Conditions of Disbursement. 2.5.1 Initial Documentary Conditions Precedent No Disbursement Offer will be provided by the Bank under this Contract unless the Bank has received all of the documents and other evidence listed in Schedule F (Initial Documentary Conditions Precedent) in form and substance satisfactory to it. 2.5.2 All Tranches - Documentary Conditions Precedent No Disbursement Offer, including the first Disbursement Offer, will be provided by the Bank under this Contract unless the Bank has confirmed that it has received, in form and substance satisfactory to it, a certificate from the Borrower in the form of Schedule D (Form of Drawdown Certificate), signed by an Authorised Signatory and dated no earlier than the date falling 14 (fourteen) days before the Disbursement Date and a liquidity forecast (which can be provided in the form of the latest quarterly audited financial statements) in respect of the Borrower for the next 12 (twelve) months which confirms that the Borrower has sufficient liquidity to pay its debts as they fall due for at least 12 (twelve) months from the Disbursement Date, which may take into account the disbursement of the proposed Tranche. 2.5.3 All Tranches – Other Conditions The Bank will only be obliged to make any Accepted Tranche available to the Borrower if on the Disbursement Date for the proposed Tranche: (a) the Repeating Representations are correct in all respects; and (b) no event or circumstance has occurred and is continuing which constitutes or would with the expiry of a grace period and/or the giving of notice under this Contract constitute: (i) an Event of Default; or (ii) a Prepayment Event other than pursuant to Article 5.3.1 (Cost Reduction), or would, in each case, result from the disbursement of the proposed Tranche. 2.5.4 Tranche B – Additional Conditions Precedent Without prejudice to the generality of Articles 2.5.1 (Initial Documentary Conditions Precedent) to 2.5.3 (All Tranches – Other Conditions), no Disbursement Offer will be provided by the Bank under this Contract in respect of Tranche B unless the Bank has confirmed that it has received in form and substance satisfactory to it evidence that [***]. 2.5.5 Tranche C – Additional Conditions Precedent Without prejudice to the generality of Articles 2.5.1 (Initial Documentary Conditions Precedent) to 2.5.3 (All Tranches – Other Conditions), no Disbursement Offer will be provided by the Bank under this Contract in respect of Tranche C unless the Bank has confirmed that it has received in form and substance satisfactory to it: (a) [***]; (b) [***].
Appears in 1 contract
Sources: Finance Contract (Immunic, Inc.)
Conditions of Disbursement. 2.5.1 Initial Documentary Conditions Precedent No Disbursement Offer will be provided by the Bank under this Contract unless the Bank has confirmed that it has received all of the documents and other evidence listed in Schedule F (Initial Documentary Conditions Precedent) in form and substance satisfactory to itit and no later than the date falling 10 (ten) Business Days before the Disbursement Date.
2.5.2 All Tranches - Documentary Conditions Precedent No Each Disbursement Offer, including the first Disbursement Offer, will be provided by the Bank under this Contract unless only once the Bank has confirmed that it has received, in form and substance satisfactory to it, it no later than the date falling 10 (ten) Business Days before the Disbursement Date:
(a) a certificate from the Borrower in the form of Schedule D (Form of Drawdown Certificate), signed by an Authorised Signatory and dated no earlier than the date falling 14 (fourteen) days Business Days before the respective Disbursement Date and Date;
(b) a liquidity forecast (which can be provided in the form of the latest quarterly audited financial statements) in respect of the Borrower for the next 12 (twelve) months of the Borrower which confirms that the Borrower has sufficient liquidity to pay its debts as they fall due for at least 12 (twelve) months from the Disbursement Date, which may take into account the disbursement of the proposed Tranche; and
(c) evidence of the Borrower’s solvency position on the basis of a solvency certificate (certificate de non faillite) issued by the relevant Greffe du Tribunal de commerce (which must not be dated more than 14 (fourteen) Business Days before the Disbursement Date).
2.5.3 All Tranches – Other Conditions The Bank will only be obliged to make any Accepted Tranche available to the Borrower if on the Disbursement Date for the proposed Tranche:
(a) the Repeating Representations are correct in all respects; and
(b) no event or circumstance has occurred and is continuing which constitutes or would with the expiry passage of a grace period and/or time or the giving of notice or the making of any determination under this Contract (or any combination of the foregoing) constitute:
(i) an Event of Default; or
(ii) a Prepayment Event other than pursuant to Article 5.3.1 (Investment Cost ReductionReduction Event), has occurred and is continuing unremedied or would, in each case, unwaived or would result from the disbursement of the proposed Tranche.
