Common use of Effectiveness Conditions Clause in Contracts

Effectiveness Conditions. This Amendment shall be effective upon the satisfaction of the following conditions (any and all Loan Documents, agreements, documents, contracts, certificates, authorizing resolutions, etc. required to be delivered below must be satisfactory in form and substance, and on terms and conditions acceptable to, DLL and its counsel in their Permitted Discretion) (the “Effectiveness Conditions”): (A) execution and delivery of this Amendment by all parties hereto; (B) execution and delivery by Borrower to DLL of (i) an Amended and Restated Secured Revolving Credit Note in the maximum principal amount of $35,000,000 and (ii) an Amended and Restated Secured Floorplan Loan Note in the maximum principal amount of $35,000,000; (C) Delivery to DLL of a certificate of the secretary or assistant secretary of each Borrower entity: (i) certifying the name, title and signature of the officer of such Borrower entity executing this Amendment and/or any other related instrument, document or agreement on behalf of such Borrower entity, (ii) certifying either (z) that there has been no change to the certificate/articles of incorporation and bylaws (or other equivalent organizational documents) since the original closing on the Loan and Security Agreement on December 7, 2006 (or, in the case of any such Borrower entity that was not an original signatory to the Loan Agreement, since the date such Borrower entity was joined as one of the Borrower entities under the Existing Loan Documents) and that the certified copies of such Borrower entity’s organizational documents as delivered to DLL at that time are still in full force and effect or (y) full and complete copies of the certificate/articles of incorporation and bylaws or other equivalent organizational documents (and including all amendments thereto) of such Borrower entity as in effect on the date of such certificate as attached thereto (and each such certificate/articles of incorporation (or other equivalent document) shall be a certified copy recently provided by the appropriate governmental official in such Borrower entity’s jurisdiction of organization), and (iii) a copy of the resolutions and/or written actions or consents of the board of directors, the board of managers or the member(s), as applicable, of such Borrower entity authorizing and/or ratifying the execution of this Amendment and/or any other related instrument, document or agreement (including the Amended and Restated Secured Revolving Credit Note, Amended and Restated Secured Floorplan Loan Note) and the performance of the transactions contemplated hereby and thereby; and (D) Payment by Borrower of (i) an amendment and modification fee of $10,000 (the “Sixth Amendment Fee”), which such fee shall be due and payable, fully earned and non-refundable upon the effective date of this Amendment and (ii) all reasonable fees, costs and expenses (including without limitation any and all reasonable legal fees and expenses) incurred by DLL in the negotiation, preparation and execution of this Amendment. Borrower hereby authorizes DLL to charge the Borrower’s revolving loan account with the amount of such Sixth Amendment Fee and all such costs and expenses of DLL in satisfaction thereof, and requests that DLL make one or more Revolving Credit Loan(s) on or after the date hereof in an aggregate amount equal to the total amount of the Sixth Amendment Fee plus all such costs and expenses, and that DLL disburse the proceeds of such Revolving Credit Loan(s) in satisfaction thereof.

