CONDITIONS TO THE. Funding on each Subsequent Borrowing Date (a) ThermaClime shall deliver to the Payment Agent a certificate of each Loan Party signed by a Responsible Officer of that Loan Party and dated as of the Subsequent Borrowing Date, (a) certifying and attaching the resolutions adopted by that Loan Party approving or consenting to the Facility Increase, (b) in the case of the Borrowers, certifying that, after giving effect to the Facility Increase and as of the Subsequent Borrowing Date, (i) the representations and warranties contained in Article V or any other Loan Documents, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all material respects, except to the extent that those representations and warranties relate to an earlier date, in which case they shall be true and correct in all material respects as of that earlier date, (X) no Default or Event of Default has occurred and is continuing under the Agreement or under any of the other Loan Documents, or (Y) exists, or would result from the making of the Facility Increase or from the application of the proceeds thereof, and (iii) 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, a Material Adverse Effect; (b) no optional prepayment of the Term Loans pursuant to Section 2.02(b) shall have occurred; (c) the Borrowers shall have paid all fees then due and payable and reasonable out-of-pocket expenses incurred by the Agents and their respective Affiliates (including the reasonable fees, charges and disbursements of counsel for each Agent), in connection with the Facility Increase provided for herein and the preparation, negotiation, execution, delivery, and administration of the Joining Lender Agreement; (d) the Payment Agent’s receipt of endorsements to each of the Policies that are in form and substance acceptable to the Payment Agent, in its sole discretion, that provide for the increase in the coverage by the sum of all Nominal Facility Increase Amounts related to the Facility Increase Amounts to be advanced on that Subsequent Borrowing Date, and that cover such other matters as reasonably requested by the Payment Agent, and such other agreements or further assurances as the Payment Agent, the title company, or any Governmental Authority may require in connection therewith; (e) the Payment Agent shall submit to the Borrowers the proposed revised Schedule 2.03 to be provided pursuant to Section 2.01(h) for their approval and consent thereto; and (f) the Payment Agent’s receipt of a bring-down letter with respect to the opinion delivered pursuant to Section 4.01(a)(viii) and a bring-down letter with respect to the opinion delivered pursuant to Section 4.01(a)(ix), each in form and substance acceptable to the Payment Agent.
Appears in 1 contract
CONDITIONS TO THE. Funding on each Subsequent Borrowing DateSecond Closing in Favour of the Investor
(a) ThermaClime the Company shall deliver have performed and complied in all material respects with all covenants and agreements required by this Agreement to be performed or complied with by it on or prior to the Payment Agent a certificate of each Loan Party signed by a Responsible Officer of that Loan Party and dated as of the Subsequent Borrowing Second Closing Date, (a) certifying and attaching the resolutions adopted by that Loan Party approving or consenting to the Facility Increase, ;
(b) in the case of the Borrowers, certifying that, after giving effect to the Facility Increase and as of the Subsequent Borrowing Date, (i) the all representations and warranties of the Company contained in Article V or any other Loan Documents, or which are contained in any document furnished at any time under or in connection herewith or therewith, are this Agreement shall be true and correct on the date hereof and shall be true and correct in all material respects on the Second Closing Date as if made on and as of the Second Closing Date (except those representations and warranties which are qualified by materiality which shall be true and correct in all respects, and except to the extent that those such representations and warranties expressly relate to an earlier date, in which case they such representations and warranties shall be true and correct in all material respects on and as of that such earlier date, (X) no Default or Event of Default has occurred and is continuing under the Agreement or under any of the other Loan Documents, or (Y) exists, or would result from the making of the Facility Increase or from the application of the proceeds thereof, and (iii) 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, a Material Adverse Effect;
(b) no optional prepayment of the Term Loans pursuant to Section 2.02(b) shall have occurred);
(c) the Borrowers there shall have paid all fees then due and payable and reasonable out-of-pocket expenses incurred by been no Material Adverse Effect since the Agents and their respective Affiliates (including the reasonable fees, charges and disbursements of counsel for each Agent), in connection with the Facility Increase provided for herein and the preparation, negotiation, execution, delivery, and administration of the Joining Lender AgreementFirst Closing Date;
(d) by no later than November 30, 2022, all approvals, consents and authorizations necessary for the Payment Agent’s receipt of endorsements to each consummation of the Policies that are in form and substance acceptable to the Payment Agent, in its sole discretion, that provide subscription for the increase in Second Subscription Shares shall have been obtained, including the coverage by conditional acceptance of the sum of all Nominal Facility Increase Amounts related TSXV (which shall be subject only to customary conditions) and the Facility Increase Amounts to be advanced on that Subsequent Borrowing DateShareholder Approval, and that cover such other matters as reasonably requested by the Payment Agentshall be in full force and effect, and such other agreements shall not have been adversely amended, modified, revoked or further assurances as the Payment Agent, the title company, or any Governmental Authority may require in connection therewithterminated;