2.5.4 Tranche A – Additional Conditions Precedent Without prejudice to the generality of Articles 2.5.1 (Initial Documentary Conditions Precedent) to 2.5.3 (All Tranches – Other Conditions), no Disbursement Offer will be provided by the Bank under this Contract in respect of Tranche A unless the Bank has confirmed that it has received in form and substance satisfactory to it no later than the date falling 10 (ten) Business Days before the Disbursement Date:
(a) a copy of the resolution of the competent body (board of directors and/or general meeting of shareholders) of the Borrower approving the issuance of the Tranche A Warrants by the Borrower;
(b) a copy of the auditor’s report(s) relating to the issuance of the Tranche A Warrants;
(c) a copy of the Borrower's board of directors minutes acknowledging the amount of receivable held by the Bank as part of the Arrangement Fee;
(d) a copy of the report issued by the Borrower's statutory auditors certifying the amount of receivable held by the Bank as part of the Arrangement Fee and to be set off against the subscription price of the Tranche A Warrants;
(e) a copy of the Subscription form substantially in the form set out in the Warrant Agreement relating to the Tranche A Warrants executed by the Bank;
(f) if not already included in paragraph (a) the decision of the competent body (board of directors and/or general meeting of shareholders) acknowledging the subscription of the Tranche A Warrants by the Bank;
(g) evidence of registration of the Tranche A Warrants in the securityholders’ account opened in the name of the Bank in the Borrower’s Register;
(h) a certificate issued by the Borrower confirming that the subscription to the Tranche A Warrants (i) has not triggered and will not trigger any Borrower's shareholders rights pursuant to any shareholders' agreement, (ii) has not resulted and will not result in a violation of the articles of association of the Borrower, any shareholders' agreement or any agreement to which the Borrower is a party or any law, regulation or judgment to which it is subject and (iii) the Borrower is not aware of any governmental authority or competent jurisdiction having enacted, issued, promulgated, enforced or entered into any judgment, decision, decree, injunction or other order which prohibits consummation of the transaction or that seeks, or has the effect of, restraining or prohibiting consummation of the transaction;
(i) a legal opinion from ▇▇▇▇▇ Day, legal adviser to the Borrower, addressed to the Bank providing that (i) the issuance of the Tranche A Warrants has been duly authorised by the Borrower and (ii) the Tranche A Warrants have been validly issued to the benefit of the Bank and subscribed by it and (iii) the Bank is, as at the date of issuance of the Tranche A Warrants, the valid owner of the Tranche A Warrants, which are duly registered in the Register;
(j) evidence that the Group has reached a level of revenues during the last 12 (twelve) months at least equal to EUR 58,000,000;
(k) The following evidences of the direct presence in the United Kingdom and Sweden: (i) a signed employment contract, evidencing that the Borrower or a Group Company has hired one (1) full-time employee located in the United Kingdom and dedicated to sales, clinical or commercial support for the United Kingdom ; and (ii) a signed employment contract, evidencing that the Borrower or a Group Company has hired one (1) full-time employee located in Sweden dedicated to sales, clinical or commercial support for the Nordic countries;
(l) The following evidences of CE Mark for Endometriosis and First Focal One telecollaboration: (i) copy of GMED (notified body)'s report regarding CE Mark designation for the Focal One Robotic HIFU-System, for the treatment of posterior deep endometriosis infiltrating the rectum and surrounding structures ; and (ii) press releases from the Cleveland Clinic regarding first remote transatlantic Focal One procedure performed between Cleveland Clinic Ohio and Cleveland Clinic Abu-Dhabi;
(m) a certificate of an authorised signatory of the Borrower certifying that each copy document specified above is correct, complete and in full force and effect.
