8-K
Cannabist Co Holdings Inc. (CBSTQ)
UNITED STATES
SECURITIES AND EXCHANGECOMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13or 15(d)
of the Securities ExchangeAct of 1934
Date of Report(Date of Earliest Event Reported): June 4, 2025 (May 29, 2025)
THE CANNABIST COMPANY HOLDINGS INC.
(Exact Name of Registrantas specified in its charter)
| British Columbia | 000-56294 | 98-1488978 |
|---|---|---|
| (State or Other Jurisdiction<br><br> <br>of Incorporation) | (Commission<br><br> <br>File Number) | (IRS Employer<br><br> <br>Identification No.) |
| 321 Billerica Road<br><br> <br>Chelmsford, Massachusetts | 01824 | |
| --- | --- | |
| (Address of principal executive offices) | (Zip Code) |
(978) 910-1486
(Registrant’stelephone number, including area code)
Not Applicable
(Registrant’sname or former address, if change since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act: None.
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging Growth Company x
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01. | Entry into a Material Definitive Agreement. |
|---|
On May 29, 2025, the Cannabist Company Holdings Inc. (the “Company” or “Cannabist”) completed its previously announced court-approved plan of arrangement under Section 192 of the Canada Business Corporations Act (the “Transaction”) involving, interalios, the Company and The Cannabist Company Holdings (Canada) Inc. (“Cannabist Canada”, and together with the Company, the “Companies”), implementing those transactions described in the Companies’ management information circular dated March 28, 2025.
The Transaction resulted in, among other things: (a) the exchange of all outstanding 6.0% senior secured convertible notes of the Companies due June 29, 2025 and all 9.5% senior secured first-lien notes of the Companies due February 3, 2026 for an equivalent principal amount of new senior notes due December 31, 2028 (the “New Senior Notes”) co-issued by the Companies, and the issuance of an aggregate of 118,209,105 common shares of the Company (the “New CBST Common Shares”) to the holders of such notes on a pro rata basis; (b) the exchange of all outstanding 9.0% senior secured convertible notes of the Companies due March 19, 2027 for either (i) an equivalent principal amount of New Senior Notes, as well as a pro rata amount of the New CBST Common Shares or (ii) an equivalent principal amount of new senior convertible notes due December 31, 2028 co-issued by the Companies (the “New Convertible Notes” and together with the New Senior Notes, the “New Notes”); and (c) the issuance of an aggregate of 118,246,947 common share purchase warrants of the Company (the “Anti-Dilutive Warrants”) to Company shareholders of record as of May 27, 2025 on a pro rata basis. Each securityholder otherwise entitled to a fractional interest in New CBST Common Shares or Anti-Dilutive Warrants received an amount of such securities rounded down to the nearest whole number increment.
The New Notes were issued pursuant to that certain amended and restated indenture (the “A&R Indenture”) among The Cannabist Company Holdings Inc. and The Cannabist Company Holdings (Canada) Inc, as co-issuers, and Odyssey Trust Company, as trustee (the “Trustee”), dated May 29, 2025, as amended and supplemented by that certain first supplemental indenture among The Cannabist Company Holdings Inc. and The Cannabist Company Holdings (Canada) Inc, as co-issuers, and Odyssey Trust Company, dated May 29, 2025 (the “First Supplemental Indenture”). In connection with the issuance of the Anti-Dilutive Warrants, the Company entered into a warrant agency agreement (the “Warrant Agency Agreement”) with Odyssey Trust Company, as warrant agent (the “Warrant Agent”), dated May 29, 2025.
A&R Indentureand First Supplemental Indenture
The New Senior Notes have a 9.25% cash interest rate and a maturity date of December 31, 2028; provided that Cannabist shall be permitted to extend such maturity date to June 30, 2029 and subsequently to December 31, 2029 at any time upon 30 days’ notice to the Trustee and the holders of New Senior Notes (each a “New Senior Notes Extension Notice”). Concurrently with the delivery of any New Senior Notes Extension Notice, Cannabist shall pay the holders of New Senior Notes an extension fee equal to 0.50% of the aggregate principal amount then outstanding under the New Senior Notes, and any such extension shall require Cannabist to concurrently extend the maturity date of the New Convertible Notes to the same date.
The New Convertible Notes have a 9.00% cash interest rate and a maturity date of December 31, 2028; provided that Cannabist shall be permitted to extend such maturity date to June 30, 2029 and subsequently to December 31, 2029 at any time upon 30 days notice to the Trustee and the holders of New Convertible Notes (each a “New Convertible Notes Extension Notice”). Concurrently with the delivery of any New Convertible Notes Extension Notice, Cannabist shall pay the holders of New Senior Notes an extension fee equal to 0.50% of the aggregate principal amount then outstanding under the New Convertible Notes, and any such extension shall require Cannabist to concurrently extend the maturity date of the New Senior Notes to the same date.
The A&R Indenture includes the following provisions or modified covenants:
| · | Minimum Liquidity Requirements: Commencing September 30, 2025, Cannabist’s liquidity<br>based on cash and cash equivalents held in accounts subject to control agreements in favor of the Trustee and certain other accounts set<br>forth in the A&R Indenture, on a consolidated basis shall not fall below $15 million at any time from September 30,<br>2025. |
|---|---|
| · | Consolidated Net Leverage Ratio: Commencing on March 31, 2026, Cannabist will be required<br>to maintain a Consolidated Leverage Ratio (as defined and calculated in the A&R Indenture) at the end of any fiscal quarter<br>ending on certain prescribed dates, which is less than certain prescribed ratios set out in the A&R Indenture. |
| --- | --- |
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| · | Asset Sales: The A&R Indenture includes modifications to the Asset Sale covenant<br>to permit certain Approved Sales. All Approved Sales and Asset Sales will be subject to the oversight of the Board as set out in the A&R Indenture. The first $36.5 million of net proceeds received from Approved Sales which are completed on or before March 31,<br>2026, may be used for general corporate purposes (the “Retained Proceeds”). The use of net proceeds in excess of the Retained<br>Proceeds or derived from other Asset Sales for any purpose other than a mandatory repayment of the New Notes shall be subject to the approval<br>of a majority of the independent directors of the Board; provided that Cannabist will have 274 days to make open market purchases of New<br>Notes prior to redeeming them at par. |
|---|---|
| · | Incurrence Covenants: The A&R Indenture contemplates a number of new or improved<br>incurrence covenants. |
| --- | --- |
| · | Advisor: Beginning on March 31, 2026, a third party financial advisor (the “Financial<br>Advisor”) will be retained by the Trustee on behalf of the holders of New Notes (or retained directly by the holders of New Notes,<br>if the Trustee is unable to retain the Financial Advisor) at Cannabist’s expense, to receive and review certain reporting materials<br>of Cannabist for the period ended March 31, 2026 and thereafter. |
| --- | --- |
Warrant Agency Agreement
The Warrant Agency Agreement provides that the exercise price and number of common shares of the Company (the “Common Shares”) issuable on exercise of the Anti-Dilutive Warrants may be adjusted in certain customary circumstances, including in the event of a stock dividend, Extraordinary Dividend (as such term is defined in the Warrant Agency Agreement) or a recapitalization, reorganization, merger or consolidation. The Anti-Dilutive Warrants will not, however, be adjusted for issuances of Common Shares at a price below their exercise price.
The holders of Anti-Dilutive Warrants will not have the rights or privileges of Cannabist shareholders or any voting rights until they exercise their Anti-Dilutive Warrants and receive the underlying Common Shares. After the issuance of corresponding Common Shares upon exercise of Anti-Dilutive Warrants, each holder will be entitled to vote the Common Shares in accordance with their terms.
The Warrant Agent shall, on receipt of a written request of Cannabist or holders of not less than 25% of the aggregate number of Anti-Dilutive Warrants then outstanding, convene a meeting of holders of Anti-Dilutive Warrants upon at least 21 calendar days’ written notice to holders of Anti-Dilutive Warrants. Every such meeting shall be held in Toronto, Ontario or at such other place as may be approved or determined by the Warrant Agent. A quorum at meetings of holders of Anti-Dilutive Warrants shall be two persons present in person or represented by proxy holding or representing more than 20% of the aggregate number of Anti-Dilutive Warrants then outstanding.
From time to time, Cannabist and the Warrant Agent, without the consent of the holders of Anti-Dilutive Warrants, may amend or supplement the Warrant Agency Agreement for certain purposes including curing defects or inconsistencies or making any change that does not adversely affect the rights of any holder of Anti-Dilutive Warrants. Any amendment or supplement to the Warrant Agency Agreement that adversely affects the interests of the holders of Anti-Dilutive Warrants may only be made by an “extraordinary resolution”, which is defined in the Warrant Agency Agreement as a resolution either: (a) passed at a meeting of the holders of Anti-Dilutive Warrants by the affirmative vote of holders of Anti-Dilutive Warrants representing not less than two-thirds of the aggregate number of the then outstanding Anti-Dilutive Warrants represented at the meeting and voted on such resolution; or (b) adopted by an instrument in writing signed by the holders of Anti-Dilutive Warrants representing not less than two-thirds of the aggregate number of the then outstanding Anti-Dilutive Warrants.
Item 1.01 of this Current Report on Form 8-K does not purport to be a complete description of the rights and obligations of the parties to the A&R Indenture, the First Supplemental Indenture and the Warrant Agency Agreement, and such description is qualified in its entirety by reference to the full text of the agreements, which are attached hereto as Exhibits 4.1, 4.2 and 10.1, respectively, and are incorporated herein by reference.
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| Item 2.03. | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
|---|
The information contained in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03 of this Current Report to the extent required.
| Item 2.04. | Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement. |
|---|
The information contained in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.04 of this Current Report to the extent required.
| Item 3.02. | Unregistered Sales of Equity Securities. |
|---|
The information contained in Item 1.01 of this Current Report on Form 8-K is hereby incorporated into this Item 3.02 by reference. The issuance of New CBST Common Shares and New Notes were exempt from under the United States Securities Act of 1933, as amended (the “Securities Act”), pursuant to Section 3(a)(10) thereof.
The Anti-Dilutive Warrants were issued to existing Company shareholders (excluding the recipients of New CBST Common Shares) in order to reduce the dilutive effect of the New CBST Common Shares. The Company did not receive any consideration for the issuance of the Anti-Dilutive Warrants. Therefore, the issuance of the Anti-Dilutive Warrants did not constitute a “sale,” as such term is defined in Section 2(a)(3) of the Securities Act and did not require registration under the Securities Act.
| Item 9.01. | Financial Statements and Exhibits. |
|---|
(d) Exhibits
† Certain identified information has been omitted pursuant to Item 601(b)(10) of Regulation S-K because such information is both (i) not material and (ii) of the type that the Registrant customarily and actually treats as private or confidential. The Registrant hereby undertakes to furnish supplemental copies of the unredacted exhibit upon request by the SEC.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| THE CANNABIST COMPANY HOLDINGS INC. | |
|---|---|
| By: | /s/ David Sirolly |
| Name: | David Sirolly |
| Title: | Chief Legal Officer & General Counsel |
Date: June 4, 2025
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Exhibit 4.1
Certain identified information has been excluded from this exhibit because it is (i) not material and (ii) thetype that the company treats as private or confidential. Such omitted information is indicated by brackets (“[***]”) in thisexhibit.
EXECUTIONVERSION
AMENDED AND RESTATED TRUST INDENTURE
DATED AS OF THE 29th DAY OF MAY, 2025
BETWEEN
THE CANNABIST COMPANY HOLDINGS INC., AS ISSUER
AND
THE CANNABIST COMPANY HOLDINGS (CANADA) INC.,AS CO-ISSUER
AND
ODYSSEY TRUST COMPANY, AS TRUSTEE
PROVIDING FOR THE ISSUE OF NOTES
- 1 -
Reconciliation and Tie of this Indenture, relatingto Sections 310 through 318, inclusive, of the Trust Indenture Act of 1939, as amended
| Trust Indenture Act Section | Indenture Section |
|---|---|
| Section 310(a)(1) | 13.1 |
| (a)(2) | 13.1 |
| (a)(3) | Not applicable |
| (a)(4) | Not applicable |
| (a)(5) | 13.1 |
| (b) | 13.3 |
| Section 311(a) | 13.20 |
| (b) | 13.20 |
| Section 312(a) | 5.6 |
| (b) | 5.10 |
| (c) | 5.6 |
| Section 313(a) | 13.4 |
| (b) | 13.4 |
| (c) | 13.4 |
| (d) | 13.4 |
| Section 314(a) | 7.5, 9.20 |
| (b) | 13.21 |
| (c) | 13.6 |
| (d) | 10.9 |
| (e) | 13.6 |
| (f) | Not applicable |
| Section 315(a) | 13.5 |
| (b) | 9.13 |
| (c) | 13.4 |
| (d) | 13.4, 13.5 |
| (e) | 9.15 |
| Section 316(a)(last sentence) | 1.2 |
| (a)(1)(A) | 9.12 |
| (a)(1)(B) | 9.2, 14.1 |
| (a)(2) | Not applicable |
| (b) | 9.8 |
| (c) | 13.23 |
| Section 317(a)(1) | 9.3 |
| (a)(2) | 9.4 |
| (b) | 3.6 |
| Section 318(a) | 1.15 |
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TABLE OF CONTENTS
| Article 1 INTERPRETATION | 2 | |
|---|---|---|
| 1.1 | Definitions | 2 |
| 1.2 | Meaning of “Outstanding” | 34 |
| 1.3 | Interpretation | 35 |
| 1.4 | Headings, Etc. | 36 |
| 1.5 | Statute Reference | 36 |
| 1.6 | Day not a Business Day | 36 |
| 1.7 | Applicable Law | 36 |
| 1.8 | Monetary References | 36 |
| 1.9 | Invalidity, Etc. | 36 |
| 1.10 | Language | 36 |
| 1.11 | Successors and Assigns | 37 |
| 1.12 | Benefits of Indenture | 37 |
| 1.13 | Accounting Terms; Changes in U.S. GAAP | 37 |
| 1.14 | Interest Act (Canada) | 38 |
| 1.15 | Incorporation by Reference of Trust Indenture Act; Conflict with Trust Indenture Act | 38 |
| Article 2 NOTEHOLDER COLLATERAL PLATFORM BORROWINGS | 38 | |
| 2.1 | Establishment of Noteholder Collateral Platform | 38 |
| 2.2 | Form of Borrowings | 38 |
| 2.3 | Mandatory Provisions of Pledged Notes | 39 |
| 2.4 | Enforcement Request | 39 |
| Article 3 THE NOTES | 40 | |
| 3.1 | Issue and Designation of Notes; Ranking | 40 |
| 3.2 | Issuance in Series | 40 |
| 3.3 | Form of Notes | 42 |
| 3.4 | Execution, Authentication and Delivery of Notes | 43 |
| 3.5 | Registrar and Paying Agent | 44 |
| 3.6 | Paying Agent to Hold Money in Trust | 45 |
| 3.7 | Book Entry Only Notes, DRS Advice | 45 |
| 3.8 | Global Notes | 46 |
| 3.9 | Interim Notes | 47 |
| 3.10 | Mutilation, Loss, Theft or Destruction | 47 |
| 3.11 | Concerning Interest | 48 |
| 3.12 | Payments of Amounts Due on Maturity | 49 |
| 3.13 | Legends on Notes | 50 |
| 3.14 | Payment of Interest | 51 |
| 3.15 | Record of Payment | 52 |
| 3.16 | Representation Regarding Third Party Interest | 52 |
| Article 4 TERMS OF THE 2028 NOTES | 53 | |
| 4.1 | Definitions | 53 |
| 4.2 | Creation and Designation of the 2028 Notes | 53 |
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| 4.3 | Aggregate Principal Amount | 53 |
|---|---|---|
| 4.4 | Authentication | 53 |
| 4.5 | Date of Issue and Maturity | 53 |
| 4.6 | Interest | 54 |
| 4.7 | Optional Redemption | 55 |
| 4.8 | Optional Redemption for Changes in Withholding Taxes | 55 |
| 4.9 | Mandatory Redemption and Market Purchases | 56 |
| 4.10 | Form and Denomination of the 2028 Notes | 56 |
| 4.11 | Currency of Payment | 56 |
| 4.12 | Additional Amounts | 56 |
| 4.13 | Appointment | 58 |
| 4.14 | Inconsistency | 58 |
| 4.15 | Reference to Principal, Premium,Interest,etc. | 58 |
| 4.16 | Merger, Amalgamation or Winding Up of Cannabist Canada | 59 |
| 4.17 | Additional Early Consent Consideration | 59 |
| Article 5 REGISTRATION, TRANSFER, EXCHANGE AND OWNERSHIP | 59 | |
| 5.1 | Register of Certificated Notes | 59 |
| 5.2 | Global Notes | 60 |
| 5.3 | Transferee Entitled to Registration | 61 |
| 5.4 | No Notice of Trusts | 61 |
| 5.5 | Registers Open for Inspection | 61 |
| 5.6 | Issuer to Furnish Trustee Names and Addresses of Holders | 62 |
| 5.7 | Transfers and Exchanges of Notes | 62 |
| 5.8 | Charges for Registration, Transfer and Exchange | 65 |
| 5.9 | Ownership of Notes | 66 |
| 5.10 | Communication to Holders | 67 |
| 5.11 | Cancellation and Destruction | 67 |
| Article 6 REDEMPTION AND PURCHASE OF NOTES | 67 | |
| 6.1 | Redemption of Notes | 67 |
| 6.2 | Places of Payment | 67 |
| 6.3 | Partial Redemption | 67 |
| 6.4 | Notice of Redemption | 68 |
| 6.5 | Qualified Redemption Notice | 69 |
| 6.6 | Notes Due on Redemption Dates | 69 |
| 6.7 | Deposit of Redemption Monies | 70 |
| 6.8 | Failure to Surrender Notes Called for Redemption | 70 |
| 6.9 | Cancellation of Notes Redeemed | 71 |
| 6.10 | Purchase of Notes for Cancellation | 71 |
| Article 7 COVENANTS OF THE ISSUER | 72 | |
| 7.1 | Payment of Principal, Premium, and Interest | 72 |
| 7.2 | Existence | 72 |
| 7.3 | Payment of Taxes and Other Claims | 72 |
| 7.4 | Keeping of Books | 73 |
| 7.5 | Provision of Reports and Financial Statements | 73 |
| 7.6 | Designation of Restricted and Unrestricted Subsidiaries | 75 |
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| 7.7 | Liens | 76 |
|---|---|---|
| 7.8 | Landlord Consents | 76 |
| 7.9 | Restricted Payments | 77 |
| 7.10 | Incurrence of Indebtedness | 80 |
| 7.11 | Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries | 83 |
| 7.12 | Transactions with Affiliates | 86 |
| 7.13 | Business Activities, Material Permits, and Material Contracts | 89 |
| 7.14 | Repurchase at the Option of Holders – Change of Control | 90 |
| 7.15 | Repurchase at the Option of Holders – Asset Sales | 92 |
| 7.16 | Suspension of Covenants | 95 |
| 7.17 | Post-Closing Security Registration | 97 |
| 7.18 | Financial Covenants | 98 |
| 7.19 | Nomination Rights of Supporting Senior Noteholders, Cannabist Board, Etc. | 98 |
| 7.20 | Use of Warrant Proceeds | 100 |
| Article 8 SECURITY | 101 | |
| 8.1 | Security | 101 |
| 8.2 | Equal and Rateable Security | 101 |
| 8.3 | Effective Date of Security | 101 |
| 8.4 | Perfection of Security Interest | 101 |
| Article 9 DEFAULT AND ENFORCEMENT | 102 | |
| 9.1 | Events of Default | 102 |
| 9.2 | Acceleration of Maturity; Rescission, Annulment and Waiver | 104 |
| 9.3 | Collection of Indebtedness and Suits for Enforcement by Trustee | 106 |
| 9.4 | Trustee May File Proofs of Claim | 107 |
| 9.5 | Trustee May Enforce Claims Without Possession of<br> Notes | 107 |
| 9.6 | Application of Monies by Trustee | 108 |
| 9.7 | No Suits by Holders | 109 |
| 9.8 | Unconditional Right of Holders to Receive Principal, Premium and Interest | 109 |
| 9.9 | Restoration of Rights and Remedies | 109 |
| 9.10 | Rights and Remedies Cumulative | 110 |
| 9.11 | Delay or Omission Not Waiver | 110 |
| 9.12 | Control by Holders | 110 |
| 9.13 | Notice of Event of Default | 110 |
| 9.14 | Waiver of Stay or Extension Laws | 111 |
| 9.15 | Undertaking for Costs | 111 |
| 9.16 | Judgment Against the Issuer | 111 |
| 9.17 | Immunity of Officers and Others | 111 |
| 9.18 | Notice of Payment by Trustee | 111 |
| 9.19 | Trustee May Demand Production of Notes | 112 |
| 9.20 | Statement by Officers | 112 |
| Article 10 DISCHARGE AND DEFEASANCE | 112 | |
| 10.1 | Satisfaction and Discharge | 112 |
| 10.2 | Option to Effect Discharge, Legal Defeasance or Covenant Defeasance | 113 |
| 10.3 | Legal Defeasance and Discharge | 113 |
| 10.4 | Covenant Defeasance | 114 |
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| 10.5 | Conditions to Legal or Covenant Defeasance | 115 |
|---|---|---|
| 10.6 | Application of Trust Funds | 116 |
| 10.7 | Repayment to the Issuer | 116 |
| 10.8 | Continuance of Rights, Duties and Obligations | 117 |
| 10.9 | Release of Liens | 117 |
| Article 11 MEETINGS OF HOLDERS | 119 | |
| 11.1 | Purpose, Effect and Convention of Meetings | 119 |
| 11.2 | Notice of Meetings | 120 |
| 11.3 | Chair | 121 |
| 11.4 | Quorum | 121 |
| 11.5 | Power to Adjourn | 122 |
| 11.6 | Voting | 122 |
| 11.7 | Poll | 122 |
| 11.8 | Proxies | 122 |
| 11.9 | Persons Entitled to Attend Meetings | 123 |
| 11.10 | Powers Cumulative | 123 |
| 11.11 | Minutes | 123 |
| 11.12 | Instruments in Writing | 123 |
| 11.13 | Binding Effect of Resolutions | 124 |
| 11.14 | Evidence of Rights of Holders | 124 |
| Article 12 SUCCESSORS TO THE ISSUER AND THE RESTRICTED SUBSIDIARIES | 124 | |
| 12.1 | Merger, Consolidation or Sale of Assets | 124 |
| 12.2 | Vesting of Powers in Successor | 126 |
| Article 13 CONCERNING THE TRUSTEE | 127 | |
| 13.1 | Corporate Trustee Required; Eligibility | 127 |
| 13.2 | No Conflict of Interest | 127 |
| 13.3 | Replacement of Trustee or Collateral Trustee | 127 |
| 13.4 | Rights and Duties of Trustee | 130 |
| 13.5 | Reliance Upon Declarations, Opinions,etc. | 132 |
| 13.6 | Evidence and Authority to Trustee, Opinions,etc. | 133 |
| 13.7 | Officers’ Certificates Evidence | 134 |
| 13.8 | Experts, Advisers and Agents | 135 |
| 13.9 | Trustee May Deal in Notes | 135 |
| 13.10 | Trustee Not Ordinarily Bound | 135 |
| 13.11 | Investment of Monies Held by Trustee | 135 |
| 13.12 | [Reserved] | 136 |
| 13.13 | Trustee Not Required to Give Security | 136 |
| 13.14 | Trustee Not Bound to Act on Issuer’s Request | 136 |
| 13.15 | Conditions Precedent to Trustee’s Obligations to Act Hereunder | 137 |
| 13.16 | Authority to Carry on Business | 137 |
| 13.17 | Compensation and Indemnity | 137 |
| 13.18 | Acceptance of Trust | 138 |
| 13.19 | Anti-Money Laundering | 138 |
| 13.20 | Privacy | 138 |
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| 13.21 | Preferential Collection of Claims Against Issuer | 139 |
|---|---|---|
| 13.22 | Evidence of Recording of Indenture | 139 |
| 13.23 | Certificates of Fair Value | 139 |
| 13.24 | Acts of Holders; Record Dates | 140 |
| Article 14 AMENDMENT, SUPPLEMENT AND WAIVER | 140 | |
| 14.1 | Ordinary Consent | 140 |
| 14.2 | Special Consent | 140 |
| 14.3 | Without Consent | 142 |
| 14.4 | Form of Consent | 143 |
| 14.5 | Supplemental Indentures | 143 |
| Article 15 GUARANTEES | 144 | |
| 15.1 | Issuance of Guarantees | 144 |
| 15.2 | Release of Guarantees | 145 |
| Article 16 NOTICES | 146 | |
| 16.1 | Notice to Issuer | 146 |
| 16.2 | Notice to Holders | 146 |
| 16.3 | Notice to Trustee or Collateral Trustee | 147 |
| 16.4 | Mail Service Interruption | 147 |
| Article 17 MISCELLANEOUS | 147 | |
| 17.1 | Copies of Indenture | 147 |
| 17.2 | Force Majeure | 147 |
| 17.3 | Waiver of Jury Trial | 147 |
| 17.4 | Appointment of Supporting Senior Noteholder Representative | 148 |
| Article 18 EXECUTION AND FORMAL DATE | 149 | |
| 18.1 | Execution | 149 |
| 18.2 | Formal Date | 149 |
| APPENDIX A<br> FORM OF 2028 NOTE | A-1 | |
| --- | --- | |
| APPENDIX B FORM OF<br> GUARANTEE | B-1 | |
| APPENDIX C GUARANTORS, ETC | C-1 | |
| APPENDIX D APPROVED SALES, ETC | D-1 | |
| APPENDIX E PERMITTED LIENS | E-1 |
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THIS AMENDED AND RESTATED INDENTURE is made as of May 29, 2025, and amends and restates in its entirety the Trust Indenture dated as of May 14, 2020, as amended by the first supplemental indenture dated as of June 19, 2020, as further amended by the second supplemental indenture dated as of June 29, 2021, as further amended by the third supplemental indenture dated as of February 2, 2022, as further amended by the fourth supplemental indenture dated as of February 3, 2022, as further amended by the fifth supplemental indenture dated as of May 5, 2022, as further amended by the sixth supplemental indenture dated as of September 20, 2023, as further amended by the seventh supplemental indenture dated as of March 19, 2024, and as further amended by the eighth supplemental indenture dated as of March 12, 2025 (collectively, the (the “Original Indenture”).
BETWEEN:
THE CANNABIST COMPANY HOLDINGS INC., a company subsisting under the laws of the Province of British Columbia (hereinafter “Cannabist” or the “Issuer”);
THE CANNABIST COMPANY HOLDINGS (CANADA) INC., a company subsisting under the laws of Canada (hereinafter the “Co-Issuer” and together with the Cannabist, the “Issuers” and each, individually, an “Issuer”); and
ODYSSEY TRUST COMPANY, a trust company continued under the laws of Canada authorized to carry on the business of a trust company in British Columbia (hereinafter called the “Trustee”).
WITNESSETH THAT:
WHEREAS Issuers consider it desirable for its business purposes to create and issue Notes of one or more series and other debt securities and engage in other forms of borrowing from time to time, all of the foregoing to be secured in the manner set forth in this Indenture.
AND WHEREAS the Issuers have issued (i) $74,500,000 aggregate principal amount of 6.0% Senior Secured Convertible Notes due June 29, 2025, of which $59,500,000 aggregate principal amount remained outstanding as of the date of the CBCA Proceedings (the “2025 Convertible Notes”); (ii) $185,000,000 aggregate principal amount of 9.5% Senior Secured Notes due February 3, 2026 (the “2026 Notes”), and (iii) $25,750,000 aggregate principal amount of 9.0% Senior Secured Convertible Notes due March 19, 2027, of which $25,450,00,000 aggregate principal amount remained outstanding as of the date of the CBCA Proceedings (the “2027 Convertible Notes”);
AND WHEREAS pursuant to the CBCA Proceedings (as defined herein), and subject to the terms hereof, the Issuers may issue Notes hereunder, and as of the date hereof have duly authorized the issuance of up to (i) $250,750,000 aggregate principal amount of 9.25% Senior Secured Notes due December 31, 2028, which Notes shall be issued in exchange for, on a dollar-for-dollar basis, the 2025 Convertible Notes, 2026 Notes and an aggregate principal amount of $6,250,000 2027 Convertible Notes, and be issued pursuant to Section 4 of this Amended and Restated Indenture; and (ii) $19,200,000 in aggregate principal amount of 9.0% Senior Secured Convertible Notes due December 31, 2028, which shall be issued in exchange for (and as partial consideration for, in accordance with the CBCA proceedings), on a dollar-for-dollar basis, an aggregate principal amount of $19,200,000 2027 Convertible Notes and be issued pursuant to a the first supplemental indenture to this Amended and Restated Indenture dated as of the date hereof.