(e) the Payment Agent Company shall submit to the Borrowers the proposed revised Schedule 2.03 have made, or caused to be provided pursuant made, all of the deliveries set out in Section 7.4(c);
(f) no preliminary or permanent injunction or other Order issued by a Governmental Authority, and no statute, rule, regulation or executive order promulgated or enacted by a Governmental Authority, which restrains, enjoins, prohibits or otherwise makes illegal the consummation of the transactions contemplated by this Agreement shall be in effect;
(g) no action or proceeding, at law or in equity, shall be pending or threatened by any Person (including any Governmental Authority) to Section 2.01(h) for their approval and consent theretorestrain, enjoin or prohibit the consummation of the transactions contemplated by this Agreement; and
(fh) no Order having the Payment Agent’s receipt effect of a bring-down letter with respect to suspending the opinion delivered pursuant to Section 4.01(a)(viiiissuance or ceasing the trading of any of the Subscription Shares issued or made by any Governmental Authority (including any Securities Regulator or the TSXV) and a bring-down letter with respect to the opinion delivered pursuant to Section 4.01(a)(ix), each shall be in form and substance acceptable to the Payment Agenteffect.
Appears in 1 contract
Sources: Subscription Agreement
CONDITIONS TO THE. Funding on each Subsequent Borrowing Date
Recapitalization Transaction (a) ThermaClime The Recapitalization Transaction shall deliver be subject to the Payment Agent a certificate of each Loan Party signed by a Responsible Officer of that Loan Party and dated as satisfaction of the Subsequent Borrowing Datefollowing conditions prior to or at the Effective Time, each of which is for the mutual benefit of the Concordia Parties, on the one hand, and the Consenting Debtholders, on the other hand, and may be waived in whole or in part jointly by the Company on behalf of the Concordia Parties and the Majority Initial Consenting Debtholders (provided that such conditions shall not be enforceable by any Concordia Party or a Consenting Debtholder, as the case may be, if any failure to satisfy such conditions results primarily from an action, error or omission by or within the control of the Party seeking enforcement): (i) the CBCA Plan shall have been approved by (A) the Court; and (B) the requisite majority of affected creditors and, if applicable, shareholders, as and to the extent required by the Court and the CBCA; (ii) the Final Order (A) shall have been entered by the Court and (B) shall have become a final order, the implementation, operation or effect of which shall not have been stayed, varied in a manner not acceptable to the Company or the Majority Initial Consenting Debtholders, vacated or subject to pending appeal and as to which order any appeal periods relating thereto shall have expired; (iii) the CBCA Plan and all Definitive Documents shall be in form and substance acceptable to the Company and the Majority Initial Consenting Debtholders; provided that: (A) the Subscription Agreement shall be in form and substance acceptable to the Company and the Majority Consenting Private Placement Parties, each acting reasonably, (aB) certifying the Governance Agreement shall be in form and attaching the resolutions adopted by that Loan Party approving or consenting substance acceptable to the Facility IncreaseCompany, acting reasonably, and the Majority Consenting Private Placement Parties, and (C) the New Senior Secured Debt shall be in form and substance acceptable to the Company, acting reasonably, the Majority Initial Consenting Secured Debtholders and the Majority Consenting Private Placement Parties; (iv) all disclosure documents (including the Information Circular), solicitation forms with respect to the CBCA Proceedings and the Chapter 11 Process and press releases in respect of the Recapitalization Transaction shall be in form and substance acceptable to the Company and the Majority Initial Consenting Debtholders, each acting reasonably; provided that, nothing herein shall prevent a Party from making public disclosure in respect of the Recapitalization Transaction to the extent required by applicable Law; (v) all required stakeholder, regulatory, Court approvals, consents, waivers and filings required to be made by the Concordia Parties shall have been obtained or made, as applicable, on terms satisfactory to the Company and the Majority Initial Consenting Debtholders, and copies of any and all
(b) in the case The obligation of the Borrowers, certifying that, after giving effect Concordia Parties to complete the Recapitalization Transaction and the other transactions contemplated hereby are subject to Section 11 hereof and to the Facility Increase and as satisfaction of the Subsequent Borrowing Datefollowing conditions prior to or at the Effective Time, each of which is for the benefit of the Concordia Parties and may be waived, in whole or in part, by the Company on behalf of the Concordia Parties (provided that such conditions shall not be enforceable by the Concordia Parties if any failure to satisfy such conditions results primarily from an action, error or omission by or within the control of any Concordia Party): (i) the Consenting Debtholders shall have complied in all material respects with each covenant and obligation in this Support Agreement that is to be performed by them on or before the Effective Date; (ii) the representations and warranties contained of the Consenting Debtholders set forth in Article V or any other Loan Documents, or which are contained in any document furnished at any time under or in connection herewith or therewith, are this Support Agreement shall be true and correct in all material respects, except to the extent that respects(except for those representations and warranties relate which expressly include a materiality standard, which shall be true and correct in all