Effectiveness Conditions. This Amendment shall be become effective upon on the satisfaction first date that all of the following conditions have been fully satisfied (any and all Loan Documentssuch date, agreements, documents, contracts, certificates, authorizing resolutions, etc. required to be delivered below must be satisfactory in form and substance, and on terms and conditions acceptable to, DLL and its counsel in their Permitted Discretion) (the “Effectiveness ConditionsSecond Amendment Effective Date”): (Ai) execution and delivery Agent shall have received a fully executed copy of this Amendment by all parties hereto;Amendment. (B) execution and delivery by Borrower to DLL of (i) an Amended and Restated Secured Revolving Credit Note in the maximum principal amount of $35,000,000 and (ii) an Amended No Default or Event of Default shall have occurred and Restated Secured Floorplan Loan Note be continuing or result after giving effect to this Amendment. (iii) The representations and warranties made by each Borrower in the maximum principal amount of $35,000,000; (C) Delivery to DLL of a certificate of the secretary or assistant secretary of each Borrower entity: (i) certifying the name, title Credit Agreement and signature of the officer of such Borrower entity executing this Amendment and/or any other related instrument, document or agreement on behalf of such Borrower entity, (ii) certifying either (z) that there has been no change to the certificate/articles of incorporation and bylaws (or other equivalent organizational documents) since the original closing on the Loan and Security Agreement on December 7, 2006 (or, in the case of any such Borrower entity that was not an original signatory to other Loan Documents are true and complete in all material respects with the Loan Agreement, since the date such Borrower entity was joined as one of the Borrower entities under the Existing Loan Documents) and that the certified copies of such Borrower entity’s organizational documents as delivered to DLL at that time are still in full same force and effect as if made on and as of such date (except to the extent any such representation or warranty expressly relates only to any earlier and/or specified date). (yiv) full and complete copies Agent shall have received from Borrowers payment by Borrower in accordance with Section 12.04 of the certificate/articles Credit Agreement of incorporation all reasonable, documented and bylaws or other equivalent organizational documents (and including all amendments thereto) of such Borrower entity as in effect on the date of such certificate as attached thereto (and each such certificate/articles of incorporation (or other equivalent document) shall be a certified copy recently provided by the appropriate governmental official in such Borrower entity’s jurisdiction of organization), and (iii) a copy of the resolutions and/or written actions or consents of the board of directors, the board of managers or the member(s), as applicable, of such Borrower entity authorizing and/or ratifying the execution of this Amendment and/or any other related instrument, document or agreement (including the Amended and Restated Secured Revolving Credit Note, Amended and Restated Secured Floorplan Loan Note) and the performance of the transactions contemplated hereby and thereby; and (D) Payment by Borrower of (i) an amendment and modification fee of $10,000 (the “Sixth Amendment Fee”), which such fee shall be due and payable, fully earned and nonout-refundable upon the effective date of this Amendment and (ii) all reasonable of-pocket fees, costs and expenses (including without limitation any and all reasonable legal fees and expenses) incurred by DLL in Agent on or prior to the negotiationdate hereof, preparation and execution of this Amendment. Borrower hereby authorizes DLL to charge the Borrower’s revolving loan account with the amount of extent such Sixth Amendment Fee and all such fees, costs and expenses are invoiced at least two (2) Business Days prior to the date hereof. (v) Agent shall have received a fully executed incumbency certificate, dated as of DLL in satisfaction thereof, and requests that DLL make one or more Revolving Credit Loan(s) on or after the date hereof and executed by an Authorized Officer of each Borrower, certifying the names and true signatures of the representatives of such Borrower authorized to sign each Loan Document to which such Borrower is or will be a party and any other documents to be executed and delivered by such Borrower in connection therewith, together with evidence of the incumbency of such authorized representatives. (vi) Agent shall have received an aggregate amount equal amended and restated Swing Loan Note, dated as of the date hereof, executed by Borrowers and payable to the total amount of the Sixth Amendment Fee plus all such costs and expenses, and that DLL disburse the proceeds of such Revolving Credit Loan(s) in satisfaction thereofSwing Loan Lender.