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NOW THEREFORE in consideration of the agreement contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is hereby covenanted, agreed and declared as set forth herein:
Article 1INTERPRETATION
| 1.1 | Definitions |
|---|
In this Indenture (including the recitals hereto) and in the Notes, unless there is something in the subject matter or context inconsistent therewith, the expressions following shall have the following meanings:
“2025 Convertible Notes” has the meaning given to that term in the recitals.
“2026 Notes” has the meaning given to that term in the recitals.
“2027 Convertible Notes” has the meaning given to that term in the recitals.
“2028 Convertible Notes” means the 9.0% Senior Secured Convertible Notes due December 31, 2028, unless extended by the Issuer in accordance with the terms of this Indenture, created and designated pursuant to the first supplemental indenture dated as of the date hereof.
“2028 Note Maturity Date” means December 31, 2028, subject to any extensions in accordance with Section 4.5 hereof.
“2028 Notes” means the 9.25% Senior Secured Notes due December 31, 2028, unless extended by the Issuer in accordance with the terms of this Indenture, created and designated pursuant to Article 4.
“Accounting Change” has the meaning set forth in Section 1.13.
“Accounting Change Notice” has the meaning set forth in Section 1.13.
“Accredited Investor” means an “accredited investor” within the meaning of Rule 501(a) of Regulation D under the U.S. Securities Act.
“Acquired Debt” means, with respect to any specified Person, Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, regardless of whether such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person.
“Act” means the BusinessCorporations Act (British Columbia), as the same may be amended from time to time, and any successor legislation thereto, except where otherwise expressly provided;
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“Additional Amounts” has the meaning set forth in (a) Section 4.12 in the case of the 2028 Notes and (b) the Supplemental Indenture providing for the relevant series of Notes, in the case of any other Notes.
“Additional Notes” means Notes of any series (other than the Notes issued on the initial issue date of the relevant series of Notes and any Notes issued in exchange or in replacement (in whole or in part) for such initial Notes) issued under this Indenture in accordance with Section 3.2.
“Advance Offer” has the meaning given to that term in Section 7.15.
“Advance Portion” has the meaning given to that term in Section 7.15.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, will mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” will have correlative meanings.
“Affiliate Transaction” has the meaning given to that term in Section 7.12.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depository that apply to such transfer or exchange.
“Applicable Securities Legislation” means, at any time, applicable securities laws (including rules, regulations, policies, instruments and blanket orders) in each of the provinces and territories of Canada and applicable United States federal securities laws.
“Approved Sales” means any pending or contemplated Asset Sales involving the Issuer or any of its Restricted Subsidiaries that is (i) listed in Section 1 of Appendix D and has been approved by a majority of the Board of Directors at the time such transaction is consummated, or (ii) listed in Section 2 of Appendix D and has been unanimously approved by the Board of Directors at the time such transaction is consummated.
“Appointment Period” has the meaning given to that term in Section 7.19(a).
“Articles” means the articles of Cannabist, as amended from time to time.
“Asset Sale” means any of the following:
| (a) | the sale, conveyance or other disposition of any assets (including the sale of Verano Common Shares),<br>other than a transaction governed by and pursuant to the provisions of Section 7.14 or Section 12.1 of this Indenture; and |
|---|---|
| (b) | the issuance of Equity Interests by any of the Restricted Subsidiaries or the sale, transfer or other<br>conveyance by the Issuer or any Restricted Subsidiary thereof of Equity Interests in any of its Subsidiaries (other than directors’<br>qualifying shares or shares required to be owned by other Persons pursuant to applicable law). |
| --- | --- |
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Notwithstanding the preceding, the following items will be deemed not to be Asset Sales:
| (a) | any single transaction or series of related transactions that involves assets or other Equity Interests<br> having a Fair Market Value of less than $2.0 million; |
|---|---|
| (b) | any issuance or transfer of assets or Equity Interests between or among the Issuer and its Restricted<br>Subsidiaries; |
| --- | --- |
| (c) | the sale or other disposition of cash or Cash Equivalents; |
| --- | --- |
| (d) | dispositions (including without limitation surrenders and waivers) of accounts or notes receivable or<br> other contract rights in connection with the compromise, settlement or collection thereof in the ordinary course of business<br>or in bankruptcy or similar proceedings; |
| --- | --- |
| (e) | the trade or exchange by the Issuer or any Restricted Subsidiary thereof of any asset for any other asset<br>or assets that is used or useable in a Permitted Business, including any cash or Cash Equivalents necessary in order to achieve an<br>exchange of equivalent value; provided, however, that the Fair Market Value of the asset or assets received by the Issuer or any<br>Restricted Subsidiary in such trade or exchange (including any such cash or Cash Equivalents) is at least equal to the Fair Market<br>Value (as determined in good faith by the Board of Directors or an executive officer of the Issuer or such Subsidiary with responsibility<br>for such transaction, which determination shall be conclusive evidence of compliance with this provision) of the asset or assets<br>disposed of by the Issuer or any Restricted Subsidiary pursuant to such trade or exchange; |
| --- | --- |
| (f) | any sale, lease, conveyance or other disposition of (i) inventory, products, services or accounts<br> receivable in the ordinary course of business, and (ii) any property or equipment that has become damaged, worn out or<br>obsolete or pursuant to a program for the maintenance or upgrading of such property or equipment; |
| --- | --- |
| (g) | the creation of a Lien not prohibited by this Indenture and any disposition of assets resulting from the<br> enforcement or foreclosure of any such Lien; |
| --- | --- |
| (h) | the disposition of assets that, in the good faith judgment of the Issuer, are no longer used or useful<br>in the business of such entity; |
| --- | --- |
| (i) | a Restricted Payment or Permitted Investment that is otherwise permitted by this Indenture; |
| --- | --- |
| (j) | leases or subleases in the ordinary course of business to third persons otherwise in accordance with the<br>provisions of this Indenture; |
| --- | --- |
| (k) | an issuance of Capital Stock by a Restricted Subsidiary to the Issuer or to a wholly owned Restricted<br>Subsidiary of the Issuer; |
| --- | --- |
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| (l) | a surrender or waiver of contract rights or a settlement, release or surrender of contract, tort or other<br> claims in the ordinary course of business; |
|---|---|
| (m) | foreclosure on assets or property; |
| --- | --- |
| (n) | sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or<br> made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements<br>and similar binding arrangements and the transfer of assets as part of the consideration for Investment in a joint venture so long<br>as the Fair Market Value of such assets is counted against the amount of Investments permitted pursuant to Section 7.9; |
| --- | --- |
| (o) | sales or dispositions in connection with Permitted Liens; |
| --- | --- |
| (p) | sales or dispositions in respect of which the Issuer or a Restricted Subsidiary is required to pay the<br> proceeds thereof to a third party pursuant to the terms of agreements or arrangements in existence as at the Issue Date; and, |
| --- | --- |
| (q) | any sale, transfer or other disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement<br>or other obligation with or to a Person (other than the Issuer) from whom such Restricted Subsidiary was acquired, or from whom such<br>Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part<br>of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition; |
| --- | --- |
For purposes of this definition, any series of related transactions that, if effected as a single transaction, would constitute an Asset Sale, shall be deemed to be a single Asset Sale effected when the last such transaction which is a part thereof is effected.
“Asset Sale Offer” has the meaning given to that term in Section 7.15.
“Authentication Order” has the meaning given to that term in Section 3.4(c).
“Bankruptcy Law” means the BIA, the CCAA and the Winding Up and Restructuring Act (Canada), each as now and hereafter in effect, any successors to such statutes, any other applicable insolvency, winding-up, dissolution, restructuring, reorganization, liquidation, or other similar law of any jurisdiction, and any law of any jurisdiction (including any corporate law relating to arrangements, reorganizations, or restructurings) permitting a debtor to obtain a stay or a compromise of the claims of its creditors against it.
“Beneficial Holder” means any Person who holds a beneficial interest in a Global Note as shown on the books of the Depository or a Participant.
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“BIA” means the Bankruptcyand Insolvency Act (Canada) as now and hereinafter in effect, or any successor statute.
“Board of Directors” means:
| (a) | with respect to a corporation, the board of directors of the corporation or a duly authorized committee<br>thereof; |
|---|---|
| (b) | with respect to a partnership, the board of directors of the general partner of the partnership; |
| --- | --- |
| (c) | with respect to any other Person, the board, committee or governing body of such Person serving a similar<br>function. |
| --- | --- |
“Board Resolution” means a resolution certified by the Secretary or an Assistant Secretary of the Issuer to have been duly adopted by the Board of Directors of the Issuer and to be in full force and effect on the date of such certification.
“Book Entry Only Notes” means Notes of a series which, in accordance with the terms applicable to such series, are to be held only by or on behalf of the Depository.
“Business Day” means any day other than a Saturday, a Sunday or a day on which banking institutions in the City of Vancouver, British Columbia are authorized or required by law, regulation or executive order to remain closed.
“Cannabist” has the meaning given to such term in the preamble.
“Capital Stock” means:
| (a) | in the case of a corporation, corporate stock or shares; |
|---|---|
| (b) | in the case of an association or business entity, any and all shares, interests, participations, rights<br>or other equivalents (however designated) of corporate stock; |
| --- | --- |
| (c) | in the case of a partnership or limited liability company, partnership or membership interests (whether<br>general or limited); and |
| --- | --- |
| (d) | any other interest or participation that confers on a Person the right to receive a share of the profits<br>and losses of, or distributions of assets of, the issuing Person, |
| --- | --- |
but excluding from all of the foregoing any debt securities convertible into Capital Stock, regardless of whether such debt securities include any right of participation with Capital Stock.
“Cash Equivalents” means:
| (a) | United States or Canadian dollars Euros or Pound Sterling, in an amount up to the amount necessary or<br>appropriate to fund local operating expenses, other currencies; |
|---|
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| (b) | securities issued or directly and fully guaranteed or insured by the government of the United States or<br> Canada or any agency or instrumentality thereof (provided that the full faith and credit of the United States or Canada, as<br>the case may be, is pledged in support of such securities), maturing, unless such securities are deposited to defease any Indebtedness,<br>not more than one year from the date of acquisition; |
|---|---|
| (c) | certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less<br> from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits,<br>in each case, with any commercial bank organized under the laws of the United States, Canada or any other country that is a member<br>of the Organization for Economic Cooperation and Development, in each case, having capital and surplus in excess of $500.0 million<br>and a rating at the time of acquisition thereof of P-1 or better from Moody’s or A-1 or better from Standard & Poor’s,<br>or, with respect to a commercial bank organized under the laws of Canada, the equivalent thereof by DBRS; |
| --- | --- |
| (d) | repurchase obligations with a term of not more than seven days for underlying securities of the types<br> described in clauses (b) and (c) above entered into with any financial institution meeting the qualifications specified<br>in clause (c) above; |
| --- | --- |
| (e) | commercial paper having one of the two highest ratings obtainable from any of (i) Moody’s,<br>(ii) Standard & Poor’s or (iii) DBRS, and in each case maturing within one year after the date of acquisition; |
| --- | --- |
| (f) | securities issued and fully guaranteed by any state, commonwealth or territory of the United States of<br> America, any province or territory of Canada, or by any political subdivision or Taxing Authority thereof, rated at least “A”<br>by Moody’s or Standard & Poor’s or, with respect to any province or territory of Canada, the equivalent thereof<br>by DBRS, and in each case having maturities of not more than one year from the date of acquisition; and |
| --- | --- |
| (g) | money market funds, of which at least a majority of the assets constitute Cash Equivalents of the kinds<br> described in clauses (a) through (g) of this definition. |
| --- | --- |
“CBCA Proceedings” means the proceedings under section 192 of the Canada Business Corporations Act commenced in the Ontario Superior Court of Justice (Commercial List), Court File No. CV-25-00739458-00CL relating to a proposed arrangement of the Co-Issuer and involving Cannabist, 16834434 Canada Inc., Patriot Care Corp., Curative Health LLC, Columbia Care DC LLC, Mission Bay, LLC, Ccut Pharmacy LLC, Columbia Care Pennsylvania LLC, Columbia Care Industrial Hemp LLC, Curative Health Cultivation LLC, Columbia Care NY LLC, Focused Health LLC, Columbia Care New Jersey LLC, Columbia Care WV Industrial Hemp LLC, CCPA Industrial Hemp LLC, CC OH Realty LLC, CCF Holdco LLC, CC California LLC, Columbia Care MD LLC, Columbia Care DE Management LLC, Columbia Care Delaware, LLC, and Columbia Care LLC.
“CCAA” means the Companies Creditors Arrangement Act (Canada) as now and hereinafter in effect, or any successor statute.
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“CDS” means CDS Clearing and Depository Services Inc. and its successors.
“Change of Control” means the occurrence of any one or more of the following events:
| (a) | the sale, lease, exchange or other transfer of all or substantially all of the assets of the Issuer and<br>its Restricted Subsidiaries, taken as a whole; |
|---|---|
| (b) | any Person or group of Persons, acting jointly or in concert, is or becomes the beneficial owner, directly<br>or indirectly, of more than 50% of the Voting Stock of Cannabist; or |
| --- | --- |
| (c) | the adoption of a plan relating to the liquidation or dissolution of Cannabist which is not permitted<br>by Section 12.1. |
| --- | --- |
Notwithstanding anything to the contrary in this definition, the following will be deemed not to be a Change of Control: a merger, arrangement, amalgamation, continuance, consolidation or reorganization that results in (i) Cannabist reincorporating, continuing or re-domiciling into a jurisdiction within (a) the United States (including any state thereof or the District of Columbia) or (b) Canada (including any province or territory thereof), so long as any Person or group of Persons, acting jointly or in concert, does not become the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of the successor Person resulting from such merger, arrangement, amalgamation, continuance, consolidation or reorganization, or (ii) an Issuer Combination.
For purposes of this definition, (i) a beneficial owner of a security includes any Person or group of persons who, directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise has or shares: (A) voting power, which includes the power to vote, or to direct the voting of, such security; and/or (B) investment power, which includes the power to dispose of, or to direct the disposition of, such security; (ii) a Person or group of Persons shall not be deemed to have beneficial ownership of securities subject to a stock purchase agreement, merger agreement or similar agreement until the consummation of the transactions contemplated by such agreement; and (iii) to the extent that one or more regulatory approvals are required for any of the transactions or circumstances described in clauses (a), (b) or (c) above to become effective under applicable law and such approvals have not been received before such transactions or circumstances have occurred, such transactions or circumstances shall be deemed to have occurred at the time such approvals have been obtained and become effective under applicable law.
“Change of Control Offer” has the meaning given to that term in Section 7.14(a).
“Change of Control Payment” has the meaning given to that term in Section 7.14(a).
“Change of Control Payment Date” has the meaning given to that term in Section 7.14(a).
“Charges” has the meaning given to that term in Section 4.6(c).
“Collateral” means all Property of the Issuer and the Guarantors, whether now owned or hereafter acquired, in which Liens are, from time to time, granted to the Collateral Trustee to secure the Obligations of the Issuer and the Guarantors pursuant to the Notes and the Noteholder Collateral Platform; provided that, the Collateral shall not include the Excluded Property.
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“Collateral Trustee” means Odyssey Trust Company in its capacity as collateral trustee for and on behalf of itself and the Noteholders under the Indenture and the Security Documents and any successor trustee or agent appointed hereunder.
“Conditions” has the meaning given to that term in Section 7.19(d).
“Consolidated EBITDA” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, and without duplication:
| (a) | an amount equal to any net loss realized by such Person or any of its Restricted Subsidiaries in connection<br>with an Asset Sale, to the extent such losses were deducted in computing such Consolidated Net Income; plus |
|---|---|
| (b) | all extraordinary, unusual or non-recurring items of loss or expense, including restructuring costs not<br>otherwise defined in subsection (f) hereof, to the extent deducted in computing such Consolidated Net Income provided that the amount<br>added back hereunder, together with any amounts added back pursuant to subsection (h) hereof shall not exceed 12.5% of Consolidated<br>EBITDA for any four fiscal quarter period ending on such date (calculated prior to giving effect to any adjustment pursuant to this clause<br>(b); plus |
| --- | --- |
| (c) | provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such<br>period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus |
| --- | --- |
| (d) | Consolidated Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent<br>that any such Consolidated Fixed Charges were deducted in computing such Consolidated Net Income; plus |
| --- | --- |
| (e) | depreciation, depletion, amortization (including amortization of intangibles and deferred financing costs<br>but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses (excluding any such<br>non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a<br>prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that<br>such depreciation, depletion, amortization and other non-cash expenses were deducted in computing such Consolidated Net Income; plus |
| --- | --- |
| (f) | severance costs, costs related to closing facilities, and costs related to lease buy-outs; provided that<br>in each case such costs or charges were deducted in calculating Consolidated Net Income for such period; plus |
| --- | --- |
| (g) | [Reserved]. |
| --- | --- |
| (h) | the amount of any one-time and non-recurring costs relating to opening or relocating facilities, signing,<br>retention and completion bonuses, costs incurred in connection with any strategic initiatives, transition and other business optimization<br>expenses and project start-up costs; provided that the aggregate amount for all cash items added pursuant to this clause (h) together<br>with any amounts added back pursuant to subsection (b) hereof shall not exceed 12.5% of Consolidated EBITDA for any four fiscal quarter<br>period ending on such date (calculated prior to giving effect to any adjustment pursuant to this clause (h)); plus |
| --- | --- |
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| (i) | the amount of identified cost savings projected by the Issuer in good faith to result from actions taken<br>or expected to be taken not later than twelve months after the end of such period (which identified cost savings shall be calculated as<br>though they had been realized on the first day of the period for which Consolidated EBITDA is being determined); provided that (x) such<br>cost savings are reasonably identifiable and factually supportable and (y) the aggregate amount of cost savings added pursuant to<br>this clause (i) for any date for the four fiscal quarter period ending on such date shall not exceed, 10% of Consolidated EBITDA<br>for any four fiscal quarter period ending on such date (calculated prior to giving effect to any adjustment pursuant to this clause (i));<br>plus |
|---|---|
| (j) | all expenses related to restricted stock, redeemable stock or stock options interests granted to officers,<br>directors and employees, to the extent such expenses were deducted in computing such Consolidated Net Income; plus |
| --- | --- |
| (k) | all non-cash items decreasing such Consolidated Net Income for such period; minus |
| --- | --- |
| (l) | non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue<br>in the ordinary course of business; plus |
| --- | --- |
| (m) | all expenses and costs incurred in connection with the CBCA Proceedings and issuance of the 2028 Notes<br>and 2028 Convertible Notes that are paid within 180 days after the completion of the CBCA Proceedings; |
| --- | --- |
in each case, on a consolidated basis and determined in accordance with U.S. GAAP.
Notwithstanding the preceding, the provision for taxes based on the income or profits of, the Consolidated Fixed Charges of and the depreciation, depletion and amortization and other non-cash expenses of, a Restricted Subsidiary of the Issuer will be added to Consolidated Net Income to compute Consolidated EBITDA of the Issuer (A) in the same proportion that the net income of such Restricted Subsidiary was added to compute such Consolidated Net Income of the Issuer and (B) only to the extent that a corresponding amount would be permitted at the date of determination to be dividended or distributed, directly or indirectly, to the Issuer by such Restricted Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Subsidiary or its stockholders.
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“Consolidated Fixed Charge Coverage Ratio” means, with respect to any specified Person for any period, the ratio of the Consolidated EBITDA of such Person for such period to the Consolidated Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries Incurs, repays, repurchases or redeems any Indebtedness (other than the Incurrence or repayment of revolving credit borrowings, except to the extent that a repayment is accompanied by a permanent reduction in revolving credit commitments) or issues, repurchases or redeems Disqualified Stock subsequent to the commencement of the period for which the Consolidated Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Consolidated Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the Consolidated Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such Incurrence, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock, and the use of the proceeds therefrom as if the same had occurred at the beginning of such period; provided that, in the event that the Issuer shall classify Indebtedness Incurred on the date of determination as Incurred in part pursuant to one or more clauses of the definition of “Permitted Debt”, any calculation of Consolidated Fixed Charges pursuant to this definition on such date (but not in respect of any future calculation following such date) shall not include any such Indebtedness (and shall not give effect to any repayment, repurchase, redemption, defeasance or other acquisition, retirement or discharge of Indebtedness from the proceeds thereof) to the extent Incurred pursuant to any such other clause of the definition of “Permitted Debt” on such date. In addition, for purposes of calculating the Consolidated Fixed Charge Coverage Ratio:
| (a) | acquisitions and dispositions of business entities or property and assets constituting a division or line<br> of business of any Person that have been made by the specified Person or any of its Restricted Subsidiaries, including through<br>mergers or consolidations, during the four-quarter reference period or subsequent to such reference period and on or prior to the<br>Calculation Date will be given pro forma effect as if they had occurred on the first day of the four-quarter reference period,<br>and Consolidated EBITDA for such reference period will be calculated on a pro forma basis in good faith on a reasonable basis by<br>a responsible financial or accounting Officer of the Issuer; provided that such Officer may in his discretion include any pro<br>forma changes to Consolidated EBITDA, including any pro forma reductions of expenses and costs, that have occurred or are reasonably<br>expected by such Officer to occur within twelve months; |
|---|---|
| (b) | the Consolidated EBITDA attributable to discontinued operations, as determined in accordance with U.S.<br>GAAP, will be excluded; |
| --- | --- |
| (c) | the Consolidated Fixed Charges attributable to discontinued operations, as determined in accordance with<br>U.S. GAAP, will be excluded, but only to the extent that the obligations giving rise to such Consolidated Fixed Charges will not<br>be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation Date; |
| --- | --- |
| (d) | Consolidated Fixed Charges attributable to non-recurring charges associated with any premium or penalty<br>paid, write-offs of deferred financing costs (including unamortized original issue discount) or other financial recapitalization<br>changes in connection with redeeming or retiring any Indebtedness prior to its maturity, will be excluded; |
| --- | --- |
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| (e) | any Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted<br>Subsidiary at all times during such four-quarter period and any Person that is not a Restricted Subsidiary on the Calculation Date will<br>be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period; and |
|---|---|
| (f) | Consolidated Fixed Charges attributable to interest on any Indebtedness (whether existing or being Incurred)<br> calculated on a pro forma basis and bearing a floating interest rate will be computed as if the rate in effect on the Calculation<br>Date (taking into account any interest rate option, swap, cap or similar agreement applicable to such Indebtedness if such agreement<br>has a remaining term in excess of 12 months or, if shorter, at least equal to the remaining term of such Indebtedness) had been the<br>applicable rate for the entire period. |
| --- | --- |
“Consolidated Fixed Charges” means, with respect to any specified Person for any period, the sum, without duplication, of:
| (a) | the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether<br>paid or accrued, including amortization of debt issuance costs and original issue discount (provided, however, that any amortization<br>of bond premium will be credited to reduce Consolidated Fixed Charges unless pursuant to U.S. GAAP, such amortization of bond premium<br>has otherwise reduced Consolidated Fixed Charges), non-cash interest payments, the interest component of any deferred payment obligations,<br>the interest component of all payments associated with Lease Obligations, commissions, discounts and other fees and charges<br>incurred in respect of letter of credit or bankers’ acceptance financings, and net of the effect of all payments made or received<br>pursuant to Hedging Obligations; plus |
|---|---|
| (b) | the consolidated interest of such Person and its Restricted Subsidiaries that was capitalized during such<br>period; plus |
| --- | --- |
| (c) | any interest expense actually paid on Indebtedness of another Person that is guaranteed by such Person<br>or one of its Restricted Subsidiaries; |
| --- | --- |
in each case, on a consolidated basis and in accordance with U.S. GAAP.
“Consolidated Indebtedness” as of any date means the aggregate principal amount of Indebtedness of the Issuer and its Restricted Subsidiaries (other than inter-company Indebtedness outstanding on such date, solely to the extent such inter-company Indebtedness is by and among Restricted Subsidiaries), determined on a consolidated basis in accordance with U.S. GAAP.
“Consolidated Net Income” means, with respect to Cannabist for any period, the aggregate of the net income (loss) of Cannabist and its Subsidiaries for such period, on a consolidated basis, determined in accordance with U.S. GAAP; provided that:
| (a) | the net income or loss of any Person that is not a Restricted Subsidiary or that is accounted for by the<br>equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash<br>to the specified Person or a Restricted Subsidiary thereof; |
|---|
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| (b) | a net loss of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method<br>of accounting will be included only to the extent such loss has been funded with cash from the specified Person or a Restricted Subsidiary<br>thereof; |
|---|---|
| (c) | the cumulative effect of a change in accounting principles will be excluded; |
| --- | --- |
| (d) | [Reserved]; |
| --- | --- |
| (e) | to the extent deducted in the calculation of net income, any non-recurring charges associated with any<br>premium or penalty paid, write-offs of deferred financing costs (including unamortized original issue discount) or other financial<br>recapitalization changes in connection with redeeming or retiring any Indebtedness prior to its maturity will be added back to the<br> calculation of Consolidated Net Income; |
| --- | --- |
| (f) | any gain or loss, together with any related provision for taxes on such gain or loss, realized in connection<br>with: (a) any Asset Sale; or (b) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the<br>extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; |
| --- | --- |
| (g) | any extraordinary gain or loss, together with any related provision for taxes on such extraordinary gain<br>or loss; |
| --- | --- |
| (h) | any asset impairment write downs under U.S. GAAP will be excluded; |
| --- | --- |
| (i) | unrealized gains and losses due solely to fluctuations in currency values and the related tax effects<br> according to U.S. GAAP will be excluded; and |
| --- | --- |
| (j) | unrealized losses and gains under Hedging Obligations included in the determination of Consolidated Net<br> Income, will be excluded. |
| --- | --- |
“Consolidated Net Leverage Ratio” means, as of any date of determination, with respect to the Issuer, the ratio of (a) Consolidated Indebtedness as of the date of determination to (b) Consolidated EBITDA for the most recently ended four full fiscal quarters for which internal financial statements are available (determined on a pro forma basis after giving effect to such adjustments as are consistent with those set forth in the definition of “Consolidated Fixed Charge Coverage Ratio”), provided that, for purposes of calculating the foregoing, the value of (i) cash and Cash Equivalents (other than restricted cash) held by the Issuer and its Restricted Subsidiaries as of the date of determination (in an amount not to exceed $45 million), and (ii) the Verano Common Shares held by the Issuer or its Restricted Subsidiaries as of the date of determination (which value shall be deemed to be an amount equal to the product of (x) the 5-day Volume-Weighted Average Price of the Verano Common Shares on the Cboe Canada (or such other recognized exchange on which the highest amount of trading volume occurs) as at the date of determination, and (y) 0.75), shall reduce the amount of Consolidated Indebtedness on a dollar-for-dollar basis; and, provided further, that Taxes due and payable shall not be included in Consolidated Indebtedness for purposes of determining the Consolidated Net Leverage Ratio (provided that such Taxes do not exceed the amounts set forth in Section 3 of Appendix D as of the date of determination).
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“Consolidated Net Tangible Assets” means, with respect to any Person as of any date of determination, the amount which, in accordance with U.S. GAAP, would be set forth under the caption “Total Assets” (or any like caption) on a consolidated statement of financial position of such Person and its Restricted Subsidiaries (except for purposes of Section 7.6, in which case the applicable consolidated statement of financial position will be in respect of the Issuer and all of its Subsidiaries), less all goodwill, patents, tradenames, trademarks, copyrights, franchises, experimental expenses, organization expenses and any other amounts classified as intangible assets in accordance with U.S. GAAP.
“Controlled Accounts” has the meaning given to that term in Section 7.17.
“Counsel” means a barrister or solicitor or firm of barristers or solicitors retained or employed by the Trustee or retained or employed by the Issuer and reasonably acceptable to the Trustee.
“Credit Facilities” means, if designated by the Issuer to be included in the definition of “Credit Facility”, one or more (A) debt facilities or commercial paper facilities, providing for revolving credit loans, term loans, securitization or receivables financing (including through the sale of receivables to lenders or to special purpose entities formed to borrow from lenders against such receivables) or letters of credit, (B) Debt Issuances, debt securities, indentures or other forms of debt financing (including convertible or exchangeable debt instruments or bank guarantees or bankers’ acceptances), or (C) instruments or agreements evidencing any other Indebtedness, in each case, with the same or different borrowers or issuers and, in each case, as amended, supplemented, modified, extended, restructured, renewed, refinanced, restated, replaced or refunded in whole or in part from time to time.
“DBRS” means, collectively, DBRS Limited, DBRS, Inc. and DBRS Ratings Limited or any successor ratings agency thereto.
“Debt Issuances” means one or more issuances after the date of this Indenture of Indebtedness evidenced by notes, debentures, bonds or other similar securities or instruments.
“Definitive Note” means a certificated Note or Direct Registration System advice registered in the name of the Holder thereof and issued in accordance with Sections 5.2(b) and 5.6 hereof, and, in the case of a certificated Note, substantially in the form set out herein or in the Supplemental Indenture providing for the relevant series of Notes, except that such Note will not bear the Global Note Legend.
“Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
“Depository” means CDS and such other Person as is designated in writing by the Issuer and acceptable to the Trustee to act as depository in respect of any series of Book Entry Only Notes.
