PPP Loan. (a) Seller has provided Buyer that certain Note (the “PPP Note”), dated May 5, 2020, made by the Company in favor of Customers Bank (the “PPP Lender”) in the original principal amount of $66,117.00 (the “PPP Loan”). The Parties acknowledge and agree that Sellers and/or their agents have made repeated attempts to contact the PPP Lender (and/or its partners) in order to: (a) obtain the PPP Lender’s written consent to the transactions contemplated by this Agreement prior to the Closing Date, and (b) comply with the “change of ownership” requirements set forth in SBA Procedural Notice 5000-20057, Paycheck Protection Program Loans and Changes of Ownership, effective October 2, 2020 (as amended or further clarified, the “SBA Consent Guidance”) prior to the Closing Date (collectively, (a) and (b), the “PPP Consents”), and that the PPP Lender and its partners have not made themselves available for any discussion with Sellers. The Parties further acknowledge and agree that the consummation of the transactions contemplated by this Agreement (y) will be an event of default under the PPP Loan because the PPP Lender (or its partners) will not have consented to the change of ownership of the Company prior to the Closing Date and (z) do not comply with requirements set forth in the SBA Consent Guidelines and thus such transactions will be a breach of such SBA Consent Guidelines (including failure to obtain SBA consent to the transactions contemplated herein).
(b) The Buyer shall retain sole right and authority to pursue any appeal or other action in respect of or in response to any limitation or denial of forgiveness in respect of the total amount that is due and outstanding under the PPP Loan, including the total principal and all accrued interest and any fees due thereon (the “PPP Escrow Amount”). From and after the Closing Date, the Buyer shall, and shall cause its affiliates (including, the Company after the Closing) to, execute and deliver true, accurate and complete additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably necessary to comply with the Paycheck Protection Program administered by the U.S. Small Business Administration (the “PPP”) in connection with the PPP Loan and effectuate the forgiveness of the PPP Loan (“PPP Loan Forgiveness”) in accordance with the requirements of the PPP and any related or applicable laws (including with respect to any audit, review or investigation by the SBA or the PPP L...
PPP Loan. On or about January 24, 2022, the PPP Loan was forgiven in full by the PPP Lender and the U.S. Small Business Administration in accordance with the terms of the PPP Loan, CARES Act, and all other applicable Laws.
PPP Loan. (a) The Company and each of its Subsidiaries have complied in all material respects with all applicable requirements under the CARES Act and all applicable requirements under the Small Business Act, including the legal requirements and regulations thereunder applicable to the PPP Loan (the “Applicable PPP Laws”), in applying for, calculating the permitted amount of, receiving, using and seeking forgiveness of the funds borrowed under the PPP Loan. All funds borrowed under the PPP Loan have been used by the Company alone solely for approved purposes in accordance with the Applicable PPP Laws.
(b) The Company accurately certified, at the time of applying for the PPP Loan, that current economic uncertainty made the PPP Loan necessary to support ongoing operations of the Company.
(c) The Company has submitted a single forgiveness application for the PPP Loan, which calculates the Company’s eligible forgiveness amount as equal to the full PPP Loan amount. To the Knowledge of the Company, the Company was, at the time such application was submitted, eligible to apply for, and as of the date hereof remains eligible to, receive forgiveness of the PPP Loan in full based on the information that the Company included in the forgiveness application submitted by it. All certifications and representations and warranties made by the Company in such forgiveness application or otherwise required in connection therewith were true, correct and complete as of the date they were made. The Company has not used any portion of the PPP Loan for any purpose that would render any portion of its PPP Loan ineligible for forgiveness under Applicable PPP Laws.
(d) Other than the PPP Loan, the Company and its Subsidiaries have not incurred any Indebtedness or otherwise applied for or sought any grants or other sources of funding pursuant to any Applicable PPP Laws.
PPP Loan. The Company repaid the PPP Loan in full on April 30, 2020. Since April 30, 2020, (i) there have been no amounts outstanding under or any other liabilities incurred, owed or payable with respect to the PPP Loan and (ii) neither the Company nor any of its Affiliates has had any obligations with respect to the PPP Loan. Other than the PPP Loan, neither the Company nor any of its Affiliates has applied for or accepted any benefit from an assistance program related to COVID-19 devised or supervised by a Governmental Entity, including any loans, grants, Tax holidays or other Tax benefits or relief under the U.S. Paycheck Protection Program or other provisions of the Coronavirus Aid, Relief, and Economic Security Act (including Sections 2301 or 2302 thereof) or any similar applicable Law.
PPP Loan. (a) Prior to Closing and prior to any deadline for such application, the Company shall complete a forgiveness application with respect to the PPP Loan reflecting its use of all of the PPP loan proceeds received pursuant to the PPP Loan, and submit such application, together with any required supporting documentation, to the PPP Lender (the “Forgiveness Application”).
