Incremental Advances. No later than each Outside Incremental Funding Date, the Incremental Purchasers shall make the respective Incremental Advance subject to the fulfillment on or prior to the applicable Incremental Funding Date of each of the following conditions, as applicable to each such Incremental Advance, in each case, in a form and substance reasonably satisfactory to the Gotham Purchasers: (a) Prior to the second Incremental Advance, the Turnaround Plan shall have been approved by the board of directors of the Company and the Gotham Purchasers, acting reasonably, and not been withdrawn or amended without the Gotham Purchasers’ prior written consent, not to be unreasonably withheld or delayed, and prior to any other Incremental Advance, the Company shall have provided evidence satisfactory to the Gotham Purchasers, acting reasonably, that the Turnaround Plan has been and is being implemented and that the Credit Parties have not expended proceeds of any Incremental Advance other than in accordance with the Interim Budget or Turnaround Plan, as applicable (for the avoidance of doubt, finalization and approval of the Turnaround Plan are not conditions to the Purchasers making the first Incremental Advance); (b) The Borrowers and the Company, respectively, shall have delivered the relevant Incremental Notes and Incremental Warrants to the Incremental Purchasers who participate in the relevant Incremental Advance on the relevant Incremental Funding Date; (c) The Company shall have delivered the relevant Incremental Replacement Warrants to the Existing Purchasers on each Incremental Funding Date on a pro rata basis with respect to the Funded Amount of the Existing Notes Principal evidenced by the Amended and Restated Notes then held by such Existing Purchasers; provided, however, that the Company shall not be required to issue any Incremental Replacement Warrants if, prior to the relevant Incremental Funding Date, the parties agreed that the Retail Cash Flow Milestone was achieved in accordance with the Incremental Replacement Warrants outstanding immediately prior to such date; (d) The Gotham Purchasers, the Company and Borrowers shall have updated Schedule 1.1(d) to reflect (i) all amendments to the Amended and Restated Notes and Existing Warrants resulting from each Incremental Advance and (ii) the issuance of Incremental Notes, Incremental Warrants and Incremental Replacement Warrants; (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 Incremental Funding Date as if made on the applicable Incremental 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 applicable Incremental 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 Incremental 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 Incremental Funding Date, the Credit Parties shall deliver updated schedules; (g) No Default or Event of Default shall have occurred and be continuing (in the case of a Default under Section 7.19(a), assuming that the applicable Incremental Advance has been made), or would result from, the making of the applicable Incremental 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 Incremental Funding Date, the Credit Parties shall execute and deliver to the Purchasers an updated Perfection Certificate on or before the applicable Incremental 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 Incremental Funding Date, as to the satisfaction of the applicable conditions set forth in this Section 4.5; and (j) Each Incremental Advance shall be funded into the Restricted Account.
Appears in 1 contract
Samples: Securities Purchase Agreement (MedMen Enterprises, Inc.)
Incremental Advances. No later than each Outside Incremental Funding (a) The Borrower may at any time or from time to time after the Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request that additional Revolving Credit Commitments (the “Incremental Revolving Credit Commitments”) be made available to the Borrower, provided that, immediately prior to, and after giving effect to the incurrence of such Incremental Revolving Credit Commitments, the Borrower shall be in compliance with the covenants set forth in Section 5.04 as of the last day of the most recently ended fiscal quarter, on a Pro Forma Basis after giving effect to any such Incremental Revolving Credit Commitments (and, without duplication, assuming that any Incremental Revolving Credit Commitments have been fully utilized). Each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Purchasers Revolving Credit Commitments shall make not exceed $200,000,000. The Incremental Revolving Credit Commitments shall form part of a single Class of Commitments, and shall be subject to identical terms and conditions as those applicable to, the respective Revolving Credit Commitments for all purposes of this Agreement and each other Loan Document.
(b) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Advance Revolving Credit Commitments, as applicable. Incremental Revolving Credit Commitments may be made or provided by any existing Lender (and each existing Revolving Credit Lender will have the right, but not an obligation, to provide all or a portion of the Incremental Revolving Credit Commitments, in each case on terms permitted in this Section 2.18) or any other Eligible Assignee. Commitments in respect of Incremental Revolving Credit Commitments shall become Revolving Credit Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by each Loan Party, each Lender and such other Eligible Assignee agreeing to provide such Revolving Credit Commitment, the Administrative Agent and the Issuing Banks. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.18. The effectiveness of (and any borrowing under) any Incremental Amendment shall be subject to the fulfillment satisfaction on or prior to the applicable date thereof (each, an “Incremental Funding Date Facility Effective Date”) of each of the following conditions, as applicable conditions set forth in Section 3.02 (it being understood that all references to each “the date of such Borrowing” or similar language in such Section 3.02 shall be deemed to refer to the effective date of such Incremental AdvanceAmendment) and such other conditions as the parties thereto shall agree. Upon the effectiveness of any increase in the Revolving Credit Commitments pursuant to this Section 2.18, in (A) the Pro Rata Share of each caseRevolving Credit Lender shall be automatically adjusted to give effect to such increase, in provided that the amount of each Revolving Credit Lender’s Revolving Credit Commitments (other than a form and substance reasonably satisfactory to the Gotham Purchasers:
(a) Prior to the second Incremental Advance, the Turnaround Plan Revolving Credit Lender whose Revolving Credit Commitments shall have been approved by increased in connection with such increase) shall remain unchanged and (B) the board of directors Borrower, the Administrative Agent and the Lenders will use all commercially reasonable efforts to assign and assume outstanding Revolving Credit Advances of the Company and affected category to conform the Gotham Purchasers, acting reasonably, and not been withdrawn or amended without the Gotham Purchasers’ prior written consent, not to be unreasonably withheld or delayed, and prior to any other Incremental Advance, the Company shall have provided evidence satisfactory respective amounts thereof held by each Revolving Credit Lender to the Gotham PurchasersPro Rata Shares as so adjusted, acting reasonably, it being understood that the Turnaround Plan has been and parties hereto shall use commercially reasonable efforts to avoid prepayment or assignment of any affected Revolving Credit Advance that is being implemented and that a Eurodollar Rate Advance on a day other than the Credit Parties have not expended last day of the Interest Period applicable thereto. The Borrower will use the proceeds of any Incremental Advance other than in accordance with the Interim Budget or Turnaround Plan, as applicable (for the avoidance of doubt, finalization and approval of the Turnaround Plan are not conditions to the Purchasers making the first Incremental Advance);
(b) The Borrowers and the Company, respectively, shall have delivered the relevant Incremental Notes and Incremental Warrants to the Incremental Purchasers who participate in the relevant Incremental Advance on the relevant Incremental Funding Date;Revolving Credit Commitments for any purpose not prohibited by this Agreement.
