Conditions to Loan by the Lender. The effectiveness of this Third Amendment and the Lender’s obligation to fund the Additional Loan amount shall be subject to the following conditions precedent having been met to the satisfaction of the Lender, or, alternatively, waived in writing by the Lender: 4.1.1 the Borrower will pay to the Lender Thirty Six Thousand United States Dollars (US$36,000) as payment of the Work Fee in respect of the Additional Loan amount, (which, for certainty, shall be fully earned and payable on the date hereof, whether or not the Additional Loan is advanced); 4.1.2 the Borrower will pay to the Lender Five Hundred Thousand United States Dollars (US$500,000) as a partial repayment of the outstanding principal amount of the Third Tranche; 4.1.3 this Agreement shall have been executed and delivered by all parties hereto; 4.1.4 the Borrower and its Subsidiaries shall have executed and delivered to the Lender a confirmation of guarantee and security agreement; 4.1.5 the Lender shall have received certified copies of the resolutions authorizing the execution, delivery and performance of Borrower’s obligations hereunder and copies of the resolutions of the Borrower authorizing the confirmation of guarantee and security agreement regarding the Loan Documents to which they are a party and the transactions contemplated therein, and the incumbency of the officers of Borrower; 4.1.6 certificates of status or good standing, as applicable, for all relevant jurisdictions of Borrower shall have been delivered to the Lender; 4.1.7 the Loan Parties shall be in compliance in all material respects with all (if any) Material Contracts and Material Licences to the satisfaction of the Lender and copies of all Material Contracts and Material Licences if any, applicable to the Loan Parties, shall have been delivered to the Lender; 4.1.8 evidence that all necessary or required consents or approvals of any Governmental Authority or other Person in connection the delivery of the Loan Documents have been obtained; 4.1.9 US and Canadian Lien searches and reports thereon, and releases, discharges, estoppels and postponements with respect to all Liens which are not Permitted Liens, if any, shall have been delivered to the Lender; 4.1.10 payment of all amounts and fees payable to the Lender (for certainty, including fees of counsel to the Lender); 4.1.11 duly executed copies of the Security (including any additional Security required by the Lender further to the merger of the Borrower or otherwise) shall have been delivered to the Lender and such financing statements or other registrations of such Security, or notice thereof, shall have been filed, registered, entered or recorded in all offices of public record necessary or desirable in the opinion of the Lender to preserve or protect the charges and security interests created thereby; 4.1.12 a currently dated letter of opinion of US counsel to the Borrower shall have been delivered to the Lender. Such opinions shall, amongst other things, opine as to the enforceability of this Agreement and the Loan Agreement as amended hereby, that the existing Security delivered in connection with the Loan Agreement is first ranking perfected security in favour of the Lender in respect to all of the Obligations, including without limitation, the Additional Loan, and shall also address other customary enforceability, security and corporate matters; 4.1.13 the Borrower shall have delivered to the Lender certificates of insurance acceptable to the Lender showing, inter alia, the Lender as a first loss payee as its interest may appear on all insurance policies that insure the assets to be secured by the Security; 4.1.14 no Default or Event of Default shall have occurred and be continuing on the Second Closing Date or would result from making the Additional Loan and a senior officer of the Borrower shall have certified the same to the Lender; 4.1.15 no Material Adverse Effect shall have occurred; 4.1.16 the Lender shall have received such additional evidence, documents or undertakings as the Lender shall reasonably request to establish the consummation of the transactions contemplated hereby and be satisfied, acting reasonably, as to the taking of all proceedings in connection herewith in compliance with the conditions set forth in this Third Amendment; and 4.1.17 the Lender shall have completed all due diligence which it considers necessary or appropriate in its discretion in regard to the Loan Parties and their Property, books and records, operations, prospects and condition (financial or otherwise), including, without limitation, in regards to past and ongoing compliance with Applicable Laws (including Environmental Laws), union and labour relations and pension matters.
Appears in 3 contracts
Samples: Loan Agreement (Synergy CHC Corp.), Loan Agreement (Synergy CHC Corp.), Loan Agreement (Synergy CHC Corp.)
