Conditions Precedent to Term Loan. Lender’s obligation to advance the Term Loan is subject to the satisfaction (or waiver in accordance with Section 11.5 hereof) of the following conditions: (a) Lender’s receipt of copies of the Loan Documents (including the Term Loan Note, executed by Borrower, and the Collateral Documents but excluding any Control Agreements and any other Loan Document described in Schedule 5.14 of the Disclosure Letter to be delivered after the Closing Date) executed and delivered by each applicable Credit Party, the Disclosure Letter, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Disclosure Letter be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update)) and each other schedule to such Loan Documents (the Disclosure Letter and such other schedules to be in form and substance reasonably satisfactory to Lender); (b) Lender’s receipt of (i) true, correct and complete copies of the Operating Documents of each of the Credit Parties, and (ii) a Secretary’s Certificate, dated the Closing Date, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be in form and substance reasonably satisfactory to Lender); (c) Lender’s receipt of the Perfection Certificate for Borrower and its Subsidiaries, in form and substance reasonably satisfactory to Lender, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Perfection Certificate be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update)); (d) Lender’s receipt of a good standing certificate for each Credit Party (where applicable), certified by the Secretary of State (or the equivalent thereof) of the jurisdiction of incorporation or formation of such Credit Party as of a date no earlier than thirty (30) days prior to the Closing Date; (e) Lender’s receipt of a Secretary’s Certificate with completed Borrowing Resolutions with respect to the Loan Documents and the Term Loan for each Credit Party, in form and substance reasonably satisfactory to Lender; (f) each Credit Party shall have obtained all Governmental Approvals and all consents of other Persons, if any, in each case that are necessary in connection with the transactions contemplated by the Loan Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Lender; (g) Lender’s receipt of (i) an opinion of counsel to all of the Credit Parties other than Amicus Biologics, Inc. and (ii) an opinion of counsel to Amicus Biologics, Inc., in each case in form and substance reasonably satisfactory to Lender; (h) Lender’s receipt of (i) evidence that the products liability and general liability insurance policies maintained regarding any Collateral are in full force and effect and (ii) appropriate evidence showing loss payable or additional insured clauses or endorsements in favor of Lender (such evidence to be in form and substance reasonably satisfactory to Lender); (i) Lender’s receipt of all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”); (j) payment of Lender Expenses and other fees then due as specified in Section 2.4 hereof; (k) Lender’s receipt of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming there is no Adverse Proceeding pending or, to the Knowledge of Borrower, threatened, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change, except as set forth on Schedule 4.7 of the Disclosure Letter (such certificate to be in form and substance reasonably satisfactory to Lender); and (l) Lender’s receipt of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming satisfaction of the conditions precedent set forth in this Section 3.1 and in Section 3.2 (such certificate to be in form and substance reasonably satisfactory to Lender).
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement (Amicus Therapeutics Inc)
Conditions Precedent to Term Loan. Lender’s obligation No Lender shall be obligated to advance make its Pro Rata Share of the Term Loan is subject Loan, or to the satisfaction (take, fulfill, or waiver in accordance with Section 11.5 hereof) of perform any other action hereunder, until the following conditions:have been delivered to Agent, in form and substance satisfactory to Agent and Lenders (the date on which Lenders make the Term Loan, the “Closing Date”):
(a) Lender’s receipt a counterpart of copies of the Loan Documents (including the Term Loan Note, this Agreement duly executed by Borrower, and the Collateral Documents but excluding any Control Agreements and any other each Loan Document described in Schedule 5.14 of the Disclosure Letter to be delivered after the Closing Date) executed and delivered by each applicable Credit Party, the Disclosure Letter, if each Lender and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Disclosure Letter be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update)) and each other schedule to such Loan Documents (the Disclosure Letter and such other schedules to be in form and substance reasonably satisfactory to Lender)Agent;
(b) Lender’s receipt a certificate duly executed by the Secretary or Assistant Secretary of each Loan Party, the form of which is attached as Exhibit A, providing verification of incumbency and certifying as to and attaching (i) true, correct and complete copies of the Operating Documents of each of the Credit Parties, and (ii) a Secretarysuch Loan Party’s Certificate, dated the Closing Date, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be in form and substance reasonably satisfactory to Lender);
(c) Lender’s receipt of the Perfection Certificate for Borrower and its Subsidiaries, in form and substance reasonably satisfactory to Lender, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Perfection Certificate be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update));
(d) Lender’s receipt of a good standing certificate for each Credit Party (where applicable), certified by the Secretary of State (or the equivalent thereof) of the jurisdiction of incorporation or formation of such Credit Party as of a date no earlier than thirty (30) days prior to the Closing Date;
(e) Lender’s receipt of a Secretary’s Certificate with completed Borrowing Resolutions with respect to the Loan Documents and the Term Loan for each Credit Party, in form and substance reasonably satisfactory to Lender;
(f) each Credit Party shall have obtained all Governmental Approvals and all consents of other Persons, if any, in each case that are necessary in connection with board resolutions approving the transactions contemplated by the Loan Documents and (ii) such Loan Party’s formation documents certified by the Secretary of State of such Loan Party’s state of formation as of a recent date acceptable to Agent and such Loan Party’s governing documents;
(c) Notes duly executed by Borrower in favor of each Lender that has requested a Note;
(d) filed copies of UCC financing statements, collateral assignments, and termination statements, with respect to the foregoing Collateral, as Agent shall be request;
(e) certificates of insurance evidencing the insurance coverage and satisfactory additional insured and lender loss payable endorsements, in full force each case as required pursuant to Section 6.4; Loan and effect Security Agreement - Amedica
(f) certified copies, dated as of a recent date acceptable to Agent, of UCC, judgment, bankruptcy and in form and substance reasonably satisfactory to Lendertax lien search results demonstrating that there are no Liens on the Collateral other than Permitted Liens;
(g) Lendera certificate of status/good standing of each Loan Party from the jurisdiction of such Loan Party’s receipt organization and a certificate of (i) an opinion of counsel foreign qualification from each jurisdiction where such Loan Party’s failure to all of the Credit Parties other than Amicus Biologics, Inc. and (ii) an opinion of counsel be so qualified could reasonably be expected to Amicus Biologics, Inc.have a Material Adverse Effect, in each case in form and substance reasonably satisfactory certified as of a recent date acceptable to LenderAgent;
(h) Lender’s receipt an executed legal opinion of (i) evidence that the products liability and general liability insurance policies maintained regarding any Collateral are in full force and effect and (ii) appropriate evidence showing loss payable or additional insured clauses or endorsements in favor of Lender (such evidence to be Loan Parties’ counsel, in form and substance reasonably satisfactory to Lender)Agent;
(i) Lender’s receipt of all documentation and other information required an Automatic Payment Authorization Agreement, duly executed by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”)Borrower;
(j) payment of Lender Expenses a Perfection Certificate completed and other fees then due as specified in Section 2.4 hereofduly executed by each Loan Party;
(k) Lender’s receipt of a certificateDisbursement Letter, dated duly executed by each Loan Party, Agent and Lenders;
(l) one or more Account Control Agreements, duly executed by the Closing Date applicable Loan Parties and signed by a Responsible Officer of Borrower, confirming there is no Adverse Proceeding pending orthe applicable depository or financial institution, to the Knowledge extent required pursuant to Section 6.10;
(m) a Pledge Agreement, duly executed by each Loan Party, together with the certificates and instruments required to be delivered in connection therewith and related undated powers and endorsements duly executed in blank;
(n) a Guaranty Agreement, duly executed by each Guarantor;
(o) a Warrant in favor of Borrower, threatened, that, individually each Term Loan Lender (or in the aggregate, could reasonably be expected to result in a Material Adverse Change, except as set forth on Schedule 4.7 its Affiliate or designee) for such Term Loan Lender’s Pro Rata Share of the Disclosure Letter number of shares of Stock of Borrower described in Section 2.7, duly executed by Borrower;
(p) the Intellectual Property Security Agreement required by Section 3.1, duly executed by each Loan Party;
(q) a pay-off letter satisfactory to Agent and duly executed by GECC, for itself and in its capacity as administrative and collateral agent for all lenders under the Existing Indebtedness, confirming that all of the Indebtedness and other obligations owed under the Existing Indebtedness will be repaid in full from the proceeds of the Term Loan and all Liens upon any Loan Party’s property in favor of GECC and the lenders under the Existing Indebtedness shall be terminated immediately upon such certificate payment;
(r) all fees required to be in form paid by Borrower under the Loan Documents, and substance reasonably satisfactory to Lender)Borrower shall have reimbursed Agent and Lenders for all fees, costs and expenses presented as of the Closing Date; and
(ls) Lender’s receipt all other documents and instruments as Agent or any Lender may reasonably deem necessary or appropriate to effectuate the intent and purpose of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming satisfaction of the conditions precedent set forth in this Section 3.1 and in Section 3.2 (such certificate to be in form and substance reasonably satisfactory to Lender)Agreement.