(c) The Company This Section 2.18 shall have delivered the relevant Incremental Replacement Warrants supersede any provisions in Section 2.06, 2.13 or 9.01 to the Existing Purchasers on each Incremental Funding Date on a pro rata basis with respect to the Funded Amount of the Existing Notes Principal evidenced by the Amended and Restated Notes then held by such Existing Purchasers; provided, however, that the Company shall not be required to issue any Incremental Replacement Warrants if, prior to the relevant Incremental Funding Date, the parties agreed that the Retail Cash Flow Milestone was achieved in accordance with the Incremental Replacement Warrants outstanding immediately prior to such date;
(d) The Gotham Purchasers, the Company and Borrowers shall have updated Schedule 1.1(d) to reflect (i) all amendments to the Amended and Restated Notes and Existing Warrants resulting from each Incremental Advance and (ii) the issuance of Incremental Notes, Incremental Warrants and Incremental Replacement Warrants;
(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 Incremental Funding Date as if made on the applicable Incremental 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 applicable Incremental 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 Incremental 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 Incremental Funding Date, the Credit Parties shall deliver updated schedules;
(g) No Default or Event of Default shall have occurred and be continuing (in the case of a Default under Section 7.19(a), assuming that the applicable Incremental Advance has been made), or would result from, the making of the applicable Incremental 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 Incremental Funding Date, the Credit Parties shall execute and deliver to the Purchasers an updated Perfection Certificate on or before the applicable Incremental 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 Incremental Funding Date, as to the satisfaction of the applicable conditions set forth in this Section 4.5; and
(j) Each Incremental Advance shall be funded into the Restricted Accountcontrary.
Appears in 1 contract
Incremental Advances. No later than each Outside Incremental Funding (a) The Borrower may at any time or from time to time after the Restatement Effective Date, the Incremental Purchasers shall make the respective Incremental Advance subject by notice to the fulfillment on or prior Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to the applicable Incremental Funding Date of each of the following conditionsLenders), as applicable request that one or more additional tranches of Term Advances (the “Incremental Term Advances”) or additional Revolving Credit Commitments (the “Incremental Revolving Credit Commitments”; together with the Incremental Term Advances, the “Incremental Facilities”) be made available to each the Borrower, provided that, immediately prior to, and after giving effect to the incurrence of such Incremental AdvanceFacilities, (i) the representations and warranties contained in each case, in a form and substance reasonably satisfactory to the Gotham Purchasers:
(a) Prior to the second Incremental Advance, the Turnaround Plan shall have been approved by the board of directors of the Company Article IV and the Gotham Purchasers, acting reasonably, other Loan Documents are true and not been withdrawn correct in all material respects (it being understood and agreed that any representation or amended without the Gotham Purchasers’ prior written consent, not to be unreasonably withheld or delayed, and prior to any other Incremental Advance, the Company warranty which by its terms is made as of a specified date shall have provided evidence satisfactory to the Gotham Purchasers, acting reasonably, that the Turnaround Plan has been and is being implemented and that the Credit Parties have not expended proceeds of any Incremental Advance other than in accordance with the Interim Budget or Turnaround Plan, as applicable (for the avoidance of doubt, finalization and approval of the Turnaround Plan are not conditions to the Purchasers making the first Incremental Advance);
(b) The Borrowers and the Company, respectively, shall have delivered the relevant Incremental Notes and Incremental Warrants to the Incremental Purchasers who participate in the relevant Incremental Advance on the relevant Incremental Funding Date;
(c) The Company shall have delivered the relevant Incremental Replacement Warrants to the Existing Purchasers on each Incremental Funding Date on a pro rata basis with respect to the Funded Amount of the Existing Notes Principal evidenced by the Amended and Restated Notes then held by such Existing Purchasers; provided, however, that the Company shall not be required to issue any Incremental Replacement Warrants if, prior to the relevant Incremental Funding Date, the parties agreed that the Retail Cash Flow Milestone was achieved in accordance with the Incremental Replacement Warrants outstanding immediately prior to such date;
(d) The Gotham Purchasers, the Company and Borrowers shall have updated Schedule 1.1(d) to reflect (i) all amendments to the Amended and Restated Notes and Existing Warrants resulting from each Incremental Advance and (ii) the issuance of Incremental Notes, Incremental Warrants and Incremental Replacement Warrants;