“Designated Non-cash Consideration” means the Fair Market Value of non-cash and non-Cash Equivalents consideration received by the Issuer or one of its Restricted Subsidiaries in connection with an Asset Sale that is so designated as “Designated Non-cash Consideration” pursuant to an Officers’ Certificate, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale, redemption or repayment of, or with respect to, such Designated Non-cash Consideration.
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“Designated Rating Organization” means each of Standard & Poor’s, Moody’s and DBRS.
“Directors Election Meeting” means any meeting of shareholders of Cannabist at which Directors are to be elected to the Board of Directors.
“Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is one year after the date on which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Issuer to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Issuer may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 7.9. The term “Disqualified Stock” will also include any options, warrants or other rights that are convertible into Disqualified Stock or that are redeemable at the option of the holder, or required to be redeemed, prior to the date that is one year after the date on which the Notes mature. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that Cannabist and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.
“EDGAR” means the electronic data gathering, analysis, and retrieval database maintained by the U.S. Securities and Exchange Commission.
“Enforcement Request” has the meaning given to that term in Section 2.4.
“Enforcing Noteholders” has the meaning given to that term in Section 2.4
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“Equity Offering” means (i) a public or private offer and sale of Capital Stock (other than (a) Disqualified Stock or (b) equity securities issuable under any employee benefit plan of Cannabist or any Subsidiary of Cannabist to any Person (other than a Subsidiary of Cannabist) or (ii) a contribution to the equity capital of Cannabist by any Person (other than a Subsidiary of Cannabist).
“Event of Default” has the meaning given to that term in Section 9.1 and any other event defined as an “Event of Default” in this Indenture.
“Excess Proceeds” has the meaning given to that term in Section 7.15(e).
“Exchange Date” has the meaning given to that term in Section 4.2(b).
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“Excluded Holder” has the meaning set forth in (a) Section 4.12 in the case of the 2028 Notes and (b) the Supplemental Indenture providing for the relevant series of Notes in the case of any other Notes.
“Excluded Property” means (i) real property subject to existing mortgages, (ii) any motor vehicle, airplane or other asset subject to a certificate of title (other than to the extent a security interest therein can be perfected by filing a PPSA financing statement or an “all assets” UCC financing statement and without the requirement to list any VIN, serial or similar number), (iii) any letter of credit right (other than to the extent such right can be perfected by filing a PPSA financing statement or an “all assets” UCC financing statement) and commercial tort claims, (iv) any governmental or regulatory license or state or local franchise, charter, consent, permit or authorization to the extent the granting of a security interest therein is prohibited or restricted thereby or by applicable law (after giving effect to the applicable anti-assignment provisions of the PPSA or UCC, as applicable), provided that, (1) the Collateral shall include, and the security interest granted by each grantor shall attach to such property, immediately at such time as the prohibition shall no longer be applicable and to the extent severable, any portion of such license or other agreement not subject to the prohibition specified in this clause (iv), and (2) the exclusions referred to in this clause (iv) shall not include any proceeds of any such license or other agreement to the extent permitted by applicable law, (v) margin stock, (vi) general intangibles and any lease, license, permit or other agreement or any property or right subject thereto to the extent that a grant of a security interest therein would (after giving effect to the applicable anti-assignment provisions of the PPSA or UCC, as applicable) violate or invalidate such item or create a right of termination in favor of or otherwise require consent thereunder from any other party thereto (other than the Issuer or any Guarantor) which has not been obtained with commercially reasonable efforts within 120 days after the Issue Date provided that, (1) the Collateral shall include, and the security interest granted by each grantor shall attach to such property, immediately at such time as the prohibition shall no longer be applicable and to the extent severable, any portion of such agreement not subject to the prohibition specified in this clause (vi), and (2) the exclusions referred to in this clause (vi) shall not include any proceeds of any such license or other agreement, (vii) any pledge or security interest prohibited or restricted by applicable law, rule or regulation or any agreement with any governmental authority or which would (after giving effect to the applicable anti-assignment provisions of the PPSA or UCC, as applicable) require any governmental (including regulatory) consent, approval, license or authorization to provide such security interest which has not been obtained (with no requirement to seek or obtain the consent of any governmental authority or third party), provided that, (1) the Collateral shall include, and the security interest granted by each grantor shall attach to such property, immediately at such time as the prohibition or restriction shall no longer be applicable and to the extent severable, any portion of such license or other agreement not subject to the prohibition specified in this clause (vii), and (2) the exclusions referred to in this clause (vii) shall not include any proceeds of any such property, (viii) any “intent-to-use” trademark application prior to the filing of a statement of use, solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable federal law; provided that, upon submission and acceptance by the PTO of an amendment to allege use pursuant to 15 U.S.C. Section 1060(a) (or any successor provision), such intent-to-use trademark application shall automatically be considered Collateral without further action on any party’s part, and (ix) any other exception set forth in the Security Documents.
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“Existing Indebtedness” means the aggregate amount of the Indebtedness of Issuer and its Restricted Subsidiaries (other than the Notes issued hereby and the related Subsidiary Guarantees) in existence on the Issue Date, until such Indebtedness is repaid or otherwise renewed, refinanced, replaced, defeased or discharged.
“Extension Notice” has the meaning given to that term in Section 4.5.
“Fair Market Value” means the price that would be paid in an arm’s-length transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy; provided that, any determination of Fair Market Value in excess of $15 million shall be made in good faith by the Chief Executive Officer and/or the Chief Financial Officer of Cannabist.
“First-Lien Indebtedness” means Indebtedness under the Notes (including any Additional Notes), Indebtedness under Subsidiary Guarantees and any other Permitted Pari Indebtedness that becomes secured under the Noteholder Collateral Platform in accordance with the terms hereof.
“First-Priority Lien” means a first-priority Lien granted to the Collateral Trustee upon any Property of the Issuer or any Guarantor to secure First-Lien Indebtedness.
“Global Note Legend” means the legend set forth in Section 3.13(a), which is required to be placed on all Global Notes issued under this Indenture.
“Global Notes” means certificates representing the aggregate principal amount of Notes issued and outstanding and held by, or on behalf of, a Depository.
“Government Securities” means direct obligations of, or obligations guaranteed by, the federal government of the United States for the timely payment of which guarantee or obligations the full faith and credit of the federal government of the United States is pledged.
“Guarantee” means, as to any Person, a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness of another Person
“Guarantor” means each Initial Guarantor and any other Person that becomes a Guarantor pursuant to Section 15.1 or that otherwise executes and delivers a Subsidiary Guarantee to the Collateral Trustee.
“Hedging Obligations” means, with respect to any specified Person, the Obligations of such Person under:
| (a) | interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and other<br> agreements or arrangements with respect to interest rates; |
|---|---|
| (b) | commodity swap agreements, commodity option agreements, forward contracts and other agreements or<br>arrangements with respect to commodity prices; |
| --- | --- |
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| (c) | foreign exchange contracts, currency swap agreements and other agreements or arrangements with respect<br>to foreign currency exchange rates; and |
|---|---|
| (d) | other agreements or arrangements designed to protect such Person or any Restricted Subsidiaries against<br> fluctuations in interest rates, commodity prices or currency exchange rates. |
| --- | --- |
“Holder” means a Person in whose name a Note (including a Pledged Note) is registered.
“Incur” means, with respect to any Indebtedness, to incur, create, issue, assume, guarantee or otherwise become directly or indirectly liable for or with respect to, or become responsible for, the payment of, contingently or otherwise, such Indebtedness (and “Incurrence” and “Incurred” will have meanings correlative to the foregoing); provided that (1) any Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary of the Issuer will be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary of the Issuer and (2) neither the accrual of interest or dividends nor the accretion of original issue discounts nor the payment of interest in the form of additional Indebtedness with the same terms and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock (to the extent provided for when the Indebtedness or Disqualified Stock on which such interest or dividend is paid was originally issued) will be considered an Incurrence of Indebtedness; provided that in each case the amount thereof is for all other purposes included in the Consolidated Fixed Charges and Indebtedness of the Issuer or its Restricted Subsidiary as accrued.
“Indebtedness” means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent:
| (a) | in respect of borrowed money; |
|---|---|
| (b) | evidenced by bonds, Notes, debentures or similar instruments or letters of credit (or reimbursement agreements<br>in respect thereof); |
| --- | --- |
| (c) | in respect of banker’s acceptances; |
| --- | --- |
| (d) | in respect of Lease Obligations and purchase money obligations entered into by such Person; |
| --- | --- |
| (e) | all obligations to pay the deferred and unpaid portion of the purchase price of any property or services<br>(other than trade payables incurred in the ordinary course of business and repayable in accordance with customary trade practices and,<br>for the avoidance of doubt, other than royalty payments payable in the ordinary course of business in respect of non-exclusive licenses)<br>and any earn-out or similar obligations (unless subject to a bona fide dispute); |
| --- | --- |
| (f) | representing Disqualified Stock valued as provided in the definition of the term “Disqualified Stock;” |
| --- | --- |
| (g) | representing Hedging Obligations; or |
| --- | --- |
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| (h) | all preferred stock issued by such Person, if such Person is a Restricted Subsidiary or the Issuer and<br>is not a Guarantor. |
|---|
In addition, the term “Indebtedness” includes (x) all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person), provided that the amount of such Indebtedness will be the lesser of (A) the Fair Market Value of such asset at such date of determination and (B) the amount of such Indebtedness, and (y) to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person.
Notwithstanding the foregoing, the following shall not constitute Indebtedness:
| (a) | any obligation arising from the honoring by a bank or other financial institution of a check, draft or<br> similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such obligation<br>is extinguished within five Business Days of its incurrence; |
|---|---|
| (b) | any obligation arising from any agreement providing for indemnities, guarantees, purchase price adjustments,<br>holdbacks, contingency payment or earnout obligations based on the performance of the acquired or disposed assets, subordinated vendor<br>takeback loan or similar obligations (other than guarantees of Indebtedness) customarily Incurred by any Person in connection<br>with the acquisition or disposition of any assets, including Capital Stock, in an aggregate amount not to exceed $3.0 million at<br>any one time outstanding; |
| --- | --- |
| (c) | any indebtedness that has been defeased in accordance with U.S. GAAP or defeased pursuant to the irrevocable<br> deposit of cash or Cash Equivalents (in an amount sufficient to satisfy all obligations relating thereto at maturity or redemption,<br>as applicable, including all payments of interest and premium, if any) in a trust or account created or pledged for the sole benefit<br>of the holders of such indebtedness, and subject to no other Liens, and in accordance with the other applicable terms of the instrument<br>governing such indebtedness; provided, however, if any such defeasance shall be terminated prior to the full discharge of the Indebtedness<br> for which it was Incurred, then such Indebtedness shall constitute Indebtedness for all relevant purposes of this Indenture;<br>and |
| --- | --- |
| (d) | any item that would not appear as a liability upon a balance sheet of the specified Person in accordance<br>with U.S. GAAP. |
| --- | --- |
The amount of any Indebtedness outstanding as of any date will be the outstanding balance at such date of all unconditional obligations as described above and, with respect to contingent obligations described above, the maximum liability upon the occurrence of the contingency giving rise to the obligation, and will be:
| (a) | the accreted value thereof, in the case of any Indebtedness issued with original issue discount; and |
|---|
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| (b) | the principal amount thereof, together with any interest thereon that is more than 30 days past due, in<br>the case of any other Indebtedness. |
|---|
“Indenture” means this indenture (including, for the avoidance of any doubt, the preamble and recitals hereto), as originally executed or as it may from time to time be supplemented, amended, restated, or otherwise modified in accordance with the terms hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively.
“Initial Guarantors” means each Restricted Subsidiary that has delivered a Subsidiary Guarantee on the Issue Date, being the Restricted Subsidiaries listed in Part I of Appendix D.
“Initial Issue Date” means May 14, 2020.
“Interest Payment Date” means, for each series of Notes, a date specified in each series of Notes or the Supplemental Indenture providing for such series of Notes (or in the case of the 2028 Notes, as specified in Article 4), as the date on which an instalment of interest on such Notes shall become due and payable.
“Interest Period” means the period commencing on the later of (a) the Issue Date and (b) the immediately preceding Interest Payment Date on which interest has been paid, and ending on the day immediately preceding the Interest Payment Date in respect of which interest is payable. Notwithstanding the foregoing, Interest shall be owed for any Interest Period prior to the Issue Date at the then applicable interest rate.
“Insolvency Proceeding” means a bankruptcy, insolvency, receivership, liquidation, winding up, reorganization or similar proceeding.
“Investment Grade Rating” means a rating equal to or higher than:
| (a) | “BBB-” (or the equivalent) from Standard & Poor’s; |
|---|---|
| (b) | “Baa3” (or the equivalent) from Moody’s; or |
| --- | --- |
| (c) | “BBB(Low)” (or the equivalent) from DBRS. |
| --- | --- |
“Investments” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the form of loans or other extensions of credit (including guarantees), advances, capital contributions (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others, excluding commission, travel and similar advances to officers and employees made in the ordinary course of business and excluding accounts receivables created or acquired in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a statement of financial position prepared in accordance with U.S. GAAP.
If the Issuer or any Restricted Subsidiary of the Issuer sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the Issuer such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the Issuer, the Issuer will be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Investment in such Subsidiary not sold or disposed of. The acquisition by the Issuer or any Restricted Subsidiary of the Issuer of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Issuer or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investment held by the acquired Person in such third Person.
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“Issue Date” means the date of this Indenture.
“Issuer” has the meaning given to that term in the recitals.
“Issuer Combination” has the meaning given to that term in Section 4.16.
“Issuer Order” means an order or direction in writing signed by the President, Chief Executive Officer or Chief Financial Officer of the Issuer and any Co-Issuer, or any director of the Issuer and Co-Issuer.
“Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a lease liability that would at that time be required to be capitalized on a statement of financial position in accordance with U.S. GAAP as in effect on the Issue Date, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
“LVTS” means the large value electronic money transfer system operated by the Canadian Payments Association and any successor thereto.
“Management Incentive Plan” means the management incentive plan established by Cannabist and approved by the compensation committee of Cannabist’s Board of Directors.
“Material Adverse Effect” means any event or change that, individually or in the aggregate with other events or changes, is or would reasonably be expected to be, materially adverse to the business, operations, assets or financial condition of the Issuer or a Restricted Subsidiary.
“Material Contract” means any agreement, contract, obligation, promise or undertaking to which the Issuer or a Restricted Subsidiary is a party, the breach, non performance, non-enforceability or cancellation of which or the failure of which to renew could reasonably be expected to have a Material Adverse Effect
“Material Permits” means (i) any material permit or license held on the Issue Date or acquired after the Issue Date by the Issuer or a Restricted Subsidiary permitting it to cultivate, transport, store, modify and/or sell cannabis or THC infused products to medical or recreational purchasers in any jurisdiction, or (ii) any material authorization, permit or license otherwise required by the Issuer or a Restricted Subsidiary to operate a Permitted Business.
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“Maturity” means, when used with respect to a Note of any series, the date on which the principal of such Note or an instalment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, Redemption Notice, notice of option to elect repayment or otherwise.
“Maturity Account” means an account or accounts required to be established by the Issuer (and which shall be maintained by and subject to the control of the Paying Agent) for each series of Notes issued pursuant to and in accordance with this Indenture.
“Maximum Rate” has the meaning given to that term in Section 4.6(c).
“Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.
“Net Proceeds” means the aggregate cash proceeds, including payments in respect of deferred payment obligations (to the extent corresponding to the principal, but not the interest component, thereof) received by the Issuer or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of (a) the direct costs relating to such Asset Sale, including, without limitation, legal, accounting, investment banking and brokerage fees, and sales commissions, and any relocation expenses incurred as a result thereof, (b) taxes paid or payable as a result thereof, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, (c) amounts required to be applied to the repayment of Indebtedness or other liabilities secured by a Lien on the asset or assets that were the subject of such Asset Sale or required to be paid as a result of such sale, (d) in the case of any Asset Sale by a Restricted Subsidiary of the Issuer, payments to holders of Equity Interests in such Restricted Subsidiary in such capacity (other than such Equity Interests held by the Issuer or any Restricted Subsidiary thereof) to the extent that such payment is required to permit the distribution of such proceeds in respect of the Equity Interests in such Restricted Subsidiary held by the Issuer or any Restricted Subsidiary thereof, and (e) appropriate amounts to be provided by the Issuer or its Restricted Subsidiaries as a reserve against liabilities associated with such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any adjustment or indemnification obligations associated with such Asset Sale, all as determined in accordance with U.S. GAAP; provided that (i) excess amounts set aside for payment of taxes pursuant to clause (b) above remaining after such taxes have been paid in full or the statute of limitations therefor has expired and (ii) amounts initially held in reserve pursuant to clause (e) no longer so held, will, in the case of each of subclause (i) and (ii), at that time become Net Proceeds.
“NI 52-110” means National Instrument 52-110 – Audit Committees.
“Noteholder Collateral Platform” has the meaning given to in Section 2.1.
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“Notes” means the notes, debentures or other evidence of indebtedness of the Issuer issued and authenticated hereunder, or deemed to be issued and authenticated hereunder, and includes Global Notes (which for greater certainty includes the 2028 Notes and 2028 Convertible Notes) and, where expressly so stated or the context so requires, Pledged Notes.
“Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.
“Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary, Executive Vice-President or any Senior Vice-President or Vice-President of such Person.
“Officers’ Certificate” means a certificate signed on behalf of Cannabist by at least two Officers of Cannabist, one of whom must be the principal executive officer, the principal financial officer or the principal accounting officer of Cannabist, delivered to the Trustee that meets the requirements of this Indenture.
“Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the Trustee (who may be counsel to or an employee of Cannabist) that meets the requirements of this Indenture.
“Original Indenture” has the meaning given to that term in the preamble.
“Original U.S. Holder” means a U.S. Holder that is a Qualified Institutional Buyer and the original purchaser of the Notes and who delivered a U.S. QIB Letter in connection with its purchase of units comprised of Notes and common share purchase warrants from the Issuer in the original offering of such units;
“Participants” has the meaning given to that term in Section 5.2(d).
“Paying Agent” has the meaning given to that term in Section 3.5.
“Payment Default” has the meaning given to that term in Section 9.1(f)(i).
“Permitted Acquisition Indebtedness” means Indebtedness or Disqualified Stock of Cannabist or any of its Restricted Subsidiaries to the extent such Indebtedness or Disqualified Stock was Indebtedness or Disqualified Stock of any other Person existing at the time (i) such Person became a Restricted Subsidiary of Cannabist or (ii) such Person was merged or consolidated with or into Cannabist or any of its Restricted Subsidiaries; provided that on the date such Person became a Restricted Subsidiary of Cannabist or the date such Person was merged or consolidated with or into Cannabist or any of its Restricted Subsidiaries, as applicable, and, immediately after giving effect to such transaction the Issuer would be able to Incur Permitted Debt.
“Permitted Business” means any business conducted by Cannabist and its Restricted Subsidiaries on the Issue Date and other businesses reasonably related, complementary or ancillary thereto.
“Permitted Debt” has the meaning given to that term in Section 7.10(b).
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“Permitted Investments” means:
| (a) | any Investment in the Issuer or in a Restricted Subsidiary of the Issuer; |
|---|---|
| (b) | any Investment in Cash Equivalents; |
| --- | --- |
| (c) | any Investment by the Issuer or any Restricted Subsidiary of the Issuer in a Person, if as a result of<br> such Investment: |
| --- | --- |
| (i) | such Person becomes a Restricted Subsidiary of the Issuer; or |
| --- | --- |
| (ii) | such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially<br>all of its assets to, or is liquidated into, the Issuer or a Restricted Subsidiary of the Issuer; |
| --- | --- |
| (d) | any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made<br>pursuant to and in compliance with Section 7.15 or a sale or disposition of assets excluded from the definition of “Asset<br>Sale”; |
| --- | --- |
| (e) | Hedging Obligations that are Incurred in the ordinary course of business and not for speculative purposes,<br>and that do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in interest<br>rates, commodity prices or foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder; |
| --- | --- |
| (f) | stock, obligations or securities received as a result of the bankruptcy or reorganization of a Person<br>or taken in settlement or other resolutions of claims or disputes or in satisfaction of judgments, and extensions, modifications<br>and renewals thereof; |
| --- | --- |
| (g) | advances to customers or suppliers in the ordinary course of business that are, in conformity with U.S.<br>GAAP, recorded as accounts receivable, prepaid expenses or deposits on the statement of financial position of the Issuer or its Restricted<br>Subsidiaries and endorsements for collection or deposit arising in the ordinary course of business; |
| --- | --- |
| (h) | any Investment in any Person solely in exchange for the issuance of Equity Interests (other than Disqualified<br>Stock) of the Issuer; |
| --- | --- |
| (i) | loans or advances to officers and employees of the Issuer or any of its Subsidiaries made in the ordinary<br>course of business, which, in the aggregate outstanding amount, do not at any time exceed $1.0 million; |
| --- | --- |
| (j) | repurchases of, or other Investments in, the Notes; |
| --- | --- |
| (k) | advances, deposits and prepayments for purchases of any assets used in a Permitted Business, including<br>any Equity Interests; |
| --- | --- |
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| (l) | commission, payroll, travel, entertainment and similar advances to officers and employees of the Issuer<br>or any of its Restricted Subsidiaries that are expected at the time of such advance ultimately to be recorded as an expense in conformity<br>with U.S. GAAP; |
|---|---|
| (m) | guarantees issued in accordance with Section 7.10; |
| --- | --- |
| (n) | Investments existing on the Issue Date; |
| --- | --- |
| (o) | any Investment (i) existing on the Initial Issue Date, (ii) made pursuant to binding commitments<br>in effect on the date of the Original Indenture or (iii) that replaces, refinances or refunds any Investment described<br>under either of the immediately preceding clauses (i) or (ii); provided that the new Investment is in an amount that does not<br>exceed the amount replaced, refinanced or refunded, and not materially less favorable to the Issuer or any of its Restricted Subsidiaries<br> than the Investment replaced, refinanced or refunded as determined in good faith by the Issuer; |
| --- | --- |
| (p) | Investments the payment for which consists solely of Capital Stock of the Issuer; |
| --- | --- |
| (q) | any Investment in any Subsidiary of the Issuer in connection with intercompany cash management arrangements<br>or related activities; |
| --- | --- |
| (r) | payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately<br>to be treated as expenses for accounting purposes and that are made in the ordinary course of business or consistent with past practice; |
| --- | --- |
| (s) | performance guarantees made in the ordinary course of business or consistent with past practice; |
| --- | --- |
| (t) | any Investments received in compromise or resolution of (a) obligations of trade creditors or customers<br>that were incurred in the ordinary course of business of the Issuer or any of its Restricted Subsidiaries, including pursuant to<br>any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; or (b) litigation,<br>arbitration or other disputes; |
| --- | --- |
| (u) | Investments in the ordinary course of business or consistent with past practice consisting of the licensing<br>or contribution of intellectual property pursuant to joint marketing or other business arrangements with other Persons; |
| --- | --- |
| (v) | an Investment in satisfaction of judgments against other Persons; and |
| --- | --- |
| (w) | any other Investment provided that, at the time of and after giving effect to such Investment, the aggregate<br>Fair Market Value of such Investment (measured on the date each such Investment was made and without giving effect to subsequent changes<br>in value) and all other Investments made under this paragraph (w) since the Issue Date does not exceed $10 million, provided however,<br>that that such amount shall be subject to reduction by the amount of all restricted payments made since the Issue Date pursuant to Section 7.9(b)(xv); |
| --- | --- |
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provided, however, that with respect to any Investment, the Issuer may, in its sole discretion, allocate all or any portion of any Investment and later re-allocate all or any portion of any Investment, to one or more of the above clauses (a) through (w) so that the entire Investment would be a Permitted Investment.
“Permitted Liens” means:
| (a) | First-Priority Liens held by the Collateral Trustee securing Permitted Pari Indebtedness and all related<br>Obligations; |
|---|---|
| (b) | Liens in favor of the Issuer or any Restricted Subsidiary; |
| --- | --- |
| (c) | Liens on property of a Person (i) existing at the time of acquisition thereof or (ii) existing<br>at the time such Person is merged with or into or consolidated with the Issuer or any Restricted Subsidiary of the Issuer; provided<br>that such Liens were in existence prior to, and not in contemplation of, such merger or consolidation and do not extend to any assets<br>other than those of the Person merged into or consolidated with the Issuer or the Restricted Subsidiary; |
| --- | --- |
| (d) | Liens on property existing at the time of acquisition thereof by the Issuer or any Restricted Subsidiary<br>of the Issuer, provided that such Liens were in existence prior to, and not in contemplation of, such acquisition and do not<br>extend to any property other than the property so acquired by the Issuer or the Restricted Subsidiary; |
| --- | --- |
| (e) | Liens securing the Notes and the Subsidiary Guarantees; |
| --- | --- |
| (f) | Liens existing on the Issue Date that do not secure Indebtedness; |
| --- | --- |
| (g) | Liens securing Permitted Refinancing Indebtedness; provided that any such Lien is limited to all or part<br>of the same property or assets that secured (or under the written agreement under which such original Lien arose, could secure) the<br>Indebtedness being refinanced or is in respect of property and assets that are the security for another Permitted Lien hereunder; |
| --- | --- |
| (h) | Liens on property or assets used to defease or to satisfy and discharge Indebtedness; provided that (i) the<br>Incurrence of such Indebtedness was not prohibited by this Indenture and (ii) such defeasance or satisfaction and discharge<br>is not prohibited by this Indenture; |
| --- | --- |
| (i) | [Reserved]; |
| --- | --- |
| (j) | [Reserved]; |
| --- | --- |
| (k) | Liens securing Hedging Obligations incurred in the ordinary course of business and not for speculative<br>purposes; |
| --- | --- |
| (l) | Liens incurred or deposits made in the ordinary course of business in connection with worker’s compensation,<br>unemployment insurance or other social security or similar obligations; |
| --- | --- |
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| (m) | Liens, deposits or pledges to secure the performance of bids, tenders, contracts (other than contracts<br> for the payment of Indebtedness), leases, or other similar obligations arising in the ordinary course of business; |
|---|---|
| (n) | Liens given to a public utility or any municipality or governmental or other public authority when required<br>by such utility or authority in connection with the ownership of assets, provided that such Liens do not materially interfere with<br>the use of such assets in the operation of the business; |
| --- | --- |
| (o) | reservations, limitations, provisos and conditions, if any, expressed in any original grant from the government<br>of Canada of any real property or any interest therein or in any comparable grant in jurisdictions other than Canada, provided they<br>do not materially interfere with the use of such assets; |
| --- | --- |
| (p) | survey exceptions, encumbrances, easements or reservations of, or rights of others for, rights of way,<br> zoning or other restrictions as to the use of properties, and defects in title which, in the case of any of the foregoing, were<br>not Incurred or created to secure the payment of Indebtedness, and which in the aggregate do not materially adversely affect the<br>value of such properties or materially impair the use for the purposes of which such properties are held by the Issuer or any<br>of its Restricted Subsidiaries; |
| --- | --- |
| (q) | servicing agreements, development agreements, site plan agreements, and other agreements with governmental<br>authorities pertaining to the use or development of assets, provided each is complied with in all material respects and does not<br>materially interfere with the use of such assets in the operation of the business; |
| --- | --- |
| (r) | judgment and attachment Liens, individually or in the aggregate, neither arising from judgments or attachments<br>that gave rise to, nor giving rise to, an Event of Default, notices of lis pendens and associated rights related to litigation being<br>contested in good faith by appropriate proceedings and for which adequate reserves have been made; |
| --- | --- |
| (s) | Liens, deposits or pledges to secure public or statutory obligations, surety, stay, appeal, indemnity,<br> performance or other similar bonds or obligations, and Liens, deposits or pledges in lieu of such bonds or obligations, or to<br>secure such bonds or obligations, or to secure letters of credit in lieu of or supporting the payment of such bonds or obligations,<br>in each case which are Incurred in the ordinary course of business; |
| --- | --- |
| (t) | bankers’ Liens and Liens in favor of collecting or payor banks having a right of setoff, revocation,<br> refund or chargeback with respect to money or instruments of the Issuer or any Subsidiary thereof on deposit with or in possession<br>of such bank; |
| --- | --- |
| (u) | any interest or title of a lessor, licensor or sublicensor in the property subject to any lease, license<br>or sublicense; |
| --- | --- |
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| (v) | Liens for taxes, assessments and governmental charges not yet delinquent or being contested in good faith<br>and for which adequate reserves have been established to the extent required by U.S. GAAP; |
|---|---|
| (w) | Liens arising from precautionary financing statements under the UCC or financing statements under<br>a PPSA or similar statutes regarding leases, sales of receivables or consignments; |
| --- | --- |
| (x) | Liens of franchisors in the ordinary course of business not securing Indebtedness; |
| --- | --- |
| (y) | Liens imposed by law, such as carriers’, warehousemen’s, repairmen’s, landlord’s,<br>suppliers’, builders’ and mechanics’ Liens or other similar Liens, in each case, incurred in the ordinary course<br>of business for sums not yet delinquent by more than 60 days or being contested in good faith, if such reserve or other appropriate<br>provisions, if any, as shall be required by U.S. GAAP, shall have been made in respect thereto; |
| --- | --- |
| (z) | Liens contained in purchase and sale agreements to which the Issuer or any of its Restricted Subsidiaries<br>is the selling party thereto which limit the transfer of assets pending the closing of the transactions contemplated thereby; |
| --- | --- |
| (aa) | Liens that may be deemed to exist by virtue of contractual provisions that restrict the ability of the<br> Issuer or any of its Subsidiaries from granting or permitting to exist Liens on their respective assets; |
| --- | --- |
| (bb) | Liens in favor of the Trustee as provided for in this Indenture on money or property held or collected<br> by the Trustee in its capacity as Trustee; |
| --- | --- |
| (cc) | Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any joint venture owned<br>by the Issuer or any of its Restricted Subsidiaries to the extent securing non-recourse debt or other Indebtedness of such Unrestricted<br>Subsidiary or joint venture; |
| --- | --- |
| (dd) | Liens securing any insurance premium financing under customary terms and conditions, provided that no<br>such Lien may extend to or cover any assets or property other than the insurance being acquired with such financing, the proceeds<br>thereof and any unearned or refunded insurance premiums related thereto; |
| --- | --- |
| (ee) | Liens securing inventories that are purchased on credit terms exceeding 90 days made in the ordinary course<br>of business; |
| --- | --- |
| (ff) | Liens arising out of the conditional sale, title retention, consignment or similar arrangements for the<br> sale of goods entered into in the ordinary course of business; |
| --- | --- |
| (gg) | Liens in favour of the Collateral Trustee; |
| --- | --- |
| (hh) | Liens listed in Appendix E; and |
| --- | --- |
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| (ii) | additional Liens with respect to Indebtedness provided that, at the time of and after giving effect to<br>the Incurrence of such Liens, the aggregate amount of Indebtedness secured by such Liens and all other Liens Incurred under this clause<br>since the Issue Date and which remain outstanding, does not exceed $10 million. |
|---|
“Permitted Refinancing Indebtedness” means any Indebtedness of the Issuer or any of its Restricted Subsidiaries issued (i) in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund for value, in whole or in part, or (ii) constituting an amendment, modification or supplement to or deferral or renewal of ((i) and (ii) collectively, a “Refinancing”) any other Indebtedness of the Issuer or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that:
| (a) | the amount of such Permitted Refinancing Indebtedness does not exceed the amount of the Indebtedness<br>so refinanced (plus all accrued and unpaid interest thereon and the amount of any premium necessary to accomplish such refinancing<br>and fees and expenses incurred in connection therewith); |
|---|---|
| (b) | such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of,<br>and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being<br>Refinanced; |
| --- | --- |
| (c) | if the Indebtedness being Refinanced is subordinated in right of payment to the Notes or the Subsidiary<br> Guarantees, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Notes or the Subsidiary Guarantees,<br>as applicable, on terms at least as favorable, taken as a whole, to the Holders of Notes as those contained in the documentation<br>governing the Indebtedness being Refinanced; and |
| --- | --- |
| (d) | if the Indebtedness being Refinanced is pari passu in right of payment with the Notes or any Subsidiary<br>Guarantee, such Permitted Refinancing Indebtedness is pari passu with, or subordinated in right of payment to, the Notes or<br> such Subsidiary Guarantee, as applicable. |
| --- | --- |
“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, unlimited liability company, or government or other entity.
