Aurora Cannabis Inc 6-K/A, filed Feb 25, 2020
Aurora Cannabis Inc (ACB)
About this 6-K/A
Aurora Cannabis Inc filed this 6-K/A on February 25, 2020.
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K/A
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO
RULE 13a-16 OR 15d-16 UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of February 2020
Commission File No. 001-38691
AURORA CANNABIS INC.
(Translation of registrant's name into English)
500 - 10355 Jasper Avenue
Edmonton, Alberta, T5J 1Y6, Canada
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F
Form 20-F ☐ Form 40-F ☒
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1) ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7) ☐
SUBMITTED HEREWITH
| Exhibits | Description | |
| 99.1 | Arrangement Agreement dated July 15, 2018 | |
| 99.2 | First Amended and Restated Credit Agreement dated September 4, 2019 |
EXPLANATORY NOTE
This 6-K/A is being filed to include a description of redacted information contained in material contracts previously filed.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
AURORA CANNABIS INC.
/s/ Glen Ibbott
Glen Ibbott
Chief Financial Officer
Date: February 20, 2020
Exhibit 99.1
Execution Copy
AURORA CANNABIS INC.
and
ANANDIA LABORATORIES INC.
ARRANGEMENT AGREEMENT
Dated as of July 15, 2018
TABLE OF CONTENTS
| Article 1 DEFINITIONS, INTERPRETATION AND SCHEDULES | 2 | |
| Section 1.1 Definitions | 2 | |
| Section 1.2 Interpretation Not Affected by Headings | 19 | |
| Section 1.3 Number and Gender | 19 | |
| Section 1.4 Date for Any Action | 19 | |
| Section 1.5 Statutory References | 20 | |
| Section 1.6 Currency | 20 | |
| Section 1.7 Invalidity of Provisions | 20 | |
| Section 1.8 Certain References and Phrases | 20 | |
| Section 1.9 Accounting Matters | 20 | |
| Section 1.10 Knowledge | 20 | |
| Section 1.11 Meaning of Certain Phrase | 21 | |
| Section 1.12 Subsidiaries | 21 | |
| Section 1.13 Schedules | 21 | |
| Article 2 THE ARRANGEMENT | 21 | |
| Section 2.1 Arrangement | 21 | |
| Section 2.2 Court Proceedings | 22 | |
| Section 2.3 Completion of Arrangement Filings | 23 | |
| Section 2.4 Effective Time | 24 | |
| Section 2.5 Closing | 24 | |
| Section 2.6 Consultation | 24 | |
| Section 2.7 [Reserved] | 25 | |
| Section 2.8 U.S. Securities Matters | 25 | |
| Section 2.9 Adjustment of Consideration | 26 | |
| Section 2.10 Lock-Up and Shareholder Agreements | 26 | |
| Section 2.11 Anandia Options | 26 | |
| Section 2.12 Anandia Warrants | 27 | |
| Section 2.13 Tax Matters | 27 | |
| Section 2.14 Tax Elections | 27 | |
| Article 3 REPRESENTATIONS AND WARRANTIES | 28 | |
| Section 3.1 Representations and Warranties of Anandia | 28 | |
| Section 3.2 Representations and Warranties of Aurora | 28 | |
| Section 3.3 Anandia Disclosure Letter | 28 | |
| Section 3.4 Aurora Disclosure Letter | 29 | |
| Section 3.5 Survival of Representations and Warranties | 29 | |
| Article 4 COVENANTS | 29 | |
| Section 4.1 Covenants of Aurora | 29 | |
| Section 4.2 Covenants of Anandia | 32 | |
| Section 4.3 Regulatory Approvals | 40 | |
| Section 4.4 Indemnification and Insurance | 41 | |
| Section 4.5 Employment Matters | 42 | |
| Section 4.6 Confidentiality Agreement | 42 | |
| Article 5 CONDITIONS | 42 | |
| Section 5.1 Mutual Conditions | 42 | |
| Section 5.2 Aurora Conditions | 43 | |
| Section 5.3 Anandia Conditions | 44 | |
| Section 5.4 Notice and Cure Provisions | 45 | |
| Article 6 NON-SOLICITATION AND TERMINATION PAYMENTS | 45 | |
| Section 6.1 Anandia Covenant Regarding Non-Solicitation | 45 | |
| Section 6.2 Notice of Anandia Superior Proposal Determination | 49 | |
| Section 6.3 Anandia Termination Payment Event | 51 | |
| Section 6.4 Reimbursement of Expenses | 53 | |
| Article 7 AMENDMENT AND TERMINATION | 53 | |
| Section 7.1 Amendment | 53 | |
| Section 7.2 Termination | 54 | |
| Section 7.3 Effect of Termination | 56 | |
| Article 8 GENERAL | 56 | |
| Section 8.1 Notices | 56 | |
| Section 8.2 Remedies | 57 | |
| Section 8.3 Expenses | 58 | |
| Section 8.4 Time of the Essence | 58 | |
| Section 8.5 Entire Agreement | 58 | |
| Section 8.6 Further Assurances | 58 | |
| Section 8.7 Governing Law | 58 | |
| Section 8.8 Execution in Counterparts | 58 | |
| Section 8.9 Waiver | 59 | |
| Section 8.10 Third Party Beneficiaries | 59 | |
| Section 8.11 No Personal Liability | 59 | |
| Section 8.12 Enurement and Assignment | 59 | |
| Schedule A Plan Of Arrangement | A-1 |
| Schedule B Form of Anandia Arrangement Resolution | B-1 |
| Schedule C Representations and Warranties of Anandia | C-1 |
| Schedule D Representations and Warranties of Aurora | D-1 |
| Schedule E List of Anandia Locked-Up Shareholders | E-1 |
| Schedule F Form of Consideration WArrant | F-1 |
| Schedule G Form of Coleman Escrow Agreement | G-1 |
| Schedule H Form of Page Escrow Agreement | H-1 |
| Schedule I Form of Coleman Acknowledgement and Indemnity Agreement | I-1 |
| Schedule J Form of Page Acknowledgement and Indemnity Agreement | J-1 |
| Schedule K Key Employees | K-1 |
ARRANGEMENT AGREEMENT
THIS ARRANGEMENT AGREEMENT (this “Agreement”) made as of July 13, 2018.
BETWEEN:
AURORA CANNABIS INC., a company incorporated under the laws of the Province of British Columbia,
(hereinafter referred to as “Aurora”)
AND:
ANANDIA LABORATORIES INC., a company incorporated under the laws of the Province of British Columbia,
(hereinafter referred to as “Anandia” and together with Aurora, the “Parties” and each, a “Party”)
WHEREAS:
(A) Aurora and Anandia wish to enter into a business combination transaction providing for, among other things, the acquisition of all of the issued and outstanding shares of Anandia by Aurora;
(B) Aurora and Anandia propose to effect the transaction by way of a plan of arrangement of Anandia under the provisions of the Business Corporations Act (British Columbia);
(C) Aurora and Anandia negotiated in good faith the terms of a definitive arrangement agreement and elements of a plan of arrangement which terms and elements are set forth in this Agreement and the Plan of Arrangement;
(D) The board of directors of each of Aurora and Anandia have unanimously determined that it would be in the best interest of each corporation to enter into this Agreement and complete the transactions contemplated by this Agreement;
(E) Aurora has entered into voting and support agreements dated the date hereof with the Anandia Locked-Up Shareholders (the “Anandia Lock-Up Agreements”); and
(F) The Parties intend that the issuance of the Replacement Securities (as defined herein) will be exempt from the registration requirements of the 1933 Act (as defined herein) pursuant to Section 3(a)(10) thereof and applicable U.S. state securities laws in reliance upon such exemptions as may be available therefrom;
NOW THEREFORE in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the Parties, the Parties hereto hereby covenant and agree as follows:
| 1 |
Article 1
DEFINITIONS, INTERPRETATION AND SCHEDULES
Section 1.1 Definitions
In this Agreement, unless the context otherwise requires, the following words and terms shall have the meanings ascribed to them below:
| (a) | “1933 Act” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated from time to time thereunder; |
| (b) | “1934 Act” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated from time to time thereunder; |
| (c) | “ACMPR” means the Access to Cannabis for Medical Purposes Regulations (Canada) issued pursuant to the Controlled Drugs and Substances Act (Canada); |
| (d) | “Action” means, with respect to any Person, any litigation, legal action, lawsuit, claim, audit, arbitration or other proceeding (whether civil, administrative, quasi-criminal or criminal) before any Governmental Entity against such Person or its business or affecting any of its assets; |
| (e) | “affiliate” has the meaning ascribed thereto in the Canadian Securities Administrators’ National Instrument 45-106 - Prospectus Exemptions, unless stated otherwise; |
| (f) | “Agreement” means this arrangement agreement, together with the schedules attached hereto, as amended, amended and restated or supplemented from time to time; |
| (g) | “Anandia” has the meaning set out on the first page hereof; |
| (h) | “Anandia Acquisition Proposal” means, other than the Transaction and other than any transaction involving only Anandia and/or one or more of the wholly-owned Anandia Subsidiaries or the Shareholder Holdcos, any offer, proposal, expression of interest, or inquiry (written or oral) from any Person or group of Persons acting “jointly or in concert” other than Aurora (or any of its affiliates or joint actors) after the date of this Agreement relating to: |
| (i) | any sale, disposition, alliance or joint venture (or any lease, long-term supply agreement or other arrangement having the same economic effect as a sale), direct or indirect, in a single transaction or a series of related transactions, of assets representing 20% or more of the fair market value of the consolidated assets, or contributing 20% or more of the consolidated revenue of Anandia and the Anandia Subsidiaries, in each case taken as a whole, or of 20% or more of any class of voting, equity or other securities or any securities exchangeable for or convertible into voting, equity or other securities of Anandia and the Anandia Subsidiaries (or rights or interests therein or thereto); |
| 2 |
| (ii) | any direct or indirect take-over bid, tender offer, exchange offer, treasury issuance or other transaction that, if consummated, would result in a Person or group of Persons beneficially owning 20% or more of any class of voting, equity or other securities (including securities convertible into or exercisable or exchangeable for voting, equity or other securities) of Anandia or the Anandia Subsidiaries; |
| (iii) | any plan of arrangement, merger, amalgamation, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution, winding up or exclusive license or other similar transaction involving Anandia or the Anandia Subsidiaries pursuant to which any Person or group of Persons would acquire, directly or indirectly, 20% or more of the voting or equity securities of Anandia or the surviving entity or the resulting direct or indirect parent of Anandia or the surviving entity; or |
| (iv) | any other similar transaction or series of related transactions involving Anandia or the Anandia Subsidiaries; |
| (i) | “Anandia Arrangement Resolution” means the special resolution of the Anandia Securityholders approving the Plan of Arrangement substantially in the form attached as Schedule B; |
| (j) | “Anandia Benefit Plans” means all plans with respect to any Anandia or Anandia Subsidiary employees or other service providers or former employees or former service providers to which Anandia or any Anandia Subsidiary is a party to or bound by or to which Anandia or any Anandia Subsidiary has an obligation to contribute or with respect to which Anandia or any Anandia Subsidiary may have any direct or indirect liability relating to retirement savings, pensions, bonuses, equity awards, profit sharing, deferred compensation, incentive compensation, life or accident insurance, hospitalization, health, medical or dental treatment or expenses, disability, unemployment insurance benefits, employee loans, vacation pay, severance or termination pay or other benefits, other than those benefits provided solely under a Statutory Plan; |
| (k) | “Anandia Board” means the board of directors of Anandia; |
| (l) | “Anandia Board Recommendation” means, after consultation with its legal and financial advisors, and determination that the Arrangement is in the best interests of Anandia and is fair to Anandia Securityholders, the unanimous recommendation of the Anandia Board to Anandia Securityholders that they vote in favour of the Anandia Arrangement Resolution; |
| (m) | “Anandia Change in Recommendation” means the Anandia Board fails to recommend or withdraws, amends, modifies or qualifies (or proposes publicly to withdraw, amend, modify or qualify), in a manner adverse to Aurora, the Anandia Board Recommendation, or the Anandia Board accepts, approves, endorses or recommends or publicly proposes to accept, approve, endorse or recommend an Anandia Acquisition Proposal, or takes no position or remains neutral with respect to, any publicly announced Anandia Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to a publicly announced, or otherwise publicly disclosed, Anandia Acquisition Proposal for a period of no more than five Business Days following such public announcement or public disclosure will not be considered to be an Anandia Change in Recommendation provided the Anandia Board has rejected such Anandia Acquisition Proposal and affirmed the Anandia Board Recommendation before the end of such five Business Day period (or in the event that the Anandia Meeting is scheduled to occur within such five Business Day period, no later than the later of one Business Day following the public announcement or public disclosure of such Anandia Acquisition Proposal or the third Business Day prior to the date of the Anandia Meeting)); |
| 3 |
| (n) | “Anandia Circular” means the notice of the Anandia Meeting to be sent to Anandia Securityholders and the management information circular to be prepared in connection with the Anandia Meeting and the schedules, appendices and exhibits thereto, together with any amendments or modifications thereto or supplements thereof; |
| (o) | “Anandia Data Room” means the electronic data room made accessible by Anandia to Aurora in connection with the conduct by Aurora of its due diligence on Anandia hosted by Whiteboard Law Corporation, as such electronic data room existed as of 5:00pm (Vancouver time) on July 13, 2018; |
| (p) | “Anandia Disclosure Letter” means the letter dated as of the date of this Agreement, delivered by Anandia to Aurora pursuant to Section 3.3 with respect to certain matters in this Agreement; |
| (q) | “Anandia Fairness Opinions” shall have the meaning ascribed thereto in Section (c) of Schedule C; |
| (r) | “Anandia Filings” means all documents publicly filed under the profile of Anandia on SEDAR since January 22, 2018; |
| (s) | “Anandia Financial Advisors” means Evans & Evans, Inc.; |
| (t) | “Anandia Financial Statements” shall have the meaning ascribed thereto in Section (p) of Schedule C; |
| (u) | “Anandia Group” means Anandia and the Anandia Subsidiaries or any combination of such Persons; |
| (v) | “Anandia Licenses” means the Licenses set forth in Section 3.1(v)(i) of the Anandia Disclosure Letter; |
| 4 |
| (w) | “Anandia Lock-Up Agreements” shall have the meaning ascribed thereto in the Recitals; |
| (x) | “Anandia Locked-Up Shareholders” means the officers, directors and certain other significant shareholders of Anandia that own, or exercise control or direction over, Anandia Shares or securities convertible into, or exchangeable for, Anandia Shares, as set forth in Schedule E; |
| (y) | “Anandia Meeting” means the special meeting, including any adjournments or postponements thereof in accordance with the terms of this Agreement, of the Anandia Securityholders to be held to consider, among other things, and, if deemed advisable, to approve, the Anandia Arrangement Resolution; |
| (z) | “Anandia Options” means options to acquire Anandia Shares issued by Anandia pursuant to or governed by the Anandia Stock Option Plan; |
| (aa) | “Anandia Optionholders” means, at any time, the holders of Anandia Options. |
| (bb) | “Anandia Permitted Encumbrances” means: |
| (A) | minor title defects or irregularities or servitudes, easements, restrictions, encroachments, covenants, rights of way and other similar rights or restrictions in real property, or any interest therein, whether registered or unregistered, provided the same are not of such nature as to materially impair the operation or enjoyment of the Anandia Properties; |
| (B) | undetermined or inchoate liens, charges and privileges (including mechanics’, construction, carriers’, workers’, repairers’, storers’ or similar liens) which individually or in the aggregate are not material, arising or incurred in the ordinary course of business of Anandia; |
| (C) | statutory liens, adverse Claims or Encumbrances of any nature whatsoever claimed or held by any Governmental Entity that have not at the time been filed or registered against the title to the Anandia Properties or served upon Anandia pursuant to Law or that relate to obligations not due or delinquent, save and except for statutory liens, adverse Claims or Encumbrances related to Taxes which are due and payable; |
| (D) | the reservations, limitations and exceptions in any original grants from any Governmental Entity of any real property or interest therein and statutory exceptions to title that do not materially detract from the value of the Anandia Properties or materially impair the operation or enjoyment of the Anandia Properties; and |
| (E) | the Encumbrances listed in the Anandia Disclosure Letter; |
| (cc) | “Anandia Properties” shall have the meaning ascribed thereto in Schedule C; |
| 5 |
| (dd) | “Anandia Securityholders” means Anandia Shareholders and Anandia Optionholders. |
| (ee) | “Anandia Shareholders” means, at any time, the holders of Anandia Shares; |
| (ff) | “Anandia Shares” means the common shares in the capital of Anandia; |
| (gg) | “Anandia Stock Option Plan” means the incentive stock option plan of Anandia dated August 18, 2015; |
| (hh) | “Anandia Subsidiaries” means, collectively, the Subsidiaries of Anandia; |
| (ii) | “Anandia Superior Proposal” means any bona fide unsolicited written Anandia Acquisition Proposal made by a person or persons who are, at the date of this Agreement, an arm’s-length third party or arm’s length third parties acting jointly that is made after the date of this Agreement, that relates to the acquisition of all or substantially all of the assets of Anandia (on a consolidated basis) or 100% of the issued and outstanding Anandia Shares not beneficially owned by the party making such Anandia Acquisition Proposal and any joint actor or any of their respective affiliates, whether by way of a single or multistep transaction or a series of related transactions, that: |
| (i) | complies with Securities Laws in all material respects; |
| (ii) | did not result from or involve a breach of Section 6.1 of this Agreement, the Confidentiality Agreement or any other agreement between the Person making the Anandia Acquisition Proposal and Anandia or any of its Subsidiaries; |
| (iii) | is reasonably capable of being completed in accordance with its terms without undue delay relative to the Arrangement, taking into account all legal, financial, regulatory and other aspects of such proposal (including, required shareholder approvals and minimum tender requirements) and the Person making such proposal; |
| (iv) | is not subject to any financing condition or contingency and in respect of which adequate arrangements have been made or have been demonstrated to the Anandia Board to be reasonably likely to be available to ensure that the required funds or other consideration will be available to effect payment in full for all of the Anandia Shares or the assets of Anandia to be acquired, as the case may be; |
| (v) | is not subject to a due diligence or access to information condition; |
| (vi) | the Anandia Board determines, in its good faith judgment, after receiving the advice of its outside legal and financial advisors and after taking into account all the terms and conditions of the Anandia Acquisition Proposal, including all legal, financial, regulatory and other aspects of such Anandia Acquisition Proposal and the Person making such Anandia Acquisition Proposal, would, if consummated in accordance with its terms, but not assuming away any risk of non-completion, result in a transaction more favourable to Anandia Securityholders from a financial point of view than the terms of the Arrangement (including any amendments to the terms and conditions proposed by Aurora as contemplated by Section 6.2(b)); and |
| 6 |
| (vii) | in the event that Anandia does not have the financial resources to pay the Anandia Termination Payment, the terms of such Anandia Acquisition Proposal provide that the Person making such Anandia Acquisition Proposal shall advance or otherwise provide Anandia with the cash for Anandia to make the Anandia Termination Payment, and such amount will be advanced or provided on or before such Anandia Termination Payment becomes payable; |
| (jj) | “Anandia Superior Proposal Notice” shall have the meaning ascribed thereto in Section 6.2(a)(iii); |
| (kk) | “Anandia Termination Payment” shall have the meaning ascribed thereto in Section 6.3; |
| (ll) | “Anandia Warrants” means the outstanding warrants to purchase Anandia Shares; |
| (mm) | “Anandia Warrantholders” means, at any time, the holders of Anandia Warrants. |
| (nn) | “Arrangement” means an arrangement pursuant to the provisions of Division 5 of Part 9 of the BCBCA on the terms and conditions set forth in the Plan of Arrangement, subject to any amendment or supplement thereto made in accordance therewith, herewith or made at the direction of the Court either in the Interim Order or the Final Order with the consent of Aurora and Anandia, each acting reasonably; |
| (oo) | “Arrangement Filings” means the filings of Anandia with BC Registry Services in respect of the Arrangement, as may be required pursuant to Part 9, Division 5 the BCBCA after the Final Order is made, which shall be in form and substance satisfactory to Aurora and Anandia, each acting reasonably; |
| (pp) | “Authorization” means, with respect to any Person, any authorization, order, permit, approval, grant, licence, registration, consent, right, notification, condition, franchise, privilege, certificate, judgment, writ, injunction, award, determination, direction, decision, decree, by-law, rule or regulation, that is binding upon or applicable to such Person or its business, assets or securities, and includes any Environmental Approval; |
| (qq) | “Aurora” has the meaning set out on the first page hereof; |
| 7 |
| (rr) | “Aurora Benefit Plan” means all plans with respect to any Aurora or Aurora Subsidiary employees or service providers or former employees or former service providers which Aurora or any Aurora Subsidiary is a party to or bound by or to which Aurora or any Aurora Subsidiary has an obligation to contribute or with respect to which Aurora or any Aurora Subsidiary may have any direct or indirect liability relating to retirement savings, pensions, bonuses, equity awards, profit sharing, deferred compensation, incentive compensation, life or accident insurance, hospitalization, health, medical or dental treatment or expenses, disability, unemployment insurance benefits, employee loans, vacation pay, severance or termination pay or other benefits, other than those benefits provided solely under a Statutory Plan; |
| (ss) | “Aurora Board” means the board of directors of Aurora; |
| (tt) | “Aurora Data Room” means the electronic data room made accessible by Aurora to Anandia in connection with the conduct by Anandia of its due diligence on Aurora, hosted by Google Drive, as such electronic data room existed as of 5:00pm (Vancouver time) on July 13, 2018; |
| (uu) | ................................................................................................................................... ......................................................................................................................... ................... | |
| [Redacted - Defined term] |
| (vv) | “Aurora Disclosure Letter” means the letter dated as of the date of the Agreement, delivered by Aurora to Anandia pursuant to Section 3.4 with respect to certain matters in this Agreement; |
| (ww) | “Aurora Filings” means all documents publicly filed under the profile of Aurora on SEDAR since July 1, 2016; |
| (xx) | “Aurora Financial Advisor” means BMO Capital Markets, as financial advisor to the Aurora Board; |
| (yy) | “Aurora Financial Statements” shall have the meaning ascribed thereto in Section (r) of Schedule D; |
| (zz) | “Aurora Group” means Aurora and the Aurora Subsidiaries incorporated under the federal jurisdiction of Canada, or in any provincial jurisdiction within Canada, or any combination of such Persons; |
| (aaa) | “Aurora Licenses” means the Licenses set forth in Section 3.2(x)(i) of the Aurora Disclosure Letter; |
| (bbb) | “Aurora Match Period” shall have the meaning ascribed thereto in Section 6.2(a)(v); |
| (ccc) | “Aurora Options” means options to purchase Aurora Shares issued pursuant to or governed by the Aurora Stock Option Plan; |
| 8 |
| (ddd) | “Aurora Permitted Encumbrances” means: |
| (A) | minor title defects or irregularities or servitudes, easements, restrictions, encroachments, covenants, rights of way and other similar rights or restrictions in real property or any interest therein, whether registered or unregistered, provided the same are not of such nature as to materially impair the operation or enjoyment of the Aurora Properties; |
| (B) | undetermined or inchoate liens, charges and privileges (including mechanics’, construction, carriers’, workers’, repairers’, storers’ or similar liens) which individually or in the aggregate are not material, arising or incurred in the ordinary course of business of Aurora; |
| (C) | statutory liens, adverse Claims or Encumbrances of any nature whatsoever claimed or held by any Governmental Entity that have not at the time been filed or registered against the title to the Aurora Properties or served upon Aurora pursuant to Law or that relate to obligations not due or delinquent, save and except for statutory liens, adverse Claims or Encumbrances related to Taxes which are due and payable; |
| (D) | the reservations, limitations and exceptions in any original grants from any Governmental Entity of any real property or interest therein and statutory exceptions to title that do not materially detract from the value of the Aurora Properties or materially impair the operation or enjoyment of the Aurora Properties; and |
| (E) | the Encumbrances listed in Section 1.1 of the Aurora Disclosure Letter; |
| (eee) | “Aurora Properties” shall have the meaning ascribed thereto in Schedule D; |
| (fff) | ............................................................................................... ................................................................................................... ......................................... | |
| [Redacted - Defined term] |
| (ggg) | “Aurora RSUs” means restricted share units granted under or governed by the Aurora RSU Plan; |
| (hhh) | “Aurora Shareholders” means, at any time, the holders of Aurora Shares; |
| (iii) | “Aurora Shares” means the common shares in the capital of Aurora; |
| (jjj) | ................................................................................................................................... ....................................................... | |
| [Redacted - Defined term] |
| (kkk) | “Aurora Subsidiaries” means, collectively, the Subsidiaries of Aurora; |
| (lll) | “Aurora Warrants” means the outstanding warrants to purchase Aurora Shares; |
| 9 |
| (mmm) | “BCBCA” means the Business Corporations Act (British Columbia); |
| (nnn) | “Books and Records” of a Party, means books and records of the Party and its Subsidiaries, including books of account, tax records, sales and purchase records, customer and supplier lists, technical documents including specifications, bills of materials and engineering notebooks and business reports, whether in written or electronic form; |
| (ooo) | “Business Day” means any day, other than a Saturday, a Sunday or a statutory holiday in Edmonton, Alberta or Vancouver, British Columbia; |
| (ppp) | “Claims” means any and all debts, costs, expenses, liabilities, obligations, losses and damages, penalties, proceedings, actions, suits, assessments, reassessments or claims of whatsoever nature or kind including regulatory or administrative (whether or not under common law, on the basis of contract, negligence, strict or absolute liability or liability in tort, or arising out of requirements of applicable Laws), imposed on, incurred by, suffered by, or asserted against any Person or any property, absolute or contingent, and, except as otherwise expressly provided herein, includes all reasonable out-of-pocket costs, disbursements and expenses paid or incurred by such Person in defending any action; |
| (qqq) | “Closing” means the completion of the transactions contemplated by the Arrangement; |
| (rrr) | “Code” means the United States Internal Revenue Code of 1986, as amended; |
| (sss) | ..................................................... |
| (ttt) | ................................................................................................................................... ................................................................................................................................... ..................................................................... |
| (uuu) | .......................................................................... |
| (vvv) | ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ..................... |
| (www) | .................................................................................................. |
| (xxx) | ................................................................................................................................... ................. |
| (yyy) | ................................................................... |
| (zzz) | ................................................................. |
[Redacted - Related defined terms]
| 10 |
| (aaaa) | “Completion Deadline” means August 15, 2018, or such later date as may be agreed to in writing by the Parties; |
| (bbbb) | “Confidentiality Agreement” means the confidentiality agreement dated May 7, 2018 entered into between Anandia and Aurora; |
| (cccc) | “Consideration Shares” means the Aurora Shares to be issued to the Anandia Shareholders in exchange for their Anandia Shares pursuant to the Plan of Arrangement; |
| (dddd) | “Consideration Warrants” means warrants to purchase Aurora Shares to be issued to the Anandia Shareholders pursuant to the Plan of Arrangement in the form attached hereto as Schedule F; |
| (eeee) | “Contract” means, with respect to any Party, any legally binding agreement, commitment, engagement, contract, franchise or undertaking (written or oral): (a) to which such Party or its Subsidiaries is a party, (b) by which such Party or its Subsidiaries is bound or affected or to which any of their respective assets is subject, or (c) under which such Party or its Subsidiaries has or may acquire any right or interest. |
| (ffff) | “Court” means the Supreme Court of British Columbia; |
| (gggg) | “Depositary” means such Person as Anandia may appoint to act as depositary in relation to the Arrangement, with the approval of Aurora, acting reasonably; |
| (hhhh) | “Dissent Rights” means the rights of dissent in respect of the Arrangement granted pursuant to the Interim Order; |
| (iiii) | “Effective Date” means the date upon which the Arrangement becomes effective, pursuant to such filings as required pursuant to Part 9, Division 5 of the BCBCA; |
| (jjjj) | “Effective Date Balance Sheet” means the balance sheet of Anandia as at 12:01 a.m. on the Effective Date, prepared in accordance with generally accepted accounting principles, consistently applied with those principles used in the preparation of the Anandia Financial Statements after taking into account any reasonable estimates required to determine amounts on the Effective Date that may differ from amounts on the date of preparation and after taking into account all proceeds that have been received in connection with the exercise of Anandia Options and Anandia Warrants pursuant to Conditional Exercise Notices and all payments to be made to Anandia Optionholders and Anandia Warrantholders pursuant to the Plan of Arrangement; |
| (kkkk) | “Effective Date Working Capital” means the amount, whether positive or negative, equal to the total of Anandia’s current assets less the total of its current liabilities as shown on the Effective Date Balance Sheet and, for these purposes, “current assets” and “current liabilities” shall consist of assets and liabilities so classified on the Effective Date Balance Sheet, excluding any current assets, current liabilities and cash payments related to expenditures for Anandia’s Comox site that are pre-approved by Aurora or are related to charges from Aurora affiliates, which includes any costs directed to be incurred by Aurora affiliates at Anandia’s Comox site, after taking into account any reasonable estimates required to determine amounts on the Effective Date that may differ from amounts on the date of preparation and after taking into account all proceeds that have been received in connection with the exercise of Anandia Options and Anandia Warrants pursuant to Conditional Exercise Notices and all payments to be made to Anandia Optionholders and Anandia Warrantholders pursuant to the Plan of Arrangement; |
| 11 |
| (llll) | “Effective Time” means 12:01 a.m. (Vancouver time) on the Effective Date; |
| (mmmm) | “Eligible Holder” means a beneficial holder of Anandia Shares that, immediately prior to the Effective Time, is: (i) a resident of Canada for purposes of the Tax Act and not exempt from tax under Part I of the Tax Act; (ii) a partnership, any member of which is a resident of Canada for purposes of the Tax Act and not exempt from tax under Part I of the Tax Act, or (iii) an Eligible Non-Resident. |
| (nnnn) | “Eligible Non-Resident” means a beneficial owner of Anandia Shares immediately prior to the Effective Time who is not, and is not deemed to be, a resident of Canada for purposes of the Tax Act and any applicable income tax treaty or convention and whose Anandia Shares are “taxable Canadian property” and not “treaty-protected property”, in each case as defined in the Tax Act, or a partnership, any member of which is not, and is not deemed to be, a resident of Canada for purposes of the Tax Act and any applicable income tax treaty or convention and whose Anandia Shares are “taxable Canadian property” and not “treaty-protected property”, in each case as defined in the Tax Act. |
| (oooo) | “Encumbrance” means any mortgage, pledge, assignment, charge, lien, claim, security interest, adverse interest, other third Person interest or encumbrance of any kind, whether contingent or absolute, and any agreement, option, right or privilege (whether by law, contract or otherwise) capable of becoming any of the foregoing but does not include (i) when such term is used in reference to Aurora or any Aurora Subsidiary, any Aurora Permitted Encumbrance and (ii) when such term is used in reference to Anandia or any Anandia Subsidiary, any Anandia Permitted Encumbrance; |
| (pppp) | “Environmental Approvals” means , with respect to any Person, all permits, certificates, licences, authorizations, consents, instructions, registrations, directions, approvals, decisions, decrees, conditions, notifications, orders, demands or Claims issued or required by any Governmental Entity pursuant to any Environmental Laws, which are binding upon or applicable to such Person or its business, assets or securities; |
| 12 |
| (qqqq) | “Environmental Laws” means all applicable Laws whether foreign or domestic, including applicable common law and civil law, for the protection of the natural environment and human health and safety and for the regulation of contaminants, pollutants, waste, toxic and hazardous substances, and includes Environmental Approvals; |
| (rrrr) | “Exchange Ratio” means the number of Consideration Shares issuable pursuant to the Arrangement for each Anandia Share, based on the following formula: |
A = (B/C) / D
where:
| A | = | the number of Consideration Shares issuable per Anandia Share |
| B | = | the Purchase Price |
| C | = | the Issue Price |
| D | = |
the aggregate number of Anandia Shares
|
| (ssss) | “Final Order” means the order made after application to the Court approving the Arrangement, as such order may be amended by the Court (with the consent of the Parties, each acting reasonably) at any time prior to the Effective Date or, if appealed, then unless such appeal is withdrawn or denied, as affirmed or as amended on appeal; |
| (tttt) | “Governmental Entity” means any: (i) supranational, international, multinational, national, federal, provincial, territorial, state, regional, municipal, local or other government, governmental or public department, central bank, court, tribunal, arbitral body, commission, board, bureau, stock exchange or agency, whether domestic or foreign; (ii) any subdivision, agency, commission, board or authority of any of the foregoing; or (iii) any quasi-governmental or private body exercising any regulatory, expropriation, land use or occupation, or taxing authority under or for the account of any of the foregoing; |
| (uuuu) | “IFRS” means International Financial Reporting Standards as issued by the International Accounting Standards Board that are applicable to public issuers or private companies in Canada; |
| (vvvv) | “including” means including, without limitation; |
| (wwww) | “Indemnified Persons” shall have the meaning ascribed thereto in Section 8.10(a); |
| (xxxx) | “Intellectual Property” means domestic and foreign: (i) patents, applications for patents and reissues, divisions, continuations, renewals, extensions and continuations-in-part of patents or patent applications; (ii) proprietary and nonpublic business information, including inventions (whether patentable or not), invention disclosures, improvements, discoveries, trade secrets, confidential information, know-how, methods, processes, designs, technology, technical data, schematics, formulae and customer lists, and documentation relating to any of the foregoing; (iii) copyrights, copyright registrations and applications for copyright registration; (iv) mask works, mask work registrations and applications for mask work registrations; (v) designs, design registrations, design registration applications and integrated circuit topographies; (vi) trade names, business names, corporate names, domain names, website names and world wide web addresses, common law trade-marks, trade-mark registrations, trade mark applications, trade dress and logos, and the goodwill associated with any of the foregoing; (vii) software; and (viii) any other intellectual property and industrial property.; |
| 13 |
| (yyyy) | “Interim Order” means the order made after application to the Court, containing declarations and directions in respect of the notice to be given and the conduct of the Anandia Meeting and the Arrangement, as such order may be amended, supplemented or varied by the Court (with the consent of the Parties, each acting reasonably); |
| (zzzz) | “Investment Canada Act” means the Investment Canada Act (Canada); |
| (aaaaa) | ................................................................................................................................... ........................ | |
| [Redacted - Defined term] |
| (bbbbb) | “Key Employees” mean those employees of Anandia set out in Schedule I; |
| (ccccc) | “KPMG” means KPMG LLP; |
| (ddddd) | “Laws” means all laws, by-laws, statutes, rules, regulations, orders, ordinances, protocols, codes, guidelines, instruments, policies, notices, directions and judgments or other requirements of any Governmental Entity, including Securities Laws and U.S. Securities Laws, and the term “applicable” with respect to such Laws and in a context that refers to one or more Persons, means such Laws as are applicable to such Person or its business, undertaking, assets, property or securities and emanate from a Person having jurisdiction over the Person or Persons or its or their business, undertaking, assets, property or securities; |
| (eeeee) | “Lease” as it relates to a Party, means any Contract pursuant to which that Party or any of its Subsidiaries is a tenant, licensee or a sub-tenant of any leasehold or sub-leasehold estate and other right to use or occupy any land, buildings, structures, improvements, fixtures or other interest in real property; |
| (fffff) | “marijuana” has the meaning given to the term “marihuana” in the ACMPR; |
| (ggggg) | “Material Adverse Effect” means, in respect of any Party, as applicable, any one or more changes, events, occurrences or states of fact, which, either individually or in the aggregate, are, or would reasonably be expected to be, material and adverse to the business, operations, results of operations, properties, assets, liabilities, or condition (financial or otherwise) of that Party and its Subsidiaries, on a consolidated basis, other than any change, effect, event, occurrence or state of facts: |
| 14 |
| (i) | relating to any change in global, national or regional political conditions (including the outbreak or escalation of war, acts of terrorism, strikes, lockouts, riots or outbreaks of illness) or the global economy or securities markets in general; |
| (ii) | affecting the cannabis industry or the price of cannabis in general; |
| (iii) | relating to any natural disaster; |
| (iv) | relating to any change in Law or any interpretation of Law by any Governmental Entity; |
| (v) | relating to any generally applicable change in applicable accounting principles, including IFRS; |
| (vi) | relating to a change in the market trading price of publicly traded securities of that Party, it being understood that the causes underlying such change may be taken into account in determining whether a Material Adverse Effect has occurred; |
| (vii) | relating to the failure in and of itself to meet any internal or published projections, forecasts or guidance or estimates of revenues, earnings or cash flows, it being understood that the causes underlying such failure may be taken into account in determining whether a Material Adverse Effect has occurred; or |
| (viii) | resulting from the announcement of this Agreement, the pendency of the transactions contemplated herein or compliance with the covenants herein or the satisfaction of the conditions herein; |
provided, however, that if a change, effect, event, occurrence or state of facts referred to in clauses (i) through to and including (v) has a materially disproportionate effect on that Party and its Subsidiaries, on a consolidated basis, relative to other comparable companies and entities operating in the Canadian cannabis industry, such effect may be taken into account in determining whether a Material Adverse Effect has occurred; and provided that references in this Agreement to dollar amounts are not intended to be, and shall not be deemed to be, interpretive of the amount used for the purpose of determining whether a Material Adverse Effect has occurred or whether a state of facts exists that has or could have a Material Adverse Effect;
| (hhhhh) | “Material Contract” means, in respect of a Party, any Contract to which such Party or any of its Subsidiaries is a party or its or their respective assets are bound which: |
| 15 |
| (i) | if terminated, breached or not renewed would or would reasonably be expected to have a Material Adverse Effect with respect to such Party; |
| (ii) | relates to the purchase of materials, supplies, equipment or services involving payments, individually or in the aggregate, in excess of (A) in the case of Aurora, $1,000,000, and (B) in the case of Anandia, $250,000, each over the life of such Contract; |
| (iii) | relates directly or indirectly (including any guarantees or similar obligations) to indebtedness (currently outstanding or which may become outstanding) for borrowed money in excess of (A) in the case of Aurora, $1,000,000, and (B) in the case of Anandia, $250,000, each in the aggregate; |
| (iv) | under which such Party or any of its Subsidiaries is obligated to make or expects to receive payments on an annual basis in excess of (A) in the case of Aurora, $1,000,000, and (B) in the case of Anandia, $250,000, or in excess of (C) in the case of Aurora, $2,500,000, and (D) in the case of Anandia, $250,000, over the remaining term; |
| (v) | limits or restricts in any material respect (A) the ability of such Party or any of its Subsidiaries to engage in any line of business or carry on business in any geographic area, (B) the ability of such Party or any of its Subsidiaries to solicit or hire any Person, or (C) the scope of Persons to whom such Party or any of its Subsidiaries may sell products or deliver services; |
| (vi) | contemplates an exclusive business relationship between a Party and any other Person; |
| (vii) | gives another Person the right to purchase or license an unlimited quantity or volume of, or enterprise-wide scope of use of, that Party’s products or services (or licenses to that Party’s products or services) for a fixed aggregate price at no additional charge, or under which that Party grants most-favored customer pricing, rights of first refusal or similar rights or terms to any Person; |
| (viii) | relates to any joint venture, strategic alliance, partnership or sharing of profits, revenue or proprietary information or similar arrangement that is material to such Party and its Subsidiaries, on a consolidated basis; or |
| (ix) | remains in full force and effect and has been filed with the Securities Authorities as a Material Contract in accordance with applicable Securities Laws; |
| (iiiii) | “Misrepresentation” means an untrue statement of a material fact or an omission to state a material fact that is required to be stated or that is necessary to make the statements contained therein not misleading in light of the circumstances in which they are made; |
| 16 |
| (jjjjj) | “Non-Arm’s Length Agreement” means any Contract between a Party or any of its Subsidiaries and any Person with whom such Party or any of its Subsidiaries is not dealing, at the applicable time, at arm’s length (within the meaning of the Tax Act), excluding, for greater certainty, any employment or similar service agreements entered into in the ordinary course; |
| (kkkkk) | .................................................. |
| (lllll) | ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................... |
| (mmmmm) | ............................................................... |
| (nnnnn) | ................................................................................................................................... ................................................................................................................................... ................................. |
| (ooooo) | ........................................................................................ |
| (ppppp) | ....................................................................................................... |
| (qqqqq) | ............................................................. |
| (rrrrr) | ......................................................... | |
| [Redacted - Related defined terms] |
| (sssss) | “Parties” shall have the meaning ascribed thereto on the first page of this Agreement; |
| (ttttt) | “Pending Anandia Acquisition Proposal” shall have the meaning ascribed thereto in Section 6.3(d); |
| (uuuuu) | “Person” means an individual, partnership, association, body corporate, a partnership or limited partnership, a trust, a trustee, executor, administrator or other legal personal representative, a syndicate, a joint venture, government (including any Governmental Entity) or any other entity, whether or not having legal status; |
| (vvvvv) | “Plan of Arrangement” means the plan of arrangement of Anandia under the BCBCA substantially in the form and content of Schedule A attached hereto and any amendment or variation thereto made in accordance with Section 5.1 of the Plan of Arrangement or Section 7.1 hereof or made at the direction of the Court in the Final Order with the prior written consent of the Parties, each acting reasonably; |
| (wwwww) | ................................................................................................................... | |
| [Redacted - Defined term] |
| 17 |
| (xxxxx) | “Replacement Securities” means one or more of, or all of, as applicable, the Consideration Shares and the Consideration Warrants; |
| (yyyyy) | “Representatives” has the meaning ascribed thereto in Section 6.1; |
| (zzzzz) | “Section 3(a)(10) Exemption” shall have the meaning ascribed thereto in Section 2.8; |
| (aaaaaa) | “Securities Authorities” means collectively, the British Columbia Securities Commission and the other applicable securities regulatory authorities in the provinces and territories of Canada; |
| (bbbbbb) | “Securities Laws” means the Securities Act (British Columbia) and any other applicable securities Laws of a province or territory of Canada; |
| (cccccc) | “Shareholder Holdcos” means Page Holdco and Coleman Holdco; |
| (dddddd) | “Statutory Plan” means a statutory benefit plan which Aurora, Aurora Group, Anandia or Anandia Subsidiaries are required to participate in or comply with, including the Canada Pension Plan and Quebec Pension Plan and plans administered pursuant to applicable health tax, workplace safety insurance and employment insurance legislation; |
| (eeeeee) | “Subsidiary” means, with respect to a Person, any entity, whether incorporated or unincorporated: (i) of which such Person or any other subsidiary of such Person is a general partner; or (ii) at least a majority of the securities or other interests of which having by their terms ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such Person and/or by any one or more of its subsidiaries; and shall include any body corporate, partnership, joint venture or other entity over which it exercises direction or control. For purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; |
| (ffffff) | “Tax” and “Taxes” means all taxes, assessments, charges, dues, duties, rates, fees, imposts, levies and similar charges of any kind lawfully levied, assessed or imposed by any Governmental Entity, including all income taxes (including any tax on or based upon net income, gross income, income as specially defined, earnings, profits or selected items of income, earnings or profits) and all capital taxes, gross receipts taxes, environmental taxes, sales taxes, use taxes, ad valorem taxes, value added taxes, transfer taxes (including, without limitation, taxes relating to the transfer of interests in real property or entities holding interests therein), franchise taxes, licence taxes, withholding taxes, payroll taxes, employment taxes, Canada Pension Plan or Quebec Pension Plan premiums, excise, severance, social security, workers’ compensation, employment insurance or compensation taxes or premiums, stamp taxes, occupation taxes, premium taxes, property taxes, windfall profits taxes, alternative or add-on minimum taxes, goods and services tax, harmonized sales tax, customs duties or other taxes, fees, imports, assessments or charges of any kind whatsoever, together with any interest and any penalties or additional amounts imposed by any Governmental Entity on such entity, and any interest, penalties, additional taxes and additions to tax imposed with respect to the foregoing; |
| 18 |
| (gggggg) | “Tax Act” means the Income Tax Act (Canada), as amended; |
| (hhhhhh) | “Tax Returns” means all returns, schedules, elections, declarations, reports, information returns, notices, forms, statements and other documents made, prepared or filed with any Governmental Entity or required to be made, prepared or filed with any Governmental Entity relating to Taxes; |
| (iiiiii) | “Transaction” means the transaction resulting from the completion of the Arrangement, including the acquisition of all of the Anandia Shares by Aurora and the completion of the other transactions contemplated by the Plan of Arrangement; |
| (jjjjjj) | “TSX” means the Toronto Stock Exchange; |
| (kkkkkk) | “U.S. Securities Laws” means the 1933 Act, the 1934 Act and any applicable U.S. state securities Laws; and |
| (llllll) | “VWAP” means the twenty (20) day volume weighted average trading price of the Aurora Shares determined by dividing the total value by total volume of Aurora Shares traded on the TSX for the twenty (20) trading immediately prior to June 11, 2018; |
Section 1.2 Interpretation Not Affected by Headings
The division of this Agreement into articles, sections, subsections, paragraphs and subparagraphs and the insertion of headings herein are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. The terms “this Agreement”, “hereof”, “herein”, “hereto”, “hereunder” and similar expressions refer to this Agreement and the schedules attached hereto and not to any particular article, section or other portion hereof and include any agreement, schedule or instrument supplementary or ancillary hereto or thereto.
