Accordion Advances. The Purchasers shall make the Tranche 2 Advance, Tranche 3 Advance and Tranche 4 Advance subject to the fulfillment on or prior to the applicable Funding Date of each of the following conditions, as applicable to each such Advance, in each case, in a manner, form and substance reasonably satisfactory to the Purchasers: (a) The Tranche 3 Funding Date shall be no later than thirty (30) days after the Second Amendment Effective Date, subject in any event to the conditions set forth in all subsections of Section 4.3 which are applicable to all Advances or specifically to the Tranche 3 Advance; (b) Notwithstanding anything to the contrary herein, any or all Purchasers may elect not to fund the Tranche 4 Advance in its or their sole discretion; (c) With respect to the Tranche 4 Advance, the Borrowers shall have notified the Purchasers of their desire to draw the applicable Advance at least ninety (90) days prior to the proposed Funding Date, which notice shall be in writing signed by a Responsible Officer of the Company and each other Borrower, specify the proposed Funding Date and provide evidence reasonably satisfactory to the Purchasers that the Company has satisfied the applicable condition set forth in this Section 4.3; provided that, the Purchasers have no obligation to fund the Applicable Advance, and each Purchaser may accept or decline to do so in its sole discretion, within ninety (90) days after their receipt of such notice, and in any event subject to the satisfaction or the Purchasers’ waiver of each applicable condition in this Section 4.3; (d) The Borrowers and the Company, respectively, shall have delivered the Tranche 2 Notes and Tranche 2 Warrants to the Purchasers on the Tranche 2 Funding Date, the Tranche 3 Notes and Tranche 3 Warrants to the Purchasers on the Tranche 3 Funding Date, and the Tranche 4 Notes and Tranche 4 Warrants to the Purchasers on the Tranche 4 Funding Date; (e) The representations and warranties of the Credit Parties contained in ARTICLE V hereof and in the other Operative Documents shall be true and correct as of the applicable Funding Date as if made on the applicable Funding Date (except to the extent expressly made as of a prior date (other than the Closing Date, which shall be read to be the Funding Date), in which case such representations and warranties shall be true and correct as of such earlier date), with exceptions to the foregoing being disclosed to the Purchasers in the form of updated Schedules to this Agreement; provided that any such exception does not represent a change occurring since the Closing Date, or an event or circumstance which the Credit Parties failed to disclose in the Schedules hereto on the Closing Date, that has resulted or could reasonably be expected to result in a Material Adverse Effect; (f) Each Credit Party shall have performed and complied with all of the terms, covenants, agreements and conditions to be performed or complied with by it on or prior to the applicable Funding Date (other than any failure to perform or comply with such terms, covenants, agreements and conditions which the Purchasers have waived in writing), and, to the extent that any schedules hereto are incomplete or inaccurate as of the applicable Funding Date, the Credit Parties shall deliver updated schedules; (g) No Default or Event of Default shall have occurred and be continuing, or would result from, the making of the applicable Advance or from the application of proceeds therefrom; (h) To the extent that the Perfection Certificate last delivered to Purchasers by the Credit Parties is incomplete or inaccurate as of the applicable Funding Date, the Credit Parties shall execute and deliver to the Purchasers an updated Perfection Certificate on or before the applicable Funding Date; (i) The Company and the other Borrowers shall have executed and delivered to the Purchasers a certificate executed by a Responsible Officer of the Company and the other Borrowers, dated as of the applicable Funding Date, as to the satisfaction of the applicable conditions set forth in this Section 4.3; and (j) Any share price set out in this Agreement shall be subject to adjustment from time to time in the same manner as is set out in Section 4.5 of the Notes with respect to the Conversion Price.” (e) Section 7.3(o) is hereby amended and restated as follows:
Appears in 2 contracts
Samples: Securities Purchase Agreement and Notes (MedMen Enterprises, Inc.), Securities Purchase Agreement
Accordion Advances. The Purchasers shall make the Tranche 2 Advance, Advances and Tranche 3 Advance and Tranche 4 Advance subject to the fulfillment on or prior to the applicable Funding Date of each of the following conditions, as applicable to each such Advance, in each case, in a manner, form and substance reasonably satisfactory to the Purchasers:
(a) The With respect to the Tranche 3 2 Optional Advance only, the Borrowers shall have notified the Purchasers of their desire to draw such Advance at least forty five (45) days, but no later than seventy five (75) days, after the Closing Date, which notice shall be in writing signed by a Responsible Officer of the Company and each other Borrower, specify the proposed Funding Date shall (which must be thirty (30) days after such notice is delivered to the Purchasers) and provide evidence reasonably satisfactory to the Purchasers that the Company has satisfied the applicable condition set forth in this Section 4.3 regarding price per Share; provided that, the Purchasers may in their sole discretion fund the applicable Advance at any time after receiving such notice, but no later than thirty (30) days after the Second Amendment Effective Date, subject following their receipt thereof and in any event subject to the conditions set forth satisfaction or the Purchasers’ waiver of each other condition in all subsections of this Section 4.3 which are applicable to all Advances or specifically to the Tranche 3 Advance4.3;