Conditions to Loan by the Lender. The effectiveness of this Third First Amendment and the Lender’s obligation to fund the Additional Loan amount shall be subject to the following conditions precedent having been met to the satisfaction of the Lender, or, alternatively, waived in writing by the Lender:
4.1.1 3.1.1 the Borrower will pay to the Lender Thirty Six an origination fee equal to Oxx Xxxxxxx Xxx Xxxxxxxx Xxxxxx Xxxxxx Dollars (US$110,000), being two percent (2%) of the Additional Loan amount, on the Second Closing Date;
3.1.2 the Borrower will pay to the Lender a work fee equal to Fifty Five Thousand United States Dollars (US$36,00055,000), being one percent (1%) as payment of the Work Fee in respect of the Additional Loan amount, (whichat the earlier of November 12, for certainty, shall be fully earned 2015 and payable on the date hereofSecond Closing Date, whether or not the Additional Loan is advanced);
4.1.2 the Borrower will pay to the Lender Five Hundred Thousand United States Dollars (US$500,000) as a partial repayment of the outstanding principal amount of the Third Tranche;
4.1.3 3.1.3 this Agreement shall have been executed and delivered by all parties hereto;
4.1.4 3.1.4 the Borrower and its each of the Subsidiaries shall have executed and delivered to the Lender the Loan Documents to which each is a confirmation of guarantee and security agreementparty including, without limitation, the Security Documents;
4.1.5 3.1.5 the Lender shall have received certified copies of the resolutions authorizing the execution, delivery and performance of Borrower’s, Nomad’s and Breakthrough’s respective obligations hereunder and copies of the resolutions of the Borrower authorizing the confirmation of guarantee and security agreement regarding under the Loan Documents to which they are a party and the transactions contemplated therein, and the incumbency of the officers of Borrower, Nomad and Breakthrough;
4.1.6 3.1.6 certificates of status or good standing, as applicable, for all relevant jurisdictions of Borrower shall have been delivered to the Lender;
4.1.7 the Loan Parties 3.1.7 certificate of incorporation and constituent documents of Nomad;
3.1.8 Borrower shall be in compliance in all material respects with all (if any) Material Contracts and Material Licences to the satisfaction of the Lender and copies of all Material Contracts and Material Licences if any, applicable to the Loan PartiesBorrower, shall have been delivered to the Lender;
4.1.8 3.1.9 evidence of repayment in full of all Debt that is not Permitted Debt owing by Borrower to any third party lenders to Borrower concurrent with the Loan shall have been delivered to the Lender;
3.1.10 evidence that all necessary or required consents or approvals of any Governmental Authority or other Person in connection with the completion of the Breakthrough Acquisition and the Nomad Acquisition and the delivery of the Loan Documents have been obtained;
4.1.9 US and Canadian Lien searches and reports thereon, and 3.1.11 releases, discharges, estoppels and postponements with respect to all Liens which are not Permitted Liens, if any, shall have been delivered to the Lender;
4.1.10 3.1.12 payment of all amounts and fees payable to the Lender (for certainty, including fees of counsel to the Lender);
4.1.11 3.1.13 duly executed copies of the Security (including any additional Security required by the Lender further to the merger of the Borrower or otherwise) shall have been delivered to the Lender and such financing statements or other registrations of such Security, or notice thereof, shall have been filed, registered, entered or recorded in all offices of public record necessary or desirable in the opinion of the Lender to preserve or protect the charges and security interests created thereby;
4.1.12 3.1.14 the Borrower shall have delivered to the Lender original share certificates in respect of all of the issued share capital in Nomad together with share transfer forms in respect of the shares in Nomad duly executed by the Borrower;
3.1.15 evidence satisfactory to the Lender that entry into the Security Documents to which Nomad is a party does not materially prejudice the interests of Nomad or its shareholders and does not materially prejudice the ability of Nomad to pay its creditors (and that the board of directors of Nomad have resolved that this is the case);
3.1.16 evidence that immediately prior to the acquisition by the Borrower of all the issued share capital in Nomad, the directors of Nomad will be Jxxx Xxxx, Sxxxxxx Xxxxx and Txxxxxx Polmeer and that appointment of such directors has been, or will be, notified to the Australian Securities and Investments Commission;
3.1.17 a currently dated letter of opinion of US counsel to the Borrower along with the opinions of local counsel for Borrower shall have been delivered to the Lender. Such opinions shall, amongst other things, opine as to the enforceability of this Agreement and the Loan Agreement as amended hereby, confirm that the existing Security delivered in connection with the Original Loan Agreement is first ranking perfected security in favour of the Lender in respect to all of the Obligations, including without limitation, the Additional Loan, and shall also address other customary enforceability, security and corporate matters;