Section 1.3 Number and Gender
In this Agreement, unless the context otherwise requires, words importing the singular only shall include the plural and vice versa, words importing the use of either gender shall include both genders and neuter.
Section 1.4 Date for Any Action
If the date on which any action is required to be taken hereunder by any party hereto is not a Business Day, such action shall be required to be taken on the next succeeding day that is a Business Day.
| 19 |
Section 1.5 Statutory References
Any reference in this Agreement to a statute includes all regulations and rules made thereunder, all amendments to such statute or regulation in force from time to time and any statute or regulation that supplements or supersedes such statute or regulation.
Section 1.6 Currency
Unless otherwise stated, all references in this Agreement to amounts of money are expressed in lawful money of Canada.
Section 1.7 Invalidity of Provisions
Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision or part thereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof. To the extent permitted by applicable Laws, the Parties hereto waive any provision of Law that renders any provision of this Agreement or any part thereof invalid or unenforceable in any respect. The Parties hereto will engage in good faith negotiations to replace any provision hereof or any part thereof that is declared invalid or unenforceable with a valid and enforceable provision or part thereof, the economic effect of which approximates as much as possible the invalid or unenforceable provision or part thereof that it replaces.
Section 1.8 Certain References and Phrases
References to any contract, license, lease, agreement, indenture, arrangement or commitment shall be a reference to such contract, license, lease, agreement, indenture, arrangement or commitment, as amended, modified or supplemented from time to time in accordance with the terms thereof. The words “the aggregate of”, “the total of”, “the sum of”, or a phrase of similar meaning means “the aggregate (or total or sum), without duplication, of.” The term “made available” means (i) copies of the subject materials were included in the Anandia Data Room or Aurora Data Room, as applicable, (ii) copies of the subject materials were provided to Anandia or Aurora, as applicable, or (iii) the subject material was listed in the Anandia Disclosure Letter or Aurora Disclosure Letter, as applicable, or referred to in the Anandia Data Room or Aurora Data Room, as applicable, and copies were provided to the applicable Party if requested.
Section 1.9 Accounting Matters
Unless otherwise stated, all accounting terms used in this Agreement shall have the meanings attributable thereto under IFRS and all determinations of an accounting nature required to be made hereunder shall be made in a manner consistent with IFRS.
Section 1.10 Knowledge
Where the phrases “to the knowledge of Aurora” or “to Aurora’s knowledge” or “to the knowledge of Anandia” or “to Anandia’s knowledge” are used in respect of Aurora, the Aurora Subsidiaries, Anandia or the Anandia Subsidiaries, as applicable, such phrase shall mean, in respect of each representation and warranty or other statement which is qualified by such phrase, that such representation and warranty or other statement is being made based upon: (a) in the case of Aurora and the Aurora Subsidiaries, the actual collective knowledge, after reasonable inquiry, of those officers of Aurora and the Aurora Subsidiaries set forth in Section 1.10 of the Aurora Disclosure Letter; and (b) in the case of Anandia and the Anandia Subsidiaries, the actual collective knowledge, after reasonable inquiry, of those officers of Anandia and the Anandia Subsidiaries set forth in Section 1.10 of the Anandia Disclosure Letter.
| 20 |
Section 1.11 Meaning of Certain Phrase
In this Agreement the phrase “in the ordinary course of business” or “ordinary course” and similar expressions shall, as applicable, mean and refer to the ordinary course of business conduct of a Party (or its Subsidiaries) in a commercially reasonable and business-like manner consistent with the past practices of such Party.
Section 1.12 Subsidiaries
To the extent any covenants or agreements contained herein relate, directly or indirectly, to a Subsidiary of Aurora or Anandia, each such provision shall be construed as a covenant by Aurora or Anandia, respectively, to cause (to the fullest extent to which it is legally capable) such Subsidiary to perform the required action.
Section 1.13 Schedules
The following schedules are attached to, and are deemed to be incorporated into and form part of, this Agreement:
| Schedule | Matter |
| Schedule A | Plan Of Arrangement |
| Schedule B | Form of Anandia Arrangement Resolution |
| Schedule C | Representations and Warranties of Anandia |
| Schedule D | Representations and Warranties of Aurora |
| Schedule E | List of Anandia Locked-Up Shareholders |
| Schedule F | Form of Consideration Warrant |
| Schedule G | Form of Coleman Escrow Agreement |
| Schedule H | Form of Page Escrow Agreement |
| Schedule I | Form of Coleman Acknowledgement and Indemnity Agreement |
| Schedule J | Form of Page Acknowledgement and Indemnity Agreement |
| Schedule K | Key Employees |
Article 2
THE ARRANGEMENT
Section 2.1 Arrangement
Anandia and Aurora agree that the Arrangement will be implemented in accordance with and subject to the terms and conditions contained in this Agreement and the Plan of Arrangement.
| 21 |
Section 2.2 Court Proceedings
Anandia shall apply to the Court for the Interim Order and Final Order as follows:
| (a) | As soon as is reasonably practicable after the date hereof, and in any case in sufficient time to permit the Anandia Meeting to be held by the date specified in Section 4.2(a)(v), Anandia shall make and diligently prosecute an application to the Court for the Interim Order which application shall be in form and substance satisfactory to Aurora, acting reasonably, and shall request that the Interim Order shall provide, among other things: |
| (i) | for the calling and holding of the Anandia Meeting for the purpose of considering and, if deemed advisable, approving the Arrangement; |
| (ii) | for the class of Persons to whom notice is to be provided in respect of the Arrangement and the Anandia Meeting and for the manner in which such notice is to be provided; |
| (iii) | what material regarding the Anandia Meeting is to be delivered to Anandia Securityholders and the method of delivery of such material; |
| (iv) | that the requisite approval for the Anandia Arrangement Resolution shall be (i) 66⅔% of the votes cast on the Anandia Arrangement Resolution by Anandia Securityholders present in person or represented by proxy and entitled to vote at the Anandia Meeting, voting together as a single class (with each Anandia Share entitling the holder thereof to one vote and each Anandia Option entitling the holder thereof to one vote, and (ii) additionally, 66⅔% of the votes cast on the Anandia Arrangement Resolution by Anandia Shareholders present in person or represented by proxy and entitled to vote at the Anandia Meeting, voting together as a single class; |
| (v) | that, except as modified by the Interim Order, in all other respects, the terms, conditions and restrictions of Anandia’s constating documents, including quorum requirements and other matters, shall apply in respect of the Anandia Meeting; |
| (vi) | for the grant of the Dissent Rights as set forth in the Plan of Arrangement; |
| (vii) | that the Anandia Meeting may be adjourned or postponed from time to time by management of Anandia, subject to the terms of this Agreement, without the need for additional approval of the Court; |
| (viii) | confirmation of the record date for the purposes of determining the Anandia Securityholders entitled to receive notice of and vote at the Anandia Meeting in accordance with the Interim Order; |
| (ix) | that the record date for Anandia Securityholders entitled to notice of and to vote at the Anandia Meeting shall not change in respect of any adjournment(s) or postponement(s) of the Anandia Meeting or any other change except as required by applicable Laws; |
| 22 |
| (x) | for the notice requirements with respect to the presentation of the application to the Court for the Final Order; and |
| (xi) | for such other matters as Aurora or Anandia may reasonably require, subject to obtaining the prior consent of the other Party, such consent not to be unreasonably withheld, delayed or conditioned. |
| (b) | Upon approval of the Anandia Arrangement Resolution at the Anandia Meeting, in accordance with the terms of the Interim Order, subject to the terms of this Agreement, Anandia shall forthwith make and diligently prosecute an application to the Court for the Final Order, which application shall be in form and substance satisfactory to Anandia and Aurora, each acting reasonably, and Anandia shall diligently take steps to ensure that the Final Order hearing is held as soon as reasonably practicable following the approval of the Anandia Arrangement Resolution at the Anandia Meeting. |
| (c) | In such notice of hearing in connection with the application for the Final Order, Anandia will inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the Replacement Securities pursuant to the Arrangement and that, in connection therewith, the Court will be asked to approve the fairness of the terms and conditions of the Arrangement to each Person to whom Replacement Securities will be issued. Each Person to whom Replacement Securities will be issued on completion of the Arrangement will be given adequate notice advising them of their rights to attend the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right. The Replacement Securities issued under the Arrangement will not be registered pursuant to the 1933 Act or any state “blue sky” or securities laws, and will be issued in reliance Section 3(a)(10) Exemption and available registration exemptions under applicable state “blue sky” or securities laws. |
| (d) | Anandia will provide legal counsel for Aurora with a reasonable opportunity to review and comment upon drafts of all material to be filed with the Court in connection with the Arrangement, and will give reasonable consideration to all such comments. Anandia will ensure that all material filed with the Court in connection with the Arrangement is consistent in all material respects with the terms of this Agreement and the Plan of Arrangement. |
Section 2.3 Completion of Arrangement Filings
Unless another time or date is agreed to in writing by the Parties, on the third Business Day following satisfaction or waiver of the conditions precedent in Section 5.1, Section 5.2 and Section 5.3 (excluding conditions that, by their terms, cannot be satisfied until the Effective Date, but subject to the satisfaction, or where not prohibited, the waiver by the applicable Party or Parties in whose favour the condition is, of those conditions as of the Effective Date), each of Aurora and Anandia shall execute and deliver such closing documents and instruments and such other documents as may be required to give effect to the Arrangement and Anandia shall make Arrangement Filings as required to give effect to the Arrangement pursuant to Part 9, Division 5 of the BCBCA, whereupon the transactions comprising the Arrangement shall occur and shall be deemed to have occurred in the order set out in the Plan of Arrangement without any further act or formality. Without limiting the foregoing, Aurora shall, prior to the filing by Anandia of the Arrangement Filings, provide the Depositary with an irrevocable direction for the issuance of the Consideration Shares and the Consideration Warrants (the terms and conditions of such direction to be satisfactory to Anandia and Aurora, acting reasonably).
| 23 |
Section 2.4 Effective Time
The Arrangement shall become effective at the Effective Time.
Section 2.5 Closing
Electronic copies of all executed closing documents and instruments and such other documents as may be required to give effect to the Arrangement shall be delivered in escrow, on terms satisfactory to Aurora and Anandia, each acting reasonably, to McMillan LLP and Blake, Cassels & Graydon LLP by 2:00 pm on the day prior to the Effective Date, or at such other place or time as the Parties may agree. The Closing of the Arrangement will take place, to the extent any physical delivery of documents is required by any Party, at the offices of McMillan LLP, Vancouver, British Columbia at the time all parties agree all conditions to the closing of the Arrangement have been satisfied or waived on the Effective Date or at such other place or time as the Parties may agree.
Section 2.6 Consultation
| (a) | Aurora and Anandia shall each publicly announce the transactions contemplated hereby promptly following the execution of this Agreement by the Parties and in any event prior to the next opening of trading on the TSX, by way of a joint press release to be approved by the Parties in advance, acting reasonably. Aurora and Anandia agree to cooperate in the preparation of presentations, if any, to the Anandia Shareholders and/or the Aurora Shareholders regarding the transactions contemplated by this Agreement; provided, however, that the foregoing shall be subject to each Party’s overriding obligation to make any disclosure or filing required under applicable Laws, and the Party making such disclosure shall use all commercially reasonable efforts to give prior oral or written notice to the other Party and reasonable opportunity to review or comment on the disclosure or filing, and if such prior notice is not possible, to give such notice immediately following the making of such disclosure or filing. |
| (b) | Aurora and Anandia will consult with the other in respect to issuing any press release or otherwise making any public statement with respect to this Agreement or the Arrangement, its business or operations and in making any filing with any Governmental Entity with respect to this Agreement or the Arrangement, including any Securities Authority, or stock exchange. Each of Aurora and Anandia shall use commercially reasonable efforts to enable the other of them to review and comment on all such press releases, public statements and filings prior to the release or filing, respectively, thereof (except where such material is confidential or competitively or commercially sensitive, in which case it will be provided (subject to applicable Laws) to the other Party’s outside counsel on an “external counsel” basis), provided, however, that the obligations herein will not prevent a Party from making, after consultation with the other Party, such disclosure as is required by applicable Laws or the rules and policies of any applicable stock exchange. Reasonable consideration shall be given to any comments made by the other Party and its counsel. |
| 24 |
Section 2.7 [Reserved]
Section 2.8 U.S. Securities Matters
The Parties intend that the issuance of the Replacement Securities under the Arrangement will be exempt from the registration requirements of the 1933 Act pursuant to Section 3(a)(10) thereof (the “Section 3(a)(10) Exemption”), will not be subject to registration or qualification under state “blue sky” or securities laws and will otherwise be in compliance with all U.S. Securities Laws. Each Party agrees to act in good faith, consistent with the intent of the Parties and the intended treatment of the Arrangement set forth in this Section 2.8. In order to ensure the availability of the Section 3(a)(10) Exemption, the Parties agree that the Arrangement will be carried out on the following basis:
| (a) | the Arrangement will be subject to the approval of the Court; |
| (b) | the Court will be advised as to the intention of the Parties to rely on the Section 3(a)(10) Exemption at the hearing of the application for the Final Order; |
| (c) | the Court will be asked to satisfy itself as to the fairness of the Arrangement; |
| (d) | the Final Order will expressly state that the Arrangement is approved by the Court as being fair to the Persons to whom the Replacement Securities will be issued; |
| (e) | the Parties will ensure that each Person entitled to receive Replacement Securities on completion of the Arrangement will be given adequate notice advising them of their right to attend the hearing of the Court to give approval of the Arrangement and providing them with sufficient information necessary for them to exercise that right; |
| (f) | each Person to whom Replacement Securities will be issued pursuant to the Arrangement will be advised that the Replacement Securities issued pursuant the Arrangement have not been registered under the 1933 Act and will be issued by Aurora in reliance upon the Section 3(a)(10) Exemption and will be subject to certain restrictions on resale under the securities laws of the United States, including, as applicable, Rule 144 under the 1933 Act with respect to securities issued to affiliates (as such term is defined under Rule 144) of Aurora; |
| (g) | the Interim Order approving the Anandia Meeting will specify that each Person to whom Replacement Securities will be issued pursuant to the Arrangement will have the right to appear before the Court at the hearing of the Court to give approval of the Arrangement so long as such Person files with the Court and delivers a Response to Petition in the manner provided in the Interim Order; and |
| (h) | the Final Order shall include a statement to substantially the following effect: |
“This Order will serve as the basis of a claim to an exemption, pursuant to Section 3(a)(10) of the United States Securities Act of 1933, as amended, from the registration requirements otherwise imposed by that act in respect of the distribution of securities of Aurora pursuant to the Plan of Arrangement.”
| 25 |
Section 2.9 Adjustment of Consideration
| (a) | Notwithstanding anything to the contrary contained in this Agreement, if, between the date of this Agreement and the Effective Time, the issued and outstanding Anandia Shares or the issued and outstanding Aurora Shares shall have been changed into a different number of shares or a different class by reason of any stock split, reverse stock split, stock dividend, reclassification, redenomination or the like, and for greater certainty, the distribution of units of Aurora’s subsidiary Australis Capital Inc. to Aurora shareholders will constitute such a change to the issued and outstanding Aurora Shares, then the Exchange Ratio and any other dependent items shall be appropriately adjusted to provide to Anandia and Aurora and their respective shareholders the same economic effect as contemplated by this Agreement and the Arrangement prior to such action and as so adjusted shall, from and after the date of such event, be the consideration to be paid per Anandia Share, the Exchange Ratio or other dependent item, subject to further adjustment in accordance with this sentence. |
| (b) | ............................................................................................................................................... ............................................................................................................................................... .......................................................................................................... ............................................................................................................................................... ................................................ |
| (i) | ................................................................................................................................... ................................................................................................................................... ........................................................ |
| (ii) | ................................................................................................................................... ................................................................................................................................... ................................................................... |
| (iii) | ................................................................................................................................... ................................................................................................................................... ........................................... | |
| [Redacted - Adjustment of consideration for working capital and debt] |
Section 2.10 Lock-Up and Shareholder Agreements
Aurora has delivered to Anandia true and complete copies of each duly executed Anandia Lock-Up Agreement. Aurora hereby agrees not to amend, modify or terminate any Anandia Lock-Up Agreement without Anandia’s prior written consent.
Section 2.11 Anandia Options
The Parties acknowledge and agree that all Anandia Options that are not exercised, whether conditionally or otherwise, prior to the Effective Time shall be treated in accordance with the provisions of the Plan of Arrangement, and Anandia shall take all such reasonable steps as may be necessary or desirable to give effect to the foregoing.
| 26 |
Section 2.12 Anandia Warrants
The Parties acknowledge and agree that all Anandia Warrants that are not exercised, whether conditionally or otherwise, prior to the Effective Time shall be treated in accordance with the provisions of the Plan of Arrangement, and Anandia shall take all such reasonable steps as may be necessary or desirable to give effect to the foregoing.
Section 2.13 Tax Matters
| (a) | Aurora, Anandia and the Depositary, as applicable, shall be entitled to deduct and withhold from any amount payable or any consideration payable or otherwise deliverable to any former holder of securities such amounts as Aurora, Anandia or the Depository determine should be deducted and withheld to meet any deduction, withholding or remittance requirements under any provision of applicable Laws in respect of taxes. To the extent that any amounts are so deducted and withheld, such amounts shall be treated for all purposes hereof as having been paid to the person to whom such amounts would otherwise have been paid, provided that such withheld amounts are actually remitted to the appropriate Governmental Entity. To satisfy the amount required to be deducted or withheld from any payment to any such securityholder of Anandia, Aurora, Anandia or the Depositary, as applicable, may, without limitation, sell or otherwise dispose of any portion of the Consideration Shares (including with respect to Page Holdco and Coleman Holdco) payable to such holder as they consider necessary to provide sufficient funds to enable Aurora, Anandia or the Depositary, as applicable, to comply with such deduction, withholding or remittance requirements. |
| (b) | The Parties acknowledge that no deduction will be claimed by Anandia or any Person not dealing at arm’s length with the Anandia in respect of any payment made to a holder of Anandia Options in respect of the Anandia Options who is a resident of Canada or who is employed in Canada (all within the meaning of the Tax Act), in computing the taxable income (for the purposes of the Tax Act) of Anandia or any Person not dealing at arm’s length with the Anandia and Aurora shall cause Anandia (or any successor corporation) to: (a) where applicable, make an election pursuant to subsection 110(1.1) of the Tax Act in respect of the cash payments made in exchange for the surrender of Anandia Options; and (b) provide evidence in writing of such election to holders of Anandia Options, it being understood that holders of Anandia Options will not be precluded from claiming any deductions otherwise available to such persons pursuant to the Tax Act in respect of the calculation of any benefit arising from the surrender of Anandia Options. |
Section 2.14 Tax Elections
An Eligible Holder who receives Aurora Shares under the Plan of Arrangement shall be entitled to make an income tax election pursuant to subsection 85(1) of the Tax Act, or subsection 85(2) of the Tax Act if such beneficial owner is a partnership, (and in each case, where applicable, the analogous provisions of provincial income tax law) with respect to the transfer of its Anandia Shares to Aurora and receipt of the Aurora Shares by providing two signed copies of the necessary prescribed election form(s) to KPMG within 90 days following the Effective Date, duly completed with the details of the number of Anandia Shares transferred and the applicable agreed amounts for the purposes of such elections. Thereafter, subject to the election forms being correct and complete and complying with the provisions of the Tax Act (and applicable provincial income tax law), the forms will be signed by Aurora and returned to such Eligible Holder within 90 days after the receipt thereof by KPMG for filing with the Canada Revenue Agency (or the applicable provincial taxing authority) by such Eligible Holder. Aurora will not be responsible for the proper completion of any election form and, except for Aurora’s obligation to return (within 90 days after the receipt thereof by KPMG duly completed election forms which are received by KPMG within 90 days of the Effective Date, Aurora will not be responsible in respect of the election form, including for any taxes, interest or penalties resulting from the failure by an Eligible Holder to properly complete or file the election forms in the form and manner and within the time prescribed by the Tax Act (or any applicable provincial legislation). In its sole discretion, Aurora may choose to sign and return an election form received by KPMG more than 90 days following the Effective Date, but Aurora will have no obligation to do so.
| 27 |
Article 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of Anandia
Except as disclosed in the Anandia Disclosure Letter (with the disclosure of any event, item or occurrence set forth in the Anandia Disclosure Letter qualifying or modifying the applicable section to which it corresponds and any other section to the extent that its relevance to such other section is reasonably apparent on its face) or in the Anandia Filings prior to the date hereof (excluding any disclosures set forth in any section of a document in the Anandia Filings entitled “Risk Factors” or “Forward-Looking Statements” or any other disclosures included in such filings to the extent that they are forward-looking in nature), Anandia represents and warrants to and in favour of Aurora as set forth in Schedule C and acknowledges that Aurora is relying upon such representations and warranties in entering into this Agreement.
Section 3.2 Representations and Warranties of Aurora
Except as disclosed in the Aurora Disclosure Letter (with the disclosure of any event, item or occurrence set forth in the Aurora Disclosure Letter qualifying or modifying the applicable section to which it corresponds and any other section to the extent that its relevance to such other section is reasonably apparent on its face) or in the Aurora Filings prior to the date hereof (excluding any disclosures set forth in any section of a document in the Aurora Filings entitled “Risk Factors” or “Forward-Looking Statements” or any other disclosures included in such filings to the extent that they are forward-looking in nature), Aurora represents and warrants to and in favour of Anandia as set forth in Schedule D and acknowledges that Anandia is relying upon such representations and warranties in entering into this Agreement.
Section 3.3 Anandia Disclosure Letter
The Parties acknowledge and agree that Anandia has delivered to Aurora the Anandia Disclosure Letter, which has been accepted by Aurora and which sets forth modifications to those representations and warranties made by Anandia in Section 3.1 hereof.
| 28 |
Section 3.4 Aurora Disclosure Letter
The Parties acknowledge and agree that Aurora has delivered to Anandia the Aurora Disclosure Letter, which has been accepted by Anandia and which sets forth modifications to those representations and warranties made by Aurora in Section 3.2 hereof.
Section 3.5 Survival of Representations and Warranties
The representations and warranties contained in this Agreement shall survive the execution and delivery of this Agreement and shall expire and be terminated and extinguished on the earlier of the Effective Date and the date on which this Agreement is terminated.
Article 4
COVENANTS
Section 4.1 Covenants of Aurora
Subject to the other terms and conditions of this Agreement, Aurora hereby covenants and agrees with Anandia as follows:
| (a) | Information for Anandia Circular. In a timely and expeditious manner, Aurora shall provide to Anandia all information as may be reasonably requested by Anandia or as required by the Interim Order or applicable Laws with respect to Aurora and the Aurora Subsidiaries and their respective businesses and properties for inclusion in the Anandia Circular or in any amendment or supplement to the Anandia Circular required to be disclosed in the Anandia Circular (including any pro forma financial statements) and not containing any Misrepresentation with respect thereto. Aurora shall use commercially reasonable efforts to obtain consents of auditors and other advisors to use financial, technical or expert information in the Anandia Circular and fully cooperate with Anandia in the preparation of the Anandia Circular. Aurora hereby indemnifies and saves harmless Anandia and its directors, officers, employees, agents and representatives from and against any and all liabilities, claims, demands, losses, costs, damages and reasonable expenses to which Anandia or any of its directors, officers, employees, agents or representatives may be subject or may suffer as a result of, or arising from, any Misrepresentation contained in any information included in the Anandia Circular that was provided by Aurora or any of its directors, officers, employees, agents or representatives specifically for inclusion therein, including as a result of any order made, or any inquiry, investigation or proceeding instituted by any Securities Authorities or other Governmental Entity based on such a Misrepresentation. |
| (b) | Copy of Documents. Except as otherwise provided herein, Aurora shall furnish promptly to Anandia a copy of any filings made under any applicable Laws and any dealings or communications with any Governmental Entity, Securities Authority or stock exchange in connection with, or in any way affecting, the Transaction (except where such material is confidential or competitively or commercially sensitive, in which case it will be provided (subject to applicable Laws) to the other Party’s outside counsel on an “external counsel” basis). Aurora shall, and shall cause the Aurora Group to, give Anandia and its representatives during normal business hours reasonable access to their premises, assets, books, records, contracts and personnel and furnish Anandia with all such other information as Anandia may reasonably request. No environmental assessment or other intrusive analysis will be conducted by Anandia without the prior written consent of Aurora. |
| 29 |
| (c) | Usual Business. Other than in contemplation of, or as required to give effect to the Transaction, Aurora shall, and shall cause the Aurora Subsidiaries to, until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, use commercially reasonable efforts to maintain and preserve Aurora’s and its Aurora Subsidiaries’ business organization, properties, employees, goodwill and business relationships with customers, suppliers, partners and other Persons with which Aurora or any of Aurora Subsidiaries have material business relations. |
| (d) | Insurance. Aurora shall use commercially reasonable efforts, and shall cause the Aurora Group to use commercially reasonable efforts, to cause their respective current insurance (and reinsurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of internationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect. |
| (e) | Certain Actions. Notwithstanding any other provision of Section 4.1(c), Aurora shall not take any action, or refrain from taking any commercially reasonable action, or permit any action to be taken or not taken, that would reasonably be expected to materially impede the completion of the Transaction. |
| (f) | Material Adverse Effect. Aurora will promptly notify Anandia of: (i) any Material Adverse Effect with respect to Aurora; (ii) any notice or other written communication from any Person alleging that the consent of such Person (or another Person) is required in connection with the Transaction, or (iii) any material filings, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving Aurora or any of its Subsidiaries that relate to this Agreement or the Transaction. |
| (g) | No Compromise. Aurora shall not, and shall cause the Aurora Group not to, settle or compromise any claim brought by any present, former or purported holder of any securities of Aurora in connection with the Transaction prior to the Effective Time without the prior written consent of Anandia, which consent shall not be unreasonably withheld, conditioned or delayed. |
| (h) | Satisfaction of Conditions. Except as expressly contemplated in this Agreement and subject to the specific obligations contained in Section 4.3, Aurora shall use commercially reasonable efforts to satisfy, or cause to be satisfied, all of the conditions precedent to its obligations to the extent that the same is within its control and to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Transaction, including using commercially reasonable efforts to: |
| 30 |
| (i) | obtain all consents, approvals and authorizations as are required to be obtained by Aurora or any of the Aurora Group under any applicable Laws or from any Governmental Entity that would, if not obtained, materially impede the completion of the Transaction or have a Material Adverse Effect with respect to Aurora; |
| (ii) | effect all necessary registrations, filings and submissions of information required by Governmental Entities to be effected by it in connection with the Transaction and participate, and appear in any proceedings of, any Party hereto before any Governmental Entity; |
| (iii) | oppose, lift or rescind any injunction or restraining order or other order or action challenging or affecting this Agreement or the Transaction or seeking to stop, or otherwise adversely affecting the ability of the Parties hereto to consummate, the transactions contemplated hereby; |
| (iv) | obtain all third party consents, waivers and approvals and give any notices required under any of the Material Contracts to which Aurora or any of the Aurora Group is a party or its or their respective assets are bound; |
| (v) | cause the Aurora Shares to be issued pursuant to the Arrangement to be listed on the TSX and the Aurora Shares issuable pursuant to exercise or conversion of any of the Replacement Securities to be approved for listing on the TSX upon issuance; |
| (vi) | at or prior to the Effective Time, allot and reserve for issuance a sufficient number of Aurora Shares to meet the obligations of Aurora under the Plan of Arrangement; |
| (vii) | fulfill all conditions and satisfy all provisions of this Agreement and the Plan of Arrangement required to be fulfilled or satisfied by Aurora; |
| (viii) | acting reasonably and in good faith, negotiate and document final versions of all agreements, certificates or instruments contemplated by this Agreement on the terms and conditions set forth in this Agreement; and |
| (ix) | cooperate with Anandia in connection with the performance by it of its obligations hereunder, provided however that the foregoing shall not be construed to obligate Aurora to pay or cause to be paid any monies to cause such performance to occur. |
| (i) | Keep Reasonably Informed. Subject to applicable Laws, Aurora shall use commercially reasonable efforts to conduct itself so as to keep Anandia reasonably informed as to the material decisions or actions required or required to be made with respect to the operation of its business. |
| (j) | Cooperation. Subject to the specific obligations contained in Section 4.3, Aurora shall make, or cooperate as necessary in the making of, all necessary filings and applications under all applicable Laws required in connection with the Transaction and take all reasonable action necessary to be in compliance with such Laws. |
| 31 |
| (k) | Taxes. Aurora shall, and shall cause the Aurora Group to: |
| (i) | duly and timely file all Tax Returns required to be filed by it on or after the date hereof and all such Tax Returns will be true, complete and correct in all material respects; |
| (ii) | in a timely manner withhold, collect, remit to the appropriate Governmental Entity and pay all Taxes which are required by applicable Laws to be withheld, collected, remitted or paid by it to the extent due and payable; |
| (iii) | not make, amend or rescind any material express or deemed election relating to Taxes, except: (a) as contemplated in this Agreement, or (b) with the consent of Anandia, such consent not to be unreasonably withheld, conditioned or delayed; |
| (iv) | not make a request for a Tax ruling or enter into any agreement with any Governmental Entity or consent to any extension or waiver of any limitation period with respect to Taxes, except with the consent of Anandia, such consent not to be unreasonably withheld, conditioned or delayed; |
| (v) | not amend any Tax Return, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, except with the consent of Anandia, such consent not to be unreasonably withheld conditioned or delayed; and |
| (vi) | not change any of its methods of accounting for income Tax purposes from those employed in the preparation of its income Tax Returns for the taxation year ended December 31, 2016, except as may be required by applicable Laws or IFRS. |
Section 4.2 Covenants of Anandia
Subject to the other terms and conditions of this Agreement, Anandia hereby covenants and agrees with Aurora as follows:
| (a) | Anandia Meeting. In a timely and expeditious manner, Anandia shall: |
| (i) | set the record date for Anandia Securityholders entitled to vote at the Anandia Meeting as promptly as practicable and consult with Aurora to set such record date; |
| (ii) | subject to compliance by Aurora with its obligations under Section 4.1(a) and subject to Section 4.2(d), prepare the Anandia Circular in the form and containing the information required by all applicable Laws, including all applicable corporate and securities Laws and requirements, and not containing any Misrepresentation with respect thereto, other than with respect to any information relating to and provided by Aurora, provide Aurora with a reasonable opportunity to comment thereon, reasonably consider all comments provided thereon by Aurora, and subsequently deliver the Anandia Circular so as to permit the Anandia Meeting to be held by the date specified in Section 4.2(a)(v) to all Anandia Securityholders to whom the Anandia Circular is required to be delivered; |
| 32 |
| (iii) | include in the Anandia Circular information in sufficient detail to permit the Anandia Securityholders to form a reasoned judgment concerning the matters to be placed before them at the Anandia Meeting, including without limiting the generality of the foregoing: (A) a copy of each Anandia Fairness Opinion; (B) a statement that the Anandia Board has received the Anandia Fairness Opinions and that the Anandia Board has unanimously, after receiving legal and financial advice, approved the Arrangement Agreement; and (C) the Anandia Board Recommendation; |
| (iv) | take all commercially reasonable lawful action to solicit proxies in favour of the Anandia Arrangement Resolution, including, at Anandia’s discretion or if so requested by Aurora, retaining a proxy solicitation agent to solicit in favour of the Anandia Arrangement Resolution (and provide Aurora with copies of or access to information regarding the Anandia Meeting generated by any such proxy solicitation agent, as reasonably requested from time to time by Aurora); |
| (v) | subject to compliance by Aurora with its obligations under Section 4.1(a), convene and conduct the Anandia Meeting in accordance with Anandia’s constating documents, applicable Laws and the Interim Order as soon as reasonably practicable and in any event no later than by August 5, 2018; |
| (vi) | coordinate with Aurora to set the date of the Anandia Meeting; |
| (vii) | provide notice to Aurora of the Anandia Meeting and allow representatives of Aurora to attend the Anandia Meeting; |
| (viii) | at the reasonable request of Aurora from time to time, provide Aurora with a list (in both written and electronic form) of the registered Anandia Shareholders, together with their addresses and respective holdings of Anandia Shares, with a list of the names and addresses and holdings of all Persons having rights issued by Anandia to acquire Anandia Shares (including holders of Anandia Options and Anandia Warrants) and a list of non-objecting beneficial owners of Anandia Shares, together with their addresses and respective holdings of Anandia Shares, as well as updates thereto as Aurora may reasonably request from time to time; |
| (ix) | provide Aurora with information on the proxies received and the Anandia Securityholders votes on the Anandia Arrangement Resolution on a daily basis commencing at least ten Business Days before the date of the Anandia Meeting to the extent that such information is available to Anandia; |
| 33 |
| (x) | promptly advise Aurora of any material communication (written or oral) from or claims brought by (or threatened to be brought by) any Person in opposition to the Arrangement or the Anandia Arrangement Resolution; and |
| (xi) | except as required by applicable Law, or with the prior written consent of the Aurora, which shall not be unreasonably withheld or delayed, not consider any other matter of business at the Anandia Meeting; provided that, if Anandia is required by applicable Law, or permitted by Aurora in writing, to transact any other item of business at the Anandia Meeting, Anandia shall cause the Anandia Arrangement Resolution to be considered and voted upon before any other item of business to be transacted at the Anandia Meeting. |
| (b) | Amendments to Anandia Circular. In a timely and expeditious manner, subject to compliance by Aurora with its obligations under Section 4.1(a) and subject to providing Aurora with a reasonable opportunity to comment thereon, Anandia shall prepare and file any mutually agreed (or as otherwise required by applicable Laws) amendments or supplements to the Anandia Circular (which amendments or supplements shall be in a form satisfactory to the Parties, acting reasonably), complying in all material respects with all applicable Laws on the date of the filing thereof. |
| (c) | Notification of Misrepresentation. Anandia shall promptly notify Aurora if it becomes aware that the Anandia Circular contains a Misrepresentation, or otherwise requires an amendment or supplement. |
| (d) | Adjournment. Subject to Section 6.2(f) and Section 5.4, Anandia shall not adjourn, postpone or cancel the Anandia Meeting (or propose to do so), except: (i) as required if there is an insufficient number of Anandia Shares present or represented by proxy at the Anandia Meeting to constitute a quorum (in which case, the Anandia Meeting shall be adjourned and not cancelled); (ii) if otherwise agreed with Aurora; or (iii) if required by the Court. For greater certainty, no Anandia Change in Recommendation shall relieve Anandia from its obligation to proceed to call and hold the Anandia Meeting and to hold the vote on the Anandia Arrangement Resolution (provided that, except as required under applicable Laws, Anandia shall be relieved from its obligations to actively solicit proxies in favour of the Arrangement in such circumstances), except in circumstances where this Agreement is terminated in accordance with the terms hereof. |
| (e) | Opportunity to Review Anandia Circular. Aurora and its legal counsel shall be given a reasonable opportunity to review and comment on the Anandia Circular and related documents, prior to the Anandia Circular being printed and delivered to Anandia Securityholders, and reasonable consideration shall be given to any comments made by Aurora and its counsel, provided that all information relating to Aurora and the Aurora Subsidiaries included in the Anandia Circular shall be in form and content satisfactory to Aurora, acting reasonably. |
| (f) | Dissent Rights. Anandia shall promptly provide Aurora with a copy of any purported exercise of the Dissent Rights in respect of the Anandia Arrangement Resolution, and written communications with any Anandia Shareholder purportedly exercising such Dissent Rights, and shall not settle or compromise any Dissent Rights or any action brought by any present, former or purported holder of any of its securities in connection with the Transaction, including the Arrangement, without the prior written consent of Aurora, which consent shall not be unreasonably withheld, conditioned or delayed. |
| 34 |
| (g) | Copy of Documents. Except as otherwise provided herein, Anandia shall furnish promptly to Aurora a copy of any filing made under any applicable Laws and any dealings or communications with any Governmental Entity, Securities Authority or stock exchange in connection with, or in any way affecting, the Transaction (except where such material is confidential or competitively or commercially sensitive, in which case it will be provided (subject to applicable Laws) to the other Party’s outside counsel on an “external counsel” basis). Anandia shall, and shall cause the Anandia Subsidiaries to, give Aurora and its representatives during normal business hours reasonable access to their premises, assets, books, records, contracts and personnel and furnish Aurora with all such other information as Aurora may reasonably request. No environmental assessment or other intrusive analysis will be conducted by Aurora without the prior written consent of Anandia. |
| (h) | Usual Business. Other than in contemplation of, or as required to give effect to the Transaction, Anandia shall, and shall cause the Anandia Subsidiaries to, until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, use commercially reasonable efforts to maintain and preserve Anandia’s and Anandia Subsidiaries’ business organization, properties, employees, goodwill and business relationships with customers, suppliers, partners and other Persons with which Anandia or any of Anandia Subsidiaries have material business relations, and shall not, and shall cause its Subsidiaries not to, except: (A) with the prior written consent of Aurora, such consent not to be unreasonably withheld, delayed or conditioned; (B) as required or permitted by this Agreement; (C) as required by Law; or (D) as contemplated by the Anandia Disclosure Letter, directly or indirectly: |
| (i) | split, combine, reclassify or amend the terms of the Anandia Shares; |
| (ii) | amend or propose to amend the articles, notice of articles, by-laws or other constating documents or their equivalent of Anandia or any of the Anandia Subsidiaries; |
| (iii) | reduce its stated capital or declare, set aside or pay any dividend (whether in cash, securities or property or any combination thereof) in respect of any Anandia Shares; |
| (iv) | redeem, purchase or otherwise acquire or offer to redeem, purchase or otherwise acquire any Anandia Shares, other than redemptions or repurchases of Anandia Shares in connection with the administration of equity or employee incentive plans; |
| (v) | issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Anandia Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Anandia or any of the Anandia Subsidiaries, other than the issue of Anandia Shares in accordance with the Anandia Options and Anandia Warrants issued and outstanding in accordance with their terms or in accordance with the Transaction; |
| 35 |
| (vi) | other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons) or in the ordinary course of business, sell, lease, encumber or otherwise dispose of, or permit any of the Anandia Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets having a cost, on a per transaction or series of related transactions basis, in excess of $50,000 and subject to a maximum of $250,000 for all such transactions;, |
| (vii) | adopt, or permit any of the Anandia Subsidiaries to adopt, any resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation; |
| (viii) | acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, in one transaction or in a series of related transactions, assets, securities, properties, interests or businesses having a cost, on a per transaction or series of related transactions basis, in excess of $250,000 and subject to a maximum of $1,000,000 for all such transactions; |
| (ix) | incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other Person, or make any loans or advances, in each case in excess of $250,000 on a per transaction or a series of transaction related basis, except intercompany guarantees and inter-company loans and advances; |
| (x) | enter into, or cause any Anandia Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities that has not been approved by the Anandia Board as of the date of this Agreement; provided that Anandia may enter into a contract for architectural services with respect to the construction of Anandia’s planned Comox facility with Local Practice Architecture + Design Ltd. with Aurora’s consent, not to be unreasonably withheld; |
| (xi) | commence, waive, release, assign, settle or compromise any litigation, proceedings or governmental investigations in excess of an amount of $250,000 in the aggregate or which would reasonably be expected to impede, prevent or delay the consummation of the Transaction; |
| (xii) | except in connection with the repayment of the existing loan to Anandia by Genome British Columbia, cancel, waive, release, assign, settle or compromise any material claims or rights; |
| 36 |
| (xiii) | abandon or fail to diligently pursue any application for any material licenses, permits, authorizations or registrations; |
| (xiv) | enter into any interest rate, currency or commodity swaps, hedges, caps, collars, forward sales or other similar financial instruments other than in the ordinary course of business and not for speculative purposes; |
| (xv) | enter into or amend any financial or other material agreements with its principal shareholders or their respective affiliates; |
| (xvi) | except in accordance with the terms of the Employee Plans or Contracts of Anandia in effect on the date of this Agreement or in amounts that total no greater than $100,000 in aggregate annual expenditures, (i) create, enter into or increase any severance, change of control or termination pay to (or amend any existing arrangement in respect thereof with) any employee, director or officer of Anandia or any of its Subsidiaries; (ii) change the benefits payable under any employment agreements with any employee, director or executive officer of Anandia or any of its Subsidiaries; (iii) enter into any employment, deferred compensation or other similar agreement (or amend any such existing agreement) with any director or officer of Anandia or any of its Subsidiaries; or (iv) change compensation, bonus levels or other benefits payable to any employee, director or officer of Anandia or any of its Subsidiaries; |
| (xvii) | adopt or amend or make any material contribution to the Anandia Stock Option Plan or any other bonus, profit sharing, retention, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with applicable Laws or the terms of such plans, programs, arrangements or agreements where the failure to so comply would result in a material breach of such plans, programs, arrangements or agreements; |
| (xviii) | except as required by IFRS or any other generally accepted accounting principle to which any of the Anandia Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Anandia or any of the Anandia Subsidiaries; or |
| (xix) | announce an intention, enter into any agreement or otherwise make a commitment to do any of the things prohibited by any of the foregoing subsections. |