2.5.5 Tranche B – Additional Conditions Precedent Without prejudice to the generality of Articles 2.5.1 (Initial Documentary Conditions Precedent) to 2.5.3 (All Tranches – Other Conditions), no Disbursement Offer will be provided by the Bank under this Contract in respect of Tranche B unless Tranche A has been fully disbursed and the Bank has confirmed that it has received in form and substance satisfactory to it no later than the date falling 10 (ten) Business Days before the Disbursement Date:
(a) a copy of the resolution of the competent body (board of directors and/or general meeting of shareholders) of the Borrower approving the issuance of the Tranche B Warrants by the Borrower;
(b) a copy of the auditor’s report(s) relating to the issuance of the Tranche B Warrants;
(c) a copy of the Borrower's board of directors minutes acknowledging the amount of receivable held by the Bank as part of the Arrangement Fee;
(d) a copy of the report issued by the Borrower's statutory auditors certifying the amount of receivable held by the Bank as part of the Arrangement Fee and to be set off against the subscription price of the Tranche B Warrants;
(e) a copy of the Subscription form substantially in the form set out in the Warrant Agreement relating to the Tranche B Warrants executed by the Bank;
(f) if not already included in paragraph (a) the decision of the competent body (board of directors and/or general meeting of shareholders) acknowledging the subscription of the Tranche B Warrants by the Bank;
(g) evidence of registration of the Tranche B Warrants in the securityholders’ account opened in the name of the Bank in the Borrower’s Register;
(h) a certificate issued by the Borrower confirming that the subscription to the Tranche B Warrants (i) has not triggered and will not trigger any Borrower's shareholders rights pursuant to any shareholders' agreement, (ii) has not resulted and will not result in a violation of the articles of association of the Borrower, any shareholders' agreement or any agreement to which the Borrower is a party or any law, regulation or judgment to which it is subject and (iii) the Borrower is not aware of any governmental authority or competent jurisdiction having enacted, issued, promulgated, enforced or entered into any judgment, decision, decree, injunction or other order which prohibits consummation of the transaction or that seeks, or has the effect of, restraining or prohibiting consummation of the transaction;
(i) a legal opinion from ▇▇▇▇▇ Day, legal adviser to the Borrower, addressed to the Bank providing that (i) the issuance of the Tranche B Warrants has been duly authorised by the Borrower and (ii) the Tranche B Warrants have been validly issued to the benefit of the Bank and subscribed by it and (iii) the Bank is, as at the date of issuance of the Tranche B Warrants, the valid owner of the Tranche B Warrants, which are duly registered in the Register;
(j) evidence, satisfactory to the Bank, that the Group has reached a level of EBITDA not lower than minus EUR 16,500,000 during the last 12 (twelve) months;
(k) evidence that [***]the Group has reached a level of revenues during the last 12 (twelve) months at least equal to EUR 60,000,000;
(l) evidence of the New Ultrasound Manufacturing Introduction, comprising a final manufacturing file or manufacturing document prepared by the Borrower, regarding the new ultrasound product;
(m) a report for a clinical study regarding benign prostatic hyperplasia (''BPH'') undertaken in the European Union or an IRB Document for a for a clinical study regarding BPH undertaken in the United States; and
(n) a certificate of an authorised signatory of the Borrower certifying that each copy document specified above is correct, complete and in full force and effect.
2.5.5 2.5.6 Tranche C – Additional Conditions Precedent Without prejudice to the generality of Articles 2.5.1 (Initial Documentary Conditions Precedent) to 2.5.3 (All Tranches – Other Conditions), no Disbursement Offer will be provided by the Bank under this Contract in respect of Tranche C unless Tranche A and Tranche B have been fully disbursed and the Bank has confirmed that it has received in form and substance satisfactory to itit no later than the date falling 10 (ten) Business Days before the Disbursement Date:
(a) [***]a copy of the resolution of the competent body (board of directors and/or general meeting of shareholders) of the Borrower approving the issuance of the Tranche C Warrants by the Borrower;
(b) [***]a copy of the auditor’s report(s) relating to the issuance of the Tranche C Warrants;
(c) a copy of the Borrower's board of directors minutes acknowledging the amount of receivable held by the Bank as part of the Arrangement Fee;
(d) a copy of the report issued by the Borrower's statutory auditors certifying the amount of receivable held by the Bank as part of the Arrangement Fee and to be set off against the subscription price of the Tranche C Warrants;
(e) a copy of the Subscription form substantially in the form set out in the Warrant Agreement relating to the Tranche C Warrants executed by the Bank;
(f) if not already included in paragraph (a) the decision of the competent body (board of directors and/or general meeting of shareholders) acknowledging the subscription of the Tranche C Warrants by the Bank;
(g) evidence of registration of the Tranche C Warrants in the securityholders’ account opened in the name of the Bank in the Borrower’s Register;