(b) If and to the extent that there is a PPP Loan Amount as of the Closing Date, (x) at the Closing, one of the Surf Entities or NewCo shall deliver the PPP Loan Amount to the PPP Lender to be held in the PPP Escrow Account pursuant to the PPP Escrow Agreement (the “PPP Escrow Fund”) and (y) the Aggregate Cash Consideration shall be reduced by the PPP Loan Amount.
(c) The PPP Escrow Fund, if one is so created pursuant to Section 5.16(b), shall be held in accordance with the terms and provisions of the PPP Escrow Agreement until the final resolution of the PPP Loan Forgiveness Amount. All Parties hereto agree for all Tax purposes that NewCo shall be treated as the owner of 100% of the PPP Escrow Fund, if such fund is created pursuant to Section 5.16(b), and (i) all interest and earnings earned from the investment and reinvestment of the PPP Escrow Fund, or any portion thereof, shall be allocable to NewCo, and (ii) if and to the extent any amount of the PPP Escrow Fund is actually distributed to the Stockholders, interest may be imputed on such amount, as required by Section 483 or 1274 of the Code. No Party hereto shall take any action or filing position inconsistent with the foregoing.
(d) Following the final determination by the SBA of the PPP Loan Forgiveness Amount, the PPP Escrow Fund shall be disbursed as follows:
(i) first, to repay any outstanding principal and interest that is not Forgiven (i.e., the Unforgiven PPP Loan Amount) and remains payable by the Company or any of its Subsidiaries following such determination under the PPP Loan; and
(ii) second, after giving effect to the payments described in the foregoing subclause (i), any remaining amount (i.e., the PPP Loan Forgiveness Amount) to the Exchange Agent, on behalf of the Stockholders, for disbursement to the Stockholders pursuant to Section 5.16(e).
(e) Within two (2) Business Days after the Exchange Agent receives the PPP Loan Forgiveness Amount from the PPP Lender pursuant to the terms of the PPP Escrow Agreement and Section 5.16(d) above, the Company, the Surf Entities and the Stockholders shall cause the Exchange Agent to d...
PPP Loan. Within two (2) Business Days after the receipt thereof, copies of any material notices received in respect of the SBA PPP Loan.
PPP Loan. With respect to the PPP Loan and any such amount is released after the Closing Date from the PPP Loan Escrow Account, Buyer and Seller shall take all reasonably necessary actions to ensure that such amounts are delivered to Seller by wire transfer. Seller and Buyer each covenant and agree (i) to cooperate as reasonably requested by the other party with respect to seeking forgiveness of the PPP Loan as soon as commercially practicable following the Closing; (ii) to use commercially reasonable efforts not to take any action that may negatively impact forgiveness of the PPP Loan or compliance with any relevant loan covenants (including, among other things, complying with the use requirements and other terms and not taking actions that would reasonably be expected to negatively affect the ability to seek forgiveness); and (iii) to cooperate in ensuring reasonable access is granted to relevant books and records and to individuals involved in the application for and administration of the PPP Loan; provided, however, that nothing in this Section 5.07 shall prevent the Company or Buyer from taking any action required by applicable Law.
PPP Loan. Prior to the Closing Date, the Members’ Representative shall notify CHC of the outstanding balance of the PPP Loan. Following the Closing, CHC shall cause the Surviving Company to continue to comply with the terms of the PPP Loan so as to maximize the amount to be forgiven, including submitting any required applications for forgiveness in a timely manner, as directed by the Members’ Representative.
PPP Loan. Co-Borrower shall or shall cause each of the applicable Subsidiaries to maintain the records required to be submitted by the CARES Act in order for the PPP Loan to be forgiven in full in accordance with the terms of the CARES Act. Each Co-Borrower agrees that such Co-Borrower shall not use the proceeds of any Credit Extension provided under this Agreement for any purpose permitted under Section 7(a) of the Small Business Act prior to the application, in full, of all proceeds from the PPP Loan (unless otherwise agreed to in writing by Bank). Each Co-Borrower agrees that Co-Borrower shall not amend, modify or waive any rights relating to, or any agreement relating to, the PPP Loan and the documents evidencing the PPP Loan, in a manner that is adverse to Bank’s interests.”
2.7 Section 8.2
PPP Loan. The Company has obtained a “Paycheck Protection Program” (“PPP”) loan through the U.S. Small Business Administration (the “PPP Loan”) under the CARES Act. At the time of application, and at the time each PPP Loan was funded, the Company satisfied and the Company continues to satisfy all of the applicable criteria for each PPP Loan set forth in the Small Business Act (15 U.S.C. 636(a)) and the CARES Act (based on applicable Law, including any official public guidance of the relevant Governmental Authority on the CARES Act, existing as of the date of submission of the Company’s application for each PPP Loan), including without limitation, that the proceeds of each PPP Loan were used solely for CARES Act Permitted Purposes. The application materials and supporting documentation with respect to each PPP Loan delivered by the Company to the financial institution providing each PPP Loan were true and correct in all material respects. The loan forgiveness application materials and supporting documentation with respect to each PPP Loan delivered by the Company to the financial institution providing each PPP Loan were true and correct in all material respects.
