Common use of First Loan Clause in Contracts

First Loan. (a) In the case of the first Loan proposed to be made hereunder to the Borrower: (i) the Bank shall have received an opinion of counsel to the Borrower and the Guarantor (which counsel may be an employee of the Borrower or the Guarantor) addressed to the Bank and in form satisfactory to the Bank in its reasonable judgment, to the effect that: (A) each of the Borrower and the Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power under the laws of such State to enter into this Agreement, to borrow money as contemplated by this Agreement and deliver the Note (in the case of the Borrower), to extend the Guarantee (in the case of the Guarantor), and to carry out the provisions of this Agreement and (in the case of the Borrower) the Note; (B) this Agreement has been duly authorized, executed and delivered by each of the Borrower and the Guarantor and, assuming due authorization, execution and delivery hereof by the Bank, is a valid and binding agreement of each of the Borrower and the Guarantor enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors' rights generally and by general equitable principles regardless of whether such enforceability is considered in a proceeding in equity or at law; (C) the Note has been duly authorized by the Borrower, and when duly executed and delivered by the Borrower, will be a valid and binding obligation of the Borrower enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors' rights generally and by general equitable principles regardless of whether such enforceability is considered in a proceeding in equity or at law; (D) the execution, delivery and performance by each of the Borrower and the Guarantor of this Agreement and (in the case of the Borrower) the Note will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under (in each case material to the Borrower or the Guarantor, as the case may be, and its subsidiaries considered as a whole), or result in the creation or imposition of any lien, charge or encumbrance (in each case material to the Borrower or the Guarantor, as the case may be, and its subsidiaries considered as a whole) upon any of the property or assets of the Borrower or the Guarantor, as the case may be, pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or other similar agreement or instrument known to such counsel under which the Borrower or the Guarantor, as the case may be, is a debtor or a guarantor, nor will such action result in any violation of the provisions of the Certificate of Incorporation or the By-Laws of the Borrower or the Guarantor, as the case may be; and (E) there is no consent, approval, authorization, order, registration or qualification of or with any governmental authority having jurisdiction over the Borrower or the Guarantor which is required for, and the absence of which would materially affect, the execution, delivery and performance of this Agreement or (in the case of the Borrower) the Note; (ii) the Bank shall have received a certificate of the Secretary or the Assistant Secretary of each of the Borrower and the Guarantor setting forth the resolutions of the Board of Directors authorizing this Agreement and certifying that the persons signing this Agreement on behalf of the Borrower and the Guarantor are duly elected and qualified officers (indicating the offices held) of the Borrower or the Guarantor, as the case may be, with the authority to sign this Agreement on behalf of the Borrower or the Guarantor, as the case may be, and setting forth the signatures of such officers; and (iii) the Bank shall have received a certificate of good standing of the Borrower from the State of Delaware and certificates of good standing of the Guarantor from the States of Delaware, Michigan, New York and Ohio. The documents referred to in this Section 4.2 shall be delivered to the Bank no later than two LIBOR Business Days prior to the date of the first Loan hereunder.

First Loan. (a) In the case The obligation of FNBB to make the first Loan proposed to be made hereunder is subject to the Borrowerfollowing conditions precedent: (i) the Bank FNBB shall have received an opinion of counsel to the Borrower and the Guarantor (which counsel may be an employee of the Borrower or the Guarantor) addressed to the Bank and in form and substance satisfactory to FNBB and its special counsel the Bank in its reasonable judgment, to the effect thatfollowing: (A) A certified copy of the records of all actions taken by each of the Borrower and Triad including resolutions of each of Borrower and Triad authorizing or relating to the Guarantor has been duly incorporated execution, delivery and performance of the Loan Documents to which it is validly existing a party and the consummation of the transactions contemplated hereby; (B) Articles of Incorporation and Bylaws and any other charter or formation documents of each of Borrower and Triad certified by an officer of Borrower or Triad, as the case may be, as in full force and effect; (C) Certificate of the Secretary of State of California stating that each of Borrower and Triad is a corporation in good legal standing under the laws of the State of Delaware, with corporate power under the laws of such State to enter into this Agreement, to borrow money as contemplated by this Agreement and deliver the Note (in the case of the Borrower), to extend the Guarantee (in the case of the Guarantor), and to carry out the provisions of this Agreement and (in the case of the Borrower) the Note; (B) this Agreement has been