(c) The obligations of the Consenting Debtholders to an earlier datecomplete the Recapitalization Transaction and the other transactions contemplated hereby and the consummation of the Recapitalization Transaction are subject to the satisfaction of the following conditions prior to or at the Effective Time, each of which is for the benefit of the Consenting Debtholders and may be waived, in which case they whole or in part, by the Majority Initial Consenting Debtholders (provided that such conditions shall not be enforceable by the Consenting Debtholders if any failure to satisfy such conditions results solely from an action, error or omission by or within the control of the Consenting Debtholder seeking enforcement): (i) the Company shall have (A) achieved the Milestones on or before the applicable dates set forth herein, and (B) complied in all material respects with each covenant and obligation in this Support Agreement and the Subscription Agreement that is to be performed by them on or before the Effective Date; (ii) the representations and warranties of the Concordia Parties set forth in this Support Agreement shall be true and correct in all material respects as of that earlier the Effective Date with the same force and effect as if made at and as of such date, except (XA) no Default that representations and warranties that are given as of a specified date shall be true and correct in all material respects as of such date and (B) as such representations and warranties may be affected by the occurrence of events or Event of Default has occurred transactions contemplated and is continuing under the Agreement or under any of the other Loan Documents, or (Y) exists, or would result from the making of the Facility Increase or from the application of the proceeds thereof, and permitted by this Support Agreement; (iii) there has been no event the Final Order, the CBCA Plan, the other Definitive Documents and all orders made and judgments rendered by any competent court of law, and all rulings and decrees of any competent regulatory body, agent or circumstance since official in relation to the date of CBCA shall be in form and substance satisfactory to the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
Majority Initial Consenting Debtholders; provided that: (b) no optional prepayment of the Term Loans pursuant to Section 2.02(b) shall have occurred;
(cA) the Borrowers Subscription Agreement shall have paid all fees then due and payable and reasonable out-of-pocket expenses incurred by the Agents and their respective Affiliates (including the reasonable fees, charges and disbursements of counsel for each Agent), in connection with the Facility Increase provided for herein and the preparation, negotiation, execution, delivery, and administration of the Joining Lender Agreement;
(d) the Payment Agent’s receipt of endorsements to each of the Policies that are be in form and substance acceptable to the Payment AgentCompany and the Majority Consenting Private Placement Parties, in its sole discretioneach acting reasonably, that provide for the increase in the coverage by the sum of all Nominal Facility Increase Amounts related to the Facility Increase Amounts to be advanced on that Subsequent Borrowing Date, and that cover such other matters as reasonably requested by the Payment Agent, and such other agreements or further assurances as the Payment Agent, the title company, or any Governmental Authority may require in connection therewith;
(eB) the Payment Agent Governance Agreement shall submit to the Borrowers the proposed revised Schedule 2.03 to be provided pursuant to Section 2.01(h) for their approval and consent thereto; and
(f) the Payment Agent’s receipt of a bring-down letter with respect to the opinion delivered pursuant to Section 4.01(a)(viii) and a bring-down letter with respect to the opinion delivered pursuant to Section 4.01(a)(ix), each in form and substance acceptable to the Payment Agent.Company, acting reasonably, and the Majority
Appears in 1 contract
CONDITIONS TO THE. Funding OBLIGATIONS OF THE PLACEMENT AGENTS AND THE PURCHASERS, AND THE SALE OF THE STOCK. The respective obligations of each Placement Agent and the Purchasers, and the closing of the sale of the Stock hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties on the part of the Company and its Subsidiary contained herein, to the accuracy of the statements of the Company and its Subsidiary made in any certificates pursuant to the provisions hereof, to the performance by the Company and of its Subsidiary of their obligations hereunder, and to each Subsequent Borrowing Dateof the following additional terms and conditions:
(a) ThermaClime No stop order suspending the effectiveness of the Registration Statement shall deliver have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission, and any request for additional information on the part of the Commission (to be included in the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, if any, or the Prospectus Supplement or otherwise) shall have been complied with to the Payment Agent reasonable satisfaction of the Representative. Any filings required to be made by the Company in accordance with Section 4(a) shall have been timely filed with the Commission.