4.1.13 3.1.18 the Borrower shall have delivered to the Lender certificates of insurance acceptable to the Lender showing, inter alia, the Lender as a first loss payee as its interest may appear on all insurance policies that insure the assets to be secured by the Security;
4.1.14 3.1.19 no Default or Event of Default shall have has occurred and be is continuing on the Second Closing Date or would result from making the Additional Loan and a senior officer of the Borrower shall have certified the same to the Lender;
4.1.15 3.1.20 all representations and warranties made by Borrower, Nomad and Breakthrough in the Loan Documents are true and correct in all material respects;
3.1.21 no Material Adverse Effect shall have has occurred;
4.1.16 3.1.22 a source and use of funds statement and an outline of the flow of funds from the Loan shall have been delivered to the Lender evidencing that the Loan will be used solely for the Nomad Acquisition and for working capital purposes;
3.1.23 the Lender shall have received such additional evidence, documents or undertakings as the Lender shall reasonably request to establish the consummation of the transactions contemplated hereby hereby, and the Breakthrough Acquisition and the Nomad Acquisition and be satisfied, acting reasonably, as to the taking of all proceedings in connection herewith in compliance with the conditions set forth in this Third Amendment; andAgreement;
4.1.17 3.1.24 the Lender shall have completed all due diligence which it considers necessary or appropriate in its discretion in regard to Borrower and its Property, the Loan Parties Breakthrough Acquisition and their Propertythe Nomad Acquisition, books and records, operations, prospects and condition (financial or otherwise), including, without limitation, in regards to past and ongoing compliance with Applicable Laws (including Environmental Laws), union and labour relations and pension matters;
3.1.25 the Lender and the Borrower will have entered into, executed and delivered the Lender’s Nomad Distribution Agreement, all on terms satisfactory to the parties, acting reasonably;
3.1.26 concurrently therewith, the Borrower shall complete the Breakthrough Acquisition and the Nomad Acquisition on terms and conditions satisfactory to the Lender;
3.1.27 the execution and delivery of the 2015 First Warrant and the 2015 Second Warrant by the Borrower; and
3.1.28 the Second Closing Date occurs by no later than November 16, 2015; provided that if and to the extent that any Loan Document or other condition precedent set forth in this Section 3.1 and relating specifically and solely to Breakthrough or the Breakthrough Acquisition is not delivered at or prior to the Second Closing Date, then same shall instead become a condition precedent to the Lender advancing the second tranche of the Additional Loan as set forth in Section 3.2 and shall not be a waiver of such unfulfilled condition.
Appears in 2 contracts
Samples: Loan Agreement (Synergy CHC Corp.), Loan Agreement (Synergy CHC Corp.)
Conditions to Loan by the Lender. The effectiveness of this Third Amendment and the Lender’s obligation to fund the Additional Loan amount shall be subject to the following conditions precedent having been met to the satisfaction of the Lender, or, alternatively, waived in writing by the Lender:
4.1.1 the Borrower will pay to the Lender Thirty Six Thousand United States Dollars (US$36,000) as payment of the Work Fee in respect of the Additional Loan amount, (which, for certainty, shall be fully earned and payable on the date hereof, whether or not the Additional Loan is advanced);
4.1.2 the Borrower will pay to the Lender Five Hundred Thousand United States Dollars (US$500,000) as a partial repayment of the outstanding principal amount of the Third Tranche;
4.1.3 this Agreement shall have been executed and delivered by all parties hereto;
4.1.4 the Borrower and its Subsidiaries shall have executed and delivered to the Lender a confirmation of guarantee and security agreement;
4.1.5 the Lender shall have received certified copies of the resolutions authorizing the execution, delivery and performance of BorrowerXxxxxxxx’s obligations hereunder and copies of the resolutions of the Borrower authorizing the confirmation of guarantee and security agreement regarding the Loan Documents to which they are a party and the transactions contemplated therein, and the incumbency of the officers of Borrower;
4.1.6 certificates of status or good standing, as applicable, for all relevant jurisdictions of Borrower shall have been delivered to the Lender;
4.1.7 the Loan Parties shall be in compliance in all material respects with all (if any) Material Contracts and Material Licences to the satisfaction of the Lender and copies of all Material Contracts and Material Licences if any, applicable to the Loan Parties, shall have been delivered to the Lender;
4.1.8 evidence that all necessary or required consents or approvals of any Governmental Authority or other Person in connection the delivery of the Loan Documents have been obtained;
4.1.9 US and Canadian Lien searches and reports thereon, and releases, discharges, estoppels and postponements with respect to all Liens which are not Permitted Liens, if any, shall have been delivered to the Lender;
4.1.10 payment of all amounts and fees payable to the Lender (for certainty, including fees of counsel to the Lender);