(b) Notwithstanding anything to the contrary herein, any or all Purchasers may elect not to fund the Tranche 4 Advance in its or their sole discretion;
(c) With respect to the Tranche 4 Advance2 Required Advance and Tranche 3 Advance only, the Borrowers shall have notified the Purchasers of their desire to draw the applicable Advance at least ninety (90) days prior to the proposed Funding Date, which notice shall be in writing signed by a Responsible Officer of the Company and each other Borrower, specify the proposed Funding Date and provide evidence reasonably satisfactory to the Purchasers that the Company has satisfied the applicable condition set forth in this Section 4.34.3 regarding price per Share; provided that, the Purchasers have no obligation to may in their sole discretion fund the Applicable Advanceapplicable Advance at any time after receiving such notice, and each Purchaser may accept or decline to do so in its sole discretion, within but no later than ninety (90) days after following their receipt of such notice, thereof and in any event subject to the satisfaction or the Purchasers’ waiver of each applicable other condition in this Section 4.3;
(c) The proposed Funding Date of any such Advance shall be no later than the date that is twelve (12) months prior to the Maturity Date;
(d) The Borrowers and the Company, respectively, shall have delivered With respect to the Tranche 2 Optional Advance only,
(i) the Borrowers shall have executed and delivered Tranche 2 Notes to the Purchasers with respect to the Tranche 2 Optional Advance, provided that, notwithstanding anything to the contrary in this Agreement or the form of Note attached hereto as Exhibit A, the “Conversion Price” (as defined in such Notes) with respect to such Notes shall be one hundred fifteen percent (115%) of the lesser of (1) the volume-weighted average trading price of the Shares for the twenty (20) consecutive trading days ending on the trading day prior to the Tranche 2 Optional Funding Date (with the conversion from Canadian dollars (as reported by the CSE) to U.S. dollars being determined based on the exchange rate published by the Bank of Canada for the day immediately prior to the Funding Date) and (2) the Closing Base Price; and
(ii) the Company shall have executed and delivered Tranche 2 Warrants to the Purchasers on with respect to the Tranche 2 Optional Advance;
(e) With respect to the Tranche 2 Required Advance only,
(i) the Tranche 2 Required Funding Date is no earlier than the date that is six (6) months after the Tranche 1-B Funding Date, ;
(ii) the volume-weighted average trading price of the Shares for the twenty (20) consecutive trading days ending on the trading day immediately prior to the date the applicable notice was sent to the Purchasers was at least $3.75 (with the conversion from Canadian dollars (as reported by the CSE) to U.S. dollars being determined based on the exchange rate published by the Bank of Canada for such trading day);
(iii) the Borrowers shall have executed and delivered Tranche 2 Notes to the Purchasers with respect to the Tranche 2 Required Advance; and
(iv) the Company shall have executed and delivered Tranche 2 Warrants to the Purchasers with respect to the Tranche 2 Required Advance;
(f) With respect to the Tranche 3 Advance only,
(i) the Tranche 3 Funding Date is no earlier than the date that is six (6) months after the Tranche 2 Required Funding Date;
(ii) the volume-weighted average trading price of the Shares for the twenty (20) consecutive trading days ending on the trading day immediately prior to the date the applicable notice was sent to the Purchasers was at least $4.50 (with the conversion from Canadian dollars (as reported by the CSE) to U.S. dollars being determined based on the exchange rate published by the Bank of Canada for such trading day);
(iii) the Borrowers shall have executed and delivered the Tranche 3 Notes to the Purchasers; and
(iv) the Company shall have executed and delivered the Tranche 3 Warrants to the Purchasers on the Tranche 3 Funding Date, and the Tranche 4 Notes and Tranche 4 Warrants to the Purchasers on the Tranche 4 Funding DatePurchasers;
(eg) The representations and warranties of the Credit Parties contained in ARTICLE V hereof and in the other Operative Documents shall be true and correct as of the applicable Funding Date as if made on the applicable Funding Date (except to the extent expressly made as of a prior date (other than the Closing Date, which shall be read to be the Funding Date), in which case such representations and warranties shall be true and correct as of such earlier date), with exceptions to the foregoing being disclosed to the Purchasers in the form of updated Schedules to this Agreement; provided that any such exception does not represent a change occurring since the Closing Date, or an event or circumstance which the Credit Parties failed to disclose in the Schedules hereto on the Closing Date, that has resulted or could reasonably be expected to result in a Material Adverse Effect;