(b) None of the Placement Agents shall have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, if any, or the Prospectus Supplement or any amendment or supplement thereto contains an untrue statement of a certificate fact which, in the opinion of counsel for the Placement Agents, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form, execution, delivery and validity of each Loan Party signed by a Responsible Officer of this Agreement, the Stock, the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Placement Agents, and the Company shall have furnished to such counsel all documents and information that Loan Party they may reasonably request to enable them to pass upon such matters.
(d) The Placement Agents shall have received from each of (i) DLA Piper Rudnick Gray Cary US LLP, corporate counsel for the Compan▇ (▇▇) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇ennison and Howard, special counsel for the Comp▇▇▇ (▇▇▇) DLA Piper ▇▇▇nick ▇▇▇▇ ▇ary US LLP, intellectual property counsel fo▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇nsel's written opinion, addressed to the Placement Agents and the Purchasers and dated as of the Subsequent Borrowing Closing Date, (a) certifying in form and attaching the resolutions adopted by that Loan Party approving or consenting substance reasonably satisfactory to the Facility IncreasePlacement Agents as set forth in Exhibits C-1, C-2 and C-3 attached hereto, respectively. DLA Piper Rudnick Gray Cary US LLP shall also have furnished to the ▇▇▇▇▇▇▇▇▇ ▇▇▇n▇▇ ▇ ▇▇▇▇ten statement, addressed to the Placement Agents and the Purchasers and dated the Closing Date, in form and substance satisfactory to the Representative, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, (by) based on such counsel's examination of the Registration Statement and such counsel's investigations made in connection with the preparation of the Registration Statement and conferences with certain officers and employees of and with auditors for and counsel to the Company, such counsel has no reason to believe that (I) the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Base Prospectus, the Time of Sale Prospectus, if any, or the Prospectus Supplement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (II) any document incorporated by reference in the Base Prospectus, the Time of Sale Prospectus, if any, or the Prospectus Supplement or any further amendment or supplement to any such incorporated document made by the Company prior to the Closing Date, when they became effective or were filed with the Commission, as the case may be, contained, in the case of a registration statement which became effective under the BorrowersSecurities Act, certifying thatany untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, after giving effect or, in the case of other documents which were filed under the Exchange Act with the Commission, any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the Facility Increase financial statements or other financial data contained in the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, if any, or the Prospectus Supplement.
(e) The Placement Agents shall have received from Brown Raysman Millstein Felder & Steiner LLP, such opinion or op▇▇▇▇▇s, dated ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ssed to the Placement Agents, with respect to the issuance and sale of the Stock, the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, if any, the Prospectus Supplement (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Placement Agents and the Purchasers a certificate, dated as of the Subsequent Borrowing Closing Date, executed by its Chief Executive Officer and its Chief Financial Officer on behalf of the Company stating that (i) such officers have carefully examined the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement and, in their opinion, the Registration Statement (including the Base Prospectus) as of its effective date, the Time of Sale Prospectus, if any, as of each such effective date and the Prospectus Supplement, as of each such effective date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading,
(ii) since the effective date of the Registration Statement no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, if any, or the Prospectus Supplement and that is not already included in such document by reason of materials incorporated by reference therein, (iii) to the best of their knowledge after reasonable investigation, as of the Closing Date, the representations and warranties contained of the Company and its Subsidiary in Article V or any other Loan Documents, or which are contained in any document furnished at any time under or in connection herewith or therewith, this Agreement are true and correct and the Company and its Subsidiary have complied with all agreements and covenants contained in this Agreement and satisfied all material respects, except conditions on its part to be performed or satisfied hereunder at or prior to the extent that those representations and warranties relate to an earlier date, in which case they shall be true and correct in all material respects as of that earlier dateClosing Date, (Xiv) no Default or Event of Default has occurred and is continuing under subsequent to the Agreement or under any date of the other Loan Documentsmost recent financial statements included or incorporated by reference in the Base Prospectus, or (Y) exists, or would result from the making of the Facility Increase or from the application of the proceeds thereof, and (iii) there has been no event change in the financial position or circumstance results of operation of the Company and its Subsidiary that could have a Material Adverse Effect, or any material change, or any material development including a prospective change, in or affecting the condition (financial or otherwise), results of operations, business or prospects of the Company taken as a whole, except as set forth in, or contemplated by, the Base Prospectus, and (v) the Registration Statement became effective on June 17, 2005, and to their knowledge, as of the Closing Date (I) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been commenced or are pending before or are contemplated by the Commission and (II) no action has been taken by any governmental agency, body or official, and no injunction, restraining order or order of any nature by any federal or state court has been issued, which would prevent the issuance of the Stock.