Appears in 2 contracts
Samples: Loan and Security Agreement, Loan and Security Agreement (AMEDICA Corp)
Conditions Precedent to Term Loan. Lender’s The obligation of the Lender to advance convert the principal amount owed for all Revolving Loans to the Term Loan is shall be subject to the satisfaction (or waiver in accordance with Section 11.5 hereof) fulfillment of each of the following conditionsconditions precedent on or before the Revolving Loan Maturity Date in a manner satisfactory to the Lender:
(a) Lender’s receipt of copies of The following statements shall be true and correct on the Loan Documents (including the Term Loan Note, executed by BorrowerConversion Date, and the Collateral Documents but excluding any Control Agreements and any other Loan Document described in Schedule 5.14 Lender shall have received a certificate incorporating by reference the definitions of the Disclosure Letter to be delivered after capitalized terms defined in this Agreement, signed by an Authorized Representative set forth on the Closing Authorized Representative Certificate and dated the Conversion Date, stating that:
(i) executed the representations and delivered by each applicable Credit Partywarranties of the Authority contained in the Indenture, the Disclosure LetterBank Note and this Agreement are true and correct, if and deemed made, on and as of the Conversion Date as though made on and as of such date (except to the extent any update thereto is necessary between the Effective Date such representation or warranty specifically relates to an earlier date, then such representation or warranty shall be true and the Closing Date correct as of such earlier date);
(provided, that in ii) No Material Adverse Effect shall have occurred; and
(iii) no event may the Disclosure Letter be updated in a manner that would reflect or evidence a Default or Event of Default (with has occurred and is continuing as of such Conversion Date or without such update)) and each other schedule would result from converting the Revolving Loans to such a Term Loan Documents (the Disclosure Letter and such other schedules to be in form and substance reasonably satisfactory to Lender);as requested; and
(b) Lender’s receipt (i)(A) the Lender shall be satisfied that the opinion of Bond Counsel delivered pursuant to Section 2.4(b)(iv) hereof remains in full force and effect with respect to the Term Loan or (iB) true, correct and complete copies the Lender shall have received (1)(x) an opinion from Bond Counsel dated the date of the Operating Documents Term Loan as to the exclusion of each of interest on the Credit Parties, and (ii) a Secretary’s Certificate, dated the Closing Date, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be in form and substance reasonably satisfactory to Lender);
(c) Lender’s receipt of the Perfection Certificate Term Loan from gross income for Borrower and its Subsidiariesfederal income tax purposes, in form and substance reasonably satisfactory to Lender, if the Lender and as to the extent any update thereto is necessary between the Effective Date validity and the Closing Date (provided, that in no event may the Perfection Certificate be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update));
(d) Lender’s receipt of a good standing certificate for each Credit Party (where applicable), certified by the Secretary of State (or the equivalent thereof) of the jurisdiction of incorporation or formation of such Credit Party as of a date no earlier than thirty (30) days prior to the Closing Date;
(e) Lender’s receipt of a Secretary’s Certificate with completed Borrowing Resolutions enforceability with respect to the Loan Documents Authority of this Agreement, the Bank Note and the Term Loan for each Credit PartyIndenture, (y) an executed Supplemental Tax Certificate and (z) an IRS Form 8038-G has been duly completed by the Authority and signed by the Authority or (2) the Lender shall have received an opinion of Bond Counsel in form and substance reasonably satisfactory to Lender;
the Lender (fx) each Credit Party shall have obtained all Governmental Approvals and all consents of other Persons, if any, in each case that are necessary in connection with such conversion will not adversely affect the transactions contemplated by the Loan Documents and each tax exempt status of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Lender;
(g) Lender’s receipt of (i) an opinion of counsel to all of interest on the Credit Parties other than Amicus Biologics, Inc. and (ii) an opinion of counsel to Amicus Biologics, Inc., in each case in form and substance reasonably satisfactory to Lender;
(h) Lender’s receipt of (i) evidence that the products liability and general liability insurance policies maintained regarding any Collateral are in full force and effect and (ii) appropriate evidence showing loss payable or additional insured clauses or endorsements in favor of Lender (such evidence to be in form and substance reasonably satisfactory to Lender);
(i) Lender’s receipt of all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”);
(j) payment of Lender Expenses and other fees then due as specified in Section 2.4 hereof;
(k) Lender’s receipt of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming there is no Adverse Proceeding pending or, to the Knowledge of Borrower, threatened, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change, except as set forth on Schedule 4.7 of the Disclosure Letter (such certificate to be in form and substance reasonably satisfactory to Lender); Loans and
(l) Lender’s receipt of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming satisfaction of the conditions precedent set forth in this Section 3.1 and in Section 3.2 (such certificate to be in form and substance reasonably satisfactory to Lender).
Appears in 2 contracts
Samples: Revolving Credit Agreement, Revolving Credit Agreement
Conditions Precedent to Term Loan. Lender’s obligation The agreement of the Lenders to advance the Term Loan on the Closing Date is subject to the satisfaction (or waiver in accordance with Section 11.5 hereof; provided, that Agent may, in its sole discretion, agree to allow the satisfaction of any such conditions within a reasonable period of time after the Closing Date) of the following conditions:
: (a) Lenderthe Agent’s receipt of copies of the Loan Documents (including including, to the extent requested by a Lender, a Term Loan Note, executed by BorrowerXxxxxxxx, and the Collateral Documents (including Control Agreements with respect to each Collateral Account other than Excluded Accounts), but excluding any Control Agreements and any other Loan Document described in Schedule 5.14 of the Disclosure Letter as in effect on the Effective Date to be delivered after the Closing Date) executed and delivered by each applicable Credit PartyParty and Lender, -16- which Loan Documents shall be in form and substance reasonably satisfactory to the Agent, the Disclosure Letter, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Disclosure Letter be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update)) and each other schedule to such Loan Documents (the Disclosure Letter and such other schedules to be in form and substance reasonably satisfactory to Lenderthe Agent);
; (b) Lenderthe Agent’s receipt of (i) true, correct and complete copies of the Operating Documents (other than in respect of a U.K. Credit Party) of each of the Credit Parties, and (ii) a Secretary’s CertificateCertificate (other than in respect of a U.K. Credit Party), dated the Closing Date, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be in form and substance reasonably satisfactory to Lenderthe Agent);
; (c) Lenderthe Agent’s receipt of (i) the Perfection Certificate for Borrower Parent and its Subsidiaries, in form and substance reasonably satisfactory to Lenderthe Agent, if (ii) copies of the appropriate UCC financing statement forms and U.S. intellectual property filing documents, as applicable, with respect to the Collateral of the Credit Parties, in each case, for filing with the appropriate entity on or promptly after the Closing Date, and (iii) the certificated securities (together with undated stock powers endorsed in blank) of the Credit Parties and such each such Credit Party’s first-tier Subsidiaries to the extent any update thereto is necessary between required to be delivered pursuant to the Effective Date and the Closing Date (provided, that in no event may the Perfection Certificate be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update));
Collateral Documents; (d) Lenderthe Agent’s receipt of a good standing certificate for each Credit Party (where applicable), certified by the Secretary of State (or the equivalent thereof) of the jurisdiction of incorporation or formation of such Credit Party as of a date no earlier than thirty (30) days prior to the Closing Date;
; (e) Lenderthe Agent’s receipt of a Secretary’s Certificate with completed Borrowing Resolutions with respect to the Loan Documents and the Term Loan for each Credit Party (other than a U.K. Credit Party), in form and substance reasonably satisfactory to Lender;
the Agent; (f) the Agent’s receipt of a formalities certificate (signed by a director) for each U.K. Credit Party shall have obtained all Governmental Approvals certifying, amongst other matters, (i) as to the names and all consents signatures of other Personseach director of such U.K. Credit Party executing any Loan Document to which it is a party, if any(ii) that the constitutional documents of such U.K. Credit Party attached thereto are complete and correct copies of such constitutional documents as in effect on the date of such certification, in each case that are necessary in connection with (iii) as to the transactions contemplated by the Loan Documents and each resolutions of the foregoing shall board of directors for each U.K. Credit Party or other appropriate governing body approving and authorizing the execution, delivery and performance of each Loan Document to which it is a party, (iv) as to the ordinary resolutions of the sole member of each U.K. Credit Party approving and authorizing the execution, delivery and performance of each Loan document to which it is a party, (v) that the borrowing, guaranteeing or securing, as appropriate, the Term Loan Commitments would not cause any borrowing, guaranteeing, securing or similar limit binding on it to be exceeded and that (vi) that any copy document relating to it is correct, complete and in full force and effect and in form and substance reasonably satisfactory to Lender;
on the date of such certification; (g) Lenderwith respect to any U.K. Credit Party whose shares are the subject to the Collateral (a “Charged Company”), the Agent’s receipt of either (i) a certificate of an opinion authorized signatory of counsel each such U.K. Credit Party certifying that: (A) it has complied within the relevant timeframe with any notice it has received pursuant to all Part 21A of the Companies Act 2006 from that Charged Company; and (B) no “warning notice” or “restrictions notice” (in each case as defined in Schedule 1B of the Companies Act 2006) has been issued in respect of those shares, together with a copy of the “PSC register” (within the meaning of section 790C(10) of the Companies Act 2006) of that Charged Company which is certified by an authorized signatory of the U.K. Credit Parties other Party to be correct, complete and not amended or superseded as at a date no earlier than Amicus Biologics, Inc. and the date of this Agreement; or (ii) a certificate of an opinion of counsel to Amicus Biologics, Inc., in each case in form and substance reasonably satisfactory to Lender;
(h) Lender’s receipt of (i) evidence that the products liability and general liability insurance policies maintained regarding any Collateral are in full force and effect and (ii) appropriate evidence showing loss payable or additional insured clauses or endorsements in favor of Lender (such evidence to be in form and substance reasonably satisfactory to Lender);
(i) Lender’s receipt of all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”);
(j) payment of Lender Expenses and other fees then due as specified in Section 2.4 hereof;
(k) Lender’s receipt of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming there is no Adverse Proceeding pending or, to the Knowledge of Borrower, threatened, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change, except as set forth on Schedule 4.7 authorized signatory of the Disclosure Letter (U.K. Credit Party certifying that such certificate Charged Company is not required to be in form and substance reasonably satisfactory to Lender); and
(l) Lender’s receipt of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming satisfaction comply with Part 21A of the conditions precedent set forth in this Section 3.1 and in Section 3.2 (such certificate to be in form and substance reasonably satisfactory to Lender).Companies Act 2006; -17-
Appears in 1 contract
Conditions Precedent to Term Loan. Lender’s obligation to advance make the Term Loan is subject to the satisfaction (condition precedent that Lender shall have received, in form and substance satisfactory to Lender, such documents, and completion of such other matters, as Lender may reasonably deem necessary or waiver in accordance with Section 11.5 hereof) of the following conditionsappropriate, including, without limitation:
(a) Lender’s receipt of copies of Duly executed counterparts to the Loan Documents (including the Term Loan Note, executed by Borrower, and the Collateral Documents but excluding any Control Agreements and any other Loan Document described in Schedule 5.14 of the Disclosure Letter to be delivered after the Closing Date) executed and delivered by each applicable Credit Party, the Disclosure Letter, if and to the extent any update thereto which it is necessary between the Effective Date and the Closing Date (provided, that in no event may the Disclosure Letter be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update)) and each other schedule to such Loan Documents (the Disclosure Letter and such other schedules to be in form and substance reasonably satisfactory to Lender)party;
(b) Lender’s receipt of (i) true, correct and complete copies of Duly executed counterparts to the Operating Documents of each of the Credit Parties, and (ii) a Secretary’s Certificate, dated the Closing Date, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be Control Agreement referenced in form and substance reasonably satisfactory to Lender)Section 5.2 below;
(c) Lender’s receipt of the Perfection Certificate for Borrower shall have delivered its Operating Documents and its Subsidiaries, in form and substance reasonably satisfactory to Lender, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Perfection Certificate be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update));
(d) Lender’s receipt of a good standing certificate for each Credit Party (where applicable), of Borrower certified by the Secretary of State (or the equivalent thereof) of the jurisdiction State of incorporation or formation of such Credit Party Delaware as of a date no earlier than thirty (30) days prior to the Closing Effective Date;
(d) Duly executed counterparts to the completed Borrowing Resolutions for Borrower;
(e) Lender’s receipt Lender shall have received certified copies, dated as of a Secretary’s Certificate recent date, of financing statement searches, as Lender shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with completed Borrowing Resolutions with respect to the Loan Documents and the Term Loan for each Credit PartyLoan, in form and substance reasonably satisfactory to Lenderwill be terminated or released;
(f) each Credit Party Borrower shall have obtained all Governmental Approvals and all consents delivered a customary legal opinion of other Persons, if any, in each case that are necessary in connection Borrower’s counsel dated as of the Effective Date together with the transactions contemplated by the Loan Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Lenderduly executed counterparts thereto;
(g) Lender’s receipt of (i) an opinion of counsel to all of the Credit Parties other than Amicus Biologics, Inc. and (ii) an opinion of counsel to Amicus Biologics, Inc., in each case in form and substance reasonably Borrower shall have delivered evidence satisfactory to Lender;
(h) Lender’s receipt of (i) evidence Lender that the products liability and general liability insurance policies maintained regarding any Collateral required by Section 6.2 hereof are in full force and effect and (ii) effect, together with appropriate evidence showing loss payable or and/or additional insured clauses or endorsements in favor of Lender (such evidence to be in form and substance reasonably satisfactory to Lender);
(ih) Lender’s receipt of all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including Borrower shall have paid the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”);
(j) payment of Lender Expenses and other fees then due as specified in Section 2.4 hereof2.3 hereof and in the invoices delivered thereunder;
(ki) Lender’s receipt of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming there is no Adverse Proceeding pending or, to the Knowledge of Borrower, threatened, that, individually or in the aggregate, could reasonably The MSA Amendment shall be expected to result in a Material Adverse Change, except as set forth on Schedule 4.7 of the Disclosure Letter (such certificate to be in form and substance reasonably satisfactory to Lender)effective; and
(lj) Lender’s receipt of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming satisfaction of the conditions precedent set forth in this Section 3.1 and in Section 3.2 (such certificate to The Information Rights Agreement shall be in form and substance reasonably satisfactory to Lender)effective.