| (i) | Insurance. Anandia shall use commercially reasonable efforts, and shall cause the Anandia Subsidiaries to use commercially reasonable efforts, to cause their respective current insurance (and reinsurance) policies not to be cancelled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and reinsurance companies of internationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect. |
| 37 |
| (j) | Certain Actions. Notwithstanding any other provision of Section 4.2(h), Anandia shall not take any action, or refrain from taking any commercially reasonable action, or permit any action to be taken or not taken, that would reasonably be expected to materially impede the completion of the Arrangement. |
| (k) | Material Adverse Effect. Anandia will promptly notify Aurora of: (i) any Material Adverse Effect with respect to Anandia; (ii) any notice or other written communication from any Person alleging that the consent of such Person (or another Person) is required in connection with the Transaction, or (iii) any material filings, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving Anandia or any of its Subsidiaries that relate to this Agreement or the Arrangement. |
| (l) | No Compromise. Anandia shall not, and shall cause the Anandia Subsidiaries not to, settle or compromise any claim brought by any present, former or purported holder of any securities of Anandia in connection with the Transaction prior to the Effective Time without the prior written consent of Anandia, which consent shall not be unreasonably withheld, conditioned or delayed. |
| (m) | Satisfaction of Conditions. Except as expressly contemplated in this Agreement and subject to the specific obligations contained in Section 4.3, Anandia shall use commercially reasonable efforts to satisfy, or cause to be satisfied, all of the conditions precedent to its obligations to the extent that the same is within its control and to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under all applicable Laws to complete the Transaction, including using commercially reasonable efforts to: |
| (i) | obtain the approval of the Anandia Securityholders with respect to the Anandia Arrangement Resolution in accordance with the provisions of the BCBCA, the Interim Order and the requirements of any applicable regulatory authority; |
| (ii) | obtain all consents, approvals and authorizations as are required to be obtained by Anandia or any of the Anandia Subsidiaries under any applicable Laws or from any Governmental Entity that would, if not obtained, materially impede the completion of the Transaction or have a Material Adverse Effect with respect to Anandia; |
| (iii) | effect all necessary registrations, filings and submissions of information required by Governmental Entities to be effected by it in connection with the Transaction and participate, and appear in any proceedings of, any Party hereto before any Governmental Entity; |
| (iv) | oppose, lift or rescind any injunction or restraining order or other order or action challenging or affecting this Agreement or the Transaction or seeking to stop, or otherwise adversely affecting the ability of the Parties hereto to consummate, the transactions contemplated hereby; |
| (v) | cause the issuance of the Replacement Securities pursuant to the Arrangement to be exempt from the registration requirements of (A) the 1933 Act under the Section 3(a)(10) Exemption, and (B) all applicable state “blue sky” or securities laws under such exemptions as may be available; |
| 38 |
| (vi) | obtain all third party consents, waivers and approvals and give any notices required under any of the Material Contracts to which Anandia or any of the Anandia Subsidiaries is a party or its or their respective assets are bound; |
| (vii) | assist Aurora as reasonably required to enable Aurora to cause the Aurora Shares to be issued pursuant to the Arrangement to be listed on the TSX; |
| (viii) | fulfill all conditions and satisfy all provisions of this Agreement and the Plan of Arrangement required to be fulfilled or satisfied by Anandia; |
| (ix) | acting reasonably and in good faith, negotiate and document final versions of all agreements, certificates or instruments contemplated by this Agreement on the terms and conditions set forth in this Agreement; and |
| (x) | cooperate with Aurora in connection with the performance by Aurora of its obligations hereunder, provided however that the foregoing shall not be construed to obligate Anandia to pay or cause to be paid any monies to cause such performance to occur. |
| (n) | Keep Reasonably Informed. Subject to applicable Laws, Anandia shall use commercially reasonable efforts to conduct itself so as to keep Aurora reasonably informed as to the material decisions or actions required or required to be made with respect to the operation of its business. |
| (o) | Cooperation. Subject to the specific obligations contained in Section 4.3, Anandia shall make, or cooperate as necessary in the making of, all necessary filings and applications under all applicable Laws required in connection with the Transaction and take all reasonable action necessary to be in compliance with such Laws. |
| (p) | Taxes. Except as disclosed in the Anandia Disclosure Letter, Anandia shall, and shall cause Anandia Subsidiaries to: |
| (i) | duly and timely file all Tax Returns required to be filed by it on or after the date hereof and all such Tax Returns will be true, complete and correct in all material respects; |
| (ii) | in a timely manner withhold, collect, remit to the appropriate Governmental Entity and pay all Taxes which are required by applicable Laws to be withheld, collected, remitted or paid by it to the extent due and payable; |
| (iii) | not make, amend or rescind any material express or deemed election relating to Taxes, except: (a) as contemplated in this Agreement, or (b) with the consent of Aurora, such consent not to be unreasonably withheld, conditioned or delayed; |
| (iv) | not make a request for a Tax ruling or enter into any agreement with any Governmental Entity or consent to any extension or waiver of any limitation period with respect to Taxes, except with the consent of Aurora, such consent not to be unreasonably withheld, conditioned or delayed; |
| 39 |
| (v) | not amend any Tax Return, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, except with the consent of Aurora, such consent not to be unreasonably withheld, conditioned or delayed; and |
| (vi) | not change any of its methods of accounting for income Tax purposes from those employed in the preparation of its income Tax Returns for the taxation year ended December 31, 2017, except as may be required by applicable Laws or IFRS. |
Section 4.3 Regulatory Approvals
| (a) | As soon as practicable, Aurora shall apply to list the Aurora Shares issuable or to be made issuable pursuant to the Arrangement (including all Aurora Shares issuable upon the exercise or vesting of Replacement Securities) on the TSX, and shall use its commercially reasonable efforts to obtain approval, subject to customary conditions, for the listing of such Aurora Shares on the TSX. |
| (b) | Aurora and Anandia each shall promptly: |
| (i) | supply the other with any information which may be required in order to effectuate the filings, notifications or submissions (except where such material is confidential or competitively or commercially sensitive, in which case it will be provided (subject to applicable Laws) to the other Party’s outside counsel on an “external counsel” basis) required by Section 4.3(a); |
| (ii) | supply any additional information which reasonably may be required by any Governmental Entity of any other applicable jurisdiction; |
| (iii) | subject to applicable Law, permit the other to review in advance and provide comments on any drafts of any proposed filing, application, submission or other written communication to any Governmental Entity and provide the other with a copy of any such filing, application, submission or written communication, or written summary of any oral communication to any Governmental Entity (except where such material is confidential or competitively or commercially sensitive, in which case it will be provided (subject to applicable Laws) to the other Party’s outside counsel on an “external counsel” basis); and |
| (iv) | promptly notify the other Party of any written or oral communication received from any Governmental Entity and subject to applicable Law, provide the other Party with a copy of any written communication or a written summary of any oral communication. |
| (c) | Neither Party shall attend any meetings, whether in Person or by telephone, with any Governmental Entity in connection with the Transaction, unless it provides the other Party with a reasonable opportunity to attend such meetings (provided that (subject to applicable laws) where confidential or competitively or commercially sensitive information is discussed, only the other Party’s outside counsel shall be permitted to attend the relevant portion of the meeting on an “external counsel” basis). |
| 40 |
Section 4.4 Indemnification and Insurance
| (a) | Prior to the Effective Date, Anandia shall purchase customary “tail” policies of directors’ and officers’ liability insurance providing protection no less favourable in the aggregate than the protection provided by the policies maintained by Anandia which are in effect immediately prior to the Effective Date and providing protection in respect of claims arising from facts or events which occurred on or prior to the Effective Date and Aurora will, or will cause Anandia to maintain such tail policies in effect without any reduction in scope or coverage for six years from the Effective Date; provided that Aurora will not be required to pay any amounts in respect of such coverage prior to the Effective Time and provided further that the cost of such policies shall not exceed 250% of Anandia’s current annual aggregate premium for policies currently maintained by Anandia. It is understood and agreed that in the event such coverage cannot be obtained for such amount or less, then Anandia shall obtain the maximum amount of coverage as may be obtained for such amount. |
| (b) | Aurora and Anandia agree that all rights to indemnification or exculpation now existing in favour of current and former directors or officers of Aurora and the Aurora Subsidiaries and of Anandia and the Anandia Subsidiaries as provided in the articles, notice of articles and by-laws thereof, or in any agreement, shall survive the completion of the Arrangement and shall continue in full force and effect for a period of not less than six years from the Effective Date. |
| (c) | Aurora shall cause Anandia to ensure that the articles and/or by-laws of Anandia and its Subsidiaries (or their respective successors) shall contain the provisions with respect to indemnification set forth in Anandia’s or the applicable Anandia Subsidiary’s current articles and/or by-laws, which provisions shall not, except to the extent required by applicable Laws, be amended, repealed or otherwise modified for a period of six years from the Effective Date in any manner that would adversely affect any rights of indemnification of individuals who, immediately prior to the Effective Date, were directors or officers of Anandia or any of the Anandia Subsidiaries. |
| (d) | If Anandia or any of its Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not a continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, Aurora shall ensure that any such successor or assign (including, as applicable, any acquirer of substantially all of the properties and assets of Anandia of the Anandia Subsidiaries) assumes all of the obligations set forth in this Section 4.4. |
| (e) | Aurora and Anandia shall act as agent and trustee of the benefits of the foregoing for such directors and officers for the purpose of this Section 4.4 shall survive the execution and delivery of this Agreement and the completion of the Arrangement and shall be enforceable against Aurora and Anandia by the Persons described in Section 4.4(a) and Section 4.4(b) hereof. |
| 41 |
Section 4.5 Employment Matters
From and after the Effective Time, Aurora shall honour and comply with, or cause Anandia or any successor to Anandia to honour and comply with, all of the obligations to the employees of Anandia and its Subsidiaries under the employment and other Contracts and benefit plans with current and former employees of Anandia, including, without limitation, by paying to the individuals party to such agreements, in each case, any applicable amount owing; provided that no provision in this Section 4.5 shall give any employee any right to continued employment or impair in any way the right of Anandia to terminate the employment of any employee in accordance with any Contract as may be applicable.
Section 4.6 Confidentiality Agreement
Each of the Parties acknowledges that the Confidentiality Agreement continues to apply and that any information provided under this Agreement by one Party to the other Party that is non-public and/or proprietary in nature shall be subject to the terms of the Confidentiality Agreement; provided that to the extent any provision of the Confidentiality Agreement conflicts with the terms of this Agreement, the terms of this Agreement shall prevail. If this Agreement is terminated in accordance with its terms, the obligations under the Confidentiality Agreement shall survive the termination of this Agreement.
Article 5
CONDITIONS
Section 5.1 Mutual Conditions
The respective obligations of Anandia and Aurora to complete the Arrangement are subject to the fulfillment of the following conditions at or before the Completion Deadline or such other time as is specified below:
| (a) | the Interim Order shall have been granted on terms consistent with this Agreement and in form and substance satisfactory to Anandia and Aurora, each acting reasonably, and shall not have been set aside or modified in a manner unacceptable to Anandia or Aurora, each acting reasonably, on appeal or otherwise; |
| (b) | the Anandia Arrangement Resolution shall have been passed by the Anandia Securityholders in accordance with the Interim Order; |
| (c) | the Final Order shall have been granted in form and substance satisfactory to Anandia and Aurora, each acting reasonably, and shall not have been set aside or modified in a manner unacceptable to Anandia or Aurora, each acting reasonably, on appeal or otherwise. |
| (d) | there shall not be in force any Laws, ruling, order or decree, and there shall not have been any action taken under any Laws or by any Governmental Entity or other regulatory authority, that makes it illegal or otherwise directly or indirectly restrains, enjoins or prohibits the consummation of the Arrangement in accordance with the terms hereof; |
| 42 |
| (e) | the TSX shall have conditionally approved the listing thereon of the Aurora Shares to be issued pursuant to the Arrangement (including any Aurora Shares issuable upon the exercise or vesting of Replacement Securities), subject in each case only to compliance with the usual requirements of the TSX, including customary post-closing deliveries; and |
| (f) | holders of no more than 5% of the Anandia Shares shall have exercised Dissent Rights. |
The foregoing conditions are for the mutual benefit of Aurora and Anandia and may be waived by mutual consent of Aurora and Anandia in writing at any time.
Section 5.2 Aurora Conditions
The obligation of Aurora to complete the Arrangement is subject to the fulfillment of the following additional conditions at or before the Completion Deadline or such other time as is specified below:
| (a) | ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................ ................................................................................................................................................ ............................................................................................................................................... ............................................................................................................ ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ...................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ...... |
| (b) | ............................................................................................................................................... ............................................................................................................... |
| (c) | ............................................................................................................................................... ............................................................................................................ |
| (d) | ............................................................................................................................................... .................................................................................................................. |
| (e) | ............................................................................................................................................... ............................................................................................................... |
| (f) | ....................................................................................................................................... |
| 43 |
| (g) | ............................................................................................................................................... ........................................................................................ |
| (h) | ................................................................................................................................................ ................................................................................................. |
| (i) | ............................................................................................................................................... ................................................................................................... |
| (j) | ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ................................................. | |
| [Redacted - Conditions precedent to the obligation of Aurora to complete the Arrangement] | ||
The foregoing conditions are for the benefit of Aurora and may be waived, in whole or in part, by Aurora in writing at any time.
Section 5.3 Anandia Conditions
The obligation of Anandia to complete the Arrangement is subject to the fulfillment of the following additional conditions at or before the Completion Deadline or such other time as is specified below:
| (a) | ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... .............. |
| (b) | ............................................................................................................................................... ......................................................................................................... |
| (c) | ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ....................................... |
| 44 |
............................................................................................................................................... ....................................................................
[Redacted - Condition precedents to the obligation of Anandia to complete the Arrangement]
Section 5.4 Notice and Cure Provisions
Each Party hereto shall give prompt notice to the other Party of the occurrence, or failure to occur, at any time from the date hereof until the Effective Date, of any event or state of facts which occurrence or failure would, would be likely to or could:
| (a) | cause any of the representations or warranties of such Party hereto contained herein to be untrue or inaccurate in any respect on the date hereof or on the Effective Date; |
| (b) | result in the failure to comply with or satisfy any covenant or agreement to be complied with or satisfied by such Party hereto prior to the Effective Date; or |
| (c) | result in the failure to satisfy any of the conditions precedent in favour of the other Parties hereto contained in Section 5.1, Section 5.2 or Section 5.3 hereof, as the case may be. |
Aurora may not exercise its right to terminate this Agreement pursuant to Section 7.2(g) and Anandia may not exercise its right to terminate this Agreement pursuant to Section 7.2(h) unless the Party intending to rely thereon has delivered a written notice to the other Party hereto specifying in reasonable detail the breaches of covenants or untruthfulness or inaccuracy of representations and warranties or other matters that the Party hereto delivering such notice is asserting as the basis for the exercise of the termination right, as the case may be, and if any such notice is delivered, and a Party hereto is proceeding diligently, at its own expense, to cure such matter, if such matter is susceptible to being cured, the Party hereto that has delivered such notice may not terminate this Agreement until the earlier of the Completion Deadline and the expiration of a period of 15 Business Days from date of delivery of such notice, and then only if such matter has not been cured by such date. If such notice has been delivered prior to the date of the Anandia Meeting, the Anandia Meeting shall be adjourned or postponed until the earlier of (A) the expiry of such period and (B) five Business Days prior to the Completion Deadline.
Article 6
NON-SOLICITATION AND TERMINATION PAYMENTS
Section 6.1 .................................................................................
| (a) | ............................................................................................................................................... ................................................................................................................................................ ................................................................................................................................................ ......... |
| (i) | ............................................................................................................................................... ................................................................................................................................................ ................................................................................................................................................ ................................................................................................................................................ ................................................................................................................................................ ......... |
| 45 |
| (ii) | ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... .................................................................... ........ |
| (iii) | ............................................................................................................... |
| (iv) | ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............ |
| (b) | ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............. |
| (i) | ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............... |
| (ii) | ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............ |
| (c) | ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... .......... |
| 46 |
| (d) | ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... ....... |
| (i) | ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ........... |
| (ii) | ................................................................................................................................... ................................................................................................................................... ........ |
| (iii) | ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ........ |
| (iv) | ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ...... |
| (e) | ............................................................................................................................................... ............................................................................................................................................... ........ |
| (i) | ................................................................................................................................... ................................................................................................................................... ...... |
| (ii) | ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ....... |
| 47 |
| (A) | ....................................................................................................................... ....................................................................................................................... ....................................................................................................................... ...... |
| (B) | ....................................................................................................................... ....................................................................................................................... ....................................................................................................................... .... |
| (C) | ....................................................................................................................... ........ |
| (D) | ........................................................ |
| (I) | ........................................................................................................... ........................................................................................................... .... |
| (II) | ........................................................................................................... ........................................................................................................... ........................................................................................................... ....... |
| (f) | ............................................................................................................................................... ............................................................................................................................................... ....... |
| (g) | ........................................................................................... |
| (i) | ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ....... |
| (ii) | ................................................................................................................................... ...... |
| 48 |
| (A) | ....................................................................................................................... ................................................................................ |
| (B) | ....................................................................................................................... ....................................................................................................................... ....................................................................................................................... ....... |
| (iii) | ................................................................................................................................... ......................................................................................... |
| (A) | ....................................................................................................................... ......................................................................................... |
| (B) | ....................................................................................................................... ....................................................................................................................... ....................................................................................................................... ....... | |
| [Redacted - Non-solicitation covenants] | ||
Section 6.2 Notice of Anandia Superior Proposal Determination
| (a) | If Anandia receives an Anandia Acquisition Proposal and the Anandia Board makes a determination that such Anandia Acquisition Proposal constitutes an Anandia Superior Proposal prior to the approval by the Anandia Securityholders of the Anandia Arrangement Resolution, Anandia may make an Anandia Change in Recommendation and enter into a definitive agreement with respect to such Anandia Acquisition Proposal (other than a confidentiality agreement contemplated by Section 6.1(e)(ii)), if and only if: |
| (i) | the Person making the Anandia Superior Proposal was not restricted from making such Anandia Superior Proposal pursuant to any existing confidentiality, non-disclosure, standstill, business purpose or other similar agreement, restriction or covenant with Anandia or any of the Anandia Subsidiaries; |
| (ii) | Anandia has complied with its obligations under Section 6.1; |
| (iii) | Anandia has provided Aurora with written notice (an “Anandia Superior Proposal Notice”) promptly following the Anandia Board’s determination that the Anandia Acquisition Proposal constitutes an Anandia Superior Proposal that: |
| (A) | the Anandia Acquisition Proposal constitutes an Anandia Superior Proposal; and |
| (B) | Anandia intends to enter into an agreement with respect to such Anandia Superior Proposal; |
The Anandia Superior Proposal Notice will set forth the value that the Anandia Board, in consultation with its financial advisors and outside legal counsel, has determined should be ascribed to any non-cash consideration offered under such Anandia Superior Proposal;
| 49 |
| (iv) | Anandia has delivered to Aurora a copy of the proposed definitive agreement for the Anandia Superior Proposal and all supporting materials, including any financing documents supplied to Anandia in connection therewith; |
| (v) | a period of five Business Days (the “Aurora Match Period”) has elapsed from the date that is the later of the date on which Aurora received the Anandia Superior Proposal Notice and the date on which Aurora received the materials set forth in Section 6.2(a)(iv); |
| (vi) | during the Aurora Match Period, Aurora has had the opportunity, but not the obligation, in accordance with Section 6.2(b), to offer to amend this Agreement and the Arrangement in order for such Anandia Acquisition Proposal to cease to be an Anandia Superior Proposal; |
| (vii) | after the Aurora Match Period, the Anandia Board: |
| (A) | has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Anandia Acquisition Proposal continues to constitute an Anandia Superior Proposal, which determination will consider the terms of the Arrangement as proposed to be amended by Aurora if Aurora proposes any amendment in accordance with Section 6.2(b); and |
| (B) | has determined in good faith, after consultation with its outside legal counsel and financial advisors, that the failure of the Anandia Board to recommend that Anandia enter into a definitive agreement with respect to such Anandia Superior Proposal would be inconsistent with its fiduciary duties; and |
| (viii) | prior to or concurrently with entering into such definitive agreement this Agreement is terminated by Anandia under Section 7.2(f) and Anandia pays the Anandia Termination Payment to Aurora in accordance with Section 6.3. |
| (b) | During the Aurora Match Period, Aurora shall have the right, but not the obligation, to propose in writing to amend the terms of this Agreement and the Arrangement. During the Aurora Match Period, Anandia shall (i) review any proposal by Aurora to amend the terms of this Agreement and the Arrangement in order to determine, in good faith and in a manner consistent with the fiduciary duties of the Anandia Board, whether the proposed amendment by Aurora upon acceptance by Anandia would result in the Anandia Acquisition Proposal not being an Anandia Superior Proposal; and (ii) negotiate with Aurora in good faith, and in a manner consistent with the fiduciary duties of the Anandia Board, to make such amendments to the terms of this Agreement and the Arrangement as would enable Aurora to proceed with the Transaction on such amended terms. If the Anandia Board determines that the proposed amendment by Aurora upon acceptance by Anandia would result in the Anandia Acquisition Proposal not being an Anandia Superior Proposal, Anandia shall promptly so advise Aurora and enter into an amendment to this Agreement with Aurora reflecting the amended proposal of Aurora and will promptly reaffirm its recommendation of the Arrangement as amended. |
| 50 |
| (c) | Anandia acknowledges and agrees that each successive modification of any Anandia Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Anandia Shareholders or other material terms or conditions thereof shall constitute a new Anandia Acquisition Proposal for the purposes of this Section 6.2 and Aurora shall be afforded a new Aurora Match Period and the rights afforded in this Section 6.2 shall apply in respect of each such Anandia Acquisition Proposal. |
| (d) | The Anandia Board shall promptly reaffirm its unanimous recommendation of the Arrangement by press release after: (i) the Anandia Board determines any Anandia Acquisition Proposal that has been publicly announced or publicly disclosed is not an Anandia Superior Proposal; or (ii) the Anandia Board determines that a proposed amendment to the terms of the Arrangement would result in any Anandia Acquisition Proposal which has been publicly announced or made not being an Anandia Superior Proposal, and Aurora has so amended the terms of the Arrangement. Aurora and its counsel shall be given a reasonable opportunity to review and comment on the form and content of any such press release. Anandia shall make all reasonable amendments to such press release as requested by Aurora and its counsel. |
| (e) | Nothing contained in this Section 6.2 shall limit in any way the obligation of the Anandia to convene and hold the Anandia Meeting in accordance with Section 4.2(a)(v) of this Agreement while this Agreement remains in force. |
| (f) | Where Anandia has provided Aurora with a notice under Section 6.2(a)(iii) and the Anandia Meeting is scheduled to be held during or within two Business Days following the expiration of the Aurora Match Period, then, subject to applicable Laws, Anandia will be entitled to, and will if so requested by Aurora, postpone or adjourn the Anandia Meeting to a date that shall not be less than three Business Days and not more than 10 Business Days after the scheduled date of the Anandia Meeting, provided that in no event shall such adjourned or postponed meeting be held on a date that is less than five Business Days prior to the Completion Deadline, and shall, in the event that Aurora and Anandia amend the terms of this Agreement pursuant to Section 6.2(b), ensure that the details of such amended Agreement are communicated to the Anandia Securityholders prior to the resumption of the adjourned or postponed Anandia Meeting. |
Section 6.3 Anandia Termination Payment Event
Termination of this Agreement in each of the following circumstances will constitute a “Anandia Termination Payment Event”:
| (a) | this Agreement is terminated by Aurora pursuant to Section 7.2(b) (but not including a termination by Aurora pursuant to Section 7.2(b)(i) in circumstances where the Anandia Change in Recommendation resulted from the occurrence of a Material Adverse Effect with respect to Aurora and Anandia has complied with Section 6.1(g)(iii)); |
| 51 |
| (b) | this Agreement is terminated by either Aurora or Anandia pursuant to Section 7.2(c) if at such time Aurora was permitted to terminate this Agreement pursuant to Section 7.2(b) (but not including a termination by Aurora pursuant to Section 7.2(b)(i) in circumstances where the Anandia Change in Recommendation resulted from the occurrence of a Material Adverse Effect with respect to Aurora and Anandia has complied with Section 6.1(g)(iii)); |
| (c) | this Agreement is terminated by Anandia pursuant to Section 7.2(f); or |
| (d) | this Agreement is terminated by either Aurora or Anandia pursuant to Section 7.2(c) or Section 7.2(d) hereof and: |
| (i) | following the date hereof and prior to such termination, an Anandia Acquisition Proposal shall have been made to Anandia and made known to Anandia Securityholders generally or shall have been made directly to Anandia Securityholders generally or any Person shall have publicly announced an intention to make an Anandia Acquisition Proposal (a “Pending Anandia Acquisition Proposal”); and |
| (ii) | within 365 days following the date of such termination: |
| (A) | an Anandia Acquisition Proposal is consummated or effected (whether or not such Anandia Acquisition Proposal is the same as the Pending Anandia Acquisition Proposal); or |
| (B) | Anandia or one or more of the Anandia Subsidiaries, directly or indirectly, in one or more transactions, enters into a contract in respect to an Anandia Acquisition Proposal (whether or not such Anandia Acquisition Proposal is the same as the Pending Anandia Acquisition Proposal) and such Anandia Acquisition Proposal is later consummated or effected (whether or not such Anandia Acquisition Proposal is later consummated or effected within 365 days of such termination). |
Upon the occurrence of an Anandia Termination Payment Event, Anandia shall pay to Aurora an amount in cash equal to $5,750,000 (the “Anandia Termination Payment”) in immediately available funds in consideration for the disposition of Aurora’s rights under this Agreement. In the circumstances set forth in Sections 6.3(a) or 6.3(b) above, the Anandia Termination Payment will be paid within one Business Day of the termination of this Agreement; in the circumstances set forth in Section 6.3(c) above, the Anandia Termination Payment will be paid at the time of the termination of this Agreement; and, in the circumstances set forth in Section 6.3(d) above, the Anandia Termination Payment will be paid within one Business Day following the completion of such Anandia Acquisition Proposal. Anandia shall not be obligated to make more than one payment pursuant to this Section 6.3. Anandia hereby acknowledges that the agreements contained in this Section 6.3 are an integral part of the transactions contemplated in this Agreement and that, without those agreements, Aurora would not enter into this Agreement, and that the Anandia Termination Payment is a payment in consideration for the disposition of Aurora’s rights under this Agreement and is a genuine pre-estimate of the damages that Aurora will suffer or incur as a result of the non-completion of the Arrangement in the circumstances in which the Anandia Termination Payment is payable, that such payment is not for lost profits or a penalty, and that Anandia shall not take any position inconsistent with the foregoing.
| 52 |
Anandia hereby irrevocably waives any right it may have to raise as a defence that any such Anandia Termination Payment is excessive or punitive. Upon termination of this Agreement as permitted under Section 7.2 under circumstances where Aurora is entitled to the Anandia Termination Payment and the Anandia Termination Payment is paid in full, Aurora shall have no further claim against Anandia at law or in equity or otherwise and in any such case it shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against Anandia or the Anandia Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders or affiliates in connection with this Agreement or the transactions contemplated hereby; provided however, that nothing herein shall preclude Anandia from seeking injunctive relief to restrain any breach or threatened breach by Aurora of any of its obligations hereunder or otherwise to obtain specific performance without the necessity of posting bond or security in connection therewith.
Section 6.4 Reimbursement of Expenses
| (a) | Subject to Section 6.4(b), in the event of termination of this Agreement by: |
| (i) | Aurora in accordance with Section 7.2(g), Anandia shall pay, within three Business Days of the termination of this Agreement, a payment of $500,000 to Aurora as reimbursement for the costs and expenses incurred by Aurora with respect to the Arrangement; |
| (ii) | Anandia in accordance with Section 7.2(h), Aurora shall pay, within three Business Days of the termination of this Agreement, a payment of $500,000 to Anandia as reimbursement for the costs and expenses incurred by Anandia with respect to the Arrangement; or |
| (iii) | either Anandia or Aurora in accordance with Section 7.2(c), Anandia shall pay, within three Business Days of the termination of this Agreement, a payment of $500,000 to Aurora as reimbursement for the costs and expenses incurred by Aurora with respect to the Arrangement; |
| (b) | No amount shall be paid or payable by Anandia under Section 6.4(a)(iii) if Anandia has paid the Anandia Termination Payment payable pursuant to Section 6.3. |
| (c) | In the event Anandia makes any payment under Section 6.4(a)(iii) and is then required to pay an Anandia Termination Payment, the amount paid under Section 6.4(a)(iii) will be credited towards payment of the Anandia Termination Payment. |
Article 7
AMENDMENT AND TERMINATION
Section 7.1 Amendment
This Agreement and the Plan of Arrangement may, at any time and from time to time before or after the holding of the Anandia Meeting but not later than the Effective Time, and in the case of the Plan of Arrangement subject to the provisions of Section 5.1 thereof, be amended by mutual written agreement of the Parties hereto without, subject to applicable Laws, further notice to or authorization on the part of the Anandia Securityholders and any such amendment may, without limitation:
| 53 |
| (a) | change the time for the performance of any of the obligations or acts of either of the Parties; |
| (b) | waive any inaccuracies in or modify any representation or warranty contained herein or in any document delivered pursuant hereto; |
| (c) | waive compliance with or modify any of the covenants herein contained and waive or modify the performance of any of the obligations of any of the Parties; and |
| (d) | waive compliance with or modify any condition herein contained; provided, however, that notwithstanding the foregoing, following the Anandia Meeting, the Exchange Ratio shall not be amended without the approval of the Anandia Securityholders. |
Section 7.2 Termination
This Agreement may be terminated at any time prior to the Effective Date:
| (a) | by the mutual written consent of Anandia and Aurora, duly authorized by the board of directors of each; |
| (b) | by Aurora if: |
| (i) | prior to the approval by the Anandia Securityholders of the Anandia Arrangement Resolution, (A) the Anandia Board shall make an Anandia Change in Recommendation or (B) Anandia enters into an agreement (other than a confidentiality agreement that complies with Section 6.1(e)(ii)) with respect to any Anandia Acquisition Proposal; or |
| (ii) | Anandia breaches its obligations under Section 6.1 or Section 6.2 in any material respect. |
| (c) | by either Aurora or Anandia if the Anandia Meeting shall have been held and completed and the Anandia Arrangement Resolution shall not have been approved by the Anandia Securityholders in accordance with the Interim Order, provided that Anandia shall not be entitled to terminate this Agreement pursuant to this Section 7.2(c) if the failure to obtain the approval of the Anandia Securityholders to the Anandia Arrangement Resolution has been caused by, or is the result of, a breach by Anandia of any of its representations or warranties or the failure of Anandia to perform any of its covenants or agreements under this Agreement; |
| (d) | by either Aurora or Anandia if the Effective Date shall not have occurred by the Completion Deadline, provided however: |
| (i) | if the failure of the Effective Date to occur by such date has been caused by, or is the result of, a breach by Anandia of any of its representations or warranties or the failure of Anandia to perform any of its covenants or agreements under this Agreement, then Anandia shall not be entitled to terminate this Agreement pursuant to this Section 7.2(d); or |
| 54 |
| (ii) | if the failure of the Effective Date to occur by such date has been caused by, or is the result of, a breach by Aurora of any of its representations or warranties or the failure of Aurora to perform any of its covenants or agreements under this Agreement, then Aurora shall not be entitled to terminate this Agreement pursuant to this Section 7.2(d); |
| (e) | by either Party if after the date of this Agreement, any applicable Law is enacted, made, enforced or amended, as applicable, that makes the consummation of the Arrangement illegal or otherwise prohibits or enjoins Anandia or Aurora from consummating the Arrangement, and such applicable Law has, if applicable, become final and non-appealable, provided that the Party seeking to terminate this Agreement pursuant to this Section 7.2(e) has used its commercially reasonable efforts to, as applicable, appeal or overturn such Law or otherwise have it lifted or rendered non-applicable in respect of the Arrangement; |
| (f) | by Anandia if Anandia proposes to enter into any agreement, arrangement or understanding in respect of an Anandia Superior Proposal in compliance with Section 6.1 and Section 6.2, provided that Anandia pays the Anandia Termination Payment to Aurora contemporaneously with such termination; |
| (g) | by Aurora, if Anandia breaches any representation or warranty of Anandia set forth in this Agreement which breach would cause the condition in Section 5.2(a) not to be satisfied or Anandia fails to comply with any of its covenants set forth in this Agreement (other than the covenants in Section 6.1 and Section 6.2) that would cause the condition in Section 5.2(j) not to be satisfied, and such breach or failure is incapable of being cured or is not cured in accordance with the terms of Section 5.4; provided that any wilful breach shall be deemed incapable of being cured and Aurora is not then in breach of this Agreement so as to cause any condition in Section 5.3(a) or Section 5.3(c) not to be satisfied; or |
| (h) | by Anandia, if Aurora breaches any representation or warranty of Aurora set forth in this Agreement which breach would cause the condition in Section 5.3(a) not to be satisfied or Aurora fails to comply with any of its covenants set forth in this Agreement that would cause the condition in Section 5.3(c) not to be satisfied, and such breach or failure is incapable of being cured or is not cured in accordance with the terms of Section 5.4; provided that any wilful breach shall be deemed incapable of being cured and Anandia is not then in breach of this Agreement so as to cause any condition in Section 5.2(a) or Section 5.2(j) not to be satisfied; or |
| (i) | by Aurora, if there has occurred a Material Adverse Effect with respect to Anandia after the date of this Agreement; or |
| (j) | by Anandia, if there has occurred a Material Adverse Effect with respect to Aurora after the date of this Agreement; |
| 55 |
provided that any termination by a Party hereto in accordance with paragraphs (b) to (j) above shall be made by such Party delivering written notice thereof to the other Party hereto prior to the Effective Date and specifying therein in reasonable detail the matter or matters giving rise to such termination right.
Section 7.3 Effect of Termination
In the event of termination of this Agreement as provided in Section 7.2, this Agreement shall forthwith become void and have no further effect, and there shall be no liability or further obligation on the part of Anandia or Aurora hereunder, except that:
| (a) | the provisions of Section 4.1(a), Section 4.6, Section 6.3, Section 6.4, Section 8.1, Section 8.2, Section 8.3, Section 8.5, Section 8.7, Section 8.10, Section 8.11, Section 8.12 and this Section 7.3 shall remain in full force and effect and shall survive any such termination; and |
| (b) | neither Anandia nor Aurora shall be released or relieved from any liability arising from their breach of any of their representations, warranties, covenants, or agreements hereunder save and except as provided herein. |
Article 8
GENERAL
Section 8.1 Notices
Any notice, consent, waiver, direction or other communication required or permitted to be given under this Agreement by a Party hereto shall be in writing and shall be delivered by hand to the Party hereto to which the notice is to be given, sent by electronic mail to the following address or to such other address as shall be specified by a party hereto by like notice. Any notice, consent, waiver, direction or other communication aforesaid shall, if delivered, be deemed to have been given and received on the date on which it was delivered to the address provided herein (if a Business Day or, if not, then the next succeeding Business Day) and if sent by electronic mail be deemed to have been given and received at the time of receipt (if a Business Day or, if not, then the next succeeding Business Day) unless actually received after 5:00 p.m. (Vancouver time) at the point of delivery in which case it shall be deemed to have been given and received on the next Business Day.
The addresses and numbers for service of each of the parties hereto shall be as follows:
| (a) | if to Aurora: |
Aurora Cannabis Inc.
Suite 900, 510 Seymour Street
Vancouver, BC V6B 1V5
| Attention: | Terry Booth, Chief Executive Officer |
| Email: | ................. [Redacted - Email] |
with a copy (which shall not constitute notice) to:
| Attention: | Jillian Swainson, General Counsel |
| 56 |
| Email: | ................. [Redacted - Email] |
and
McMillan LLP
1500 - 1055 West Georgia Street
Vancouver, BC V6E 4N7
| Attention: | Desmond Balakrishnan / Michael Reid |
| Email: | desmond.balakrishnan@mcmillan.ca / michael.reid@mcmillan.ca |
| (b) | if to Anandia: |
Anandia Laboratories Inc.
#322-2259 Lower Mall
Vancouver, BC V6T 3T5
| Attention: | Dr. Jonathan Page, Chief Executive Officer |
| Email: | jonathan@anandia.ca |
with copies (which shall not constitute notice) to:
Whiteboard Law Corporation
#2-683 Dease Road
Kelowna, BC V1X 4A4
| Attention: | James Mutter |
| Email: | jmutter@whiteboardlaw.com |
and
Blake, Cassels and Graydon LLP
595 Burrard Street, Suite 2600
Vancouver, BC V7X 1L3
| Attention: | Steven McKoen |
| Email: | steven.mckoen@blakes.com |
Section 8.2 Remedies
The Parties hereto acknowledge and agree that an award of money damages may be inadequate for any breach of this Agreement by any Party and that such breach may cause the non-breaching Party hereto irreparable harm. Accordingly, the Parties hereto agree that, in the event of any such breach or threatened breach of this Agreement by one of the Parties hereto, Anandia (if Aurora is the breaching party) or Aurora (if Anandia is the breaching party) will be entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. Subject to the last sentence of Section 6.3, such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available hereunder or at law or in equity to each of the Parties hereto.
| 57 |
Section 8.3 Expenses
Other than as set out in Section 6.4, the Parties hereto agree that all out-of-pocket expenses incurred in connection with this Agreement and the Transaction, the Anandia Meeting and the preparation and delivery of the Anandia Circular, including legal and accounting fees, printing costs, financial advisor fees and all disbursements by advisors, shall be paid by the Party hereto incurring such expense and that nothing in this Agreement shall be construed so as to prevent the payment of such expenses.
Section 8.4 Time of the Essence
Time shall be of the essence in this Agreement.
Section 8.5 Entire Agreement
This Agreement, together with the agreements and other documents herein or therein referred to, and the Confidentiality Agreement constitute the entire agreement between the Parties hereto pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, between the Parties with respect to the subject matter hereof. There are no representations, warranties, covenants or conditions with respect to the subject matter hereof except as contained herein.
