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: (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; (b) a liquidity forecast 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 Tranche A has been disbursed and 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
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:
(a) received 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;
(b) 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 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 has confirmed that it has received in form and substance satisfactory to it evidence that [***].
2.5.5 Tranche A has been disbursed and 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
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:1. 04A First Tranche
(a) all a certified copy of the Borrower's constitutional documents and other evidence listed in Schedule F (Initial Documentary Conditions Precedent) in form and substance satisfactory to itof the Licence;
(b) a structure chart showing evidence satisfactory to the Group certified as being complete Bank that the execution of this Contract by the Borrower has been duly authorised and correct by an authorised signatory that the person or persons signing the Contract on behalf of the Borrower provided is/are duly authorised to do so together with the specimen signature of each such certification is dated no earlier than the date falling 14 (fourteen) days before the Disbursement Dateperson or persons;
(c) a certificate of an authorised signatory of each Obligor certifying evidence that each copy document relating to it specified the Borrower has obtained all necessary Authorisations required in Schedule F (Initial Documentary Conditions Precedent) is correct, complete connection with entering into and in full force and effect as at a date no earlier than the date falling 14 (fourteen) days before the Disbursement Date; anddelivering this Contract;
(d) a legal opinion of ▇▇▇▇▇▇▇▇ & Co., legal adviser to the Borrower, addressed to the Bank in a form satisfactory to if required by the Bank, and dated no earlier than evidence that the date falling 14 (fourteen) days before Borrower has obtained all necessary Authorisations required in connection with the Disbursement Date:Project;
(ie) 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 receivedduly executed Guarantee Agreement, in form and substance satisfactory to it:the Bank;
(af) a certificate evidence satisfactory to the Bank that the execution of the Guarantee Agreement by the Guarantor has been duly authorised and that the person or persons signing the Guarantee Agreement on behalf of the Guarantor is/are duly authorised to do so together with the specimen signature of each such person or persons;
(g) evidence that the Guarantor has obtained all necessary Authorisations required in connection with entering into and delivering the Guarantee Agreement;
(h) evidence that the fees, costs and expenses then due from the Borrower in the form have been paid, including those payable pursuant to Article 9 of Schedule D this Contract (Form of Drawdown Certificate), signed by an Authorised Signatory and dated no earlier other than the date falling 14 (fourteen) days before the Disbursement Date;
(b) a liquidity forecast 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, any fees 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 invoiced by N▇▇▇▇▇ ▇▇▇▇ LLP 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 connection with the expiry preparation and execution of a grace period and/or this Contract and the giving of notice Guarantee Agreement and with the conditions precedent to be satisfied under this Contract constitute:Article 1.04);
(i) an Event a due capacity, execution and enforceability opinion in relation to this Contract and the Guarantee Agreement of Default; or
(ii) a Prepayment Event other than pursuant to Article 5.3.1 (Cost Reduction)N▇▇▇▇▇ ▇▇▇▇ LLP, or would, in each case, result from the disbursement of the proposed Tranche.
