CHANGE IN CONTROL AGREEMENT
COVERING EXECUTIVE OFFICERS OF THE BORROWER, AS WELL AS ALL COLLECTIVE
BARGAINING AGREEMENTS OR OTHER LABOR AGREEMENTS COVERING ANY EMPLOYEES OF THE
BORROWER.
SECTION 4.
CONDITIONS OF CLOSING/LENDING.
4.1.
CONDITIONS PRECEDENT TO INITIAL LOAN ON THE CLOSING DATE.
THE
OBLIGATION OF THE AGENT AND LENDERS TO EXECUTE THIS AGREEMENT AND THE
OBLIGATIONS OF THE LENDERS TO MAKE THE INITIAL LOAN HEREUNDER IS SUBJECT TO THE
CONDITIONS SET FORTH BELOW:
(A)
THIS AGREEMENT, ALL RELATED SCHEDULES, THE PLEDGE AGREEMENT, THE
SUBSIDIARY GUARANTIES, AND SUCH OTHER LOAN DOCUMENTS, INSTRUMENTS, SCHEDULES,
EXHIBITS OR CERTIFICATES AS SHALL BE DESIGNATED BY THE AGENT SHALL HAVE BEEN
EXECUTED BY THE BORROWER AND THE OTHER PARTIES THERETO AND DELIVERED TO THE
AGENT;
(B)
THE PRO-FORMA COMPLIANCE CERTIFICATE, BASED ON THE BORROWER'S
SEPTEMBER 30, 2003 FINANCIAL STATEMENTS SHALL HAVE BEEN DELIVERED TO THE AGENT;
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(C)
THE AGENT SHALL HAVE RECEIVED ALL OTHER INFORMATION AND DOCUMENTS
WHICH THE AGENT OR ITS COUNSEL REASONABLY REQUIRED IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, SUCH INFORMATION AND DOCUMENTS
WHERE APPROPRIATE TO BE CERTIFIED BY THE PROPER OFFICERS OF THE BORROWER, ITS
SUBSIDIARIES OR GOVERNMENTAL AUTHORITIES.
(D)
THE AGENT SHALL HAVE RECEIVED FROM THE BORROWER A SOLVENCY
CERTIFICATE, WHICH SHALL BE SATISFACTORY IN ALL RESPECTS IN THE SOLE DISCRETION
OF THE AGENT;
(E)
THE AGENT SHALL HAVE RECEIVED SATISFACTORY EVIDENCE THAT THE
BORROWER IS TAKING ALL APPROPRIATE STEPS TO TERMINATE THE FINANCING STATEMENTS
IDENTIFIED ON SCHEDULE 4.1(E) HERETO;
(F)
THE AGENT SHALL HAVE RECEIVED THE FAVORABLE OPINION OF GOODWIN
PROCTER LLP IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE AGENT AND DATED
AS OF THE CLOSING DATE;
(G)
THE AGENT SHALL HAVE RECEIVED A COMPLETED COMPLIANCE CERTIFICATE,
CURRENT THROUGH THE IMMEDIATELY PRECEDING QUARTER-END SHOWING THE WORKING
CAPITAL IN AN AMOUNT EQUAL TO OR GREATER THAN THE REVOLVING CREDIT LOANS
REQUESTED ON THE CLOSING DATE;
(H)
THE BORROWER SHALL HAVE PAID IN FULL ALL INVOICED COSTS AND
EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) INCURRED ON BEHALF OF THE AGENT
IN CONNECTION WITH THIS AGREEMENT, WHICH AMOUNTS MAY BE PAID WITH THE PROCEEDS
OF THE INITIAL REVOLVING CREDIT LOAN;
(I)
THE BORROWER SHALL HAVE PAID TO THE AGENT THE FULL AMOUNT OF THE
ORIGINATION FEE SET FORTH IN SUBSECTION 1.5(C) AND THE AGENT FEE SET FORTH IN
SUBSECTION 1.5(D) OF THIS AGREEMENT, WHICH AMOUNTS MAY BE PAID WITH THE PROCEEDS
OF THE INITIAL REVOLVING CREDIT LOAN;
(J)
THE AGENT SHALL HAVE RECEIVED A CERTIFICATE DATED AS OF THE
CLOSING DATE, SIGNED BY THE CHIEF EXECUTIVE OFFICER, CHIEF FINANCIAL OFFICER OR
SUCH OTHER EXECUTIVE OFFICER OF BORROWER AS MAY BE REASONABLY ACCEPTABLE TO
AGENT, CERTIFYING THAT (I) THE CONDITIONS PRECEDENT SPECIFIED IN THIS SUBSECTION
4.1 HAVE BEEN FULFILLED; (II) THE REPRESENTATIONS AND WARRANTIES OF THE BORROWER
AND ITS SUBSIDIARIES CONTAINED IN THIS AGREEMENT AND IN EACH OF THE OTHER LOAN
DOCUMENTS AND THE SCHEDULES TO THIS AGREEMENT DELIVERED AS OF THE CLOSING DATE,
ARE TRUE, COMPLETE AND CORRECT AS OF THE CLOSING DATE; (III) NO EVENT OR
CONDITION HAS