Effectiveness Conditions. This Amendment shall be become effective upon on the satisfaction first date that all of the following conditions have been fully satisfied (any and all Loan Documentssuch date, agreements, documents, contracts, certificates, authorizing resolutions, etc. required to be delivered below must be satisfactory in form and substance, and on terms and conditions acceptable to, DLL and its counsel in their Permitted Discretion) (the “Effectiveness ConditionsFirst Amendment Effective Date”): (Ai) execution and delivery Agent shall have received a fully executed copy of this Amendment. (ii) No Default or Event of Default shall have occurred and be continuing or result after giving effect to this Amendment. (iii) The representations and warranties made by each Borrower in the Credit Agreement and in the other Loan Documents are true and complete in all material respects with the same force and effect as if made on and as of such date (except to the extent any such representation or warranty expressly relates only to any earlier and/or specified date). (iv) Agent shall have received a certificate dated as of the date hereof of an Authorized Officer of each Borrower certifying as to the matters set forth in in clause (ii) and (iii) above. (v) Agent shall have received an opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Borrowers, as to such customary matters as the Agents may reasonably request. (vi) Agent shall have received an opinion of Xxxxxx Xxxxxxxx Xxxxx, P.C., special Washington counsel to Funko, as to such customary matters as the Agents may reasonably request. (vii) Agent shall have received, upon any Lender’s request, revolving credit Note(s), dated the date hereof, payable to such Lender in a face amount equal to the Revolving Credit Commitment of such Lender as provided on Exhibit A to this Amendment. (viii) Agent shall have received from Borrowers: (1) certifications of their corporate secretaries or an Authorized Officer with attached resolutions certifying that this Amendment has been approved by all parties heretosuch Borrowers; (B2) execution a certificate of an Authorized Officer of each Borrower, certifying the names and delivery true signatures of the representatives of such Borrower authorized to sign this Amendment and the other documents to be executed and delivered by such Borrower to DLL in connection herewith and therewith, together with evidence of (i) an Amended and Restated Secured Revolving Credit Note in the maximum principal amount incumbency of $35,000,000 and (ii) an Amended and Restated Secured Floorplan Loan Note in the maximum principal amount of $35,000,000such authorized officers/directors/representatives; (C3) Delivery to DLL of a certificate of the secretary or assistant secretary appropriate official(s) of the jurisdiction of organization of each Borrower entity: (i) certifying as of a recent date not more than 30 days prior to the name, title and signature of First Amendment Effective Date as to the officer subsistence in good standing of such Borrower entity executing this Amendment and/or any other related instrumentin such jurisdictions; and (4) a copy of the Governing Documents of each Borrower, document together with all amendments thereto, or agreement on behalf of such Borrower entity, (ii) certifying either (z) a certification that there has been no change to in the certificate/articles of incorporation and bylaws (or other equivalent organizational documents) since the original closing Governing Documents from those delivered on the Loan and Security Agreement on December 7, 2006 (orClosing Date, in the case of any such Borrower entity that was not an original signatory to the Loan Agreementeither case, since the date such Borrower entity was joined certified as one of the Borrower entities under the Existing Loan Documents) and that the certified copies Amendment Effective Date by an Authorized Officer of such Borrower entity’s organizational documents as delivered to DLL at that time are still in full force and effect or (y) full and complete copies of the certificate/articles of incorporation and bylaws or other equivalent organizational documents (and including all amendments thereto) of such Borrower entity as in effect on the date of such certificate as attached thereto (and each such certificate/articles of incorporation (or other equivalent document) shall be a certified copy recently provided by the appropriate governmental official in such Borrower entity’s jurisdiction of organization), and (iii) a copy of the resolutions and/or written actions or consents of the board of directors, the board of managers or the member(s), as applicable, of such Borrower entity authorizing and/or ratifying the execution of this Amendment and/or any other related instrument, document or agreement (including the Amended and Restated Secured Revolving Credit Note, Amended and Restated Secured Floorplan Loan Note) and the performance of the transactions contemplated hereby and thereby; andBorrower. (Dix) Payment by Borrower in accordance with Section 12.04 of (i) an amendment the Credit Agreement of all reasonable, documented and modification fee of $10,000 (the “Sixth Amendment Fee”), which such fee shall be due and payable, fully earned and nonout-refundable upon the effective date of this Amendment and (ii) all reasonable of-pocket fees, costs and expenses (including without limitation any and all reasonable legal fees and expenses) incurred by DLL in the negotiation, preparation and execution of this Amendment. Borrower hereby authorizes DLL to charge the Borrower’s revolving loan account with the amount of such Sixth Amendment Fee and all such costs and expenses of DLL in satisfaction thereof, and requests that DLL make one or more Revolving Credit Loan(s) Agent on or after prior to the date hereof in an aggregate amount equal hereof, to the total amount of extent invoiced at least two (2) Business Days prior to the Sixth Amendment Fee plus all such costs and expenses, and that DLL disburse the proceeds of such Revolving Credit Loan(s) in satisfaction thereofdate hereof.