4.1.11 duly executed copies of the Security (including any additional Security required by the Lender further to the merger of the Borrower or otherwise) shall have been delivered to the Lender and such financing statements or other registrations of such Security, or notice thereof, shall have been filed, registered, entered or recorded in all offices of public record necessary or desirable in the opinion of the Lender to preserve or protect the charges and security interests created thereby;
4.1.12 a currently dated letter of opinion of US counsel to the Borrower shall have been delivered to the Lender. Such opinions shall, amongst other things, opine as to the enforceability of this Agreement and the Loan Agreement as amended hereby, that the existing Security delivered in connection with the Loan Agreement is first ranking perfected security in favour of the Lender in respect to all of the Obligations, including without limitation, the Additional Loan, and shall also address other customary enforceability, security and corporate matters;
4.1.13 the Borrower shall have delivered to the Lender certificates of insurance acceptable to the Lender showing, inter alia, the Lender as a first loss payee as its interest may appear on all insurance policies that insure the assets to be secured by the Security;
4.1.14 no Default or Event of Default shall have occurred and be continuing on the Second Closing Date or would result from making the Additional Loan and a senior officer of the Borrower shall have certified the same to the Lender;
4.1.15 no Material Adverse Effect shall have occurred;
4.1.16 the Lender shall have received such additional evidence, documents or undertakings as the Lender shall reasonably request to establish the consummation of the transactions contemplated hereby and be satisfied, acting reasonably, as to the taking of all proceedings in connection herewith in compliance with the conditions set forth in this Third Amendment; and
4.1.17 the Lender shall have completed all due diligence which it considers necessary or appropriate in its discretion in regard to the Loan Parties and their Property, books and records, operations, prospects and condition (financial or otherwise), including, without limitation, in regards to past and ongoing compliance with Applicable Laws (including Environmental Laws), union and labour relations and pension matters.
Appears in 1 contract
Samples: Loan Agreement (Synergy CHC Corp.)
Conditions to Loan by the Lender. The effectiveness of this Third First Amendment and the Lender’s obligation to fund the Additional Loan amount shall be subject to the following conditions precedent having been met to the satisfaction of the Lender, or, alternatively, waived in writing by the Lender:
4.1.1 3.1.1 the Borrower will pay to the Lender Thirty Six an origination fee equal to One Hundred Ten Thousand United States Dollars (US$36,000110,000), being two percent (2%) as payment of the Work Fee in respect of the Additional Loan amount, (which, for certainty, shall be fully earned and payable on the date hereofSecond Closing Date;
3.1.2 the Borrower will pay to the Lender a work fee equal to Fifty Five Thousand United States Dollars (US$55,000), being one percent (1%) of the Additional Loan amount, at the earlier of November 12, 2015 and the Second Closing Date, whether or not the Additional Loan is advanced);
4.1.2 the Borrower will pay to the Lender Five Hundred Thousand United States Dollars (US$500,000) as a partial repayment of the outstanding principal amount of the Third Tranche;
4.1.3 3.1.3 this Agreement shall have been executed and delivered by all parties hereto;
4.1.4 3.1.4 the Borrower and its each of the Subsidiaries shall have executed and delivered to the Lender the Loan Documents to which each is a confirmation of guarantee and security agreementparty including, without limitation, the Security Documents;
4.1.5 3.1.5 the Lender shall have received certified copies of the resolutions authorizing the execution, delivery and performance of BorrowerXxxxxxxx’s, Xxxxx’s and Breakthrough’s respective obligations hereunder and copies of the resolutions of the Borrower authorizing the confirmation of guarantee and security agreement regarding under the Loan Documents to which they are a party and the transactions contemplated therein, and the incumbency of the officers of BorrowerXxxxxxxx, Nomad and Breakthrough;
4.1.6 3.1.6 certificates of status or good standing, as applicable, for all relevant jurisdictions of Borrower shall have been delivered to the Lender;
4.1.7 the Loan Parties 3.1.7 certificate of incorporation and constituent documents of Nomad;
3.1.8 Borrower shall be in compliance in all material respects with all (if any) Material Contracts and Material Licences to the satisfaction of the Lender and copies of all Material Contracts and Material Licences if any, applicable to the Loan PartiesBorrower, shall have been delivered to the Lender;
4.1.8 3.1.9 evidence of repayment in full of all Debt that is not Permitted Debt owing by Borrower to any third party lenders to Borrower concurrent with the Loan shall have been delivered to the Lender;
3.1.10 evidence that all necessary or required consents or approvals of any Governmental Authority or other Person in connection with the completion of the Breakthrough Acquisition and the Nomad Acquisition and the delivery of the Loan Documents have been obtained;