(h) a certificate issued by the Borrower confirming that the subscription to the Tranche C Warrants (i) has not triggered and will not trigger any Borrower's shareholders rights pursuant to any shareholders' agreement, (ii) has not resulted and will not result in a violation of the articles of association of the Borrower, any shareholders' agreement or any agreement to which the Borrower is a party or any law, regulation or judgment to which it is subject and (iii) the Borrower is not aware of any governmental authority or competent jurisdiction having enacted, issued, promulgated, enforced or entered into any judgment, decision, decree, injunction or other order which prohibits consummation of the transaction or that seeks, or has the effect of, restraining or prohibiting consummation of the transaction;
(i) a legal opinion from ▇▇▇▇▇ Day, legal adviser to the Borrower, addressed to the Bank providing that (i) the issuance of the Tranche C Warrants has been duly authorised by the Borrower and (ii) the Tranche C Warrants have been validly issued to the benefit of the Bank and subscribed by it and (iii) the Bank is, as at the date of issuance of the Tranche C Warrants, the valid owner of the Tranche C Warrants, which are duly registered in the Register;
(j) evidence, satisfactory to the Bank, that the Group has reached a level of EBITDA not lower than minus EUR 12,500,000 during the last 12 (twelve) months;
(k) evidence that that the Group has reached a level of revenues during the last 12 (twelve) months at least equal to EUR 69,000,000 (of which HIFU equal to EUR 40,000,000);
(l) a Final Design Transfer document demonstrating achievement of manufacturing readiness for Focal One systems (including Focal One Plus and next generation systems);
(m) a FocalPak volume growth chart comparing calendar year 2025 (CY25) and calendar year 2026 (CY26);
(n) a purchase order or signed operating lease agreement confirming the placement of at least one (1) Focal One system with Endometriosis capability in the European Union, to demonstrate the commercialization rollout of Focal One for Endometriosis treatment in Europe; and
(o) a certificate of an authorised signatory of the Borrower certifying that each copy document specified above is correct, complete and in full force and effect.
Appears in 1 contract
Sources: Finance Contract (Edap TMS Sa)
Conditions of Disbursement. 2.5.1 Initial Documentary Conditions Precedent No Disbursement Offer will be provided by the Bank under this Contract unless the Bank has received confirmed that it has received:
(a) all of the documents and other evidence listed in Schedule F (Initial Documentary Conditions Precedent) in form and substance satisfactory to it;
(b) a structure chart showing the Group certified as being complete and correct by an authorised signatory of the Borrower provided such certification is dated no earlier than the date falling 14 (fourteen) days before the Disbursement Date;
(c) a certificate of an authorised signatory of each Obligor certifying that each copy document relating to it specified in Schedule F (Initial Documentary Conditions Precedent) is correct, complete and in full force and effect as at a date no earlier than the date falling 14 (fourteen) days before the Disbursement Date; and
(d) a legal opinion of ▇▇▇▇▇▇▇▇ & Co., legal adviser to the Borrower, addressed to the Bank in a form satisfactory to the Bank, and dated no earlier than the date falling 14 (fourteen) days before the Disbursement Date:
(i) which includes the Searches on the relevant Obligor conducted on the date of such legal opinion; and
(ii) which includes, among others, opinions on the due incorporation and valid existence of each Obligor, the authority and capacity of each Obligor to enter into the Finance Documents and perform its obligations thereunder, non-conflict with constitutional documents and on laws applicable to companies generally in Israel, no consents, registrations or filings are required (other than as listed) and no stamp duty is to be paid in respect of the Finance Documents, all corporate and other action required to be taken has indeed been taken, the due execution of the Finance Documents, choice of law and enforceability of judgments and that the Obligor is not entitled to claim immunity.
2.5.2 All Tranches - Documentary Conditions Precedent No Disbursement Offer, including the first Disbursement Offer, will be provided by the Bank under this Contract unless the Bank has confirmed that it has received, in form and substance satisfactory to it, :
(a) a certificate from the Borrower in the form of Schedule D (Form of Drawdown Certificate), signed by an Authorised Signatory and dated no earlier than the date falling 14 (fourteen) days before the Disbursement Date and Date;
(b) a liquidity forecast (which can be provided in the form of the latest quarterly audited financial statements) in respect of the Borrower for the next 12 (twelve) months of the Borrower certified by a director of the Borrower which confirms that the Borrower has sufficient liquidity to pay its debts as they fall due for at least 12 (twelve) months from the Disbursement Date, which may take into account the disbursement of the proposed Tranche; and
(c) searches against the Borrower at the following registries/websites, to be dated no later than one Business Day prior to the proposed Disbursement Date (i) MAYA (TASE reporting portal), (ii) Registrar of Companies and (iii) the Israeli Ministry of Justice, Bankruptcy Register, evidencing that no filings or disclosures have been made in relation to the insolvency of the Borrower or any insolvency proceedings relating to the Borrower (collectively, known as the “Searches”).