Effectiveness Conditions. This Amendment shall be effective upon the satisfaction completion of the following conditions precedent (any all documents and all Loan Documents, agreements, documents, contracts, certificates, authorizing resolutions, etc. required other items to be delivered below must be satisfactory in form and substance, substance satisfactory to Lender and on terms and conditions acceptable to, DLL and its counsel in their Permitted Discretion) (the “Effectiveness Conditions”Lender’s counsel): (Aa) execution Execution and delivery by Borrowers of this Amendment by all parties heretoAmendment; (Bb) execution and delivery Delivery by Borrower to DLL Borrowers of the fully executed Comerica Amendment, along with (i) an Amended and Restated Secured Revolving Credit Note in the maximum principal amount of $35,000,000 and (ii) an Amended and Restated Secured Floorplan Loan Note in the maximum principal amount of $35,000,000; (C) Delivery to DLL of a certificate of the secretary or assistant secretary of each Borrower entity: (i) certifying the name, title and signature of the officer of such Borrower entity executing this Amendment and/or any other related instrument, document or agreement on behalf of such Borrower entity, (ii) certifying either (z) that there has been no change to the certificate/articles of incorporation and bylaws (or other equivalent organizational documents) since the original closing on the Loan and Security Agreement on December 7, 2006 (or, in the case of any such Borrower entity that was not an original signatory to the Loan Agreement, since the date such Borrower entity was joined as one of the Borrower entities under the Existing Loan Documents) and that the certified copies of such Borrower entity’s organizational documents as delivered to DLL at that time are still in full force and effect or (y) full and complete copies of the certificate/articles of incorporation and bylaws or other equivalent organizational documents (and including all amendments thereto) of such Borrower entity as in effect on the date of such certificate as attached thereto (and each such certificate/articles of incorporation (or other equivalent document) shall be a certified copy recently provided by the appropriate governmental official in such Borrower entity’s jurisdiction of organization), and (iii) a copy of the resolutions and/or written actions or consents consent to such amendment from Safeguard Delaware, Inc. and Safeguard Scientifics (Delaware), Inc. (collectively, “Safeguard”) required pursuant to Section 1(c) of the Amended and Restated Reimbursement and Indemnity Agreement dated January 17, 2007 among Clarient, Inc. and Safeguard, as amended, and (ii) evidence that all conditions to the effectiveness of such amendment have been satisfied, all on terms and conditions satisfactory to Lender; (c) Delivery by Borrowers of certified copies of resolutions of each Borrower’s board of directors, the board of managers general partners, members or the member(s)managers, as applicable, of such Borrower entity authorizing and/or ratifying the execution of this Amendment and/or and each document required to be delivered by any other related instrumentSection hereof; (d) No Unmatured Event of Default or Event of Default shall have occurred and be continuing under the Loan Documents; (e) Payment by Borrowers of any and all costs, document or agreement fees and expenses of Lender (including the Amended and Restated Secured Revolving Credit Noteincluding, Amended and Restated Secured Floorplan Loan Noteattorneys’ fees) in connection with this Amendment and the performance of the transactions transaction contemplated hereby and therebyhereby; and (Df) Payment Execution and/or delivery by Borrower Borrowers of (i) an amendment all agreements, instruments and modification fee of $10,000 (documents requested by Lender to effectuate and implement the “Sixth Amendment Fee”), which such fee shall be due terms hereof and payable, fully earned and non-refundable upon the effective date of this Amendment and (ii) all reasonable fees, costs and expenses (including without limitation any and all reasonable legal fees and expenses) incurred by DLL in the negotiation, preparation and execution of this Amendment. Borrower hereby authorizes DLL to charge the Borrower’s revolving loan account with the amount of such Sixth Amendment Fee and all such costs and expenses of DLL in satisfaction thereof, and requests that DLL make one or more Revolving Credit Loan(s) on or after the date hereof in an aggregate amount equal to the total amount of the Sixth Amendment Fee plus all such costs and expenses, and that DLL disburse the proceeds of such Revolving Credit Loan(s) in satisfaction thereofLoan Documents.

