CONDITIONS PRECEDENT TO LOAN
The obligations of Lender to make the Loan hereunder are subject to the satisfaction by the Borrower of the following conditions:
4.1Closing Date. On or prior to the Closing Date, Borrower shall have delivered to Agent the following:
(a)executed copies of this Agreement, the Disclosure Letter, the Equity Purchase Agreement, the Intercreditor Agreement, and the Perfection Certificate, in each case, in form and substance reasonably acceptable to Agent;
(b)certified copies of resolutions (or, in the case of Parent, an extract thereof) of each of the Loan Parties’ respective Boards of Directors (and shareholder, with respect to Mesoblast UK, Mesoblast Intl UK, and Mesoblast SUI) evidencing (i) approval of the Loan and other transactions evidenced by the Loan Documents; (ii) authorizing a specified person or persons to execute the Loan Documents to which it is a party on its behalf; (iii) authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices (including, if relevant, any Advance Request or other relevant notice) to be signed and/or dispatched by it under or in connection with the Loan Documents to which it is a party; and (iv) (with respect to Parent) (A) including a statement of corporate benefit; (B) acknowledging that the Board of Directors are acting for a proper purpose and that the Loan Documents are in the best interests of that Loan Party and for its commercial benefit; and (C) acknowledging that the relevant Loan Party was solvent and there were reasonable grounds to expect that the relevant Loan Party would continue to be solvent after executing and complying with its obligations under the Loan Documents; and
(c)such other documents as Agent may reasonably request.
4.2Tranche 1 Advance. On or prior to the Advance Date of the Tranche 1 Advance, Borrower shall have delivered to Agent the following:
(a)executed copies of the Loan Documents not delivered on or prior to the Closing Date (including any supplements or modifications to the Disclosure Letter and Perfection Certificate delivered on the Closing Date reasonably requested by Agent), a legal opinion of each of Loan Party’s United States and Swiss counsel and Agent’s English, Swiss and Australian counsel, and all other documents and instruments reasonably required by Agent to effectuate the transactions contemplated hereby or to create and perfect the Liens of Agent with respect to all Collateral, in all cases in form and substance reasonably acceptable to Agent;
(b)concurrently with the Tranche 1 Advance, Parent shall issue common stock pursuant to the Equity Purchase Agreement pursuant to the terms therein;
(c)certificates (as customary in the jurisdiction of Mesoblast UK and Mesoblast Intl UK and containing specimen signatures) of a director confirming that guaranteeing or securing the Loans would not cause any guaranteeing or similar limit binding on Mesoblast UK and Mesoblast Intl UK to be exceeded and certifying that each copy document relating to it specified in this Section 4, is correct, complete and the original of such copy document, is in full force and effect and has not been amended or superseded as at a date no earlier than the Advance Date of the Tranche 1 Advance;
Confidential material omitted and filed separately with the Commission.