SUITE 200
BERWYN, PA 19312
ATTENTION:
DANIEL C. TAKOUSHIAN
TELEPHONE:
(610) 725-5754
FACSIMILE:
(610) 725-5799
13.
CONDITIONS PRECEDENT.
AGENT'S AND LENDERS' PERFORMANCE HEREUNDER
IS CONTINGENT UPON EACH OF THE FOLLOWING:
(A)
EVIDENCE, IN FORM AND CONTENT SATISFACTORY TO AGENT, THAT BORROWER
HAS MINIMUM LIQUIDITY OF AT LEAST $10,000,000.00 AS OF THE DATE HEREOF.
(B)
AGENT SHALL HAVE RECEIVED EVIDENCE, IN FORM AND CONTENT
SATISFACTORY TO AGENT, THAT BORROWER HAS ACHIEVED EBITDA OF AT LEAST
$9,000,000.00 FOR THE TRAILING TWELVE (12) MONTH PERIOD ENDED SEPTEMBER 30,
2005.
(C)
AGENT SHALL HAVE RECEIVED, BORROWER'S PROJECTIONS FOR ITS FISCAL
YEAR ENDING DECEMBER 31, 2006, AS REQUIRED BY SECTION 9.2 OF THE LOAN AGREEMENT.
(D)
AGENT SHALL HAVE RECEIVED OF A FULLY EXECUTED AMENDED AND RESTATED
NOTE ("A&R NOTE") WHICH SHALL BE IN THE FORM ATTACHED HERETO AS EXHIBIT A.
22
(E)
AGENT SHALL HAVE RECEIVED A CLOSING CERTIFICATE SIGNED BY THE
CHIEF FINANCIAL OFFICER OF BORROWER DATED AS OF THE DATE HEREOF, STATING THAT
(I) ALL REPRESENTATIONS AND WARRANTIES SET FORTH IN THE LOAN AGREEMENT AND THE
OTHER DOCUMENTS ARE TRUE AND CORRECT ON AND AS OF SUCH DATE, (II) BORROWER IS ON
SUCH DATE IN COMPLIANCE WITH ALL THE TERMS AND PROVISIONS SET FORTH IN THE LOAN
AGREEMENT AND THE OTHER DOCUMENTS, AND (III) ON SUCH DATE NO DEFAULT OR EVENT OF
DEFAULT HAS OCCURRED OR IS CONTINUING.
(F)
AGENT SHALL HAVE RECEIVED THE EXECUTED LEGAL OPINION OF PEPPER
HAMILTON LLP IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO AGENT WHICH SHALL
COVER SUCH MATTERS INCIDENT TO THE TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT,
THE A&R NOTE, THE OTHER DOCUMENTS, AND RELATED AGREEMENTS AS AGENT MAY
REASONABLY REQUIRE.
(G)
AGENT SHALL HAVE RECEIVED A LANDLORD'S WAIVER AGREEMENT REASONABLY
SATISFACTORY TO AGENT WITH RESPECT TO ALL OF BORROWER'S OFFICES.
(H)
AGENT SHALL HAVE RECEIVED IN FORM AND SUBSTANCE SATISFACTORY TO
AGENT, CERTIFICATES AND EVIDENCE OF BORROWER'S CASUALTY INSURANCE AND LIABILITY
INSURANCE IN FORM AND CONTENT REASONABLY SATISFACTORY TO AGENT.
(I)
SEARCHES OF UNIFORM COMMERCIAL CODE ("UCC") FILINGS IN THE
JURISDICTION OF THE CHIEF EXECUTIVE OFFICE OF BORROWER, THE JURISDICTION OF
BORROWER'S ORGANIZATION AND SUCH OTHER JURISDICTIONS WHERE COLLATERAL IS
LOCATED, COPIES OF THE FINANCING STATEMENTS ON FILE IN SUCH JURISDICTIONS AND
EVIDENCE THAT THERE ARE NO LIENS, SECURITY INTERESTS OR JUDGMENTS IN FAVOR OF
THIRD PARTIES WITH RESPECT TO BORROWER OR ANY COLLATERAL OTHER THAN PERMITTED
ENCUMBRANCES.
14.
WAIVER.
AGENT HEREBY WAIVES ANY EVENT OF DEFAULT RESULTING SOLELY
FROM (A) BORROWER'S FAILURE TO COMPLY WITH THE TANGIBLE NET WORTH COVENANT IN
SECTION 6.5 OF THE LOAN AGREEMENT FOR THE DECEMBER 31, 2004 AND MARCH 31, 2005
TEST PERIODS AND (B) BORROWER'S FAILURE TO DELIVER THE SCHEDULES AND REPORTS
REQUIRED BY SECTION 9.2 OF THE LOAN AGREEMENT FOR THE PERIOD FROM MARCH 31, 2005
THROUGH AND INCLUDING THE DATE HEREOF.
THE FOREGOING WAIVER RELATES SOLELY TO
COMPLIANCE WITH THE SPECIFIC ITEMS DESCRIBED IN THE PRECEDING SENTENCE FOR THE
SPECIFIC PERIODS SET FORTH IN THE PRECEDING SENTENCE AND DOES NOT CONSTITUTE A
WAIVER OF OR AN