duly authorized, executed and delivered by each of the Borrower and the Guarantor and, assuming due authorization, execution and delivery hereof by the Bank, is a valid and binding agreement of each of the Borrower and the Guarantor enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors' rights generally and by general equitable principles regardless of whether such enforceability is considered in a proceeding in equity or at law; (C) the Note has been duly authorized by the Borrower, and when duly executed and delivered by the Borrower, will be a valid and binding obligation of the Borrower enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors' rights generally and by general equitable principles regardless of whether such enforceability is considered in a proceeding in equity or at lawCalifornia; (D) Certificate of the execution, delivery and performance by California Franchise Tax Board as to the tax good standing of each of the Borrower and the Guarantor of this Agreement Triad; and (E) Certificates of incumbency and signature with respect to the authorized officers of each of Borrower and Triad executing the Loan Documents. (ii) FNBB shall have received the Note, duly executed by Borrower, dated on or prior to the First Funding Date with appropriate insertions. (iii) FNBB shall have received an originally executed opinion of counsel for Borrower and Triad, satisfactory to FNBB and its special counsel, dated on or prior to the First Funding Date and addressed to FNBB, which opinion shall be substantially in the case form of Exhibit C. (iv) Borrower shall have executed and delivered to FNBB a Security Agreement substantially in the form of Exhibit B. (v) FNBB shall have received a certificate of insurance of Borrower with respect to such insurance as is required to be maintained by Borrower pursuant to Section 5.3 of the BorrowerAgreement. (vi) the Note will not conflict with or result FNBB shall have received financial statements of recent date, in a breach form reasonably satisfactory to FNBB, of any each of Borrower and Triad, which fairly present the terms or provisions offinancial position of Borrower and Triad as of such date and the results of Borrower's and Triad's operations for such period then ended, or constitute a default under (in each case material but subject, however, to the absence of footnotes and to normal, recurring year-end adjustments that shall not in the aggregate be material in amount to Borrower or the GuarantorTriad, as the case may be, and its subsidiaries considered as a whole), or result in the creation or imposition of any lien, charge or encumbrance (in each case material to the Borrower or the Guarantor, as the case may be, and its subsidiaries considered as a whole) upon any of the property or assets of the Borrower or the Guarantor, as the case may be, pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or other similar agreement or instrument known to such counsel under which the Borrower or the Guarantor, as the case may be, is a debtor or a guarantor, nor will such action result in any violation of the provisions of the Certificate of Incorporation or the By-Laws of the Borrower or the Guarantor, as the case may be; and. (Evii) there is no consent, approval, authorization, order, registration or qualification of or with any governmental authority having jurisdiction over the Borrower or the Guarantor which is required for, and the absence of which would materially affect, the execution, delivery and performance of this Agreement or (in the case of the Borrower) the Note; (ii) the Bank FNBB shall have received a certificate of the Secretary or the Assistant Secretary of each of the Borrower and the Guarantor setting forth the resolutions of the Board of Directors authorizing this Agreement and certifying that the persons signing this Agreement on behalf of the Borrower and the Guarantor are duly elected and qualified officers (indicating the offices held) of the Borrower or the Guarantor, as the case may be, with the authority to sign this Agreement on behalf of the Borrower or the Guarantor, as the case may be, and setting forth the signatures of such officers; andBorrowing Base Certificate. (iiiviii) the Bank FNBB shall have received a certificate of good standing fully-executed Operating and Support Agreement. (ix) FNBB shall have received a fully-executed amendment to the Intercreditor Agreement, in form and substance satisfactory to FNBB in its sole discretion, including, without limitation, an acknowledgement from each other lender to Borrower, that FNBB has a first priority lien and security interest in each Lease financed by FNBB under this Agreement, the Equipment subject to each such Lease, and all proceeds thereof. (x) FNBB shall have possession of the original fully-executed Intercompany Note. (xi) Borrower shall have used its best efforts to obtain a fully-executed release and waiver from Sanwa Business Credit Corporation releasing and disclaiming any right, title, lien, security interest or interest in each Lease financed by FNBB under this Agreement, the State of Delaware equipment subject to each such Lease, and certificates of good standing of the Guarantor all proceeds thereof. (xii) FNBB shall have received such other documents, information and items from the States of Delaware, Michigan, New York and Ohio. The documents referred to in this Section 4.2 shall be delivered to the Bank no later than two LIBOR Business Days prior to the date of the first Loan hereunderBorrower as reasonably requested by FNBB.

