Documents and Fees. The Lender shall have received the following, in form and substance satisfactory to the Lender: (i) payment by the Borrowers of a $40,000 origination fee with respect to the increase in the Revolving Credit Facility and the additional Term Loans effected by this Amendment (which amount the Borrowers hereby irrevocably authorize the Lender to charge to any account of the Borrowers (or an individual Borrower)) maintained with the Lender; (ii) counterparts of this Amendment duly executed by the Borrowers, together with the Consent and Confirmation attached hereto duly executed by the Guarantor; (iii) a Revolving Credit Note in the form attached hereto as ANNEX 1, duly executed and delivered by each Borrower to the order of the Lender; (iv) the Term Notes in respect of Term Loan B and Term Loan C in the form attached hereto as Exhibit A-3, duly executed and delivered by the Borrowers to the order of the Lender; (v) certified copies of the articles of incorporation and by-laws of each Borrower as in effect on the Amendment No. 5 Effective Date and all corporate action, including shareholder approval, if necessary, taken by each Borrower or its shareholders to authorize the transactions contemplated by this Amendment and the THM Acquisition and the incumbency of officers of each Borrower; (vi) a certificate of the chief operating officer, president, vice president-finance or other officers reasonably acceptable to the Lender of each of the Borrowers stating that, to the best of his knowledge and based on an examination sufficient to enable him to make an informed statement, (A) both before and after giving effect to this Amendment and the THM Acquisition, all of the representations and warranties made or deemed to be made under the Loan Agreement are true and correct as of the Amendment No. 5 Effective Date, (B) both before and after giving effect to this Amendment and the THM Acquisition, no Default or Event of Default exists; (C) there has not occurred any material adverse change since December 31, 1997 in the business, assets, operations, condition (financial or otherwise) or prospects of any Borrower prior to the Amendment No. 5 Effective Date; and (D) there does not exist any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that purports to affect adversely any Borrower or the THM Acquisition, or that could have a material adverse effect on any Borrower or the THM Acquisition or on the ability of the Borrowers to perform their obligations under the Loan Documents as amended. (vii) a certificate evidencing the good standing of THM in the jurisdiction of its incorporation and in each other jurisdiction in which it is qualified as a foreign corporation to transact business; (viii) Financing Statements duly executed and delivered by THM; (ix) a Mortgage duly executed and delivered by THM with respect to property of THM located at 300 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Mebane, North Carolina in proper form for the recording of such instrument in Alamance County, North Carolina; (x) a fully paid endorsement to the mortgagee title insurance policy relating to such Mortgage of THM or, at the option of the Lender, an unconditional commitment for the issuance thereof with all requirements and conditions to the issuance of the final endorsement deleted or marked satisfied, issued by a title insurance company satisfactory to the Lender, confirming that such Mortgage creates a valid first lien on, and security title to, all Real Estate described therein as security for the Secured Obligations; (xi) certificates or binders of insurance relating to each of the policies of insurance covering any of the Collateral owned by THM together with loss payable clauses which comply with the terms of Section 7.9 of the Loan Agreement; (xii) evidence satisfactory to the Lender of the release and termination of (or agreement to release and terminate) all Liens relating to THM's property other than Permitted Liens; (xiii) a signed opinion of Moor▇ & ▇an ▇▇▇▇▇, ▇▇unsel for the Borrowers, and such local counsel as the Lender shall deem necessary and desirable, opining as to such matters in connection with this Amendment as the Lender or its counsel may reasonably request; and (xiv) updated Schedules to the Loan Agreement and the Loan Documents, as necessary, revised to reflect the THM Acquisition and any other changes since March 13, 1998; and (xv) such other documents and instruments as the Lender may reasonably request.