Appears in 1 contract
Conditions Precedent to Term Loan. Lender’s obligation to advance the Term Loan is subject to the satisfaction condition precedent that Lender shall have received such documents, in form and substance satisfactory to Lender or such other matters shall have been completed (or waiver otherwise expressly waived in accordance with Section 11.5 hereof) of the following conditionswriting in Lender’s sole discretion), as follows:
(a) Lender’s receipt of copies of the Loan Documents (including the Term Loan Note, executed by Borrower, and the Collateral Documents but excluding any Control Agreements and any other Loan Document described in Schedule 5.14 of the Disclosure Letter to be delivered after the Closing Date) originally executed and delivered by each applicable Credit Party, the Disclosure Letter, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Disclosure Letter be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update)) and each other schedule to such Loan Documents (the Disclosure Letter and such other schedules to be in form and substance reasonably satisfactory to Lender), including this Agreement, the Security Agreement, each IP Agreement and each Control Agreement required by the Lender;
(b) Lender’s receipt of (i) true, correct and complete copies of the Operating Documents of the Borrower and each of the other Credit Parties, and (ii) a Secretary’s Certificate, dated the Closing Date, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be in form and substance reasonably satisfactory to Lender)Party;
(c) Lender’s receipt of the Perfection Certificate Certificates for Borrower and its the Material Subsidiaries, in form and substance reasonably satisfactory to Lender, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Perfection Certificate be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update));
(d) Lender’s receipt the organizational structure and capital structure of Borrower and each of its Subsidiaries shall be as set forth on Schedule 3.1(d);
(e) a good standing certificate for each Credit Party Borrower, Novocure Inc. and Novocure USA LLC, certified (where applicable), certified ) by the Secretary of State (or the equivalent thereof) of the jurisdiction State of incorporation or formation of such Credit Party entity or (with respect to the Borrower) issued by the Jersey Financial Services Commission as of a date no earlier than thirty (30) days prior to the Closing Funding Date; with respect to Novocure Luxembourg and Novocure Capital (i) a certificate of non-inscription of a judicial decision (certificat de non inscription de decision judiciaire) issued by the Luxembourg Register of Commerce and Companies (the RCS) dated no earlier than one Business Day prior to the Funding Date and (ii) Excerpts from the RCS dated no earlier than one Business Day prior to the Funding Date;
(ef) Lender(i) a director’s receipt of a or Secretary’s Certificate with completed Borrowing Resolutions with respect to for Borrower and each Material Subsidiary and (ii) for any Immaterial subsidiaries, such other documentation evidencing approval of the Loan Documents and the Term Loan for each Credit Party, in form and substance transactions hereunder as is reasonably satisfactory acceptable to Lender;
(fg) certified copies, dated as of a recent date, of lien searches, as Lender shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements or other documents either constitute Permitted Liens or have been or, in connection with the Term Loan, will be terminated or released;
(h) Borrower and each Credit Party Material Subsidiary shall have obtained all Governmental Approvals and all consents of other Persons, if any, in each case that are necessary in connection with the transactions contemplated by the Loan Documents and each of the foregoing shall be in full force and effect effect. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose material and adverse conditions on the transactions contemplated by the Loan Documents or the financing thereof and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired;
(i) a landlord’s consent in favor of Lender for the Credit Parties’ leased locations in Portsmouth, NH and Root, Switzerland by the respective landlord thereof (which consent shall include an agreement by such landlord to permit reasonable access to such leased premises by Lender or its agents upon an Event of Default for purposes of removal of any and all Collateral, if such leased premises is a warehouse, distribution center or other location at which a material amount of Collateral is located), together with the duly executed original signatures thereto;
(j) opinions of counsel (which counsel shall be reasonably satisfactory to Lender) to the Credit Parties, including the opinion of Sidley Austin LLP, Ogier (with respect to certain Jersey law matters), the capacity opinion of Xxxxxx & Xxxxxxxxx XX and the enforceability opinion of Loyens&Loeff Luxembourg S.à.x.x. (enforceability opinion) (with respect to certain Luxembourg law matters) and Wenger Xxxxxxxx (with respect to certain Swiss law matters), in each case, in form and substance reasonably satisfactory to Lender;
(gk) Lender’s receipt of (i) an opinion of counsel to all of the Credit Parties other than Amicus Biologics, Inc. and (ii) an opinion of counsel to Amicus Biologics, Inc., in each case in form and substance reasonably satisfactory to Lender[Intentionally Omitted];
(hl) Lender’s receipt a summary in reasonable detail of (i) all insurance policies required by Section 6.5 hereof carried or maintained as of the Funding Date and evidence that the products liability and general liability such insurance policies maintained regarding any Collateral are in full force and effect and (ii) effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favor of Lender (such evidence to be in form and substance reasonably satisfactory to Lender);
(im) Lender’s receipt of [Intentionally Omitted];
(n) [Intentionally Omitted];
(o) [Intentionally Omitted];
(p) all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”);
(jq) for the most recently ended fiscal quarter of the Borrower ended before the Funding Date, an internally prepared financial statement in form of Borrower’s internal reporting;
(r) evidence satisfactory to Lender in the form of a certificate of the Chief Financial Officer of Borrower that, as of the Funding Date, after giving effect to the incurrence of Indebtedness under the Term Loan Note, Borrower is Solvent and the Credit Parties, on a consolidated basis, are Solvent;
(s) payment of the Lender Expenses and other fees then due as specified in Section 2.4 hereof;
(kt) Lender’s receipt of a certificateevidence that there shall be no litigation, dated the Closing Date and signed by a Responsible Officer of Borrowerpublic or private, confirming there is no Adverse Proceeding pending oror administrative proceedings, to the Knowledge of Borrowergovernmental investigation or other legal or regulatory developments, actual or threatened, that, individually singly or in the aggregate, could reasonably be expected to result in a Material Adverse Change, Change except as set forth on Schedule 4.7 5.6;
(u) [Intentionally Omitted];
(v) true, correct and complete copies of the Disclosure Letter (such certificate to be in form all Manufacturing Agreements, as executed and substance reasonably satisfactory to Lender)delivered by all parties thereto, and any amendments, restatements, supplements and modifications thereto; and
(lw) Lender’s receipt of a certificate, dated the Closing Funding Date and signed by a Responsible Officer of Borrower, confirming satisfaction of the conditions precedent set forth in this Section 3.1 and in Section 3.2 Sections 3.3(b) and (such certificate to be in form and substance reasonably satisfactory to Lenderc).