(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 Incremental Funding Date as if made on the applicable Incremental 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 applicable Incremental Funding Date), in which case such representations and warranties shall be true and correct all material respects only as of such earlier specified 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;
(fii) 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 Incremental 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 Incremental Funding Date, the Credit Parties shall deliver updated schedules;
(g) No Default or Event of no Default shall have occurred and be continuing or would result therefrom and (iii) the Parent shall be in compliance with the covenants set forth in Section 5.04 as of the last day of the most recently ended fiscal quarter, on a pro forma basis after giving effect to any such Incremental 74 Amended and Restated KCSR Credit Agreement Facilities (and, without duplication, assuming that any Incremental Revolving Credit Commitments have been fully utilized). Each tranche of Incremental Term Advances and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000. The Incremental Facilities (w) shall rank pari passu in right of payment and of security with the Term Facility in the case of a Default under Incremental Term Advances or the Revolving Credit Facility in the case of Incremental Revolving Credit Commitments, (x) shall not mature earlier than the latest Termination Date with respect to the Term A Advances in the case of Incremental Term Advances or the Revolving Credit Facility in the case of Incremental Revolving Credit Commitments, (y) except as otherwise provided in this sentence and except for terms reasonably satisfactory to the Administrative Agent, shall have the same terms as the Term Facility in the case of Incremental Term Advances or the Revolving Credit Facility in the case of Incremental Revolving Credit Commitments, and (z) subject to the provisions of this Section 7.19(a2.18(a), assuming shall have interest rates and amortization schedules as determined by the Borrower and the lenders thereof; provided that (A) as of the date of the incurrence of the Incremental Term Advance, the weighted average life to maturity of the Incremental Term Advance shall not be shorter than that of the existing Term Advances and (B) in the event that the All-In Yield applicable to such Incremental Advance has been made)Term Advances or Incremental Revolving Credit Commitments exceeds the All-In Yield of the Term Advances or the Revolving Credit Facility, as applicable, existing at such time by more than 50 basis points, then the interest rate margins for the Term Advances or would result fromthe Revolving Credit Facility, as the making case may be, existing at such time, shall be increased to the extent necessary so that the All-In Yield of such Advances is equal to the All-In Yield of the applicable Incremental Advance Term Advances or from the application of proceeds therefrom;
Incremental Revolving Credit Commitment, as applicable, minus 50 basis points. Any Incremental Facility may participate on a pro rata basis or on a less than pro rata basis (hbut not on a greater than pro rata basis) To the extent that the Perfection Certificate last delivered to Purchasers by the Credit Parties is incomplete in any voluntary or inaccurate mandatory prepayments hereunder, as of specified in the applicable Incremental Funding DateAmendment.
(b) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Advances or Incremental Revolving Credit Commitments, as applicable. Incremental Term Advances and Incremental Revolving Credit Commitments may be made or provided by any existing Lender (and each existing Term Lender will have the right, but not an obligation, to make all or a portion of any Incremental Term Advance and each existing Revolving Credit Lender will have the right, but not an obligation, to provide all or a portion of the Incremental Revolving Credit Commitments, in each case on terms permitted in this Section 2.18) or any other Eligible Assignee. Commitments in respect of Incremental Term Advances and Incremental Revolving Credit Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by each Loan Party, each Lender and such other Eligible Assignee agreeing to provide such Commitment, the Administrative Agent and in the case of an Incremental Revolving Credit Parties shall execute Commitment, the Issuing Bank and deliver the Swing Line Bank. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to the Purchasers an updated Perfection Certificate on or before the applicable Incremental Funding Date;
(i) The Company this Agreement and the other Borrowers shall have executed and delivered to Loan Documents as may be necessary or appropriate, in the Purchasers a certificate executed by a Responsible Officer reasonable opinion of the Company Administrative Agent and the other BorrowersBorrower, dated as to effect the provisions of this Section 2.18. The effectiveness of (and, in the applicable case of any Incremental Funding DateAmendment for an Incremental Term Advance or an Incremental Revolving Credit Commitment, as the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of each of the applicable conditions set forth in Section 3.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 3.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term Advances and Incremental Revolving Credit Commitments for any purpose not prohibited by this Section 4.5; andAgreement. 75 Amended and Restated KCSR Credit Agreement
(jc) Each Incremental Advance This Section 2.18 shall be funded into supersede any provisions in Section 2.06, 2.13 or 9.01 to the Restricted Accountcontrary.