4.1.9 US and Canadian Lien searches and reports thereon, and 3.1.11 releases, discharges, estoppels and postponements with respect to all Liens which are not Permitted Liens, if any, shall have been delivered to the Lender;
4.1.10 3.1.12 payment of all amounts and fees payable to the Lender (for certainty, including fees of counsel to the Lender);
4.1.11 3.1.13 duly executed copies of the Security (including any additional Security required by the Lender further to the merger of the Borrower or otherwise) shall have been delivered to the Lender and such financing statements or other registrations of such Security, or notice thereof, shall have been filed, registered, entered or recorded in all offices of public record necessary or desirable in the opinion of the Lender to preserve or protect the charges and security interests created thereby;
4.1.12 3.1.14 the Borrower shall have delivered to the Lender original share certificates in respect of all of the issued share capital in Nomad together with share transfer forms in respect of the shares in Nomad duly executed by the Borrower;
3.1.15 evidence satisfactory to the Lender that entry into the Security Documents to which Xxxxx is a party does not materially prejudice the interests of Nomad or its shareholders and does not materially prejudice the ability of Nomad to pay its creditors (and that the board of directors of Nomad have resolved that this is the case);
3.1.16 evidence that immediately prior to the acquisition by the Borrower of all the issued share capital in Nomad, the directors of Nomad will be Xxxx Xxxx, Xxxxxxx Xxxxx and Xxxxxxx Xxxxxxx and that appointment of such directors has been, or will be, notified to the Australian Securities and Investments Commission;
3.1.17 a currently dated letter of opinion of US counsel to the Borrower along with the opinions of local counsel for Borrower shall have been delivered to the Lender. Such opinions shall, amongst other things, opine as to the enforceability of this Agreement and the Loan Agreement as amended hereby, confirm that the existing Security delivered in connection with the Original Loan Agreement is first ranking perfected security in favour of the Lender in respect to all of the Obligations, including without limitation, the Additional Loan, and shall also address other customary enforceability, security and corporate matters;
4.1.13 3.1.18 the Borrower shall have delivered to the Lender certificates of insurance acceptable to the Lender showing, inter alia, the Lender as a first loss payee as its interest may appear on all insurance policies that insure the assets to be secured by the Security;
4.1.14 3.1.19 no Default or Event of Default shall have has occurred and be is continuing on the Second Closing Date or would result from making the Additional Loan and a senior officer of the Borrower shall have certified the same to the Lender;
4.1.15 3.1.20 all representations and warranties made by Xxxxxxxx, Nomad and Breakthrough in the Loan Documents are true and correct in all material respects;
3.1.21 no Material Adverse Effect shall have has occurred;
4.1.16 3.1.22 a source and use of funds statement and an outline of the flow of funds from the Loan shall have been delivered to the Lender evidencing that the Loan will be used solely for the Nomad Acquisition and for working capital purposes;
3.1.23 the Lender shall have received such additional evidence, documents or undertakings as the Lender shall reasonably request to establish the consummation of the transactions contemplated hereby hereby, and the Breakthrough Acquisition and the Nomad Acquisition and be satisfied, acting reasonably, as to the taking of all proceedings in connection herewith in compliance with the conditions set forth in this Third Amendment; andAgreement;
4.1.17 3.1.24 the Lender shall have completed all due diligence which it considers necessary or appropriate in its discretion in regard to Borrower and its Property, the Loan Parties Breakthrough Acquisition and their Propertythe Nomad Acquisition, books and records, operations, prospects and condition (financial or otherwise), including, without limitation, in regards to past and ongoing compliance with Applicable Laws (including Environmental Laws), union and labour relations and pension matters;
3.1.25 the Lender and the Borrower will have entered into, executed and delivered the Lender’s Nomad Distribution Agreement, all on terms satisfactory to the parties, acting reasonably;
3.1.26 concurrently therewith, the Borrower shall complete the Breakthrough Acquisition and the Nomad Acquisition on terms and conditions satisfactory to the Lender;
3.1.27 the execution and delivery of the 2015 First Warrant and the 2015 Second Warrant by the Borrower; and
3.1.28 the Second Closing Date occurs by no later than November 16, 2015; provided that if and to the extent that any Loan Document or other condition precedent set forth in this Section 3.1 and relating specifically and solely to Breakthrough or the Breakthrough Acquisition is not delivered at or prior to the Second Closing Date, then same shall instead become a condition precedent to the Lender advancing the second tranche of the Additional Loan as set forth in Section 3.2 and shall not be a waiver of such unfulfilled condition.