(fh) Each Credit Party shall have performed and complied with all of the terms, covenants, agreements and conditions to be performed or complied with by it on or prior to the applicable Funding Date (other than any failure to perform or comply with such terms, covenants, agreements and conditions which the Purchasers have waived in writing), and, to the extent that any schedules hereto are incomplete or inaccurate as of the applicable Funding Date, the Credit Parties shall deliver updated schedules;
(gi) No Default or Event of Default shall have occurred and be continuing, or would result from, the making of the applicable Advance or from the application of proceeds therefrom;
(hj) To the extent that the Perfection Certificate last delivered to Purchasers by the Credit Parties is incomplete or inaccurate as of the applicable Funding Date, the Credit Parties shall execute and deliver to the Purchasers an updated Perfection Certificate on or before the applicable Funding Date;
(ik) The Company and the other Borrowers shall have executed and delivered to the Purchasers a certificate executed by a Responsible Officer of the Company and the other Borrowers, dated as of the applicable Funding Date, as to the satisfaction of the applicable conditions set forth in this Section 4.3; and.
(jl) Any share price set out in this Agreement shall be subject to adjustment from time to time in the same manner as is set out in Section 4.5 of the Notes with respect to the Conversion Price.”
(e) Section 7.3(o) is hereby amended and restated as follows:
Appears in 2 contracts
Samples: Securities Purchase Agreement (MedMen Enterprises, Inc.), Securities Purchase Agreement
Accordion Advances. The Purchasers shall make the Tranche 2 Advance, Tranche 3 Advance and Tranche 4 Advance subject to the fulfillment on or prior to the applicable Funding Date of each of the following conditions, as applicable to each such Advance, in each case, in a manner, form and substance reasonably satisfactory to the Purchasers:
(a) The Tranche 3 Funding Date shall be no later than thirty (30) days after the Second Amendment Effective Date, subject in any event to the conditions set forth in all subsections of Section 4.3 which are applicable to all Advances or specifically With respect to the Tranche 3 Advance;
(b) Notwithstanding anything to the contrary herein, any or all Purchasers may elect not to fund the Tranche 4 Advance in its or their sole discretion;
(c) With respect to the and Tranche 4 Advance, the Borrowers shall have notified the Purchasers of their desire to draw the applicable Advance at least ninety (90) days prior to the proposed Funding Date, which notice shall be in writing signed by a Responsible Officer of the Company and each other Borrower, specify the proposed Funding Date and provide evidence reasonably satisfactory to the Purchasers that the Company has satisfied the applicable condition set forth in this Section 4.3; provided that, the Purchasers have no obligation to may in their sole discretion fund the Applicable Advanceapplicable Advance at any time after receiving such notice, and each Purchaser may accept or decline to do so in its sole discretion, within but no later than ninety (90) days after following their receipt of such notice, thereof and in any event subject to the satisfaction or the Purchasers’ waiver of each applicable condition in this Section 4.3;
(b) The Tranche 3 Funding Date shall be no earlier than December 22, 2019 but no later than the date that is twelve (12) months prior to the Maturity Date;
(c) The Tranche 4 Funding Date shall be no earlier than the date that is six (6) months after the Tranche 3 Funding Date but no later than the date that is twelve (12) months prior to the Maturity Date;
(d) The Borrowers and the Company, respectively, shall have delivered the Tranche 2 Notes and Tranche 2 Warrants to the Purchasers on the Tranche 2 Funding Date, the Tranche 3 Notes and Tranche 3 Warrants to the Purchasers on the Tranche 3 Funding Date, and the Tranche 4 Notes and Tranche 4 Warrants to the Purchasers on the Tranche 4 Funding Date;
(e) The 20% Test Senior Debt to Market Capitalization Ratio shall be no greater than 0.2 as of the Tranche 3 Funding Date and the Tranche 4 Funding Date, provided that (i) in the event the 20% Test Senior Debt to Market Capitalization Ratio is greater than 0.2, the applicable Funding Date may, in the Majority Holders’ discretion, be extended until the 20% Test Senior Debt to Market Capitalization Ratio is less than or equal to 0.2 (but such extension shall be for no more than 30 days), and (ii) if the Majority Holders do not grant such extension or if the 20% Test Senior Debt to Market Capitalization Ratio remains greater than 0.2 during such 30-day period, then the Borrowers may request the Tranche 3 Advance or Tranche 4 Advance, in each such case on one or more later date(s) without limitation, so long as all conditions are met with respect to such Advance as if such Advance had never been requested prior thereto; provided, that in such case the Borrowers may re-request the Advance on at least thirty (30) days notice (instead of at least 90 days notice) prior to the applicable Funding Date. For clarity, if the 20% Test Senior Debt to Market Capitalization Ratio is greater than 0.2 as of an applicable Funding Date, such event shall not constitute an Event of Default for purposes of Section 9.1 hereof.
