal quarter, the Borrower shall will deliver to the Administrative Agent and each Lender (i) with respect to any Permitted Acquisition during such fiscal quarter, a copy of the executed letter of intent for such proposed acquisition, the most recent draft of the acquisition agreement and, as soon as available (and in any event prior to the actual day of closing), the fully executed acquisition agreement (including schedules and exhibits thereto). With ) and (ii) with respect to any Permitted AcquisitionsAcquisition during such fiscal quarter with respect to which the Acquisition Amount is less than $12,000,000, the Borrower will deliver items described in clauses (i), (ii) and (iii) of subsection (C) above, each in form and substance reasonably satisfactory to the Administrative Agent and each Lender a copy of the executed acquisition agreement (including schedules and exhibits thereto) within ten (10) days following the closing of each such Permitted Acquisition. (e) Agent. The consummation of each Permitted Acquisition subject to this Section shall be deemed to be a representation and warranty by the Borrower that all conditions thereto have been satisfied, that the same is permitted in accordance with the terms of this Agreement and that the information submitted matters certified to by the chief financial officer of the Borrower pursuant in the certificate referred to in subsection (cc)(iv) is above are true and correct as of the date such certificate is given, which representation and warranty shall be deemed to be a representation and warranty for all purposes hereunder, including, without limitation, for purposes of Sections 3.3 and 7.1. (f) Any Acquisition other than a Permitted Acquisition will require written approval of the Required Lenders.