2.5.3 All Tranches – Other Conditions The Bank will only be obliged to make any Accepted Tranche available to the Borrower if on the Disbursement Date for the proposed Tranche:
(a) the Repeating Representations are correct in all respects; and
(b) no event or circumstance has occurred and is continuing which constitutes or would with the expiry of a grace period and/or the giving of notice under this Contract constitute:
(i) an Event of Default; or
(ii) a Prepayment Event other than pursuant to Article 5.3.1 (Cost Reduction), or would, in each case, result from the disbursement of the proposed Tranche.
2.5.4 Tranche A – Additional Conditions Precedent Without prejudice to the generality of Articles 2.5.1 (Initial Documentary Conditions Precedent) to 2.5.3 (All Tranches – Other Conditions), no Disbursement Offer will be provided by the Bank under this Contract in respect of Tranche A unless the Bank has confirmed that it has received in form and substance satisfactory to it:
(a) Evidence that no Indebtedness which following the first Disbursement Date would not constitute Permitted Indebtedness remains outstanding by (or is available to) the Borrower on or prior to the first Disbursement Date (including, for the avoidance of doubt, that all convertible loans have been converted);
(b) Evidence that all Security, guarantees and indemnities granted by the Borrower which following the first Disbursement Date would not constitute Permitted Security or Permitted Guarantees will be irrevocably removed, released and discharged and de-registered on or prior to the first Disbursement Date;
(c) Evidence that the Borrower has obtained a contribution in cash by way of capital contribution in an amount equal to at least EUR4,000,000 (four million euro) (out of which at least EUR2,000,000 (two millions euro) has been contributed after 1 January 2021)) by the first Disbursement Date, to be applied simultaneously with the Loan under Tranche A towards the Investment;and
(d) Evidence that the Borrower is qualified under ISO certification standard that is related to the Borrower’s business and operations. Evidence that the Borrower holds a valid business license (temporary or permanent), all Environmental Approvals (including any toxins permit and emissions permit, if so required) and all other Authorisations, in each case that are required to enable the Borrower to operate the manufacturing plant which is the object of this Credit at Dimona industrial park, Israel.
2.5.5 Tranche B – Additional Conditions Precedent Without prejudice to the generality of Articles 2.5.1 (Initial Documentary Conditions Precedent) to 2.5.3 (All Tranches – Other Conditions), no Disbursement Offer will be provided by the Bank under this Contract in respect of Tranche B unless the Bank Tranche A has confirmed that it has received in form been disbursed and substance satisfactory to it evidence that [***].
2.5.5 Tranche C – Additional Conditions Precedent Without prejudice to the generality of Articles 2.5.1 (Initial Documentary Conditions Precedent) to 2.5.3 (All Tranches – Other Conditions), no Disbursement Offer will be provided by the Bank under this Contract in respect of Tranche C unless the Bank has confirmed that it has received in form and substance satisfactory to it:
(a) [***]Evidence that, following the date of this Agreement, the Borrower has obtained an aggregate contribution in cash by way of capital contribution in an amount equal to at least 100% of Tranche B by the relevant Disbursement Date to be applied simultaneously with the Loan under Tranche B towards the Investment (it being understood, for the avoidance of doubt, that any amount that has been applied to meet the test set out in sub-paragraph 2.5.4.(c) above shall not be taken into account for the purposes of this sub-paragraph 2.5.5(a));
(b) [***]minimum cumulated offtake orders of 730m3 of storage modules equivalent to around 50 MWht of thermal storage capacity (with an average conversion rate of 15 m3 per MWht);
(c) A copy of a duly executed agreement with a third party (dated after the cut-off date of 31st August 2020) for at least one project outside Israel with a minimum order of 266 m3 of storage modules or 20 (266 m3 divided by 15 m3 per MWh) MWht thermal storage capacity; and
(d) Evidence that the cumulative revenues of the Borrower for the Relevant Period immediately preceding the relevant Disbursement Date amount to at least EUR 4,000,000 (four million euros).
Appears in 1 contract