(f) The representations and warranties of the Credit Parties contained in ARTICLE V hereof and in the other Operative Documents shall be true and correct as of the applicable Funding Date as if made on the applicable Funding Date (except to the extent expressly made as of a prior date (other than the Closing Date, which shall be read to be the Funding Date), in which case such representations and warranties shall be true and correct as of such earlier date), with exceptions to the foregoing being disclosed to the Purchasers in the form of updated Schedules to this Agreement; provided that any such exception does not represent a change occurring since the Closing Date, or an event or circumstance which the Credit Parties failed to disclose in the Schedules hereto on the Closing Date, that has resulted or could reasonably be expected to result in a Material Adverse Effect;
(fg) Each Credit Party shall have performed and complied with all of the terms, covenants, agreements and conditions to be performed or complied with by it on or prior to the applicable Funding Date (other than any failure to perform or comply with such terms, covenants, agreements and conditions which the Purchasers have waived in writing), and, to the extent that any schedules hereto are incomplete or inaccurate as of the applicable Funding Date, the Credit Parties shall deliver updated schedules;
(gh) No Default or Event of Default shall have occurred and be continuing, or would result from, the making of the applicable Advance or from the application of proceeds therefrom;
(hi) To the extent that the Perfection Certificate last delivered to Purchasers by the Credit Parties is incomplete or inaccurate as of the applicable Funding Date, the Credit Parties shall execute and deliver to the Purchasers an updated Perfection Certificate on or before the applicable Funding Date;
(ij) The Company and the other Borrowers shall have executed and delivered to the Purchasers a certificate executed by a Responsible Officer of the Company and the other Borrowers, dated as of the applicable Funding Date, as to the satisfaction of the applicable conditions set forth in this Section 4.3; and
(jk) Any share price set out in this Agreement shall be subject to adjustment from time to time in the same manner as is set out in Section 4.5 of the Notes with respect to the Conversion Price.”
(ei) Section 7.3(o7.1(b)(ii) is hereby amended and restated as follows:
(ii) as soon as available, but not later than sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year, commencing with the Fiscal Quarter ending on or about September 30, 2019, a copy of the unaudited consolidated statement of financial position of the Company and its Subsidiaries as of the end of such Fiscal Quarter, and the related unaudited consolidated statements of operations and comprehensive income, changes in shareholders’ equity and cash flows for such Fiscal Quarter and for the portion of the Fiscal Year then ended, and setting forth in each case comparisons to the corresponding periods in the preceding Fiscal Year all certified on behalf of the Company by an appropriate Responsible Officer as fairly presenting, in all material respects, in accordance with IFRS or GAAP, as applicable, the financial position and the results of operations of the Company and its Subsidiaries on a consolidated basis, subject to normal year-end adjustments and absence of footnote disclosure; and”
Appears in 1 contract
Samples: Securities Purchase Agreement (MedMen Enterprises, Inc.)