Appears in 1 contract
Conditions Precedent to Term Loan. Lender’s obligation No Lender shall be obligated to advance make its Pro Rata Share of the Term Loan, or to take, fulfill, or perform any other action hereunder, until the following have been delivered to Agent (the date on which the Lenders make the Term Loan is subject after all such conditions shall have been satisfied in a manner satisfactory to Agent and the satisfaction (Lenders or waiver waived in accordance with Section 11.5 hereof) of this Agreement, the following conditions:“Closing Date”):
(a) a counterpart of this Agreement duly executed by each Loan Party, each Lender and Agent;
(b) a certificate executed by the Secretary of each Loan Party, the form of which is attached hereto as Exhibit B (each and collectively, the “Secretary’s Certificate”), providing verification of incumbency and attaching (i) such Loan Party’s board resolutions approving the transactions contemplated by this Agreement and the other Debt Documents and (ii) such Loan Party’s governing documents;
(c) Notes duly executed by Borrower in favor of each Lender that has requested a Note;
(d) filed copies of UCC financing statements or amendments thereto, collateral assignments, and termination statements, with respect to the Collateral, as Agent shall request;
(e) current UCC lien, intellectual property lien, judgment, bankruptcy and tax lien search results demonstrating that there are no other Liens (as defined below) on the Collateral, other than Permitted Liens (as defined below);
(f) each Lender (or its respective Affiliate) shall have received a 0000 Xxxxxxx for such Lender’s receipt of copies Pro Rata Share of the number of shares of Stock of Borrower described in Section 2.8, duly executed by Borrower;
(g) a certificate of status/good standing of each Loan Documents Party from the jurisdiction of such Loan Party’s organization and a certificate of foreign qualification from each jurisdiction where such Loan Party’s failure to be so qualified could reasonably be expected to have a Material Adverse Effect (including as defined below), in each case as of a recent date acceptable to Agent;
(h) except to the Term extent received by Agent in connection with the Existing Loan NoteAgreement, a landlord consent and/or bailee letter in favor of Agent executed by the applicable landlord or bailee (the forms of which are attached hereto as Exhibit C-1 and Exhibit C-2, as applicable (each an “Access Agreement”)), for any third party location, other than Permitted Locations (as defined below), where any of the following are located: (a) any Loan Party’s principal place of business, (b) any Loan Party’s books or records or (c) Collateral with an aggregate value in excess of $25,000;
(i) a legal opinion of Loan Parties’ counsel, in form and substance satisfactory to Agent and the Lenders;
(j) a completed Automatic Payment Authorization Agreement, a form of which is attached hereto as Exhibit E (the “Automatic Payment Authorization Agreement”);
(k) a completed perfection certificate from each Loan Party, duly executed by such Loan Party (each and collectively, the “Perfection Certificate”), a form of which Agent previously delivered to Borrower;
(l) except to the extent received by Agent in connection with the Existing Loan Agreement, one or more Account Control Agreements (as defined below), in form and substance reasonably acceptable to Agent, duly executed by the applicable Loan Parties and the applicable depository or financial institution, for each deposit and securities account to the extent required pursuant to Section 7.10;
(m) a disbursement instruction letter, in form and substance satisfactory to Agent and the Lenders, executed by each Loan Party, Agent and each Lender (the “Disbursement Letter”);
(n) the Intellectual Property Security Agreement required by Section 3.3, duly executed by each Loan Party;
(o) after August 12, 2014, Borrower shall have received at least $15,000,000 in unrestricted net cash proceeds from the sale and issuance of Borrower’s preferred stock or through the incurrence of additional Indebtedness which is subject to a subordination agreement in favor of Agent, on terms and conditions reasonably satisfactory to Agent and Lenders, and such proceeds have been deposited into one or more deposit accounts or securities accounts subject to Account Control Agreements; provided, however, that for purposes of satisfying the Collateral Documents but excluding any Control Agreements and any other Loan Document described condition set forth in Schedule 5.14 this Section 4.1(o), Borrower shall only be required to deliver evidence that the holders of at least seventy-five percent (75%) of the Disclosure Letter additional Indebtedness have executed the new subordination agreement;
(p) evidence that Borrower has received approval from Japan’s Pharmaceuticals and Medical Device Agency satisfactory to be delivered after the Closing Date) executed and delivered by each applicable Credit Party, the Disclosure Letter, if and to the extent any update thereto is necessary between the Effective Date Agent and the Closing Date Lenders for the sale and marketing of Borrower’s TVC Imaging System in Japan;
(providedq) Agent shall have received, that in no event may the Disclosure Letter be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update)) and each other schedule to such Loan Documents (the Disclosure Letter and such other schedules to be all in form and substance reasonably satisfactory to Lender)Agent and Lenders, amendment or reaffirmation agreements executed by the November Subordinated Note Holders confirming (A) the Term Loan is Senior Debt under and as defined in the November Subordination Agreements, and (B) the Liens securing the Term Loan continue to be senior and that the November Subordinated Notes continue to be unsecured; provided, however, the Borrower shall not be required to deliver reaffirmation agreements with respect to two November Subordinated Note Holders whose November Subordinated Notes aggregate less than $122,000 in original principal amount;
(br) Lender’s receipt all other documents and instruments as Agent or any Lender may reasonably deem necessary or appropriate to effectuate the intent and purpose of this Agreement (i) truetogether with the Agreement, correct and complete copies of the Operating Documents of each of Notes, the Credit PartiesWarrants, and (ii) a the Account Control Agreements, the Access Agreements, the Perfection Certificate, the Intellectual Property Security Agreement, the Fee Letter, the Secretary’s Certificate, dated the Closing DateDisbursement Letter, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be in form and substance reasonably satisfactory to Lender);
(c) Lender’s receipt of the Perfection Certificate for Borrower and its Subsidiaries, in form and substance reasonably satisfactory to Lender, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Perfection Certificate be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update));
(d) Lender’s receipt of a good standing certificate for each Credit Party (where applicable), certified by the Secretary of State (or the equivalent thereof) of the jurisdiction of incorporation or formation of such Credit Party as of a date no earlier than thirty (30) days prior to the Closing Date;
(e) Lender’s receipt of a Secretary’s Certificate with completed Borrowing Resolutions with respect to the Loan Documents and the Term Loan for each Credit Party, in form and substance reasonably satisfactory to Lender;
(f) each Credit Party shall have obtained all Governmental Approvals Subordination Agreement and all consents other agreements, instruments, documents and certificates executed and/or delivered to or in favor of other Persons, if any, in each case that are necessary Agent from time to time in connection with this Agreement or the transactions contemplated by the Loan Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Lender;
(g) Lender’s receipt of (i) an opinion of counsel to all of the Credit Parties other than Amicus Biologicshereby, Inc. and (ii) an opinion of counsel to Amicus Biologics, Inc., in each case in form and substance reasonably satisfactory to Lender;
(h) Lender’s receipt of (i) evidence that the products liability and general liability insurance policies maintained regarding any Collateral are in full force and effect and (ii) appropriate evidence showing loss payable or additional insured clauses or endorsements in favor of Lender (such evidence to be in form and substance reasonably satisfactory to Lender);
(i) Lender’s receipt of all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot ActDebt Documents”);
(js) payment Agent and Lenders shall have received the fees required to be paid by Borrower, and Borrower shall have reimbursed Agent and Lenders for all fees, costs and expenses of Lender Expenses and other fees then due closing presented as specified in Section 2.4 hereofof the date of this Agreement;
(kt) Lender’s receipt (i) all representations and warranties in Section 5 below shall be true in all material respects (but in all respects if such representation or warranty is qualified by “material” or “Material Adverse Effect”) as of a certificate, dated the Closing Date Date; (ii) no Event of Default or any other event, which with the giving of notice or the passage of time, or both, would constitute an Event of Default (such event, a “Default”), has occurred and signed by a Responsible Officer of Borrower, confirming there is no Adverse Proceeding pending or, to continuing or will result from the Knowledge of Borrower, threatened, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change, except as set forth on Schedule 4.7 making of the Disclosure Letter Term Loan, and (such iii) Agent shall have received a certificate to be in form and substance reasonably satisfactory to Lender)from an authorized officer of each Loan Party confirming each of the foregoing; and
(lu) Lender’s receipt of a certificateAgent shall have received such other documents, dated the Closing Date and signed by a Responsible Officer of Borroweragreements, confirming satisfaction of the conditions precedent set forth in this Section 3.1 and in Section 3.2 (such certificate to be in form and substance instruments or information as Agent shall reasonably satisfactory to Lender)request.
Appears in 1 contract
Conditions Precedent to Term Loan. Lender’s obligation Lenders shall not be required to advance fund the Term Loan is subject or otherwise extend credit to Borrowers hereunder, until the satisfaction date (or waiver in accordance with Section 11.5 hereof“Closing Date”) that each of the following conditionsconditions has been satisfied:
(a) Lender’s receipt of copies of the Loan Documents (including the Term Loan Note, Notes shall have been executed by Borrower, Borrowers and the Collateral Documents but excluding any Control Agreements and any delivered to each Lender that requests issuance of a Note. Each other Loan Document described in Schedule 5.14 of the Disclosure Letter to be delivered after the Closing Date(other than a Compliance Certificate) shall have been duly executed and delivered to Agent by each applicable Credit Partyof the signatories thereto, the Disclosure Letter, if and each Obligor (to the extent any update thereto is a party thereto) shall be in compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings or recordations necessary between to perfect its Liens in the Effective Date Collateral, as well as UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the Closing Date only Liens upon the Collateral, except Permitted Liens.
(provided, that in no event may the Disclosure Letter be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update)c) and each other schedule to such Loan Documents (the Disclosure Letter and such other schedules to be Agent shall have received access agreements in form and substance reasonably satisfactory to Lender);Agent with respect to the Borrowers’ credit collection centers in San Antonio, Texas and Beaumont, Texas.
(bd) Lender’s receipt Agent shall have received certificates, in the form of Exhibit D, from a knowledgeable Senior Officer of Parent and each Borrower certifying that, after giving effect to the Term Loan and transactions hereunder, (i) true, correct and complete copies of the Operating Documents of each of the Credit Parties, and it is Solvent; (ii) a Secretary’s Certificate, dated the Closing Date, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be in form and substance reasonably satisfactory to Lender);
(c) Lender’s receipt of the Perfection Certificate for Borrower and its Subsidiaries, in form and substance reasonably satisfactory to Lender, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Perfection Certificate be updated in a manner that would reflect or evidence a Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) it has complied with or without such update));all agreements and conditions to be satisfied by it under the Loan Documents.
(de) Lender’s receipt Agent shall have received a certificate of a good standing duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate for until it is otherwise notified by the applicable Obligor in writing.
(f) Agent shall have received a written opinion of Xxxxxxx Xxxxx, LLP, as well as any local counsel to Borrowers or Agent, with respect to the Loan Documents.
(g) Agent shall have received a written opinion from Parent’s Corporate General Counsel with respect to existence and authority of each Credit Party Obligor, and with respect to each Obligor there has been no violation of laws and there exists no litigation regarding each Obligor.
(where applicable)h) Agent shall have received a written opinion of Xxxxxx Xxxxxxx Xxxxxxxx L.L.P. regarding the enforceability of Borrowers’ form of Contract and its compliance with any Requirement of Law with respect to the laws of the State of Texas and relevant federal laws.
(i) Agent shall have received a written opinion of Xxxxxx Xxxxxxx Xxxxxxxx L.L.P. regarding the enforceability of Borrowers’ form of Contract and its compliance with any Requirement of Law with respect to the laws of the State of Oklahoma and relevant federal laws.
(j) Agent shall have received a written opinion of XxXxxxxxxx Xxxxxxxx PLLC regarding the enforceability of Borrowers’ form of Contract and its compliance with any Requirement of Law with respect to the laws of the State of Louisiana and relevant federal laws.
(k) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State (or the equivalent thereof) other appropriate official of the such Obligor’s jurisdiction of incorporation organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or formation other appropriate official of such Credit Party as Obligor’s jurisdiction of a date no earlier than thirty organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification.
(30l) days prior Agent shall have completed its legal due diligence of Obligors, with results satisfactory to Agent. No material adverse change in the financial condition of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since July 31, 2010.
(m) Agent shall have received completed appraisals of Inventory, Eligible Real Estate and Eligible Contracts and an updated Contract valuation, with results reasonably satisfactory to Agent.
(n) Borrowers shall have paid all fees and expenses due and payable to Agent and Lenders on the Closing Date;.