2.5.4 Tranche A – Additional Conditions Precedent Without prejudice legal advisers 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)England;
(bj) 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 Tranche A has been disbursed and 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 certified 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).Revolving Facility Agreement;
Appears in 1 contract
Sources: Finance Contract (Midamerican Energy Holdings Co /New/)
Conditions of Disbursement. 2.5.1 Initial Documentary Conditions Precedent No Disbursement Offer will be provided 1. 04A First Tranche The disbursement of the first Tranche under Article 1.02 is conditional upon receipt by the Bank under this Contract unless the Bank has 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, on or before the date falling 5 (five) Business Days before the Scheduled Disbursement Date for the first Tranche, of the following documents or evidence:
(a) evidence that the execution of this Contract by each Borrower has been duly authorised and that the person or persons signing the Contract on behalf of each Borrower is/are duly authorised to do so together with the specimen signature of each such person or persons;
(b) evidence that the Borrowers have obtained all necessary Authorisations required in connection with this Contract and the Project or, if none are required, a structure chart showing declaration by the Group certified as being complete and correct Borrowers, signed by an a person or persons duly authorised signatory to act on behalf of the Borrower provided such certification is dated Borrowers, that no earlier than Authorisations are required in connection with this Contract or the date falling 14 (fourteen) days before the Disbursement DateProject;
(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; andduly executed Guarantee Agreement;
(d) evidence that the execution of the Guarantee Agreement by the Guarantor has been duly authorised and that the person or persons signing the Guarantee Agreement on behalf of the Guarantor is/are duly authorised to do so together with the specimen signature of each such person or persons (unless such specimen signatures are provided under paragraph (a) above);
(e) the duly executed solvency certificate in the form set out in Schedule F, together with evidence that the execution of the solvency certificate by the Borrowers has been duly authorised and that the person or persons signing the solvency certificate on behalf of the Borrowers is/are duly authorised to do so together with the specimen signature of each such person or persons;
(f) in respect of the Guarantor, a certificate of good standing (or equivalent) issued as of a recent date by the Secretary of State or other appropriate official of the Guarantor's jurisdiction of incorporation, organisation or formation and principal place of business;
(g) an English law legal opinion of ▇▇▇▇▇ & ▇▇▇▇▇ LLP in relation to enforceability of the Finance Documents (as to English law), governmental consents, registration requirements, stamp duties and choice of law in a form satisfactory to the Bank;
(h) a Luxembourg law legal opinion of Stibbe Avocats, Luxembourg in relation to the Borrowers covering, inter alia, status, powers and authority, non-conflict, governmental consents, registration requirements, stamp duties, choice of law and recognition of judgments opinion, in a form satisfactory to the Bank;
(i) an Indiana law legal opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ & Co., legal adviser LLP in relation to the BorrowerGuarantor covering, addressed to the Bank inter alia, status, powers and authority, non-conflict, governmental consents, registration requirements, stamp duties, choice of law, recognition of judgements; in a form satisfactory to the Bank, and dated no earlier than the date falling 14 ;
(fourteenj) days before the Disbursement Date:
a Delaware law legal opinion in relation to (i) which includes choice of law (ii) recognition of judgements (iii) that it is not necessary under the Searches laws of Delaware in order to enable the Bank to enforce its rights against the Guarantor under the Guarantee Agreement or this Contract or by reason of the execution of those documents or the performance by the Bank of its obligations under those documents, that the Bank should be licensed, qualified or otherwise entitled to carry on business in Delaware and (iv) the relevant Obligor conducted Bank is not and will not be deemed to be resident, domiciled or carrying on business in Delaware by reason only of the date execution, performance and/or enforcement of such legal opinionthe Guarantee Agreement or this Contract; in a form satisfactory to the Bank; ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ BK:37209258.7 18
(k) evidence of compliance with Article 6.10;
(l) evidence that the process agents referred to in Article 11.03 and article 3.9 of the Guarantee Agreement have accepted their appointment; and
(iim) which includesevidence that the Bank has received payment in full of all fees, among others, opinions on costs and expenses then due from the due incorporation and valid existence of each Obligor, Borrowers in relation to this Contract (including the authority and capacity of each Obligor to enter into the Finance Documents and perform its obligations thereunder, nonUp-conflict with constitutional documents and on laws applicable to companies generally in Israel, no consents, registrations or filings are required (other than as listedfront Fee) and no stamp duty is of all fees, costs and expenses then due from the Guarantor in relation to be paid in respect of the Finance DocumentsGuarantee Agreement, all corporate and other action required to be taken has indeed been takenit being anticipated that, apart from the due execution of the Finance DocumentsGuarantee Agreement on or about the same date as this Contract and apart from (k) and (m), choice each of law and enforceability of judgments and that the Obligor is not entitled these conditions are expected to claim immunitybe progressed as soon as practical after signing.