Effectiveness Conditions. This Amendment shall be effective upon the satisfaction completion of the following conditions precedent (any and all Loan Documents, agreements, documents, contracts, certificates, authorizing resolutions, etc. required documents to be delivered below must be satisfactory in form and substancesubstance satisfactory to Administrative Agent and the Lead Arrangers, and on terms and conditions acceptable to, DLL and its counsel in their Permitted Discretion) (the “Effectiveness Conditions”respective counsel): (Aa) execution and delivery executed counterparts of this Amendment each properly executed by all parties heretoa Responsible Officer of the signing Loan Party and each other Person party thereto; (Bb) execution receipt by Administrative Agent of a Request for Credit Extension; (c) all representations and warranties of the Loan Parties contained herein shall be true, correct and complete in all material respects (provided, that if any representation or warranty is by its terms qualified by concepts of materiality, such representation shall be true and correct in all respects) as of the Effective Date, except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct as of such earlier date (and each Loan Party’s delivery of its respective signature hereto shall be deemed to be its certification thereof); (d) no Default or Event of Default under the Credit Agreement or any of the other Loan Documents has occurred and is continuing immediately prior to or after funding the First Incremental Term Loans; (e) the Acquisition Agreement shall be in full force and effect, and substantially concurrently with the funding of the First Incremental Term Loans on the Effective Date, the Transactions shall have been consummated in all material respects in accordance with the terms of the Acquisition Agreement without giving effect to any amendments, consents or waivers by Borrower you thereto that are materially adverse to DLL the Incremental Lenders or the Lead Arrangers, without the prior consent of the Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that (i) an Amended and Restated Secured Revolving Credit Note any increase in the maximum principal amount purchase price of, or consideration for, the Acquisition is not materially adverse to the interests of $35,000,000 the Incremental Lenders or the Lead Arrangers so long as such increase is not financed with the proceeds of indebtedness of the Borrower and its subsidiaries other than under the Credit Agreement and (ii) an Amended and Restated Secured Floorplan Loan Note any substantive amendment to the definition of “Material Adverse Effect” (as defined in the maximum principal amount Acquisition Agreement) is materially adverse to the interests of $35,000,000the Incremental Lenders and the Lead Arrangers); (Cf) Delivery to DLL receipt by Administrative Agent and the Lead Arrangers of a certificate evidence that the net cash proceeds of the secretary Equity Contribution in a direct or assistant secretary indirect parent of each Borrower entity: shall have been contributed (i) certifying or contributed substantially concurrently with the name, title and signature funding of the officer of such First Incremental Term Loans) to Borrower entity executing this Amendment and/or any other related instrument, document or agreement on behalf of such Borrower entity, (ii) certifying either (z) that there has been no change in an amount sufficient to consummate the certificate/articles of incorporation Acquisition and bylaws (or other equivalent organizational documents) since to pay the original closing on the Loan and Security Agreement on December 7, 2006 (or, in the case of any such Borrower entity that was not an original signatory to the Loan Agreement, since the date such Borrower entity was joined as one of the Borrower entities under the Existing Loan Documents) and that the certified copies of such Borrower entity’s organizational documents as delivered to DLL at that time are still in full force and effect or (y) full and complete copies of the certificate/articles of incorporation and bylaws or other equivalent organizational documents (and including all amendments thereto) of such Borrower entity as in effect on the date of such certificate as attached thereto (and each such certificate/articles of incorporation (or other equivalent document) shall be a certified copy recently provided by the appropriate governmental official in such Borrower entity’s jurisdiction of organization), and (iii) a copy of the resolutions and/or written actions or consents of the board of directors, the board of managers or the member(s), as applicable, of such Borrower entity authorizing and/or ratifying the execution of this Amendment and/or any other related instrument, document or agreement (including the Amended and Restated Secured Revolving Credit Note, Amended and Restated Secured Floorplan Loan Note) and the performance of the transactions contemplated hereby and thereby; and (D) Payment by Borrower of (i) an amendment and modification fee of $10,000 (the “Sixth Amendment Fee”), which such fee shall be due and payable, fully earned and non-refundable upon the effective date of this Amendment and (ii) all reasonable fees, costs and expenses incurred in connection with the Transactions; (including without limitation any g) receipt by Administrative Agent and the Lead Arrangers of a Pro Forma Compliance Certificate demonstrating that, after giving effect to the incurrence of the First Incremental Term Loans and consummation of the Acquisition on a Pro Forma Basis (i) the Loan Parties will be in compliance with the financial covenants set forth in Article 8 of the Credit Agreement for the most recently completed four Fiscal Quarter period and (ii) the Consolidated Total Leverage Ratio (calculated on a Pro Forma Basis) as of the end of the most recently completed four Fiscal Quarter period would not be greater than 3.00:1.00; (h) all existing Indebtedness of the Target and its Subsidiaries, other than Indebtedness expressly permitted under Section 7.01 of the Credit Agreement as if the Target was a party thereto, shall have been repaid, or substantially simultaneously herewith, shall be repaid and all reasonable legal fees and expensesLiens related to such Indebtedness or otherwise shall be terminated (other than Permitted Liens); (i) incurred by DLL since December 31, 2019, there shall not have occurred a “Material Adverse Effect” (as defined in the negotiationAcquisition Agreement); (j) receipt by Administrative Agent and the Lead Arrangers at least five (5) Business Days prior to the Closing Date, preparation of satisfactory documentation and execution other information about Borrower and the Guarantors under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation (including, if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a certification regarding beneficial ownership required by the Beneficial Ownership Regulation); (k) receipt by Administrative Agent of evidence reasonably satisfactory to Administrative Agent that the Loan Parties have obtained all required consents and approvals of all Persons including all requisite Governmental Authorities, to the execution, delivery and performance of the Amendment; (l) receipt by Administrative Agent and Lead Arrangers of favorable opinions of K&L Gates LLP and Xxxxxxxxxx PC, counsel to the Loan Parties, addressed to Administrative Agent, the Incremental Lenders, and the Secured Parties, dated as of the Effective Date, and in form and substance satisfactory to Administrative Agent; (m) such resolutions, Organization Documents, good standings, and certifications by Responsible Officers in connection therewith, as Administrative Agent may reasonably require; (n) receipt by Administrative Agent and the Lead Arrangers of a solvency certificate from the Chief Financial Officer of Borrower; (o) receipt by Administrative Agent and the Lead Arrangers of a certificate executed by a responsible Officer of Borrower certifying that the conditions specified in this Section 6 have been satisfied and that the representations and warranties contained in Section 5 hereof are true and correct in all material respects (provided, that if any representation or warranty is by its terms qualified by materiality, such representation and warranty shall be true and correct in all respects) as of the Effect Date; (p) receipt by Administrative Agent and the Lead Arrangers of (i) a pro forma consolidated balance sheet and related pro forma consolidated statement of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries as of March 31, 2020, prepared after giving effect to the Transactions as if the Transaction had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) and (ii) a pro forma organizational chart, including disclosures as to each entity that will incur Indebtedness in connection with the Transactions; (q) receipt by Administrative Agent and the Lead Arrangers of an audited balance sheet of the Target as of December 31, 2019 and the related audited statements of income, shareholders’ equity and cash flows for the year then ended, and the related notes to the financial statements; (r) receipt by Administrative Agent and the Lead Arrangers of any fees required to be paid on or before the Effective Date under this Amendment. Borrower hereby authorizes DLL to charge , the Credit Agreement or that certain Joint Fee Letter dated as of May 25, 2020, by and among, the Borrower’s revolving loan account with , the amount Lead Arrangers and each Incremental Lender; and (s) receipt by Administrative Agent and the Lead Arrangers of such Sixth Amendment Fee and all such reasonable, documented, out-of-pocket costs and expenses (including, without limitation, fees and disbursements of DLL in satisfaction thereof, and requests that DLL make one or more Revolving Credit Loan(scounsel) required to be paid on or after before the date hereof in an aggregate amount equal to the total amount of the Sixth Amendment Fee plus all such costs and expenses, and that DLL disburse the proceeds of such Revolving Credit Loan(s) in satisfaction thereofEffective Date.