(eo) Lender’s receipt Agent shall have received a Borrowing Base Certificate prepared as of November 12, 2010. Upon giving effect to the initial funding of Revolver Loans and issuance of Letters of Credit under the ABL Credit Agreement, the making of the Term Loan, and the payment by Borrowers of all fees and expenses incurred in connection herewith, the ABL Facility, completion of the equity offering set forth in clause (z) below, the redemption of Borrowers’ existing asset backed securitization facility, and the assignment of assets pursuant to the Intercompany Assignment Agreement, Availability shall be at least $60,000,000.
(p) Agent shall have received copies of the ABL Credit Agreement and the ABL Loan Documents.
(q) Agent shall have received a letter from each third party service maintenance providers acknowledging that any refunds owed to a Borrower as a result of the cancellation of a Secretary’s Certificate with completed Borrowing Resolutions with respect third party service maintenance plan purchased under a Contract shall be paid directly to the Loan Documents and the Term Loan for each Credit PartyDominion Account, in form and substance reasonably satisfactory to Lender;
(f) each Credit Party which letter shall have obtained all Governmental Approvals and all consents of other Persons, if any, in each case that are necessary in connection with the transactions contemplated by the Loan Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Lender;
(g) Lender’s receipt of (i) an opinion of counsel to all of the Credit Parties other than Amicus Biologics, Inc. and (ii) an opinion of counsel to Amicus Biologics, Inc., in each case in form and substance reasonably satisfactory to Lender;
(h) Lender’s receipt of (i) evidence that the products liability and general liability insurance policies maintained regarding any Collateral are in full force and effect and (ii) appropriate evidence showing loss payable or additional insured clauses or endorsements in favor of Lender (such evidence to be in form and substance reasonably satisfactory to LenderAgent.
(r) Agent shall have received a letter from each third party credit insurance provider acknowledging that any refunds owed to a Borrower as a result of the cancellation of a credit insurance policy shall be paid directly to the Dominion Account, which letter shall be in form and substance satisfactory to Agent.
(s) Agent shall have received a fully signed Intercreditor Agreement.
(t) Agent shall have received evidence that the Borrowers’ existing securitization facility will be paid in full and terminated on the Closing Date.
(u) Agent shall have received the Related Real Estate Documents for all Eligible Real Estate.
(v) Agent shall have received each fully executed Intercompany Assignment Agreement together with evidence that on the Closing Date all of the assignments set forth therein shall be consummated.
(w) No Default or Event of Default shall exist.
(x) The representations and warranties of each Obligor in the Loan Documents shall be true and correct (except for representations and warranties that expressly relate to an earlier date, which shall be true and correct as of such earlier date);.
(y) Agent shall (i) Lender’s receipt have received satisfactory evidence that the Borrowers have obtained the ABL Facility with a revolving loan in the original commitment amount of at least $375,000,000 but not more than $400,000,000 on terms reasonably acceptable to Agent, and the ABL Agent shall have confirmed that all conditions precedent to borrowing thereunder have been satisfied, and (ii) be reasonably satisfied with the loan documents related to the ABL Facility.
(z) The Borrowers shall have closed and received at least $25,000,000 in gross proceeds from an equity or equity linked offering.
(aa) Agent shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including without limitation the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26USA PATRIOT Act, 2001)) (the “Patriot Act”);MSB and HRC requirements.
(jbb) payment All accounts payable of Lender Expenses and other fees then due the Borrowers shall be within stated invoice terms, or as specified permitted in Section 2.4 hereof;the ordinary course of Borrower’s business consistent with current practices.
(kcc) Lender’s receipt All conditions precedent in any other Loan Document shall be satisfied.
(dd) There shall be no litigation or other proceeding, the result of which would reasonably be expected to have a certificateMaterial Adverse Effect, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming there is no Adverse Proceeding pending or, to the Knowledge of Borrower, threatened, that, individually other event shall have occurred or in the aggregate, circumstance exist that has or could reasonably be expected to result in have a Material Adverse Change, except as set forth on Schedule 4.7 of the Disclosure Letter (such certificate to be in form and substance reasonably satisfactory to Lender); andEffect.
(lee) Lender’s receipt There shall have been no material adverse change in the financial markets, or the business, operations, assets, properties, liabilities, profits, prospects or financial position of a certificateBorrowers, dated the Closing Date as determined by Agent and signed by a Responsible Officer of Borrower, confirming satisfaction of the conditions precedent set forth Lenders in this Section 3.1 and in Section 3.2 (such certificate to be in form and substance reasonably satisfactory to Lender)their discretion.
Appears in 1 contract
Conditions Precedent to Term Loan. Each Lender’s obligation to advance its Applicable Percentage of the Term Loan is subject to the satisfaction (or waiver in accordance with Section 11.5 hereof) of the following conditions:
(a) the Collateral Agent’s and each Lender’s receipt receipt, on the Closing Date, of (i) copies of the Loan Agreement, the Disclosure Letter, the Perfection Certificate for Borrower and its Subsidiaries and the Advance Request Form and (ii) copies of the other Loan Documents (including the schedules thereto), including the Term Loan NoteNotes, executed by Borrower, Borrower and the Collateral Documents (but excluding any Control Agreements, Collateral Access Agreements and any other Loan Document described in Schedule 5.14 of the Disclosure Letter to be delivered after the Closing Date), in each case (x) dated as of the Closing Date, (y) executed (where applicable) and delivered by each applicable Credit Party, the Disclosure Letter, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Disclosure Letter be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update)z) and each other schedule to such Loan Documents (the Disclosure Letter and such other schedules to be in form and substance reasonably satisfactory to Lender)the Collateral Agent;
(b) Lenderthe Collateral Agent’s receipt of (i) true, correct and complete copies of the Operating Documents of each of Borrower and the Credit Parties, and (ii) a Secretary’s Certificate, dated the Closing Date, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be in form and substance reasonably satisfactory to Lenderthe Collateral Agent);
(c) Lender’s receipt of the Perfection Certificate for Borrower and its Subsidiaries, in form and substance reasonably satisfactory to Lender, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Perfection Certificate be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update));
(d) LenderCollateral Agent’s receipt of a good standing certificate for each Credit Party (where applicableapplicable in the subject jurisdiction), certified (where available) by the Secretary of State (or the equivalent thereof) of the jurisdiction of incorporation incorporation, formation or formation organization of such Credit Party Person as of a date no earlier than thirty (30) days prior to the Closing Date;
(ed) Lenderthe Collateral Agent’s receipt of a Secretary’s Certificate with completed in relation to each Credit Party, dated the Closing Date, certifying that (i) attached as Exhibit A to such certificate is a true, correct, and complete copy of the Borrowing Resolutions then in full force and effect authorizing and ratifying the execution, delivery, and performance by such Credit Party of the Loan Documents to which it is a party, (ii) the name(s) and title(s) of the officers of such Credit Party authorized to execute the Loan Documents to which such Credit Party is a party on behalf of such Credit Party together with a sample of the true signature(s) of such Credit Party(s), and (iii) that the Collateral Agent and each Lender may conclusively rely on such certificate with respect to the Loan Documents authority of such officers unless and until such Credit Party shall have delivered to the Term Loan for each Credit Party, in form and substance reasonably satisfactory to LenderCollateral Agent a further certificate canceling or amending such prior certificate;
(fe) each Credit Party shall have obtained all Governmental Approvals Approvals, if any, and all consents or approvals of other Persons, including the approval or consent of the equityholders of Borrower, if any, in each case that are necessary in connection with the transactions contemplated by the Loan Documents Documents, and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Lenderthe Collateral Agent;
(gf) Lenderthe Collateral Agent’s receipt on the Closing Date of (i) an opinion of Xxxxxx & Xxxxxxx LLP, counsel to all of the Credit Parties other than Amicus BiologicsParties, Inc. and (ii) an opinion of counsel to Amicus Biologics, Inc., in each case in form and substance reasonably satisfactory to Lenderthe Collateral Agent;
(hg) Lender(i) subject to Section 5.14, the Collateral Agent’s receipt on the Closing Date of (i) evidence that the products liability and general liability insurance policies required to be maintained regarding any Collateral hereunder are in full force and effect and (ii) appropriate evidence showing loss payable or the Collateral Agent, for the benefit of Lenders and the other Secured Parties, having been named as additional insured clauses or endorsements in favor of Lender lender loss payee, as applicable (such evidence to be in form and substance reasonably satisfactory to Lender)the Collateral Agent) under such policies;
(ih) Lenderthe Collateral Agent’s receipt prior to the Closing Date of all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”);;
(ji) concurrent with the funding of the Term Loan, (i) payment of Lender Expenses and other fees then due as specified in Section 2.4 hereof;hereof and payment of the Additional Consideration in accordance with Section 2.7, which such payments shall be deducted from the proceeds of the Term Loan, and (ii) payment of any and all expenses incurred in connection with the repayment of all amounts outstanding under the Existing Credit Agreement; and
(kj) Lender’s receipt a payoff letter in respect of a certificatethe Indebtedness outstanding under the Existing Credit Agreement from BioPharma Credit PLC, dated as the collateral agent thereunder, and evidencing the repayment in full of all such Indebtedness and all other amounts outstanding pursuant thereto prior to or concurrent with the funding of the Term Loan on the Closing Date. The borrowing by Borrower of the Term Loan hereunder shall constitute a representation and warranty by Borrower as of the date Closing Date and signed by a Responsible Officer of Borrower, confirming that: (i) there is no Adverse Proceeding pending or, to the Knowledge of Borrower, threatened, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change, except as set forth on Schedule 4.7 of the Disclosure Letter Letter; (such certificate to be in form ii) the organizational structure and substance reasonably satisfactory to Lender)capital structure of Borrower and each of its Subsidiaries is as described on Schedule 4.15 of the Disclosure Letter; and
and (liii) Lender’s receipt of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming satisfaction of the conditions precedent set forth in this Section 3.1 and in Section 3.2 (such certificate to be in form 3.5, Section 3.6 and substance reasonably satisfactory to Lender)Section 3.7 have been satisfied.