Appears in 1 contract
Samples: Loan Agreement (Synergy CHC Corp.)
Conditions to Loan by the Lender. The effectiveness of this Third First Amendment and the Lender’s obligation to fund the Additional Loan amount shall be subject to the following conditions precedent having been met to the satisfaction of the Lender, or, alternatively, waived in writing by the Lender:
4.1.1 3.1.1 the Borrower will pay to the Lender Thirty Six an origination fee equal to Onx Xxxxxxx Xxx Xxxxxxxx Xxxxxx Xxxxxx Xollars (US$110,000), being two percent (2%) of the Additional Loan amount, on the Second Closing Date;
3.1.2 the Borrower will pay to the Lender a work fee equal to Fifty Five Thousand United States Dollars (US$36,00055,000), being one percent (1%) as payment of the Work Fee in respect of the Additional Loan amount, (whichat the earlier of November 12, for certainty, shall be fully earned 2015 and payable on the date hereofSecond Closing Date, whether or not the Additional Loan is advanced);
4.1.2 the Borrower will pay to the Lender Five Hundred Thousand United States Dollars (US$500,000) as a partial repayment of the outstanding principal amount of the Third Tranche;
4.1.3 3.1.3 this Agreement shall have been executed and delivered by all parties hereto;
4.1.4 3.1.4 the Borrower and its each of the Subsidiaries shall have executed and delivered to the Lender the Loan Documents to which each is a confirmation of guarantee and security agreementparty including, without limitation, the Security Documents;
4.1.5 3.1.5 the Lender shall have received certified copies of the resolutions authorizing the execution, delivery and performance of Borrower’s, Nomad’s and Breakthrough’s respective obligations hereunder and copies of the resolutions of the Borrower authorizing the confirmation of guarantee and security agreement regarding under the Loan Documents to which they are a party and the transactions contemplated therein, and the incumbency of the officers of Borrower, Nomad and Breakthrough;
4.1.6 3.1.6 certificates of status or good standing, as applicable, for all relevant jurisdictions of Borrower shall have been delivered to the Lender;
4.1.7 the Loan Parties 3.1.7 certificate of incorporation and constituent documents of Nomad;
3.1.8 Borrower shall be in compliance in all material respects with all (if any) Material Contracts and Material Licences to the satisfaction of the Lender and copies of all Material Contracts and Material Licences if any, applicable to the Loan PartiesBorrower, shall have been delivered to the Lender;
4.1.8 3.1.9 evidence of repayment in full of all Debt that is not Permitted Debt owing by Borrower to any third party lenders to Borrower concurrent with the Loan shall have been delivered to the Lender;
3.1.10 evidence that all necessary or required consents or approvals of any Governmental Authority or other Person in connection with the completion of the Breakthrough Acquisition and the Nomad Acquisition and the delivery of the Loan Documents have been obtained;
4.1.9 US and Canadian Lien searches and reports thereon, and 3.1.11 releases, discharges, estoppels and postponements with respect to all Liens which are not Permitted Liens, if any, shall have been delivered to the Lender;
4.1.10 3.1.12 payment of all amounts and fees payable to the Lender (for certainty, including fees of counsel to the Lender);
4.1.11 3.1.13 duly executed copies of the Security (including any additional Security required by the Lender further to the merger of the Borrower or otherwise) shall have been delivered to the Lender and such financing statements or other registrations of such Security, or notice thereof, shall have been filed, registered, entered or recorded in all offices of public record necessary or desirable in the opinion of the Lender to preserve or protect the charges and security interests created thereby;
4.1.12 3.1.14 the Borrower shall have delivered to the Lender original share certificates in respect of all of the issued share capital in Nomad together with share transfer forms in respect of the shares in Nomad duly executed by the Borrower;