(g) On the Closing Date, the Placement Agents shall have received from Cacciamatta Accountancy Corp. a letter, addressed to the Placement Agents and dated the Closing Date confirming, as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Base Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement as of a date not more than three Business Days prior to the Closing Date), the conclusions and findings of such firm with respect to the financial information and other matters covered by the comfort letter delivered to the Placement Agents on December 12, 2005.
(i) Neither the Company nor its Subsidiary shall have sustained since the date of the Audited Financial Statements latest audited financial statements included or incorporated by reference in the Base Prospectus or the Prospectus Supplement any loss or interference with its business from fire, explosion, flood, terrorist act or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in or contemplated by the Base Prospectus, and (ii) except for the exercise of stock options in the ordinary course of the Company's business, since such date there shall not have been any change in the capital stock or long-term debt of the Company or its Subsidiary or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders' equity, results of operations or prospects of the Company or its Subsidiary, otherwise than as set forth in or contemplated by the Base Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated by the Base Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement.
(i) The Stock is registered under the Exchange Act and, as of the Closing Date, the Stock shall be listed and admitted and authorized for trading on the AMEX and satisfactory evidence of such actions shall have been provided to the Representative. The Company shall have taken no action designed to, or likely to have the effect of terminating the registration of the Stock under the Exchange Act or delisting or suspending from trading the Stock from AMEX, nor has the Company received any information suggesting that has had the Commission or could be reasonably expected the AMEX is contemplating terminating such registration or listing.
(j) At the Execution Time, the Company shall have furnished to havethe Representative a letter substantially in the form of Exhibit B hereto from each executive officer and director of the Company. ---------
(k) Subsequent to the execution and delivery of this Agreement, either individually there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the Nasdaq National Market or the American Stock Exchange or in the aggregateover-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum or maximum prices or maximum ranges for prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a Material Adverse Effect;banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred any other calamity or crisis or any change in general economic, political or financial conditions in the United States or elsewhere, if the effect of any such event in clause (iii) or (iv) makes it, in the sole judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Stock on the terms and in the manner contemplated by the Base Prospectus and the Prospectus Supplement.
(bl) No action shall have been taken and no optional prepayment statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Term Loans pursuant to Section 2.02(b) Closing Date, prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have occurred;been issued as of the Closing Date which would prevent the issuance or sale of the Stock or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.
(cm) the Borrowers The Company shall have paid all fees then due prepared and payable and reasonable out-of-pocket expenses incurred by the Agents and their respective Affiliates (including the reasonable fees, charges and disbursements of counsel for each Agent), in connection filed with the Facility Increase provided for herein Commission a Current Report on Form 8-K with respect to the Offering, including as an exhibit thereto this Agreement and the preparation, negotiation, execution, delivery, and administration of the Joining Lender Agreement;any other documents relating thereto which are required to be filed therewith.
(dn) the Payment Agent’s receipt of endorsements to The Company shall have entered into Subscription Agreements with each of the Policies that Purchasers and such agreements shall be in full force and effect.
(o) Prior to the Closing Date, the Company shall have furnished to the Placement Agents such further information, certificates and documents as the Representative may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance acceptable reasonably satisfactory to the Payment Agent, in its sole discretion, that provide counsel for the increase in the coverage by the sum of all Nominal Facility Increase Amounts related to the Facility Increase Amounts to be advanced on that Subsequent Borrowing Date, and that cover such other matters as reasonably requested by the Payment Agent, and such other agreements or further assurances as the Payment Agent, the title company, or any Governmental Authority may require in connection therewith;
(e) the Payment Agent shall submit to the Borrowers the proposed revised Schedule 2.03 to be provided pursuant to Section 2.01(h) for their approval and consent thereto; and
(f) the Payment Agent’s receipt of a bring-down letter with respect to the opinion delivered pursuant to Section 4.01(a)(viii) and a bring-down letter with respect to the opinion delivered pursuant to Section 4.01(a)(ix), each in form and substance acceptable to the Payment AgentPlacement Agents.
Appears in 1 contract
Sources: Placement Agent Agreement (Halozyme Therapeutics Inc)