Section 8.6 Further Assurances
Each Party hereto shall, from time to time, and at all times hereafter, at the request of the other of them, but without further consideration, do, or cause to be done, all such other acts and execute and deliver, or cause to be executed and delivered, all such further agreements, transfers, assurances, instruments or documents as shall be reasonably required in order to fully perform and carry out the terms and intent hereof including the Plan of Arrangement.
Section 8.7 Governing Law
This Agreement shall be governed by, and be construed in accordance with, the laws of the Province of British Columbia and the laws of Canada applicable therein but the reference to such laws shall not, by conflict of laws rules or otherwise, require the application of the law of any jurisdiction other than the Province of British Columbia.
Section 8.8 Execution in Counterparts
This Agreement may be executed in one or more counterparts, each of which shall conclusively be deemed to be an original and all such counterparts collectively shall be conclusively deemed to be one and the same. Delivery of an executed counterpart of the signature page to this Agreement by electronic means shall be effective as delivery of a manually executed counterpart of this Agreement, and any such delivery by electronic means shall not affect the validity, enforceability or binding effect of this Agreement.
| 58 |
Section 8.9 Waiver
No waiver or release by any Party hereto shall be effective unless in writing and executed by the Party granting such waiver or release and any waiver or release shall affect only the matter, and the occurrence thereof, specifically identified and shall not extend to any other matter or occurrence. A Party’s failure or delay in exercising any right under this Agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a Party from any other or further exercise of that right or the exercise of any other right.
Section 8.10 Third Party Beneficiaries
| (a) | Except as provided in Section 4.1(a), Section 4.4, Section 4.5, which, without limiting their terms, are intended as stipulations for the benefit of the third Persons mentioned in such provisions (such third Persons referred to in this Section 8.10 as the “Indemnified Persons”), and except for the rights of the Anandia Securityholders to receive the consideration under the Arrangement following the Effective Time pursuant to the Agreement (for which purpose Anandia hereby confirms that it is acting as agent on behalf of the Anandia Securityholders), the Parties intend that this Agreement will not benefit or create any right or cause of action in favour of any Person, other than the Parties and that no Person, other than the Parties, shall be entitled to rely on the provisions of this Agreement in any action, suit, proceeding, hearing or other forum. |
| (b) | Despite the foregoing, each Party acknowledges to each of the Indemnified Persons their direct rights against it under Section 4.1(a), Section 4.4 and Section 4.5, respectively of this Agreement, which are intended for the benefit of, and shall be enforceable by, each Indemnified Person, his or her heirs and his or her legal representatives, and for such purpose, Anandia confirms that it is acting as trustee on their behalf, and agrees to enforce such provisions on their behalf. |
| (c) | In no circumstance shall the consent of any Indemnified Person be required for the termination or amendment of this Agreement. |
Section 8.11 No Personal Liability
| (a) | No director or officer of Anandia shall have any personal liability whatsoever (other than in the case of fraud or willful misconduct) to Aurora under this Agreement or any other document delivered in connection with this Agreement or the Arrangement by or on behalf of Anandia. |
| (b) | No director or officer of Aurora shall have any personal liability whatsoever (other than in the case of fraud or willful misconduct) to Anandia under this Agreement or any other document delivered in connection with this Agreement or the Arrangement by or on behalf of Aurora. |
Section 8.12 Enurement and Assignment
This Agreement shall not be assigned by any Party hereto without the prior written consent of the other Party hereto. This Agreement shall enure to the benefit of the Parties and their respective successors and permitted assigns and shall be binding upon the Parties and their respective successors.
| 59 |
Remainder of Page Intentionally Left Blank
| 60 |
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the date first above written.
ANANDIA LABORATORIES INC.
| By: | (signed) “Jonathan Page” | |
| Name: | Jonathan Page | |
| Title: | Chief Executive Officer | |
AURORA CANNABIS INC.
| By: | (signed) “Terry Booth” | |
| Name: | Terry Booth | |
| Title: | Chief Executive Officer | |
Signature Page to Arrangement Agreement
Exhibit 99.2
[Execution Copy]
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
This Agreement dated September 4, 2019 is made among:
AURORA CANNABIS INC.
as Borrower
- and -
THE LENDERS FROM TIME TO TIME
PARTY TO THIS AGREEMENT
as Lenders
- and -
BANK OF MONTREAL
as Administrative Agent
- and -
BANK OF MONTREAL
as Lead Arranger and Sole Bookrunner
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each party, the parties agree as follows:
Article I - INTERPRETATION
1.01 Definitions
In this Agreement, the words and phrases set out in the CBA Model Provisions (as hereinafter defined) shall have the respective meanings set forth therein (subject to section 12.01 hereof). In addition, the following words and phrases shall have the respective meanings set forth below:
“2018 Convertible Debentures" means the 5.0% convertible debentures due March 9, 2020 issued by the Borrower pursuant to the trust indenture made between the Borrower and Computershare Trust Company of Canada dated March 9, 2018 (defined in the 2018 Credit Agreement as the “Convertible Debentures”).
“2018 Credit Agreement” means the credit agreement among the parties hereto dated August 29, 2018, as amended prior to the date hereof.
“2019 Convertible Notes" means the 5.50% convertible notes due February 28, 2024 issued by the Borrower pursuant to the trust indenture made between the Borrower and GLAS Trust Company LLC dated January 24, 2019.
| -2- |
"Acceleration Date" means the earlier of (i) the date of the occurrence of an Insolvency Event in respect of any Material Company; and (ii) the date on which the Borrower fails to repay all or any portion of the Obligations pursuant to an Acceleration Notice issued by the Agent.
"Acceleration Notice" is defined in section 10.02.
“Acceptable Appraisal” in respect of any Owned Property or Material Leased Property means an up-to-date appraisal by an AACI appraiser in form and substance satisfactory to the Lenders (or the Facility C Lenders or Facility D Lenders if so specified) which considers the following approaches to value: fair market, cost, and comparable and alternate use value on a hypothetical best use facility; together with a transmittal letter from such appraiser addressed to the Agent which permits the Agent and the Lenders to rely thereon.
"Acquisition" means (a) a purchase or other acquisition by a Company of all or substantially all of the assets (or any division or business line thereof) of any Person, or (b) a purchase or other acquisition (whether by means of a merger, consolidation, or otherwise) by any Company of all or substantially all of the shares or other equity interests in any Person.
"Acquisition Cash Outlay" means, in respect of any Acquisition, the aggregate of (i) the purchase price for such Acquisition (whether payable at the time of completion thereof or at any future time) excluding any portion thereof which is satisfied entirely by the issuance of equity shares of the Borrower or unsecured convertible debentures of the Borrower which constitute Subordinated Debt, plus (ii) the aggregate amount of Funded Debt assumed in connection with such Acquisition.
“Adjusted GAAP” at any time means GAAP in effect at such time as if IFRS 16 had not been implemented.
"Adjusted Total Funded Debt" means, at any time, the Total Funded Debt at such time less the Borrower’s indebtedness under the 2018 Convertible Debentures at such time.
“Adjusted Total Funded Debt to EBITDA Ratio” means, at any time, the ratio of (i) Adjusted Total Funded Debt at such time to (ii) EBITDA in the immediately preceding twelve (12) month period.
"Advance" means an extension of credit by one or more of the Lenders to the Borrower pursuant to this Agreement, including for greater certainty an extension of credit in the form of a Loan, a Bankers' Acceptance, a BA Equivalent Loan or the issuance of a Letter of Credit.
"Affiliate" is defined in the CBA Model Provisions.
"Agent" means BMO in its capacity as the administrative agent hereunder, and its successors in such capacity.
"Agreement" means this credit agreement (including the Exhibits and Schedules) as it may be amended, supplemented, replaced or restated from time to time; and each reference herein to "this Agreement", "the date hereof", "the date of this Agreement" and similar references are references to this amended and restated credit agreement and not to the 2018 Credit Agreement
| -3- |
"Aggregate Actual Hedge Liability" means, on any date of determination, the net aggregate amount of the Borrower's liability under all Hedge Transactions outstanding on such date in the event of a default or termination thereunder, calculated in accordance with the terms thereof (and for greater certainty, determined after netting any amounts payable to the Borrower thereunder against amounts payable by the Borrower thereunder).
"Amendment Closing Date" means the date on which all conditions precedent listed in section 9.01 herein have been satisfied, as confirmed by the Agent to the Borrower in writing.
"AML Legislation" means all anti-money laundering, anti-terrorist financing, government sanction and "know your client" Laws in effect in any jurisdiction in which any Company carries on business or owns assets, including any guidelines or orders thereunder, specifically including the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada).
"Annual Business Plan" is defined in section 7.04(e).
"Applicable Law" is defined in the CBA Model Provisions.
"Applicable Margin" means, in respect of any Availment Option and in respect of any Fiscal Quarter, the percentage in the column relating to such Availment Option in the following table which corresponds to the applicable Adjusted Total Funded Debt to EBITDA Ratio in respect of such Fiscal Quarter, which percentage shall be subject to adjustment from time to time as provided in section 5.01(d); provided that until the Conversion Date the Applicable Margin for each Availment Option shall be based on pricing level 5 in the table below:
[Redacted - Defined term and table of margins and fees]
"Associate" has the meaning ascribed thereto in the Canada Business Corporations Act.
"Aurora Sky Property" means the Material Leased Property municipally known as 4903 36th Street East, Edmonton International Airport, Alberta leased by 1769474 Alberta Ltd. (a wholly-owned Subsidiary of the Borrower) as tenant from Edmonton Regional Airports Authority as landlord pursuant to a lease dated May 1, 2017.
| -4- |
"Aurora Sun Project" means the construction of a 1.62 million square foot cannabis facility located on the Aurora Sun Property.
"Aurora Sun Project Budget" means the construction budget prepared by the Borrower and delivered to the Lenders _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _
[Redacted - construction cost value]
“Aurora Sun Project Construction Costs” means construction costs (for greater certainty including hard costs and soft costs) incurred in connection with the Aurora Sun Project.
“Aurora Sun Project Equipment Costs” means costs incurred in connection with the Aurora Sun Project other than Aurora Sun Project Construction Costs.
"Aurora Sun Project General Contract" means the construction agreement dated April 20, 2018 between 2105657 Alberta Ltd., as owner and Dawson Wallace Construction Ltd., as contractor, as such agreement may be amended, restated or replaced from time to time.
"Aurora Sun Project Monitor" means Altus Group or such other quantity surveyor or project monitor in respect of the Aurora Sun Project appointed by the Agent upon the instructions of the Required Lenders.
“Aurora Sun Project Account” _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
[Redacted - account details]
"Aurora Sun Property" means the Owned Property municipally known as 310 Box Springs Way NW, Medicine Hat, Alberta owned by 2105657 Alberta Ltd. (a wholly-owned Subsidiary of the Borrower).
“Aurora Sun Substantial Completion Date” means the date, as confirmed by the Aurora Sun Project Monitor, which is forty-six (46) days after the date on which a certificate of substantial performance of the Aurora Sun Project General Contract has been published as set out in the Builder’s Lien Act (Alberta), provided that on such date there are no builders’ liens registered against title to the Aurora Sun Property.
"Availment Option" means a method of borrowing which is available to the Borrower as provided herein.
"BA Equivalent Loan" means an Advance in Canadian Dollars made by a Non-BA Lender to the Borrower in respect of which the Borrower has issued a BA Equivalent Note.
"BA Equivalent Note" means a promissory note payable by the Borrower to a Non-BA Lender in the form of Exhibit "J" attached hereto.
"BA Lender" means a Lender identified in Exhibit "A" attached hereto as a Lender which will accept Bankers' Acceptances hereunder.
"Bankers' Acceptance" means a bill of exchange or a blank non-interest bearing depository bill as defined in the Depository Bills and Notes Act (Canada) drawn by the Borrower and accepted by a BA Lender in respect of which the Borrower becomes obligated to pay the face amount thereof to the holder (which may be a third party or such BA Lender) upon maturity.
| -5- |
"BIA" means the Bankruptcy and Insolvency Act (Canada).
"BMO" means Bank of Montreal and its successors and permitted assigns.
"Borrower" means Aurora Cannabis Inc., a corporation subsisting under the federal Laws of Canada.
"Borrower Adjusted Shareholders’ Equity" means, at any time, the shareholders’ equity of the Borrower at such time determined in accordance with GAAP, plus (without duplication) the principal amount of the Borrower’s indebtedness under the 2018 Convertible Debentures at such time.
"Borrowing Base Certificate" means a certificate delivered by the Borrower to the Agent in the form of Exhibit "F".
"Business Day" means any day on which the Agent is open for over-the-counter business in both Toronto, Ontario and Edmonton, Alberta, excluding Saturday, Sunday and any other day that is a statutory holiday in Toronto, Ontario or Edmonton, Alberta.
"Canadian Dollars" or "CDN$" means the lawful money of Canada.
“Cannabis” means:
| (a) | any plant or seed, whether live or dead, from any species or subspecies of genus Cannabis, including Cannabis sativa, Cannabis indica and Cannabis ruderalis, Marijuana and any part, whether live or dead, of the plant or seed thereof, including any stalk, branch, root, leaf, flower, or trichome; |
| (b) | any material obtained, extracted, isolated, or purified from the plant or seed or the parts contemplated by clause (a) of this definition, including any oil, cannabinoid, terpene, genetic material or any combination thereof; |
| (c) | any organism engineered to biosynthetically produce the material contemplated by clause (b) of this definition, including any micro-organism engineered for such purpose; |
| (d) | any biologically or chemically synthesized version of the material contemplated by clause (b) of this definition or any analog thereof, including any product made by any organism contemplated by clause (c) of this definition; |
| (e) | any other meaning ascribed to the term “cannabis” under Applicable Law in any Qualified Jurisdiction, including the Cannabis Act and the Controlled Drugs and Substances Act (Canada); and |
| (f) | any other meaning ascribed to the term “cannabis” under the Controlled Substances Act (United States). |
| -6- |
"Cannabis Act" means An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, S.C. 2018, c. 16, as amended from time to time.
"Cannabis-Related Activities" means any activities, including advertising or promotional activities, relating to or in connection with (i) the possession, importation, exportation, cultivation, production, purchase, testing, distribution or sale of Cannabis; (ii) the design and engineering of cannabis facilities; or (iii) consulting activities relating to any of the foregoing (but for greater certainty not including consulting activities in any jurisdiction which are not subject to any Applicable Laws relating to Cannabis in such jurisdiction).
"Cannabis Regulations" means the Cannabis Regulations under the Cannabis Act, as amended from time to time and all other regulations made from time to time under the Cannabis Act or any other statute in effect in a Qualified Jurisdiction with respect to Cannabis-Related Activities.
“Canadian Companies” means those Companies incorporated under the laws of Canada or a province thereof.
"Capital Expenditures" means expenditures made directly or indirectly which are considered to be in respect of the acquisition or leasing of capital assets in accordance with GAAP, including the acquisition or improvement of Land, plant, machinery or equipment, whether fixed or removable.
“Capital Lease” means any lease of assets which in accordance with Adjusted GAAP would be required to be capitalized on the balance sheet of the lessee.
"Cash Taxes" in respect of any fiscal period means amounts actually paid by the Companies in such fiscal period in respect of income and capital Taxes (whether relating to such fiscal period or any other fiscal period).
"CBA Model Provisions" means the model credit agreement provisions attached hereto as Exhibit "K", which have been revised under the direction of the Canadian Bankers' Association Secondary Loan Market Specialist Group from provisions prepared by The Loan Syndications and Trading Association, Inc.
"CDOR Rate" means on any day the annual rate of interest which is the rate determined as being the arithmetic average of the quotations of all institutions listed in respect of the rate for Canadian Dollar denominated bankers’ acceptances for the relevant period displayed and identified as such on the "Reuters Screen CDOR Page" (as defined in the International Swap Dealer Association, Inc. definitions, as modified and amended from time to time) as of 10:00 a.m. Toronto, Ontario local time on such day and, if such day is not a Business Day, then on the immediately preceding Business Day (as adjusted by the Agent after 10:00 a.m. Toronto, Ontario local time to reflect any error in a posted rate of interest or in the posted average annual rate of interest with notice of such adjustment in reasonable detail evidencing the basis for such determination being concurrently provided to the Borrower); provided that if such rates are not available on the Reuters Screen CDOR Page on any particular day, then the CDOR Rate on that day shall be the average of the rates applicable to Canadian Dollar bankers’ acceptances for the relevant period quoted for customers in Canada by the Agent as of 10:00 a.m. Toronto, Ontario local time on such day; or if such day is not a Business Day, then on the immediately preceding Business Day; and provided further that the CDOR Rate shall not be less than zero.
| -7- |
"Code of Conduct" means the document entitled “Aurora Cannabis Inc. Code of Business Conduct and Ethics” adopted by the board of directors of the Borrower, a copy of which has been provided to the Lenders.
"Collateral" means all property, assets and undertaking of the Secured Companies encumbered by the Security, together with all proceeds of the foregoing.
"Commitment" means, in respect of any Lender, such Lender's commitment to make Advances to the Borrower under the Facilities (or if required by the context, under a Facility or Tranche).
"Companies" means the Borrower and all of its Subsidiaries from time to time; and "Company" means any of them as the context requires.
"Control" is defined in the CBA Model Provisions.
"Conversion Date" means _ _ _ _ _ _ or such other date as may be mutually agreed in writing among the Agent, the Lenders and the Borrower; provided that no Default, Event of Default or Material Adverse Change shall have occurred and be continuing and the Borrower shall be in compliance with all terms and conditions herein, including all financial covenants which will apply after such date, and the Borrower shall have provided a certificate to the Agent and the Lenders confirming such compliance. [Redacted - date of conversion]
"Copyrights" means all rights, title and interests (and all related IP Ancillary Rights) arising under any requirement of Law in copyrights and all mask work, database and design rights, whether or not registered or published, all registrations and recordations thereof and all applications in connection therewith.
“Currency Hedge Transaction” mean an agreement made between the Borrower and a Lender for the purpose of hedging currency risk, including a currency exchange agreement or a foreign exchange forward contract.
“Deeds of Hypothec” means, collectively, (i) the deeds of hypothec executed on or prior to the Facilities Initial Establishment Date by any of the Secured Companies named therein, and (ii) each deed of hypothec executed after the Facilities Initial Establishment Date by any existing or new Secured Company having its domicile (within the meaning of the Civil Code of Québec) or Administrative situated in the Province of Quebec, in each case in favor of the Agent acting in the capacity of hypothecary representative (within the meaning of Article 2692 of the Civil Code of Québec) and in form and substance (x) substantially consistent with the deed of hypothec referred to in the preceding clause (i), or (y) otherwise reasonably satisfactory to the Agent, as each of such deeds of hypothec may be amended, supplemented, replaced or otherwise modified from time to time.
"Default" is defined in the CBA Model Provisions.
"Defined Benefit Pension Plan" means any Pension Plan which contains a "defined benefit provision" as defined in subsection 147.1(1) of the Income Tax Act (Canada).
| -8- |
"Distribution" in respect of any Company means any amount paid by such Company to or on behalf of its shareholders, partners or unitholders or to any Related Person thereto, including amounts paid in respect of dividends or profits, a return of capital (including a redemption or purchase of shares for cancellation), management fees, bonuses, commissions, directors' fees and payments of principal, interest or other amounts on account of indebtedness, and whether such payments are made to such Persons in their capacity as shareholders, partners, unitholders, directors, officers, employees or creditors of such Company or otherwise, or any other direct or indirect payment in respect of earnings or capital; provided however that the following shall not be considered Distributions: payments made to directors, officers and employees of the Companies from time to time in respect of salaries, bonuses, commissions, reimbursement of expenses, payments under profit-sharing and benefit plans and directors’ fees, in each case in the ordinary course of business and in reasonable amounts; and (ii) payments made pursuant to Permitted Related Person Transactions.
"Draw Request" means a notice in the form of Exhibit "B" given by the Borrower to the Agent for the purpose of requesting an Advance.
"Early Maturity Date" is defined in section 2.04.
"EBITDA" means, in respect of any fiscal period, the consolidated net income of the Borrower in such fiscal period determined in accordance with GAAP excluding the following: extraordinary or non-recurring income and gains, non-cash gains (such as unrealized foreign exchange gains) and income of the Unsecured Subsidiaries (except to the extent that dividends in respect of such income have been paid in cash by such Unsecured Subsidiaries to a Secured Company); plus the following amounts (to the extent such amounts were deducted in determining such consolidated net income, and without duplication):
| (a) | Interest, fees and expenses paid in connection with Permitted Funded Debt; |
| (b) | income and capital taxes; |
| (c) | depreciation and amortization; |
| (d) | non-cash charges and expenses such as unrealized foreign exchange losses and charges relating to the impairment of goodwill and other intangible assets; |
| (e) | non-cash share-based compensation; |
| (f) | extraordinary non-recurring expenses or losses to the extent approved by the Required Lenders in writing; and |
| (g) | any other expenses approved in writing by the Required Lenders in their discretion; |
and provided further that:
| • | in respect of each Company which became a Subsidiary of the Borrower in any fiscal period, EBITDA for such fiscal period shall be determined as if such Company had been a Subsidiary of the Borrower throughout the entire said fiscal period; and |
| -9- |
| • | in respect of each Company which ceased to be a Subsidiary of the Borrower in any fiscal period, EBITDA for such fiscal period shall be determined as if such Company had not been a Subsidiary of the Borrower during such fiscal period. |
"Eligible Receivable" in respect of any Secured Company means an account receivable of such Company (in this definition, individually called an "account") which satisfies all of the following eligibility criteria:
| (a) | the account arises from a bona fide, fully-completed transaction consisting of the sale of goods or the provision of services by the Company to an account debtor; |
| (b) | the account is subject to a First-Ranking Security Interest held by the Agent pursuant to the Security and is not subject to any other Lien except Permitted Liens; |
| (c) | if the account debtor is a Governmental Authority, all requirements of applicable legislation have been satisfied in order that the assignment of such Eligible Receivables in favour of the Agent shall be valid and enforceable; |
| (d) | if the account arises from the sale of Cannabis or any other Cannabis-Related Activity, the account debtor is located in a Qualified Jurisdiction; |
| (e) | the account debtor is not a Company or a Related Person thereto; |
| (f) | the account is not in dispute or subject to any defence, counterclaim or claim by the account debtor for credit, set-off, allowance or adjustment; |
| (g) | the Company does not have an obligation to hold any portion of the account in trust or as agent for any other Person (except pursuant to a Statutory Lien securing obligations which are not overdue); |
| (h) | an invoice relating to the account has been issued by the Company and sent to the account debtor; |
| (i) | the account is not outstanding for more than ninety-one (91) days from the date of the invoice relating thereto (regardless of the due date specified in such invoice for payment); |
| (j) | the account debtor is not insolvent or subject to any proceeding under Insolvency Legislation; |
| (_) | _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _ | |
| [Redacted - Eligible Receivable criteria regarding account value] |
| (l) | the account is not subject to undue credit risk in the opinion of the Required Lenders. |
"Equity Issuance" means an issuance or sale by any Company of shares, partnership interests or other equity interests, except any such issuance or sale (i) to any other Company, or (ii) to management or employees of any Company under any employee stock option or stock purchase plan stock appreciation rights plan, phantom stock plan or other employee benefit plan or arrangement in existence from time to time.
| -10- |
"Equivalent Amount" means, in relation to an amount in one currency, the amount in another currency that could be purchased by the amount in the first currency, determined by reference to the applicable Exchange Rate at the time of such determination.
"Event of Default" is defined in section 10.01.
"Exchange Rate" means, on the date of determination of any amount of Canadian Dollars to be converted into another currency pursuant to this Agreement for any reason, or vice-versa, the spot rate of exchange for converting Canadian Dollars into such other currency or vice-versa, as the case may be, established by the Bank of Canada at approximately 4:30 p.m. (Toronto time) on the date of such determination (or such other date as may be specified herein).
"Facilities" means Facility A, Facility B, Facility C and Facility D; and "Facility" means any of them as the context requires.
“Facilities Initial Establishment Date” means August 29, 2018.
"Facility A" is defined in section 2.01.
"Facility A Lenders" means those Lenders which have issued Commitments under Facility A.
_ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _.
_ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _
[Redacted - Defined terms regarding maximum amounts.
"Facility B" is defined in section 3.01.
"Facility B Lenders" means those Lenders which have issued Commitments under Facility B.
"Facility C" is defined in section 3.02.
"Facility C Lenders" means those Lenders which have issued Commitments under Facility C.
_ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _
[Redacted - Defined term regarding maximum amounts.
"Facility D" is defined in section 3.03.
"Facility D Lenders" means those Lenders which have issued Commitments under Facility D.
_ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _
[Redacted - Defined term regarding maximum amounts.
"First-Ranking Security Interest" in respect of any Collateral means a Lien in such Collateral which is registered as required under this Agreement to record and perfect the charges contained therein and which ranks in priority to all other Liens in such Collateral, except for any Permitted Liens which may have priority in accordance with Applicable Law.
| -11- |
"Fiscal Quarter" means a fiscal quarter of the Borrower, ending on the last day of September, December, March and June in each year.
"Fiscal Year" means a fiscal year of the Borrower, ending on the last day of June in each year.
"Fixed Charge Coverage Ratio" means, in respect of any twelve (12) month fiscal period, the ratio of: (i) EBITDA in such fiscal period less the aggregate of the following amounts in respect of such fiscal period (without duplication): (A) Cash Taxes, (B) Distributions paid in cash; (C) Investments made in Unsecured Subsidiaries and (D) Capital Expenditures to the extent not financed by Permitted Funded Debt; to (ii) Funded Debt Service in respect of such fiscal period.
"Funded Debt" in respect of any Person means obligations of such Person which are considered to constitute debt in accordance with GAAP, including indebtedness for borrowed money (in the case of the Borrower, specifically including the Outstanding Principal Amount, Subordinated Debt, obligations secured by Purchase-Money Security Interests and obligations under Capital Leases), capitalized interest, and the redemption price of any securities which are redeemable at the option of the holder, plus the Aggregate Actual Hedge Liability at the time of determination; but excluding the following: accounts payable, payroll accruals, accruals in respect of normal business expenses and future income Taxes (both current and long-term).
"Funded Debt Service" means, in respect of any fiscal period, without duplication: (i) the aggregate amount of Interest paid or payable in respect of the Funded Debt of the Borrower on a consolidated basis in respect of such fiscal period (but for greater certainty, excluding any Interest which is capitalized and not paid or payable during such fiscal period); plus (ii) the aggregate amount of scheduled principal payments and scheduled Capital Lease payments paid or payable in respect of the Funded Debt of the Borrower on a consolidated basis in respect of such fiscal period (except the portion of any final payment due in respect of such Funded Debt which constitutes a "balloon payment" and any amount paid in connection with the exercise of an option to purchase equipment under a Capital Lease).
"GAAP" means generally accepted accounting principles in Canada as in effect from time to time as set forth in the opinions and pronouncements of the relevant Canadian public and private accounting boards and institutes which are applicable to the relevant Person and the circumstances as of the date of determination, consistently applied including, without limitation, International Financial Reporting Standards adopted by the Accounting Standards Board of the Chartered Professional Accountants of Canada (which have been adopted by the Borrower).
"Governmental Authority" is defined in the CBA Model Provisions, and for greater certainty includes Health Canada.
"Guarantee" means any agreement by which any Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes liable upon, the obligation of any other Person, or agrees to maintain the net worth or working capital or other financial condition of any other Person or otherwise assures any creditor of such Person against loss, and shall include any contingent liability under any letter of credit or similar document or instrument.
| -12- |
"Hazardous Materials" means any contaminant, pollutant, waste or substance that is likely to cause immediately or at some future time harm or degradation to the surrounding environment or risk to human health; and without restricting the generality of the foregoing, including any pollutant, contaminant, waste, hazardous waste or dangerous goods that is regulated by any Requirements of Environmental Law or that is designated, classified, listed or defined as hazardous, toxic, radioactive or dangerous or as a contaminant, pollutant or waste by any Requirements of Environmental Law.
“Hedge Transaction” means an Interest Rate Hedge Transaction or a Currency Hedge Transaction.
“Hedging Obligations” means all obligations of the Borrower to the respective Lenders pursuant to or arising in connection with Hedge Transactions.
“Holdback” means, in connection with any payment of Aurora Sun Project Construction Costs, the portion thereof required to be retained by the owner of the Aurora Sun Property as a holdback pursuant to the Builder’s Lien Act (Alberta), as determined by the Borrower and confirmed by the Aurora Sun Project Monitor.
_ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _
[Redacted - Defined term]
"Indemnitees" means the Lenders, the Agent and their respective successors and permitted assignees, any agent of any of them (specifically including a receiver or receiver-manager) and the respective officers, directors and employees of the foregoing.
"Industrial Hemp" means (i) in Canada, hemp and derivatives thereof to the extent such products are exempt from the application of the Cannabis Act; (ii) in the United States, hemp and derivatives thereof to the extent such products are not considered a controlled substance pursuant to the Controlled Substances Act (United States); and (iii) in any other jurisdiction, hemp and derivatives thereof to the extent such products are not subject to any laws or regulations relating to Cannabis in effect in such jurisdiction.
"Insolvency Event" means, in respect of any Person, the occurrence of any one or more of the following events:
| • | such Person ceases to carry on its business; or commits an act of bankruptcy or becomes insolvent (as such terms are used in the BIA); or makes an assignment for the benefit of creditors, files a petition in bankruptcy, makes a proposal or commences a proceeding under Insolvency Legislation; or petitions or applies to any tribunal for, or consents to, the appointment of any receiver, trustee or similar liquidator in respect of all or a substantial part of its property; or admits the material allegations of a petition or application filed with respect to it in any proceeding commenced in respect of it under Insolvency Legislation; or takes any corporate action for the purpose of effecting any of the foregoing; or |
| -13- |
| • | any proceeding or filing is commenced against such Person seeking to have an order for relief entered against it as debtor or to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding-up, reorganization, arrangement, adjustment or composition of it or its debts under any Insolvency Legislation, or seeking appointment of a receiver, trustee, custodian or other similar official for it or any of its property or assets; unless (i) such Person is diligently defending such proceeding in good faith and on reasonable grounds as determined by the Required Lenders and (ii) such proceeding does not in the reasonable opinion of the Required Lenders materially adversely affect the ability of such Person to carry on its business and to perform and satisfy all of its obligations; |
"Insolvency Legislation" means legislation in any applicable jurisdiction relating to reorganization, arrangement, compromise or re-adjustment of debt, dissolution or winding-up, or any similar legislation, and specifically includes for greater certainty the BIA, the Companies' Creditors Arrangement Act (Canada) and the Winding-Up and Restructuring Act (Canada).
"Intellectual Property" means all rights, title and interests in intellectual property and all IP Ancillary Rights relating thereto, including all Copyrights, Patents, Trademarks, Internet Domain Names, Trade Secrets, industrial designs, integrated circuit topographies, plant breeders’ rights and rights under IP Licenses.
"Interest" means interest on loans, stamping fees in respect of bankers' acceptances, the difference between the proceeds received by the issuers of bankers' acceptances and the amounts payable upon the maturity thereof, issuance fees in respect of letters of credit, and any other charges or fees in connection with the extension of credit which are determined by reference to the amount of credit extended, plus standby fees in respect of the unutilized portion of any credit facility; but for greater certainty "Interest" shall not include agency fees, arrangement fees, structuring fees, fees relating to the granting of consents, waivers, amendments, extensions or restructurings, the reimbursement of costs and expenses, and any similar amounts which may be charged from time to time in connection with the establishment, administration or enforcement of the Facilities.
“Interest Rate Hedge Transaction” means an agreement made between the Borrower and a Lender for the purpose of hedging interest rate risk, including an interest rate exchange agreements (commonly known as an “interest rate swap”) or a forward rate agreement.
"Interim Financial Statements" means, at any time, the unaudited financial statements of the Borrower, on a consolidated and unconsolidated basis, in respect of the most recently completed Fiscal Quarter (and also on a year-to-date basis in respect of such Fiscal Quarter and all previous Fiscal Quarters in the same Fiscal Year) prepared in accordance with GAAP except that such financial statements shall not include any notes thereto and shall be subject to normal year-end adjustments.
"Internet Domain Names" means all right, title and interest (and all related IP Ancillary Rights) in internet domain names.
| -14- |
"Investment" means an investment made or held by a Person, directly or indirectly, in another Person (whether such investment was made by the first-mentioned Person in such other Person or was acquired from a third party), including a contribution of capital and including the acquisition or holding of the following: all or substantially all of the assets used in connection with a business; common or preferred shares; debt obligations; partnership interests; and investments in joint ventures; provided however that if a transaction would satisfy the definition of "Capital Expenditure" herein and also the definition of "Investment" herein, it shall be deemed to constitute an Investment and not a Capital Expenditure.
"IP Ancillary Rights" means, with respect to an item of Intellectual Property all foreign counterparts to, and all divisionals, reversions, continuations, continuations-in-part, reissues, re-examinations, renewals and extensions of, such Intellectual Property and all income, royalties, proceeds and liabilities at any time due or payable or asserted under or with respect to any of the foregoing or otherwise with respect to such Intellectual Property, including all rights to sue or recover at Law or in equity for any past, present or future infringement, misappropriation, dilution, violation or other impairment thereof, and, includes in each case, all rights to obtain any other IP Ancillary Right.
"IP License" means all contractual obligations (and all related IP Ancillary Rights), whether written or oral, granting any right, title and interest in any Intellectual Property.
"Issuing Bank" means BMO.
"Land" means real property (including a leasehold interest in land) and all buildings, improvements, fixtures and plant situated thereon.
"Landlord Agreement" means an agreement in form and substance satisfactory to the Agent given in favour of the Agent by the landlord of a Material Leased Property (and also acknowledged by all mortgagees of such landlord if requested by the Agent upon the instructions of the Required Lenders), which shall include the following provisions: the landlord consents to the granting of a security interest in the lease by the Secured Company which is a tenant thereunder in favour of the Agent and agrees that the Agent may assign the lease to a third party with the landlord's consent which shall not be unreasonably withheld; the landlord agrees to give written notice to the Agent in respect of and a reasonable opportunity to cure any default before terminating the lease; and the landlord agrees to waive (or subordinate and defer the enforcement of) its right of distraint and any other rights and remedies and any security it may hold in respect of any property of the tenant located on such Material Leased Property or affixed to such Material Leased Property which the tenant is entitled to remove under Applicable Law or pursuant to the terms of the lease.
"Laws" means all statutes, codes, ordinances, decrees, rules, regulations, municipal by-laws, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, decisions, rulings or awards, or any provisions of such laws, including general principles of common and civil law and equity or policies or guidelines, to the extent such policies or guidelines have the force of law, binding on the Person referred to in the context in which such word is used; and "Law" means any of the foregoing.
| -15- |
"Lenders" means the lenders identified in Exhibit "A" attached hereto and any other Persons which may from time to time become lenders pursuant to this Agreement; and their respective successors and permitted assigns.
"Lender-Related Distress Event" means, with respect to any Lender or any Person that directly or indirectly Controls such Lender (such Lender and each such Person being individually referred to in this definition as a "distressed person"), (i) the commencement of a voluntary or involuntary proceeding with respect to such distressed person under any Insolvency Legislation, (ii) the appointment of a custodian, conservator, receiver or similar official in respect of such distressed person or any substantial part of its assets, (iii) a forced liquidation, merger, sale or other change of Control of such distressed person supported in whole or in part by Guarantees or other support (including, without limitation, the nationalization or assumption of ownership or operating control of such distressed person by any Governmental Authority), or (iv) such distressed person makes a general assignment for the benefit of its creditors or is otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over such distressed person or its assets to be, insolvent, bankrupt, or deficient in meeting any capital adequacy or liquidity standard of any such Governmental Authority.
"Letter of Credit" means a stand-by letter of guarantee or documentary letter of credit.
"Lien" means: (i) a lien, charge, mortgage, hypothec, pledge, security interest or conditional sale agreement; (ii) an assignment, lease, consignment, trust or deemed trust that secures payment or performance of an obligation; (iii) a garnishment; (iv) any other encumbrance of any kind; and (v) any commitment or agreement to enter into or grant any of the foregoing.
"Loan" means a Prime Rate Loan or an extension of credit under the Swingline (other than the issuance of a Letter of Credit).
"Loan Documents" means, collectively, this Agreement, the Security, any promissory notes issued by the Borrower to the Agent or the Lenders hereunder, all agreements relating to Hedge Transactions, all Service Agreements, any certificate completed and executed by any Secured Company and all other certificates, instruments, agreements and other documents delivered, or to be delivered, by a Secured Company to the Agent or the Lenders or any of them, as applicable, under or in connection with this Agreement or the Facilities, and any fee letters entered into between the Borrower and the Agent in respect of fees payable to the Agent or the Lenders.
"MasterCard Line" is defined in section 4.02.
"Material Adverse Change" means any change or event which: (i) constitutes a material adverse change in the business, operations, financial condition or properties of the Companies taken as a whole; or (ii) materially impairs the Companies' ability, taken as a whole, to timely and fully perform any of their material obligations under the Loan Documents, or (iii) materially impairs the ability of the Agent and the Lenders to enforce their rights and remedies under this Agreement or the Security.
"Material Agreements" means each agreement listed in Schedule 6.01(n) hereto and each other agreement made between any Company and another Person from time to time which if terminated would result, or would have a reasonable likelihood of resulting, in a Default, Event of Default or a Material Adverse Change.
| -16- |
"Material Company" means a Company which is not an Immaterial Unsecured Company.
"Material Leased Property" _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _
[Redacted - Defined term regarding description of property
"Material Permit" means each licence or permit listed in Schedule 6.01(h) hereto and each other licence, permit, approval, registration or qualification granted to or held by any Material Company which if suspended or terminated would result, or would have a reasonable likelihood of resulting, in a Default, Event of Default or a Material Adverse Change.
"Maturity Date" _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _
[Redacted - Date of maturity]
"Medical Cannabis Qualified Jurisdiction" means any country (i) which is approved in writing by the Required Lenders in their discretion and (ii) in which it is legal in all political subdivisions therein (including for greater certainty on a federal, state and municipal basis) to undertake Medical Cannabis-Related Activities, as confirmed by a legal opinion provided by the Borrower's counsel in such jurisdiction in form and substance satisfactory to the Agent and the Lenders. The Required Lenders may in their discretion from time to time (i) upon receipt of a written request by the Borrower, designate any jurisdiction a Medical Cannabis Qualified Jurisdiction provided that all above criteria set have been satisfied; and (ii) revoke the designation of any jurisdiction as a Medical Cannabis Qualified Jurisdiction by written notice to the Borrower if the condition set out in clause (ii) above is no longer satisfied. Each of Canada, Germany, Denmark, Colombia and Uruguay is a Medical Cannabis Qualified Jurisdiction as at the date of this Agreement. Notwithstanding the foregoing, the United States shall not be designated a Medical Cannabis Qualified Jurisdiction except with the written consent of all Lenders in their discretion.
"Medical Cannabis-Related Activities" means Cannabis-Related Activities in connection with Cannabis used solely for medical purposes.
"Monthly Compliance Certificate" means a certificate delivered by the Borrower to the Agent in the form of Exhibit "G".
"Non-BA Lender" means a Lender identified in Exhibit "A" attached hereto as a Lender which will make BA Equivalent Loans instead of accepting Bankers' Acceptances hereunder.
"Non-Funding Lender" means any Lender (i) that has failed to fund any payment or Advance required to be made by it hereunder or to purchase all participations required to be purchased by it hereunder and under the Loan Documents, or (ii) that has given verbal or written notice to the Borrower, the Agent or any other Lender, or has otherwise publicly announced, that it believes that it may be unable to fund advances under one or more credit agreements to which it is a party, or (iii) with respect to which one or more Lender-Related Distress Events has occurred, or (iv) with respect to which the Agent believes, acting reasonably, that such Lender has defaulted or may default in fulfilling its obligations (whether as an agent, lender or letter of credit issuer) under one or more other credit agreements to which it is a party, or (v) with respect to which the Agent believes, acting reasonably, that there is a reasonable chance that such Lender will fail to fund any payment or Advance required to be made hereunder.
| -17- |
"Non-Medical Cannabis-Related Activities" means Cannabis-Related Activities other than Medical Cannabis-Related Activities.
"Non-Medical Cannabis Qualified Jurisdiction" means any country (i) which is approved in writing by the Required Lenders in their discretion and (ii) in which it is legal in all political subdivisions therein (including for greater certainty on a federal, state and municipal basis) to undertake Non-Medical Cannabis-Related Activities, as confirmed by a legal opinion provided by the Borrower's counsel in such jurisdiction in form and substance satisfactory to the Agent and the Lenders. The Required Lenders may in their discretion from time to time (i) upon receipt of a written request by the Borrower, designate any jurisdiction a Non-Medical Cannabis Qualified Jurisdiction provided that all above criteria set have been satisfied; and (ii) revoke the designation of any jurisdiction as a Non-Medical Cannabis Qualified Jurisdiction by written notice to the Borrower if the condition set out in clause (ii) above is no longer satisfied. Each of Canada and Uruguay is a Non-Medical Cannabis Qualified Jurisdiction as at the date of this Agreement. Notwithstanding the foregoing, the United States shall not be designated a Non-Medical Cannabis Qualified Jurisdiction except with the written consent of all Lenders in their discretion.
“Non-Revolving Facilities” means Facility B, Facility C and Facility D; and “Non-Revolving Facility” means any of them as the context requires.
"Non-Swingline Tranche" means the portion of Facility A other than the Swingline.