“Pledge” means, in respect of a Note, a pledge, deposit or delivery of such Note or other agreement between the Issuer and a Noteholder in respect of such Note and “Pledged Note” means a Note which is subject to a Pledge.
“PPSA” means the PersonalProperty Security Act (British Columbia) and the regulations thereunder and the Securities Transfer Act, 2006 (British Columbia) and the regulations thereunder, in each case as from time to time in effect, provided, however, if validity, attachment, perfection (or opposability), effect of perfection or non-perfection or priority of the Collateral Trustee security interests in any Collateral are governed by the personal property security laws or laws relating to movable property of any other jurisdiction (including but not limited to the UCC), the term “PPSA” shall mean such other personal property security laws or laws relating to movable property for the purposes of the provisions hereof relating to such validity, attachment, perfection (or opposability), effect of perfection or non-perfection or priority and for the definitions related to such provisions.
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“Property” means, with respect to any Person, any interest of such Person in any kind of property or asset, whether real, personal, or mixed, or tangible or intangible, including Capital Stock in, and other securities of, any other Person.
“Qualified Institutional Buyer” means a “qualified institutional buyer” as such term is defined in Rule 144A under the U.S. Securities Act, that is also an Accredited Investor.
“Qualifying Location” means (i) in the case of premises leased by the Issuer or a Restricted Subsidiary, that the Issuer or applicable Restricted Subsidiary has executed a collateral assignment of such lease in favour of the Collateral Trustee and obtained a Waiver of Priority in favour of the Collateral Trustee from the landlord of such premises, (ii) in the case of a warehouse or similar storage facility at which inventory owned by the Issuer or a Restricted Subsidiary is held by a warehouseman or similar third party as bailee, that the Issuer or applicable Restricted Subsidiary has granted a Lien in such inventory pursuant to a Security Document and such warehouseman or similar third party has provided a Waiver of Priority in favour of the Collateral Trustee, or (iii) in the case of premises legally and beneficially owned by the Issuer or a Restricted Subsidiary, that the Issuer or the applicable Restricted Subsidiary has executed and delivered to and in favour of the Collateral Trustee a Security Document mortgaging such ownership interest together with such evidence of the due recording or registration of such Security Document as the Collateral Trustee may reasonably require.
“Record Date” has the meaning given to such term in Section 3.11(d).
“Redemption Date” has the meaning given to that term in Section 6.4.
“Redemption Notice” has the meaning given to that term in Section 6.4.
“Redemption Price” has the meaning given to that term in Section 6.1.
“Registrar” has the meaning given to that term in Section 3.5.
“Replacement Assets” means (i) non-current assets that will be used or useful in a Permitted Business or (ii) substantially all the assets of a Permitted Business or a majority of the Voting Stock of any Person engaged in a Permitted Business that will become on the date of acquisition thereof a Restricted Subsidiary.
“Reporting Failure” means the failure of Cannabist to furnish to the Trustee and each holder of Notes, within the time periods specified in Section 7.5 (after giving effect to any grace period specified under applicable Canadian securities laws), the annual reports, information, documents or other reports which Cannabist may be required to file with the Canadian Securities Administrators or similar governmental authorities, as the case the be, pursuant to such or similar applicable provisions.
“Restricted Investment” means an Investment other than a Permitted Investment.
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“Restricted Payments” has the meaning given to that term in Section 7.9.
“Restricted Subsidiary” of a Person means any Subsidiary of such Person that is not an Unrestricted Subsidiary.
“Sale Period” means the period commencing on the earliest closing date of any Approved Sale and concluding on March 31, 2026
“SEC” means the United States Securities and Exchange Commission.
“Security Coverage Test” means, at any particular date, that as of such date either:
| (a) | at least (i) 60% of all of the inventory of the Issuer and the Restricted Subsidiaries is located<br>at Qualifying Locations and (ii) 60% of all of the sales revenue of the Issuer and the Restricted Subsidiaries for the most recently<br>completed fiscal quarter of the Issuer was derived from Qualifying Locations; or |
|---|---|
| (b) | inventory is located at Qualifying Locations having a fair market value equal to or exceeding 175% of<br>(i) the principal amount of all Notes (including Pledged Notes) outstanding on such date, and (ii) all Permitted Pari Indebtedness<br>outstanding at such time. |
| --- | --- |
“Security Documents” means all of the security agreements, pledges, collateral assignments, mortgages, deeds of hypothec, deeds of trust, trust deeds or other instruments from time to time evidencing or creating or purporting to create any security interests in favour of the Collateral Trustee for its benefit and for the benefit of the Trustee and the holders of the Notes, in all or any portion of the Collateral and in form and substance satisfactory to the Collateral Trustee, acting reasonably, as amended, modified, restated, supplemented or replaced from time to time.
“SEDAR+” means the System for Electronic Document Analysis and Retrieval.
“Significant Subsidiary” means any Subsidiary of the Issuer meeting any of the following conditions:
| (a) | the Issuer and its other Subsidiaries’ investments in and advances to the Subsidiary exceed 10%<br>of the total assets of the Issuer and its Subsidiaries consolidated as of the end of the most recently completed fiscal year; |
|---|---|
| (b) | the Issuer and its other Subsidiaries’ proportionate share of the total assets (after intercompany<br>eliminations) of the Subsidiary exceeds 10% of the total assets of the Issuer and its Subsidiaries consolidated as of the end of the most<br>recently completed fiscal year; and |
| --- | --- |
| (c) | the Issuer and its other Subsidiaries’ equity in the income from continuing operations before income<br>taxes, extraordinary items and cumulative effect of a change in accounting principle of the Subsidiary exclusive of amounts attributable<br>to any non-controlling interest exceeds 10% of such income of the Issuer and its Subsidiaries consolidated for the most recently completed<br>fiscal year |
| --- | --- |
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“Standard & Poor’s” means Standard & Poor’s Rating Service, a division of The McGraw-Hill Companies, Inc., or any successor to the rating agency business thereof.
“Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which such payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
“Subordinated Indebtedness” means Indebtedness of the Issuer or a Guarantor that is contractually subordinated in right of payment, in any respect (by its terms or the terms of any document or instrument relating thereto), to the Notes or the Subsidiary Guarantee of such Guarantor, as applicable.
“Subsidiary” means, with respect to any specified Person:
| (a) | any corporation, association or other business entity of which more than 50% of the total voting power<br>of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers<br>or Trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries<br>of that Person (or a combination thereof); and |
|---|---|
| (b) | any partnership (i) the sole general partner or the managing general partner of which is such Person<br>or a Subsidiary of such Person or (ii) the only general partners of which are such Person or one or more Subsidiaries of<br>such Person (or any combination thereof). |
| --- | --- |
“Subsidiary Guarantee” means the guarantee on the terms set forth in the Indenture by a Guarantor of the Obligations of the Issuer in respect of the Notes and the Indenture.
“Supplemental Indenture” means an indenture supplemental to this Indenture which may be executed, acknowledged and delivered for any of the purposes set out in Section 14.5.
“Support Agreement” means that certain support agreement entered into between the Issuer, the Co-Issuer, certain of the Guarantors and the Supporting Senior Noteholders dated as of February 17, 2025.
“Supporting Senior Noteholders” means the Holders and Beneficial Holders that are a party to the Support Agreement together with all Holders and Beneficial Holders that executed a joinder thereto prior to 5:00 p.m. (New York time) on March 10, 2025 and “Supporting Senior Noteholder” shall refer to any one of them.
“Supporting Senior Noteholders Director” means a Supporting Senior Noteholders Nominee that has been validly appointed to Cannabist’s Board of Directors.
“Supporting Senior Noteholders Nominee” means a nominee of the Supporting Senior Noteholders that is put forward by the Supporting Senior Noteholders for appointment to Cannabist’s Board of Directors and/or is included in a management information circular of Cannabist relating to the election of directors at a Directors Election Meeting.
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“Supporting Senior Noteholders’ Representative” has the meaning given to that term in Section 17.4(a).
“Tax Act” means the IncomeTax Act (Canada), and the regulations promulgated thereunder, as amended.
“Taxes” means any present or future tax, duty, levy, impost, assessment or other government charge (including penalties, interest and any other liabilities related thereto, and for the avoidance of doubt, including any withholding or deduction for or on account of Tax) imposed or levied by or on behalf of a Taxing Authority.
“Taxing Authority” means any government or any political subdivision or territory or possession of any government or any authority or agency therein or thereof having power to tax.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, and as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act is amended after such date, “Trust Indenture Act” means, with respect to the Notes of any series issued after such date, the Trust Indenture Act as so amended.
“Trustee” has the meaning given to such term in the preamble.
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that, at any time, if by reason of mandatory provisions of law, any or all of the perfection or priority of the Collateral Trustee’s security interest in any item or portion of the Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other that the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions relating to such provisions.
“United States” or “U.S.” means the United States of America, its territories and possessions, any state of the United States and the District of Columbia.
“Unrestricted Subsidiary” means any Subsidiary of the Issuer that is designated by the Board of Directors of the Issuer as an Unrestricted Subsidiary pursuant to a Board Resolution in compliance with the covenant contained in Section 7.6, and any Subsidiary of such Subsidiary; provided that each of the Subsidiaries listed in Part III of Appendix D shall be deemed an Unrestricted Subsidiary on the Issue Date, and no Restricted Subsidiaries as of the Issue Date shall be permitted to be redesignated at any time thereafter.
“U.S. Holder” means any (a) Holder that (i) is in the United States, (ii) received an offer to acquire Notes while in the United States, or (iii) was in the United States at the time such Holder’s buy order was made or such Holder executed or delivered its purchase order for the Notes or (b) person who acquired Notes on behalf of, or for the account or benefit of, any person in the United States.
“U.S. Exchange Act” means the United States Securities Exchange Act of 1934, as amended and the rules and regulations promulgated thereunder.
“U.S. Legend” has the meaning set forth in Section 3.3(h).
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“U.S. GAAP” means generally accepted accounting principles applicable to the United States of America.
“U.S. Securities Act” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Verano Common Shares” means the 7,737,514 common shares in the capital of Verano Holdings Corp. directly or indirectly held by the Issuer and its Restricted Subsidiaries as of the Issue Date.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is ordinarily entitled to vote in the election of the Board of Directors of such Person.
“Waiver of Priority” means (i) in the case of premises leased by the Issuer or a Restricted Subsidiary, a written consent or agreement from the landlord of such premises to the Lien in such lease and in the inventory located at such premises held by the Collateral Trustee and to the Collateral Trustee having access to such collateral together with a waiver or subordination of such landlord’s Lien rights, or (ii) in the case of a warehouse or similar storage facility at which inventory owned by the Issuer or a Restricted Subsidiary is held by a warehouseman or similar third party as bailee, a written agreement from such bailee permitting the Collateral Trustee to have access to such inventory together with a waiver or subordination of such bailee’s Lien rights, in each case in form and substance satisfactory to the Collateral Trustee, acting reasonably.
“Warrant” has the meaning assigned to such term in the Warrant Agency Agreement.
“Warrant Agency Agreement” means that certain Warrant Agency Agreement entered into between the Issuer and Odyssey Trust Company, as the warrant agent, dated as of the date hereof.
“Warrant Proceeds” has the meaning given to that term in Section 7.20.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:
| (a) | the sum of the products obtained by multiplying (a) the amount of each then remaining installment,<br> sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof,<br>by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such<br>payment; by |
|---|---|
| (b) | the then outstanding principal amount of such Indebtedness. |
| --- | --- |
| 1.2 | Meaning of “Outstanding” |
| --- | --- |
Every Note issued, authenticated and delivered in accordance with this Indenture shall be deemed to be outstanding until it is cancelled or redeemed or delivered to the Trustee for cancellation or redemption for monies or a new Note is issued in substitution for it pursuant to Section 3.10 or the payment for redemption thereof shall have been set aside under Section 6.7, provided that:
| (a) | when a new Note has been issued in substitution for a Note which has been lost, stolen or destroyed, only<br>one of such Notes shall be counted for the purpose of determining the aggregate principal amount of Notes outstanding; |
|---|
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| (b) | Notes which have been partially redeemed or purchased shall be deemed to be outstanding only to the extent<br>of the unredeemed or unpurchased part of the principal amount thereof; |
|---|---|
| (c) | for the purposes of any provision of this Indenture entitling Holders of outstanding Notes of any series<br>to vote, sign consents, resolutions, requisitions or other instruments or take any other action under this Indenture, or to constitute<br>a quorum of any meeting of Holders thereof, Notes owned directly or indirectly, legally or equitably, by the Issuer or any of its Subsidiaries<br>shall be disregarded (unless the Issuer and/or one or more of its Subsidiaries are the only Holders (or Beneficial Holders) of the outstanding<br>aggregate principal amount of such series of Notes at the time outstanding in which case they shall not be disregarded) except that: |
| --- | --- |
| (i) | for the purpose of determining whether the Trustee shall be protected in relying on any such vote, consent,<br>requisition or other instrument or action, or on the Holders present or represented at any meeting of Holders, only the Notes in respect<br>of which the Trustee has received an Officers’ Certificate confirming that the Issuer and/or one or more of its Subsidiaries are<br>the only Holders shall be so disregarded; and |
| --- | --- |
| (ii) | Notes so owned which have been pledged in good faith other than to the Issuer or any of its Subsidiaries<br>shall not be so disregarded if the pledgee shall establish, to the satisfaction of the Trustee, the pledgee’s right to vote such<br>Notes, sign consents, requisitions or other instruments or take such other actions in his discretion free from the control of the Issuer<br>or any of its Subsidiaries. |
| --- | --- |
| 1.3 | Interpretation |
| --- | --- |
In this Indenture:
| (a) | words importing the singular number or masculine gender shall include the plural number or the feminine<br>or neuter genders, and vice versa; |
|---|---|
| (b) | all references to Articles and Appendices refer, unless otherwise specified, to articles of and appendices<br>to this Indenture; |
| --- | --- |
| (c) | all references to Sections refer, unless otherwise specified, to sections, subsections or clauses<br>of this Indenture; |
| --- | --- |
| (d) | words and terms denoting inclusiveness (such as “include” or “includes” or “including”),<br>whether or not so stated, are not limited by and do not imply limitation of their context or the words or phrases which precede or succeed<br>them; |
| --- | --- |
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| (e) | terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act<br>reference to another statute or defined by SEC rule under the Trust Indenture Act have the meanings so assigned to them; and |
|---|---|
| (f) | “this Indenture”, “hereto”, “herein”, “hereby”, “hereunder”,<br> “hereof” and similar expressions refer to this Indenture and not to any particular Article, Section, subsection, clause, subdivision<br>or other portion hereof and include the Guarantees, as applicable, and any and every Supplemental Indenture. |
| --- | --- |
| 1.4 | Headings, Etc. |
| --- | --- |
The division of this Indenture into Articles, Sections, subsections and paragraphs, the provision of a table of contents and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Indenture.
| 1.5 | Statute Reference |
|---|
Any reference in this Indenture to a statute is deemed to be a reference to such statute as amended, re-enacted or replaced from time to time.
| 1.6 | Day not a Business Day |
|---|
In the event that any day on or before which any action required to be taken hereunder is not a Business Day, then such action shall be required to be taken on or before the requisite time on the first Business Day thereafter.
| 1.7 | Applicable Law |
|---|
This Indenture and the Notes shall be construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein and shall be treated in all respects as British Columbia contracts.
| 1.8 | Monetary References |
|---|
Whenever any amounts of money are referred to herein, such amounts shall be deemed to be in lawful money of the United States of America unless otherwise expressed.
| 1.9 | Invalidity, Etc. |
|---|
Each provision in this Indenture or in a Note is distinct and severable and a declaration of invalidity or unenforceability of any such provision by a court of competent jurisdiction will not affect the validity or enforceability of any other provision hereof or thereof.
| 1.10 | Language |
|---|
Les parties aux présentes ont exigé que la présente convention ainsi que tous les documents et avis qui s’y rattachent et/ou qui en découleront soient rédigés en langue anglaise. The parties hereto have required that this Indenture and all documents and notices related thereto be drawn up in English.
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| 1.11 | Successors and Assigns |
|---|
All covenants and agreements in this Indenture by the Issuer on its own behalf and on behalf of its Restricted Subsidiaries shall bind their respective successors and assigns, as applicable, whether expressed or not.
| 1.12 | Benefits of Indenture |
|---|
Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their respective successors or assigns hereunder, any Paying Agent, the Holders and the Trustee, any benefit or any legal or equitable right, remedy or claim under this Indenture.
| 1.13 | Accounting Terms; Changes in U.S. GAAP |
|---|---|
| (a) | Each accounting term used in the Indenture, unless otherwise defined herein, has the meaning assigned<br>to it under U.S. GAAP applied consistently throughout the relevant period and relevant prior periods. |
| --- | --- |
| (b) | If there occurs a material change in U.S. GAAP after the Issue Date, and such change would require disclosure<br>under U.S. GAAP in the financial statements of the Issuer and would cause an amount required to be determined for the purposes of any<br>of the financial calculations or financial terms under this Indenture (each a “Financial Term”) to be materially<br>different than the amount that would be determined without giving effect to such change, the Issuer shall notify the Trustee of such change<br>(an “Accounting Change”). Such notice (an “Accounting Change Notice”) shall describe the nature<br>of the Accounting Change, its effect on the Issuer’s current and immediately prior year’s financial statements in accordance<br>with U.S. GAAP and state whether the Issuer desires to revise the method of calculating the applicable Financial Term (including the revision<br>of any of the defined terms used in the determination of such Financial Term) in order that amounts determined after giving effect to<br>such Accounting Change and the revised method of calculating such Financial Term will approximate the amount that would be determined<br>without giving effect to such Accounting Change and without giving effect to the revised method of calculating such Financial Term. The<br>Accounting Change Notice shall be delivered to the Trustee within 60 days of the end of the fiscal quarter in which the Accounting Change<br>is implemented or, if such Accounting Change is implemented in the fourth fiscal quarter or in respect of an entire fiscal year, within<br>120 days of the end of such period. Promptly after receipt from the Issuer of an Accounting Change Notice the Trustee shall deliver to<br>each Holder a copy of such notice. |
| --- | --- |
| (c) | If the Issuer so indicates that it wishes to revise the method of calculating the Financial Term, the<br>Issuer shall in good faith provide to the Trustee the revised method of calculating the Financial Term within 90 days of the Accounting<br>Change Notice and such revised method shall take effect from the date of the Accounting Change Notice. For certainty, if no notice of<br>a desire to revise the method of calculating the Financial Term in respect of an Accounting Change is given by the Issuer within the applicable<br>time period described above, the method of calculating the Financial Term shall not be revised in response to such Accounting Change and<br>all amounts to be determined pursuant to the Financial Term shall be determined after giving effect to such Accounting Change. |
| --- | --- |
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| 1.14 | Interest Act (Canada) |
|---|
For purposes of the Interest Act (Canada) and disclosure thereunder, whenever any interest or fee to be paid hereunder or in connection herewith is to be calculated on the basis of any period of time that is less than a calendar year, the yearly rate of interest to which the rate used in such calculation is equivalent is the rate so used multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by 365 or 366, as applicable. The rates of interest under this Indenture are nominal rates, and not effective rates or yields. The principle of deemed reinvestment of interest does not apply to any interest calculation under this Indenture.
| 1.15 | Incorporation by Reference of Trust Indenture Act; Conflict with Trust Indenture Act |
|---|
This Indenture is subjected to the provisions of the Trust Indenture Act that are required to be a part of this Indenture and will, to the extent applicable, be governed by such provisions. If any provision of this Indenture modifies any Trust Indenture Act provision that may be so modified, such Trust Indenture Act provision will be deemed to apply to this Indenture as so modified. If any provision of this Indenture excludes any Trust Indenture Act provision that may be so excluded, such Trust Indenture Act provision will be excluded from this Indenture. If any provision hereof limits, qualifies or conflicts with the duties imposed by any of Sections 310 to 317, inclusive, through operation of Section 318(c) of the Trust Indenture Act, such imposed duties shall control.
Article 2****NOTEHOLDER COLLATERAL PLATFORM BORROWINGS
| 2.1 | Establishment of Noteholder Collateral Platform |
|---|
There is hereby established a facility designated as the “Noteholder Collateral Platform” in order to provide a framework for borrowings necessary, useful or convenient in order to permit the Issuer and its Subsidiaries to conduct their business. All Notes issued under this Indenture or a Supplemental Indenture and at any time outstanding shall rank pari passu and be equally and rateably secured with all other outstanding Notes with the same right, lien and entitlement with respect to the Collateral without preference, priority or distinction between Notes on account of the date or dates or the actual time or times of the issuance or maturity of the Notes. Each Note of a particular series shall in all respects be equally and rateably secured with all other Notes of such series and shall have the same right, lien and entitlement hereunder established for the benefit of such series of Notes.
| 2.2 | Form of Borrowings |
|---|
All Notes shall be issued in series, pursuant to a Supplemental Indenture authorizing such series (or in the case of the 2028 Notes, pursuant to Article 4). In addition to Notes issued hereunder as direct evidence of the indebtedness of the Issuer to the Holder in the form of Global Notes, Notes may be issued by way of Pledged Notes to be held by the holder thereof as continuing collateral security for the borrowings of the Issuer or Guarantors as is specified in the instrument of Pledge pursuant to which such Note is Pledged including, but not limited to, loans, lines of credit, credit agreements and related swaps or other hedging instruments.
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| 2.3 | Mandatory Provisions of Pledged Notes |
|---|
Each Pledged Note shall be subject to the following conditions and restrictions, which shall be set out in the Pledge related to such Pledged Note and shall be referenced or legended in such Pledged Note:
| (a) | such Pledged Note shall not be transferable or negotiable except to an assignee of the entire borrowings<br>secured by such Pledged Note or to an assignee or successor of the facility agent or other Person in a similar capacity in respect of<br>the borrowings secured by such Pledged Note and only in conjunction with an assignment of the related Pledge or the entering into by the<br>assignee of a Pledge complying with this Section 2.3; |
|---|---|
| (b) | notwithstanding the principal amount of such Pledged Note, or the rate of interest expressed to be payable<br>thereon, such Pledged Note shall constitute an obligation of the Issuer to the holder thereof or other Persons in whose favour the borrowings<br>secured by such Pledged Note is owed only to the extent of the lesser of (i) borrowings outstanding from time to time secured by<br>such Pledged Note and (ii) the principal amount of such Pledged Note and interest accrued thereon, provided however, that no Pledged<br>Note shall be deemed to have been redeemed only by reason of the Issuer having no indebtedness or liability to the Persons in whose favour<br>any borrowings is secured by any such Pledge at any time while a Pledged Note is so Pledged; and |
| --- | --- |
| (c) | the holder of a Pledged Note shall not be entitled to vote hereunder except (i) in respect of any<br>proposed amendment or modification of this Article 2, Section 7.8, Article 8 or Article 15, (ii) as contemplated<br>by Section 2.4, or (iii) as required by the Trust Indenture Act; and notwithstanding the principal amount of such Pledged Note,<br>the holder or holders thereof shall only be entitled to that number of votes (one vote in respect of each $1.00) equal to the lesser of<br>(i) the outstanding borrowings secured by such Pledged Note at the time of calculation and (ii) the principal amount of such<br>Pledged Note and interest accrued thereon. |
| --- | --- |
| 2.4 | Enforcement Request |
| --- | --- |
The Trustee (on behalf of the Holders of Notes and when so authorized pursuant to Section 9.2(a)) or any Holder of a Pledged Note (when so authorized pursuant to the relevant instrument of Pledge) may enforce its rights under the Indenture and any or all of the Security Documents by sending an enforcement request notice (an “Enforcement Request”) in writing to the Collateral Trustee in accordance with Section 16.3. The Trustee (on behalf of the Holders of Notes and if so authorized pursuant to Section 9.2(a)) and any Holder of a Pledged Note (to the extent such Holder has the right to do so under the relevant instrument of Pledge), as applicable, may elect to participate in the instruction of the Collateral Trustee in the exercise of the Collateral Trustee’s rights under the Indenture or the applicable Security Documents (those Holders that so elect, together with the Holder or Holders on whose behalf the Enforcement Request was issued being the “EnforcingNoteholders”). Following the delivery of the original Enforcement Request, further instructions to the Collateral Trustee in respect of the enforcement of rights specified in the Enforcement Request shall be given in accordance with decisions made by Holders of a majority of the principal amount of Notes held by Enforcing Noteholders calculated in accordance with Section 2.3(c).