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Incremental Advances. No later than each Outside Incremental Funding (a) The Borrower may at any time or from time to time after the Effective Date, the Incremental Purchasers shall make the respective Incremental Advance subject by notice to the fulfillment on or prior Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to the applicable Incremental Funding Date of each of the following conditionsLenders), as applicable request that one or more additional tranches of Term Advances (the “Incremental Term Advances”) or additional Revolving Credit Commitments (the “Incremental Revolving Credit Commitments”; together with the Incremental Term Advances, the “Incremental Facilities”) be made available to each the Borrower, provided that, immediately prior to, and after giving effect to the incurrence of such Incremental AdvanceFacilities, (i) the representations and warranties contained in each case, in a form and substance reasonably satisfactory to the Gotham Purchasers:
(a) Prior to the second Incremental Advance, the Turnaround Plan shall have been approved by the board of directors of the Company Article IV and the Gotham Purchasers, acting reasonably, other Loan Documents are true and not been withdrawn correct in all material respects (it being understood and agreed that any representation or amended without the Gotham Purchasers’ prior written consent, not to be unreasonably withheld or delayed, and prior to any other Incremental Advance, the Company warranty which by its terms is made as of a specified date shall have provided evidence satisfactory to the Gotham Purchasers, acting reasonably, that the Turnaround Plan has been and is being implemented and that the Credit Parties have not expended proceeds of any Incremental Advance other than in accordance with the Interim Budget or Turnaround Plan, as applicable (for the avoidance of doubt, finalization and approval of the Turnaround Plan are not conditions to the Purchasers making the first Incremental Advance);
(b) The Borrowers and the Company, respectively, shall have delivered the relevant Incremental Notes and Incremental Warrants to the Incremental Purchasers who participate in the relevant Incremental Advance on the relevant Incremental Funding Date;
(c) The Company shall have delivered the relevant Incremental Replacement Warrants to the Existing Purchasers on each Incremental Funding Date on a pro rata basis with respect to the Funded Amount of the Existing Notes Principal evidenced by the Amended and Restated Notes then held by such Existing Purchasers; provided, however, that the Company shall not be required to issue any Incremental Replacement Warrants if, prior to the relevant Incremental Funding Date, the parties agreed that the Retail Cash Flow Milestone was achieved in accordance with the Incremental Replacement Warrants outstanding immediately prior to such date;
(d) The Gotham Purchasers, the Company and Borrowers shall have updated Schedule 1.1(d) to reflect (i) all amendments to the Amended and Restated Notes and Existing Warrants resulting from each Incremental Advance and (ii) the issuance of Incremental Notes, Incremental Warrants and Incremental Replacement Warrants;
(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 Incremental Funding Date as if made on the applicable Incremental 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 applicable Incremental Funding Date), in which case such representations and warranties shall be true and correct all material respects only as of such earlier specified 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;
(fii) 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 Incremental 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 Incremental Funding Date, the Credit Parties shall deliver updated schedules;
(g) No Default or Event of no Default shall have occurred and be continuing or would result therefrom and (iii) the Parent shall be in compliance with the covenants set forth in Section 5.04 as of the last day of the most recently ended fiscal quarter, on a pro forma basis after giving effect to any such Incremental Facilities (and, without duplication, assuming that any Incremental Revolving Credit Commitments have been fully utilized). Each tranche of Incremental Term Advances and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Facilities shall not exceed $200,000,000. The Incremental Facilities (w) shall rank pari passu in right of payment and of security with the Term Facility in the case of a Default under Incremental Term Advances or the Revolving Credit Facility in the case of Incremental Revolving Credit Commitments, (x) shall not mature earlier than the latest Termination Date with respect to the Term A Advances in the case of Incremental Term Advances or the Revolving Credit Facility in the case of Incremental Revolving Credit Commitments, (y) except as otherwise provided in this sentence and except for terms reasonably satisfactory to the Administrative Agent, shall have the same terms as the Term Facility in the case of Incremental Term Advances or the Revolving Credit Facility in the case of Incremental Revolving Credit Commitments, and (z) subject to the provisions of this Section 7.19(a2.18(a), assuming shall have interest rates and amortization schedules as determined by the Borrower and the lenders thereof; provided that (A) as of the date of the incurrence of the Incremental Term Advance, the weighted average life to maturity of the Incremental Term Advance shall not be shorter than that of the existing Term Advances and (B) in the event that the All-In Yield applicable to such Incremental Advance has been made)Term Advances or Incremental Revolving Credit Commitments exceeds the All-In Yield of the Term Advances or the Revolving Credit Facility, as applicable, existing at such time by more than 50 basis points, then the interest rate margins for the Term Advances or would result fromthe Revolving Credit Facility, as the making case may be, existing at such time, shall be increased to the extent necessary so that the All-In Yield of such Advances is equal to the All-In Yield of the applicable Incremental Advance Term Advances or from the application of proceeds therefrom;
Incremental Revolving Credit Commitment, as applicable, minus 50 basis points. Any Incremental Facility may participate on a pro rata basis or on a less than pro rata basis (hbut not on a greater than pro rata basis) To the extent that the Perfection Certificate last delivered to Purchasers by the Credit Parties is incomplete in any voluntary or inaccurate mandatory prepayments hereunder, as of specified in the applicable Incremental Funding DateAmendment.