First Loan. (a) In the case The obligation of Lenders or Swingline Lender to make the first Loan proposed to be made hereunder is subject to the Borrowerfollowing conditions precedent: (i) the Bank Agent shall have received an opinion of counsel to the Borrower and the Guarantor (which counsel may be an employee of the Borrower or the Guarantor) addressed to the Bank and in form and substance satisfactory to Requisite Lenders and Agent and their special counsel the Bank in its reasonable judgment, to the effect thatfollowing: (A) each A certified copy of the records of all actions taken by Borrower including resolutions of Borrower authorizing or relating to the execution, delivery and performance of the Loan Documents and the Guarantor has been duly incorporated consummation of the transactions contemplated hereby; (B) Articles of Incorporation and Bylaws and any other charter or formation documents of Borrower certified by an officer of Borrower as in full force and effect; (C) Certificate of the Secretary of State of California stating that Borrower is validly existing as a corporation in good legal standing under the laws of the State of Delaware, with corporate power under the laws of such State to enter into this Agreement, to borrow money as contemplated by this Agreement and deliver the Note (in the case of the Borrower), to extend the Guarantee (in the case of the Guarantor), and to carry out the provisions of this Agreement and (in the case of the Borrower) the Note; (B) this Agreement has been duly authorized, executed and delivered by each of the Borrower and the Guarantor and, assuming due authorization, execution and delivery hereof by the Bank, is a valid and binding agreement of each of the Borrower and the Guarantor enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors' rights generally and by general equitable principles regardless of whether such enforceability is considered in a proceeding in equity or at law; (C) the Note has been duly authorized by the Borrower, and when duly executed and delivered by the Borrower, will be a valid and binding obligation of the Borrower enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors' rights generally and by general equitable principles regardless of whether such enforceability is considered in a proceeding in equity or at lawCalifornia; (D) the execution, delivery and performance by each Certificate of the Borrower and the Guarantor of this Agreement and (in the case of the Borrower) the Note will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under (in each case material California Franchise Tax Board as to the Borrower or the Guarantor, as the case may be, and its subsidiaries considered as a whole), or result in the creation or imposition tax good standing of any lien, charge or encumbrance (in each case material to the Borrower or the Guarantor, as the case may be, and its subsidiaries considered as a whole) upon any of the property or assets of the Borrower or the Guarantor, as the case may be, pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or other similar agreement or instrument known to such counsel under which the Borrower or the Guarantor, as the case may be, is a debtor or a guarantor, nor will such action result in any violation of the provisions of the Certificate of Incorporation or the By-Laws of the Borrower or the Guarantor, as the case may beBorrower; and (E) there is no consent, approval, authorization, order, registration or qualification Certificates of or incumbency and signature with any governmental authority having jurisdiction over respect to the authorized officers of Borrower or executing the Guarantor which is required for, and the absence of which would materially affect, the execution, delivery and performance of this Agreement or (in the case of the Borrower) the Note;Loan Documents. (ii) Agent shall have received the Bank Note, duly executed by Borrower, dated on or prior to the First Funding Date with appropriate insertions. (iii) Swingline Lender shall have received the Swingline Note, duly executed by Borrower, dated on or prior to the First Funding Date with appropriate insertions. (iv) Agent shall have received an originally executed opinion of counsel for Borrower, satisfactory to Lenders and Agent and their special counsel, dated on or prior to the First Funding Date and addressed to each Lender and Agent, which opinion shall be substantially in the form of Exhibit C. (v) Borrower shall have executed and delivered to Agent on behalf of Lenders a Security Agreement substantially in the form of EXHIBIT B. (vi) Agent shall have received a certificate of the Secretary or the Assistant Secretary insurance of each Borrower with respect to such insurance as is required to be maintained by Borrower pursuant to SECTION 5.3 of the Agreement. (vii) Agent shall have received financial statements of recent date, in a form reasonably satisfactory to Agent, of Borrower, which fairly present the financial position of Borrower as of such date and the Guarantor setting forth results of Borrower's operations for such period then ended, but subject, however, to the resolutions absence of footnotes and to normal, recurring year-end adjustments that shall not in the Board of Directors authorizing this Agreement and certifying that the persons signing this Agreement on behalf of the Borrower and the Guarantor are duly elected and qualified officers (indicating the offices held) of the Borrower or the Guarantor, as the case may be, with the authority aggregate be material in amount to sign this Agreement on behalf of the Borrower or the Guarantor, as the case may be, and setting forth the signatures of such officers; andBorrower. (iiiviii) the Bank Agent shall have received an executed original of Agent's Fee Letter. (ix) Agent shall have received a certificate of good standing of the Borrowing Base Certificate. (x) Agent shall have received such other documents, information and items from Borrower from the State of Delaware and certificates of good standing of the Guarantor from the States of Delaware, Michigan, New York and Ohio. The documents referred to in this Section 4.2 shall be delivered to the Bank no later than two LIBOR Business Days prior to the date of the first Loan hereunderas reasonably requested by Agent.