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Article 3THE NOTES
| 3.1 | Issue and Designation of Notes; Ranking |
|---|
The aggregate principal amount of Notes authorized to be issued and authenticated under this Indenture is unlimited, provided, however, that Notes may be issued under this Indenture only on and subject to the conditions and limitations in this Indenture. The Indebtedness evidenced by the Notes will be direct senior secured obligations of the Issuer secured by Liens on the Collateral, subject to Permitted Liens.
| 3.2 | Issuance in Series |
|---|---|
| (a) | Notes may be issued in one or more series from time to time pursuant to this Indenture and Supplemental<br>Indentures delivered in accordance with the terms of this Indenture. The Notes of each series (i) will have such designation, (ii) may<br>be subject to a limitation of the maximum principal amount authorized for issuance, (iii) will be issued in such denominations, (iv) may<br>be purchased and payable as to principal, premium (if any) and interest at such place or places and in such currency or currencies, (v) will<br>bear such date or dates and mature on such date or dates, (vi) will indicate the portion (if less than all of the principal amount)<br>of such Notes to be payable on declaration of acceleration of Maturity, (vii) will bear interest at such rate or rates (which may<br>be fixed or variable) payable on such date or dates, (viii) may contain mandatory or optional redemption or sinking fund provisions,<br>including the period or periods within which, the price or prices at which and the terms and conditions upon which the Notes may be redeemed<br>or purchased at the option of the Issuer or otherwise, (ix) may contain conversion or exchange terms, (x) will indicate the<br>percentage of the principal amount (including any premium) at which Notes may be issued or redeemed, (xi) will set out each office<br>or agency at which the principal of, premium (if any) and interest on the Notes will be payable, and the addresses of each office or agency<br>at which the Notes may be presented for registration of transfer or exchange, (xii) may contain covenants and events of default in<br>addition to or in substitution for the covenants contained herein and the Events of Default, (xiii) may contain additional legends<br>and/or provisions relating to the transfer and exchange of Notes in addition to those provided for herein, and (xiv) may contain<br>such other provisions, not inconsistent with the provisions of this Indenture, as may be set forth in a Board Resolution passed at or<br>before the time of the issue of the Notes of such series and such other provisions (to the extent as the Board of Directors may deem appropriate)<br>as are contained in the Notes of such series. The execution by the Issuer of the Notes of such series and the delivery thereof to the<br>Trustee for authentication will be conclusive evidence of the inclusion of the provisions authorized by this subsection. |
| --- | --- |
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| (b) | All Notes of any one series will be substantially identical except as to denomination and except as may<br>otherwise be provided in or pursuant to this Indenture, an Officers’ Certificate or the Supplemental Indenture establishing such<br>series. Not all Notes of any one series need to be issued at the same time, and, unless otherwise provided, Additional Notes be issued<br>from time to time, at the option of the Issuer without the consent of any Holder. |
|---|---|
| (c) | Before the creation of any series of Notes (other than the 2028 Notes, which terms are provided for in<br>Article 4), the Issuer will execute and deliver to the Trustee a Supplemental Indenture for the purpose of establishing the terms<br>of such series of Notes and the forms and denominations in which they may be issued, together with a Board Resolution authorizing the<br>issuance of any such Notes. The Trustee will execute and deliver such Supplemental Indentures from time to time pursuant to Section 14.5. |
| --- | --- |
| (d) | Whenever any series of Notes has been authorized, Notes in such series may from time to time be authenticated<br>by the Issuer and delivered to the Trustee and, subject to Section 3.4, will be certified and delivered by the Trustee to or to the<br>order of the Issuer upon receipt by the Trustee of: |
| --- | --- |
| (i) | a Board Resolution authorizing the issuance of a specified principal amount of Notes of such series; |
| --- | --- |
| (ii) | an Officers’ Certificate to the effect that there is no existing Event of Default or event which<br>with the giving of notice or passage of time or both would constitute an Event of Default and the Issuer has complied with all other conditions<br>of this Indenture in connection with the issue of such series; |
| --- | --- |
| (iii) | an Issuer Order for the authentication and delivery of such series of Notes specifying the principal amount<br>of the Notes to be authenticated and delivered; and |
| --- | --- |
| (iv) | an Opinion of Counsel addressed to the Trustee to the effect that all legal requirements imposed by this<br>Indenture, any applicable Supplemental Indenture or by law governing the Notes in connection with the issuance, authentication and delivery<br>of such series of Notes have been complied with subject to the delivery of certain documents or instruments specified in such opinion. |
| --- | --- |
| (e) | In connection with the issuance of any series of Notes by the Issuer, the Issuer shall fulfill all of<br>the obligations under this Section 3.2 for the issuance of such Notes as the Issuer, including for greater certainty, the execution<br>of a Supplemental Indenture by the Issuer giving effect to the issuance of the Notes. Concurrent with the execution of the Supplemental<br>Indenture giving effect to the issuance of Notes by the Issuer, Cannabist and the other Guarantors shall deliver to the Trustee a guarantee<br>of such series of Notes. Following the delivery of the aforementioned Supplemental Indenture, guarantee and completion of the other requirements<br>under this Section 3.2, the Trustee shall authenticate the Notes. |
| --- | --- |
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| 3.3 | Form of Notes |
|---|---|
| (a) | The Notes of any series and the Trustee’s certificate of authentication shall be substantially in<br>the form set out in the Supplemental Indenture establishing such series (or in the case of the 2028 Notes, in the form set out in Appendix A<br>hereto), together with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this<br>Indenture. Notes may have notations, legends or endorsements required by law, stock exchange rule or usage, which may include one<br>or more of the legends set forth in Section 3.3(h) or Section 3.13 hereof or in a Supplemental Indenture. Each Note shall<br>be dated the date of its authentication. Unless otherwise set out in the Supplemental Indenture establishing a series of Notes, Notes<br>shall be issued in denominations of $1,000 and integral multiples of $1,000. |
| --- | --- |
| (b) | The terms and provisions contained in the Notes and the Supplemental Indenture establishing each series<br>of Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Issuer and the Trustee, by their execution<br>and delivery of this Indenture and each applicable Supplemental Indenture, expressly agree to such terms and provisions and to be bound<br>thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this<br>Indenture shall govern and be controlling. |
| --- | --- |
| (c) | The Notes of any series may be in different denominations and forms and may contain such variations of<br>tenor and effect, not inconsistent with the provisions of this Indenture, as are incidental to such differences of denomination and form,<br>including variations in the provisions for the exchange of such Notes of different denominations or forms and in the provisions for the<br>registration or transfer of such Notes. |
| --- | --- |
| (d) | Subject to Section 3.3(a) and to any limitation as to the maximum principal amount of Notes<br>of any particular series, any Notes may be issued as a part of any series of Notes previously issued, in which case they will bear the<br>same designation and designating letters as those applied to such similar previous issue and will be numbered consecutively upwards in<br>respect of such denominations of Notes in like manner and following the numbers of the Notes of such previous issue. |
| --- | --- |
| (e) | All series of Notes which may at any time be issued under this Indenture and the certificate of the Trustee<br>endorsed on such Notes may be in English or any other language or languages or any combination thereof, and may be in the form or forms<br>provided in any Supplemental Indenture or in such other language or languages and in such form or forms as the Board of Directors determines<br>at the time of first issue of any series of Notes, as approved by the Trustee, the approval of which will be conclusively evidenced by<br>its authentication of such Notes. |
| --- | --- |
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| (f) | If any provision of any series of Notes in a language other than English is susceptible of an interpretation<br>different from the equivalent provision of the English language, the interpretation of such provision in the English language will be<br>determinative. |
|---|---|
| (g) | Notes may be typed, engraved, printed, lithographed or reproduced in a different form, or partly in one<br>form and partly in another, as the Issuer may determine. The execution of any such Notes by the Issuer and the authentication by the Trustee<br>in accordance with Section 3.4 of any such Notes will be conclusive evidence that such Notes are Notes authorized by this Indenture. |
| --- | --- |
| (h) | Each Note upon the original issuance thereof, and until such time as the same is no longer required under<br>applicable requirements of the U.S. Securities Act or applicable state securities laws, certificates, written notices of the relevant<br>ownership statement under a direct registration system or other book-entry system or CUSIPs representing the Notes and all certificates<br>issued in exchange therefore or in substitution thereof, will bear or be deemed to bear the following legend (the “U.S. Legend”): |
| --- | --- |
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY ACQUIRING SUCH SECURITIES, AGREES, FOR THE BENEFIT OF [THE CANNABIST COMPANY HOLDINGS INC.] [THE CANNABIST COMPANY HOLDINGS (CANADA) INC.] (THE “ISSUER”), THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION; (B) IN COMPLIANCE WITH (1) RULE 144A UNDER THE U.S. SECURITIES ACT, IF AVAILABLE, OR (2) RULE 144 UNDER THE U.S. SECURITIES ACT, IF AVAILABLE, AND, IN EACH CASE, IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS; OR (C) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS, PROVIDED THAT IN THE CASE OF TRANSFERS PURSUANT TO (B)(2) OR (C) ABOVE, A LEGAL OPINION FROM COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION MUST FIRST BE PROVIDED. HEDGING TRANSACTIONS INVOLVING SUCH SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE U.S. SECURITIES ACT. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA."
| 3.4 | Execution, Authentication and Delivery of Notes |
|---|---|
| (a) | All Notes shall be signed (either manually or by electronic or facsimile signature) by any authorized<br>director or officer of the Issuer, holding office at the time of signing. An electronic or facsimile signature upon a Note shall for all<br>purposes of this Indenture be deemed to be the signature of the individual whose signature it purports to be. Notwithstanding that any<br>individual whose signature, either manual or in facsimile or other electronic means, appears on a Note as a director or officer may no<br>longer hold such office at the date of the Note or at the date of the authentication and delivery thereof, such Note shall be valid and<br>binding upon the Issuer and the Holder thereof shall be entitled to the benefits of this Indenture. |
| --- | --- |
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| (b) | No Notes will be entitled to any right or benefit under this Indenture or be valid or obligatory for any<br>purpose unless such Notes have been authenticated by manual or electronic signature by or on behalf of the Trustee substantially in the<br>form provided for herein or in the relevant Supplemental Indenture. Such authentication upon any Notes will be conclusive evidence, and<br>the only evidence, that such Notes have been duly authenticated, issued and delivered and that the Holder is entitled to the benefits<br>hereof. |
|---|---|
| (c) | Subject to the terms of this Indenture, the Trustee shall from time to time authenticate one or more Notes<br>(including Global Notes) for original issue on the issue date for any series of Notes upon and in accordance with an Issuer Order (an “AuthenticationOrder”), without the Trustee receiving any consideration therefor. Each such Authentication Order shall specify the principal<br>amount of such Notes to be authenticated and the date on which such Notes are to be authenticated. The aggregate principal amount of Notes<br>outstanding at any time may not exceed the aggregate principal amount specified in the Authentication Orders except as provided in Section 3.10.<br>Except as provided in Section 7.10, there is no limit on the amount of Notes that may be issued hereunder. |
| --- | --- |
| (d) | The certificate by or on behalf of the Trustee authenticating Notes will not be construed as a representation<br>or warranty of the Trustee as to the validity of this Indenture or of any Notes or their issuance (except the due authentication thereof<br>by the Trustee) or as to the performance by the Issuer of its obligations under this Indenture or any Notes and the Trustee will be in<br>no respect liable or answerable for the use made of the proceeds of such Notes. The certificate by or on behalf of the Trustee on Notes<br>issued under this Indenture will constitute a representation and warranty by the Trustee that such Notes have been duly authenticated<br>by and on behalf of the Trustee pursuant to the provisions of this Indenture. |
| --- | --- |
| 3.5 | Registrar and Paying Agent |
| --- | --- |
| (a) | The Issuer shall maintain for each series of Notes an office or agency where such Notes may be presented<br>for registration of transfer or for exchange (“Registrar”) and an office or agency where such Notes may be surrendered<br>for payment (“Paying Agent”). The Registrar shall keep a register of such Notes and of their transfer and exchange. |
| --- | --- |
| (b) | The Issuer may appoint one or more co-registrars and one or more additional paying agents for any series<br>of Notes in such other locations as it shall determine. The term “Registrar” includes any co-registrar and the term “Paying<br>Agent” includes any additional paying agent. The Issuer may change any Paying Agent or Registrar without notice to any Holder. The<br>Issuer will notify the Trustee in writing of the name and address of any Registrar or Paying Agent which is not a party to this Indenture.<br>If the Issuer does not exercise its option to appoint or maintain another entity as Registrar or Paying Agent in respect of any series<br>of Notes, the Trustee shall act as such. The Issuer or any of its Subsidiaries may act as Paying Agent or Registrar for any series of<br>Notes. The Issuer initially appoints the Trustee at its corporate office in Vancouver, British Columbia to act as the Registrar, transfer<br>agent, authentication agent and Paying Agent with respect to the Notes. |
| --- | --- |
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| 3.6 | Paying Agent to Hold Money in Trust |
|---|
The Issuer shall require each Paying Agent, other than the Trustee, to agree in writing that the Paying Agent will, and the Trustee when acting as Paying Agent agrees that it will, hold in trust, for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, and interest on the Notes of the relevant series and shall notify the Trustee of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee and to account for any money disbursed by it. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary) shall have no further liability for the money. If the Issuer or a Subsidiary of the Issuer acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Holders all money held by it as Paying Agent; provided that upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee shall serve as Paying Agent for each series of Notes.
| 3.7 | Book Entry Only Notes, DRS Advice |
|---|---|
| (a) | Subject to Sections 3.7(c) and 5.2(b) and the provisions of the Notes of any series or any Supplemental<br>Indenture providing for the issuance thereof (including, in the case of the 2028 Notes, the provisions of Article 4), Notes shall<br>be issued initially as Book Entry Only Notes represented by one or more Global Notes. Each Global Note authenticated in accordance with<br>this Indenture and any Supplemental Indenture shall be registered in the name of the Depository designated for such Global Note or a nominee<br>thereof and deposited with such Depository or a nominee thereof or custodian therefor, and each such Global Note shall constitute a single<br>Note for all purposes of this Indenture and the applicable Supplemental Indenture. Beneficial interests in a Global Note will not be shown<br>on the register or the records maintained by the Depository but will be represented through book entry accounts of Participants on behalf<br>of the Beneficial Holders of such Global Note in accordance with the rules and procedures of the Depository. None of the Issuer or<br>the Trustee shall have any responsibility or liability for any aspects of the records relating to or payments made by any Depository on<br>account of the beneficial interest in any Global Notes or for maintaining, reviewing or supervising any records relating to such beneficial<br>interests therein. Except as otherwise provided in this Indenture or any Supplemental Indenture in respect of a series of Notes, Beneficial<br>Holders of Global Notes shall not be entitled to have Notes registered in their names, shall not receive or be entitled to receive Definitive<br>Notes and shall not be considered owners or holders thereof under this Indenture or any Supplemental Indenture. Nothing herein or in a<br>Supplemental Indenture shall prevent the Beneficial Holders from voting Global Notes using duly executed voting instruction forms. |
| --- | --- |
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| (b) | Every Note authenticated and delivered upon registration or transfer of a Global Note, or in exchange<br>for or in lieu of a Global Note or any portion thereof, shall be authenticated and delivered in the form of, and shall be, a Global Note,<br>unless such Note is registered in the name of a Person other than the Depository for such Global Notes or a nominee thereof. |
|---|---|
| (c) | Notwithstanding anything else contained herein, 2028 Notes and 2028 Convertible Notes may be issued to<br>certain Holders of 2028 Notes and 2028 Convertible Notes, as the case may be, pursuant to Direct Registration System advice at the direction<br>of Cannabist or the Co-Issuer. |
| --- | --- |
| 3.8 | Global Notes |
| --- | --- |
Notes issued to a Depository in the form of Global Notes shall be subject to the following in addition to the provisions of Section 5.2, unless and until Definitive Notes have been issued to Beneficial Holders pursuant to Section 5.2(b):
| (a) | the Trustee may deal with such Depository as the authorized representative of the Beneficial Holders of<br>such Notes; |
|---|---|
| (b) | the rights of the Beneficial Holders of such Notes shall be exercised only through such Depository and<br>the rights of Beneficial Holders shall be limited to those established by applicable law and agreements between the Depository and the<br>Participants and between such Participants and Beneficial Holders, and must be exercised through a Participant in accordance with the<br>rules and procedures of the Depository; |
| --- | --- |
| (c) | whenever this Indenture requires or permits actions to be taken based upon instructions or directions<br>of Holders evidencing a specified percentage of the outstanding Notes of any series, the Depository shall be deemed to be counted in that<br>percentage to the extent that it has received instructions to such effect from Beneficial Holders or Participants; |
| --- | --- |
| (d) | such Depository will make book-entry transfers among the direct Participants of such Depository and will<br>receive and transmit distributions of principal, premium and interest on the Notes to such direct Participants for subsequent payment<br>to the Beneficial Holders thereof; |
| --- | --- |
| (e) | the direct Participants of such Depository shall have no rights under this Indenture or under or with<br>respect to any of the Notes held on their behalf by such Depository, and such Depository may be treated by the Trustee and its agents,<br>employees, officers and directors as the absolute owner of the Notes represented by such Global Notes for all purposes whatsoever; |
| --- | --- |
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| (f) | whenever a notice or other communication is required to be provided to Holders in connection with this<br>Indenture or the Notes, the Trustee shall provide all such notices and communications to the Depository for subsequent delivery of such<br>notices and communications to the Beneficial Holders in accordance with Applicable Securities Legislation and the procedures of the Depository;<br>and |
|---|---|
| (g) | notwithstanding any other provision of this Indenture, all payments in respect of Notes issuable in the<br>form of or represented by a Global Note shall be made to the Depository or its nominee for subsequent payment by the Depository or its<br>nominee to the Beneficial Holders thereof. Upon payment over to the Depository, the Trustee, if acting as the Paying Agent, shall have<br>no further liability for the money. |
| --- | --- |
| 3.9 | Interim Notes |
| --- | --- |
Pending the delivery of Definitive Notes of any series to the Trustee, the Issuer may issue and the Trustee authenticate in lieu thereof (but subject to the same provisions, conditions and limitations as set forth in this Indenture) interim printed, mimeographed or typewriter Notes in such forms and in such denominations and signed in such manner as provided herein, entitling the holders thereof to Definitive Notes of such series when the same are ready for delivery; or the Issuer may execute and deliver to the Trustee and the Trustee authenticate a temporary Note for the whole principal amount of Notes of such series then authorized to be issued hereunder and thereupon the Trustee may issue its own interim certificates in such form and in such amounts, not exceeding in the aggregate the principal amount of the temporary Note so delivered to it, as the Issuer and the Trustee may approve entitling the holders thereof to Definitive Notes when the same are ready for delivery; and, when so issued and certified, such interim or temporary Notes or interim certificates shall, for all purposes but without duplication, rank in respect of this Indenture equally with Notes of such series duly issued hereunder and, pending the exchange thereof for Definitive Notes of such series, the holders of the interim or temporary Notes or interim certificates shall be deemed without duplication to be Holders of such series and entitled to the benefit of this Indenture to the same extent and in the same manner as though the said exchange had actually been made. Forthwith after the Issuer shall have delivered the Definitive Notes of such series to the Trustee, the Trustee shall call in for exchange all temporary or interim Notes of such series or certificates that shall have been issued and forthwith after such exchange shall cancel the same. No charge shall be made by the Issuer or the Trustee to the holders of such interim or temporary Notes or interim certificates for the exchange thereof.
| 3.10 | Mutilation, Loss, Theft or Destruction |
|---|
In case any of the Notes issued hereunder shall become mutilated or be lost, stolen or destroyed, the Issuer, in its discretion, may issue, and thereupon the Trustee shall authenticate and deliver, a new Note upon surrender and cancellation of the mutilated Note, or in the case of a lost, stolen or destroyed Note, in lieu of and in substitution for the same, and the substituted Note shall be in a form approved by the Trustee and shall entitle the Holder thereof to the benefits of this Indenture and shall rank equally in accordance with its terms with all other Notes of such series issued or to be issued hereunder. In case of loss, theft or destruction the applicant for a substituted Note shall furnish to the Issuer and to the Trustee such evidence of the loss, theft or destruction of the Note as shall be satisfactory to them in their discretion and shall also furnish an indemnity and surety bond satisfactory to them in their discretion. The applicant shall pay all reasonable expenses incidental to the issuance of any substituted Note.
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| 3.11 | Concerning Interest |
|---|---|
| (a) | All Notes of each series issued hereunder, whether originally or upon exchange or in substitution for<br>previously issued Notes (including for certainty Notes issued under Sections 3.9 and 3.10), shall bear interest (i) from and<br>including their respective issue date, or (ii) from and including the last Interest Payment Date therefor to which interest shall<br>have been paid or made available for payment on such outstanding Notes, whichever shall be the later, in all cases, to and excluding the<br>next Interest Payment Date therefor. |
| --- | --- |
| (b) | Subject to accrual of any interest on unpaid interest from time to time, interest on a Note of any series<br>will cease to accrue from the Maturity of such Note (including, for certainty, if such Note was called for redemption, the Redemption<br>Date); unless upon due presentation and surrender of such Note for payment on or after the Maturity thereof, such payment is improperly<br>withheld or refused. |
| --- | --- |
| (c) | If the date for payment of any amount of principal, premium or interest in respect of a Note of any series<br>is not a Business Day at the place of payment, then payment thereof will be made on the next Business Day and the Holder of such Note<br>will not be entitled to any further interest on such principal, or to any interest on such interest, premium or other amount so payable,<br>in respect of the period from the date for payment to such next Business Day. |
| --- | --- |
| (d) | The Holder of any Note of any series at the close of business on any Record Date applicable to a particular<br>series with respect to any Interest Payment Date for such series shall be entitled to receive the interest, if any, payable on such Interest<br>Payment Date notwithstanding any transfer or exchange of such Note subsequent to such Record Date and prior to such Interest Payment Date,<br>except if and to the extent the Issuer shall default in the payment of the interest due on such Interest Payment Date for such series,<br>in which case such defaulted interest shall be paid to the Holder of such Note as at the close of business on a subsequent Record Date<br>(which shall be not less than two Business Days prior to the date of payment of such defaulted interest) established by notice given by<br>mail by or on behalf of the Issuer to the Holders of all affected Notes not less than 15 days preceding such subsequent Record Date. The<br>term “Record Date” as used with respect to any Interest Payment Date (except a date for payment of defaulted interest)<br>for the Notes of any series shall mean the date specified as such in the terms of the Notes of such series established as contemplated<br>by Section 3.2, and in respect of the 2028 Notes, shall mean the “2028 Record Date” specified in Section 4.1. |
| --- | --- |
| (e) | Wherever in this Indenture, any Supplemental Indenture or any Note there is mention, in any context, of<br>the payment of interest, such mention is deemed to include the payment of interest on amounts in default to the extent that, in such context,<br>such interest is, was or would be payable pursuant to this Indenture, the Supplemental Indenture or the Note, and express mention of interest<br>on amounts in default in any of the provisions of this Indenture will not be construed as excluding such interest in those provisions<br>of this Indenture where such express mention is not made. |
| --- | --- |
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| (f) | Unless otherwise specifically provided in this Indenture or the terms of any Note, interest on Notes of<br>any series shall be computed on the basis of a year of 365 days or 366 days, as applicable. With respect to any series of Notes, whenever<br>interest is computed on the basis of a year (the “deemed year”) which contains fewer days than the actual number of<br>days in the calendar year of calculation, such rate of interest shall be expressed as a yearly rate for purposes of the Interest Act<br>(Canada) by multiplying such rate of interest by the actual number of days in the calendar year of calculation and dividing it by the<br>number of days in the deemed year. |
|---|---|
| 3.12 | Payments of Amounts Due on Maturity |
| --- | --- |
| (a) | Subject to Section 3.12(b), the following provisions shall apply to all Notes, except as otherwise<br>specified in a Supplemental Indenture relating to a particular series of Notes (and, in the case of the 2028 Notes, Article 4): |
| --- | --- |
| (i) | in the case of fully registered Notes, the Issuer shall establish and maintain with the Paying Agent a<br>Maturity Account for each series of Notes. On or before 11:00 a.m. (Toronto time) on the Business Day prior to the Stated Maturity<br>date for each series of Notes outstanding from time to time under this Indenture, the Issuer shall deposit in the applicable Maturity<br>Account by wire transfer or certified cheque an amount sufficient to pay all amounts payable in respect of the outstanding Notes of such<br>series (less any Taxes required by law to be deducted or withheld therefrom). The Paying Agent will pay to each Holder of such Notes entitled<br>to receive payment, the principal amount of, and premium (if any) on, such Notes, upon surrender of such Notes to the Paying Agent or<br>at any branch of the Trustee designated for such purpose from time to time by the Issuer and the Trustee. The deposit or making available<br>of such amounts into the applicable Maturity Account will satisfy and discharge the liability of the Issuer for such Notes to which the<br>deposit or making available of funds relates to the extent of the amount deposited or made available (plus the amount of any Taxes deducted<br>or withheld as aforesaid) and such Notes will thereafter not be considered as outstanding under this Indenture to such extent and such<br>Holder will have no other right than to receive out of the money so deposited or made available the amount to which it is entitled. Failure<br>to make a deposit or make funds available as required to be made pursuant to this Section 3.12(a)(i) will constitute Default<br>in payment on the Notes in respect of which the deposit or making available of funds was required to have been made; and |
| --- | --- |
| (ii) | in the case of any series of Notes issued and outstanding in the form of or represented by Global Notes,<br>on or before 11:00 a.m. (Toronto time) on the Business Day prior to the Stated Maturity date for such Notes, the Issuer shall deliver<br>to the Trustee, for onward payment to the Depository, in each case by electronic funds transfer, an amount sufficient to pay the amount<br>payable in respect of such Global Notes (less any Taxes required by law to be deducted or withheld therefrom). The Issuer shall pay to<br>the Trustee, for onward payment to the Depository, the principal amount of, and premium (if any) on, such Global Notes, against receipt<br>of the relevant Global Notes. The delivery of such electronic funds to the Trustee for onward payment to the Depository will satisfy and<br>discharge the liability of the Issuer for the series of Notes to which the electronic funds relates to the extent of the amount deposited<br>or made available (plus the amount of any Taxes deducted or withheld as aforesaid) and such Notes will thereafter not be considered as<br>outstanding under this Indenture unless such electronic funds transfer is not received. Failure to make delivery of funds available as<br>required pursuant to this Section 3.12(a)(ii) will constitute Default in payment on the Notes of the series in respect of which<br>the delivery or making available of funds was required to have been made. |
| --- | --- |
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| (b) | Notwithstanding Section 3.12(a), all payments in excess of $25,000,000 (or such other amount as determined<br>from time to time by the Canadian Payments Association or any successor thereto) shall be made by the use of the LVTS. Neither the Trustee<br>nor the Paying Agent shall have any obligation to disburse funds pursuant to Section 3.12(a)(i) unless it has received written<br>confirmation satisfactory to it that the funds have been deposited with it in sufficient amount to pay in full all amounts due and payable<br>on the applicable date of Maturity. The Paying Agent shall, if it accepts any funds received by it in the form of uncertified cheques,<br>be entitled to delay the time for release of such funds until such uncertified cheques shall be determined to have cleared the financial<br>institution upon which the same are drawn. |
|---|---|
| 3.13 | Legends on Notes |
| --- | --- |
| (a) | Each Global Note shall bear a legend in substantially the following form, subject to such modification<br>as required by the applicable Depository (the “Global Note Legend”): |
| --- | --- |
“THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THIS INDENTURE HEREIN REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE TRANSFERRED TO OR EXCHANGED FOR NOTES REGISTERED IN THE NAME OF ANY PERSON OTHER THAN THE DEPOSITORY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THIS INDENTURE. EVERY NOTE AUTHENTICATED AND DELIVERED UPON REGISTRATION OF, TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS NOTE SHALL BE A GLOBAL NOTE SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES DESCRIBED IN THIS INDENTURE.