(b) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Advances or Incremental Revolving Credit Commitments, as applicable. Incremental Term Advances and Incremental Revolving Credit Commitments may be made or provided by any existing Lender (and each existing Term Lender will have the right, but not an obligation, to make all or a portion of any Incremental Term Advance and each existing Revolving Credit Lender will have the right, but not an obligation, to provide all or a portion of Incremental Revolving Credit Commitments, in each case on terms permitted in this Section 2.18) or any other Eligible Assignee. Commitments in respect of Incremental Term Advances and Incremental Revolving Credit Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by each Loan Party, each Lender and such other Eligible Assignee agreeing to provide such Commitment, the Administrative Agent and in the case of an Incremental Revolving Credit Parties shall execute Commitment, the Issuing Bank and deliver the Swing Line Bank. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to the Purchasers an updated Perfection Certificate on or before the applicable Incremental Funding Date;
(i) The Company this Agreement and the other Borrowers shall have executed and delivered to Loan Documents as may be necessary or appropriate, in the Purchasers a certificate executed by a Responsible Officer reasonable opinion of the Company Administrative Agent and the other BorrowersBorrower, dated as to effect the provisions of this Section 2.18. The effectiveness of (and, in the applicable case of any Incremental Funding DateAmendment for an Incremental Term Advance or an Incremental Revolving Credit Commitment, as the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of each of the applicable conditions set forth in Section 3.02 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 3.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term Advances and Incremental Revolving Credit Commitments for any purpose not prohibited by this Section 4.5; andAgreement.
(jc) Each Incremental Advance This Section 2.18 shall be funded into supersede any provisions in Section 2.06, 2.13 or 9.01 to the Restricted Accountcontrary.
Appears in 1 contract
Incremental Advances. No later than each Outside Incremental Funding (a) The Borrower may at any time or from time to time after the Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) that additional Revolving Credit Commitments (the “Incremental Revolving Credit Commitments”) be made available to the Borrower and/or (ii) the establishment of one or more term loan commitments (the “Incremental Term Commitments” and, together with the Incremental Purchasers Revolving Credit Commitments, the “Incremental Commitments”) providing for term loan facilities consisting of one or more tranches (any such tranche of term loan facilities, an “Incremental Term Facility”); provided that, immediately prior to, and after giving effect to the incurrence of such Incremental Commitments, the Borrower shall make be in compliance with the respective covenant set forth in Section 5.04 as of the last day of the most recently ended fiscal quarter, on a Pro Forma Basis after giving effect to any such Incremental Advance Commitments (and, without duplication, assuming that any Incremental Commitments have been fully utilized). Each Incremental Revolving Credit Commitment or Incremental Term Commitment, as applicable, shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Commitments shall not exceed $200,000,000. The Incremental Revolving Credit Commitments shall form part of a single Class of Commitments, and shall be subject to identical terms and conditions as those applicable to, the Revolving Credit Commitments for all purposes of this Agreement and each other Loan Document.
(b) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Commitments, as applicable. Incremental Commitments may be made or provided by any existing Lender (and each existing Revolving Credit Lender will have the right, but not an obligation, to provide all or a portion of the Incremental Revolving Credit Commitments, in each case on terms permitted in this Section 2.18) or any other Eligible Assignee. Incremental Commitments shall become Commitments under this Agreement and all Incremental Commitments shall be effected pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by each Loan Party, each Lender and such other Eligible Assignee agreeing to provide such Incremental Commitments, the Administrative Agent and, to the extent constituting Incremental Revolving Commitments, the Issuing Banks. An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.18, which may include the addition of Incremental Term Commitments and the inclusion of any Incremental Term Facility in calculations of amounts outstanding under this Agreement and in the provisions relating to prepayments set forth in Section 2.06 and to amendments and waivers set forth in Section 9.01. The effectiveness of (and any borrowing under) any Incremental Amendment shall be subject to the fulfillment satisfaction on or prior to the applicable date thereof (each, an “Incremental Funding Date Facility Effective Date”) of each of the following conditions, as applicable conditions set forth in Section 3.02 (it being understood that all references to each “the date of such Borrowing” or similar language in such Section 3.02 shall be deemed to refer to the effective date of such Incremental AdvanceAmendment) and such other conditions as the parties thereto shall agree. Upon the effectiveness of any increase in the Revolving Credit Commitments pursuant to this Section 2.18, in (A) the Pro Rata Share of each caseRevolving Credit Lender shall be automatically adjusted to give effect to such increase, in provided that the amount of each Revolving Credit Lender’s Revolving Credit Commitments (other than a form and substance reasonably satisfactory to the Gotham Purchasers:
(a) Prior to the second Incremental Advance, the Turnaround Plan 55 Revolving Credit Lender whose Revolving Credit Commitments shall have been approved by increased in connection with such increase) shall remain unchanged and (B) the board of directors Borrower, the Administrative Agent and the Lenders will use all commercially reasonable efforts to assign and assume outstanding Revolving Credit Advances of the Company and affected category to conform the Gotham Purchasers, acting reasonably, and not been withdrawn or amended without the Gotham Purchasers’ prior written consent, not to be unreasonably withheld or delayed, and prior to any other Incremental Advance, the Company shall have provided evidence satisfactory respective amounts thereof held by each Revolving Credit Lender to the Gotham PurchasersPro Rata Shares as so adjusted, acting reasonably, it being understood that the Turnaround Plan has been and is being implemented and that the Credit Parties have not expended proceeds parties hereto shall use commercially reasonable efforts to avoid prepayment or assignment of any Incremental affected Revolving Credit Advance that is a Eurodollar Rate Advance on a day other than in accordance with the Interim Budget or Turnaround Plan, as applicable (for the avoidance of doubt, finalization and approval last day of the Turnaround Plan are not conditions to the Purchasers making the first Incremental Advance);
(b) The Borrowers and the Company, respectively, shall have delivered the relevant Incremental Notes and Incremental Warrants to the Incremental Purchasers who participate in the relevant Incremental Advance on the relevant Incremental Funding Date;Interest Period applicable thereto.