"Obligations" means, at any time and without duplication: (i) all direct and indirect, contingent and absolute indebtedness, obligations and liabilities of the Companies to the Agent and the Lenders (or if the context requires, to any Lender) under or in connection with this Agreement and the other Loan Documents (specifically including for greater certainty all Guarantees provided hereunder) at such time, specifically including the Outstanding Principal Amount, all accrued and unpaid Interest thereon, and all fees, expenses and other amounts payable pursuant to this Agreement and the Loan Documents; plus (ii) indebtedness outstanding under the MasterCard Line at such time; plus (iii) the Hedging Obligations at such time; plus (iv) all obligations under Service Agreements at such time; provided that if otherwise specified or required by the context, "Obligations" shall mean any portion of the foregoing.
"Outstanding Principal Amount" means, at any time, the aggregate of the Borrower's obligations in respect of all Advances made under the Facilities (or a Facility or Tranche if the context requires) which have not been repaid or satisfied at such time, determined as follows: (i) in the case of Prime Rate Loans, the principal amount thereof; (ii) in the case of Bankers' Acceptances, BA Equivalent Notes and Letters of Credit, the face amount thereof; and (iii) in the case of Hedge Transactions, the Aggregate Actual Hedge Liability.
"Owned Properties" means all Land owned by the Secured Companies from time to time, specifically including as at the date of this Agreement the Land described in Schedule 6.01(j) attached hereto.
| -18- |
"Patents" means all rights, title and interests (and all related IP Ancillary Rights) arising under any requirement of Law in or relating to patents and applications therefor.
"Pension Plan" means (i) a "pension plan" or "plan" which is subject to the funding requirements of applicable pension benefits legislation in any jurisdiction, or (ii) any pension benefit plan or similar arrangement applicable to employees of any Company.
"Permitted Acquisition" means an Acquisition of shares or other equity interests in a Person (referred to herein as a "share purchase"), or an Acquisition of assets of a Person not in the ordinary course of business (referred to herein as an "asset purchase"), in either case if all of the following criteria are satisfied (except to the extent otherwise agreed in writing by the Required Lenders in their discretion):
| • | the Required Lenders acting reasonably shall have provided their prior written consent to such Acquisition after conducting such due diligence they may consider appropriate in the circumstances (for greater certainty, specifically including in respect of financial matters, the corporate and capital structure of such Person, key management, and business, environmental, regulatory, tax and legal matters, and the Borrower shall provide all information requested by the Required Lenders in connection with such due diligence at least thirty (30) days prior to the proposed completion of such Acquisition); provided that such prior written consent shall not be required in respect of a Small Acquisition; |
| • | such Person is engaged in a business similar to or vertically integrated with the business conducted by the Borrower; |
| • | if the Acquisition involves a hostile or unsolicited take-over, no portion of the Facilities is used, directly or indirectly, in connection with the financing of the Acquisition unless approved by all Lenders in their sole discretion; and without limiting the Lenders' said discretion any such approval will not be provided before the Conversion Date; |
| • | in the case of a share purchase, immediately thereafter such Person will be a wholly-owned Subsidiary of the Borrower; |
| • | in the case of a share purchase, upon the completion of such Acquisition (i) all Funded Debt (except Funded Debt which will constitute Permitted Funded Debt hereunder) of such Person shall be repaid; and all Liens (except Liens which will constitute Permitted Liens hereunder) affecting the assets of such Person shall be released and discharged; and (ii) such Person shall provide a Guarantee and all other Security required herein to be provided by a Subsidiary of the Borrower hereunder (including registrations, searches, legal opinions and ancillary documentation); |
| • | in the case of an asset purchase, upon the completion of such transaction (i) all Funded Debt (except Funded Debt which will constitute Permitted Funded Debt hereunder) secured by the acquired assets shall be repaid; and (ii) within thirty (30) days following the completion of such transaction (A) all Liens (except Liens which will constitute Permitted Liens hereunder) affecting such assets shall be released and discharged; and (B) all Security required herein to be provided to the Agent in respect of such assets (including registrations, searches, legal opinions and ancillary documentation) shall be provided; |
| -19- |
| • | the Acquisition does not involve the assumption of any material environmental liabilities, and all representations and warranties contained herein with respect to environmental matters shall be true and correct both immediately before and immediately after such Acquisition; and if as a result of the Acquisition any Company will acquire ownership of any Land, the Borrower shall have provided an environmental questionnaire in form and substance satisfactory to the Agent in respect of such Land which evidences compliance with all such representations and warranties; |
| • | if the acquired business includes any Medical Cannabis-Related Activities, the Company which will carry on the acquired business will own assets and carry on business only in one or more Medical Cannabis Qualified Jurisdictions; |
| • | if the acquired business includes any Non-Medical Cannabis-Related Activities, the Company which will carry on the acquired business will own assets and carry on business only in one or more Non-Medical Cannabis Qualified Jurisdictions; |
| • | the Borrower is in compliance with all covenants and representations and warranties under this Agreement and will remain in compliance after giving effect to such Acquisition; and no Default, Event of Default or Material Adverse Change shall have occurred and be continuing or would result from the completion of such Acquisition; |
| • | if the Borrower proposes to incur Subordinated Debt to finance all or any portion of such Acquisition, the terms and conditions of such Subordinated Debt shall be satisfactory to the Required Lenders, and the holder(s) of such Subordinated Debt shall enter into a subordination and postponement agreement with the Agent containing terms and conditions contemplated in the definition of "Subordinated Debt" herein; |
and provided further that if any such transaction would constitute both a Capital Expenditure and a Permitted Acquisition, it shall be deemed to constitute a Permitted Acquisition and not a Capital Expenditure.
_ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _
[Redacted - Defined term]
"Permitted Funded Debt" means, without duplication: (i) the Outstanding Principal Amount; (ii) indebtedness of the Borrower to each holder of a Bankers' Acceptance (and for greater certainty, the Borrower's contingent obligation to each Lender which has accepted a Bankers' Acceptance comprises part of the Outstanding Principal Amount); (iii) indebtedness of any Company to another Company; (iv) Subordinated Debt (for greater certainty including the Borrower’s indebtedness under the 2018 Convertible Debentures); (v) the Borrower’s indebtedness under the 2019 Convertible Notes; (vi) Funded Debt of the Companies secured by Permitted Liens; and (vii) Unsecured Subsidiaries’ Permitted Project Debt.
| -20- |
"Permitted Liens" means:
| (a) | Statutory Liens in respect of any amount which is not at the time overdue; |
| (b) | Statutory Liens in respect of any amount which may be overdue but the validity of which is being contested in good faith and in respect of which reserves have been established in accordance with GAAP; |
| (c) | Liens or rights of distress reserved in or exercisable under any lease for rent not at the time overdue or for compliance with the terms of such lease not at the time in default; and security deposits given under leases not in excess of six (6) months' rent; |
| (d) | any obligations or duties affecting any Land due to any public utility or to any municipality or government, or to any statutory or public authority, with respect to any franchise, grant, licence or permit in good standing and any defects in title to structures or other facilities arising solely from the fact that such structures or facilities are constructed or installed on Land under government permits, leases or other grants in good standing; which obligations, duties and defects in the aggregate do not materially impair the use of such property, structures or facilities for the purpose for which they are held; |
| (e) | Liens incurred or deposits of cash made or pledged to secure obligations under workers' compensation legislation or similar legislation, or in connection with contracts, bids, tenders or expropriation proceedings, surety or appeal bonds, costs of litigation when required by Law, public and statutory obligations, and warehousemen's, storers', repairers', carriers' and other similar Liens and deposits; |
| (f) | security given to a public utility or any municipality or government or to any statutory or public authority to secure obligations incurred to such utility, municipality, government or other authority in the ordinary course of business and not at the time overdue; |
| (g) | Liens and privileges arising out of a judgment or an award (not otherwise constituting a Default) in respect of which an appeal or proceeding for review has been commenced and a stay of execution pending such appeal or proceedings for review has been obtained, and in respect of which reserves have been established in accordance with GAAP; |
| (h) | any Lien affecting any Land arising in connection with the construction or improvement of such Land or arising out of the furnishing of materials or supplies therefor, provided that such Lien secures moneys not at the time overdue (or if overdue, the validity of which is being contested in good faith and in respect of which reserves have been established in accordance with GAAP), notice of such Lien has not been given to the Agent or any Lender and such Lien has not been registered against title to such Land; |
| (i) | Liens affecting any Land arising in connection with registered restrictions, covenants, land use contracts, building schemes, declarations of covenants, conditions and restrictions, servicing agreements in favour of any Governmental Authority, easements, rights-of-way, servitudes or other similar rights in or with respect to such Land (including open space and conservation easements, restrictions or similar agreements and rights of way and servitudes for railways, water, sewer, drainage, gas and oil pipelines, electricity, light, power, telephone, telegraph, internet or cable television services and utilities) granted to or reserved by other Persons or properties, which, in the aggregate, do not materially impair the use of such Land for its intended purposes or the operation of the business thereon, and provided that same have been complied with; |
| -21- |
| (j) | Liens affecting any Land arising in connection with site plan agreements, subdivision agreements, development agreements and similar instruments registered or recorded in the ordinary course of business which do not, in the aggregate, materially impair the use of such Land for its intended purposes or the operation of the business thereon, and provided that same have been complied with; |
| (k) | Liens affecting any Land arising in connection with any right reserved to or vested in any Governmental Authority, by the terms of any permit, licence, certificate, order, grant, classification (including any zoning Laws and ordinances and similar legal requirements), registration or other consent, approval or authorization acquired by such Person from any Governmental Authority or by any Law, to terminate any such permit, licence, certificate, order, grant, classification, registration or other consent, approval or authorization or to require annual or other payments as a condition to the continuance thereof and which, in the aggregate, do not materially impair the use of such Land for its intended purposes or the operation of the business thereon, and provided that same have been complied with; |
| (l) | Liens affecting any Land arising in connection with the reservations, limitations, provisos and conditions, if any, expressed in any grants of such Land from any Governmental Authority, which, in the aggregate, do not materially impair the use of such Land for its intended purposes or the operation of the business thereon, and provided that same have been complied with; |
| (m) | Permitted Purchase-Money Security Interests; |
| (n) | Liens affecting the assets of the Unsecured Companies as security for Unsecured Subsidiaries’ Permitted Project Debt; |
| (o) | Liens securing Subordinated Debt; |
| (p) | the Specific Permitted Liens; |
| (q) | cash collateral provided by the Companies to one or more of the Lenders as security for Permitted Credit Card Obligations not in excess of the aggregate maximum amount of One Million Dollars ($1,000,000) at any time; and |
| (r) | the Security; |
provided that the use of the term "Permitted Liens" to describe the foregoing Liens shall mean that such Liens are permitted to exist (whether in priority to or subsequent in priority to the Security, as determined by Applicable Law); and for greater certainty such Liens shall not be entitled to priority over the Security by virtue of being described in this Agreement as "Permitted Liens".
| -22- |
_ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _
[Redacted - Defined Term]
"Permitted Related Person Transaction" means any transaction, contract or other dealing (i) between two or more Companies, each of which has provided all Security required to be provided by it hereunder; (ii) relating to Subordinated Debt; or (iii) between any Company and a Related Person thereto in the ordinary course of business upon commercially reasonable terms and conditions.
"Person" is defined in the CBA Model Provisions.
"Potential Statutory Priority Amount" at any time means the amount of all employee source deductions, goods and services tax and all other similar amounts payable by the Companies at such time which have not been paid or remitted when due and could result in a Statutory Lien ranking in priority to or pari passu with the Security.
_ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _
[Redacted - Defined term regarding rates]
"Prime Rate Loan" means a loan made by a Lender to the Borrower in Canadian Dollars in respect of which interest is determined by reference to the Prime Rate, but excluding Advances in the form of BA Equivalent Loans.
"Proceeds of Realization", in respect of the Security or any portion thereof, means all amounts received by the Agent and any Lender in connection with:
| • | any realization thereof, whether occurring as a result of enforcement or otherwise; |
| • | any sale, expropriation, loss or damage or other disposition of the Collateral or any portion thereof (other than a disposition of Collateral made pursuant to section 7.02(d)); and |
| • | the dissolution, liquidation, bankruptcy or winding-up of any Company or any other distribution of its assets to creditors; |
and all other amounts which are expressly deemed to constitute "Proceeds of Realization" in this Agreement.
"Properties" means the Owned Properties and the Material Leased Properties.
| -23- |
"Proportionate Share" in respect of any Lender means:
| • | in the context of such Lender's obligation to make Advances under any Facility or Tranche, such Lender's Commitment to make Advances under such Facility or Tranche divided by the aggregate amount of all Lenders' Commitments to make Advances under such Facility or Tranche; |
| • | in the context of such Lender's entitlement to receive a portion of the standby fee in respect of any Facility or Tranche, such Lender's Commitment to make Advances under such Facility or Tranche divided by the aggregate amount of all Lenders' Commitments to make Advances under such Facility or Tranche; |
| • | subject to section 11.03, in the context of any Lender's entitlement to receive payments of principal, interest or fees (other than standby fees) in respect of any Facility or Tranche, the Outstanding Principal Amount due to such Lender under such Facility or Tranche divided by the aggregate amount of the Outstanding Principal Amount due to all Lenders under such Facility or Tranche; and |
| • | in any other context, such Lender's Commitment divided by the aggregate of all Lenders' Commitments. |
"Purchase-Money Security Interest" means (i) a Capital Lease; or (ii) a Lien on any property or asset which is created, issued or assumed to secure the unpaid purchase price thereof, provided that such Lien is restricted to such property or asset (and all additions thereto, replacements and proceeds thereof) and secures an amount not in excess of the purchase price thereof and any interest and fees payable in respect thereof.
"Qualified Currency" means, in respect of any Qualified Jurisdiction, the legal tender of such Qualified Jurisdiction.
"Qualified Jurisdiction" means a Medical Cannabis Qualified Jurisdiction or a Non-Medical Cannabis Qualified Jurisdiction.
"Quarterly Compliance Certificate" means a certificate delivered by the Borrower to the Agent in the form of Exhibit "H".
"Related Person" in relation to any Person means a Subsidiary, Affiliate, Associate or employee of such Person.
"Repayment" means a repayment by the Borrower on account of the Outstanding Principal Amount.
"Repayment Notice" means a notice delivered by the Borrower to the Agent committing it to make a Repayment, in the form of Exhibit "E".
"Required Lenders" means, (i) at any time prior to the occurrence of an Event of Default which is continuing, any two or more Lenders which have issued Commitments hereunder representing two-thirds (2/3) or more of the aggregate amount of all Lenders' Commitments; and (ii) at any time after the occurrence of an Event of Default which is continuing, any two or more Lenders which have made Advances representing two-thirds (2/3)or more of the total amount of the Outstanding Principal Amount under the Facilities; provided however that if at any time there are only two (2) Lenders under this Agreement, "Required Lenders" shall mean both such Lenders, and if at any time there is only one (1) Lender under this Agreement, "Required Lenders" shall mean such Lender.
| -24- |
"Requirements of Environmental Law" means: (i) obligations under common law; (ii) requirements imposed by or pursuant to statutes, regulations and by-laws whether presently or hereafter in force; (iii) directives, policies and guidelines issued or relied upon by any Governmental Authority to the extent such directives, policies or guidelines have the force of law; (iv) permits, licenses, certificates and approvals from Governmental Authorities which are required in connection with air emissions, discharges to surface or groundwater, noise emissions, solid or liquid waste disposal, the use, generation, storage, transportation or disposal of Hazardous Materials; and (v) requirements imposed under any clean-up, compliance or other order made pursuant to any of the foregoing, in each and every case relating to environmental, health or safety matters including all such obligations and requirements which relate to (A) solid, gaseous or liquid waste generation, handling, treatment, storage, disposal or transportation of Hazardous Materials and (B) exposure to Hazardous Materials.
"Responsible Person" means (i) an officer or director of any Company or (ii) any other Person required to hold a security clearance pursuant to the Cannabis Act or the Cannabis Regulations.
"Restricted Jurisdiction" means each of Uruguay, Columbia, France, United Kingdom, Jamaica and any other country, state or political subdivision designated by any one or more of the Lenders in their discretion from time to time upon at least thirty (30) days’ prior written notice given to the Borrower and the Agent.
"Rollover" means the renewal of an Availment Option upon its maturity in the same form.
"Rollover Notice" means a notice substantially in the form of Exhibit "C" given by the Borrower to the Agent for the purpose of requesting a Rollover.
“Sanctions” means the sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by any Sanctions Authority.
“Sanctions Authority” means Canada or any other country having jurisdiction over any of the Companies or the respective Governmental Authorities of any of the foregoing.
“Sanctioned Entity” means (a) a country or a government of a country, (b) an agency of the government of a country, (c) an organization directly or indirectly controlled by a country or its government, (d) a Person resident in or determined to be resident in a country, in each case, that is subject to a sanctions program administered and enforced by a Sanctions Authority.
“Sanctioned Person” means a Person that is, or is owned or Controlled by Persons that are, the subject of any Sanctions.
"Secured Companies" means the Borrower and the Secured Subsidiaries.
| -25- |
"Secured Subsidiaries" means all present and future Subsidiaries of the Borrower except the Unsecured Subsidiaries.
"Security" means all Guarantees, security agreements, mortgages, debentures and other documents required to be provided to the Agent or the Lenders pursuant to Article VIII and all other documents and agreements delivered by the Secured Companies and any other Persons to the Agent for the benefit of the Lenders from time to time as security for the payment and performance of the Obligations, and the security interests, assignments and Liens constituted by the foregoing.
“Senior Funded Debt” means, at any time, the Funded Debt of the Borrower on a consolidated basis at such time excluding Subordinated Debt and excluding the Borrower’s indebtedness under the 2019 Convertible Notes. For greater certainty, Senior Funded Debt shall include Unsecured Subsidiaries’ Permitted Project Debt.
“Senior Funded Debt to EBITDA Ratio” means, at any time, the ratio of (i) Senior Funded Debt at such time to (ii) EBITDA in the immediately preceding twelve (12) month period.
"Service Agreements" is defined in section 4.03.
_ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _
[Redacted - Defined term]
"Solvent" means, with respect to any Company as of the date of determination, (i) the aggregate property of such Company is sufficient, if disposed of at a fairly conducted sale under legal process, to enable payment of all its obligations, due and accruing due; (ii) such Company is able to meet its obligations as they generally become due; and (iii) such Company has not ceased paying its current obligations in the ordinary course of business as they generally become due; for purposes of this definition, the amount of any contingent obligation at such time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability; provided however that with respect to any Company incorporated or organized under the Laws of a jurisdiction other than Canada, such Company shall be considered "Solvent" if it satisfies the foregoing requirements and also satisfies all other solvency requirements under Applicable Law in such jurisdiction.
"Specific Permitted Liens" means the Liens described in Schedule 6.01(i), as such Liens may be amended or replaced from time to time on substantially similar terms and conditions provided that the principal amount of the indebtedness secured thereby is not increased.
"Statutory Lien" means a Lien in respect of any property or assets of a Company created by or arising pursuant to any applicable legislation in favour of any Governmental Authority to secure any obligation, including a Lien for the purpose of securing such Company's obligation to deduct and remit employee source deductions, goods and services tax and harmonized sales tax pursuant to the Income Tax Act (Canada), the Excise Tax Act (Canada), the Canada Pension Plan (Canada), the Employment Insurance Act (Canada) and any legislation in any jurisdiction similar to or enacted in replacement of the foregoing from time to time.
| -26- |
"Subordinated Debt" means (i) the Borrower’s indebtedness under the 2018 Convertible Debentures and (ii) any other indebtedness of any Company to any Person which the Required Lenders in their sole discretion have consented to in writing and in respect of which the holder thereof has entered into a subordination and postponement agreement in favour of the Agent in form and substance satisfactory to the Agent and registered in all places where necessary or desirable to protect the priority of the Security, which shall provide (among other things) that: (A) the maturity date of such indebtedness is later than the Maturity Date; (B) the holder of such indebtedness may not receive any payments on account of principal or interest thereon (except to the extent, if any, expressly permitted therein); (C) any security held in respect of such indebtedness is subordinated to the Security; (D) the holder of such indebtedness may not take any enforcement action in respect of any such security (except to the extent, if any, otherwise expressly provided therein) without the prior written consent of the Agent; and (E) any enforcement action taken by the holder of such indebtedness will not interfere with the enforcement action (if any) being taken by the Agent in respect of the Security.
"Subsidiary" means a business entity which is Controlled, directly or indirectly, by another business entity (as used herein, "business entity" includes a corporation, company, partnership, limited partnership, trust or joint venture); and for greater certainty includes a Subsidiary of a Subsidiary.
"Substitution" means the substitution of one Availment Option for another, and does not constitute a fresh or new Advance.
"Substitution Notice" means a notice substantially in the form of Exhibit "D" given by the Borrower to the Agent for the purposes of requesting a Substitution.
"Swingline" is defined in section 2.08.
"Swingline Commitment" means the commitment of the Swingline Lender to extend credit under the Swingline up to the Swingline Limit, and comprising a portion of such Lender’s Facility A Commitment.
"Swingline Lender" means BMO and its successors and permitted assigns in such capacity, or any other Lender appointed in writing from time to time by the Required Lenders.
_ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _ [Redacted - Defined term]
"Taxes" is defined in the CBA Model Provisions.
"Total Funded Debt" means, at any time, the Funded Debt of the Borrower and its Subsidiaries on a consolidated basis at such time, specifically including for greater certainty the Outstanding Principal Amount, all Subordinated Debt of the Companies and the Borrower’s indebtedness under the 2019 Convertible Notes.
| -27- |
"Trade Secrets" means all right, title and interest (and all related IP Ancillary Rights) arising under any requirement of Law in or relating to trade secrets.
"Trademarks" means all right, title and interest (and all related IP Ancillary Rights) in trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers and, in each case, all goodwill associated therewith, all registrations and recordations thereof and all applications in connection therewith.
“Tranche” means a designated portion of a Facility which is subject to certain additional terms and conditions as provided herein.
“Tranche D-1” is defined in section 3.04.
“Tranche D-1 Limit” means an amount designated in writing by the Facility D Lenders immediately prior to the first Advance under Tranche D-1 as the portion of Facility D allocated to finance Aurora Sun Project Construction Costs, or such other amount as may be agreed in writing by the Borrower and the Facility D Lenders from time to time.
“Tranche D-2” is defined in section 3.04.
“Tranche D-2 Limit” means, at any time, the Facility D Maximum Amount less the Tranche D-1 Limit as such time.
"Unrestricted Subsidiary" means an Unsecured Subsidiary so designated in writing by the Lenders pursuant to section 7.06.
"Unsecured Subsidiaries" is defined in section 8.10(a).
_ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _
[Redacted - Defined term]
"Year-end Financial Statements" means, at any time, the financial statements the Borrower, each on an audited consolidated and unaudited unconsolidated basis, in respect of the most recently completed Fiscal Year prepared in accordance with GAAP (and for greater certainty including the notes thereto and an unqualified opinion of the Borrower's auditor with respect thereto).
1.02 Accounting Principles
Unless otherwise specifically provided herein, any accounting term used in this Agreement shall have the meaning customarily given such term in accordance with GAAP, and all financial computations hereunder shall be computed in accordance with GAAP consistently applied. That certain items or computations are explicitly modified by the phrase "in accordance with GAAP" shall in no way be construed to limit the foregoing. If there occurs after the date hereof any change in GAAP from that used in the preparation of the financial statements referred to herein, after the date hereof the Borrower and its Subsidiaries adopt any other accounting principles for use in the preparation of their financial statements (such changes in GAAP and such adoption being referred to herein as "Accounting Changes") that affects in any respect the calculation of any covenants contained in this Agreement (including those in section 7.03), the Lenders and the Borrower shall discuss whether they wish to amend any relevant provisions of this Agreement that relate to the calculation of such covenants with the intent of having their respective positions after such Accounting Changes conform as nearly as possible to their respective positions as of the date of this Agreement. Unless any such amendments have been agreed upon by all parties hereto in writing, compliance with the financial covenants in this Agreement shall be determined as if no such Accounting Change had occurred. In such event, the financial statements required to be provided by the Borrower hereunder shall be prepared in accordance with GAAP in effect on the date of such financial statements (after giving effect to such Accounting Change), and the Borrower shall concurrently deliver to the Agent a reconciliation in form and substance satisfactory to the Lenders showing all adjustments made to financial statements in order to determine compliance with such financial covenants on the basis of GAAP in effect prior to such Accounting Change.
| -28- |
1.03 Currency References
All amounts referred to in this Agreement are in Canadian Dollars unless otherwise noted.
1.04 Extended Meanings
Unless otherwise specified, words importing the singular include the plural and vice versa and words importing gender include all genders. Unless otherwise specified, references in this Agreement to sections, Schedules and Exhibits are to sections of, and Schedules and Exhibits to, this Agreement. Unless otherwise specified, each reference to an enactment of legislation is deemed to be a reference to that enactment of legislation, and to the regulations made under that enactment, as amended or re-enacted from time to time. Unless otherwise specified, references to time of day or date mean the local time or date in the City of Toronto, Ontario. "Including" means "including without limitation" and the term "including" shall not be construed to limit any general statement that precedes such term to the specific or similar items or matters immediately following it. Unless expressly qualified by the phrase "acting reasonably" or an equivalent phrase, the phrase "discretion" means "sole discretion" and any action to be taken or decision to be made by the Agent or the Lenders in their discretion shall mean that such discretion is absolute and unfettered.
1.05 Amendment and Restatement
This Agreement amends and restates the provisions of the 2018 Credit Agreement and shall not be considered a novation thereof. Any provision hereof which differs from or is inconsistent with a provision of the 2018 Credit Agreement constitutes an amendment to the 2018 Credit Agreement with each such amendment being effective as and from the date hereof. This Agreement will not discharge or constitute a novation of any debt, obligation, covenant or agreement contained in the 2018 Credit Agreement or in any Security, agreements, certificates and other documents executed and delivered by or on behalf of the Borrower in respect thereof or in connection therewith, but same shall remain in full force and effect save to the extent same are amended by the provisions of this Agreement. All representations and warranties set out in this Agreement are freshly made on the date hereof, but nothing herein shall release or otherwise affect the Borrower’s liability, without duplication, in connection with the representations and warranties contained in the 2018 Credit Agreement. The Borrower hereby represents, warrants, acknowledges and agrees with the Agent that all Security executed and delivered by the Companies to the Agent prior to the date of this Agreement is valid and enforceable in accordance with its terms and continues in full force and effect. Any reference to the 2018 Credit Agreement in any other Loan Document shall be deemed to constitute a reference to this Agreement.
| -29- |
1.06 Exhibits and Schedules
The following Exhibits and Schedules are attached to this Agreement and incorporated herein by reference (but with respect to Exhibit K, subject to section 12.01 hereof):
| Exhibits | ||
| "A" | - | Lenders and Lenders' Commitments |
| "B" | - | Draw Request |
| "C" | - | Rollover Notice |
| "D" | - | Substitution Notice |
| "E" | - | Repayment Notice |
| "F" | - | Borrowing Base Certificate |
| "G" | - | Monthly Compliance Certificate |
| "H" | - | Quarterly Compliance Certificate |
| "I" | - | [intentionally deleted] |
| "J" | - | Form of BA Equivalent Note |
| "K" | - | CBA Model Provisions |
| Schedules | ||
| 6.01(b) | - | Corporate Information (including list of Unsecured Subsidiaries) |
| 6.01(h) | - | Material Permits |
| 6.01(i) | - | Specific Permitted Liens |
| 6.01(j) | - | Owned Properties |
| 6.01(k) | - | Material Leased Properties |
| 6.01(l) | - | Intellectual Property |
| 6.01(n) | - | Material Agreements |
| 6.01(o) | - | Labour Agreements |
| 6.01(p) | - | Environmental Matters |
| 6.01(q) | - | Litigation |
| 6.01(r) | - | Pension Plans |
Article II - FACILITY A
2.01 Continuation of Facility A
Each Facility A Lender confirms that it has issued a Commitment in the maximum principal amount indicated opposite its name in Exhibit "A" under the heading "Facility A Commitments". The said Commitments have been established by the Facility A Lenders severally and not jointly, and are hereinafter collectively referred to as "Facility A". Facility A is a committed, revolving credit facility. Each Advance by a Lender under the Non-Swingline Tranche of Facility A shall be made in its Proportionate Share of the Non-Swingline Tranche.
| -30- |
2.02 Purpose
Advances under Facility A shall be used by the Borrower for working capital purposes and other general corporate purposes; provided however that Advances under Facility A shall not be used by the Borrower, directly or indirectly, for the purpose of making Investments.
2.03 Revolving Nature
Facility A shall be a revolving facility. For greater certainty, the Borrower shall be entitled to obtain Advances under Facility A from time to time and repay all or any portion of the Outstanding Principal Amount under Facility A from time to time; provided that the Outstanding Principal Amount under Facility A shall not exceed the Facility A Margin Limit in effect at such time.
2.04 Repayment
The Obligations under Facility A shall become due and payable on the earlier of: (i) the Acceleration Date; and (ii) the Maturity Date. _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _
[Redacted - Details of repayment obligations and dates]
2.05 Availment Options
Subject to the restrictions contained in this Agreement (and in particular, sections 5.02 and 5.03), the Borrower may receive Advances under Facility A from each Lender by any one or more of the following Availment Options (or any combination thereof):
| (a) | Prime Rate Loans; or |
| (b) | Bankers' Acceptances from BA Lenders with a maturity between 28 and 182 days (inclusive), subject to availability; or |
| -31- |
| (c) | BA Equivalent Loans from Non-BA Lenders with a maturity between 28 and 182 days (inclusive), subject to availability; or |
| (d) | Letters of Credit, subject to section 2.09. |
Bankers’ Acceptances and BA Equivalent Loans will not be issued with a maturity date later than the Maturity Date. The Borrower may convert all or any portion of the Outstanding Principal Amount under Facility A in the form of any above Availment Option into another form of Availment Option denominated in the same currency, subject to and in accordance with the terms and conditions of this Agreement (but for greater certainty, Bankers’ Acceptances and BA Equivalent Loans may not be converted into another Availment Option prior to the maturity thereof).
2.06 Interest and Fees
In respect of Advances under Facility A, the Borrower agrees to pay the following to the Agent on behalf of the Lenders (or if specified below, to the Issuing Bank for its own account):
| (a) | interest on Prime Rate Loans at the Prime Rate plus the Applicable Margin per annum, payable monthly in arrears on the last day of each and every month; |
| (b) | in respect of each Bankers' Acceptance, a stamping fee equal to the Applicable Margin, multiplied by the face amount of the Bankers' Acceptance with the product thereof further multiplied by the number of days to maturity of the Bankers' Acceptance and divided by 365, payable at the time of acceptance; |
| (c) | in respect of each BA Equivalent Note, a stamping fee equal to the Applicable Margin multiplied by the face amount of the BA Equivalent Note with the product thereof further multiplied by the number of days to maturity of the BA Equivalent Note and divided by 365, payable at the time of acceptance; |
| (d) | the following fees in respect of each Letter of Credit: (i) in respect of the period from the date of issuance of such Letter of Credit to the last day of the then current Fiscal Quarter, a fee equal to the Applicable Margin in effect on the date of issuance multiplied by the face amount of such Letter of Credit multiplied by the number of days in such period (including the first and last days of such period) and divided by three hundred and sixty-five (365), payable on the last Business Day of such Fiscal Quarter; (ii) in respect of each subsequent Fiscal Quarter (other than the Fiscal Quarter in which the Letter of Credit shall expire), a fee equal to the Applicable Margin in effect on the first day of such Fiscal Quarter multiplied by the face amount of such Letter of Credit multiplied by the number of days in such Fiscal Quarter (including the first and last days of such period) and divided by three hundred and sixty-five (365), payable on the last Business Day of such Fiscal Quarter; and (iii) in respect of the Fiscal Quarter in which such Letter of Credit shall expire, a fee equal to the Applicable Margin in effect on the first day of such Fiscal Quarter multiplied by the face amount of such Letter of Credit multiplied by the number of days in the period from and including the first day of such Fiscal Quarter to but excluding the day on which such Letter of Credit expires and divided by three hundred and sixty-five (365), payable on the last Business Day of such Fiscal Quarter; |
| (e) | an administrative fee in respect of each Letter of Credit payable to the Issuing Bank for its own account as follows: (i) in respect of the period from the date of issuance of such Letter of Credit to the last day of the then current Fiscal Quarter, a fee equal to one-quarter of one percent (0.25%) multiplied by the face amount of such Letter of Credit multiplied by the number of days in such period (including the first and last days of such period) and divided by three hundred and sixty-five (365), payable on the last Business Day of such Fiscal Quarter; (ii) in respect of each subsequent Fiscal Quarter (other than the Fiscal Quarter in which the Letter of Credit shall expire), a fee equal to one-quarter of one percent (0.25%) multiplied by the face amount of such Letter of Credit multiplied by the number of days in such Fiscal Quarter (including the first and last days of such period) and divided by three hundred and sixty-five (365), payable on the last Business Day of such Fiscal Quarter; and (iii) in respect of the Fiscal Quarter in which such Letter of Credit shall expire, a fee equal to one-quarter of one percent (0.25%) multiplied by the face amount of such Letter of Credit multiplied by the number of days in the period from and including the first day of such Fiscal Quarter to but excluding the day on which such Letter of Credit expires and divided by three hundred and sixty-five (365), payable on the last Business Day of such Fiscal Quarter; |
| -32- |
| (f) | administrative fees payable to the Issuing Bank for its own account in accordance with its usual practice in respect of the issuance, amendment and renewal of Letters of Credit; and |
| (g) | a standby fee payable in Canadian Dollars with respect to the unused portion of the Non-Swingline Tranche, calculated on a daily basis as being the difference between (i) the Facility A Maximum Amount (less the Commitments of any Non-Funding Lenders under Facility A), less the Swingline Limit and (ii) the Outstanding Principal Amount under the Non-Swingline Tranche, multiplied by the Applicable Margin and divided by 365; which standby fee shall be payable quarterly in arrears on the last Business Day of each Fiscal Quarter based on the number of days in such Fiscal Quarter (including the first day and excluding the last day in such Fiscal Quarter) and on the Maturity Date. |
_ _ _ _ _ _ _ _ _ _ _
| (_) | _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ |
| -33- |
| (_) | _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _ |
| (_) | _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _ |
| (_) | _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _ |
[Redacted - information regarding margins]
2.08 Swingline
A portion of Facility A in the maximum amount of the Swingline Limit (the "Swingline") shall be subject to the following terms and conditions, in addition to any other applicable terms and conditions contained in this Agreement:
| (a) | The Swingline shall be established and maintained by the Swingline Lender only, and the Swingline Lender shall not have the right to assign or grant a participation in the Swingline in whole or in part to any other Person. |
| (b) | The Outstanding Principal Amount under the Swingline shall not at any time exceed the Swingline Limit. |
| (c) | The Swingline shall form a part of Facility A and, except to the extent provided in this section, shall be subject to all terms and conditions of this Article II, specifically including the Facility A Margin Limit. |
| (d) | Subject to paragraph (f) below, Advances to and Repayments by the Borrower under the Swingline shall be made in the following manner. The Swingline Lender will make Advances to the Borrower into one or more Canadian Dollar bank accounts designated by the Borrower as required in order to honour cheques drawn by the Borrower on such accounts presented to the Swingline Lender for payment. As deposits are made into such accounts by the Borrower, the Swingline Lender shall withdraw funds from such accounts from time to time and apply such funds as repayments under the Swingline. Advances to the Borrower and Repayments by the Borrower under the Swingline shall be made without notice and shall be on a dollar for dollar basis (i.e. not subject to minimum amounts or multiples). |
| -34- |
| (e) | The obligation of the Swingline Lender to make each Advance under the Swingline shall be subject to the satisfaction of all conditions precedent in section 9.02, except for the requirement in section 9.02(d) to provide a Draw Request. |
| (f) | Interest on the Outstanding Principal Amount under the Swingline shall be payable by the Borrower to the Swingline Lender (for its own account) at the Prime Rate plus the Applicable Margin per annum, payable monthly in arrears on the last day of each and every month. |
| (g) | The Borrower hereby agrees to pay a standby fee with respect to the unused portion of the Swingline, payable to the Swingline Lender (for its own account), calculated on a daily basis as being the difference between (i) the Swingline Limit and (ii) the Outstanding Principal Amount under the Swingline, multiplied by the Applicable Margin and divided by 365; which standby fee shall be payable quarterly in arrears on the last Business Day of each Fiscal Quarter based on the number of days in such Fiscal Quarter (including the first day and excluding the last day in such Fiscal Quarter) and on the Maturity Date. |
| (h) | The Swingline Lender may in its discretion at any time, by written notice to the Borrower, require the Borrower to request an Advance under Facility A from the Facility A Lenders in an amount (in this paragraph called the "Swingline Reduction Amount") for the purpose of reducing the Outstanding Principal Amount under the Swingline; and the Borrower agrees to promptly comply with any such request. The proceeds of such Advance shall be applied to reduce the Outstanding Principal Amount under the Swingline accordingly. If the Borrower fails to comply with any such request from the Swingline Lender within two (2) Business Days after receipt thereof, each Facility A Lender agrees that upon request by the Swingline Lender it will make an Advance under Facility A in an amount equal to its Proportionate Share of the Swingline Reduction Amount, the proceeds of which shall be applied to reduce the Outstanding Principal Amount under the Swingline. In addition, each Facility A Lender hereby accepts from the Swingline Lender a participation (which participation shall be non-recourse to the Swingline Lender) in the Outstanding Principal Amount under the Swingline from time to time, in such Lender's Proportionate Share of Facility A. Each Facility A Lender hereby absolutely and unconditionally agrees to indemnify and hold the Swingline Lender harmless from liability in respect of, such Lender's said Proportionate Share of such Outstanding Principal Amount under the Swingline. Each said Facility A Lender acknowledges and agrees that its obligation to acquire a participation in such Outstanding Principal Amount under the Swingline and its said indemnity obligation are absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or Event of Default hereunder. For greater certainty however, nothing herein shall require a Facility A Lender to make Advances under Facility A in excess of its Commitment under Facility A. |
| -35- |
2.09 Letters of Credit
Letters of Credit shall be issued only under the Non-Swingline Tranche and shall be subject to the following additional terms and conditions:
| (_) | _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _ |
| (_) | _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _ |
| (_) | _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _ |
| (_) | _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _ |
| (_) | _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _ |
| -36- |
| (_) | _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ |
| (_) | _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _ |
| (_) | _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _ |
| -37- |
| (_) | _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ _ _ _ _ _ |
[Redacted - terms and conditions for Letters of Credit]
2.10 Cancellation
The Borrower may from time to time upon two (2) Business Days’ prior written notice to the Agent, permanently cancel any unadvanced portion of Facility A in a minimum amount of One Hundred Thousand Dollars ($100,000) without payment of any penalty or fee (provided that such required minimum amount shall not apply in the case of a cancellation of Facility A in its entirety). The Facility A Maximum Amount shall be automatically and permanently reduced by the amount so cancelled and each Lender’s Commitment under Facility A shall be reduced by its Proportionate Share of the amount so cancelled.
Article III - NON-REVOLVING FACILITIES
3.01 Continuation of Facility B
Each Facility B Lender confirms that it has issued a Commitment in the maximum principal amount indicated opposite its name in Exhibit "A" under the heading "Facility B Commitments". The said Commitments have been established by the Facility B Lenders severally and not jointly, and are hereinafter collectively referred to as "Facility B". Facility B is a committed, non-revolving credit facility.
Exhibit “A” includes a table of Lenders’ Commitments which shall apply from the date hereto to but excluding September 30, 2019, and a table of Lenders’ Commitments which shall apply from and after September 30, 2019. On September 30, 2019 the Agent shall make all adjustments as may be necessary or desirable in order that the Outstanding Advances by each Facility B Lender under Facility B shall be in its Proportionate Share of Facility B in effect on and after such date, which for greater certainty shall not exceed such Lender’s Commitment under Facility B in effect from and after such date.
3.02 Establishment of Facility C
Subject to the terms and conditions in this Agreement, each Facility C Lender hereby establishes a committed, non-revolving credit facility for the Borrower in the maximum principal amount indicated opposite such Lender's name in Exhibit "A" under the heading "Facility C Commitments". The said credit facilities are established by the Facility C Lenders severally and not jointly, and are hereinafter collectively referred to as "Facility C". Each Advance by a Facility C Lender under Facility C shall be made in its Proportionate Share of Facility C.
Exhibit “A” includes a table of Lenders’ Commitments which shall apply from the date hereto to but excluding September 30, 2019, and a table of Lenders’ Commitments which shall apply from and after September 30, 2019. On September 30, 2019 the Agent shall make all adjustments as may be necessary or desirable in order that the Outstanding Advances by each Facility C Lender under Facility C shall be in its Proportionate Share of Facility C in effect on and after such date, which for greater certainty shall not exceed such Lender’s Commitment under Facility C in effect from and after such date.
| -38- |
3.03 Establishment of Facility D
Subject to the terms and conditions in this Agreement, each Facility D Lender hereby establishes a committed, non-revolving credit facility for the Borrower in the maximum principal amount indicated opposite such Lender's name in Exhibit "A" under the heading "Facility D Commitments". The said credit facilities are established by the Facility D Lenders severally and not jointly, and are hereinafter collectively referred to as "Facility D". Each Advance by a Facility D Lender under Facility D shall be made in its Proportionate Share of Facility D.