Appears in 1 contract
Conditions Precedent to Term Loan. Lender’s obligation to advance make the Term Loan on the Closing Date is subject to the satisfaction (or waiver in accordance with Section 11.5 hereof) of the following conditions:
(a) Lender’s receipt of copies of the Loan Documents (including the Term Loan Note, executed by Borrower, and the Collateral Documents but excluding any Control Agreements and any other Loan Document described in Schedule 5.14 of the Disclosure Letter to be delivered after the Closing Date) executed and delivered by each applicable Credit Party, the Disclosure Letter, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, conditions precedent that in no event may the Disclosure Letter be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update)) and each other schedule to such Loan Documents (the Disclosure Letter and such other schedules to be in form and substance reasonably satisfactory to Lender);
(b) Lender’s receipt of (i) true, correct and complete copies all conditions precedent to the consummation of the Operating Documents of each Closing (as defined in the Stock Purchase Agreement) set forth in Article 10 of the Credit Parties, Stock Purchase Agreement shall have been satisfied and (ii) a Secretary’s Certificate, dated the Closing Date, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be in form and substance reasonably satisfactory to Lender);
(c) Lender’s receipt of the Perfection Certificate for Borrower and its SubsidiariesLender shall have received, in form and substance reasonably satisfactory to Lender, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date following:
(provideda) a counterpart of this Agreement signed on behalf of Borrower;
(b) duly executed copies of each other Loan Document (including, that in no event may without limitation, a duly executed copy of (i) the Perfection Certificate be updated in a manner that would reflect executed by Borrower and (ii) Control Agreements executed by Borrower and the applicable depositary institution, securities intermediary or evidence a Default or Event of Default (with or without such update));
(d) Lender’s receipt of a good standing certificate commodity intermediary, as applicable, for each Credit Party (where applicable), certified by Collateral Account set forth in the Secretary of State (or the equivalent thereofPerfection Certificate) of the jurisdiction of incorporation or formation of such Credit Party as of a date no earlier than thirty (30) days prior to the Closing Date;
(e) Lender’s receipt of a Secretary’s Certificate with completed Borrowing Resolutions with respect to the Loan Documents and the Term Loan for each Credit Party, in form and substance reasonably satisfactory to Lender;
(fc) a certificate of Borrower’s Secretary or Assistant Secretary certifying as to the incumbency and genuineness of the signature of each Credit Party shall have obtained all Governmental Approvals officer of Borrower executing Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles or certificate of incorporation of Borrower and all consents amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of incorporation, (B) the bylaws or other Personsgoverning document of Borrower as in effect on the Closing Date, if any, in each case that are necessary in connection with (C) resolutions duly adopted by the Board of Directors of Borrower authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and (D) a certificate dated as of a recent date certifying to the good standing of Borrower under the laws of its jurisdiction of organization;
(d) a certificate of the Secretary or Assistant Secretary of Gain Holdings, LLC certifying as to the incumbency and genuineness of the signature of each officer of Gain Holdings, LLC executing a Loan Document to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the certificate of formation of Gain Holdings, LLC and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of formation, (B) the limited liability company agreement of Gain Holdings, LLC as in effect on the Closing Date, (C) resolutions duly adopted by the governing body of Gain Holdings, LLC authorizing and approving the execution, delivery and performance of the Loan Documents to which it is a party and each the transactions contemplated thereunder (D) a certificate dated as of a recent date certifying to the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Lendergood standing of Gain Holdings, LLC under the laws of its jurisdiction of organization;
(ge) Lender’s receipt a favorable written opinion (addressed to Lender and dated the Closing Date) of (i) an opinion of Xxxxx Xxxx & Xxxxxxxx LLP, New York counsel to all of the Credit Parties other than Amicus Biologicsfor Borrower and Guarantor, Inc. and (ii) an opinion of Morris, Nichols, Arsht & Xxxxxxx LLP, Delaware counsel for Borrower and Guarantor, each covering such customary matters relating to Amicus BiologicsBorrower, Inc.this Agreement, in each case in form and substance the other Loan Documents or the transactions contemplated hereunder or thereunder as Lender shall reasonably satisfactory to Lenderrequest;
(hf) Lender’s receipt results of (i) a Lien search made against Borrower under the Uniform Commercial Code as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect the prospective security interests of Lender in the Collateral, indicating that the products liability and general liability insurance policies maintained regarding any Collateral are in full force and effect and (ii) appropriate evidence showing loss payable or additional insured clauses or endorsements in favor of Lender (such evidence to be in form pledged by Borrower is free and substance reasonably satisfactory to Lender);
clear of any Lien (i) Lender’s receipt of all documentation except for Permitted Liens and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act Liens that are being released in accordance with clause (Title III of Pub. L. 107-56 (signed into law October 26, 2001)g) (the “Patriot Act”);
(j) payment of Lender Expenses and other fees then due as specified in Section 2.4 hereof;
(k) Lender’s receipt of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming there is no Adverse Proceeding pending or, to the Knowledge of Borrower, threatened, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change, except as set forth on Schedule 4.7 of the Disclosure Letter (such certificate to be in form and substance reasonably satisfactory to Lenderbelow); and
(lg) Lender’s receipt of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming satisfaction of the conditions precedent set forth in this Section 3.1 and in Section 3.2 (such certificate to be in form and substance evidence reasonably satisfactory to Lender)it that the Amended and Restated Loan and Security Agreement, dated as of September 16, 2011, among Borrower, the lenders party thereto from time to time, Silicon Valley Bank, as collateral agent and as administrative agent, and JPMorgan Chase Bank, N.A., shall have been terminated and cancelled and all Indebtedness thereunder shall have been fully repaid, and any and all Liens thereunder shall have been terminated.
Appears in 1 contract
Samples: Loan and Security Agreement (GAIN Capital Holdings, Inc.)
Conditions Precedent to Term Loan. Lender’s obligation No Lender shall be obligated to advance make its Pro Rata Share of the Term Loan, or to take, fulfill, or perform any other action hereunder, until (i) the following have been delivered to Agent (the date on which the Lenders make the Term Loan is subject after all such conditions shall have been satisfied in a manner satisfactory to Agent and the satisfaction (Lenders or waiver waived in accordance with Section 11.5 hereof) of this Agreement, the following conditions:“Closing Date”):
(a) Lender’s receipt a counterpart of copies of the Loan Documents (including the Term Loan Note, this Agreement duly executed by Borrower, and the Collateral Documents but excluding any Control Agreements and any other each Loan Document described in Schedule 5.14 of the Disclosure Letter to be delivered after the Closing Date) executed and delivered by each applicable Credit Party, the Disclosure Letter, if each Lender and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Disclosure Letter be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update)) and each other schedule to such Loan Documents (the Disclosure Letter and such other schedules to be in form and substance reasonably satisfactory to Lender)Agent;
(b) Lendera certificate executed by the Secretary of Borrower, the form of which is attached hereto as Exhibit B-1 (the “US Secretary’s receipt Certificate”), providing verification of incumbency and attaching (i) true, correct such Loan Party’s board resolutions approving the transactions contemplated by this Agreement and complete copies of the Operating other Transaction Documents of each of the Credit Parties, and (ii) a Secretarysuch Loan Party’s Certificate, dated the Closing Date, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be in form and substance reasonably satisfactory to Lender)governing or constituent documents;
(c) Lendera certificate executed by a Director of XOMA Ireland Limited, an Irish private limited company (“XOMA Ireland”), the form of which is attached hereto as Exhibit B-2 (each and collectively, the “Irish Director’s receipt of Certificate”), providing certain verifications and certificates and attaching (i) such Loan Party’s board resolutions approving the Perfection Certificate for Borrower and its Subsidiaries, in form and substance reasonably satisfactory to Lender, if and to the extent any update thereto is necessary between the Effective Date transactions contemplated by this Agreement and the Closing Date other Transaction Documents and (provided, that in no event may the Perfection Certificate be updated in a manner that would reflect if applicable) powers of attorney under which such documents are signed and (ii) such Loan Party’s governing or evidence a Default or Event of Default (with or without such update))constituent documents;
(d) Lender’s receipt of a good standing certificate for each Credit Party (where applicable), certified executed by the Secretary or a Director of State each of Parent and XOMA Technology Ltd., a Bermuda exempted company (“XOMA Technology”, together with Parent, the “Bermuda Entities”), the form of which is attached hereto as Exhibit B-3 (each and collectively, the “Bermuda Secretary’s Certificate”, and together with the US Secretary’s Certificate and the Irish Director’s Certificate, the “Secretary Certificates”), providing certain verifications and certificates and attaching (i) such Loan Party’s board resolutions approving the transactions contemplated by this Agreement and the other Transaction Documents and (if applicable) powers of attorney under which such documents are signed and (ii) such Loan Party’s governing or the equivalent thereof) of the jurisdiction of incorporation or formation of such Credit Party as of a date no earlier than thirty (30) days prior to the Closing Dateconstituent documents;
(e) Lender’s receipt copies of a Secretary’s Certificate with completed Borrowing Resolutions UCC financing statements, other public notice filings, collateral assignments, and termination statements, with respect to the Loan Documents and Collateral as Agent shall request (for the Term Loan for each Credit Partypurposes of this Agreement, in form and substance reasonably satisfactory to Lender;
(f) each Credit Party shall have obtained all Governmental Approvals “Collateral” means any and all consents assets of other Personsany Loan Party now owned or hereafter acquired, if any, in each case that are necessary in connection with the transactions contemplated by the Loan Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Lender;
(g) Lender’s receipt of (i) an opinion of counsel to all of the Credit Parties other than Amicus Biologics, Inc. and (ii) an opinion of counsel to Amicus Biologics, Inc., in each case in form and substance reasonably satisfactory to Lender;
(h) Lender’s receipt of (i) evidence that the products liability and general liability insurance policies maintained regarding any Collateral are in full force and effect and (ii) appropriate evidence showing loss payable or additional insured clauses or endorsements in favor of Lender (such evidence upon which a Lien is purported to be created by any Transaction Document; provided, however that in form and substance reasonably satisfactory no event shall a mortgage be required on the leasehold interests of Borrower under its leases with respect to Lenderthe Space Lease Locations (as defined below in Section 6.13));
(i) Lender’s receipt of all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”);
(j) payment of Lender Expenses and other fees then due as specified in Section 2.4 hereof;
(k) Lender’s receipt of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming there is no Adverse Proceeding pending or, to the Knowledge of Borrower, threatened, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change, except as set forth on Schedule 4.7 of the Disclosure Letter (such certificate to be in form and substance reasonably satisfactory to Lender); and
(l) Lender’s receipt of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming satisfaction of the conditions precedent set forth in this Section 3.1 and in Section 3.2 (such certificate to be in form and substance reasonably satisfactory to Lender).