(c) The Company shall have delivered the relevant On any Incremental Replacement Warrants Facility Effective Date on which Incremental Term Commitments are effective, subject to the Existing Purchasers on satisfaction of the foregoing terms and conditions and any conditions set forth in the Incremental Amendment, each Lender of such Incremental Funding Date on Term Commitment shall make a pro rata basis with respect term loan advance (an “Incremental Term Advance”) to the Funded Amount of the Existing Notes Principal evidenced by the Amended and Restated Notes then held by such Existing Purchasers; provided, however, that the Company shall not be required Borrower in an amount equal to issue any its Incremental Replacement Warrants if, prior to the relevant Incremental Funding Date, the parties agreed that the Retail Cash Flow Milestone was achieved in accordance with the Incremental Replacement Warrants outstanding immediately prior to such date;Term Commitment.
(d) The Gotham Purchasers, Borrower will use the Company and Borrowers shall have updated Schedule 1.1(d) to reflect (i) all amendments to proceeds of the Amended and Restated Notes and Existing Warrants resulting from each Incremental Advance and (ii) the issuance of Incremental Notes, Incremental Warrants and Incremental Replacement Warrants;Commitments for any purpose not prohibited by this Agreement.
(e) The representations and warranties of the Credit Parties contained This Section 2.18 shall supersede any provisions in ARTICLE V hereof and in the other Operative Documents shall be true and correct as of the applicable Incremental Funding Date as if made on the applicable Incremental Funding Date (except Section 2.06, 2.13 or 9.01 to the extent expressly made as of a prior date (other than the Closing Date, which shall be read to be the applicable Incremental 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 Incremental 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 Incremental Funding Date, the Credit Parties shall deliver updated schedules;
(g) No Default or Event of Default shall have occurred and be continuing (in the case of a Default under Section 7.19(a), assuming that the applicable Incremental Advance has been made), or would result from, the making of the applicable Incremental 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 Incremental Funding Date, the Credit Parties shall execute and deliver to the Purchasers an updated Perfection Certificate on or before the applicable Incremental 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 Incremental Funding Date, as to the satisfaction of the applicable conditions set forth in this Section 4.5; and
(j) Each Incremental Advance shall be funded into the Restricted Accountcontrary.
Appears in 1 contract
Incremental Advances. No later than each Outside (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Funding DateCommitments in an aggregate amount not to exceed $100,000,000 from one or more Incremental Lenders, all of which must be Eligible Assignees. Such notice shall set forth (i) the amount of the Incremental Purchasers Commitments being requested (which shall make the respective Incremental Advance subject be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the fulfillment remaining amount available for Incremental Commitments), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Commitments are commitments to make additional Advances or prior commitments to make term loans with terms different from the Advances (“Other Advances”).
(b) The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith. The Borrower and each Incremental Lender shall execute and deliver to the applicable Administrative Agent an Incremental Funding Date Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. The terms and provisions of the following conditionsIncremental Advances shall be consistent with those of the Advances except as otherwise set forth herein or in the Incremental Agreement, as applicable and to each such Incremental Advancethe extent not consistent with those of the Advances, in each case, in a form and substance shall be reasonably satisfactory to the Gotham Purchasers:Administrative Agent. Without the prior written consent of the Majority Lenders, (i) the final maturity date of any Other Advances shall be no earlier than the Maturity Date, (ii) the average life to maturity of the Other Advances shall be no shorter than the average life to maturity of the Advances and (iii) if the initial yield on such Other Advances (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Eurodollar Rate on such Other Advances and (y) if such Other Advances are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Advances, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Advances and (B) four) exceeds the sum of the Applicable Margin then in effect for Eurodollar Advances plus any fees payable under Section 2.5 and effected in the form of OID by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for Advances shall automatically be increased by the Yield Differential, effective upon the making of the Other Advances. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitment and the Other Advances evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(ac) Prior Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.14 unless (i) such indebtedness is provided the same guarantees, and is secured by the Collateral on a pari passu basis with the liens securing the Obligations, (ii) on the date of such effectiveness, the Administrative Agent shall have received a certificate executed by a Financial Officer of the Borrower certifying that on the date of, and after giving effect to, the incurrence of such Incremental Commitments (and any acquisitions, investments or dispositions made after the beginning of the determination period but prior to or simultaneous with the incurrence of such Incremental Commitments), the Senior Secured Leverage Ratio of the Borrower does not exceed 4.00 to 1.00, (iii) on the date of such effectiveness, the Administrative Agent shall have received a certificate of an authorized officer of the Borrower certifying that on the date of, and after giving effect to, the incurrence of such Incremental Commitments (A) no Default has occurred and is continuing (except that, in the case of Incremental Commitments incurred in connection with an Acquisition permitted by Section 6.4, this condition shall be limited to Default arising under Section 7.1(a) or Section 7.1(g)) and (B) all representations and warranties made by the Borrower in this Agreement are true and correct in all material respects unless such representation and warranty is already qualified as to materiality or Material Adverse Change in which case such representation and warranty shall be true and correct in all respects (except that, in the case of Incremental Commitments incurred in connection with an Acquisition permitted by Section 6.4, this condition shall be limited to the second Specified Representations and the Acquisition Agreement Representations (conformed as applicable for such Acquisition)), (iv) all fees and expenses owing in respect of such Incremental Advance, the Turnaround Plan Commitments shall have been approved paid and (v) except as otherwise specified in the applicable Incremental Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the board of directors Administrative Agent and consistent with those delivered on the Effective Date under Section 3.1.