3.04 Purpose
| (a) | Advances under Facility B have been used by the Borrower for working capital purposes and other general corporate purposes; provided however that Advances under Facility B shall not be used by the Borrower, directly or indirectly, for the purpose of making Investments. |
| (b) | Advances under Facility C shall be used by the Borrower for working capital purposes and other general corporate purposes (for greater certainty, including payment of Aurora Sun Project Construction Costs and Aurora Sun Project Equipment Costs); provided however that Advances under Facility C shall not be used by the Borrower, directly or indirectly, for the purpose of making Investments. |
| (c) | Advances under Facility D shall be used by the Borrower for either of the following purposes: (i) to pay Aurora Sun Project Construction Costs (such Advances being collectively referred to as “Tranche D-1”) or (ii) to pay Aurora Sun Project Equipment Costs (such Advances being collectively referred to as “Tranche D-2”). |
3.05 Non-Revolving Nature; Advances
| (a) | Facility B is a non-revolving facility, and any Repayment under Facility B may not be reborrowed. Facility B has been fully advanced and no further Advances are permitted thereunder. |
| (b) | Facility C is a non-revolving facility, and any Repayment under Facility C may not be reborrowed. The Borrower shall be entitled to request not more than five (5) Advances under Facility C. The final Advance under Facility C shall be made by no later than December 31, 2019, after which date any undrawn amount under Facility C shall be cancelled. Each Advance under Facility C shall be subject to the satisfaction of all applicable conditions precedent as set out herein. |
| (c) | Facility D is a non-revolving facility, and any Repayment under Facility D may not be reborrowed. The Borrower shall be entitled to request not more than seven (7) Advances under Facility D. The final Advance under Facility D shall be made on or before June 30, 2020 and any undrawn portion of Facility D thereafter shall be cancelled. Each Advance under Tranche D-1 shall be subject to the satisfaction of all applicable conditions precedent as set out herein, and the aggregate amount of Advances under Tranche D-1 shall not exceed the Tranche D-1 Limit. Each Advance under Tranche D-2 shall be subject to the satisfaction of all applicable conditions precedent as set out herein, and the aggregate amount of Advances under Tranche D-2 shall not exceed the Tranche D-2 Limit. |
| -39- |
3.06 Repayment
| (a) | On the last Business Day of each Fiscal Quarter, the Borrower shall make quarterly Repayments under Facility B as follows: |
_ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| -40- |
[Redacted - Repayment details for Non-Revolving Facilities]
3.07 Availment Options
Subject to the restrictions contained in this Agreement (and in particular, sections 5.02 and 5.03), the Borrower may receive Advances under each Non-Revolving Facility by any one or more of the following Availment Options (or any combination thereof):
| (a) | Prime Rate Loans; or |
| (b) | Bankers' Acceptances from BA Lenders with a maturity between 28 and 182 days (inclusive), subject to availability; or |
| (c) | BA Equivalent Loans from Non-BA Lenders with a maturity between 28 and 182 days (inclusive), subject to availability. |
Bankers' Acceptances and BA Equivalent Loans will not be issued with a maturity date later than the Maturity Date. The Borrower may convert all or any portion of the Outstanding Principal Amount under any Non-Revolving Facility in the form of any above Availment Option into another form of Availment Option denominated in the same currency, subject to and in accordance with the terms and conditions of this Agreement (but for greater certainty, Bankers’ Acceptances and BA Equivalent Loans may not be converted into another Availment Option prior to the maturity thereof).
3.08 Interest and Fees
In respect of Advances under each Non-Revolving Facility, the Borrower agrees to pay the following:
| (a) | interest on Prime Rate Loans at the Prime Rate plus the Applicable Margin per annum, payable monthly in arrears on the last day of each and every month; |
| (b) | in respect of each Bankers' Acceptance, a stamping fee equal to the Applicable Margin, multiplied by the face amount of the Bankers' Acceptance with the product thereof further multiplied by the number of days to maturity of the Bankers' Acceptance and divided by 365, payable at the time of acceptance; |
| -41- |
| (c) | in respect of each BA Equivalent Note, a stamping fee equal to the Applicable Margin multiplied by the face amount of the BA Equivalent Note with the product thereof further multiplied by the number of days to maturity of the BA Equivalent Note and divided by 365, payable at the time of acceptance; |
| (d) | a standby fee payable in Canadian Dollars with respect to the unused portion of Facility C, calculated on a daily basis as being the difference between (i) the Facility C Maximum Amount (less the Commitments of any Non-Funding Lenders under Facility C) and (ii) the Outstanding Principal Amount under Facility C, multiplied by the Applicable Margin and divided by 365; which standby fee shall be payable quarterly in arrears on the last Business Day of each Fiscal Quarter based on the number of days in such Fiscal Quarter (including the first day and excluding the last day in such Fiscal Quarter) and on the Maturity Date; and |
| (e) | a standby fee payable in Canadian Dollars with respect to the unused portion of Facility D, calculated on a daily basis as being the difference between (i) the Facility D Maximum Amount (less the Commitments of any Non-Funding Lenders under Facility D) and (ii) the Outstanding Principal Amount under Facility D, multiplied by the Applicable Margin and divided by 365; which standby fee shall be payable quarterly in arrears on the last Business Day of each Fiscal Quarter based on the number of days in such Fiscal Quarter (including the first day and excluding the last day in such Fiscal Quarter) and on the Maturity Date. |
Except as otherwise provided in this Agreement, such payments shall be made to the Agent on behalf of the Lenders; and the Agent shall promptly remit to each Lender its Proportionate Share of each such payment.
3.09 Interest Rate Hedge Transactions
Within ninety (90) days after each Advance under a Non-Revolving Facility the Borrower shall enter into Interest Rate Hedge Transactions with the Lenders such that the aggregate notional amount of all Interest Rate Hedge Transactions is at least fifty percent (50%) of the Outstanding Principal Amount under all Non-Revolving Facilities after such Advance.
3.10 Voluntary Repayments
Upon not less than three (3) Business Days' prior written notice to the Agent, the Borrower may make a Repayment on account of Prime Rate Loans outstanding under any Non-Revolving Facility in a minimum amount of One Hundred Thousand Dollars ($100,000) without payment of any penalty or fee (provided that such required minimum amounts shall not apply in the case of a Repayment of the entire Outstanding Principal Amount under such Non-Revolving Facility). Any such voluntary Repayment shall be applied against the Borrower's obligations to make scheduled Repayments under such Non-Revolving Facility in reverse chronological order; and the amount of credit available under such Non-Revolving Facility shall be automatically and permanently reduced by any such voluntary Repayment. The Agent shall promptly remit to each Lender under such Non-Revolving Facility its Proportionate Share of any such voluntary Repayment. For greater certainty however, Bankers’ Acceptances and BA Equivalent Loans may not be repaid prior to the maturity thereof.
| -42- |
3.11 Accordion
| (a) | Upon sixty (60) days' prior written notice to the Lenders, the Borrower may request that the Lenders
increase their respective Commitments under any Facility, provided that the following conditions are satisfied: |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
[Redacted - Conditions for Borrower to increase amount of Commitments
| -43- |
Article IV - ANCILLARY CREDIT PRODUCTS
4.01 Hedge Transactions
| (a) | BMO (for greater certainty, in its capacity as a Lender hereunder and not in its capacity as the Agent) shall act as lead swap arranger for all Interest Rate Hedge Transactions to be entered into between the Borrower and the Lenders hereunder and shall offer each Lender an opportunity to participate in a pro-rata portion of such Interest Rate Hedge Transactions pursuant to such arrangements as may be agreed between BMO and the other Lenders, respectively. |
| (b) | Each Borrower may deal directly with the respective Lenders in connection with the establishment of Currency Hedging Agreements. |
| (c) | Hedge Transactions may not be entered into for speculative purposes. |
| (d) | The term of each Currency Hedge Transaction shall expire not later than the earlier of (a) twelve (12) months from the date of such Currency Hedge Transaction, and (b) the Maturity Date. |
| (e) | The term of each Interest Rate Hedge Transaction shall expire not later than the Maturity Date. |
| (f) | The aggregate of the notional amounts of all Interest Rate Hedge Transactions outstanding at any time shall not exceed the Outstanding Principal Amount under the Non-Revolving Facilities at such time. |
| (g) | In respect of each Hedge Transaction entered into between the Borrower and a Lender, the Borrower agrees to execute and deliver to such Lender all agreements as it may reasonably require (for greater certainty, specifically including an ISDA master agreement). |
| (h) | The Security shall secure all obligations owing under or in respect of each Hedge Transaction; and the priority of such obligations shall rank on a pari passu basis with all other Obligations as provided in section 8.01. |
| (i) | The Borrower will not enter into or be a party to any Hedge Transactions with any Persons other than the Lenders. |
| (j) | Each Hedge Transaction made with a Lender shall include such Lender's standard early termination events. Without limiting the generality of the foregoing, each Hedge Transaction shall also stipulate that the termination of all or any of the Facilities shall constitute an Early Termination Event (as defined in the applicable ISDA Master Agreement) and the Affected Party (as defined in such ISDA Agreement) shall be the counter-party to the Lender in such contract. The Lender shall have the right to choose the payment measure and the payment method (as such terms are understood in the ISDA Master Agreement) in respect of such Early Termination Event. |
| 4.02 | MasterCard Line |
_ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _
[Redacted - Value of MasterCard Line]
| -44- |
time to time, in respect of corporate MasterCards in Qualified Currencies issued by BMO to the Borrower`s employees to be used for corporate purposes only in Qualified Jurisdictions, including purchasing supplies and funding miscellaneous business expenses (the "MasterCard Line"). BMO shall issue MasterCards upon request by the Borrower from time to time upon the completion of, and in accordance with, the credit card agreements and other documents customarily required by BMO in connection with the issuance of corporate MasterCards. The Borrower shall pay interest and fees in connection with loans and advances made under the MasterCard Line at the rates and at the times set out in such credit card agreements and other documents, and the Borrower`s indebtedness thereunder, including accrued and unpaid interest thereon, shall mature and become due and payable in full by the Borrower on the earlier of (i) the date specified in the such agreements, and (ii) the Maturity Date.
| 4.03 | Service Agreements |
BMO may in its discretion from time to time enter into agreements with the Borrower or any other Company in respect of cash management, payroll or other banking services (collectively, "Service Agreements"). The Borrower hereby agrees to indemnify and save harmless BMO in respect of all losses which it may suffer in respect of the failure of any Company to observe and perform its obligations under any Service Agreement, and for all purposes of this Agreement such Service Agreement shall be deemed to have been entered into between BMO and the Borrower. The Borrower agrees to pay to BMO (for its own account) fees in respect of Service Agreements as they may agree in writing from time to time.
Article V - GENERAL CONDITIONS
5.01 Matters relating to Interest
| (a) | Unless otherwise indicated, interest on any outstanding principal amount and all other amounts payable hereunder (including unpaid interest) shall be calculated daily and shall be payable monthly in arrears on the last day of each and every month; and if the maturity date of a Facility is not the end of a month, all accrued and unpaid interest in respect of such Facility shall be paid on such maturity date. If the last day of a month is not a Business Day, the interest payment due on such day shall be made on the next Business Day, and interest shall continue to accrue on the said principal amount and shall also be paid on such next Business Day. Interest shall accrue from and including the day upon which an Advance is made or is deemed to have been made, and ending on but excluding the day on which such Advance is repaid or satisfied. Any change in the Prime Rate shall cause an immediate adjustment of the interest rate applicable to Prime Rate Loans without the necessity of any notice to the Borrower. |
| (b) | Unless otherwise stated, in this Agreement if reference is made to a rate of interest, fee or other amount “per annum” or a similar expression is used, such interest, fee or other amount shall be calculated on the basis of a year of three hundred and sixty-five (365) or three hundred and sixty-six (366) days, as the case may be. If the amount of any interest, fee or other amount is determined or expressed on the basis of a period of less than one year of three hundred and sixty-five (365) or three hundred and sixty-six (366) days, as the case may be, the equivalent yearly rate is equal to the rate so determined or expressed, divided by the number of days in the said period, and multiplied by the actual number of days in that calendar year. The Agent agrees that promptly upon request by the Borrower from time to time it will advise the Borrower of the Prime Rate and CDOR in effect at such time (or during any other period prior to such time), and will assist the Borrower in calculating the effective annual rate of interest required to be disclosed pursuant to section 4 of the Interest Act (Canada). The Borrower hereby irrevocably agrees not to plead or assert, whether by way of defence or otherwise, in any proceeding relating to this Agreement or any other Loan Documents, that the interest payable thereunder and the calculation thereof has not been adequately disclosed to the Borrower, whether pursuant to section 4 of the Interest Act (Canada) or any other Law. |
| -45- |
| (c) | Notwithstanding any other provisions of this Agreement, if the amount of any interest, premium, fees or other monies or any rate of interest stipulated for, taken, reserved or extracted under the Loan Documents would otherwise contravene the provisions of section 347 of the Criminal Code (Canada), section 4 or section 8 of the Interest Act (Canada) or any successor or similar legislation, or would exceed the amounts which the Lenders are legally entitled to charge and receive under any Law to which such compensation is subject, then such amount or rate of interest shall be reduced to such maximum amount as would not contravene such provision; and to the extent that any excess has been charged or received the Lenders shall apply such excess against the Outstanding Principal Amount and refund any further excess amount. |
| (d) | Any change in the Applicable Margin in respect of any Availment Option under a Facility shall be determined quarterly by the Agent based upon the information contained in the Quarterly Compliance Certificate received by the Agent in respect of the most recently completed Fiscal Quarter, and shall take effect commencing on the fifth (5th) Business Day following receipt of such Quarterly Compliance Certificate by the Agent (in this paragraph called the "effective date"). For greater certainty: |
| (_) | the interest rates and fees applicable to all Advances made on or after the effective date shall be based upon the said revised Applicable Margin; |
| (_) | from and after the effective date, the interest rates and fees applicable to all Loans outstanding on the effective date shall be based upon the said revised Applicable Margin; |
| (_) | no readjustment shall be made in respect of any Bankers’ Acceptance or BA Equivalent Loan which is outstanding on the effective date, and the said revised Applicable Margin all apply to all Bankers’ Acceptances and BA Equivalent Loans issued or made on or after the effective date; and |
| (iv) | in respect of each Letter of Credit which is outstanding on the effective date there shall be a readjustment to the fee initially paid upon the issuance thereof, as follows: the fee relating to the period from the date of issuance to but excluding the effective date shall be based upon the Applicable Margin in effect during such period; and the fee relating to the period from and including the effective date to but excluding the date of expiry of such Letter of Credit shall be based upon the Applicable Margin in effect from after the effective date; and the Agent and the Borrower agree to promptly make all such payments as the Agent may advise are required in order to effect such adjustments. |
The determination of such adjustments by the Agent shall be deemed to be correct absent manifest error. If the Agent does not receive a Quarterly Compliance Certificate on a date required pursuant to section 7.04(c), then from and after the date such Quarterly Compliance Certificate was required to have been delivered, the Applicable Margin in respect of each Availment Option shall be the highest Applicable Margin relating thereto, until the fifth Business Day following receipt by the Agent of the required Quarterly Compliance Certificate.
| -46- |
5.02 Notice Periods
| (a) | The Borrower shall provide written notice to the Agent in respect of Advances, Rollovers, Substitutions and Repayments as set out below: |
| (i) | two (2) Business Days’ notice is required before 10:00 a.m. Toronto time in respect of an Advance, Rollover, Substitution or voluntary Repayment relating to a Prime Rate Loan, except that no notice is required for Advances and Repayments under the Swingline; |
| (_) | two (2) Business Days' notice is required before 10:00 a.m. Toronto time in respect of an Advance, Rollover, Substitution or voluntary Repayment relating to a Bankers’ Acceptance or a BA Equivalent Note; |
| (_) | notice is required for each voluntary Repayment under the Non-Revolving Facilities in accordance with section 3.10, as applicable; |
| (iv) | despite the foregoing provisions of this section 5.02, three (3) Business Days' notice is required before 10:00 a.m. Toronto time in respect of any Advance, Rollover, Substitution or voluntary Repayment if the amount is greater than $25,000,000; and |
| (v) | three (3) Business Days' notice is required before 10:00 a.m. Toronto time in respect of the issuance of a Letter of Credit. |
| (b) | Notice of any Advance, Rollover or Substitution referred to in paragraph (a) above shall be given in the form of a Draw Request, Rollover Notice or Substitution Notice, as the case may be, attached hereto as Exhibits, and shall be given to the Agent at its address in section 13.09. |
| (c) | If notice is not provided as contemplated herein with respect to the maturity of any Bankers' Acceptance or BA Equivalent Loan, the Agent may in its discretion convert such Bankers' Acceptance or BA Equivalent Loan upon its maturity into a Prime Rate Loan. |
| (d) | Any conversion from one form of Availment Option to another shall be subject to satisfaction of all of terms and conditions applicable to the form of the new Availment Option. |
5.03 Minimum Amounts, Multiples and Procedures re Draws, Substitutions and Repayments
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ |
| -47- |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ | |
| [Redaction - Minimum amounts and procedures for draws and substitutions] |
| (d) | Upon receipt of a Draw Request under any Facility, the Agent shall promptly notify each Lender under such Facility of the contents thereof and such Lender's Proportionate Share of the Advance. Such Draw Request shall not thereafter be revocable. |
| (e) | Each Advance shall be made by the applicable Lenders to the Agent at its address referred to in section 13.09 or such other address as the Agent may designate by notice in writing to the Lenders from time to time. Each Lender shall make available its Proportionate Share of each said Advance to the Agent. Unless the Agent determines that any condition of the Advance has not been satisfied or waived, the Agent shall make the funds so received from the Lenders available to the Borrower by 2:00 p.m. (Toronto time) on the requested date of the Advance. No Lender shall be responsible for any other Lender's obligation to make available its Proportionate Share of the said Advance. |
| (f) | The Borrower hereby irrevocably directs the Agent to deposit the proceeds of each Advance under Facility D into the Aurora Sun Project Account. The Borrower shall not be entitled to withdraw any funds from the Aurora Sun Project Account unless at the time of each such withdrawal all conditions precedent to Advances under the applicable Tranche hereunder have been satisfied. Unless otherwise agreed in writing by the Facility D Lenders, no withdrawal of funds from the Aurora Sun Project Account shall be made except for the purposes of: (i) payment of Aurora Sun Project Construction Costs or Aurora Sun Project Equipment Costs (as applicable); and (ii) payments of principal, interest, fees, expenses and other amounts to the Lenders pursuant to this Agreement. |
| (g) | The Borrower agrees to deliver in favour of each Lender such other agreements and documentation as such Lender may reasonably require (not inconsistent with this Agreement) in respect of such Lender's requirements for the acceptance of Bankers' Acceptances or the issuance of BA Equivalent Notes. |
| (h) | All payments of principal, interest and other amounts made by the Borrower to the Agent in respect of the Outstanding Principal Amount under a Facility shall be paid by the Agent to the respective Lenders, each in accordance with its Proportionate Share. For greater certainty, however, stamping fees in respect of Bankers' Acceptances and BA Equivalent Notes shall be received and retained by the respective Lenders which issued or accepted such Bankers' Acceptances and BA Equivalent Notes. |
5.04 Place of Repayments
| (a) | All payments of principal, interest and other amounts to be made by the Borrower to the Agent pursuant to this Agreement shall be made at its address noted in section 13.09 or to such other address as the Agent may direct in writing from time to time. All such payments received by the Agent on a Business Day before 2:00 p.m. (Toronto time) shall be treated as having been received by the Agent on that day; payments made after such time on a Business Day shall be treated as having been received by the Agent on the next Business Day. |
| -48- |
| (b) | Whenever any payment shall be due on a day which is not a Business Day, the date for payment thereof shall be extended to the next succeeding Business Day. Interest shall continue to accrue and be payable thereon as provided herein, until the date on which such payment is received by the Agent. |
| (c) | The Borrower hereby authorizes and directs the Agent to debit automatically, by mechanical, electronic or manual means, any bank account maintained by it with the Agent for all amounts due and payable by it under this Agreement, including the repayment of principal and the payment of interest, fees and all charges relating to the operation of such bank account. The Agent shall notify the Borrower as to the particulars of such debits in accordance with its usual practice. |
5.05 Evidence of Obligations (Noteless Advances)
The Agent shall open and maintain, in accordance with its usual practice, accounts evidencing the Obligations; and the information entered in such accounts shall constitute prima facie evidence of the Obligations. The Agent may, but shall not be obliged to, request the Borrower to execute and deliver promissory notes from time to time as additional evidence of the Obligations, in form and substance satisfactory to the Agent acting reasonably.
5.06 Determination of Equivalent Amounts
Whenever it is necessary or desirable at any time to determine the Equivalent Amount in Canadian Dollars of an amount expressed in any other Qualified Currency, or vice-versa (specifically including for greater certainty the determination of whether the Outstanding Principal Amount under any Facility or Tranche exceeds the maximum amount of such Facility or Tranche), the Equivalent Amount shall be determined by reference to the Exchange Rate on the date of such determination. Notwithstanding the foregoing, however, for the purposes of determining fees applicable to Letters of Credit issued under Facility A and the standby fee applicable to Facility A, the Agent shall make such determination based upon the Exchange Rate in effect on the first Business Day of the month in which such determination is made.
5.07 Commitment to Purchase Bankers' Acceptances and BA Equivalent Notes
| (a) | In connection with the issuance of each Bankers' Acceptance or BA Equivalent Note, the amount payable by the purchaser thereof to the Borrower shall be determined in accordance with the following formula: |
| F | ||
| 1 + (D x T/365) | ||
where:
F means the face amount of such Bankers’ Acceptance or BA Equivalent Note,
D means the discount rate, and
T means the number of days to maturity of such Bankers’ Acceptance or BA Equivalent Note, with the amount as so calculated being rounded up or down to the fifth decimal place and with 0.000005 being rounded up.
| -49- |
| (b) | Each BA Lender which is a bank listed in Schedule I of the Bank Act (Canada) agrees to purchase those Bankers' Acceptances which it has accepted at a discount from the face amount thereof equal to the CDOR Rate for the relevant period in effect on the issuance date thereof; provided however that if BMO is the only BA Lender under a Facility, the discount rate shall be the applicable discount rate established by BMO on the issuance date thereof. |
| (c) | Each BA Lender which is a bank listed in Schedule II or Schedule III of the Bank Act (Canada) agrees to purchase those Bankers' Acceptances which it has accepted at a discount from the face amount thereof equal to the CDOR Rate for the relevant period in effect on the issuance date thereof plus a premium determined by such BA Lender not in excess of one-tenth of one percent (0.10%) per annum. |
| (d) | Each Non-BA Lender agrees to purchase BA Equivalent Notes issued by it hereunder at a discount from the face amount thereof equal to the CDOR Rate for the relevant period in effect on the issuance date thereof. |
| (e) | The discount applicable to each Bankers' Acceptances and BA Equivalent Note shall be determined on the basis of a year of 365 days. |
5.08 Provisions Regarding Bankers' Acceptances
The following provisions are applicable to Bankers' Acceptances issued by the Borrower and accepted by any BA Lender hereunder:
Payment of Bankers' Acceptances
| (a) | The Borrower agrees to provide for each Bankers' Acceptance by payment of the face amount thereof to the Agent on behalf of the BA Lender on the maturity of the Bankers' Acceptance or, prior to such maturity, on the Acceleration Date; and the Agent shall remit the said amount to such BA Lender and such BA Lender shall in turn remit such amount to the holder of the Bankers' Acceptance. If the Borrower fails to provide for the payment of the Bankers' Acceptance accordingly, any amount not so paid shall be immediately payable by the Borrower to the Agent on behalf of the BA Lender together with interest on such amount calculated daily and payable monthly at the rate and in the manner applicable to Prime Rate Loans under the Facility under which such Bankers' Acceptance was issued. The Borrower agrees not to claim any days of grace for the payment at maturity of any Bankers' Acceptance and agrees to indemnify and save harmless the BA Lender in connection with all payments made by the BA Lender (or by the Agent on its behalf) pursuant to Bankers' Acceptances accepted by the BA Lender, together with all reasonable costs and expenses incurred by the BA Lender in this regard. The Borrower hereby waives any defences to payment which might otherwise exist if for any reason a Bankers' Acceptance is held by the BA Lender for its own account at maturity. |
| -50- |
Availability of Bankers' Acceptances
| (b) | If at any time and from time to time the Agent determines, acting reasonably, that there no longer exists a market for Bankers' Acceptances for the term requested by the Borrower, or at all, the Agent shall so advise the Borrower, and in such event the BA Lenders shall not be obliged to accept and the Borrower shall not be entitled to issue Bankers' Acceptances. |
Power of Attorney
| (c) | The Borrower hereby appoints each BA Lender as its true and lawful attorney to complete and issue Bankers' Acceptances on behalf of the Borrower in accordance with written (including facsimile) transmitted instructions provided by the Borrower to the Agent on behalf of such BA Lender, and the Borrower hereby ratifies all that its said attorney may do by virtue thereof except anything done that constitutes negligence or wilful misconduct by the BA Lender. The Borrower agrees to indemnify and hold harmless the Agent and the BA Lenders and their respective directors, officers and employees from and against any charges, complaints, costs, damages, expenses, losses or liabilities of any kind or nature which they may incur, sustain or suffer, arising from or by reason of acting, or failing to act, as the case may be, in reliance upon this power of attorney, except to the extent caused by the negligence or wilful misconduct of the Agent or the BA Lender or their respective directors, officers and employees. The Borrower hereby agrees that each Bankers' Acceptance completed and issued and accepted in accordance with this section by a BA Lender on behalf of the Borrower is a valid, binding and negotiable instrument of the Borrower as drawer and endorser. The Borrower agrees that each BA Lender's accounts and records will constitute prima facie evidence of the execution and delivery by the Borrower of Bankers' Acceptances. This power of attorney shall continue in force until the earlier of (i) delivery of written notice of revocation by the Borrower to the Agent on behalf of the BA Lender at the Agent's address provided in section 13.09, and (ii) the termination of this Agreement. |
Dispositions
| (d) | The BA Lender may from time to time hold, sell, rediscount to otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it. |
5.09 Provisions regarding BA Equivalent Notes
Each Non-BA Lender will not accept Bankers' Acceptances hereunder, and shall instead from time to time make BA Equivalent Loans to the Borrower. Each BA Equivalent Loan shall be evidenced by a non-interest bearing promissory note payable by the Borrower to the Non-BA Lender substantially in the form of Exhibit "J" attached hereto, which will be purchased by the Non-BA Lender. Each BA Equivalent Note shall be negotiable by the Non-BA Lender without notice to or the consent of the Borrower, and the holder thereof shall be entitled to enforce such BA Equivalent Note against the Borrower free of any equities, defences or rights of set-off that may exist between the Borrower and the Non-BA Lender. In this Agreement, all references to a BA Equivalent Note shall mean the loan evidenced thereby if required by the context; and all references to the "issuance" of a BA Equivalent Note by a Non-BA Lender and similar expressions shall mean the making of a BA Equivalent Loan by the Non-BA Lender which is evidenced by a BA Equivalent Note. The following provisions are applicable to each BA Equivalent Loan made by a Non-BA Lender to the Borrower hereunder:
| -51- |
Payment of BA Equivalent Notes
| (a) | The Borrower agrees to provide for each BA Equivalent Note by payment of the face amount thereof to the Agent on behalf of the Non-BA Lender on the maturity of the BA Equivalent Note or, prior to such maturity, on the Acceleration Date; and the Agent shall remit the said amount to such Non-BA Lender and such Non-BA Lender shall in turn remit such amount to the holder of the BA Equivalent Note. If the Borrower fails to provide for the payment of the BA Equivalent Note accordingly, any amount not so paid shall be immediately payable by the Borrower to the Agent on behalf of the Non-BA Lender together with interest on such amount calculated daily and payable monthly at the rate and in the manner applicable to Prime Rate Loans under the Facility under which such BA Equivalent Note was issued. The Borrower agrees not to claim any days of grace for the payment at maturity of any BA Equivalent Note and agrees to indemnify and save harmless the Non-BA Lender in connection with all payments made by the Non-BA Lender (or by the Agent on its behalf) pursuant to BA Equivalent Notes accepted by the Non-BA Lender, together with all reasonable costs and expenses incurred by the Non-BA Lender in this regard. The Borrower hereby waives any defences to payment which might otherwise exist if for any reason a BA Equivalent Note is held by the Non-BA Lender for its own account at maturity. |
Availability of BA Equivalent Loans
| (b) | The Non-BA Lender shall have no obligation to make BA Equivalent Loans during any period in which the BA Lenders' obligation to issue Bankers' Acceptances is suspended pursuant to section 3.5 of the CBA Model Provisions. |
Power of Attorney
| (c) | The Borrower hereby appoints the Non-BA Lender as its true and lawful attorney to complete BA Equivalent Notes on behalf of the Borrower in accordance with written (including facsimile) transmitted instructions delivered by the Borrower to the Agent, and the Borrower hereby ratifies all that its said attorney may do by virtue thereof except anything done that constitutes negligence or wilful misconduct by the Non-BA Lender. The Borrower agrees to indemnify and hold harmless the Agent and the Non-BA Lender and their respective directors, officers and employees from and against any charges, complaints, costs, damages, expenses, losses or liabilities of any kind or nature which they may incur, sustain or suffer, arising from or by reason of acting, or failing to act, as the case may be, in reliance upon this power of attorney except to the extent caused by the negligence or wilful misconduct of the Agent or the Non-BA Lender or their respective directors, officers and employees. The Borrower hereby agrees that each BA Equivalent Note completed by the Non-BA Lender on behalf of the Borrower is a valid, binding and negotiable instrument of the Borrower as drawer and endorser. The Borrower agrees that the Non-BA Lender's accounts and records will constitute prima facie evidence of the execution and delivery by the Borrower of BA Equivalent Notes. This power of attorney shall continue in force until the earlier of (i) delivery of written notice of revocation by the Borrower to the Agent on behalf of the Non-BA Lender at the Agent's address provided in section 13.09, and (ii) the termination of this Agreement. |
| -52- |
Dispositions
| (d) | The Non-BA Lender may from time to time hold, sell, rediscount to otherwise dispose of any or all BA Equivalent Notes accepted and purchased by it. |
5.10 No Repayment of Certain Availment Options
The Borrower acknowledges that Bankers’ Acceptances and BA Equivalent Loans may not be repaid prior to the maturity thereof. If prior to the maturity of such Availment Option the Agent receives any funds from the Borrower or any other Person which are intended to be applied as a Repayment thereof, the Agent may retain such funds without any obligation to invest such funds or pay interest thereon, and shall apply such funds against such Availment Option on the scheduled maturity date thereof.
5.11 Illegality
The obligation of any Lender to make Advances under any Facility shall be suspended if and for so long as it is unlawful or impossible for such Lender to maintain its Commitment under any Facility or make Advances thereunder as a result of the adoption of any Applicable Law or any change in any Applicable Law, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender with any request or directive (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency.
5.12 Anti-Money Laundering
The Borrower acknowledges that pursuant to AML Legislation the Agent and the Lenders may be required to obtain, verify and record information regarding the Companies and their respective directors, authorized signing officers, direct or indirect shareholders, partners or other persons in control of the Companies and the transactions contemplated hereby. The Borrower shall promptly provide all such information, including any supporting documentation and other evidence, as may be requested by the Agent or any Lender, or any prospective assignee or participant of a Lender or the Agent, in order to comply with any applicable AML Legislation, whether now or hereafter in existence. If the Agent has ascertained the identity of any Company, or any authorized signatories of any Company, for the purposes of applicable AML Legislation, then the Agent shall:
| (a) | be deemed to have done so as an agent for each Lender, and this Agreement shall constitute a "written agreement" in such regard between each Lender and the Agent within the meaning of applicable AML Legislation; and |
| (b) | provide each Lender with copies of all information obtained in such regard without any representation or warranty as to its accuracy or completeness. |
Notwithstanding the foregoing each Lender acknowledges and agrees that the Agent has no obligation to ascertain the identity of any Company, or any authorized signatories of any Company, on behalf of such Lender or to confirm the completeness or accuracy of any information that the Agent obtains from any Company, or any such authorized signatory, in doing so.
| -53- |
5.13 Terrorist Lists
Each Company is and will remain in compliance in all material respects with all Canadian economic sanctions laws and implementing regulations under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), the Criminal Code (Canada), the United Nations Act (Canada) and all similar applicable anti-money laundering and counter-terrorism financing provisions and regulations issued pursuant to any of the foregoing. No Company (i) is a Person designated by the Canadian government on any list set out in the United Nations Al-Qaida and Taliban Regulations, the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism or the Criminal Code (collectively, the "Terrorist Lists") with which a Canadian Person cannot deal with or otherwise engage in business transactions, (iii) is a Person who is otherwise the target of Canadian economic sanctions laws or (iv) is controlled by (including without limitation by virtue of such Person being a director or owning voting shares or interests), or acts, directly or indirectly, for or on behalf of, any Person or entity on a Terrorist List or a foreign government that is the target of Canadian economic sanctions prohibitions such that the entry into, or performance under, this Agreement or any other Loan Document would be prohibited under Canadian Law.
Article VI - REPRESENTATIONS AND WARRANTIES
6.01 Representations and Warranties
The Borrower hereby represents and warrants to the Agent and the Lenders as follows:
| (a) | Status - Each Company has been duly incorporated (or amalgamated) and organized and is validly subsisting under the Laws of its jurisdiction of incorporation and is up-to-date in respect of all material corporate filings. |
| (b) | Corporate Information - Schedule 6.01(b) attached hereto contains a list of the Companies and the following information in respect of each Company: prior names and corporate predecessors, governing jurisdiction and all prior governing jurisdictions, registered office and principal place of business, all Medical Cannabis Qualified Jurisdictions, Non-Medical Cannabis Qualified Jurisdictions and other jurisdictions in which it has places of business or owns assets and all locations therein, the number and classes of its issued and outstanding shares, and (except in the case of the Borrower) a list of its shareholders including the number and class of shares held by each. Schedule 6.01(b) also contains a list of all Secured Subsidiaries and a list of all Unsecured Subsidiaries. |
| (c) | Solvency - Each Company is Solvent. |
| (d) | No Pending Changes - No Person has any agreement or option or any right or privilege (whether by Law, pre-emptive or contractual) capable of becoming an agreement, including convertible securities, warrants or convertible obligations of any nature, for the purchase of any properties or assets of any Company out of the ordinary course of business or for the purchase, subscription, allotment or issuance of any debt or equity securities of any Company. |
| -54- |
| (e) | No Conflicting Agreements - Neither the execution and delivery of the Security, nor compliance with the terms, provisions and conditions of this Agreement or the Security will conflict with, result in a breach of, or constitute a default under the charter documents or by-laws of any Company or any agreement or instrument to which it is a party or is otherwise bound, and does not require the consent or approval of any Person, other than those which have been obtained. |
| (f) | No Conflict with Charter Documents - There are no provisions in the charter documents, constitution or by-laws of any Company of or in any unanimous shareholder agreement affecting it which restrict or limit its powers to borrow money, issue debt obligations, guarantee the payment or performance of the obligations of others, or otherwise encumber all or any of its property, now owned or subsequently acquired. |
| (g) | Loan Documents - The Borrower has the corporate capacity, power, legal right and authority to borrow from the Lenders, perform its obligations under this Agreement and provide the Security required to be provided by it hereunder; and each Secured Subsidiary has the corporate capacity, power, legal right and authority to guarantee payment to the Agent and the Lenders of the Borrower’s Obligations and provide the Security required to be provided by it hereunder. The execution and delivery of the Loan Documents by the Secured Companies and the performance of their respective obligations therein have been duly authorized by all necessary corporate action. This Agreement and the other Loan Documents constitute legal, valid and binding obligations of the Secured Companies party thereto, enforceable against them in accordance with the terms and provisions thereof, subject to Laws of general application affecting creditors' rights (including Insolvency Legislation) and the discretion of the court in awarding equitable remedies. |
| (h) | Conduct of Business; Material Permits - Each Company has always been and continues to be in compliance in all material respects with all Applicable Laws of each jurisdiction in which it owns assets or carries on business and has always been and continues to be duly licensed, registered and qualified to do business and in good standing in each such jurisdiction; and all such licences, registrations and qualifications presently held by it are valid and subsisting and in good standing. Without limiting the generality of the foregoing, each Company has never and does not presently carry on any Medical Cannabis-Related Activities in any jurisdiction which is not a Medical Cannabis Qualified Jurisdiction, and each Company has never and does not presently carry on any Non-Medical Cannabis-Related Activities in any jurisdiction which is not a Non-Medical Cannabis Qualified Jurisdiction. Attached hereto as Schedule 6.01(h) is a true and complete list of all Material Permits as at the Amendment Closing Date. Each Company is in compliance with the Code of Conduct. |
| (i) | Ownership of Assets; Specific Permitted Liens - The Companies own all assets required in order to carry on their businesses as presently conducted. Each Company owns, and possesses its assets free and clear of any and all Liens except for Permitted Liens. No Company has any commitment or obligation (contingent or otherwise) to grant any Liens except for Permitted Liens. No event has occurred which constitutes, or which with the giving of notice, lapse of time or both would constitute, a material default under any Lien which has been granted by any of the Companies. Schedule 6.01(i) attached hereto contains a true and complete list of all Specific Permitted Liens as at the Amendment Closing Date. |
| -55- |
| (j) | Owned Properties - There are no Owned Properties other than: (i) as at the Amendment Closing Date, those listed in Schedule 6.01(j) attached hereto; and (ii) after the Amendment Closing Date, additional Owned Properties (if any) in respect of which all Security has been provided in favour of the Agent as required pursuant to section 8.01 herein. |
| (k) | Material Leased Properties - There are no Material Leased Properties other than: (i) as at the Amendment Closing Date, those listed in Schedule 6.01(k) attached hereto; and (ii) after the Amendment Closing Date, additional Material Leased Properties (if any) in respect of which all Security has been provided in favour of the Agent as required pursuant to section 8.01 herein. Schedule 6.01(k) attached hereto contains a true and complete list of all Material Leased Properties as at the Amendment Closing Date including in respect of each applicable lease the names of the parties, the municipal address and legal description of the Material Leased Property, the rent payable under the lease, the term of the lease and all renewal options, and the existence of any purchase option or right of first refusal in respect of the purchase of the Material Leased Property. |
| (l) | Intellectual Property - Each Company possesses or has the right to use all Intellectual Property material to the conduct of its business, each of which is in good standing in all material respects; and has the right to use such Intellectual Property without violation of any material rights of others with respect thereto. Attached hereto as Schedule 6.01(l) is a list of all such material Intellectual Property held by the Companies as at the Amendment Closing Date, including a description of the nature of such rights. No Person has asserted any claim in respect of the validity of such Intellectual Property or the Companies’ rights therein, and the Borrower is not aware of any basis for the assertion of any such claims. The Borrower is not aware of any material infringement of the Companies’ rights under such Intellectual Property by other Persons. The conduct and operations of the businesses of each Company do not infringe, misappropriate, dilute or violate any Intellectual Property rights held by any other Person. |
| (m) | Insurance - The Companies have obtained insurance which satisfies all requirements in section 7.01(h) herein. |
| (n) | Material Agreements - Each Material Agreement to which any Company is a party is in good standing and in full force and effect. None of the Companies, or, to the best of the Borrower's knowledge, any of the other parties thereto, has been or is presently in material breach of any of the terms or conditions contained in any Material Agreement to which it has been a party or is presently a party. Attached hereto as Schedule 6.01(n) is a true and complete list of all Material Agreements to which the Companies are party as at the Amendment Closing Date. |
| (o) | Labour Agreements - Schedule 6.01(o) attached hereto contains a true and complete list of all contracts with labour unions and employee associations to which the Companies are a party as at the Amendment Closing Date, and the Borrower is not aware of any attempts to organize or establish any other labour union or employee association. |
| (p) | Environmental Laws - Except to the extent disclosed in Schedule 6.01(p) attached hereto: |
| (_) | each Company and its business, operations, assets, equipment, property, leaseholds and other facilities is in compliance in all material respects with all Requirements of Environmental Law, specifically including all Requirements of Environmental Law concerning the storage and handling of Hazardous Materials; |
| -56- |
| (_) | each Company holds all material permits, licenses, certificates and approvals from Governmental Authorities which are required in connection with air emissions, discharges to surface or groundwater, noise emissions, solid or liquid waste disposal, the use, generation, storage, transportation or disposal of Hazardous Materials and all other Requirements of Environmental Law; |
| (_) | there has been no material emission, spill, release, or discharge into or upon the air, soils (or any improvements located thereon), surface water or groundwater or the sewer, septic system or waste treatment, storage or disposal system servicing the premises, of any Hazardous Materials at or from any of the Properties; |
| (_) | no written complaint, order, directive, claim, citation, or notice from any Governmental Authority or any other Person has been received by any Company with respect to any of the Properties in respect of air emissions, spills, releases, or discharges to soils or improvements located thereon, surface water, groundwater or the sewer, septic system or waste treatment, storage or disposal systems servicing any of the Properties, noise emissions, solid or liquid waste disposal, the use, generation, storage, transportation, or disposal of Hazardous Materials or other Requirements of Environmental Law affecting the Properties; |
| (v) | there are no legal or administrative proceedings, investigations or claims now pending, or to the Borrower's knowledge, threatened in writing, with respect to the presence on or under, or the discharge, emission, spill, radiation or disposal into or upon any of the Properties, the atmosphere, or any watercourse or body of water, of any Hazardous Material; nor are there any material matters under discussion between any Company and any Governmental Authority relating thereto; and there is no factual basis for any such proceedings, investigations or claims; and |
| (vi) | the Companies have no material indebtedness, obligation or liability, absolute or contingent, matured or not matured, with respect to the storage, treatment, cleanup or disposal of any Hazardous Materials, including without limitation any such indebtedness, obligation, or liability under any Requirements of Environmental Law regarding such storage, treatment, cleanup or disposal. |
| (q) | Litigation - There are no actions, suits or proceedings pending, or to the knowledge of the Borrower threatened, against any Company in any court or before or by any federal, provincial, municipal or other Governmental Authority except: (i) litigation disclosed in Schedule 6.01(q) attached hereto; and (ii) other litigation in which all amounts claimed against the Companies do not in the aggregate exceed Two Million Dollars ($2,000,000). |
| (r) | Pension Plans - Schedule 6.01(r) attached hereto contains a true and complete list of all Pension Plans established by the Companies as at the Amendment Closing Date. The Companies are not party to any Defined Benefit Pension Plans. No steps have been taken to terminate any such Pension Plan (in whole or in part), no contribution failure has occurred with respect to any such Pension Plan sufficient to give rise to a Lien under any Applicable Laws of any jurisdiction, and no condition exists and no event or transaction has occurred with respect to any such Pension Plan which might result in the incurrence by any Company of any material liability, fine or penalty. Each such Pension Plan is in compliance in all material respects with all applicable pension benefits and tax Laws, (i) all contributions (including employee contributions made by authorized payroll deductions or other withholdings) required to be made to the appropriate funding agency in accordance with all Applicable Laws and the terms of such Pension Plan have been made in accordance with all Applicable Laws and the terms of such Pension Plan, (ii) to the extent applicable, all liabilities under such Pension Plan are funded, on a going concern and solvency basis, in accordance with the terms of the respective Pension Plans, the requirements of applicable pension benefits laws and of applicable regulatory authorities and the most recent actuarial report filed with respect to the Pension Plan, and (iii) no event has occurred and no conditions exist with respect to any such Pension Plan that has resulted or could reasonably be expected to result in such Pension Plan having its registration revoked or refused for the purposes of any applicable pension benefits or tax Laws or being placed under the administration of any relevant pension benefits regulatory authority or being required to pay any Taxes or penalties under any applicable pension benefits or tax Laws. |
| -57- |
| (s) | Financial Statements - The most recent Year-end Financial Statements and Interim Financial Statements delivered to the Agent and the Lenders have been prepared in accordance with GAAP (except in the case of the Interim Financial Statements, subject to normal adjustments and the absence of footnotes) on a basis which is consistent with the previous fiscal period, and present fairly: |
| (_) | the assets and liabilities (whether accrued, absolute, contingent or otherwise) and financial condition of the Borrower on a consolidated basis as at the dates therein specified; |
| (_) | the sales, earnings and results of operations of the Borrower on a consolidated basis during the periods covered thereby; and |
| (_) | in the case of the Year-end Financial Statements, the changes in financial position of the Borrower on a consolidated basis; |
and the Companies have no material liabilities (whether accrued, absolute, contingent or otherwise) except as disclosed therein and liabilities incurred in the ordinary course of business which do not directly or indirectly pertain to financing activities; and since the dates of the said Year-end Financial Statements and Interim Financial Statements, as the case may be, no material liabilities have been incurred by the Companies except in the ordinary course of business and no Material Adverse Change has occurred.