Effectiveness Conditions. This Amendment shall be become effective upon on the satisfaction first date that all of the following conditions have been fully satisfied (any and all Loan Documentssuch date, agreements, documents, contracts, certificates, authorizing resolutions, etc. required to be delivered below must be satisfactory in form and substance, and on terms and conditions acceptable to, DLL and its counsel in their Permitted Discretion) (the “Effectiveness ConditionsThird Amendment Effective Date”): (Ai) execution JPMorgan Chase Bank, N.A. (the “Amendment Arranger”), shall have received signature pages to this Amendment duly executed by the Borrowers and delivery the Required Lenders. (ii) No Default or Event of Default shall have occurred and be continuing or result after giving effect to this Amendment. (iii) The representations and warranties made by each Borrower in the Amended Credit Agreement and in the other Loan Documents are true and complete in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) with the same force and effect as if made on and as of such date (except to the extent any such representation or warranty expressly relates only to any earlier and/or specified date) (in which case such representation or warranty shall be true and correct in all material respects on and as of such earlier date (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification)). (iv) Each Lender providing its executed signature page to this Amendment by all parties hereto; (B) execution such time and delivery by Borrower to DLL of (i) an Amended and Restated Secured Revolving Credit Note in the maximum principal amount of $35,000,000 and (ii) an Amended and Restated Secured Floorplan Loan Note in the maximum principal amount of $35,000,000; (C) Delivery to DLL of a certificate of the secretary or assistant secretary of each Borrower entity: (i) certifying the name, title and signature of the officer of such Borrower entity executing this Amendment and/or any other related instrument, document or agreement on behalf of such Borrower entity, (ii) certifying either (z) that there has been no change to the certificate/articles of incorporation and bylaws (or other equivalent organizational documents) since the original closing on the Loan and Security Agreement on December 7, 2006 (or, in the case of any such Borrower entity that was not an original signatory to the Loan Agreement, since the date such Borrower entity was joined as one of the Borrower entities under the Existing Loan Documents) and that the certified copies of such Borrower entity’s organizational documents as delivered to DLL at that time are still in full force and effect or (y) full and complete copies of the certificate/articles of incorporation and bylaws or other equivalent organizational documents (and including all amendments thereto) of such Borrower entity as in effect on the date of such certificate as attached thereto (and each such certificate/articles of incorporation (or other equivalent document) shall be a certified copy recently provided specified by the appropriate governmental official Amendment Arranger shall have received from the Borrowers all fees required to be paid to such consenting Lenders in such Borrower entity’s jurisdiction of organization), and (iii) a copy of the resolutions and/or written actions or consents of the board of directors, the board of managers or the member(s), as applicable, of such Borrower entity authorizing and/or ratifying the execution of this Amendment and/or any other related instrument, document or agreement (including the Amended and Restated Secured Revolving Credit Note, Amended and Restated Secured Floorplan Loan Note) and the performance of the transactions contemplated hereby and thereby; and (D) Payment by Borrower of (i) an amendment and modification fee of $10,000 (the “Sixth Amendment Fee”), which such fee shall be due and payable, fully earned and non-refundable upon the effective date of connection with this Amendment and (ii) all reasonable the Amendment Arranger shall have received from the Borrowers such other fees, costs and expenses (including without limitation any and all reasonable legal fees and expenses) incurred by DLL in the negotiation, preparation and execution of this Amendment. Borrower hereby authorizes DLL to charge the Borrower’s revolving loan account with the amount of such Sixth Amendment Fee and all such costs and expenses of DLL in satisfaction thereof, and requests that DLL make one or more Revolving Credit Loan(s) be paid on or after the date hereof in an aggregate amount equal to as separately agreed between the total amount of Borrowers and the Sixth Amendment Fee plus all such costs and expenses, and that DLL disburse the proceeds of such Revolving Credit Loan(s) in satisfaction thereofArranger.