Accordion Advances. The Purchasers shall make the Tranche 2 Advance, Tranche 3 Advance and Tranche 4 Advance subject to the fulfillment on or prior to the applicable Funding Date of each of the following conditions, as applicable to each such Advance, in each case, in a manner, form and substance reasonably satisfactory to the Purchasers:
(a) The Tranche 3 Funding Date shall be no later than thirty (30) days after the Second Amendment Effective Date, subject in any event to the conditions set forth in all subsections of Section 4.3 which are applicable to all Advances or specifically With respect to the Tranche 3 Advance;
(b) Notwithstanding anything to the contrary herein, any or all Purchasers may elect not to fund the Tranche 4 Advance in its or their sole discretion;
(c) With respect to the and Tranche 4 Advance, the Borrowers shall have notified the Purchasers of their desire to draw the applicable Advance at least ninety (90) days prior to the proposed Funding Date, which notice shall be in writing signed by a Responsible Officer of the Company and each other Borrower, specify the proposed Funding Date and provide evidence reasonably satisfactory to the Purchasers that the Company has satisfied the applicable condition set forth in this Section 4.3; provided that, the Purchasers have no obligation to may in their sole discretion fund the Applicable Advanceapplicable Advance at any time after receiving such notice, and each Purchaser may accept or decline to do so in its sole discretion, within but no later than ninety (90) days after following their receipt of such notice, thereof and in any event subject to the satisfaction or the Purchasers’ waiver of each applicable condition in this Section 4.3;
(b) The Tranche 3 Funding Date shall be no earlier than December 22, 2019 but no later than the date that is twelve (12) months prior to the Maturity Date;
(c) The Tranche 4 Funding Date shall be no earlier than the date that is six (6) months after the Tranche 3 Funding Date but no later than the date that is twelve (12) months prior to the Maturity Date;
(d) The Borrowers and the Company, respectively, shall have delivered the Tranche 2 Notes and Tranche 2 Warrants to the Purchasers on the Tranche 2 Funding Date, the Tranche 3 Notes and Tranche 3 Warrants to the Purchasers on the Tranche 3 Funding Date, and the Tranche 4 Notes and Tranche 4 Warrants to the Purchasers on the Tranche 4 Funding Date;
(e) The 20% Test Senior Debt to Market Capitalization Ratio shall be no greater than 0.2 as of the Tranche 3 Funding Date and the Tranche 4 Funding Date, provided that (i) in the event the 20% Test Senior Debt to Market Capitalization Ratio is greater than 0.2, the applicable Funding Date may, in the Majority Holders’ discretion, be extended until the 20% Test Senior Debt to Market Capitalization Ratio is less than or equal to 0.2 (but such extension shall be for no more than 30 days), and (ii) if the Majority Holders do not grant such extension or if the 20% Test Senior Debt to Market Capitalization Ratio remains greater than 0.2 during such 30-day period, then the Borrowers may request the Tranche 3 Advance or Tranche 4 Advance, in each such case on one or more later date(s) without limitation, so long as all conditions are met with respect to such Advance as if such Advance had never been requested prior thereto; provided, that in such case the Borrowers may re-request the Advance on at least thirty (30) days notice (instead of at least 90 days notice) prior to the applicable Funding Date. For clarity, if the 20% Test Senior Debt to Market Capitalization Ratio is greater than 0.2 as of an applicable Funding Date, such event shall not constitute an Event of Default for purposes of Section 9.1 hereof.
(f) The representations and warranties of the Credit Parties contained in ARTICLE V hereof and in the other Operative Documents shall be true and correct as of the applicable Funding Date as if made on the applicable Funding Date (except to the extent expressly made as of a prior date (other than the Closing Date, which shall be read to be the Funding Date), in which case such representations and warranties shall be true and correct as of such earlier date), with exceptions to the foregoing being disclosed to the Purchasers in the form of updated Schedules to this Agreement; provided that any such exception does not represent a change occurring since the Closing Date, or an event or circumstance which the Credit Parties failed to disclose in the Schedules hereto on the Closing Date, that has resulted or could reasonably be expected to result in a Material Adverse Effect;
(fg) Each Credit Party shall have performed and complied with all of the terms, covenants, agreements and conditions to be performed or complied with by it on or prior to the applicable Funding Date (other than any failure to perform or comply with such terms, covenants, agreements and conditions which the Purchasers have waived in writing), and, to the extent that any schedules hereto are incomplete or inaccurate as of the applicable Funding Date, the Credit Parties shall deliver updated schedules;
(gh) No Default or Event of Default shall have occurred and be continuing, or would result from, the making of the applicable Advance or from the application of proceeds therefrom;
(hi) To the extent that the Perfection Certificate last delivered to Purchasers by the Credit Parties is incomplete or inaccurate as of the applicable Funding Date, the Credit Parties shall execute and deliver to the Purchasers an updated Perfection Certificate on or before the applicable Funding Date;
(ij) The Company and the other Borrowers shall have executed and delivered to the Purchasers a certificate executed by a Responsible Officer of the Company and the other Borrowers, dated as of the applicable Funding Date, as to the satisfaction of the applicable conditions set forth in this Section 4.3; and
(jk) Any share price set out in this Agreement shall be subject to adjustment from time to time in the same manner as is set out in Section 4.5 of the Notes with respect to the Conversion Price.”
(ei) Section 7.3(o7.1(b)(ii) is hereby amended and restated as follows:
Appears in 1 contract
Samples: Securities Purchase Agreement