| (t) | Financial and Other Information - All financial and other information provided by or in respect of the Companies to the Agent and the Lenders was true, correct and complete in all material respects when provided. No information, exhibit, or report furnished by the Companies to the Agent or the Lenders contains any material misstatement of fact or omits to state a material fact or any fact necessary to make the statement contained therein not materially misleading in the circumstances in which it was made. |
| (u) | No Guarantees - No Guarantees have been granted by any Company except for Guarantees permitted under Section 7.02(b). |
| (v) | Tax Returns - Each Company has duly and timely filed all tax returns required to be filed by it, and has paid all Taxes which are due and payable by it except for Taxes being contested in good faith and in respect of which reserves have been established in accordance with GAAP. Each Company has also paid all other Taxes, charges, penalties and interest due and payable under or in respect of all assessments and re-assessments of which it has received written notice except for Taxes being contested in good faith and in respect of which reserves have been established in accordance with GAAP. There are no actions, suits, proceedings, investigations or claims pending, or to the knowledge of the Borrower threatened in writing, against any Company in respect of Taxes, governmental charges or assessments except for any such actions, suits, proceedings, investigations or claims which are being contested in good faith and in respect of which reserves have been established in accordance with GAAP. |
| -58- |
| (w) | Statutory Liens - Each Company has remitted on a timely basis all amounts required to have been withheld and remitted (including withholdings from employee wages and salaries relating to income tax, employment insurance and Canada Pension Plan contributions), goods and services tax and all other amounts which if not paid when due could result in the creation of a Statutory Lien against any of its property, except for Permitted Liens. |
| (x) | Sanctions, etc. - Each Company and each of its Affiliates, and each of their respective directors, officers, employees and agents (i) is not a Sanctioned Person; and (ii) is not located, organized or resident in a country or territory that is or whose government is a Sanctioned Entity, and (iii) does not own or control any assets located in a country or territory that is or whose government is a Sanctioned Entity except for products sold to customers in any such country or territory in the ordinary course of business in compliance with applicable Sanctions laws. Each Company and each of its Affiliates does not knowingly derive any revenues from investments in, or transactions with Sanctioned Persons or Sanctioned Entities, except in compliance with applicable Sanctions laws. No proceeds of any Advance will be used to fund any operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity, except in compliance with applicable Sanctions laws. |
| (y) | No Default, etc. - No Default, Event of Default or Material Adverse Change has occurred and is continuing. |
| (z) | Transactions with Related Persons - The Companies are not party to any contract, commitment or transaction (including by way of loan) with any Related Person, except Permitted Related Person Transactions. |
| (aa) | Full Disclosure - There are no facts known to the Borrower which could reasonably be expected to materially adversely affect the Secured Companies' ability to observe and perform their respective obligations under the Loan Documents. |
6.02 Survival of Representations and Warranties
The Borrower acknowledges that the Agent and the Lenders shall rely upon the representations and warranties contained in this Article in connection with the establishment and continuation of the Facilities and also in connection with the entering into by any Lender of any Hedge Transaction with the Borrower. Notwithstanding any investigations which may be made by the Agent or the Lenders, the said representations and warranties shall survive the execution and delivery of this Agreement until full and final payment and satisfaction of the Obligations.
| -59- |
Article VII - COVENANTS
7.01 Positive Covenants
The Borrower hereby covenants and agrees with the Agent and the Lenders that it will, and will cause each of its Subsidiaries to:
| (a) | Prompt Payment - in the case of the Borrower, pay all principal, interest and other amounts due hereunder at the times and in the manner specified herein; |
| (b) | Preservation of Corporate Existence, Material Permits, etc. - maintain its corporate existence in good standing, continue to carry on its business, preserve its rights, powers, licences, privileges, franchises and goodwill, including all Material Permits in all applicable jurisdictions, maintain all qualifications to carry on business in each applicable jurisdiction, and conduct its business in a proper and efficient manner so as to protect its property and income; |
| (c) | Compliance with Laws - comply in all material respects with all Applicable Laws (specifically including, for greater certainty, all applicable Requirements of Environmental Law) and use the proceeds of all Advances hereunder for legal and proper purposes; and without limiting the generality of the foregoing the Borrower shall and shall cause each other Company to: |
| (_) | manage and operate its business and Investments in accordance with all Applicable Laws; |
| (_) | engage in Medical Cannabis-Related Activities only in Medical Cannabis Qualified Jurisdictions, and engage in Non-Medical Cannabis Cannabis-Related Activities only in Non-Medical Cannabis Qualified Jurisdictions, in each case in accordance with all Applicable Laws therein; |
| (_) | ensure that all activities of the Companies relating to the cultivation, production and processing of Cannabis occur solely in facilities licensed by Governmental Authorities in Qualified Jurisdictions; |
| (_) | ensure that all sales of Cannabis are to Governmental Authorities in Qualified Jurisdictions and any other Persons approved in writing from time to time by the Agent upon the instructions of the Required Lenders; and |
| (_) | comply with all Applicable Laws in effect in each applicable jurisdiction with respect to any activities, including advertising or promotional activities, relating to or in connection with the possession, importation, exportation, cultivation, production, purchase, testing, distribution or sale of Industrial Hemp; |
| (d) | Payment of Taxes, etc. - pay when due all rents, Taxes, rates, levies, assessments and governmental charges, fees and dues lawfully levied, assessed or imposed in respect of its property which are material to the conduct of its business, and deliver to the Agent upon request receipts evidencing such payments; except for rents, Taxes, rates, levies, assessments and governmental charges, fees or dues in respect of which an appeal or review proceeding has been commenced, a stay of execution pending such appeal or review proceeding has been obtained or reserves have been established in accordance with GAAP; and the amounts in question do not in the aggregate materially detract from the ability of the Companies to carry on their businesses and to perform and satisfy all of their respective obligations hereunder; |
| -60- |
| (e) | Maintain Records - maintain adequate books, accounts and records in accordance with GAAP; |
| (f) | Maintenance of Assets - keep its property and assets (except obsolete assets) in good repair and working condition; |
| (g) | Inspection - permit the Agent and its employees and agents to enter upon and inspect its properties, assets, books and records from time to time during normal business hours upon reasonable prior notice and in a manner which does not materially interfere with its business, and make copies of and abstracts from such books and records and discuss its affairs, finances and accounts with any of its officers, directors, accountants and auditors, and execute and deliver all consents and further assurances as may be necessary or desirable in order for the Agent and its agents to obtain information from Governmental Authorities and other third parties with respect to environmental matters; |
| (h) | Insurance - obtain and maintain, from insurance companies acceptable to the Agent and the Lenders, liability insurance, all-risks property insurance on a replacement cost basis (less a reasonable deductible not to exceed amounts customary in the industry for similar businesses and properties), business interruption insurance, product recall and liability insurance coverage for at least Ten Million Dollars ($10,000,000), and insurance in respect of such other risks as are customary in the industry for similar businesses and properties; all of which policies of insurance shall be in such amounts as are customary in the industry for similar businesses and properties; and the Borrower shall cause the interest of the Agent to be noted on property insurance policies as first mortgagee and loss payee (which policies shall include the standard mortgage clause approved by the Insurance Bureau of Canada (or an equivalent clause in other applicable jurisdictions)) and as an additional insured under liability insurance policies; and the Borrower shall provide the Agent with certificates of insurance and certified copies of such policies from time to time upon request; |
| (i) | Perform Obligations - fulfil all covenants and obligations required to be performed by it under those Loan Documents to which it is a party; |
| (j) | Notice of Certain Events - provide written notice to the Agent of each of the following promptly after the occurrence thereof: |
| (_) | any Default, Event of Default or Material Adverse Change; |
| (_) | a default by any Company under any agreement relating to Funded Debt; |
| (iii) | receipt by any Company of notice of the termination or suspension of, or a material default under, any Material Agreement or Material Permit; |
| (_) | all amendments to Material Permits; |
| (_) | all material correspondence and notices received from any Governmental Authority or stock exchange with respect to any Material Permit or any regulatory or other investigations into the Companies’ business practices; |
| -61- |
| (vi) | any changes in the identity of Responsible Persons, together with satisfactory evidence of security clearances for such Responsible Persons under the Cannabis Act or the Cannabis Regulations; and any rejection notice for new or renewal security clearance applications for each Responsible Person. |
| (vii) | the results of any facility audit by any Governmental Authority to the extent such results are material and negative; and (ii) any warning document, letter or notice from any Governmental Authority that would have a material and negative impact on any Material Permit, together with the Company's action plan with respect thereto; |
| (viii) | the issuance of any management letter to the Borrower by its auditor; and |
| (ix) | the incorrectness of any representation or warranty contained herein in any material respect; |
| (k) | Bank Accounts and Service Agreements - maintain all bank accounts and Service Agreements of the Canadian Companies with BMO and its Affiliates, except: |
| (_) | bank accounts of the Canadian Companies having an aggregate principal balance less than the greater of (i) Two Million Five Hundred Thousand Dollars ($2,500,000); and (ii) ten percent (10)% of the consolidated cash of the Canadian Companies' at the time of determination; and |
| (_) | bank accounts held by the Canadian Companies with banks other than BMO in respect of which deposit account control agreements have been provided in favour of the Agent, to the extent requested by the Agent upon the instructions of the Required Lenders; |
| (l) | Use of Advances - utilize the proceeds of all Advances for the Companies' own business purposes; and not permit such proceeds to be used, directly or indirectly, by any other Person or for any other purpose; |
| (m) | Environmental Information - if requested by the Agent from time to time upon the instructions of the Required Lenders: (i) provide the Agent with an environmental questionnaire in the Agent's standard form completed by a knowledgeable officer of the Borrower in respect of any Property; and (ii) if the information contained therein is inconsistent in any material respect with the representations in section 6.01(p) herein, provide the Agent with a phase I environmental report in respect of such Property (and if recommended in such phase I report, a phase II environmental report), and promptly take all such action as may be required to comply with all reasonable recommendations contained in such report(s); and |
| (n) | Further Assurances - provide the Agent with such further information, financial data, documentation and other assurances as the Agent or the Lenders may reasonably require from time to time. |
7.02 Negative Covenants
The Borrower hereby covenants and agrees with the Agent and the Lenders that it will not, and will ensure that each of its Subsidiaries does not, without the prior written consent of the Agent on behalf of the Required Lenders (or if required pursuant to section 11.01, all Lenders acting unanimously), which consent may be withheld in their sole discretion unless otherwise expressly provided herein:
| -62- |
| (a) | Funded Debt - create, incur or assume any Funded Debt, except Permitted Funded Debt; |
| (b) | Guarantees - become obligated under Guarantees, except: (i) Guarantees which comprise part of the Security; (ii) Guarantees in respect of Permitted Funded Debt incurred by any other Secured Company; and (iii) Guarantees in respect of obligations incurred by any other Company under contracts (including leases) entered into in the ordinary course of business; |
| (c) | Liens - grant or suffer to exist any Lien in respect of any of its property, except Permitted Liens; |
| (d) | Disposition of Assets - directly or indirectly sell, transfer, assign, lease or otherwise dispose of any of its assets (including, without limitation, Intellectual Property), subject to the following exceptions: |
| (_) | each Company may sell or transfer assets to any other Secured Company, provided that the transferee has provided all Security required to be provided by it hereunder and no Default, Event of Default or Material Adverse Change has occurred and is continuing or would exist immediately thereafter; |
| (_) | each Unsecured Company may sell or otherwise dispose of assets; |
| (_) | each Secured Company may sell inventory in the ordinary course of business; and |
| (iv) | provided that no Default, Event of Default or Material Adverse Change has occurred and is continuing or would exist immediately thereafter, each Secured Company may sell assets which are obsolete or no longer used to carry on its business; and for greater certainty section 3.06(e) shall apply in respect thereof; and |
| (v) | in addition to the foregoing exceptions, provided that no Default, Event of Default or Material Adverse Change has occurred and is continuing or would exist immediately thereafter, each Secured Company may sell or otherwise dispose of assets (in one or a series of related transactions) in the ordinary course of business (but for greater certainty a sale and leaseback transaction shall not be considered to be in the ordinary course of business) provided that the fair market value of the assets which are the subject of each such disposition does not exceed Five Million Dollars ($5,000,000); and for greater certainty section 3.06(e) shall apply in respect thereof; |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| -63- |
[Redacted - Negative covenant of the Borrower]
| (f) | Certain Activities - directly or indirectly engage or participate in any Medical Cannabis-Related Activities in any jurisdiction other a Medical Cannabis Qualified Jurisdiction, or directly or indirectly engage or participate in any Non-Medical Cannabis-Related Activities in any jurisdiction other a Non-Medical Cannabis Qualified Jurisdiction; |
| (g) | Distributions - make any Distribution except as follows: |
| (_) | each Company may make Distributions to a Secured Company, provided that the Agent holds a First-Ranking Security Interest in all property and assets of the Secured Company receiving such Distribution; and |
| (_) | after the Conversion Date the Borrower may make Distributions provided that both before and immediately after each such Distribution the Borrower is in compliance with all financial covenants in section 7.03 herein and no Default, Event of Default or Material Adverse Change has occurred and is continuing; |
| (h) | Certain Payments - make any payment in respect of principal, interest, fees or any other amounts in respect of: |
| (_) | the 2018 Convertible Debentures, except for the payment of interest thereon in accordance with the terms thereof prior to the occurrence of a Default or Event of Default, and except with the prior written consent of the Lenders pursuant to section 2.04; |
| (ii) | any other Subordinated Debt, except to the extent expressly permitted herein or under the subordination, postponement and assignment agreement relating thereto; or |
| (_) | voluntary payments on account of the principal amount of the 2019 Convertible Notes; |
| -64- |
| (i) | Certain Amendments - agree to any amendments to (i) the 2018 Convertible Debentures or the trust indenture relating thereto; or (ii) the 2019 Convertible Notes or the trust indenture relating thereto; |
| (j) | Corporate Changes - materially change its capital structure or the nature of its business, or enter into any transaction whereby all or a substantial portion of its property, assets and undertaking would become the property of any other Person (other than a Secured Company), whether by way of reconstruction, reorganization, recapitalization, consolidation, amalgamation, merger, transfer, sale or otherwise; |
| (k) | Defined Benefit Pension Plans - establish, assume or otherwise become a party to or liable under any Defined Benefit Pension Plan; |
| (l) | New Subsidiaries - create or acquire any Subsidiary unless (i) all of the issued and outstanding shares in the capital of such Subsidiary are owned directly or indirectly by the Borrower; (ii) such new Subsidiary provides a Guarantee in respect of the Obligations and all Security required to be provided by it hereunder, unless the Lenders agreed that such Subsidiary shall be designated an Unsecured Subsidiary; and (iii) all of the issued and outstanding shares of such new Subsidiary are pledged to the Agent, and in each case accompanied by legal opinions as contemplated herein; |
| (m) | Fiscal Year - change its fiscal year; |
| (n) | Auditors - change its auditors to a firm that is not a nationally recognized auditing firm; |
| (o) | Dealing with Related Persons - enter into any contract, carry out any transaction or otherwise have any dealings with Related Persons, except Permitted Related Person Transactions; |
| (p) | Use of Advances - use the proceeds of any Advance for any purposes other than those expressly contemplated in this Agreement; and without limiting the generality of the foregoing, the proceeds of any Advance will not be used, directly or indirectly, to lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person to fund any operations in, finance any investments, business or activities in, or make any payments to a Sanctioned Person or a Sanctioned Entity if such funding, financing or paying would result in a violation of Sanctions by any Person (including any Person participating in such Advance, whether as underwriter, advisor, investor or otherwise), or in any other manner that would result in a violation of Sanctions by any Person; and the Agent and the Lenders in their sole and unfettered discretion may refuse to make any Advance or delay, block or refuse to process any transaction which they believe may result in a contravention of the foregoing covenant; |
| (q) | Restricted Jurisdictions - except as may be otherwise agreed in writing by the Lenders acting unanimously: |
| (i) | use the proceeds of any Advance, directly or indirectly, to lend, contribute or otherwise make available such proceeds to any Subsidiary which carries on business in a Restricted Jurisdiction; or |
| -65- |
| (_) | deposit or transfer funds, directly or indirectly, received from any Subsidiary which carries on business in a Restricted Jurisdiction into any bank account maintained by any Company with the Agent. |
_ _ _ _ _ _ _ _ _ _
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
[Redacted - Financial covenants by the Borrower]
7.04 Reporting Requirements
The Borrower shall deliver, or cause to be delivered (by email in accordance with section 13.09), the following financial and other information to the Agent at the times indicated below:
| (a) | a Borrowing Base Certificate as at the end of each month in the form of Exhibit "F" attached hereto, certified by the President, Chief Financial Officer or other senior officer of the Borrower acceptable to the Agent, by no later than twenty (20) days after the end of such month, which shall include: |
| (i) | an aged summary of accounts receivable of the Companies including the following information: country of domicile; intercompany accounts; doubtful accounts; accounts in dispute; contra accounts; holdbacks, and any deposits received from each account debtor which remain outstanding at the report date; and |
| (ii) | a summary of all amounts which comprise the Potential Statutory Priority Amount; |
| -66- |
| (b) | by no later than twenty (20) days after the end of each month, a certificate in the form of Exhibit "G" attached hereto, certified by the President, Chief Financial Officer or other senior officer of the Borrower acceptable to the Agent, which shall include: |
| (_) | a list of Medical Cannabis Qualified Jurisdictions; |
| (_) | a list of Non-Medical Cannabis Qualified Jurisdictions; |
| (_) | a list of jurisdictions in which the Companies own assets or carry on business which are not Qualified Jurisdictions and a summary of all activities of the Companies therein, and confirmation such activities do not contravene any Applicable Laws in such jurisdictions and that the Borrower has received legal advice from its counsel in such jurisdictions to that effect; and |
| (_) | confirmation that the Companies are carrying on Medical Cannabis-Related Activities only in Medical Cannabis Qualified Jurisdictions and Non-Medical Cannabis-Related Activities only in Non-Medical Cannabis Qualified Jurisdictions, in each case in compliance with all Applicable Laws therein; and all Material Permits issued by Governmental Authorities for the Companies’ facilities and operations remain in full force and effect; |
| (c) | quarterly, within forty-five (45) days after the end of each Fiscal Quarter other than the last Fiscal Quarter in each Fiscal Year: |
| (_) | the Interim Financial Statements in respect of such Fiscal Quarter accompanied by management's discussion and analysis; and |
| (_) | a Quarterly Compliance Certificate in respect of such Fiscal Quarter certified by the President, Chief Financial Officer or other senior officer of the Borrower acceptable to the Agent, in the form of Exhibit "H" attached hereto; |
| (d) | annually, within ninety (90) days after the end of each Fiscal Year: |
| (_) | the Year-End Financial Statements in respect of such Fiscal Year, accompanied by management's discussion and analysis and a copy of the Borrower's auditor's letter to management; and |
| (_) | a Quarterly Compliance Certificate in respect of such Fiscal Year certified by the President, Chief Financial Officer or other senior officer of the Borrower acceptable to the Agent, in the form of Exhibit "H" attached hereto; |
| (e) | annually, not later than one hundred twenty (120) days after the commencement of each Fiscal Year, the consolidated annual business plan of the Borrower for such Fiscal Year updated on a quarterly basis, including projections in respect of profit and loss, balance sheet, cash flow, Capital Expenditures and financial covenant calculations, including disclosure of all material assumptions utilized (the "Annual Business Plan") |
| -67- |
| (f) | concurrently with the delivery of all financial statements referred to above, a management-prepared reconciliation and all other information reasonably requested by the Lenders showing all adjustments required to reflect Adjusted GAAP; |
| (g) | concurrently with the delivery of all financial statements referred to above, a management-prepared reconciliation and all other information reasonably requested by the Lenders showing all adjustments made to exclude income of the Unsecured Subsidiaries in connection with the determination of EBITDA, provided however that such reconciliation shall not be required if no such adjustments were made; |
| (h) | in respect of each Permitted Acquisition other than a Small Acquisition, a certificate of an officer of the Borrower confirming that such transaction constitutes a Permitted Acquisition, which certificate shall be provided not later than three (3) Business Days before the completion of such transaction (and for greater certainty, such certificate is required in addition to all information requested by the Required Lenders in order to provide their consent thereto at least thirty (30) days prior to the completion thereof); |
| (i) | in respect of each Permitted Acquisition which is a Small Acquisition, a certificate of an officer of the Borrower containing details of such transaction and confirming that such transaction constitutes a Permitted Acquisition, which certificate shall be provided not later than five (5) Business Days after the completion thereof; and |
| (j) | such additional information and documents as the Agent (upon the instructions of the Required Lenders) may reasonably require from time to time. |
7.05 Additional Covenants re Aurora Sun Project
The Borrower hereby covenants and agrees that it will:
| (a) | Co-operation with Aurora Sun Project Monitor - co-operate fully with the Aurora Sun Project Monitor at all times, permit the Aurora Sun Project Monitor to inspect the Aurora Sun Project from time to time, and provide the Aurora Sun Project Monitor with such information as it may reasonably require from time to time; |
| (b) | Remedy Cost Overruns - promptly remedy cost overrun situations to the satisfaction of the Required Lenders from its own resources if there is an increase in the budgeted Aurora Sun Project Construction Costs in respect of the Aurora Sun Project, or if the undrawn balance of Facility D at any time is insufficient to enable the Borrower to complete the Aurora Sun Project in accordance with the Aurora Sun Project Budget; |
| (c) | Amendments to Aurora Sun Project Budget - not amend any Material Agreement relating to the Aurora Sun Project, the plans and specifications in respect thereof or any other matter relating to the Aurora Sun Project if the aggregate effect of such amendments would increase the Aurora Sun Project Budget by an amount in excess of Five Million Dollars ($5,000,000), without the prior written approval of the Required Lenders which may be withheld in their discretion; |
| (d) | Discharge Liens - if any builder’s lien is registered against title to the Aurora Sun Property or if notice of a builder’s lien is given to the Agent or any Lender, or if any other Lien which is not a Permitted Lien is registered against title to the Aurora Sun Property, cause such builder’s lien or other Lien to be discharged or vacated from title and released not later than ten (10) Business Days after the registration thereof (or the date the Agent or any Lender received notice thereof, if applicable); but for greater certainty the Lenders shall have no obligation to make an Advance under Facility D if a builder’s lien is registered against title to the Aurora Sun Property or if the Agent or any Lender has received notice of a builder’s lien in respect of the Aurora Sun Property; and |
| -68- |
| (e) | Completion - generally take all actions as may be necessary or desirable to complete the Aurora Sun Project on a timely basis in accordance with the Aurora Sun Project Budget. |
7.06 Unrestricted Subsidiaries
If any Unsecured Subsidiary incurs Unsecured Subsidiaries’ Permitted Project Debt, the Borrower may request that such Unsecured Subsidiary be designated an Unrestricted Subsidiary such that the representations, covenants, Events of Default and other relevant provisions of this Agreement shall not apply in respect of such Unrestricted Subsidiary, and the Lenders agree to act reasonably in considering any such request. Any such designation shall be approved in writing by the Lenders acting unanimously, and shall be subject to the execution and delivery of an amendment to this Agreement to reflect all conditions and restrictions the Lenders acting reasonably may require. Without limiting the generality of the foregoing, such amendment may include provisions with respect to the following:
| • | amendments to the financial covenants herein; |
| • | the assets of the Unrestricted Subsidiary may not be commingled with the assets of the other Companies; |
| • | the liabilities of the Unrestricted Subsidiary may not be commingled with the liabilities of the other Companies; |
| • | the books and records of the Unrestricted Subsidiary will be maintained separately from the books and records of the other Companies; |
| • | the Unrestricted Subsidiary and the other Companies will not take any action or omit to take any action which would, or would reasonably be expected to, result in any Company becoming subject to any Insolvency Proceeding in respect of the Unrestricted Subsidiary by way of procedural or substantive consolidation of their estates, joint administration or any other procedure or proceeding which may result in anything other than a completely separate “ring-fenced” administration of the assets and liabilities of each of Unrestricted Subsidiary and the other Companies; |
| • | the other Companies shall not be permitted to guarantee any indebtedness or other obligations of the Unrestricted Subsidiary; |
| • | limits on the amount of Investments which the Companies may make in the Unrestricted Subsidiary; |
| • | all dealings between the Companies and the Unrestricted Subsidiary must be on a commercially reasonable basis; and |
| -69- |
| • | ancillary amendments. |
Article VIII - SECURITY
8.01 Security to be Provided by the Secured Companies
The Borrower agrees to provide (or cause the Secured Subsidiaries to provide) the security listed below as continuing security for the payment of the Obligations, specifically including for greater certainty the Hedging Obligations and all other obligations of the Borrower arising under or in respect of this Agreement and the other Loan Documents:
| (a) | Guarantees from all present and future Secured Subsidiaries in respect of the Obligations, each such Guarantee to be in an unlimited amount; |
| (b) | general security agreements creating a First-Ranking Security Interest in respect of all present and future property, assets and undertaking of the Secured Companies (for greater certainty, specifically including all shares and other equity interests held by each Secured Company in any other Company, provided that the certificates evidencing such shares and other equity interests shall not be required to be delivered to the Agent unless and until requested in writing by the Agent upon the instructions of the Required Lenders); |
| (c) | collateral mortgages or debentures creating a First-Ranking Security Interest in respect of the Owned Properties; |
| (d) | leasehold mortgages or debentures creating a First-Ranking Security Interest in respect of all Material Leased Properties; |
| (e) | to the extent requested by the Agent upon the instructions of the Required Lenders acting reasonably, security agreements creating a specific assignment and First-Ranking Security Interest in all or any of the Material Agreements, together with acknowledgements and consents from the other parties thereto; provided however that if the assignment of any Material Agreement as security requires the consent of the other contracting party thereto, the Borrower shall use reasonable commercial efforts to obtain such consent shall not be required to assign such Material Agreement as security if such consent is not provided; |
| (f) | to the extent requested by the Agent upon the instructions of the Required Lenders acting reasonably, security agreements creating a specific assignment and First-Ranking Security Interest in all or any of the Material Permits to the extent a security interest may be obtained therein, together with acknowledgements and consents from the issuers thereof to the extent available; |
| (g) | to the extent requested by the Agent upon the instructions of the Required Lenders acting reasonably, security agreements creating an assignment and First-Ranking Security Interest in respect of Intellectual Property of the Secured Companies which the Required Lenders consider to be material, together with any necessary consents from other Persons which may be required in connection with the granting of said assignments and security interests; |
| -70- |
| (h) | to the extent requested by the Agent upon the instructions of the Required Lenders acting reasonably, assignments of bank accounts maintained by the Secured Companies with financial institutions other than BMO, including deposit account control agreements in favour of the Agent; |
| (i) | a specific pledge of monies referred to in section 8.03 herein; |
| (j) | assignments all policies of insurance in respect of the Secured Companies (which requirement shall be satisfied if the Agent's interest as first mortgagee and loss payee is recorded on such policies); and |
| (k) | such other security and further assurances as the Agent may reasonably require from time to time. |
8.02 Security to be Provided by Others
The Borrower agrees to obtain and provide to the Agent the following (and it shall constitute an Event of Default if any item of listed below is not provided to the Agent):
| (a) | an acknowledgement provided by the trustee under the trust indenture in respect of the 2018 Convertible Debentures confirming the subordination and postponement provisions contained therein; |
| (b) | a subordination, postponement and standstill agreement from any other holder of indebtedness which is intended to constitute Subordinated Debt; and |
| (c) | Landlord Agreements in respect of each Material Leased Property. |
_ _ _ _ _ _ _ _ _ _
_ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _
[Redacted - Information regarding specific security provided by the Borrower to Lenders]
8.04 General Provisions re Security; Registration
The Security shall be in form and substance satisfactory to the Agent and the Required Lenders in their sole discretion. The Security shall be held by the Agent for the benefit of the Lenders. The Agent may require that any item of Security be governed by the Laws of the jurisdiction where the property subject to such item of Security is located. The Security shall be registered by the Borrower where necessary or desirable to record and perfect the charges contained therein, as determined by the Agent in its sole discretion, specifically including registrations in the Canadian Intellectual Property Office and fixture filings in respect of personal property of the Secured Companies which is affixed to Land (other than the Owned Properties). All share certificates evidencing issued and outstanding shares in the capital of each Secured Company (other than the Borrower) which are required to be delivered pursuant to section 8.01(b) herein shall be delivered to the Agent together with a stock transfer power of attorney executed in blank.
| -71- |
8.05 Opinions re Security
The Borrower shall cause to be delivered to the Agent the opinions of the solicitors for the Secured Companies regarding their corporate status, the due authorization, execution and delivery of the Security provided by them, all registrations in respect of the Security, the results of all applicable searches in respect of them, title to the Properties and the results of all customary off-title enquiries relating thereto (such results to be satisfactory to the Agent and the Lenders) and the enforceability of such Security; all such opinions to be in form and substance satisfactory to the Agent and its counsel. In lieu of title opinions, the Borrower may at its option arrange for title insurance in respect of all of any of the Properties, the form and substance of which shall be satisfactory to the Agent and the Lenders.
8.06 After-Acquired Property, Further Assurances
The Borrower shall execute and deliver from time to time, and cause each other Secured Company to execute and deliver from time to time, all such further documents and assurances as may be reasonably required by the Agent from time to time, not inconsistent with the terms of this Agreement, in order to provide the Security contemplated hereunder, specifically including: supplemental or additional security agreements, assignments and pledge agreements which shall include lists of specific assets to be subject to the security interests required hereunder.
8.07 Security for Hedge Transactions
If a Lender continues to be a party to one or more Hedge Transactions with the Borrower after all other indebtedness and obligations of the Borrower to such Lender hereunder have been repaid and satisfied in full (or assigned by such Lender to an assignee), for greater certainty such Lender shall continue to be a Lender for all purposes of this Agreement and the obligations under such Hedge Transactions shall continue to be secured by the Security as provided herein, but such Lender shall not thereafter be a "Required Lender" as such term is defined herein.
8.08 Agent May Obtain Insurance
If the Borrower does not provide the Agent with evidence of continuing insurance coverage which satisfies the requirements of this Agreement, the Agent may, but shall have no obligation to, purchase such insurance in order to protect the interests of the Agent and the Lenders in the Collateral. Such insurance may also, but need not, protect the Secured Companies’ interests in the Collateral. The Borrower agrees to immediately reimburse the Agent upon demand for all costs and expenses incurred by the Agent in respect of the purchase of any such insurance, and until so paid such expenses shall constitute part of the Obligations, shall bear interest as provided in section 10.09 and shall be secured by the Security.
| -72- |
8.09 Insurance Proceeds
If insurance proceeds become payable in respect of loss of or damage to any property owned by a Company, such proceeds shall be applied against the Obligations subject to the following exception. If no Event of Default has occurred and is continuing at such time, and if such proceeds are less than Two Million Five Hundred Thousand Dollars ($2,500,000), the Lenders shall consent to the payment of such proceeds to such Company provided that:
| (a) | such property has been repaired or replaced within one hundred eighty (180) days after the event giving rise to the proceeds and the proceeds will reimburse such Company for payments it has made for such purpose; or |
| (b) | the Borrower confirms in writing to the Agent that it will forthwith cause such proceeds to be used to repair or replace such property. |
8.10 Unsecured Subsidiaries
| (a) | The Borrower may by written notice to the Agent from time to time advise of its intention to establish or acquire one or more Subsidiaries which the Borrower proposes to be exempted from the requirement to provide a Guarantee and Security pursuant to this Article VIII (collectively the "Unsecured Subsidiaries"). Notwithstanding the provisions of this Article VIII or any other provisions of this Agreement, the Unsecured Subsidiaries shall not be required to provide Guarantees and Security if all the following conditions are satisfied: |
| (_) | no Default, Event of Default or Material Adverse Change has occurred and is continuing; |
| (_) | the aggregate value of the assets of all Unsecured Subsidiaries is less than fifteen percent (15%) of the aggregate value of the assets of all Companies; and |
| (_) | the aggregate net revenue of the Unsecured Subsidiaries (for greater certainty, net of excise duties) in each twelve (12) month fiscal period is less than fifteen percent (15%) of the net revenue of the Borrower and all of its Subsidiaries on a consolidated basis in such fiscal period. |
| (b) | The Borrower agrees to provide written notice to the Agent immediately if any one or more of the conditions listed in paragraph (a) are not satisfied at any time. If any one or more of the conditions listed in paragraph (a) are not satisfied at any time (and regardless of whether the Borrower has provided written notice in respect thereof), the Agent may in its discretion by written notice to the Borrower require that Guarantees and Security be provided by any or all of the Unsecured Subsidiaries, but only to the extent necessary such that the conditions listed in paragraph (a) are satisfied. Upon receipt of such written notice the Borrower shall immediately take all such actions to cause the Unsecured Subsidiaries designated therein to provide Guarantees and Security in favour of the Agent, together with all ancillary documentation and legal opinions, required pursuant to this Article VIII. |
| (c) | The designation of any Company as an Unsecured Subsidiary or an Immaterial Unsecured Subsidiary shall be reflected in Schedule 6.01(b) - Corporate Information. |
| -73- |
| (d) | The Borrower hereby advises the Lenders that it intends to dispose of all shares held by it in the capital of Urban Cultivator Inc. (a Secured Subsidiary) for nominal consideration, and hereby requests that: (i) Urban Cultivator Inc. be designated an Unsecured Subsidiary and all security held by the Agent in respect thereof be released; (ii) the Borrower be permitted to dispose of such shares for nominal consideration; and (iii) the sale proceeds therefrom not be required to be applied as a Repayment pursuant to section 3.06(e)(iii) herein; and the Lenders hereby agree to the foregoing. |
8.11 Quebec Hypothecary Representative
Without limiting the powers of the Agent (and as part of its duties) hereunder or under the other Loan Documents and to the extent applicable, the Borrower (on its own behalf and on behalf of each Secured Subsidiary) and the Lenders hereby acknowledge that the Agent will, for the purposes of holding any security granted under the Deeds of Hypothec be the hypothecary representative (within the meaning of Article 2692 of the Civil Code of Québec) for all present and future Lenders. Each of the Lenders and the other Secured Parties hereby constitutes, to the extent necessary, the Agent as its hypothecary representative in order to hold Liens granted under such hypothecs. Each Person who becomes a Lender after the Facilities Initial Establishment Date will be deemed to have confirmed and ratified the constitution of the Agent as its hypothecary representative. Any Person who is not a Lender and who is entitled to benefit from the Liens created by the Security Documents will be deemed to have accepted the constitution of the Agent as its hypothecary representative. The execution, if applicable, prior to the Facilities Initial Establishment Date by the Agent, in its capacity as hypothecary representative for and on behalf of the Lenders of the hypothecs comprised within the Security is hereby ratified and confirmed. For the avoidance of doubt, the Agent, acting as hypothecary representative, shall have the same rights, powers, immunities, indemnities and exclusions from liability as are prescribed in favor of the Agent in this Agreement, which shall apply mutatis mutandis. In the event of the resignation of the Agent (which shall include its resignation as hypothecary representative) and appointment of a successor Agent, such successor Agent shall also act as hypothecary representative, as contemplated above.