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Documents and Fees. The Lender Administrative Agent’s counsel shall have received received:
a. counterparts hereof, duly executed by each of the followingparties hereto,
b. counterparts of a new Fee Letter dated as of the date hereof, duly executed by each of the parties thereto;
c. a fully executed copy of that certain Assignment Agreement, entered into as of the date hereof and effective prior to this Amendment, by and among Liberty Street Funding LLC (“Liberty Street Funding”), as assigning conduit purchaser, The Bank of Nova Scotia (“Scotiabank”), as assigning committed purchaser, Rabobank, as assignee committed purchaser, Nieuw Amsterdam Receivables Corporation, as assignee conduit purchaser, and the SPE;
d. a fully executed copy of that certain Assignment Agreement, entered into as of the date hereof and effective prior to this Amendment, by and among Liberty Street Funding, as assigning conduit purchaser, Scotiabank, as assigning committed purchaser and as Liberty Street Administrator, BMO, as assignee committed purchaser, the Fairway Administrator, Fairway, as assignee conduit purchaser, and the SPE;
e. opinions of counsel to the Originators, the SPE, the Servicer and the Performance Guarantor in form and substance reasonably satisfactory to the Lender:
(i) payment by Administrative Agent and the Borrowers Administrators covering customary corporate, limited liability company, enforceability and Uniform Commercial Code matters, as well as the existence of a $40,000 origination fee true sale under the Sale Agreement and substantive non-consolidation of the SPE with respect to the increase in Originators, the Revolving Credit Facility Servicer and the additional Term Loans effected by this Amendment (which amount the Borrowers hereby irrevocably authorize the Lender to charge to any account of the Borrowers (or an individual Borrower)) maintained with the LenderPerformance Guarantor;
(ii) counterparts of this Amendment duly f. new Subordinated Notes executed by the Borrowers, together with the Consent and Confirmation attached hereto duly executed by the Guarantor;
(iii) a Revolving Credit Note SPE in the form attached hereto as ANNEX 1, duly executed and delivered by each Borrower to the order of the Lender;
(iv) the Term Notes in respect of Term Loan B and Term Loan C in the form attached hereto as Exhibit A-3, duly executed and delivered by the Borrowers to the order of the Lender;
(v) certified copies of the articles of incorporation and by-laws of each Borrower as in effect on the Amendment No. 5 Effective Date and all corporate action, including shareholder approval, if necessary, taken by each Borrower or its shareholders to authorize the transactions contemplated by this Amendment and the THM Acquisition and the incumbency of officers of each Borrower;
(vi) a certificate of the chief operating officer, president, vice president-finance or other officers reasonably acceptable to the Lender favor of each of the Borrowers stating that, to the best of his knowledge and based on an examination sufficient to enable him to make an informed statement,Originators;
(A) both before and after giving effect to this Amendment and the THM Acquisition, all g. payment of the representations and warranties made or deemed to be made under the Loan Agreement are true and correct as of the Amendment No. 5 Effective Date,
(B) both before and after giving effect to this Amendment and the THM Acquisition, no Default or Event of Default exists;
(C) there has not occurred any material adverse change since December 31, 1997 in the business, assets, operations, condition (financial or otherwise) or prospects of any Borrower prior to the Amendment No. 5 Effective Date; and
(D) there does not exist any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that purports to affect adversely any Borrower or the THM Acquisition, or that could have a material adverse effect on any Borrower or the THM Acquisition or on the ability of the Borrowers to perform their obligations under the Loan Documents as amended.
(vii) a certificate evidencing the good standing of THM in the jurisdiction of its incorporation and in each other jurisdiction in which it is qualified as a foreign corporation to transact business;
(viii) Financing Statements duly executed and delivered by THM;
(ix) a Mortgage duly executed and delivered by THM with respect to property of THM located at 300 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Mebane, North Carolina in proper form for the recording of such instrument in Alamance County, North Carolina;
(x) a fully paid endorsement to the mortgagee title insurance policy relating to such Mortgage of THM or, at the option of the Lender, an unconditional commitment for the issuance thereof with all requirements and conditions to the issuance of the final endorsement deleted or marked satisfied, issued by a title insurance company satisfactory to the Lender, confirming that such Mortgage creates a valid first lien on, and security title to, all Real Estate described therein as security for the Secured Obligations;
(xi) certificates or binders of insurance relating to each of the policies of insurance covering any of the Collateral owned by THM together with loss payable clauses which comply with the terms of Section 7.9 of the Loan Agreement;
(xii) evidence satisfactory to the Lender of the release and termination of (or agreement to release and terminate) all Liens relating to THM's property other than Permitted Liens;
(xiii) a signed opinion of Moor▇ & ▇an ▇▇▇▇▇, ▇▇unsel for the Borrowers, and such local counsel as the Lender shall deem necessary and desirable, opining as to such matters Administrative Agent’s legal fees in connection with the preparation and closing of this Amendment as the Lender or its counsel may reasonably requestAmendment; and
(xiv) updated Schedules to the Loan Agreement and the Loan Documents, as necessary, revised to reflect the THM Acquisition and any other changes since March 13, 1998; and
(xv) such other documents and instruments as the Lender may reasonably request.
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