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UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF CDS CLEARING AND DEPOSITORY SERVICES INC. (“CDS”) TO [THE CANNABIST COMPANY HOLDINGS INC.] [THE CANNABIST COMPANY HOLDINGS (CANADA) INC.] OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF CDS & CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS (AND ANY PAYMENT IS MADE TO CDS & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, CDS & CO., HAS A PROPERTY INTEREST IN THIS NOTE HEREIN AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD, TRANSFER OR DEAL WITH THIS NOTE.”
| (b) | Prior to the issuance of Notes of any series, the Issuer shall notify the Trustee, in writing, concerning<br>which Notes are to be certificated and are to bear the legend or legends described in this Section 3.13. |
|---|---|
| 3.14 | Payment of Interest |
| --- | --- |
The following provisions shall apply to Notes of each series, except as otherwise specified in a Supplemental Indenture relating to a particular series of Notes (and, in the case of the 2028 Notes, Article 4):
| (a) | As interest becomes due on each fully registered Note (except on redemption thereof, when interest may<br>at the option of the Issuer be paid upon surrender of such Note), the Issuer, either directly or through the Trustee or any agent of the<br>Trustee, shall send or forward by prepaid ordinary mail, electronic transfer of funds or such other means as may be agreed to by the Trustee,<br>payment of such interest including any Additional Amounts (less any Taxes required by law to be deducted or withheld therefrom) to the<br>Holders of record on the Record Date immediately preceding the applicable Interest Payment Date. If payment is made by cheque, such cheque<br>shall be forwarded at least two days prior to each Interest Payment Date and if payment is made by other means (such as electronic transfer<br>of funds, provided the Trustee must receive confirmation of receipt of funds prior to being able to wire funds to Holders), such payment<br>shall be made in a manner whereby the Holder receives credit for such payment on the Interest Payment Date. The mailing of such cheque<br>or the making of such payment by other means shall, to the extent of the sum represented thereby, plus the amount of any Taxes deducted<br>or withheld as aforesaid, satisfy and discharge all liability for interest including any Additional Amounts on such Note to such extent,<br>unless in the case of payment by cheque, such cheque is not paid at par on presentation. In the event of non-receipt of any cheque for<br>or other payment of interest by the Person to whom it is so sent as aforesaid, the Issuer shall issue to such Person a replacement cheque<br>or other payment for a like amount upon being furnished with such evidence of non-receipt as it shall reasonably require and upon being<br>indemnified to its satisfaction. Notwithstanding the foregoing, if the Issuer is prevented by circumstances beyond its control (including,<br>without limitation, any interruption in mail service) from making payment of any interest due on any Note in the manner provided above,<br>the Issuer may make payment of such interest or make such interest available for payment in any other manner acceptable to the Trustee<br>with the same effect as though payment had been made in the manner provided above. If payment is made through the Trustee, by 11:00 a.m. (Toronto<br>time) at least one Business Day prior to the related Interest Payment Date for a Note or to the date of mailing the cheques for the interest<br>due on such Interest Payment Date for such Note, whichever is earlier, the Issuer shall deliver sufficient funds to the Trustee by electronic<br>transfer or certified cheque or make such other arrangements for the provision of funds as may be agreeable between the Trustee and the<br>Issuer in order to effect such interest payment hereunder. |
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| (b) | So long as the Notes of any series or any portion thereof are issued in the form of or represented by<br>a Global Note, then all payments of interest on such Global Note shall be made by 11:00 a.m. (Toronto time) at least one Business<br>Day prior to the related Interest Payment Date by electronic funds transfer made payable to the Trustee for subsequent payment to the<br>Depository on behalf of the Beneficial Holders of the applicable interests in that Global Note, unless the Issuer and the Trustee agree. |
|---|---|
| (c) | Notwithstanding Sections 3.14(a) and 3.14(b), all payments in excess of $25,000,000 (or such<br>other amount as determined from time to time by the Canadian Payments Association or any successor thereto) shall be made by the use of<br>the LVTS. Neither the Trustee nor Paying Agent, as applicable, shall have any obligation to disburse funds in respect of any Note pursuant<br>to Section 3.14(a) unless it has received written confirmation satisfactory to it that the funds have been deposited with it<br>in sufficient amount to pay in full all amounts due and payable with respect to such Interest Payment Date for such Note. The Trustee<br>or Paying Agent, as applicable, shall, if it accepts any funds received by it in the form of uncertified cheques, be entitled to delay<br>the time for release of such funds until such uncertified cheques shall be determined to have cleared the financial institution upon which<br>the same are drawn. |
| --- | --- |
| 3.15 | Record of Payment |
| --- | --- |
The Trustee will maintain accounts and records evidencing any payment, by it or any other Paying Agent on behalf of the Issuer, of principal, premium (if any) and interest in respect of Notes of each series, which accounts and records will constitute, in the absence of manifest error, prima facie evidence of such payment.
| 3.16 | Representation Regarding Third Party Interest |
|---|
The Issuer hereby represents to the Trustee that any account to be opened by, or interest to be held by, the Trustee in connection with this Indenture, for or to the credit of the Issuer, either (a) is not intended to be used by or on behalf of any third party; or (b) is intended to be used by or on behalf of a third party, in which case the Issuer hereby agrees to complete, execute and deliver forthwith to the Trustee a declaration, in the Trustee’s prescribed form or in such other form as may be reasonably satisfactory to it, as to the particulars of such third party.
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Article 4TERMS OF THE 2028 NOTES
| 4.1 | Definitions |
|---|
In this Article 4 and in the Notes, the following terms have the following meanings:
“2028 Note Account” means any account which is designated in writing by the Issuer to the Trustee as the 2028 Note Account from time to time.
“2028 Record Date” means the close of business on June 15 and December 15 immediately preceding the relevant Interest Payment Date.
“Interest Payment Date” for the purposes of this Article 4 means June 30 and December 31 of each year that the 2028 Notes are outstanding and commencing on December 31, 2025.
| 4.2 | Creation and Designation of the 2028 Notes |
|---|---|
| (a) | In accordance with this Indenture, the Issuer is authorized to issue a series of Notes designated “9.25%<br>Senior Secured Notes due December 31, 2028”. |
| --- | --- |
| (b) | Each Holder of the 2025 Convertible Notes and 2026 Notes and each Holder of the 2027 Convertible Notes<br>that elects to receive 2028 Notes, shall receive 2028 Notes in exchange for their respective 2025 Convertible Notes, 2026 Notes and 2027<br>Convertible Notes, in each case, on a dollar-for-dollar cashless basis under this Indenture (the date on which such 2028 Notes are exchanged,<br>the “Exchange Date”) pursuant to the CBCA Proceedings plus any accrued by unpaid interest up to but excluding the Exchange<br>Date. |
| --- | --- |
| 4.3 | Aggregate Principal Amount |
| --- | --- |
The aggregate principal amount of 2028 Notes which may be issued under this Indenture shall be $250,750,000.
| 4.4 | Authentication |
|---|
The Trustee shall initially authenticate one or more Global Notes and/or Definitive Notes, as instructed by the Issuer in the Authentication Order, for original issue on the Issue Date in an aggregate principal amount of up to $250,750,000 or otherwise to permit transfers or exchanges in accordance with Section 5.6 upon receipt by the Trustee of a duly executed Authentication Order.
| 4.5 | Date of Issue and Maturity |
|---|
The 2028 Notes will be dated May 29, 2025 and the 2028 Notes will become due and payable, together with all accrued and unpaid interest thereon, on December 31, 2028 (the “2028 Note Maturity Date”). Notwithstanding the foregoing and provided the Issuer is not in Default, the Issuer may, in its sole discretion, elect to extend the 2028 Note Maturity Date to June 30, 2029 and subsequently extend the 2028 Note Maturity Date to December 31, 2029, in each case, at any time upon (i) a concurrent election to extend the maturity of the 2028 Convertible Notes, and (ii) 30 days notice, by mailing or electronically transmitting a notice to the Trustee and Holders (the “ExtensionNotice”) of its intention to extend the 2028 Note Maturity Date for the 2028 Notes and the 2028 Convertible Notes. Upon the Holders’ receipt of (i) a payment, in cash, equal to 0.5% of the aggregate principal amount of the 2028 Notes then outstanding, to the Trustee for distribution to each Holder of the 2028 Notes on a pro rata basis, and (ii) an Extension Notice for each of the 2028 Notes and the 2028 Convertible Notes (a copy of which shall be provided to Holders by the Trustee), the 2028 Note Maturity Date shall be deemed to be June 30, 2029 or December 31, 2029, as applicable, without any further action on the part of the Issuer or the Trustee.
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| 4.6 | Interest |
|---|---|
| (a) | The 2028 Notes will bear interest on the unpaid principal amount thereof at the rate of 9.25% per annum<br>from the Issue Date to, but excluding, the 2028 Note Maturity Date, compounded semi-annually and payable in arrears on each Interest Payment<br>Date. The first Interest Payment Date for the 2028 Notes will be December 31, 2025. |
| --- | --- |
| (b) | Interest will be payable in respect of each Interest Period (after, as well as before, the 2028 Note Maturity<br>Date, default and judgment, with interest overdue on principal and interest at a rate that is 1% higher than the applicable rate on the<br>2028 Notes) on each Interest Payment Date in accordance with Section 3.11 and Section 3.14. Interest on the 2028 Notes will<br>accrue from the Issue Date or, if interest has already been paid, from and including the last Interest Payment Date therefor to which<br>interest has been paid or made available for payment. Interest will be computed on the basis of a 365-day or 366-day year, as applicable,<br>and will be payable in equal semi-annual amounts; except that interest in respect of any period that is shorter than a full semi-annual<br>interest period will be computed on the basis of a 365-day or 366-day year, as applicable, and the actual number of days elapsed in that<br>period. |
| --- | --- |
| (c) | Notwithstanding anything in this Indenture or the Notes to the contrary, if at any time the interest rate<br>applicable to Notes, together with all fees, charges and other amounts which are treated as interest on such Notes under applicable law<br>(collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may<br>be contracted for, charged, taken, received or reserved by any of the Holders holding such Notes in accordance with applicable law, the<br>rate of interest payable in respect of such Notes hereunder, together with all Charges payable in respect thereof, shall be limited to<br>the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Notes but were not<br>payable as a result of the operation of this Section 4.6(c) shall be cumulated (the “cumulated amount”) and<br>the interest and Charges payable to such Holders in respect of other Notes or periods shall be increased (but not above the Maximum Rate<br>therefor) until such cumulated amount, together with interest thereon at the rate of interest payable in respect of such Notes hereunder<br>to the date of repayment, shall have been received by such Holders. Notwithstanding any provision herein to the contrary, in no event<br>will the aggregate “interest” (as defined in Section 347 of the Criminal Code (Canada), R.S.C., 1985 c. C-46,<br>as amended from time to time) payable under this Indenture or the Notes exceed the maximum effective annual rate of interest on the “creditadvanced” (as defined in such Section) permitted under such Section and, if any payment, collection or demand pursuant<br>to this Indenture or the Notes in respect of “interest”, including the payment of any cumulated amount, is determined to be<br>contrary to the provisions of such Section, the amount of such excess payment or collection will be refunded to the Issuer. For purposes<br>of this Indenture and the Notes, the effective annual rate of interest will be determined in accordance with generally accepted actuarial<br>practices and principles over the term of this Indenture and the Notes on the basis of annual compounding of the lawfully permitted rate<br>of interest and, in the event of dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Trustee will<br>be prima facie evidence of such determination. |
| --- | --- |
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| 4.7 | Optional Redemption |
|---|---|
| (a) | At any time after the Issue Date, the Issuer may, on any one or more occasions, redeem all or any part<br>of the 2028 Notes, upon not less than 15 nor more than 60 days’ notice, at par plus accrued and unpaid interest, if any, to but<br>excluding the date of redemption (subject to the right of Holders on the relevant Record Date to receive interest on the relevant Interest<br>Payment Date). |
| --- | --- |
| (b) | Unless otherwise specifically provided in this Section 4.7, the terms of Article 6 shall apply<br>to the redemption of any 2028 Notes and in the event of any inconsistency, the terms of this Section 4.7 shall prevail. |
| --- | --- |
| 4.8 | Optional Redemption for Changes in Withholding Taxes |
| --- | --- |
If (i) a Payor becomes, or will become, obligated to pay, on the next date on which any amount may be payable with respect to the Notes, any Additional Amounts as a result of a change (or a change in legislation proposed by the Minister of Finance of Canada or any similar authority that, if enacted, will be effective prior to the enactment date) in or amendment to the laws, regulations or rulings of any Relevant Taxing Jurisdiction, or any change in official position regarding the application or interpretation of such laws, regulations or rulings (including a holding by a court of competent jurisdiction), which is publicly announced or becomes effective on or after the date of any offering memorandum (or, if the Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction on a later date, after such later date) and (ii) the payment of such Additional Amounts cannot (as certified in an Officers’ Certificate to the Trustee) be avoided by the use of reasonable measures available to the Issuer, then the Issuer may, at its option, redeem the Notes then outstanding, in whole but not in part, upon not less than 30 nor more than 60 days’ notice (such notice to be provided not more than 90 days before the next date on which the Payor would be obligated to pay Additional Amounts), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Amounts, if any, to but excluding the Redemption Date (subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date). Notice of the Issuer’s intent to redeem the Notes shall not be effective until such time as it delivers to the Trustee an Opinion of Counsel stating that the Payor is or will become obligated to pay Additional Amounts because of any change or amendment described in this Section 4.8.
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| 4.9 | Mandatory Redemption and Market Purchases |
|---|---|
| (a) | The Issuer is not required to make mandatory redemption or sinking fund payments with respect to the 2028<br>Notes; provided, however, that the Issuer may be required to offer to purchase the 2028 Notes pursuant to Sections 7.14 and 7.15. |
| --- | --- |
| (b) | The Issuer or any of its Subsidiaries may at any time and from time to time purchase 2028 Notes by tender<br>offer, open market purchases, negotiated transactions, private agreement or otherwise at any price in accordance with Applicable Securities<br>Legislation, so long as such acquisition does not violate the terms of this Indenture. |
| --- | --- |
| 4.10 | Form and Denomination of the 2028 Notes |
| --- | --- |
| (a) | The 2028 Notes will be issued at an issue price of $1,000 per $1,000 of principal amount (and integral<br>multiples of $1,000). |
| --- | --- |
| (b) | Subject to Section 5.2(b), other than with respect to certain Holders who will receive definitive<br>certificates for the 2028 Notes, the 2028 Notes will be issuable as Global Notes, substantially in the form set out in Appendix A<br>hereto with such changes as may be reasonably required by the Depository and any other changes as may be approved or permitted by the<br>Issuer, in each case which changes are not prejudicial to the Holders or Beneficial Holders of 2028 Notes, and with such approval in each<br>case to be conclusively deemed to have been given by the officers of the Issuer executing the same in accordance with Article 2. |
| --- | --- |
| 4.11 | Currency of Payment |
| --- | --- |
The principal of, and interest and premium (if any) on, the 2028 Notes will be payable in United States dollars.
| 4.12 | Additional Amounts |
|---|---|
| (a) | All payments made by or on behalf of the Issuer under or with respect to the Notes, or by or on behalf<br>of any Guarantor under or with respect to any Subsidiary Guarantee, will be made free and clear of and without withholding or deduction<br>for or on account of, any present or future tax, duty, levy, impost, assessment or other governmental charge (hereinafter, “Taxes”)<br>imposed or levied by or on behalf of any jurisdiction in which the Issuer or any such Guarantor (each such Person, a “Payor”)<br>is organized, resident or carrying on business for tax purposes or from or through which such Payor (or its agents) makes any payment<br>on the Notes or any Subsidiary Guarantee, or any department or political subdivision thereof (each, a “Relevant Taxing Jurisdiction”),<br>unless such Person is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If a Payor is so<br>required to withhold or deduct any amount of interest for or on account of Taxes from any payment made under or with respect to the Notes<br>or any Subsidiary Guarantee, such Payor will pay such additional amounts of interest (“Additional Amounts”) as may<br>be necessary so that the net amount received by each holder or beneficial owner (including Additional Amounts) after such withholding<br>or deduction will not be less than the amount the holder or beneficial owner would have received if such Taxes had not been withheld or<br>deducted; provided that no Additional Amounts will be payable with respect to a payment made to a holder or beneficial owner (an “ExcludedHolder”): |
| --- | --- |
| (i) | which is subject to such Taxes by reason of any connection between such holder or beneficial owner and<br>the Relevant Taxing Jurisdiction other than the mere holding of Notes or the receipt of payments thereunder; |
| --- | --- |
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| (ii) | which failed to duly and timely comply with a timely request of the Issuer to provide information, documents,<br>certification or other evidence concerning such holder’s or beneficial owner’s nationality, residence, entitlement to treaty<br>benefits, identity or connection with the Relevant Taxing Jurisdiction, if and to the extent that due and timely compliance with such<br>request would have resulted in the reduction or elimination of any Taxes as to which Additional Amounts would have otherwise been payable<br>to such holder or beneficial owner of Notes but for this clause (ii); |
|---|---|
| (iii) | which is a fiduciary, a partnership or not the beneficial owner of any payment on a Note, if and to the<br>extent that, as a result of an applicable tax treaty, no Additional Amounts would have been payable had the beneficiary, partner or beneficial<br>owner owned the Note directly (but only if there is no material cost or expense associated with transferring such Note to such beneficiary,<br>partner or beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or beneficial<br>owner); |
| --- | --- |
| (iv) | to the extent that the Taxes required to be withheld or deducted are imposed pursuant to sections 1471<br>through 1474 of the United States Internal Revenue Code of 1986, as amended (and any amended or successor version that is substantially<br>comparable), and any regulations or other official guidance thereunder or agreements (including any intergovernmental agreements or any<br>laws, rules or practices implementing such intergovernmental agreements) entered into in connection therewith; or |
| --- | --- |
| (v) | any combination of the foregoing clauses of this proviso. |
| --- | --- |
| (b) | The applicable Payor will (a) make any required withholding or deduction and (b) remit the full<br>amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer will furnish to the holders<br>of the Notes, within 30 days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts<br>evidencing such payment by the applicable Payor. |
| --- | --- |
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| (c) | The Payors will indemnify and hold harmless each holder or beneficial owner (other than all Excluded Holders)<br>for the amount of (i) any Taxes not withheld or deducted by the Payors and levied or imposed and paid by such holder or beneficial<br>owner as a result of payments made under or with respect to the Notes or the Subsidiary Guarantees, (ii) any liability (including<br>penalties, interest and expenses) arising therefrom or with respect thereto, and (iii) any Taxes imposed with respect to any reimbursement<br>under clauses (i) or (ii) above. |
|---|---|
| (d) | At least 30 days prior to each date on which any payment under or with respect to the Notes is due and<br>payable, if any Payor is aware that it will be obligated to pay Additional Amounts with respect to such payment, the Issuer will deliver<br>to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and<br>will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to holders on the payment date. Whenever<br>in this Indenture there is mentioned, in any context, the payment of principal (and premium, if any), interest or any other amount payable<br>under or with respect to any Note, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in<br>this section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. |
| --- | --- |
| (e) | The obligations described under this Section 4.12 will survive any termination, defeasance or discharge<br>of this Indenture and will apply mutatis mutandis to any successor Person and to any jurisdiction in which such successor is organized<br>or is otherwise resident or doing business for tax purposes or any jurisdiction from or through which payment is made by such successor<br>or its respective agents. |
| --- | --- |
| 4.13 | Appointment |
| --- | --- |
| (a) | The Trustee will be the trustee for the 2028 Notes, subject to Article 13. |
| --- | --- |
| (b) | The Issuer initially appoints CDS to act as Depository with respect to the 2028 Notes. |
| --- | --- |
| (c) | The Issuer initially appoints the Trustee at its corporate office in Vancouver, British Columbia to act<br>as the Registrar, transfer agent, authentication agent and Paying Agent with respect to the 2028 Notes. The Issuer may change the Registrar,<br>transfer agent, authentication agent or Paying Agent for the 2028 Notes at any time and from time to time without prior notice to the<br>Holders of the 2028 Notes. |
| --- | --- |
| 4.14 | Inconsistency |
| --- | --- |
Subject to Section 1.15 in the case of any conflict or inconsistency between this Article 4 and any other provision of this Indenture, Article 4 shall, as to the 2028 Notes, govern and prevail.
| 4.15 | Reference to Principal, Premium, Interest, etc. |
|---|
Whenever this Indenture refers to, in any context, the payment of principal, any principal redeemed or repaid early due to a call provision, premium, if any, interest or any other amount payable under or with respect to any Note, such reference shall include the payment of Additional Amounts or indemnification payments as described hereunder, if applicable.
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| 4.16 | Merger, Amalgamation or Winding Up of Cannabist Canada |
|---|
Notwithstanding anything else contained in this Indenture, following completion of the CBCA Proceedings, Cannabist and the Co-Issuer may be merged or amalgamated (after the continuance of the latter to British Columbia) or the Co-Issuer may be wound up into Cannabist (any of such merger, amalgamation or winding-up, the “Issuer Combination”), and in such case all reference to Cannabist or Issuer in this Indenture shall be deemed to be the entity continuing thereunder.
| 4.17 | Additional Early Consent Consideration |
|---|
The Issuer shall pay the Supporting Senior Noteholders that received 2028 Notes on the Issue Date consideration in the aggregate amount of $1,500,000 in cash on the 2028 Note Maturity Date, except that such payment will be accelerated and made upon the occurrence of certain milestones, as follows (i) $750,000 shall be paid on the date on which the Issuer has received Net Proceeds from Asset Sales (including but not limited to Approved Sales) during the Sale Period equal to or greater than $15 million; and (ii) $750,000 shall be paid on the date on which the Issuer has received Net Proceeds from Asset Sales (including but not limited to Approved Sales) during the Sale Period equal to or greater than $20 million, with, for greater certainty, any balance remaining payable at maturity of the 2028 Notes.
Article 5REGISTRATION, TRANSFER, EXCHANGE AND OWNERSHIP
| 5.1 | Register of Certificated Notes |
|---|---|
| (a) | Subject to the terms of any Supplemental Indenture, with respect to each series of Notes issuable in whole<br>or in part as registered Notes, the Issuer shall cause to be kept by and at the principal office of the Trustee in Vancouver, British<br>Columbia or by such other Registrar as the Issuer, with the approval of the Trustee, may appoint at such other place or places, if any,<br>as may be specified in the Notes of such series or as the Issuer may designate with the approval of the Trustee, a register in which shall<br>be entered the names and addresses of the Holders and particulars of the Notes held by them respectively and of all transfers of Notes.<br>Such registration shall be noted on the relevant Notes by the Trustee or other Registrar unless a new Note shall be issued upon such transfer. |
| --- | --- |
| (b) | No transfer of a registered Note shall be valid unless made on such register referred to in Section 5.1(a) by<br>the Holder or such Holder’s executors, administrators or other legal representatives or an attorney duly appointed by an instrument<br>in writing in form and executed in a manner satisfactory to the Trustee or other Registrar upon surrender of the Notes together with a<br>duly executed form of transfer acceptable to the Trustee or other Registrar and upon compliance with such other reasonable requirements<br>as the Trustee or other Registrar may prescribe, and unless the name of the transferee shall have been noted on the Note by the Trustee<br>or other Registrar. |
| --- | --- |
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| 5.2 | Global Notes |
|---|---|
| (a) | With respect to Notes issuable as or represented by, in whole or in part, one or more Global Notes, the<br>Issuer shall cause to be kept by and at the principal office of the Trustee in Vancouver, British Columbia or by such other Registrar<br>as the Issuer, with the approval of the Trustee, may appoint at such other place or places, if any, as the Issuer may designate with the<br>approval of the Trustee, a register in which shall be entered the name and address of the Holder of each such Global Note (being the Depository,<br>or its nominee, for such Global Note) and particulars of the Global Note held by it, and of all transfers thereof. If any Notes are at<br>any time not Global Notes, the provisions of Section 5.1 shall govern with respect to registrations and transfers of such Notes. |
| --- | --- |
| (b) | Notwithstanding any other provision of this Indenture, a Global Note may not be transferred by the Holder<br>thereof and, accordingly, subject to Section 5.6, no Definitive Notes of any series shall be issued to Beneficial Holders except<br>in the following circumstances or as otherwise specified in any Supplemental Indenture, a resolution of the Trustee, a Board Resolution<br>or an Officers’ Certificate: |
| --- | --- |
| (i) | Definitive Notes may be issued to Beneficial Holders at any time after: |
| --- | --- |
| (A) | the Issuer has determined that CDS (1) is unwilling or unable to continue as Depository for Global<br>Notes, or (2) ceases to be eligible to be a Depository, and, in each case the Issuer is unable to locate a qualified successor to<br>its reasonable satisfaction; |
| --- | --- |
| (B) | the Issuer has determined, in its sole discretion, or is required by law, to terminate the book-entry<br>only registration system in respect of such Global Notes and has communicated such determination or requirement to the Trustee in writing,<br>or the book-entry system ceases to exist; or |
| --- | --- |
| (C) | the Trustee has determined that an Event of Default has occurred and is continuing with respect to Notes<br>issued as Global Notes, provided that Beneficial Holders representing, in the aggregate, not less than a majority of the aggregate outstanding<br>principal amount of the Notes of the affected series advise the Depository in writing, through the Participants, that the continuation<br>of the book-entry only registration system for the Notes of such series is no longer in their best interests; and |
| --- | --- |
| (ii) | Global Notes may be transferred (A) if such transfer is required by applicable law, as determined<br>by the Issuer and Counsel, or (B) by a Depository to a nominee of such Depository, or by a nominee of a Depository to such Depository,<br>or to another nominee of such Depository, or by a Depository or its nominee to a successor Depository or its nominee. |
| --- | --- |
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| (c) | Upon the termination of the book-entry only registration system on the occurrence of one of the conditions<br>specified in Section 5.2(b)(i) or upon the transfer of a Global Note to a Person other than a Depository or a nominee thereof<br>in accordance with Section 5.2(b)(i)(A), the Trustee shall notify all Beneficial Holders, through the Depository, of the availability<br>of Definitive Notes for such series. Upon surrender by the Depository of the Global Notes in respect of any series and receipt of new<br>registration instructions from the Depository, the Trustee shall deliver the Definitive Notes of such series to the Beneficial Holders<br>thereof in accordance with the new registration instructions and thereafter, the registration and transfer of such Notes will be governed<br>by Section 5.1 and the remaining provisions of this Article 5. |
|---|---|
| (d) | It is expressly acknowledged that a transfer of beneficial ownership in a Note of any series issuable<br>in the form of or represented by a Global Note will be effected only (a) with respect to the interests of participants in the Depository<br>(“Participants”), through records maintained by the Depository or its nominee for the Global Note, and (b) with<br>respect to interests of Persons other than Participants, through records maintained by Participants. Beneficial Holders who are not Participants<br>but who desire to purchase, sell or otherwise transfer ownership of or other interest in Notes represented by a Global Note may do so<br>only through a Participant. |
| --- | --- |
| 5.3 | Transferee Entitled to Registration |
| --- | --- |
The transferee of a Note shall be entitled, after the appropriate form of transfer is deposited with the Trustee or other Registrar and upon compliance with all other conditions for such transfer required by this Indenture or by law, to be entered on the register as the owner of such Note free from all equities or rights of set-off or counterclaim between the Issuer and the transferor or any previous Holder of such Note, save in respect of equities of which the Issuer is required to take notice by law (including any statute or order of a court of competent jurisdiction).
| 5.4 | No Notice of Trusts |
|---|
None of the Issuer, the Trustee and any Registrar or Paying Agent will be bound to take notice of or see to the performance or observance of any duty owed to a third Person, whether under a trust, express, implied, resulting or constructive, in respect of any Note by the Holder or any Person whom the Issuer or the Trustee treats, as permitted or required by law, as the owner or the Holder of such Note, and may transfer the same on the direction of the Person so treated as the owner or Holder of the Note, whether named as Trustee or otherwise, as though that Person were the Beneficial Holder thereof.
| 5.5 | Registers Open for Inspection |
|---|
The registers referred to in Sections 5.1 and 5.2 shall, subject to applicable law, at all reasonable times be open for inspection by the Issuer, the Trustee or any Holder. Every Registrar, including the Trustee, shall from time to time when requested so to do by the Issuer or by the Trustee, in writing, furnish the Issuer or the Trustee, as the case may be, with a list of names and addresses of Holders entered on the registers kept by them and showing the principal amount and serial numbers of the Notes held by each such Holder, provided the Trustee shall be entitled to charge a reasonable fee to provide such a list.