Appears in 1 contract
Samples: Loan Agreement (XOMA Corp)
Conditions Precedent to Term Loan. Lender’s The obligation of the Lender to advance make the Term Loan is subject to the satisfaction (or waiver in accordance with Section 11.5 hereof) of the following conditionsconditions precedent:
(a) Lender’s receipt of copies of the Loan Documents (including the Term Loan Note, executed by Borrower, and the Collateral Documents but excluding any Control Agreements and any other Loan Document described in Schedule 5.14 of the Disclosure Letter to be delivered after the Closing Date) executed and delivered by each applicable Credit Party, the Disclosure Letter, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Disclosure Letter be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update)) and each other schedule to such Loan Documents (the Disclosure Letter and such other schedules to be in form and substance reasonably satisfactory to Lender);
(b) Lender’s receipt of (i) true, correct and complete copies of the Operating Documents of each of the Credit Parties, and (ii) a Secretary’s Certificate, dated the Closing Date, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be in form and substance reasonably satisfactory to Lender);
(c) The Lender’s receipt of the Perfection Certificate for Borrower following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and its Subsidiaries, each in form and substance reasonably satisfactory to the Lender:
(i) executed counterparts of this Agreement, if and sufficient in number for distribution to the extent any update thereto is necessary between the Effective Date Lender and the Closing Date (provided, that in no event may the Perfection Certificate be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update))Borrower;
(dii) Lender’s receipt of a good standing certificate for each Credit Party (where applicable), certified Term Note executed by the Secretary of State (or the equivalent thereof) Borrower in favor of the jurisdiction of incorporation or formation of such Credit Party as of a date no earlier than thirty (30) days prior to the Closing Date;
(e) Lender’s receipt of a Secretary’s Certificate with completed Borrowing Resolutions with respect to the Loan Documents and the Term Loan for each Credit Party, in form and substance reasonably satisfactory to Lender;
(fiii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers as the Lender may require evidencing the identity, authority and capacity of each Credit Party shall have obtained all Governmental Approvals Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and all consents of the other PersonsLoan Documents;
(iv) such documents and certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formed, if anyand that the Borrower is validly existing, in good standing and qualified to engage in business in each case jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that are necessary failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) favorable opinions of Xxxxx X. Xxxxxxx, General Counsel of the Company, and Xxxxxx & Whitney, LLP as special counsel to the Company, each addressed to the Lender, in the form of Exhibit E;
(vi) a certificate of a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the transactions contemplated execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party, and each of the foregoing such consents, licenses and approvals shall be in full force and effect and in form and substance reasonably satisfactory to Lendereffect, or (B) stating that no such consents, licenses or approvals are so required;
(gvii) Lender’s receipt of (i) an opinion of counsel to all of the Credit Parties other than Amicus Biologics, Inc. and (ii) an opinion of counsel to Amicus Biologics, Inc., in each case in form and substance reasonably satisfactory to Lender;
(h) Lender’s receipt of (i) evidence that the products liability and general liability insurance policies maintained regarding any Collateral are in full force and effect and (ii) appropriate evidence showing loss payable or additional insured clauses or endorsements in favor of Lender (such evidence to be in form and substance reasonably satisfactory to Lender);
(i) Lender’s receipt of all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”);
(j) payment of Lender Expenses and other fees then due as specified in Section 2.4 hereof;
(k) Lender’s receipt of a certificate, dated the Closing Date and certificate signed by a Responsible Officer certifying (A) that the representations and warranties of Borrowerthe Borrower contained in Article V of this Agreement, confirming there is no Adverse Proceeding pending oror any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct on and as of the date hereof, except to the Knowledge extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of Borrowersuch earlier date, threatenedand except that for purposes of this Section 4.01, thatthe representations and warranties contained in subsection (a) of Section 5.11 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, (B) no Default shall exist, or would result from the proposed borrowing hereunder and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change, except as set forth on Schedule 4.7 of the Disclosure Letter Effect.
(such certificate viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in form and substance reasonably satisfactory to Lender)effect; and
(lix) Lender’s receipt of a certificatesuch other assurances, dated certificates, documents, consents or opinions as the Lender reasonably may require.
(b) Any fees required to be paid on or before the Closing Date and signed shall have been paid.
(c) Unless waived by a Responsible Officer of Borrowerthe Lender, confirming satisfaction the Borrower shall have paid all Attorney Costs of the conditions precedent set forth in this Section 3.1 and in Section 3.2 (Lender to the extent invoiced prior to or on the Closing Date, plus such certificate additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be in form incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and substance reasonably satisfactory to the Lender).
Appears in 1 contract
Conditions Precedent to Term Loan. Lender’s obligation No Lender shall be obligated to advance make its Pro Rata Share of the Term Loan is subject Loan, or to the satisfaction (take, fulfill, or waiver in accordance with Section 11.5 hereof) of perform any other action hereunder, until the following conditions:have been delivered to Agent and, if requested, to any Lender so requesting, in each case in form and substance satisfactory to Agent and Lenders (the date on which Lenders make the Term Loan, the “Closing Date”):
(a) Lender’s receipt a counterpart of copies of the Loan Documents (including the Term Loan Note, this Agreement duly executed by Borrower, and the Collateral Documents but excluding any Control Agreements and any other each Loan Document described in Schedule 5.14 of the Disclosure Letter to be delivered after the Closing Date) executed and delivered by each applicable Credit Party, the Disclosure Letter, if each Lender and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Disclosure Letter be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update)) and each other schedule to such Loan Documents (the Disclosure Letter and such other schedules to be in form and substance reasonably satisfactory to Lender)Agent;
(b) Lender’s receipt of (i) true, correct and complete copies of the Operating Documents of each of the Credit Parties, and (ii) a Secretary’s Certificate, dated the Closing Date, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be in form and substance reasonably satisfactory to Lender);
(c) Lender’s receipt of the Perfection Certificate for Borrower and its Subsidiaries, in form and substance reasonably satisfactory to Lender, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Perfection Certificate be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update));
(d) Lender’s receipt of a good standing certificate for each Credit Party (where applicable), certified duly executed by the Secretary of State (or the equivalent thereof) of the jurisdiction of incorporation or formation of such Credit Party as of a date no earlier than thirty (30) days prior to the Closing Date;
(e) Lender’s receipt of a Secretary’s Certificate with completed Borrowing Resolutions with respect to the each Loan Documents and the Term Loan for each Credit Party, in the form of which is attached as Exhibit A, providing verification of incumbency and substance reasonably satisfactory certifying as to Lender;
and attaching (fi) each Credit Party shall have obtained all Governmental Approvals and all consents of other Persons, if any, in each case that are necessary in connection with such Loan Party’s board resolutions approving the transactions contemplated by the Loan Documents and (ii) such Loan Party’s formation documents certified by the Secretary of State of such Loan Party’s state of formation as of a date acceptable to Agent and such Loan Party’s governing documents;
(c) Notes duly executed by Borrower in favor of each Lender that has requested a Note;
(d) (i) copies of UCC, patent, trademark, copyright and other appropriate search reports and of all effective prior filings listed therein and (ii) filed copies of UCC financing statements, collateral assignments, and termination statements, with respect to the foregoing Collateral, as Agent shall be reasonably request;
(e) certificates of insurance evidencing the insurance coverage and satisfactory additional insured and lender loss payable endorsements, in full force each case as required pursuant to Section 6.4;
(f) certified copies, dated as of a recent date acceptable to Agent, of UCC, judgment, bankruptcy and effect and in form and substance reasonably satisfactory to Lendertax lien search results demonstrating that there are no Liens on the Collateral other than Permitted Liens;
(g) Lendera certificate of status/good standing of each Loan Party from the jurisdiction of such Loan Party’s receipt organization and a certificate of (i) an opinion of counsel foreign qualification from each jurisdiction where such Loan Party’s failure to all of the Credit Parties other than Amicus Biologics, Inc. and (ii) an opinion of counsel be so qualified could reasonably be expected to Amicus Biologics, Inc.have a Material Adverse Effect, in each case in form and substance reasonably satisfactory certified as of a recent date acceptable to LenderAgent;
(h) Lender’s receipt of (i) evidence that an Access Agreement for each leased location or third party location to the products liability and general liability insurance policies maintained regarding any Collateral are in full force and effect and (ii) appropriate evidence showing loss payable or additional insured clauses or endorsements in favor of Lender (such evidence extent required pursuant to be in form and substance reasonably satisfactory to Lender)Section 6.6;
(i) Lender’s receipt an executed legal opinion of all documentation Loan Parties’ counsel, in form and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”)substance satisfactory to Agent;
(j) payment of Lender Expenses and other fees then due as specified in Section 2.4 hereofan Automatic Payment Authorization Agreement, duly executed by Borrower;
(k) Lender’s receipt of a certificatePerfection Certificate completed and duly executed by each Loan Party;
(l) one or more Account Control Agreements, dated duly executed by the Closing Date applicable Loan Parties and signed by a Responsible Officer of Borrower, confirming there is no Adverse Proceeding pending orthe applicable depository or financial institution, to the Knowledge extent required pursuant to Section 7.9;
(m) a Disbursement Letter, duly executed by each Loan Party, Agent and Lenders;
(n) a Pledge Agreement, duly executed by each Loan Party, together with the certificates and instruments required to be delivered in connection therewith on or prior to the Closing Date, and related undated powers and endorsements duly executed in blank;
(o) [Reserved];
(p) a Warrant in favor of Borrower, threatened, that, individually each Lender (or in the aggregate, could reasonably be expected to result in a Material Adverse Change, except as set forth on Schedule 4.7 its Affiliate if so requested by such Lender) for such Lender’s Pro Rata Share of the Disclosure Letter number of shares of Stock of Borrower described in Section 2.7, duly executed by Borrower;
(q) the Fee Letter, duly executed by each Loan Party and Agent;
(r) a pay-off letter satisfactory to Agent and duly executed by Hercules Technology II, L.P., confirming that all of the Indebtedness and other obligations owed under the Existing Indebtedness will be repaid in full from the proceeds of the Term Loan and all Liens upon any Loan Party’s property in favor of Hercules Technology II, L.P. shall be terminated immediately upon such certificate payment;
(s) the Agent shall have received satisfactory evidence that at least $4,781,333.18 of the Platinum-Montaur Subordinated Indebtedness shall have been converted to be common or preferred Stock of Borrower on terms and conditions reasonably satisfactory to Agent;
(t) a Subordination Agreement, duly executed by each Loan Party and each holder of Platinum-Montaur Subordinated Indebtedness;
(u) a duly executed amendment to the Platinum-Montaur Loan Agreement, in form and substance acceptable to Agent;
(v) all fees required to be paid by Borrower under the Loan Documents, and Borrower shall have reimbursed Agent and Lenders for all fees, costs and expenses presented as of the Closing Date;
(w) all other documents, agreements, instruments or information as Agent or any Lender may reasonably satisfactory deem necessary or appropriate to Lender)effectuate the intent and purpose of this Agreement.