2.5.2 1. 04B All Tranches - Documentary Conditions Precedent No Disbursement OfferThe disbursement of each Tranche under Article 1.02, including the first Disbursement Offerfirst, will be provided is conditional upon:
(a) receipt by the Bank under this Contract unless the Bank has confirmed that it has received, in form and substance satisfactory to it, on or before the date falling 5 (five) Business Days before the Scheduled Disbursement Date for the proposed Tranche, of the following documents or evidence:
(ai) a certificate from both of the Borrowers in the form of Schedule E.1;
(ii) a certificate from the Borrower Guarantor in the form of Schedule D E.2;
(Form iii) evidence of Drawdown Certificate)the authority of the person or persons authorised to sign the certificates under paragraphs (i) and (ii) above and the specimen signature of such person or persons;
(iv) a copy of any other authorisation or other document, signed by an Authorised Signatory opinion or assurance which the Bank has notified the Borrowers is necessary or desirable in connection with the entry into, delivery and dated no earlier than performance of, and the date falling 14 (fourteen) days before transactions contemplated by, the Disbursement Date;Contract or the Guarantee Agreement or the validity and enforceability of the same.
(b) a liquidity forecast 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 Scheduled Disbursement Date for the proposed Tranche:
(ai) the Repeating Representations representations and warranties which are repeated pursuant to Article 6.12 are correct in all material respects; and
(bii) no event or circumstance has occurred and is continuing which constitutes or would with the expiry passage of a grace period and/or the time or 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 Tranche A has been disbursed and 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
Sources: Finance Contract
Conditions of Disbursement. 2.5.1 Initial Documentary Conditions Precedent No Disbursement Offer will be provided 1. 04A First Tranche The disbursement of the first Tranche under Article 1.02 is conditional upon receipt by the Bank under this Contract unless the Bank has confirmed that it has received:
(a) all of the documents and other evidence listed in Schedule F (Initial Documentary Conditions Precedent) Bank, in form and substance satisfactory to it, on or before the date falling 5 (five) Business Days before the Scheduled Disbursement Date, of the following documents or evidence:
a) a certified copy (certified by a Managing Director of the Borrower as a true and up to date copy) of the resolution of the competent body (general meeting of shareholders) of the Borrower duly authorising the execution of this Contract and duly authorising the person or persons signing this Contract on behalf of the Borrower together with the specimen signature of each such person or persons;
(b) a certified copy (certified by a Managing Director of Curetis NV as a true and up to date copy) of the resolution of the competent body (board of directors and supervisory board) of Curetis NV duly authorising the execution of the Initial Guarantee Agreement and duly authorising the person or persons signing the Initial Guarantee Agreement on behalf of Curetis NV together with the specimen signature of each such person or persons;
c) evidence that the Borrower has obtained all necessary Authorisations required in connection with this Contract and the Project;
d) this Contract duly executed by the Borrower;
e) the duly executed Initial Guarantee Agreement;
f) a legal opinion of ▇▇▇▇▇ Lovells International LLP, addressed to the Bank, on the legality, validity and enforceability of each Finance Document governed by English law, such legal opinion to be in the form distributed to the Bank prior to the signing of this Contract;
g) a legal opinion of CMS ▇▇▇▇▇▇ ▇▇▇▇▇, Partnerschaft von Rechtsanwälten und Steuerberatern mbB, addressed to the Bank in form and substance satisfactory to the Bank, on the valid existence of the Borrower, the authority and capacity of the Borrower to enter into this Contract and on the due execution and choice of law of this Contract;
h) a legal opinion of CMS ▇▇▇▇▇ Star Busmann NV, addressed to the Bank in form and substance satisfactory to the Bank, on the valid existence of Curetis NV, the authority and capacity of Curetis NV to enter into the Initial Guarantee Agreement and on the due execution and choice of law of the Initial Guarantee Agreement;
i) copies of the latest audited consolidated financial statements of the Group and the latest unaudited financial statements of the Borrower and of Curetis NV;
j) copies of the constitutional documents of the Borrower and Curetis NV;
k) the group 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 Dateof this Contract;
(cl) a certificate of an authorised signatory of each Obligor the Borrower and Curetis NV certifying that each copy document relating to it specified in Schedule F (Initial Documentary Conditions Precedent) this Article 1.04A 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 DateContract;
(bm) a liquidity forecast for the next 12 (twelve) months of the Borrower certified by a director of the Borrower which confirms evidence 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 insurances 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 accordance with the expiry requirements 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 Tranche A has been disbursed and 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).6.05
Appears in 1 contract