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| 5.6 | Issuer to Furnish Trustee Names and Addresses of Holders |
|---|---|
| (a) | The Issuer will furnish or cause to be furnished to the Trustee in writing, semi-annually, at least seven<br>Business Days before each Interest Payment Date (and in all events at intervals of not more than six months) and at such other times as<br>the Trustee may request in writing within 30 days after the receipt by the Issuer of any such request, a list in such form as the Trustee<br>may reasonably require, of the names and addresses of Holders of securities of each series as of such date, provided that the Issuer shall<br>not be so obligated at any time that the list shall not differ in any respect from the most recent list furnished to the Trustee by the<br>Issuer and provided, however, that, in either case, no such list need be furnished for any series for which the Trustee shall be the Registrar. |
| --- | --- |
| (b) | The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses<br>of Holders contained in the most recent list furnished to the Trustee as provided in this Section 5.6 and the names and addresses<br>of Holders received by the Trustee in its capacity as Registrar (if acting in such capacity). The Trustee may destroy any list furnished<br>to it as provided in this Section 5.6 upon receipt of a new list so furnished. |
| --- | --- |
| (c) | Every holder of Notes, by receiving and holding the same, agrees with the Issuer and the Trustee that<br>neither the Issuer nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information<br>as to the names and addresses of Holders made pursuant to the Trust Indenture Act. |
| --- | --- |
| 5.7 | Transfers and Exchanges of Notes |
| --- | --- |
| (a) | Transfer and Exchange of Global Notes. A Global Note may be transferred in whole and not in part<br>only pursuant to Section 5.2(b)(ii). A beneficial interest in a Global Note may not be exchanged for a Definitive Note other than<br>pursuant to Section 5.2(b)(i). A Global Note may not be exchanged for another Note other than as provided in this Section 5.7(a),<br>however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 5.7(b) or 5.7(c), as<br>applicable. |
| --- | --- |
| (b) | Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of<br>beneficial interests in the Global Notes shall be effected through the Depository, in accordance with the provisions of this Indenture,<br>applicable laws and the Applicable Procedures. In connection with a transfer and exchange of beneficial interest in Global Notes, the<br>transferor of such beneficial interest must deliver to the Registrar either (A) (1) a written order from a Participant or a<br>Beneficial Holder, in each case, given to the Depository in accordance with the Applicable Procedures directing the Depository to credit<br>or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or<br>exchanged, and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant<br>account to be credited with such increase, or (B) (1) a written order from a Participant or a Beneficial Holder, in each case,<br>given to the Depository in accordance with the Applicable Procedures directing the Depository to cause to be issued a Definitive Note<br>in an amount equal to the beneficial interest to be transferred, and (2) instructions given by the Depository to the Registrar containing<br>information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer referred to in (B)(1) above.<br>Upon satisfaction of all of the requirements for transfer of beneficial interests in Global Notes contained in this Indenture and the<br>Notes, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 5.7(e). |
| --- | --- |
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| (c) | Transfer or Exchange of Beneficial Interests in the Global Notes for Definitive Notes. A holder<br>of a beneficial interest in a Global Note may exchange such beneficial interest for a Definitive Note or may transfer such beneficial<br>interest to a Person who takes delivery thereof in the form of a Definitive Note only upon the occurrence of any of the preceding events<br>in Section 5.7(b) and satisfaction of the conditions set forth in Section 5.7(b). Upon the occurrence of any such preceding<br>event and receipt by the Registrar of the documentation referred to in the appropriate subparagraph of this Section 5.7(c), the Trustee<br>shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 5.7(e), and<br>the Issuer shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note<br>in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 5.7(c) shall<br>be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall<br>instruct the Registrar through instructions from the Depository and the Participant or Beneficial Holder. The Trustee shall deliver such<br>Definitive Notes to the Persons in whose names such Notes are so registered. |
|---|---|
| (d) | Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive<br>Notes and such Holder’s compliance with the provisions of this Section 5.7(d) and Applicable Securities Legislation, the<br>Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting<br>Holder shall present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer<br>in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. |
| --- | --- |
| (e) | Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular<br>Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or cancelled in whole<br>and not in part, each such Global Note shall be returned to or retained and cancelled by the Trustee in accordance with Section 5.11<br>or Article 10 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred<br>to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal<br>amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the<br>Trustee or by the Depository at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged<br>for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other<br>Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depository at<br>the direction of the Trustee to reflect such increase. |
| --- | --- |
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| (f) | General Provisions Relating to Transfers and Exchanges. |
|---|---|
| (i) | To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate<br>Global Notes and Definitive Notes upon the Issuer’s Authentication Order in accordance with Section 3.4 or at the Registrar’s<br>request. |
| --- | --- |
| (ii) | No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of<br>a Definitive Note for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer<br>tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge<br>payable upon exchange or transfer pursuant to Sections 3.9 and 12.1). |
| --- | --- |
| (iii) | All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes<br>or Definitive Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this<br>Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange. |
| --- | --- |
| (iv) | Neither the Issuer nor the Trustee nor any Registrar shall be required to: |
| --- | --- |
| (A) | issue, register the transfer of or exchange any Notes during a period beginning at the opening of business<br>15 days before the mailing of a Redemption Notice under Section 6.1 hereof and ending at the close of business on the day of selection,<br>or |
| --- | --- |
| (B) | register the transfer of or exchange any Note so selected for redemption in whole or in part, except the<br>unredeemed portion of any Note being redeemed in part or unless upon due presentation thereof for redemption such Notes are not redeemed,<br>or |
| --- | --- |
| (C) | register the transfer of or exchange a Note between a Record Date and the next succeeding Interest Payment<br>Date, or |
| --- | --- |
| (D) | to register the transfer of or to exchange a Note tendered and not withdrawn in connection with a Change<br>of Control Offer or an Asset Sale Offer. |
| --- | --- |
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| (v) | Subject to any restriction provided in this Indenture, the Issuer with the approval of the Trustee may<br>at any time close any register for the Notes of any series (other than those kept at the principal office of the Trustee in Vancouver,<br>British Columbia) and transfer the registration of any Notes registered thereon to another register (which may be an existing register)<br>and thereafter such Notes shall be deemed to be registered on such other register. Notice of such transfer shall be given to the Holders<br>of such Notes. |
|---|---|
| (vi) | Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Registrar or<br>Paying Agent and the Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for<br>the purpose of receiving payment of principal of (and premium, if any) and interest on such Notes and for all other purposes, and none<br>of the Trustee, any Registrar or Paying Agent or the Issuer shall be affected by notice to the contrary. |
| --- | --- |
| (vii) | The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the provisions of<br>Section 3.4. |
| --- | --- |
| (viii) | Upon surrender for registration of transfer of any Note at the office or agency of the Issuer, the Issuer<br>shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more replacement<br>Notes of any authorized denomination or denominations of a like aggregate principal amount. |
| --- | --- |
| (ix) | At the option of the Holder, Notes may be exchanged for other Notes of any authorized denomination or<br>denominations of a like aggregate principal amount upon surrender of the Notes to be exchanged at such office or agency. Whenever any<br>Global Notes or Definitive Notes are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver,<br>the replacement Global Notes and Definitive Notes which the Holder making the exchange is entitled to in accordance with the provisions<br>of Section 3.4 hereof. |
| --- | --- |
| (x) | All certifications, certificates and Opinions of Counsel required to be submitted pursuant to this Section 5.7<br>to effect a registration of transfer or exchange may be submitted by facsimile. |
| --- | --- |
| 5.8 | Charges for Registration, Transfer and Exchange |
| --- | --- |
For each Note exchanged, registered, transferred or discharged from registration, the Trustee or other Registrar, except as otherwise herein provided, may make a reasonable charge for its services and in addition may charge a reasonable sum for each new Note issued (such amounts to be agreed upon from time to time by the Trustee and the Issuer), and payment of such charges and reimbursement of the Trustee or other Registrar for any stamp taxes or governmental or other charges required to be paid shall be made by the party requesting such exchange, registration, transfer or discharge from registration as a condition precedent thereto. Notwithstanding the foregoing provisions, no charge shall be made to a Holder hereunder:
| (a) | for any exchange, registration, transfer or discharge from registration of a Note of any series applied<br>for within a period of two months from the date of the first delivery thereof; |
|---|
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| (b) | for any exchange of any interim or temporary Note of any series or interim certificate that has been issued<br>under Section 3.9 for a Definitive Note of any series; |
|---|---|
| (c) | for any exchange of a Global Note of any series as contemplated in Section 5.2; or |
| --- | --- |
| (d) | for any exchange of a Note of any series resulting from a partial redemption under Section 6.3. |
| --- | --- |
| 5.9 | Ownership of Notes |
| --- | --- |
| (a) | The Holder for the time being of any Note shall be entitled to the principal, premium, if any, and/or<br>interest evidenced by such Note, free from all equities or rights of set-off or counterclaim between the Issuer and the original or any<br>intermediate Holder thereof (except in respect of equities of which the Issuer is required to take notice by law) and all Persons may<br>act accordingly and the receipt of any such Holder for any such principal, premium, if any, or interest shall be a valid discharge to<br>the Trustee, any Registrar and to the Issuer for the same and none shall be bound to inquire into the title of any such Holder. |
| --- | --- |
| (b) | Where Notes are registered in more than one name, the principal, premium, if any, and interest from time<br>to time payable in respect thereof may be paid to the order of all or any of such Holders, failing written instructions from them to the<br>contrary, and the receipt of any one of such Holders therefor shall be a valid discharge, to the Trustee, any Registrar and to the Issuer. |
| --- | --- |
| (c) | In the case of the death of one or more joint Holders, the principal, premium, if any, and interest from<br>time to time payable thereon may be paid to the order of the survivor or survivors of such Holders and to the estate of the deceased and<br>the receipt by such survivor or survivors and the estate of the deceased thereof shall be a valid discharge by the Trustee, any Registrar<br>and the Issuer. |
| --- | --- |
| (d) | Unless otherwise required by law, the Person in whose name any Note is registered shall for all purposes<br>of this Indenture (except for references in this Indenture to a “Beneficial Holder”) be and be deemed to be the owner<br>thereof and payment of or on account of the principal of, premium, if any, and interest on such Note shall be made only to or upon the<br>order in writing of such Holder. |
| --- | --- |
| (e) | Notwithstanding any other provision of this Indenture, all payments in respect of Notes issuable in the<br>form of or represented by a Global Note shall be made to the Depository or its nominee for subsequent payment by the Depository or its<br>nominee to the Beneficial Holders. |
| --- | --- |
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| 5.10 | Communication to Holders |
|---|
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Notes and the corresponding rights and duties of the Trustee shall be provided by Section 312(b) of the Trust Indenture Act.
| 5.11 | Cancellation and Destruction |
|---|
All matured Notes of any series shall forthwith after payment of all Obligations thereunder be delivered to the Trustee or to a Person appointed by it or by the Issuer with the approval of the Trustee and cancelled by the Trustee. All Notes of any series which are cancelled or required to be cancelled under this or any other provision of this Indenture shall be destroyed by the Trustee and, if required by the Issuer, the Trustee shall furnish to it a destruction certificate setting out the designating numbers of the Notes so destroyed.
Article 6REDEMPTION AND PURCHASE OF NOTES
| 6.1 | Redemption of Notes |
|---|
Subject to the provisions of the Supplemental Indenture relating to the issue of a particular series of Notes or, in the case of the 2028 Notes, Article 4, Notes of any series may be redeemed before the Stated Maturity thereof, in whole at any time or in part from time to time, at the option of the Issuer and in accordance with and subject to the provisions set out in this Indenture and any applicable Supplemental Indenture, including those relating to the payment of any required redemption price (“Redemption Price”).
| 6.2 | Places of Payment |
|---|
The Redemption Price will be payable upon presentation and surrender of the Notes called for redemption at any of the places where the principal of such Notes is expressed to be payable and at any other places specified in the Redemption Notice.
| 6.3 | Partial Redemption |
|---|---|
| (a) | If less than all of the Notes of any series are to be redeemed at any time, the Trustee will select Notes<br>of such series for redemption as follows: |
| --- | --- |
| (i) | if the Notes are listed on any national securities exchange, including the Canadian Securities Exchange,<br>in compliance with the requirements of the principal national securities exchange; or |
| --- | --- |
| (ii) | if the Notes are not so listed, on a pro rata basis, by lot or by such method as the Trustee will deem<br>fair and appropriate; or |
| --- | --- |
| (iii) | if the Notes are included in global form based on a method required by CDS, or, a method that most nearly<br>approximates a pro rata selection as the Trustee deems appropriate. |
| --- | --- |
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Subject to the foregoing and the Supplemental Indenture relating to any series of Notes (or, in the case of the 2028 Notes, Article 4), Notes or portions of Notes the Trustee selects for redemption shall be in minimum amounts of $1,000 or integral multiples of $1,000.
| (b) | If Notes of any series are to be redeemed in part only, the Redemption Notice that relates to such Notes<br>will state the portion of the principal amount of such Notes that is to be redeemed. In the event that one or more of such Notes becomes<br>subject to redemption in part only, upon surrender of any such Notes for payment of the Redemption Price, together with interest accrued<br>to but excluding the applicable Redemption Date, the Issuer shall execute and the Trustee shall authenticate and deliver without charge<br>to the Holder thereof or upon the Holder’s order one or more new Notes of such series for the unredeemed part of the principal amount<br>of the Notes so surrendered or, with respect to Global Notes, the Trustee shall make notations on the Global Notes of the principal amount<br>thereof so redeemed. Unless the context otherwise requires, the terms “Note” or “Notes” as used in this Article 6<br>shall be deemed to mean or include any part of the principal amount of any Note which in accordance with the foregoing provisions has<br>become subject to redemption. |
|---|---|
| 6.4 | Notice of Redemption |
| --- | --- |
Unless otherwise provided in a Supplemental Indenture or, in the case of the 2028 Notes, Article 4, notice of redemption (the “Redemption Notice”) of any series of Notes shall be given to the Holders of the Notes so to be redeemed not more than 60 days nor less than 15 days prior to the date fixed for redemption (the “Redemption Date”) in the manner provided in Section 16.2; provided that Redemption Notices in respect of optional redemptions of Notes may be delivered more than 60 days prior to a Redemption Date if the Redemption Notice is issued in connection with a defeasance of the relevant Notes or a satisfaction and discharge of this Indenture. Every such Redemption Notice shall specify the aggregate principal amount of Notes called for redemption, the Redemption Date, the Redemption Price and the places of payment and shall state that interest upon the principal amount of Notes called for redemption shall cease to be payable from and after the Redemption Date. Redemption Notices in respect of redemptions made pursuant to Section 4.7 may, at the Issuer’s discretion, be subject to one or more conditions precedent, as described under Section 6.5. In addition, unless all the outstanding Notes of a series are to be redeemed, the Redemption Notice shall specify:
| (a) | the distinguishing letters and numbers of the Notes which are to be redeemed (as are registered in the<br>name of such Holder); |
|---|---|
| (b) | if such Notes are selected by terminal digit or other similar system, such particulars as may be sufficient<br>to identify the Notes so selected; |
| --- | --- |
| (c) | in the case of Global Notes, that the redemption will take place in such manner as may be agreed upon<br>by the Depository, the Trustee and the Issuer; and |
| --- | --- |
| (d) | in all cases, the principal amounts of such Notes or, if any such Note is to be redeemed in part only,<br>the principal amount of such part. |
| --- | --- |
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Notwithstanding Section 16.2, in the event that all Notes of a series to be redeemed are Global Notes, publication of the Redemption Notice shall not be required.
If Notes of any series are to be redeemed in part only, the Redemption Notice that relates to such Notes will state the portion of the principal amount of such Notes that is to be redeemed. In the event that one or more of such Notes becomes subject to redemption in part only, upon surrender of any such Notes for payment of the Redemption Price, together with interest accrued to but excluding the applicable Redemption Date, the Issuer shall execute and the Trustee shall authenticate and deliver without charge to the Holder thereof or upon the Holder’s order one or more new Notes of such series for the unredeemed part of the principal amount of the Notes so surrendered or, with respect to Global Notes, the Trustee shall make notations on the Global Notes of the principal amount thereof so redeemed. Unless the context otherwise requires, the terms “Note” or “Notes” as used in this Article 6 shall be deemed to mean or include any part of the principal amount of any Note which in accordance with the foregoing provisions has become subject to redemption.
| 6.5 | Qualified Redemption Notice |
|---|
In connection with any optional redemption of Notes, any such redemption may, at the Issuer’s discretion, be subject to one or more conditions precedent, including the completion of any Permitted Refinancing Indebtedness or any Equity Offering. In addition, if such redemption notice is subject to satisfaction of one or more conditions precedent, such notice shall state that, in the Issuer’s sole discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied (or waived by the Issuer in its sole discretion), or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the redemption date so delayed, and that such redemption provisions may be adjusted to comply with any depositary requirements.
| 6.6 | Notes Due on Redemption Dates |
|---|
Upon a Redemption Notice having been given as provided in Section 6.4, all the Notes so called for redemption or the principal amount to be redeemed of the Notes called for redemption, as the case may be, shall thereupon be and become due and payable at the Redemption Price, together with accrued interest to but excluding the Redemption Date, on the Redemption Date specified in such notice, in the same manner and with the same effect as if it were the Stated Maturity specified in such Notes, anything therein or herein to the contrary notwithstanding. If any Redemption Date is on or after a Record Date and on or before the related Interest Payment Date, the accrued and unpaid interest, if any, will be paid to the Person in whose name the Note is registered at the close of business on such Record Date, and no additional interest will be payable to Holders whose Notes shall be subject to redemption by the Issuer. From and after such Redemption Date, if the monies necessary to redeem such Notes shall have been deposited as provided in Section 6.7 and affidavits or other proof satisfactory to the Trustee as to the publication and/or mailing of such Redemption Notices shall have been lodged with it, interest upon the Notes shall cease to accrue. If any question shall arise as to whether any notice has been given as above provided and such deposit made, such question shall be decided by the Trustee whose decision shall be final and binding upon all parties in interest.
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| 6.7 | Deposit of Redemption Monies |
|---|---|
| (a) | Except as may otherwise be provided in any Supplemental Indenture or, in the case of the 2028 Notes, Article 4,<br>upon Notes being called for redemption, the Issuer shall deposit with the Trustee, for onward payment to the Depository, on or before<br>11:00 a.m. (Toronto time) on the day prior to the Redemption Date specified in the Redemption Notice, such sums of money as may be<br>sufficient to pay the Redemption Price of the Notes so called for redemption, plus accrued and unpaid interest thereon up to but excluding<br>the Redemption Date and including any Additional Amounts, less any Taxes required by law to be deducted or withheld therefrom. The Issuer<br>shall also deposit with the Trustee a sum of money sufficient to pay any charges or expenses which may be incurred by the Trustee in connection<br>with such redemption. Every such deposit shall be irrevocable. From the sums so deposited, the Trustee shall pay or cause to be paid,<br>to the Depository on behalf of the Holders of such Notes so called for redemption, upon surrender of such Notes, the principal, premium<br>(if any) and interest (if any) to which they are respectively entitled on redemption. |
| --- | --- |
| (b) | Payment of funds to the Trustee upon redemption of Notes shall be made by electronic transfer or certified<br>cheque or pursuant to such other arrangements for the provision of funds as may be agreed between the Issuer and the Trustee in order<br>to effect such payment hereunder. Notwithstanding the foregoing, (i) all payments in excess of $25,000,000 (or such other amount<br>as determined from time to time by the Canadian Payments Association) shall be made by the use of the LVTS; and (ii) in the event<br>that payment must be made to the Depository, the Issuer shall remit payment to the Trustee by LVTS. The Trustee shall have no obligation<br>to disburse funds pursuant to this Section 6.7 unless it has received written confirmation satisfactory to it that the funds have<br>been deposited with it in sufficient amount to pay in full all amounts due and payable on the applicable Redemption Date. The Trustee<br>shall, if it accepts any funds received by it in the form of uncertified cheques, be entitled to delay the time for release of such funds<br>until such uncertified cheques shall be determined to have cleared the financial institution upon which the same are drawn. |
| --- | --- |
| 6.8 | Failure to Surrender Notes Called for Redemption |
| --- | --- |
In case the Holder of any Note of any series so called for redemption shall fail on or before the Redemption Date so to surrender such Holder’s Note, or shall not within such time specified on the Redemption Notice accept payment of the redemption monies payable, or give such receipt therefor, if any, as the Trustee may require, such redemption monies may be set aside in trust, without interest, either in the deposit department of the Trustee or in a chartered bank, and such setting aside shall for all purposes be deemed a payment to the Holder of the sum so set aside and, to that extent, such Note shall thereafter not be considered as outstanding hereunder and the Holder thereof shall have no other right except to receive payment of the Redemption Price of such Note, plus any accrued but unpaid interest thereon to but excluding the Redemption Date and including any Additional Amounts, less any Taxes required by law to be deducted or withheld, out of the monies so paid and deposited, upon surrender and delivery up of such Holder’s relevant Note. In the event that any money required to be deposited hereunder with the Trustee or any Paying Agent on account of principal, premium, if any, or interest, if any, on Notes issued hereunder shall remain so deposited for a period of six years from the Redemption Date, then such monies, together with any accumulated interest thereon, shall at the end of such period be paid over or delivered over by the Trustee or such Paying Agent to the Issuer on its demand, and thereupon the Trustee shall not be responsible to Holders of such Notes for any amounts owing to them and subject to applicable law, thereafter the Holders of such Notes in respect of which such money was so repaid to the Issuer shall have no rights in respect thereof except to obtain payment of the money due from the Issuer, subject to any limitation period provided by the laws of British Columbia.
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| 6.9 | Cancellation of Notes Redeemed |
|---|
Subject to the provisions of Sections 6.4 and 6.10 as to Notes redeemed or purchased in part, all Notes redeemed and paid under this Article 6 shall forthwith be delivered to the Trustee and cancelled and no Notes shall be issued in substitution for those redeemed.
| 6.10 | Purchase of Notes for Cancellation |
|---|---|
| (a) | Subject to the provisions of any Supplemental Indenture relating to a particular series of Notes or, in<br>the case of the 2028 Notes, Article 4, the Issuer may, at any time and from time to time, purchase Notes of any series in the market<br>(which shall include purchases from or through an investment dealer or a firm holding membership on a recognized stock exchange) or by<br>tender or by contract, at any price; provided such acquisition does not otherwise violate the terms of this Indenture. All Notes so purchased<br>may, at the option of the Issuer, be delivered to the Trustee and cancelled and no Notes shall be issued in substitution therefor. |
| --- | --- |
| (b) | If, upon an invitation for tenders, more Notes of the relevant series are tendered at the same lowest<br>price than the Issuer is prepared to accept, the Notes to be purchased by the Issuer shall be selected by the Trustee on a pro rata basis<br>or in such other manner as the Issuer directs in writing and as consented to by the exchange, if any, on which Notes of such series are<br>then listed which the Trustee considers appropriate, from the Notes of such series tendered by each tendering Holder thereof who tendered<br>at such lowest price. For this purpose the Trustee may make, and from time to time amend, regulations with respect to the manner in which<br>Notes of any series may be so selected, and regulations so made shall be valid and binding upon all Holders thereof, notwithstanding the<br>fact that as a result thereof one or more of such Notes become subject to purchase in part only. The Holder of a Note of any series of<br>which a part only is purchased, upon surrender of such Note for payment, shall be entitled to receive, without expense to such Holder,<br>one or more new Notes of such series for the unpurchased part so surrendered, and the Trustee shall authenticate and deliver such new<br>Note or Notes upon receipt of the Note so surrendered or, with respect to a Global Note, the Depository shall make book-entry notations<br>with respect to the principal amount thereof so purchased. |
| --- | --- |
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Article 7COVENANTS OF THE ISSUER
As long as any Notes remain outstanding, the Issuer hereby covenants and agrees with the Trustee for the benefit of the Trustee and the Holders as follows (unless and for so long as the Issuer and/or one or more of its Subsidiaries are the only Holders (or Beneficial Holders) of the outstanding Notes, in which case the following provisions of this Article 7 shall not apply):
| 7.1 | Payment of Principal, Premium, and Interest |
|---|---|
| (a) | The Issuer covenants and agrees for the benefit of the Holders that it will duly and punctually pay the<br>principal of, premium, if any, and interest on the Notes in accordance with the terms of each series of Notes, as applicable, and this<br>Indenture. Principal, premium and interest shall be considered paid on the date due if on such date the Trustee holds in accordance with<br>this Indenture money sufficient to pay all principal, premium and interest then due and the Trustee is not prohibited from paying such<br>money to the Holders on that date pursuant to the terms of this Indenture. |
| --- | --- |
| (b) | Subject to the provisions of any Supplemental Indenture relating to a particular series of Notes, Cannabist<br>shall pay interest on overdue principal and premium, if any, at the rate specified in respect of each series of Notes, and it will pay<br>interest on overdue instalments of interest at the same rate to the extent lawful. |
| --- | --- |
| 7.2 | Existence |
| --- | --- |
Subject to Article 12, the Issuer shall, and shall cause each Restricted Subsidiary to, do or cause to be done all things necessary to preserve and keep in full force and effect the corporate, partnership or other legal existence, as applicable, and the corporate, partnership or other legal power, as applicable, of the Issuer and each Restricted Subsidiary; provided that neither the Issuer nor any Restricted Subsidiary will be required to preserve any such corporate, partnership or other legal existence and corporate, partnership or other legal power if the Board of Directors of the Issuer determines that the preservation thereof is no longer desirable in the conduct of the business of the Issuer, and the Restricted Subsidiaries taken as a whole and that the loss thereof is not disadvantageous in any material respect to the Holders.
| 7.3 | Payment of Taxes and Other Claims |
|---|
The Issuer shall and shall cause each of the Restricted Subsidiaries to, file all tax returns required to be filed in any jurisdiction and to pay and discharge, or cause to be paid and discharged, all Taxes shown to be due and payable on such returns and all other Taxes imposed on them or any of their properties, assets, income or franchises, to the extent such Taxes have become due and payable and before they have become delinquent and all claims for which sums have become due and payable that have or might become a Lien on properties or assets of the Issuer or any Restricted Subsidiary; provided that neither the Issuer nor any Restricted Subsidiaries need pay any such Taxes or claim if (a) the amount, applicability or validity thereof is contested by the Issuer or such Restricted Subsidiary on a timely basis in good faith and in appropriate proceedings, and the Issuer or a Restricted Subsidiary has established adequate reserves therefor in accordance with U.S. GAAP on the books of the Issuer or such Restricted Subsidiary or (b) the non-payment of all such Taxes in the aggregate would not reasonably be expected to have a material adverse effect on the business, affairs or financial condition of the Issuer and the Restricted Subsidiaries taken as a whole.
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| 7.4 | Keeping of Books |
|---|
The Issuer shall keep or cause to be kept, and shall cause each Restricted Subsidiary to keep or cause to be kept proper books of record and account, in which full and correct entries (in all material respects) shall be made of all financial transactions and the property and business of the Issuer and the Restricted Subsidiaries in accordance with U.S. GAAP.
| 7.5 | Provision of Reports and Financial Statements |
|---|
The Issuer will provide to the Trustee the following:
| (a) | within 60 days after the end of each quarterly fiscal period in each fiscal year of the Issuer, other<br>than the last quarterly fiscal period of each such fiscal year, copies of: |
|---|---|
| (i) | an unaudited consolidated statements of financial position as at the end of such quarterly fiscal period<br>and unaudited consolidated statements of net income and other comprehensive income, cash flows and changes in equity of the Issuer for<br>such quarterly fiscal period and, in the case of the second and third quarters, for the portion of the fiscal year ending with such quarter;<br>and |
| --- | --- |
| (ii) | an associated “Management’s Discussion and Analysis” prepared on a basis substantially<br>consistent with the “Management’s Discussion and Analysis” filed by Cannabist on SEDAR+ as of the Issue Date; and |
| --- | --- |
| (b) | within 120 days after the end of each fiscal year of the Issuer, copies of: |
| --- | --- |
| (i) | an audited consolidated statements of financial position of the Issuer as at the end of such year and<br>audited consolidated statements of net income and other comprehensive income, cash flows and changes in equity of the Issuer for such<br>fiscal year, together with a report of the Issuer’s auditors thereon; and |
| --- | --- |
| (ii) | an associated “Management’s Discussion and Analysis” prepared on a basis substantially<br>consistent with the “Management’s Discussion and Analysis” filed by Cannabist on SEDAR+ as of the Issue Date; |
| --- | --- |
in the case of each of Sections 7.5(a)(i) and 7.5(b)(i) prepared in accordance with U.S. GAAP. The reports referred to in Sections 7.5(a)(i) and 7.5(b)(i) are collectively referred to as the “Financial Reports.”
