payment or other sum payable hereunder will be increased to the extent
necessary to ensure that, after the making of such required withholding or
deduction, Bank receives a net sum equal to the sum which it would have received
had no withholding or deduction been required and Canadian Borrower shall pay
the full amount withheld or deducted to the relevant governmental authority.
Canadian Borrower will, upon request, furnish Bank with proof satisfactory to
Bank indicating that Canadian Borrower has made such withholding payment
provided, however, that Canadian Borrower need not make any withholding payment
if the amount or validity of such withholding payment is contested in good faith
by appropriate and timely proceedings and as to which payment in full is bonded
or reserved against by Canadian Borrower.
The agreements and obligations of
Canadian Borrower contained in this Section shall survive the termination of
this Agreement.
3
CONDITIONS OF LOANS
3.1
CONDITIONS PRECEDENT TO INITIAL CREDIT EXTENSION.
BANK'S
OBLIGATION TO MAKE THE INITIAL CREDIT EXTENSION IS SUBJECT TO THE CONDITION
PRECEDENT THAT BANK SHALL HAVE RECEIVED, IN FORM AND SUBSTANCE SATISFACTORY TO
BANK, SUCH DOCUMENTS, AND COMPLETION OF SUCH OTHER MATTERS, AS BANK MAY
REASONABLY DEEM NECESSARY OR APPROPRIATE, INCLUDING, WITHOUT LIMITATION:
(A)
BORROWER SHALL HAVE DELIVERED DULY EXECUTED ORIGINAL SIGNATURES TO
THE LOAN DOCUMENTS TO WHICH IT IS A PARTY;
(B)
BORROWER SHALL HAVE DELIVERED ITS OPERATING DOCUMENTS AND A GOOD
STANDING CERTIFICATE OF BORROWER CERTIFIED BY THE SECRETARY OF STATE OF THE
STATE OF DELAWARE/PROVINCE OF ONTARIO (AS APPLICABLE) AS OF A DATE NO EARLIER
THAN THIRTY (30) DAYS PRIOR TO THE EFFECTIVE DATE;
(C)
BORROWER SHALL HAVE DELIVERED DULY EXECUTED ORIGINAL SIGNATURES TO
THE COMPLETED BORROWING RESOLUTIONS FOR BORROWER;
(D)
BORROWER SHALL HAVE DELIVERED EVIDENCE THAT (I) THE LIENS SECURING
INDEBTEDNESS OWED BY BORROWER TO ROCKPORT/NGP WILL BE TERMINATED AND (II) THE
DOCUMENTS AND/OR FILINGS EVIDENCING THE PERFECTION OF SUCH LIENS, INCLUDING
WITHOUT LIMITATION ANY FINANCING STATEMENTS AND/OR CONTROL AGREEMENTS, HAVE OR
WILL, CONCURRENTLY WITH THE INITIAL CREDIT EXTENSION, BE TERMINATED.
(E)
BANK SHALL HAVE RECEIVED CERTIFIED COPIES, DATED AS OF A RECENT
DATE, OF FINANCING STATEMENT SEARCHES, AS BANK SHALL REQUEST, ACCOMPANIED BY
WRITTEN EVIDENCE (INCLUDING ANY UCC TERMINATION STATEMENTS AND/OR PPSA
DISCHARGES) THAT THE LIENS INDICATED IN ANY SUCH FINANCING STATEMENTS EITHER
CONSTITUTE PERMITTED LIENS OR HAVE BEEN OR, IN CONNECTION WITH THE INITIAL
CREDIT EXTENSION, WILL BE TERMINATED OR RELEASED;
(F)
BORROWER SHALL HAVE DELIVERED THE PERFECTION CERTIFICATES
EXECUTED BY BORROWER;
4
(G)
BORROWER SHALL HAVE DELIVERED LANDLORDS' CONSENTS IN FAVOR OF BANK
WITH RESPECT TO SUCH OF BORROWER'S LOCATION AS BANK MAY REASONABLY REQUIRE;
(H)
BORROWER SHALL HAVE DELIVERED A LEGAL OPINION OF BORROWER'S
COUNSEL DATED AS OF THE EFFECTIVE DATE TOGETHER WITH THE DULY EXECUTED ORIGINAL
SIGNATURES THERETO;
(I)
BORROWER SHALL HAVE DELIVERED EVIDENCE SATISFACTORY TO BANK THAT
THE INSURANCE POLICIES REQUIRED BY SECTION 6.7 HEREOF ARE IN FULL FORCE AND
EFFECT, TOGETHER WITH APPROPRIATE EVIDENCE SHOWING LOSS PAYABLE AND/OR
ADDITIONAL INSURED CLAUSES OR ENDORSEMENTS IN FAVOR OF BANK; AND
(J)