(d) Each of the Company and parties hereto hereby agrees that the Gotham PurchasersAdministrative Agent may, acting reasonably, and not been withdrawn or amended without with the Gotham Purchasers’ prior written consent, Borrower’s consent (not to be unreasonably withheld or delayed), take any and prior all action as may be reasonably necessary to any other ensure that all Incremental Advance, the Company shall have provided evidence satisfactory to the Gotham Purchasers, acting reasonably, that the Turnaround Plan has been and is being implemented and that the Credit Parties have not expended proceeds of any Incremental Advance Advances (other than Other Advances), when originally made, are included in accordance with the Interim Budget or Turnaround Plan, as applicable (for the avoidance each Borrowing of doubt, finalization and approval of the Turnaround Plan are not conditions to the Purchasers making the first Incremental Advance);
(b) The Borrowers and the Company, respectively, shall have delivered the relevant Incremental Notes and Incremental Warrants to the Incremental Purchasers who participate in the relevant Incremental Advance on the relevant Incremental Funding Date;
(c) The Company shall have delivered the relevant Incremental Replacement Warrants to the Existing Purchasers on each Incremental Funding Date outstanding Advances on a pro rata basis with respect to basis. This may be accomplished by converting each outstanding Eurodollar Borrowing into a Base Rate Borrowing on the Funded Amount date of the Existing Notes Principal evidenced each Incremental Advance, or by the Amended and Restated Notes then held by such Existing Purchasers; provided, however, that the Company shall not be required to issue any Incremental Replacement Warrants if, prior to the relevant Incremental Funding Date, the parties agreed that the Retail Cash Flow Milestone was achieved in accordance with the Incremental Replacement Warrants outstanding immediately prior to such date;
(d) The Gotham Purchasers, the Company and Borrowers shall have updated Schedule 1.1(d) to reflect (i) all amendments to the Amended and Restated Notes and Existing Warrants resulting from allocating a portion of each Incremental Advance to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Advances to Base Rate Advances under the preceding sentence shall be subject to Section 2.8. If any Incremental Advance is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Interest Period and (ii) the issuance of Incremental Notes, Incremental Warrants and Incremental Replacement Warrants;
(e) The representations and warranties of the Credit Parties contained in ARTICLE V hereof and in the other Operative Documents economic consequences thereof shall be true and correct as of set forth in the applicable Incremental Funding Date as if made on the applicable Incremental 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 applicable Incremental 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 Incremental 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. In addition, to the extent that any schedules hereto Incremental Advances are incomplete or inaccurate as of the applicable Incremental Funding Datenot Other Advances, the Credit Parties shall deliver updated schedules;
(g) No Default or Event of Default shall have occurred and be continuing (in the case of a Default scheduled amortization payments under Section 7.19(a), assuming that the applicable Incremental Advance has been made), or would result from, 2.4 required to be made after the making of the applicable such Incremental Advance or from the application of proceeds therefrom;
(h) To the extent that the Perfection Certificate last delivered to Purchasers Advances shall be ratably increased by the Credit Parties is incomplete or inaccurate as aggregate principal amount of the applicable such Incremental Funding Date, the Credit Parties shall execute and deliver to the Purchasers an updated Perfection Certificate on or before the applicable Incremental 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 Incremental Funding Date, as to the satisfaction of the applicable conditions set forth in this Section 4.5; and
(j) Each Incremental Advance shall be funded into the Restricted AccountAdvances.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Hi-Crush Partners LP)
Incremental Advances. No later than each Outside 34- NY\6260051.12
(a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Funding DateCommitments in an aggregate amount not to exceed $100,000,000 from one or more Incremental Lenders, all of which must be Eligible Assignees. Such notice shall set forth (i) the amount of the Incremental Purchasers Commitments being requested (which shall make the respective Incremental Advance subject be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the fulfillment remaining amount available for Incremental Commitments), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Commitments are commitments to make additional Advances or prior commitments to make term loans with terms different from the Advances (“Other Advances”).