Article IX - CONDITIONS PRECEDENT
9.01 Conditions Precedent to Amendments
The amendments to the 2018 Credit Agreement reflected in this Agreement shall not become effective unless and until the following conditions have been satisfied, in each case to the satisfaction of the Agent and the Lenders in their sole discretion:
| (a) | all conditions precedent in section 9.02 shall have been satisfied; |
| (b) | the Lenders shall have completed and shall be satisfied with their due diligence in respect of the Companies, specifically including due diligence with respect to the following: |
| (_) | the Year-end Financial Statements in respect of the most recent Fiscal Year and the Interim Financial Statements in respect of the most recent Fiscal Quarter; |
| (ii) | financial projections in respect of the Borrower on a consolidated basis for the Fiscal Years ending June 30, 2019, June 30, 2020 and June 30, 2021; |
| -74- |
| (_) | a Quarterly Compliance Certificate in respect of the most recently completed Fiscal Quarter; |
| (iv) | a Borrowing Base Certificate in respect of the most recently completed month |
| (v) | the terms and conditions of all leases in respect of the Material Leased Properties, which shall permit reasonable alternative uses (and for greater certainty, the permitted use of each Material Leased Property shall not be restricted to the production of Cannabis and related activities); |
| (vi) | the terms and conditions of all other Material Agreements; |
| (vii) | the terms and conditions of all Material Permits, including certified true copies of all licenses issued by Governmental Authorities (including those in other Qualified Jurisdictions) for each Company's facilities together with all amendments thereto and all material correspondence received from Governmental Authorities including communication on non-compliance items; |
| (c) | no litigation is pending or threatened in writing against one or more of the Companies that, if decided adversely, could constitute a Material Adverse Change; |
| (d) | all Security required to be provided prior to the Amendment Closing Date shall have been executed and delivered, all registrations necessary or desirable in connection therewith shall have been made, and all legal opinions and other documentation required by the Lenders in connection therewith shall have been executed and delivered, all in form and substance satisfactory to the Agent and the Lenders in their sole discretion; provided however that such Security in respect of Whistler Medical Marijuana Corporation shall be provided not later than sixty (60) days after the Amendment Closing Date and such Security in respect of the Aurora Sun Property shall be provided prior to the first Advance under Facility D; |
| (e) | any necessary governmental, regulatory and third party approvals necessary in connection with this Agreement and the transactions contemplated therein shall have been given unconditionally and without containing any onerous terms; |
| (f) | the Agent shall have received an officer's certificate and certified copies of resolutions of the board of directors of the Borrower concerning the due authorization, execution and delivery of this Agreement and such related matters as the Agent and the Lenders may reasonably require; |
| (g) | the Agent shall have received a certificate of status, certificate of compliance or similar certificate for each Secured Company issued by its governing jurisdiction and each other jurisdiction in which it carries on business or holds any material assets; |
| (h) | the Agent and the Lenders shall have received an opinion from the solicitors for the Borrower regarding its corporate status, the due authorization, execution, delivery and enforceability of this Agreement and such other matters as the Agent and the Lenders may reasonably require, in form and substance satisfactory to the Agent and the Lenders; |
| (i) | the Companies shall have satisfied all requirements of the Agent and the Lenders under AML Legislation; |
| -75- |
| (j) | the Agent and the Lenders shall have conducted and be satisfied with site visits of any or all of the Owned Properties and the Material Leased Properties, if desired; |
| (k) | the Borrower shall have paid to the Agent, or made arrangements satisfactory to the Agent for the payment of, all fees and expenses (including the Agent’s legal expenses) relating to this Agreement, specifically including all underwriting fees, arrangement fees and similar fees in respect of this Agreement as agreed in writing between the Borrower and the Agent; and |
| (l) | the Agent and the Lenders shall have received such additional evidence, documents or undertakings as they may require to complete the transactions contemplated hereby in accordance with the terms and conditions contained herein. |
9.02 Conditions Precedent to all Advances
The Lenders shall have no obligation to make the first Advance or any subsequent Advance under any Facility unless at the time of each such Advance all of the following conditions have been satisfied, in each case to the satisfaction of the Agent and the Lenders in their sole discretion:
| (a) | the representations and warranties in section 6.01 shall be true and correct in all material respects as if made on the date of such Advance; |
| (b) | all additional Security required to be provided at the time of such Advance shall have been executed and delivered and all registrations necessary or desirable in connection therewith shall have been made, and any other documentation required by the Agent shall have been executed and delivered, all in form and substance satisfactory to the Agent; |
| (c) | the Borrower shall have given a Draw Request to the Agent in accordance with the notice requirements provided herein; |
| (d) | in respect of an Advance under Facility A the Borrower shall have provided a satisfactory Borrowing Base Certificate and Monthly Compliance Certificate in respect of the most recent month; |
| (e) | no Default, Event of Default or Material Adverse Change shall have occurred and be continuing, nor shall the making of the Advance result in the occurrence of a Default, Event of Default or Material Adverse Change; and |
| (f) | no third party demand or garnishment order for payment to any Government Authority shall have been received by the Agent or any Lender with respect to any Company. |
9.03 Conditions Precedent to Advances under Facility C
The Facility C Lenders shall have no obligation to make any Advance under Facility C unless at the time of such Advance all of the following conditions have been satisfied, in each case to the satisfaction of the Agent and the Facility C Lenders in their sole discretion:
| (a) | all conditions precedent in section 9.02 shall have been satisfied; |
| -76- |
| (b) | the Agent and the Facility C Lenders shall have received and be satisfied with updated Acceptable Appraisals in respect of the Owned Properties and the Material Leased Properties, to the extent required by all Facility C Lenders in connection with the establishment of Facility C; and |
| (c) | the Borrower shall have paid to the Agent, or made arrangements satisfactory to the Agent for the payment of all underwriting fees, arrangement fees and similar fees in respect of the establishment of Facility C as agreed in writing between the Borrower and the Agent. |
9.04 Conditions Precedent to First Advance under Facility D
The Facility D Lenders shall have no obligation to make the first Advance under Facility D unless at the time of such Advance all of the following conditions have been satisfied, in each case to the satisfaction of the Facility D Lenders in their sole discretion:
| (a) | all conditions precedent in section 9.02 shall have been satisfied; |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| -77- |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ | |
| [Redacted - Conditions precedent to First Advance under Facility D] |
_ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _
_ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _
| -78- |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| -79- |
_ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _
_ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| -80- |
_ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _
_ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
[Redacted - Conditions Precedent for Advances]
Article X - DEFAULT AND REMEDIES
_ _ _ _ _ _ _ __ _ _ _ _ _ _ _
_ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| -81- |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ |
| -82- |
| (_) | _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ |
| (_) | _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ |
[Redacted - Events of Default]
10.02 Acceleration, etc.
| (a) | Upon the occurrence of an Event of Default which is continuing the Agent shall, upon the instructions of the Required Lenders, issue a written notice to the Borrower (an "Acceleration Notice") declaring all of the Obligations to be immediately due and payable. |
| (b) | Upon receipt of an Acceleration Notice the Borrower shall immediately pay and satisfy the Obligations, including payment to the Agent of the following amounts (without duplication): (i) the Outstanding Principal Amount and all accrued and unpaid interest, fees and other amounts relating thereto; (ii) the Aggregate Actual Hedge Liability; (iii) an amount equal to the face amount of all Bankers' Acceptances and BA Equivalent Loans then outstanding; and (iv) the maximum amount payable under all outstanding Letters of Credit. The Agent shall hold all such amounts paid by the Borrower in respect of such Hedge Transactions, Bankers' Acceptances, BA Equivalent Loans and Letters of Credit as security for the Borrower's obligations thereunder. |
| (c) | At any time on or after the Acceleration Date the Agent may exercise any and all rights and remedies hereunder and under any other Loan Documents, including the enforcement of all or any portion of the Security. |
| (d) | From and after the date of the occurrence of an Event of Default and for so long as such Event of Default continues, both before and after the Acceleration Date, the Outstanding Principal Amount shall bear interest or fees at the rates otherwise applicable plus two percent (2%) per annum in order to compensate the Lenders for the additional risk. |
10.03 Acceleration of Certain Contingent Obligations
Upon the occurrence of an Event of Default which is continuing, any Lender which has issued a Bankers' Acceptance, BA Equivalent Note or Letter of Credit or entered into a Hedge Transaction with the Borrower may make a Prime Rate Loan to the Borrower in an amount equal to the face amount of such Bankers' Acceptance, BA Equivalent Note or Letter of Credit, or the amount required to unwind such Hedge Transaction (such amount to be determined in accordance with the terms thereof), as the case may be; and the proceeds of any such Loan shall be held by such Lender and used to satisfy the Lender's obligations under the said Bankers' Acceptance, BA Equivalent Note or Letter of Credit as such becomes due, or to effect the unwinding of such Hedge Transaction. Any such Loan shall bear interest at the rate and in the manner applicable to Prime Rate Loans under the Facilities.
| -83- |
10.04 Combining Accounts, Set-Off
Upon the occurrence and during the continuation of an Event of Default, in addition to and not in limitation of any rights now or hereafter granted under Applicable Law, each Lender may at any time and from time to time:
| (a) | combine, consolidate or merge any or all of the deposits or other accounts maintained with such Lender by a Secured Company (whether term, notice, demand or otherwise and whether matured or unmatured) and such Company's obligations to such Lender hereunder; and |
| (b) | set off, apply or transfer any or all sums standing to the credit of any such deposits or accounts in or towards the satisfaction of such obligations. |
Each Lender may exercise any rights pursuant to this section 10.04 without prior notice to the Borrower or such Company, but agrees to provide written notice to the Agent and the Borrower promptly after exercising any such rights.
10.05 Appropriation of Monies
After the occurrence and during the continuation of an Event of Default the Agent may from time to time, but subject to section 11.03, apply any Proceeds of Realization against any portion or portions of the Obligations, and the Borrower may not require any different application. The taking of a judgment or any other action or dealing whatsoever by the Agent or the Lenders in respect of the Security shall not operate as a merger of any of the Obligations hereunder or in any way affect or prejudice the rights, remedies and powers which the Agent or the Lenders may have, and the foreclosure, surrender, cancellation or any other dealing with any Security or the said obligations shall not release or affect the liability of the Borrower or any other Person in respect of the remaining portion of the Obligations.
10.06 No Further Advances
The Lenders shall not be obliged to make any further Advances (including honouring any cheques drawn by the Borrower which are presented for payment) from and after the earliest to occur of the following: (i) delivery by the Agent to the Borrower of a written notice that a Default or Event of Default has occurred and is continuing and that as a result thereof no further Advances will be made (regardless of whether an Acceleration Notice is issued); (ii) the occurrence of an Insolvency Event; and (iii) receipt by the Agent or any Lender of any garnishment notice, notice of a Statutory Lien or other notice of similar effect in respect of any Company pursuant to the Income Tax Act (Canada), the Excise Tax Act (Canada) or any similar notice under any other statute in effect in any jurisdiction.
10.07 Judgment Currency
If for the purposes of obtaining judgment against the Borrower in any court in any jurisdiction with respect to this Agreement it becomes necessary for a Lender to convert into the currency of such jurisdiction (in this section called the "Judgment Currency") any amount due to the Lender by the Borrower hereunder in any currency other than the Judgment Currency, the conversion shall be made at the Exchange Rate prevailing on the Business Day before the day on which judgment is given. In the event that there is a change in the Exchange Rate prevailing between the Business Day before the day on which the judgment is given and the date of payment of the amount due, the Borrower will, on the date of payment, pay such additional amounts (if any) or be entitled to receive reimbursement of such amount, if any, as may be necessary to ensure that the amount paid on such date is the amount in the Judgment Currency which when converted at the Exchange Rate prevailing on the date of payment is the amount then due under this Agreement in such other currency. Any additional amount due by the Borrower under this section will be due as a separate debt and shall not be affected by judgment being obtained for any other sums due under or in respect of this Agreement.
| -84- |
10.08 Remedies Cumulative
All rights and remedies granted to the Agent and the Lenders in this Agreement, and any other documents or instruments in existence between the parties or contemplated hereby, and any other rights and remedies available to the Agent and the Lenders at Law or in equity, shall be cumulative. The exercise or failure to exercise any of the said remedies shall not constitute a waiver or release thereof or of any other right or remedy, and shall be non-exclusive.
10.09 Performance of Covenants by Agent
If the Borrower fails to perform any covenant or obligation to be performed by it pursuant to this Agreement, the Agent may in its sole discretion perform any of the said obligations but shall be under no obligation to do so; and any amounts expended or advanced by the Agent for such purpose shall be payable by the Borrower upon demand together with interest at the highest rate then applicable to the Facilities.
Article XI - THE AGENT AND THE LENDERS
11.01 Decision-Making
| (a) | Any amendment to this Agreement relating to the following matters, and the granting of any waiver or consent by the Lenders in respect of such matters, shall require the unanimous agreement of the Lenders: |
| (_) | changes to the interest rates and fees payable in respect of any Facility; |
| (_) | increases in the maximum amount of credit available under any Facility; |
| (_) | extensions of the Conversion Date or the Maturity Date; |
| (_) | changes to the scheduled dates or the scheduled amounts for Repayments hereunder; |
| (_) | the establishment of any Availment Option in U.S. Dollars or any other currency which is not a Qualified Currency; |
| (_) | releases of all or any portion of the Security, except to the extent provided in paragraph (c) below; |
| (vii) | the definitions of "Required Lenders" and "Proportionate Share" in section 1.01; |
| -85- |
| (viii) | any provision of this Agreement which expressly states that the unanimous consent of the Lenders is required in connection with any action to be taken or consent to be provided by the Lenders; and |
| (ix) | this section 11.01. |
| (b) | Except for the matters described in paragraph (a) above, any amendment to this Agreement shall be effective if made among the Borrower, the Agent and the Required Lenders, and for greater certainty any such amendment which is agreed to by the Required Lenders shall be final and binding upon all Lenders. |
| (c) | The Agent may from time to time without notice to or the consent of the Lenders execute and deliver partial releases of the Security in respect of any item of Collateral (whether or not the proceeds of sale thereof are received by the Agent) which the Companies are permitted to dispose of pursuant to this Agreement without obtaining the prior written consent of the Lenders; and in releasing any such security the Agent may rely upon and assume the correctness of all information contained in any certificate or document provided by the Borrower, without further enquiry. Otherwise, any release or discharge in respect of the Security or any portion thereof shall require the written consent of the Lenders acting unanimously. |
| (d) | Except for the matters which require the unanimous consent of the Lenders as set out in the foregoing paragraphs of this section 11.01, and except as otherwise specifically provided in this Agreement, any action to be taken or decision to be made by the Lenders pursuant to this Agreement (specifically including for greater certainty the issuance of written notice to the Borrower of the occurrence of a Default or Event of Default, the issuance of a demand for payment of the Obligations, a decision to make an Advance despite any condition precedent relating thereto not being satisfied, the provision of any waiver in respect of a breach of any covenant or the granting of any consent) shall be effective if approved in writing by the Required Lenders; and any such decision or action shall be final and binding upon all the Lenders. |
| (e) | Any action to be taken or decision to be made by the Lenders pursuant to this Agreement which is required to be unanimous shall be made at a meeting of the Lenders called by the Agent pursuant to section 11.06(k) or by a written instrument executed by all of the Lenders. Any action to be taken or decision to be made by the Lenders pursuant to this Agreement which is required to be made by the Required Lenders shall be made at a meeting of the Lenders called by the Agent pursuant to section 11.06(k) or by a written instrument executed by the Required Lenders. Any such instrument may be executed by facsimile or pdf and in counterparts. |
11.02 Security
| (a) | Except to the extent provided in paragraph (b), the Security shall be granted in favour of and held by the Agent for and on behalf of the Lenders in accordance with the provisions of this Agreement. The Agent shall, in accordance with its usual practices in effect from time to time, take all steps required to perfect and maintain the Security, including: taking possession of the certificates representing the securities required to be pledged hereunder; filing renewals and change notices in respect of such Security; and ensuring that the name of the Agent is noted as loss payee or mortgagee on all property insurance policies covering the Collateral. If the Agent becomes aware of any matter concerning the Security which it considers to be material, it shall promptly inform the Lenders. The Agent shall comply with all instructions provided by the Lenders in connection with the enforcement or release of the Security which it holds. The Agent agrees to permit each Lender to review and make photocopies of the original documents comprising the Security from time to time upon reasonable notice. |
| -86- |
| (b) | If any Company has provided security in favour of any Lender directly, such Lender agrees to pay to the Agent all amounts received by it in connection with the enforcement of such security, and all such amounts shall be deemed to constitute Proceeds of Realization and shall be dealt with as provided in section 11.03. Each Lender which holds any such Security agrees that it shall not enforce such security unless and until the Required Lenders have made a determination to enforce the Security pursuant to section 11.01(d). |
11.03 Application of Proceeds of Realization
Notwithstanding any other provision of this Agreement, the Proceeds of Realization of the Security or any portion thereof shall be distributed in the following order:
| (a) | first, in payment of all costs and expenses incurred by the Agent and the Lenders in connection with such realization, including legal, accounting and receivers' fees and disbursements; |
| (b) | second, against the remaining Obligations (except those referred to in paragraph (c) below), on a pari passu basis among the Lenders to whom such Obligations are payable; |
| (c) | third, to pay any Obligations owed to Non-Funding Lenders, on a pari passu basis among the Non-Funding Lenders to whom such Obligations are payable; and |
| (d) | fourth, if all obligations of the Borrower listed above have been paid and satisfied in full, any surplus Proceeds of Realization shall be paid in accordance with Applicable Law. |
11.04 Payments by Agent
| (a) | The following provisions shall apply to all payments made by the Agent to the Lenders hereunder: |
| (_) | the Agent shall be under no obligation to make any payment (whether in respect of principal, interest, fees or otherwise) to any Lender until an amount in respect of such payment has been received by the Agent from the Borrower; |
| (_) | if the Agent receives a payment of principal, interest, fees or other amount owing by the Borrower under any Facility which is less than the full amount of any such payment due, the Agent shall distribute such amount received among the Lenders under such Facility in each Lender’s Proportionate Share of such Facility; |
| (_) | if any Lender has advanced more or less than its Proportionate Share of its Commitment under any Facility, such Lender’s entitlement to such payment shall be increased or reduced, as the case may be, in proportion to the amount actually advanced by such Lender; |
| -87- |
| (iv) | if a Lender’s Proportionate Share of an Advance under any Facility thereof has been advanced for less than the full period to which any payment by the Borrower relates, such Lender’s entitlement to receive a portion of any payment of interest or fees shall be reduced in proportion to the length of time such Lender’s Proportionate Share has actually been outstanding (unless such Lender has paid all interest required to have been paid by it to the Agent pursuant to the CBA Model Provisions); |
| (v) | the Agent acting reasonably and in good faith shall, after consultation with the Lenders in the case of any dispute, determine in all cases the amount of all payments to which each Lender is entitled and such determination shall be deemed to be prima facie correct; |
| (_) | upon request, the Agent shall deliver a statement detailing any of the payments to the Lenders referred to herein; |
| (_) | all payments by the Agent to a Lender hereunder shall be made to such Lender at its address set out herein unless notice to the contrary is received by the Agent from such Lender; and |
| (viii) | if the Agent has received a payment from the Borrower on a Business Day (not later than the time required for the receipt of such payment as set out in this Agreement) and fails to remit such payment to any Lender entitled to receive its Proportionate Share of such payment on such Business Day, the Agent agrees to pay interest on such late payment at a rate determined by the Agent in accordance with prevailing banking industry practice on interbank compensation. |
| (b) | The Agent may in its sole discretion from time to time make adjustments in respect of any Lender’s share of a Drawdown, Substitution, Rollover or Repayment under any Facility in order that the Advances made by such Lender under such Facility shall be approximately in accordance with such Lender’s Proportionate Share of such Facility. |
11.05 Protection of Agent
| (a) | Unless the Agent has actual knowledge or actual notice to the contrary, it may assume that each Lender's address set out in Exhibit "A" attached hereto is correct, unless and until it has received from such Lender a notice designating a different address. |
| (b) | The Agent may engage and pay for the advice or services of any lawyers, accountants or other experts whose advice or services may to it seem necessary, expedient or desirable and rely upon any advice so obtained (and to the extent that such costs are not recovered from the Borrower pursuant to this Agreement, each Lender agrees to reimburse the Agent in such Lender's Proportionate Share of such costs). |
| (c) | Unless the Agent has actual knowledge or actual notice to the contrary, it may rely as to matters of fact which might reasonably be expected to be within the knowledge of any Company upon a statement contained in any Loan Document. |
| (d) | Unless the Agent has actual knowledge or actual notice to the contrary, it may rely upon any communication or document believed by it to be genuine. |
| -88- |
| (e) | The Agent may refrain from exercising any right, power or discretion vested in it under this Agreement unless and until instructed by the Required Lenders as to whether or not such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised (provided that such instructions shall be required to be provided by all of the Lenders in respect of any matter for which the unanimous consent of the Lenders is required as set out herein). |
| (f) | The Agent may refrain from exercising any right, power or discretion vested in it which would or might in its sole and unfettered opinion be contrary to any Law of any jurisdiction or any directive or otherwise render it liable to any Person, and may do anything which is in its opinion in its sole discretion necessary to comply with any such Law or directive. |
| (g) | The Agent may delegate any of its duties and responsibilities hereunder to any other Person as it shall determine to be appropriate. |
| (h) | The Agent may refrain from acting in accordance with any instructions of the Required Lenders to begin any legal action or proceeding arising out of or in connection with this Agreement or take any steps to enforce or realize upon any Security, until it shall have received such security as it may reasonably require (whether by way of payment in advance or otherwise) against all costs, claims, expenses (including legal fees) and liabilities which it will or may expend or incur in complying with such instructions. |
| (i) | The Agent shall not be bound to disclose to any Person any information relating to the Companies or any Related Person if such disclosure would or might in its opinion in its sole discretion constitute a breach of any Law or regulation or be otherwise actionable at the suit of any Person. |
| (j) | The Agent shall not accept any responsibility for the accuracy and/or completeness of any information supplied in connection herewith or for the legality, validity, effectiveness, adequacy or enforceability of any Loan Document and shall not be under any liability to any Lender as a result of taking or omitting to take any action in relation to any Loan Document except in the case of the Agent's gross negligence or wilful misconduct. |
11.06 Duties of Agent
The Agent shall:
| (a) | as a non-fiduciary agent for the Borrower, maintain a record of the Outstanding Principal Amount owing to each Lender (including the interest of each Lender in all outstanding Letters of Credit), which record shall conclusively be presumed to be correct and accurate, absent manifest error; |
| (b) | hold and maintain the Security to the extent provided in section 11.02; |
| (c) | provide to each Lender copies of all financial information received from the Borrower promptly after receipt thereof, and copies of any Draw Requests, Substitution Notices, Rollover Notices, Repayment Notices and other notices received by the Agent from the Borrower upon request by any Lender; |
| -89- |
| (d) | promptly advise each Lender of Advances required to be made by it hereunder and disburse all Repayments to the Lenders hereunder in accordance with the terms of this Agreement; |
| (e) | promptly notify each Lender of the occurrence of any Default or Event of Default of which the Agent has actual knowledge or actual notice; |
| (f) | at the time of engaging any agent, receiver, receiver-manager, consultant, monitor or other party in connection with the Security or the enforcement thereof, obtain the agreement of such party to comply with the applicable terms of this Agreement in carrying out any such enforcement activities and dealing with any Proceeds of Realization; |
| (g) | account for any monies received by it in connection with this Agreement, the Security and any other agreement delivered in connection herewith or therewith; |
| (h) | each time the Borrower requests the written consent of the Lenders (or the Required Lenders, as the case may be) in connection with any matter, use its best efforts to obtain and communicate to the Borrower the response of the Lenders (or the Required Lenders) in a reasonably prompt and timely manner having due regard to the nature and circumstances of the request; |
| (i) | give written notice to the Borrower in respect of any other matter in respect of which notice is required in accordance with or pursuant to this Agreement, promptly or promptly after receiving the consent of the Lenders, if required under the terms of this Agreement; |
| (j) | except as otherwise provided in this Agreement, act in accordance with any instructions given to it by the Required Lenders; |
| (k) | refrain from exercising any right, power or discretion vested in it under this Agreement or any document incidental thereto if so instructed by the Required Lenders (in respect of any matter which requires the consent of the Required Lenders), or by all of the Lenders (in respect of any matter which requires the unanimous consent of the Lenders); and |
| (l) | call a meeting of the Lenders at any time not earlier than five (5) days and not later than thirty (30) days after receipt of a written request for a meeting provided by any Lender. |
11.07 Lenders' Obligations Several; No Partnership
The obligations of each Lender under this Agreement are several. The failure of any Lender to carry out its obligations hereunder shall not relieve the other Lenders of any of their respective obligations hereunder. No Lender shall be responsible for the obligations of any other Lender hereunder. Neither the entering into of this Agreement nor the completion of any transactions contemplated herein shall constitute the Lenders a partnership.
11.08 Sharing of Information
The Agent and the Lenders may share among themselves any information they may have from time to time concerning the Companies whether or not such information is confidential; but shall have no obligation to do so (except for any obligations of the Agent to provide information to the extent required in this Agreement).
| -90- |
11.09 Acknowledgement by Borrower
The Borrower hereby acknowledges notice of the terms of the provisions of this Article XI and agrees to be bound hereby to the extent of its obligations hereunder.
11.10 Amendments to Article XI
The Agent and the Lenders may amend any provision in this Article XI, except section 11.01, without prior notice to or the consent of the Borrower, and the Agent shall provide a copy of any such amendment to the Borrower reasonably promptly thereafter; provided however if any such amendment would materially adversely affect any rights, entitlements, obligations or liabilities of the Borrower, such amendment shall not be effective until the Borrower provides its written consent thereto, such consent not to be unreasonably withheld or arbitrarily delayed.
11.11 Deliveries, etc.
As between the Companies on the one hand, and the Agent and the Lenders on the other hand:
| (a) | all statements, certificates, consents and other documents which the Agent purports to deliver to a Company on behalf of the Lenders shall be binding on each of the Lenders, and none of the Companies shall be required to ascertain or confirm the authority of the Agent in delivering such documents; |
| (b) | all certificates, statements, notices and other documents which are delivered by a Company to the Agent in accordance with this Agreement shall be deemed to have been duly delivered to each of the Lenders; and |
| (c) | all payments which are delivered by the Borrower to the Agent in accordance with this Agreement shall be deemed to have been duly delivered to each of the Lenders. |
11.12 Agency Fee
The Borrower agrees to pay to the Agent an annual agency fee in such amount as may be agreed in writing from time to time between the Borrower and the Agent, payable in advance on the Facilities Initial Establishment Date and annually on each anniversary date thereafter during the term of this Agreement.
11.13 Non-Funding Lender
| (a) | Each Non-Funding Lender shall be required to provide to the Agent, immediately upon receipt of a written request from the Agent, (A) cash in an amount equal to 105% of such Non-Funding Lender's Proportionate Share of the face amount of outstanding Letters of Credit, and (B) cash in an amount, as shall be determined from time to time by the Agent in its discretion, equal to all other obligations of such Non-Funding Lender to the Agent that are owing or may become owing pursuant to this Agreement, including, without limitation, such Non-Funding Lender's obligation to pay its Proportionate Share of any indemnification or expense reimbursement amounts not paid by the Borrower. Such cash shall be held by the Agent in one or more accounts in the name of the Agent and shall not be required to be interest-bearing. The Agent shall be entitled to apply such cash from time to time in satisfaction of all or any portion of such obligations of such Non-Funding Lender, as determined by the Agent in its discretion. |
| -91- |
| (b) | The Agent shall be entitled to set off any Non-Funding Lender's Proportionate Share of all payments received from the Borrower against such Non-Funding Lender's obligations to fund payments and Advances required to be made by it and to purchase participations required to be purchased by it in each case under this Agreement and the other Loan Documents. The Agent shall be entitled to withhold and deposit in one or more non-interest bearing accounts in the name of the Agent all amounts (whether principal, interest, fees or otherwise) received by the Agent from the Borrower and due to such Non-Funding Lender pursuant to this Agreement, which amounts shall be used by the Agent (A) first, to reimburse the Agent for any amounts owing to it by such Non-Funding Lender pursuant to this Agreement or any other Loan Document, (B) second, to reimburse the other Lenders in respect of any Advances which may have been made by them in their discretion in order to fund, in whole or in part, any shortfall in Advances which were required to have been made by such Non-Funding Lender (and to the extent that any said Advance made by a Lender is so reimbursed, such Advance shall be deemed to have been assigned by such Lender to the Non-Funding Lender), (C) third, to be held in such account and applied by the Agent from time to time against all other obligations of such Non-Funding Lender to the Agent owing pursuant to this Agreement in such amount as shall be determined from time to time by the Agent in its discretion including, without limitation, such Non-Funding Lender's obligation to pay its Proportionate Share of any indemnification or expense reimbursement amounts not paid by the Borrower, and (D) fourth, at the Agent's discretion, to fund from time to time such Non-Funding Lender's Proportionate Share of Advances under any Facility. |
| (c) | A Non-Funding Lender shall have no voting or consent rights with respect to matters under this Agreement or the other Loan Documents, unless and until it is no longer a Non-Funding Lender. Accordingly, the Commitments and the portion of the Outstanding Principal Amount owing to any Non-Funding Lender shall be disregarded in the determination of the Required Lenders. |
| (d) | Neither the Agent nor any of its Affiliates nor any of their respective officers, directors, employees, agents or representatives shall be liable to any Lender (including, without limitation, a Non-Funding Lender) for any action taken or omitted to be taken by them in connection with amounts payable by the Borrower to a Non-Funding Lender and received by the Agent and applied in accordance with the provisions of this Agreement, save and except for the negligence or wilful misconduct of the Agent as determined by a final non-appealable judgment of a court of competent jurisdiction. |
Article XII - CBA MODEL PROVISIONS
12.01 CBA Model Provisions Incorporated by Reference
The CBA Model Provisions (except for the footnotes contained therein) form part of this Agreement and are incorporated herein by reference, subject to the following variations:
| (a) | Each term set out below which is used as a defined term in the CBA Model Provisions shall be deemed to have been replaced as set out below; and for greater certainty the said replacement term shall have the meaning ascribed thereto in section 1.01 of this Agreement: |
| -92- |
| • | "Administrative Agent" shall be replaced by "Agent"; |
| • | "Applicable Percentage" shall be replaced by "Proportionate Share"; |
| • | "Loans" shall be replaced by "Advances"; |
| • | "Obligors" shall be replaced by "Secured Companies" (and all necessary changes required by the context shall be deemed to have been made); and |
| • | "Provisions" shall be replaced by "CBA Model Provisions". |
| (b) | "Pro rata share", "rateably" and similar terms in the CBA Model Provisions shall have the meaning ascribed to the term "Proportionate Share" as defined in section 1.01 of this Agreement, if the context requires. |
| (c) | The terms "Related Parties" and "Related Party" in the CBA Model Provisions shall be deemed to have the meanings ascribed to the defined terms "Related Persons" and "Related Person" in this Agreement, respectively. |
| (d) | In the third line of subsection 7.7(1) of the CBA Model Provisions, the phrase "...in consultation with the Borrower..." is hereby amended to read "...upon notice to the Borrower...". |
| (e) | The parties hereby acknowledge and agree that the indemnity contained in clause 9(b)(iii) of the CBA Model Provisions is in addition to and not in substitution for the indemnity contained in section 13.05 of this Agreement. |
| (f) | In addition to the restrictions contained in paragraph 10(b) of the CBA Model Provisions relating to the ability of Lenders to assign their Commitments in whole or in part, if a Lender proposes to assign less than its entire Commitment under any Facility, it may do so only if it retains a Commitment under such Facility in a principal amount of at least Five Million Dollars ($5,000,000). |
12.02 Inconsistencies with CBA Model Provisions
To the extent that there is any inconsistency between a provision of this Agreement and a provision of the CBA Model Provisions, the provision of this Agreement shall govern. For greater certainty, a provision of this Agreement and a provision of the CBA Model Provisions shall be considered to be inconsistent if both relate to the same subject-matter and the provision in the CBA Model Provisions imposes more onerous obligations or restrictions than the corresponding provision in this Agreement.
Article XIII - GENERAL
13.01 Waiver
The failure or delay by the Agent or any Lender in exercising any right or privilege with respect to the non-compliance with any provisions of this Agreement by the Borrower and any course of action on the part of the Agent or any Lender, shall not operate as a waiver of any rights of the Agent or such Lender unless made in writing by the Agent or such Lender. Any such waiver shall be effective only in the specific instance and for the purpose for which it is given and shall not constitute a waiver of any other rights and remedies of the Agent or such Lender with respect to any other or future non-compliance.
| -93- |
13.02 Expenses of Agent and Lenders
Whether or not the transactions contemplated by this Agreement are completed or any Advance has been made, the Borrower agrees to pay on demand by the Agent from time to time all reasonable expenses incurred by the Agent or any Lender in connection with this Agreement, the Security and all documents contemplated hereby, specifically including: reasonable expenses incurred by the Agent and the Lenders in respect of due diligence, appraisals, insurance consultations, credit reporting and responding to demands of any Governmental Authority; reasonable legal expenses incurred by the Agent and the Lenders in connection with the preparation and interpretation of this Agreement and the Security and the administration of the Facilities generally, including the preparation of waivers and partial discharges of Security; and all reasonable legal expenses incurred by the Agent and the Lenders in connection with the protection and enforcement of the Security.
13.03 Debit Authorization
The Borrower hereby authorizes the Agent to debit any account maintained by the Borrower with the Agent, and to set off and compensate against any and all accounts, credits and balances maintained by the Borrower with the Agent, in order to pay (i) any interest or other amounts payable by the Borrower from time to time pursuant to this Agreement when due; and (ii) any expenses referred to in section 11.02 which are not paid by the Borrower within thirty (30) days after receipt by the Borrower of a written request from the Agent for payment of such expenses. The Agent agrees to give written notice to the Borrower of any such debit promptly thereafter.
13.04 General Indemnity
In addition to any other liability of the Borrower hereunder, the Borrower hereby agrees to indemnify and save harmless the Indemnitees from and against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements (including reasonable legal fees) of any kind or nature whatsoever which may be imposed on, incurred by or asserted against the Indemnitees (except to the extent arising from the negligence or wilful misconduct of such Indemnitees) which relate or arise out of or result from:
| (a) | any failure by the Borrower to pay and satisfy its obligations hereunder including, without limitation, any costs or expenses incurred by reason of the liquidation or re-employment in whole or in part of deposits or other funds required by the Lenders to fund or maintain the Facilities or as a result of the Borrower's failure to take any action on the date required hereunder or specified by it in any notice given hereunder; |
| (b) | any investigation by Governmental Authorities or any litigation or other similar proceeding related to any use made or proposed to be made by the Borrower of the proceeds of any Advance; and |
| (c) | any instructions given to any Lender to stop payment on any cheque issued by the Borrower or to reverse any wire transfer or other transaction initiated by such Lender at the request of the Borrower. |
| -94- |
13.05 Environmental Indemnity
In addition to any other liability of the Borrower hereunder, the Borrower hereby agrees to indemnify and save harmless the Indemnitees from and against:
| (a) | any losses suffered by the Indemnitees for, in connection with, or as a direct or indirect result of, the failure of any Company to comply with all Requirements of Environmental Law; |
| (b) | any losses suffered by the Indemnitees for, in connection with, or as a direct or indirect result of, the presence of any Hazardous Material situated in, on or under any property owned by any of the Companies or upon which any of them carries on business; and |
| (c) | any and all liabilities, losses, damages, penalties, expenses (including reasonable legal fees) and claims which may be paid, incurred or asserted against the Indemnitees for, in connection with, or as a direct or indirect result of, any legal or administrative proceedings with respect to the presence of any Hazardous Material on or under any property owned by any of the Companies or upon which any of them carries on business, or the discharge, emission, spill, radiation or disposal by any of them of any Hazardous Material into or upon any Land, the atmosphere, or any watercourse or body of water; including the costs of defending and/or counterclaiming or claiming over against third parties in respect of any action or matter and any cost, liability or damage arising out of a settlement entered into by the Indemnitees of any such action or matter; |
except to the extent arising from the negligence or wilful misconduct of such Indemnitees.
13.06 Survival of Certain Obligations despite Termination of Agreement
The termination of this Agreement shall not relieve the Borrower from its obligations to the Agent and the Lenders arising prior to such termination, such as obligations arising as a result of or in connection with any breach of this Agreement, any failure to comply with this Agreement or the inaccuracy of any representations and warranties made or deemed to have been made prior to such termination, and obligations arising pursuant to all indemnity obligations contained herein. Without limiting the generality of the foregoing, the obligations of the Borrower to the Agent and the Lenders arising under or in connection with sections 13.04 and 13.05 of this Agreement and section 3.2 of the CBA Model Provisions shall continue in full force and effect despite any termination of this Agreement.
13.07 Interest on Unpaid Costs and Expenses
If the Borrower fails to pay when due any amount in respect of costs or expenses incurred by the Agent or any other amount incurred by the Agent and required to be paid by it hereunder (other than principal or interest on any Advance), it shall pay interest on such unpaid amount from the time such amount is due until paid at the rate equal to the highest rate of interest then applicable under the Facilities.
13.08 Assignment
The Borrower may not assign any of its rights and obligations hereunder. A Lender may from time to time assign all or any portion of its rights and obligations under this Agreement in minimum amounts of Five Million Dollars ($5,000,000) to other Persons, provided that any such assignment shall be subject to the prior written consent of the Borrower if at the time of such assignment the Borrower is in compliance with all terms and conditions of the Loan Documents and the Acceleration Date has not occurred; otherwise such assignment may be made by a Lender without notice to and without obtaining the consent of the Borrower. Any consent of the Borrower which may be necessary shall not be unreasonably withheld or delayed, it being understood that it shall be reasonable for the Borrower to withhold such consent based solely on the desire to avoid the payment of additional costs or taxes. Upon any assignment permitted hereunder, such Lender shall be relieved of its obligations hereunder to the extent that the assignee agrees in writing to assume such obligations. The Borrower agrees to execute and deliver, and cause its Subsidiaries to execute and deliver, such documents and assurances in favour of any such assignees or new parties as may be reasonably required to evidence their consent to and carry out the foregoing.
| -95- |
13.09 Notice
Without prejudice to any other method of giving notice, all communications provided for or permitted hereunder shall be in writing and delivered to the addressee by prepaid private courier or sent by facsimile to the applicable address and to the attention of the officer of the addressee as follows:
| (a) | to the Borrower: |
Aurora Cannabis Inc.
Suite 500, 10355 Jasper Avenue
Edmonton, AB
T5J 1Y6
Attention: Jillian Swainson - Chief Legal Officer
Fax: (780) 424-3254
with a courtesy copy to
Brownlee LLP
10155 - 102 Street
Edmonton, AB
T5J 4G8
Attention: Roger I. Swainson, Q.C.
Fax: (780) 424-3254
| (b) | to the Agent at the following address: |
Bank of Montreal
Agent Bank Services
250 Yonge St., 11th Floor
Toronto, Ontario
M5B 2L7
Attention: Manager, Agent Bank Services (re Aurora Cannabis Inc.)
Fax No: 416-598-6218
| (c) | to any Lender, at its address noted on Exhibit "A" attached hereto. |
| -96- |
Any communication transmitted by prepaid private courier shall be deemed to have been validly and effectively given or delivered on the Business Day after which it is submitted for delivery. Any communication transmitted by facsimile shall be deemed to have been validly and effectively given or delivered on the day on which it is transmitted, if transmitted on a Business Day on or before 5:00 p.m. (local time of the intended recipient), and otherwise on the next following Business Day. Any party may change its address for service by notice given in the foregoing manner.
13.10 Severability
Any provision of this Agreement which is illegal, prohibited or unenforceable in any jurisdiction, in whole or in part, shall not invalidate the remaining provisions hereof; and any such illegality, prohibition or unenforceability in any such jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
13.11 Further Assurances
The Borrower shall, at its expense, promptly execute and deliver or cause to be executed and delivered to the Agent upon request, acting reasonably, from time to time all such other and further documents, agreements, opinions, certificates and instruments in compliance with this Agreement, or if necessary or desirable to more fully record or evidence the obligations intended to be entered into herein.
13.12 Time of the Essence
Time shall be of the essence of this Agreement.
13.13 Promotion and Marketing
For the purpose of promotion and marketing, the Borrower hereby authorizes and consents to the reproduction, disclosure and use by the Lenders and the Agent of its name, identifying logo and the Facilities. The Borrower acknowledges and agrees that the Lenders shall be entitled to determine, in their sole discretion, whether to use such information; that no compensation will be payable by the Lenders or the Agent in connection therewith; and that the Lenders and the Agent shall have no liability whatsoever to it or any of its employees, officers, directors, affiliates or shareholders in obtaining and using such information as contemplated herein.
13.14 Entire Agreement; Waivers and Amendments to be in Writing
| (a) | This Agreement supersedes all discussion papers, term sheets and other writings which may have been issued by the Agent or the Lenders prior to the date hereof relating to the Facilities, which shall have no further force or effect. This Agreement and any other documents or instruments contemplated herein or therein shall constitute the entire agreement and understanding among the Borrower, the Lenders and the Agent relating to the subject-matter hereof. |
| (b) | Subject to section 11.01(b) and section 11.10, no provision of this Agreement, or any other document or instrument in existence among the parties may be modified, waived or terminated except by an instrument in writing executed by the party against whom such modification, waiver or termination is sought to be enforced. |
| -97- |
13.15 Inconsistencies with Security
To the extent that there is any inconsistency between a provision of this Agreement and a provision of any document constituting part of the Security, the provision of this Agreement shall govern. For greater certainty, a provision of this Agreement and a provision of the Security shall be considered to be inconsistent if both relate to the same subject-matter and the provision in the Security imposes more onerous obligations or restrictions than the corresponding provision in this Agreement.
13.16 Confidentiality
The Agent and the Lenders agree that all documentation and other information made available by the Borrower to them under or in connection with this Agreement shall (except to the extent such documentation or other information is publicly available or hereafter becomes publicly available other than by their actions, or was theretofore known or hereinafter becomes known to them independently of any disclosure by the Companies) be held in confidence by them and used solely in the evaluation, administration and enforcement of the Advances and all matters related to this Agreement and the Security and the transactions contemplated hereby and thereby, and in the prosecution of defence of legal proceedings arising in connection herewith and therewith. Notwithstanding the foregoing, nothing contained herein shall be construed to prevent the Agent or the Lenders from (a) making disclosure of any information (i) if required to do so by Applicable Law, (ii) to any Governmental Authority having or claiming to have authority to regulate or oversee any aspect of the business of the Agent, the Lenders or the Companies in connection with the exercise of such authority or claimed authority and that compels or requires the disclosure of such information, (iii) pursuant to any subpoena or if otherwise compelled in connection with any litigation or administrative proceeding, (iv) to any prospective participant or assignee of all or any portion of the rights and obligations or the Agent or any Lender hereunder provided that such prospective assignee executes and delivers to the Borrower a confidentiality agreement in form and substance acceptable to it, acting reasonably, or (v) to the extent that the Agent or its counsel deems necessary or appropriate, acting reasonably, to effect or preserve its Security or to enforce any remedy provided in this Agreement or the Security or otherwise available by Law; or (b) making, on a confidential basis, such disclosures as the Agent and the Lenders reasonably deem necessary or appropriate to their legal counsel, accountants or other advisers, agents or representatives (including outside auditors).
13.17 Governing Law
This Agreement shall be interpreted in accordance with the Laws of the Province of Ontario. Without prejudice to the right of the Agent and the Lenders to commence any proceedings with respect to this Agreement in any other proper jurisdiction, the parties hereby attorn and submit to the jurisdiction of the courts of the Province of Ontario.
13.18 Execution by Fax and Counterparts
This Agreement may be executed in several counterparts, each of which, when so executed, shall be deemed to be an original and which counterparts together shall constitute one and the same Agreement. This Agreement may be executed by facsimile or pdf, and any signature contained hereon by facsimile or pdf shall be deemed to be equivalent to an original signature for all purposes.
| -98- |
13.19 Binding Effect
This Agreement shall be binding upon and shall enure to the benefit of the parties and their respective successors and permitted assigns; "successors" includes any corporation resulting from the amalgamation of any party with any other corporation.
[The remainder of this page is intentionally blank. Signature page follows.]
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
| AURORA CANNABIS INC | BANK OF MONTREAL, | |||
| as Administrative Agent | ||||
| By: | By: | |||
| name: | name: | |||
| title: | title: | |||
| By: | By: | |||
| name: | name: | |||
| title: | title: | |||
Credit Agreement – signature page _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
[Redacted - Signature blocks]