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|CIPHER PHARMACEUTICALS INC filed this Form 6-K on 01/03/2017|
3. Conditions to Effectiveness of Amendment. This Amendment shall become effective upon receipt by (i) the Purchasers of a counterpart signature to this Amendment duly executed and delivered by the Issuer and each of the other Note Parties and (ii) the Note Parties of a counterpart signature to this Amendment duly executed and delivered by the Purchasers.
4. Expenses. The Issuer agrees to pay on demand all reasonable expenses of the Purchasers (including, without limitation, the reasonable fees and out-of-pocket expenses of Covington & Burling LLP, counsel to the Purchasers, and of local counsel, if any, who may be retained by or on behalf of the Purchasers) incurred in connection with the negotiation, preparation, execution and delivery of this Amendment and all other expenses of the Purchasers remaining unpaid as of the date hereof.
5. Representations and Warranties. The Note Parties represent and warrant to the Purchasers as follows:
(a) After giving effect to this Amendment, the representations and warranties of the Issuer and the Guarantors contained in the Securities Purchase Agreement or any other Note Document shall be true and correct in all material respects on and as of the date hereof, except that (x) any such representation and warranty that is qualified by materiality or a reference to Material Adverse Effect shall be true and correct in all respects on and as of the date hereof and (y) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (except that any such representation and warranty that is qualified by materiality or by reference to Material Adverse Effect shall be true and correct in all respects as of such earlier date).
(b) After giving effect to this Amendment, no Default or Event of Default has occurred or is continuing.
(c) (i) Each Note Party has taken all necessary action to authorize the execution, delivery and performance of this Amendment; (ii) this Amendment has been duly executed and delivered by the Note Parties and constitutes each of the Note Parties’ legal, valid and binding obligations, enforceable in accordance with its terms (except, in any case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by principles of equity), and (iii) no authorization or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery or performance by any Note Party of this Amendment.
6. No Implied Amendment or Waiver. Except as expressly set forth in this Amendment, this Amendment shall not, by implication or otherwise, limit, impair, constitute a waiver of or otherwise affect any rights or remedies of the Purchasers under the Securities Purchase Agreement or the other Note Documents, or alter, modify, amend or in any way affect any of the terms, obligations or covenants contained in the Securities Purchase Agreement or the other Note Documents, all of which shall continue in full force and effect. Nothing in this Amendment shall be construed to imply any willingness on the part of the Purchasers to agree to or grant any similar or future amendment, consent or waiver of any of the terms and conditions of the Securities Purchase Agreement or the other Note Documents.
7. Reaffirmation of Security Interests. The Note Parties (i) affirm that each of the security interests and liens granted in or pursuant to the Note Documents are valid and subsisting and (ii) agree that this Amendment shall in no manner impair or otherwise adversely affect any of the security interests and liens granted in or pursuant to the Note Documents.