3.1.15 evidence satisfactory to the Lender that entry into the Security Documents to which Nomad is a party does not materially prejudice the interests of Nomad or its shareholders and does not materially prejudice the ability of Nomad to pay its creditors (and that the board of directors of Nomad have resolved that this is the case);
3.1.16 evidence that immediately prior to the acquisition by the Borrower of all the issued share capital in Nomad, the directors of Nomad will be Jaxx Xxxx, Stxxxxx Xxxxx xnd Tixxxxx Xolmeer and that appointment of such directors has been, or will be, notified to the Australian Securities and Investments Commission;
3.1.17 a currently dated letter of opinion of US counsel to the Borrower along with the opinions of local counsel for Borrower shall have been delivered to the Lender. Such opinions shall, amongst other things, opine as to the enforceability of this Agreement and the Loan Agreement as amended hereby, confirm that the existing Security delivered in connection with the Original Loan Agreement is first ranking perfected security in favour of the Lender in respect to all of the Obligations, including without limitation, the Additional Loan, and shall also address other customary enforceability, security and corporate matters;
4.1.13 3.1.18 the Borrower shall have delivered to the Lender certificates of insurance acceptable to the Lender showing, inter alia, the Lender as a first loss payee as its interest may appear on all insurance policies that insure the assets to be secured by the Security;
4.1.14 3.1.19 no Default or Event of Default shall have has occurred and be is continuing on the Second Closing Date or would result from making the Additional Loan and a senior officer of the Borrower shall have certified the same to the Lender;
4.1.15 3.1.20 all representations and warranties made by Borrower, Nomad and Breakthrough in the Loan Documents are true and correct in all material respects;
3.1.21 no Material Adverse Effect shall have has occurred;
4.1.16 3.1.22 a source and use of funds statement and an outline of the flow of funds from the Loan shall have been delivered to the Lender evidencing that the Loan will be used solely for the Nomad Acquisition and for working capital purposes;
3.1.23 the Lender shall have received such additional evidence, documents or undertakings as the Lender shall reasonably request to establish the consummation of the transactions contemplated hereby hereby, and the Breakthrough Acquisition and the Nomad Acquisition and be satisfied, acting reasonably, as to the taking of all proceedings in connection herewith in compliance with the conditions set forth in this Third Amendment; andAgreement;
4.1.17 3.1.24 the Lender shall have completed all due diligence which it considers necessary or appropriate in its discretion in regard to Borrower and its Property, the Loan Parties Breakthrough Acquisition and their Propertythe Nomad Acquisition, books and records, operations, prospects and condition (financial or otherwise), including, without limitation, in regards to past and ongoing compliance with Applicable Laws (including Environmental Laws), union and labour relations and pension matters;
3.1.25 the Lender and the Borrower will have entered into, executed and delivered the Lender’s Nomad Distribution Agreement, all on terms satisfactory to the parties, acting reasonably;
3.1.26 concurrently therewith, the Borrower shall complete the Breakthrough Acquisition and the Nomad Acquisition on terms and conditions satisfactory to the Lender;
3.1.27 the execution and delivery of the 2015 First Warrant and the 2015 Second Warrant by the Borrower; and
3.1.28 the Second Closing Date occurs by no later than November 16, 2015; provided that if and to the extent that any Loan Document or other condition precedent set forth in this Section 3.1 and relating specifically and solely to Breakthrough or the Breakthrough Acquisition is not delivered at or prior to the Second Closing Date, then same shall instead become a condition precedent to the Lender advancing the second tranche of the Additional Loan as set forth in Section 3.2 and shall not be a waiver of such unfulfilled condition.
Appears in 1 contract
Samples: Loan Agreement (Synergy CHC Corp.)