(i) all representations and warranties contained in each Loan Document shall be true, accurate and complete in all material respects (but in all respects if such representation or warranty is qualified by “material” or “Material Adverse Effect”) as of the date of the Term Loan, (ii) no Default or Event of Default has occurred and is continuing or will result from the making of the Term Loan, and (iii) Agent shall have received a certificate from an authorized officer of each Loan Party confirming each of the foregoing; and
(ly) in Agent’s and each Lender’s receipt sole discretion, there has been no material impairment in the general affairs, management, results of a certificateoperations, dated financial condition or the Closing Date and signed by a Responsible Officer prospect of Borrower, confirming satisfaction repayment of the Obligations or any material adverse deviation by Borrower from the most recent business plan of Borrower presented to and accepted by Agent and Lenders. For the purpose of determining satisfaction with the conditions precedent set forth specified in this Section 3.1 4.1, each Lender that has signed and in Section 3.2 (such certificate delivered this Agreement shall be deemed to have accepted, and to be in form and substance reasonably satisfactory to Lender)satisfied with, each document or other matter required under this Section 4.1.
Appears in 1 contract
Samples: Loan and Security Agreement (Navidea Biopharmaceuticals, Inc.)
Conditions Precedent to Term Loan. LenderBank’s obligation to advance make the Term Loan is subject to the satisfaction (condition precedent that Borrower shall consent to or waiver shall have delivered, in accordance with Section 11.5 hereof) form and substance satisfactory to Bank, such documents, and completion of the following conditionssuch other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation:
(a) Lender’s receipt of copies of duly executed original signatures to the Loan Documents (including the Term Loan Note, executed by Borrower, and the Collateral Documents but excluding any Control Agreements and any other Loan Document described in Schedule 5.14 of the Disclosure Letter to be delivered after the Closing Date) executed and delivered by each applicable Credit Party, the Disclosure Letter, if and to the extent any update thereto which it is necessary between the Effective Date and the Closing Date (provided, that in no event may the Disclosure Letter be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update)) and each other schedule to such Loan Documents (the Disclosure Letter and such other schedules to be in form and substance reasonably satisfactory to Lender)party;
(b) Lenderduly executed original signatures to the Control Agreement relating to Borrower’s receipt of (iaccount(s) true, correct and complete copies of the Operating Documents of each of the Credit Parties, and (ii) a Secretary’s Certificate, dated the Closing Date, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be in form and substance reasonably satisfactory to Lender)at State Street Bank;
(c) Lender’s receipt of the Perfection Certificate for Borrower its Operating Documents and its Subsidiaries, in form and substance reasonably satisfactory to Lender, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Perfection Certificate be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update));
(d) Lender’s receipt of a good standing certificate for each Credit Party (where applicable), of Borrower certified by the Secretary of State (or the equivalent thereof) of the jurisdiction State of incorporation or formation of such Credit Party Delaware as of a date no earlier than thirty (30) days prior to the Closing Effective Date;
(d) duly executed original signatures to the completed Borrowing Resolutions for Borrower;
(e) Lender’s receipt of a Secretary’s Certificate with completed Borrowing Resolutions with respect to the Loan Documents and the Term Loan for each Credit Party, in form and substance reasonably satisfactory to Lenderpayoff letter from Comerica Bank;
(f) each Credit Party shall evidence that (i) the Liens securing Indebtedness owed by Borrower to Comerica Bank 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 obtained all Governmental Approvals and all consents of other Personsor will, if any, in each case that are necessary in connection concurrently with the transactions contemplated by the Loan Documents and each funding of the foregoing shall Term Loan, be in full force and effect and in form and substance reasonably satisfactory to Lender;terminated.
(g) Lender’s receipt certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (iincluding any UCC termination statements) an opinion of counsel to all of that the Credit Parties other than Amicus Biologics, Inc. and (ii) an opinion of counsel to Amicus Biologics, Inc.Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in each case in form and substance reasonably satisfactory to Lenderconnection with Term Loan, will be terminated or released;
(h) Lender’s receipt of the Perfection Certificate(s) executed by Borrower;
(i) a landlord’s consent executed by Xxxxx Real Estate Holdings Eight in favor of Bank relating to the lease for Borrower’s principal office;
(j) a legal opinion of Borrower’s counsel dated as of the Effective Date together with the duly executed original signatures thereto;
(k) evidence satisfactory to Bank that the products liability and general liability insurance policies maintained regarding any Collateral required by Section 6.4 hereof are in full force and effect and (ii) effect, together with appropriate evidence showing lender loss payable or and/or additional insured clauses or endorsements in favor of Lender (such evidence to be in form and substance reasonably satisfactory to Lender)Bank;
(i) Lender’s receipt of all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”);
(jl) payment of Lender the Bank Expenses and other fees then due as specified in Section 2.4 2.3 hereof;
(k) Lender’s receipt of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming there is no Adverse Proceeding pending or, to the Knowledge of Borrower, threatened, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change, except as set forth on Schedule 4.7 of the Disclosure Letter (such certificate to be in form and substance reasonably satisfactory to Lender); and
(l) Lender’s receipt of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming satisfaction of the conditions precedent set forth in this Section 3.1 and in Section 3.2 (such certificate to be in form and substance reasonably satisfactory to Lender).
Appears in 1 contract
Conditions Precedent to Term Loan. Lender’s obligation to advance the Term Loan on the Closing Date is subject to the satisfaction condition precedent that Lender shall have received such documents, in form and substance satisfactory to Lender or such other matters shall have been completed (or waiver otherwise expressly waived in accordance with Section 11.5 hereof) of the following conditionswriting in Lender’s sole discretion), as follows:
(a) Lender’s receipt of copies of the Loan Documents (including the Term Loan Note, executed by Borrower, and the Collateral Documents but excluding any Control Agreements and any other Loan Document described in Schedule 5.14 of the Disclosure Letter to be delivered after the Closing Date) originally executed and delivered by each applicable Credit Party, the Disclosure Letter, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Disclosure Letter be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update)) and each other schedule to such Loan Documents (the Disclosure Letter and such other schedules to be in form and substance reasonably satisfactory to Lender), including this Agreement, the Security Agreement and each Control Agreement required by the Lender (which such Control Agreement shall be executed by the applicable bank or financial institution);
(b) Lender’s receipt of (i) true, correct and complete copies of the Operating Documents of each of the Credit Parties, and (ii) a Secretary’s Certificate, dated the Closing Date, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be in form and substance reasonably satisfactory to Lender);
(c) Lender’s receipt of the Perfection Certificate Certificates for Borrower and its Subsidiaries, in form and substance reasonably satisfactory to Lender, if and to the extent any update thereto is necessary between the Effective Date and the Closing Date (provided, that in no event may the Perfection Certificate be updated in a manner that would reflect or evidence a Default or Event of Default (with or without such update));
(d) Lender’s receipt the organizational structure and capital structure of Borrower and each of its Subsidiaries shall be as set forth on Schedule 3.1(d);
(e) a good standing certificate for each Credit Party Party, certified (where applicable), certified ) by the Secretary of State (or the equivalent thereof) of the jurisdiction State of incorporation or formation of such Credit Party (or other applicable Governmental Authority) as of a date no earlier than thirty (30) days prior to the Closing Date;
(ef) Lendera director’s receipt of a or Secretary’s Certificate with completed Borrowing Resolutions with respect to the Loan Documents and the Term Loan for each Credit Party, in form and substance reasonably satisfactory to Lender;
(fg) certified copies, dated as of a recent date, of lien searches, as Lender shall request, accompanied by written evidence (including any Code termination statements) that the Liens indicated in any such financing statements or other documents either constitute Permitted Liens or have been or, in connection with the Term Loan, will be terminated or released;
(h) each Credit Party shall have obtained all Governmental Approvals and all consents of other Persons, if any, in each case that are necessary in connection with the transactions contemplated by the Loan Documents and each of the foregoing shall be in full force and effect effect. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose material and adverse conditions on the transactions contemplated by the Loan Documents or the financing thereof and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired;
(i) opinions of counsel (which counsel shall be reasonably satisfactory to Lender) to the Credit Parties, in each case, in form and substance reasonably satisfactory to Lender;
(gj) Lender’s receipt a summary in reasonable detail of (i) an opinion of counsel to all insurance policies required by Section 6.5 hereof carried or maintained as of the Credit Parties other than Amicus Biologics, Inc. Closing Date and (ii) an opinion of counsel to Amicus Biologics, Inc., in each case in form and substance reasonably satisfactory to Lender;
(h) Lender’s receipt of (i) evidence that the products liability and general liability such insurance policies maintained regarding any Collateral are in full force and effect and (ii) effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favor of Lender (such evidence as applicable, subject to be in form and substance reasonably satisfactory to Lender)the Intercreditor Agreement;
(ik) Lender’s receipt of all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”);
(jl) payment of evidence satisfactory to Lender Expenses and other fees then due as specified in Section 2.4 hereof;
(k) Lender’s receipt the form of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming there is no Adverse Proceeding pending orthat (i) on or before the Closing Date, Borrower has designated this Agreement and the Security Agreement, collectively, to be included in the Knowledge definition of Borrower“Credit Agreement” under, and for all purposes of, the Indenture, and (ii) any and all requirements of Section 4.11(b) of the Indenture in connection with Lender’s Lien on Collateral securing the Obligations created under the Security Agreement and the other Loan Documents, have been satisfied in full as of the Closing Date;
(m) evidence satisfactory to Lender in the form of a certificate of the Chief Financial Officer of Borrower that, as of the Closing Date, after giving effect to the incurrence of Indebtedness under the Term Loan Note, Borrower is Solvent and the Credit Parties, on a consolidated basis, are Solvent;
(n) payment of the Lender Expenses and other fees then due as specified in Section 2.4 hereof;
(o) evidence that there shall be no litigation, public or private, or administrative proceedings, governmental investigation or other legal or regulatory developments, actual or threatened, that, individually singly or in the aggregate, could reasonably be expected to result in a Material Adverse Change, Change except as set forth on Schedule 4.7 of the Disclosure Letter (such certificate to be in form and substance reasonably satisfactory to Lender5.6(b); and;
(lp) Lender’s receipt of a certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, confirming satisfaction of the conditions precedent set forth in this Section 3.1 and in Section 3.2 Sections 3.2(b), (such certificate to be in form c), (d) and substance reasonably satisfactory to Lender(e); and
(q) copy of the Intercreditor Agreement originally executed and delivered by each applicable Credit Party and the Trustee and/or Collateral Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (Merrimack Pharmaceuticals Inc)