(b) The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith. The Borrower and each Incremental Lender shall execute and deliver to the applicable Administrative Agent an Incremental Funding Date Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. The terms and provisions of the following conditionsIncremental Advances shall be consistent with those of the Advances except as otherwise set forth herein or in the Incremental Agreement, as applicable and to each such Incremental Advancethe extent not consistent with those of the Advances, in each case, in a form and substance shall be reasonably satisfactory to the Gotham Purchasers:Administrative Agent. Without the prior written consent of the Majority Lenders, (i) the final maturity date of any Other Advances shall be no earlier than the Maturity Date, (ii) the average life to maturity of the Other Advances shall be no shorter than the average life to maturity of the Advances and (iii) if the initial yield on such Other Advances (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Eurodollar Rate on such Other Advances and (y) if such Other Advances are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Advances, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Advances and (B) four) exceeds the sum of the Applicable Margin then in effect for Eurodollar Advances plus any fees payable under Section 2.5 and effected in the form of OID by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for Advances shall automatically be increased by the Yield Differential, effective upon the making of the Other Advances. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitment and the Other Advances evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(ac) Prior Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.14 unless (i) such indebtedness is provided the same guarantees, and is secured by the Collateral on a pari passu basis with the liens securing the Obligations, (ii) on the date of such effectiveness, the Administrative Agent shall have received a certificate executed by a Financial Officer of the Borrower certifying that on the date of, and after giving effect to, the incurrence of such Incremental Commitments (and any acquisitions, investments or dispositions made after the beginning of the determination period but prior to or simultaneous with the incurrence of such Incremental Commitments), the Senior Secured Leverage Ratio of the Borrower does not exceed 4.00 to 1.00, (iii) on the date of such effectiveness, the Administrative Agent shall have received a certificate of an authorized officer of the Borrower certifying that on the date of, and after giving effect to, the incurrence of such Incremental Commitments (A) no Default has occurred and is continuing (except that, in the case of Incremental Commitments incurred in connection with an Acquisition permitted by Section 6.4, this condition shall be limited to Default arising under Section 7.1(a) -35- NY\6260051.12 or Section 7.1(g)) and (B) all representations and warranties made by the Borrower in this Agreement are true and correct in all material respects unless such representation and warranty is already qualified as to materiality or Material Adverse Change in which case such representation and warranty shall be true and correct in all respects (except that, in the case of Incremental Commitments incurred in connection with an Acquisition permitted by Section 6.4, this condition shall be limited to the second Specified Representations and the Acquisition Agreement Representations (conformed as applicable for such Acquisition)), (iv) all fees and expenses owing in respect of such Incremental Advance, the Turnaround Plan Commitments shall have been approved paid and (v) except as otherwise specified in the applicable Incremental Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the board of directors Administrative Agent and consistent with those delivered on the Effective Date under Section 3.1.
(d) Each of the Company and parties hereto hereby agrees that the Gotham PurchasersAdministrative Agent may, acting reasonably, and not been withdrawn or amended without with the Gotham Purchasers’ prior written consent, Borrower’s consent (not to be unreasonably withheld or delayed), take any and prior all action as may be reasonably necessary to any other ensure that all Incremental Advance, the Company shall have provided evidence satisfactory to the Gotham Purchasers, acting reasonably, that the Turnaround Plan has been and is being implemented and that the Credit Parties have not expended proceeds of any Incremental Advance Advances (other than Other Advances), when originally made, are included in accordance with the Interim Budget or Turnaround Plan, as applicable (for the avoidance each Borrowing of doubt, finalization and approval of the Turnaround Plan are not conditions to the Purchasers making the first Incremental Advance);
(b) The Borrowers and the Company, respectively, shall have delivered the relevant Incremental Notes and Incremental Warrants to the Incremental Purchasers who participate in the relevant Incremental Advance on the relevant Incremental Funding Date;
(c) The Company shall have delivered the relevant Incremental Replacement Warrants to the Existing Purchasers on each Incremental Funding Date outstanding Advances on a pro rata basis with respect to basis. This may be accomplished by converting each outstanding Eurodollar Borrowing into a Base Rate Borrowing on the Funded Amount date of the Existing Notes Principal evidenced each Incremental Advance, or by the Amended and Restated Notes then held by such Existing Purchasers; provided, however, that the Company shall not be required to issue any Incremental Replacement Warrants if, prior to the relevant Incremental Funding Date, the parties agreed that the Retail Cash Flow Milestone was achieved in accordance with the Incremental Replacement Warrants outstanding immediately prior to such date;
(d) The Gotham Purchasers, the Company and Borrowers shall have updated Schedule 1.1(d) to reflect (i) all amendments to the Amended and Restated Notes and Existing Warrants resulting from allocating a portion of each Incremental Advance to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Advances to Base Rate Advances under the preceding sentence shall be subject to Section 2.8. If any Incremental Advance is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Interest Period and (ii) the issuance of Incremental Notes, Incremental Warrants and Incremental Replacement Warrants;
(e) The representations and warranties of the Credit Parties contained in ARTICLE V hereof and in the other Operative Documents economic consequences thereof shall be true and correct as of set forth in the applicable Incremental Funding Date as if made on the applicable Incremental 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 applicable Incremental 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 Incremental 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. In addition, to the extent that any schedules hereto Incremental Advances are incomplete or inaccurate as of the applicable Incremental Funding Datenot Other Advances, the Credit Parties shall deliver updated schedules;
(g) No Default or Event of Default shall have occurred and be continuing (in the case of a Default scheduled amortization payments under Section 7.19(a), assuming that the applicable Incremental Advance has been made), or would result from, 2.4 required to be made after the making of the applicable such Incremental Advance or from the application of proceeds therefrom;
(h) To the extent that the Perfection Certificate last delivered to Purchasers Advances shall be ratably increased by the Credit Parties is incomplete or inaccurate as aggregate principal amount of the applicable such Incremental Funding Date, the Credit Parties shall execute and deliver to the Purchasers an updated Perfection Certificate on or before the applicable Incremental 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 Incremental Funding Date, as to the satisfaction of the applicable conditions set forth in this Section 4.5; and
(j) Each Incremental Advance shall be funded into the Restricted AccountAdvances.
Appears in 1 contract