| (c) | Within 15 calendar days after filing with or furnishing to the U.S. Securities and Exchange Commission,<br>copies of annual reports and information, documents and other reports (or copies of such portions of any of the foregoing as the U.S.<br>Securities and Exchange Commission may by rules and regulations prescribe) which the Issuer is required to file or furnish with the<br>U.S. Securities and Exchange Commission pursuant to Section 13 or 15(d) of the U.S. Exchange Act or, if the Issuer is not required<br>to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the U.S. Securities and<br>Exchange Commission, in accordance with rules and regulations prescribed by the U.S. Securities and Exchange Commission, such supplementary<br>and periodic information, documents and reports which may be required pursuant to Section 13 of the U.S. Exchange Act in respect<br>of a security listed and registered on a national securities exchange as may be prescribed in such rules and regulations. |
|---|
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| (d) | The Issuer will transmit to all Holders, in the manner and to the extent provided in Trust Indenture Act<br>Section 313(c), within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports<br>required to be filed by the Issuer pursuant to paragraph (a), (b) and (c)of this Section 7.5 as may be required by rules and<br>regulations prescribed from time to time by the U.S. Securities and Exchange Commission. |
|---|---|
| (e) | The Issuer will, within 15 Business Days after providing to the Trustee any Financial Report, hold a conference<br>call to discuss such Financial Report and the results of operations for the applicable reporting period. The Issuer will also maintain<br>a website to which Holders, prospective investors and securities analysts are given access, on which not later than the date by which<br>the Financial Reports are required to be provided to the Trustee pursuant to the immediately preceding paragraph, the Issuer (i) makes<br>available such Financial Reports and (ii) provides details about how to access on a toll-free basis the quarterly conference calls<br>described above. |
| --- | --- |
| (f) | Notwithstanding the foregoing paragraphs, (i) all Financial Reports, annual reports and information<br>documents, and other reports will be deemed to have been provided to the Trustee and the Holders once filed on either (A) SEDAR+,<br>or any successor system thereto; or (B) EDGAR or any successor system thereto, and the Issuer will not be required to maintain a<br>website on which it makes such Financial Reports available, and (ii) if the Issuer holds a quarterly conference call for its equity<br>holders within 15 Business Days of filing a Financial Report on SEDAR+ or EDGAR or any successor systems thereto, Holders shall be permitted<br>to attend such conference call. |
| --- | --- |
| (g) | Concurrently with the delivery of Financial Reports by the Issuer under Sections 7.5(a)(i) and 7.5(b)(i),<br>the Issuer shall deliver to the Collateral Trustee an Officer’s Certificate certifying as to the Company’s compliance with<br>the requirements of Section 7.18 and as to whether the Security Coverage Test was met as of the date of the applicable Financial<br>Report and setting out such information and calculations with respect thereto as the Collateral Trustee may reasonably request. |
| --- | --- |
| (h) | Commencing on March 31, 2026 until the termination of the Appointment Period, a financial advisor<br>mutually agreeable to both Cannabist the Supporting Senior Noteholders (“Financial Advisor”) shall be retained by the<br>Trustee to review the Required Reporting (as defined below), provided that, if the Trustee is unable to retain a Financial Advisor, the<br>Supporting Senior Noteholders holding a majority of the aggregate principal amount of 2028 Notes and 2028 Convertible Notes then held<br>by the Supporting Senior Noteholders shall be entitled to retain the Financial Advisor. Notwithstanding the foregoing, BRG shall be deemed<br>to be a mutually agreeable party to serve as the Financial Advisor. All reasonable costs and expenses of the Financial Advisor shall be<br>for the account of Cannabist and Cannabist covenants to promptly satisfy any such accounts. Upon appointment, the Financial Advisor shall<br>enter into a customary confidentiality agreement with Cannabist and shall not disclose information obtained by it in its capacity as Financial<br>Advisor to any Persons other than the Trustee, the Chief Financial Officer of Cannabist, Cannabist’s Board of Directors (or a committee<br>thereof), for excluding for greater certainty, any of the Supporting Senior Noteholders or their representatives unless otherwise agreed<br>in writing. All reports prepared by or on behalf of the Financial Advisor shall be delivered contemporaneously to the Chief Financial<br>Officer of Cannabist and the Trustee, and, upon request of the Financial Advisor, Cannabist shall also deliver such reports to the audit<br>committee of Cannabist’s Board of Directors. |
| --- | --- |
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| (i) | From and after the date of appointment of the Financial Advisor until the 2028 Notes and 2028 Convertible<br>Notes are no longer outstanding, Cannabist shall provide, concurrent with the delivery of Financial Reports by the Issuer under Sections<br>7.5(a)(i) and 7.5(b)(i), an Officer’s Certificate, from the principal executive officer, principal financial officer or principal<br>accounting officer as to his or her knowledge of compliance by the Issuer and the Restricted Subsidiaries with all conditions and covenants<br>in this Indenture as at the date of such Financial Reports (such reporting being the “Required Reporting”). In addition,<br>and without limiting the forgoing, the Officer’s Certificate shall include (i) a statement as to the compliance with the covenants<br>contained in Section 7.18 and supporting calculations evidencing such compliance; (ii) a statement as to the aggregate Net Proceeds<br>received by the Issuer or its Restricted Subsidiaries in connection with all Approved Sales and Asset Sales, as applicable, that were<br>completed in the Issuer’s prior fiscal quarter; and (iii) a statement as to the aggregate balance of all Controlled Accounts<br>(accompanied by supporting bank statements) as at the most recently ended calendar month prior to the delivery of the Officer’s<br>Certificate. The Financial Advisor shall be permitted to request, and the Issuer shall provide, such supporting documents it reasonably<br>requires in connection with reviewing the calculations set forth in the Officer’s Certificate, including, but not limited to calculations<br>evidencing the utilization and remaining capacity available in the relevant subsections of Permitted Debt, Restricted Payments, Permitted<br>Liens and Permitted Investments as at the date of such Financial Reports. |
|---|---|
| 7.6 | Designation of Restricted and Unrestricted Subsidiaries |
| --- | --- |
| (a) | As of the Issue Date, the Unrestricted Subsidiaries are as set out in Appendix C. The Issuer shall<br>not be permitted to designate any Restricted Subsidiary as an Unrestricted Subsidiary. |
| --- | --- |
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| (b) | The Board of Directors of the Issuer may at any time designate any Unrestricted Subsidiary to be a Restricted<br>Subsidiary; provided that: |
|---|---|
| (i) | such designation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of the<br>Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if such Indebtedness<br>is permitted under Section 7.10; |
| --- | --- |
| (ii) | all outstanding Investments owned by such Unrestricted Subsidiary will be deemed to be made as of the<br>time of such designation and such designation will only be permitted if such Investments would be permitted under Section 7.9<br>provided that such outstanding Investments shall be valued at the lesser of (A) the Fair Market Value of such Investments measured<br>on the date of such designation and (B) the Fair Market Value of such Investments measured at the time each such Investment<br>was made by such Unrestricted Subsidiary; |
| --- | --- |
| (iii) | all Liens upon property or assets of such Unrestricted Subsidiary existing at the time of such designation<br>would be permitted under Section 7.7; and |
| --- | --- |
| (iv) | no Default or Event of Default would be in existence following such designation. |
| --- | --- |
| 7.7 | Liens |
| --- | --- |
The Issuer will not, and will not permit any of its Restricted Subsidiaries to, create, Incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other than Permitted Liens) securing Indebtedness upon any of their assets or properties, now owned or hereafter acquired.
| 7.8 | Landlord Consents |
|---|
The Issuer shall (a) execute and deliver, and shall cause each Restricted Subsidiary to execute and deliver, to the Collateral Trustee collateral assignments of leases or other Security Documents within 30 days of the Issue Date sufficient to permit the Security Coverage Test to be met, (b) use, and cause each Restricted Subsidiary to use, commercially reasonable efforts to obtain Waivers of Priority sufficient to meet the Security Coverage Test, and (c) promptly provide the Collateral Trustee with copies of all Waivers of Priority that the Issuer and the Restricted Subsidiaries have obtained for purposes of complying with this Section 7.8; provided, however, any Waiver of Priority obtained by the Issuer or any Restricted Subsidiary prior to the Issue Date shall be deemed to have been received as of the Issue Date for purposes of this Section 7.8; and, provided further, that neither the Issuer nor a Restricted Subsidiary shall be required to execute and deliver a collateral assignment of any lease pursuant to clause (a) of this Section 7.8 prior to obtaining a Waiver of Priority in respect thereof if doing so would reasonably be expected to invalidate such lease.
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| 7.9 | Restricted Payments |
|---|---|
| (a) | Subject to Section 7.9(b), the Issuer will not, and will not permit any of its Restricted Subsidiaries<br>to, directly or indirectly: |
| --- | --- |
| (i) | declare or pay (without duplication) any dividend or make any other payment or distribution on account<br>of the Issuer’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection<br>with any merger, consolidation or amalgamation of the Issuer or any of its Restricted Subsidiaries) or to the direct or indirect holders<br>of the Issuer’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends, payments<br>or distributions (A) payable in Equity Interests (other than Disqualified Stock) of the Issuer or (B) to the Issuer or a Restricted<br>Subsidiary of the Issuer); |
| --- | --- |
| (ii) | purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Issuer held by Persons<br>other than any of the Issuer’s Restricted Subsidiaries; |
| --- | --- |
| (iii) | make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for<br>value any Subordinated Indebtedness (other than intercompany Indebtedness permitted under Section 7.10(b)(ix)), except: (A) a<br>payment of interest or payment of principal at the Stated Maturity thereof or (B) the purchase, repurchase or other acquisition of<br>any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due<br>within one year of the date of such purchase, repurchase or other acquisition; or |
| --- | --- |
| (iv) | make any Restricted Investment; |
| --- | --- |
all such payments and other actions set forth in Sections 7.9(a)(i) through 7.9(a)(iv) above are collectively referred to as “Restricted Payments”.
| (b) | Section 7.9(a) will not prohibit, so long as, in the case of Sections 7.9(b)(viii), 7.9(b)(xv),<br>and 7.9(b)(xvii) no Default has occurred and is continuing or would be caused thereby: |
|---|---|
| (i) | [Reserved]; |
| --- | --- |
| (ii) | the payment of any dividend or similar distribution by a Restricted Subsidiary of the Issuer to the holders<br>of its Equity Interests on a pro rata basis; |
| --- | --- |
| (iii) | the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the sale (other<br>than to a Subsidiary of the Issuer) of, Equity Interests of the Issuer (other than Disqualified Stock), including cash proceeds received<br>from an exercise of warrants (subject to Section 7.20) or options, or from the contribution (other than by a Subsidiary of the Issuer)<br>of capital to the Issuer in respect of its Equity Interests (other than Disqualified Stock); in each case within 60 days of such Restricted<br>Payment; |
| --- | --- |
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| (iv) | the defeasance, redemption, repurchase, retirement or other acquisition of Subordinated Indebtedness with<br>the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness within 60 days of such defeasance,<br>redemption, repurchase, retirement or other acquisition; |
|---|---|
| (v) | Investments acquired as a capital contribution to, or in exchange for, or out of the net cash proceeds<br>of a substantially concurrent sale (other than to a Subsidiary of the Issuer) of, Equity Interests (other than Disqualified Stock) of<br>the Issuer within 60 days of such Restricted Payment; |
| --- | --- |
| (vi) | the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon<br>the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of<br>the exercise or exchange price of those stock options, warrants or other similar rights; |
| --- | --- |
| (vii) | the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the<br>Issuer held by any current or former officer, director or employee (or any of their respective heirs or estates or permitted transferees)<br>of the Issuer or any Restricted Subsidiary of the Issuer pursuant to any employee equity subscription agreement, stock option agreement,<br>stock matching program, stockholders’ agreement or similar agreement entered into in the ordinary course of business; provided that<br>the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any calendar year will not exceed<br>$10.0 million (with unused amounts in any calendar year being carried over to the next succeeding calendar year only); |
| --- | --- |
| (viii) | dividends on Disqualified Stock issued in compliance with Section 7.10 to the extent such dividends<br>are included in the definition of Consolidated Fixed Charges with respect to the Issuer; |
| --- | --- |
| (ix) | the payment of cash in lieu of fractional Equity Interests in connection with stock dividends, splits<br>or business combinations or the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests<br>of the Issuer or any of its Restricted Subsidiaries that are not derivative securities; |
| --- | --- |
| (x) | payments or distributions to dissenting stockholders pursuant to applicable law in connection with a merger,<br>consolidation or transfer of assets that complies with the provisions of Section 12.1; |
| --- | --- |
| (xi) | the repurchase, redemption or other acquisition or retirement for value of any Indebtedness pursuant to<br>provisions in documentation governing such Indebtedness similar to those described in Section 7.14 or Section 7.15, provided<br>that, prior to such repurchase, redemption or other acquisition or retirement, the Issuer (or a third party to the extent permitted by<br>this Indenture) shall have made a Change of Control Offer or Asset Sale Offer with respect to the Notes and shall have repurchased all<br>Notes validly tendered and not withdrawn in connection with such Change of Control Offer or Asset Sale Offer; |
| --- | --- |
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| (xii) | payments made or expected to be made by the Issuer or any Restricted Subsidiary in respect of withholdings<br>or similar taxes payable upon exercise of Equity Interests, restricted stock units, or stock appreciation rights by any future, present<br>or former employee, director, officer, member of management or consultants (or any of their respective heirs or estates or permitted transferees)<br>of the Issuer or any Restricted Subsidiary (including the repurchase of Equity Interests from such Persons to the extent the proceeds<br>are used to make tax payments); |
|---|---|
| (xiii) | payments made or expected to be made by the Issuer to the holders of Equity Interests of the Issuer in<br>accordance with a distribution reinvestment plan or dividend reinvestment plan to the extent such payments are applied to the purchase<br>of Equity Interests directly from the Issuer; |
| --- | --- |
| (xiv) | payments made or expected to be made by the Issuer or a Restricted Subsidiary to minority interest stockholders<br>of a Subsidiary in connection with the purchase, acquisition, redemption or retirement of such minority stockholders’ Equity Interests<br>in the applicable Subsidiary; |
| --- | --- |
| (xv) | any other Restricted Payment provided that, at the time of and after giving effect to such Restricted<br>Payment, the aggregate of such Restricted Payment and all other Restricted Payments made under this clause (xv) since the Issue Date<br>does not exceed $10 million, provided however, that that such amount shall be subject to reduction by the amount of all Permitted Investments<br>made since the Issue Date pursuant to clause (w) in the definition of “Permitted Investment”; |
| --- | --- |
| (xvi) | payments to stockholders of Persons who are controlled by the Issuer or its Restricted Subsidiaries through<br>management service agreements in connection with the purchase, acquisition, redemption or retirement of such stockholders’ Equity<br>Interests in the applicable Person; |
| --- | --- |
| (xvii) | payments made directly or indirectly by one or more arm’s length third parties; |
| --- | --- |
| (xviii) | payments made pursuant to the Management Incentive Plan; and |
| --- | --- |
| (xix) | the purchase, redemption or other acquisition or retirement for value of any Equity Interests of the Issuer<br>pursuant to a normal course issuer bid; provided that immediately after giving effect to any such transaction pursuant to this Paragraph<br>(xviii), the Consolidated Net Leverage Ratio of the Issuer would not exceed 3.0 to 1.0. |
| --- | --- |
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| (c) | In determining whether any Restricted Payment (or a portion thereof) is permitted by the foregoing paragraphs<br>(a) or (b) of this Section 7.9, the Issuer may allocate or reallocate all or any portion of such Restricted Payment among<br>the clauses of paragraph (b) of this Section 7.9, or the clauses of the definition of “Permitted Investment”, provided<br>that at the time of such allocation or reallocation, all such Restricted Payments, or allocated portions thereof, would be permitted under<br>the various provisions of the foregoing covenant or the definition of “Permitted Investment” (or any combination of the foregoing). |
|---|---|
| (d) | The amount of all Restricted Payments will be the Fair Market Value on the date of the Restricted Payment<br>of the asset(s) or securities proposed to be transferred or issued by the Issuer or such Restricted Subsidiary, as the case may be,<br>pursuant to the Restricted Payment. |
| --- | --- |
| 7.10 | Incurrence of Indebtedness |
| --- | --- |
| (a) | Subject to Section 7.10(b), the Issuer will not, and will not permit any Restricted Subsidiary to,<br>directly or indirectly, (i) Incur any Indebtedness (including Acquired Debt) or (ii) issue any Disqualified Stock; provided,<br>however, that the Issuer and the Restricted Subsidiaries may Incur Indebtedness (including Acquired Debt) or issue Disqualified Stock. |
| --- | --- |
| (b) | Section 7.10(a) will not prohibit the Incurrence of any of the following (collectively, “PermittedDebt”): |
| --- | --- |
| (i) | the Incurrence by the Issuer of Indebtedness and Guarantor under this Indenture that, at the time of and<br>after giving effect to such Incurrence and all other Incurrences made under this paragraph (i) since the Issue Date and which remain<br>outstanding, does not exceed $15 million, provided that such Indebtedness (A) shall not have a Maturity date that is prior to the<br>date that is 91 days after the latest possible Maturity date hereunder; and (B) following the Incurrence thereof, Cannabist shall<br>undertake commercially reasonable efforts, including engaging an investment dealer, to issue Equity Interests within 120 days of such<br>Incurrence for gross proceeds equal to or greater than an amount equal to 50% of the aggregate principal amount of such Indebtedness (Indebtedness<br>Incurred pursuant to this paragraph (i) being referred to as “Permitted Pari Indebtedness”); |
| --- | --- |
| (ii) | [Reserved]; |
| --- | --- |
| (iii) | the Incurrence by the Issuer or any Restricted Subsidiary of Lease Obligations in the ordinary course<br>of business in respect of (A) retail locations for dispensaries, (B) cultivation and/or manufacturing facilities, or (C) equipment<br>that will be used at dispensaries and/or cultivation and manufacturing facilities; |
| --- | --- |
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| (iv) | [Reserved]; |
|---|---|
| (v) | [Reserved]; |
| --- | --- |
| (vi) | the Incurrence of Existing Indebtedness; |
| --- | --- |
| (vii) | the Incurrence by the Issuer and the Guarantors of Indebtedness represented by the Notes and the Subsidiary<br>Guarantees, in each case, issued on the Issue Date, and any subsequent Incurrence by a Guarantor of Indebtedness represented by a Subsidiary<br>Guarantee; |
| --- | --- |
| (viii) | the Incurrence by the Issuer or any Restricted Subsidiary of the Issuer of Permitted Refinancing Indebtedness<br>in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease or discharge Indebtedness (other than intercompany<br>Indebtedness) that was permitted by this Indenture to be Incurred under clauses (ii), (iv), (vi) and (xv) of this Section 7.10(b); |
| --- | --- |
| (ix) | the Incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness owing<br>to and held by the Issuer or any of its Restricted Subsidiaries; provided, however, that: |
| --- | --- |
| (A) | if the Issuer or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be unsecured<br>and is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Issuer,<br>or any Subsidiary Guarantee, in the case of a Guarantor; |
| --- | --- |
| (B) | such Indebtedness owed to the Issuer or any Guarantor must be unsubordinated obligations, unless the obligor<br>under such Indebtedness is the Issuer or a Guarantor; and |
| --- | --- |
| (C) | (1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness<br>being held by a Person other than the Issuer or a Restricted Subsidiary thereof and (2) any sale or other transfer of any such Indebtedness<br>to a Person that is not either the Issuer or a Restricted Subsidiary thereof, will be deemed, in each case, to constitute an Incurrence<br>of such Indebtedness by the Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this Section 7.10(b)(ix); |
| --- | --- |
| (x) | the issuance by any Restricted Subsidiary to the Issuer or to any of its Restricted Subsidiary of any<br>preferred stock or Disqualified Stock; provided, however, that (A) any subsequent issuance or transfer of Equity Interests that results<br>in any such preferred stock or Disqualified Stock being held by a Person other than the Issuer or Restricted Subsidiary thereof and (B) any<br>sale or other transfer of any such preferred stock or Disqualified Stock to a Person that is not either the Issuer or a Restricted Subsidiary<br>thereof, will be deemed, in each case, to constitute an issuance of such preferred stock or Disqualified Stock by such Restricted Subsidiary<br>that was not permitted by this clause (x); |
| --- | --- |
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| (xi) | the guarantee by the Issuer or any of the Guarantors of Indebtedness of the Issuer or any Restricted Subsidiary<br>of the Issuer that was permitted to be Incurred by another provision of this covenant; |
|---|---|
| (xii) | the Incurrence by the Issuer or any of its Restricted Subsidiaries of Hedging Obligations for the purpose<br>of managing risks in the ordinary course of business and not for speculative purposes; |
| --- | --- |
| (xiii) | the Incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness in respect of workers’<br>compensation claims, self-insurance obligations, bankers’ acceptances, performance bonds, completion bonds, bid bonds, appeal bonds<br>and surety bonds or other similar bonds or obligations, and any guarantees or letters of credit functioning as or supporting any of the<br>foregoing, in each case provided by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business; |
| --- | --- |
| (xiv) | the Incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement<br>obligations with respect to letters of credit issued in the ordinary course of business; provided that, upon the drawing of such letters<br>of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within one year following such drawing or Incurrence; |
| --- | --- |
| (xv) | the Incurrence by the Issuer or any of its Restricted Subsidiaries of Permitted Acquisition Indebtedness; |
| --- | --- |
| (xvi) | the Incurrence of Indebtedness representing deferred compensation to directors, officers, members of management<br>or employees (in their capacities as such) of the Issuer or any of its Restricted Subsidiaries and Incurred in the ordinary course of<br>business; |
| --- | --- |
| (xvii) | the Incurrence of Indebtedness issued by Issuer or any of its Restricted Subsidiaries to any current or<br>former officer, director or employee (or any of their respective heirs or estates or permitted transferees) of the Issuer or any Restricted<br>Subsidiary to finance the purchase or redemption of Equity Interests to the extent described in paragraph 7.9(b)(vii); |
| --- | --- |
| (xviii) | the Incurrence of unsecured Indebtedness by the Issuer or any of its Restricted Subsidiaries that, at<br>the time of and after giving effect to such Incurrence and all other Incurrences made under this clause (xviii) since the Issue Date<br>and which remain outstanding, does not exceed $10 million; or |
| --- | --- |
| (xix) | the Incurrence of Indebtedness by the Issuer or any of its Restricted Subsidiaries that is secured by<br>a Lien permitted by clause (hh) of the definition of Permitted Lien and that, at the time of and after giving effect to such Incurrence<br>and all other Incurrences made under this clause (xix) since the Issue Date and which remain outstanding, does not exceed $10 million. |
| --- | --- |
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| (c) | For purposes of determining compliance with this covenant, in the event that any proposed Indebtedness<br>meets the criteria of more than one of the categories of Permitted Debt described in Section 7.10(b)(i) through (xix) above,<br>the Issuer will be permitted to divide and classify such item of Indebtedness at the time of its Incurrence in any manner that complies<br>with this Section 7.10. In addition, any Indebtedness originally divided or classified as Incurred pursuant to Section 7.10(b)(i) through<br>(xix) above may later be re-divided or reclassified by the Issuer such that it will be deemed as having been Incurred pursuant to<br>another of such clauses or such paragraph (or a combination thereof); provided that such re-divided or reclassified Indebtedness could<br>be Incurred pursuant to such new clause or such paragraph (or a combination thereof) at the time of such re-division or reclassification.<br>Notwithstanding the foregoing, Indebtedness outstanding on the Issue Date will be deemed to have been Incurred on such date in reliance<br>on the exception provided pursuant to Section 7.10(b)(vi). Guarantees of, or obligations in respect of letters of credit relating<br>to, Indebtedness which is otherwise included in the determination of a particular amount of Indebtedness shall not be included in<br>such determination. |
|---|---|
| (d) | Notwithstanding any other provision of this covenant and for the avoidance of doubt, the maximum amount<br>of Indebtedness that may be Incurred pursuant to this covenant will not be deemed to be exceeded with respect to any outstanding Indebtedness<br>due solely to the result of fluctuations in the exchange rates of currencies or increases in the value of property securing Indebtedness<br>which occur subsequent to the date that such Indebtedness was Incurred as permitted by this covenant. |
| --- | --- |
| (e) | The Issuer will not, and will not permit any Guarantor to, Incur any Indebtedness that is subordinate<br>in right of payment to any other Indebtedness of the Issuer or such Guarantor unless such Indebtedness is subordinate in right of payment<br>to the Notes and such Guarantor’s Subsidiary Guarantee to the same extent. |
| --- | --- |
| 7.11 | Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries |
| --- | --- |
| (a) | The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly,<br>create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to: |
| --- | --- |
| (i) | pay dividends or make any other distributions on its Capital Stock (or with respect to any other interest<br>or participation in, or measured by, its profits) to the Issuer or any of its Restricted Subsidiaries or pay any liabilities owed to the<br>Issuer or any of its Restricted Subsidiaries (it being understood that the priority of any preferred stock in receiving dividends or liquidating<br>distributions prior to dividends or liquidating distributions being paid on any other Capital Stock shall not be deemed a restriction<br>on the ability to pay any dividends or make any other distributions); |
| --- | --- |
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| (ii) | make loans or advances to the Issuer or any of its Restricted Subsidiaries; or |
|---|---|
| (iii) | transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries. |
| --- | --- |
| (b) | Section 7.11(a) will not apply to encumbrances or restrictions: |
| --- | --- |
| (i) | existing under, by reason of or with respect to any Existing Indebtedness, Capital Stock or any other<br>agreements or instruments in effect on the Issue Date and any amendments, modifications, restatements, renewals, extensions, supplements,<br>refundings, replacements or refinancings thereof, provided that the encumbrances and restrictions in any such amendments, modifications,<br>restatements, renewals, increases, extensions, supplements, refundings, replacements or refinancings are, in the reasonable good faith<br>judgment of the Issuer, not materially more restrictive, taken as a whole, than those contained in the Existing Indebtedness, Capital<br>Stock or such other agreements or instruments, as the case may be, as in effect on the Issue Date; |
| --- | --- |
| (ii) | under agreements governing other Indebtedness permitted to be Incurred under Section 7.10 and any<br>amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements if either<br>the encumbrance or restriction will not, in the good faith judgement of the Issuer, materially affect the Issuer’s ability to make<br>principal or interest payments on the Notes; |
| --- | --- |
| (iii) | set forth in this Indenture, the Notes and the Subsidiary Guarantees or contained in any other instrument<br>relating to any such Indebtedness; |
| --- | --- |
| (iv) | existing under, by reason of or with respect to applicable law, rule, regulation, order, approval, license,<br>permit or similar restriction; |
| --- | --- |
| (v) | with respect to any Person or the property or assets of a Person acquired by the Issuer or any of its<br>Restricted Subsidiaries existing at the time of such acquisition and not incurred in connection with, or in contemplation of, such acquisition,<br>which encumbrance or restriction is not applicable to any Person or the properties or assets of any Person, other than the Person, or<br>the property or assets of the Person, so acquired and any amendments, modifications, restatements, renewals, increases, extensions, supplements,<br>refundings, replacements or refinancings thereof, provided that the encumbrances and restrictions in any such amendments, modifications,<br>restatements, renewals, increases, extensions, supplements, refundings, replacements or refinancings are, in the good faith judgment of<br>the Issuer, not materially more restrictive, taken as a whole, than those in effect on the date of the acquisition; |
| --- | --- |
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| (vi) | in the case of a transfer contemplated under Section 7.11(a)(iii): |
|---|---|
| (A) | that restrict in a customary manner the subletting, assignment or transfer of any property or asset that<br>is a lease, license, conveyance or contract or similar property or asset; |
| --- | --- |
| (B) | existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien<br>on, any property or assets of the Issuer or any Restricted Subsidiary thereof not otherwise prohibited by this Indenture; |
| --- | --- |
| (C) | purchase money obligations for property acquired in the ordinary course of business and Lease Obligations,<br>in each case which impose restrictions on the property so acquired; |
| --- | --- |
| (D) | provisions limiting the disposition or distribution of assets or property in joint venture agreements,<br>asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the approval of<br>the Issuer’s Board of Directors or in the ordinary course of business, which limitation is applicable only to the assets that are<br>the subject of such agreements; |
| --- | --- |
| (E) | any instrument governing secured Indebtedness to the extent such restriction only affects the property<br>that secures such Indebtedness pursuant to the Indebtedness Incurred and Liens granted in compliance with this Indenture; or |
| --- | --- |
| (F) | arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do<br>not, individually or in the aggregate, detract from the value of property or assets of the Issuer or any Restricted Subsidiary thereof<br>in any manner material to the Issuer or any Restricted Subsidiary thereof; |
| --- | --- |
| (vii) | existing under, by reason of or with respect to any agreement for the sale or other disposition of all<br>or substantially all of the Capital Stock of, or property and assets of, a Restricted Subsidiary that restrict distributions, loans or<br>advances by that Restricted Subsidiary or transfers of such Capital Stock, property or assets pending such sale or other disposition; |
| --- | --- |
| (viii) | contained in Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements<br>governing such Permitted Refinancing Indebtedness that are not materially more restrictive, taken as a whole, than those contained in<br>the agreements governing the Indebtedness being refinanced; |
| --- | --- |
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| (ix) | pursuant to Liens permitted to be incurred under Section 7.7 that limit the right of the debtor to<br>dispose of the assets subject to such Liens; |
|---|---|
| (x) | contained in agreements entered into in connection with Hedging Obligations permitted from time to time<br>under this Indenture; |
| --- | --- |
| (xi) | constituting customary non-assignment provisions in contracts and licenses entered into in the ordinary<br>course of business; |
| --- | --- |
| (xii) | existing under restrictions on the transfer of property or assets required by any regulatory authority<br>having jurisdiction over any Restricted Subsidiary of the Issuer or any of their businesses; |
| --- | --- |
| (xiii) | contained in agreements entered into in the ordinary course of business, not related to any Indebtedness,<br>that do not, individually or in the aggregate, materially detract from the value of property or assets of any Restricted Subsidiary of<br>the Issuer; |
| --- | --- |
| (xiv) | existing under restrictions on cash or other deposits or net worth imposed by customers or required by<br>insurance, surety or bonding companies, in each case, under contracts entered into in the ordinary course of business; |
| --- | --- |
| (xv) | with respect to an Unrestricted Subsidiary of the Issuer pursuant to or by reason of an agreement that<br>the Unrestricted Subsidiary is a party to entered into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary;<br>provided that such agreement was not entered into in anticipation of the Unrestricted Subsidiary becoming a Restricted Subsidiary and<br>any such encumbrance or restriction shall not extend to any assets or property of the Issuer or any Restricted Subsidiary thereof other<br>than the assets and property so acquired; and |
| --- | --- |
| (xvi) | any encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases,<br>supplements, refundings, replacements or refinancings of the agreements, instruments or obligations referred to in clauses (i) through<br>(xv) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements<br>or refinancings are, in the good faith judgment of the Issuer, not materially more restrictive, taken as a whole, with respect to such<br>encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding,<br>replacement or refinancing. |
| --- | --- |
| 7.12 | Transactions with Affiliates |
| --- | --- |
| (a) | The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly,<br>make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or<br>assets from, or enter into, make, amend, renew or extend any transaction, contract, agreement, understanding, loan, advance or guarantee<br>with, or for the benefit of, any Affiliate of the Issuer (each, an “Affiliate Transaction”) involving aggregate consideration<br>in excess of $5 million for any Affiliate Transaction or series of related Affiliate Transactions, unless: |
| --- | --- |
| (i) | such Affiliate Transaction is on terms that, taken as a whole, are no less favorable to the Issuer or<br>the relevant Restricted Subsidiary than those that would have been obtained in a comparable arm’s-length transaction by the Issuer<br>or such Restricted Subsidiary with a Person that is not an Affiliate of the Issuer; and |
| --- | --- |
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| (ii) | the Issuer delivers to the Trustee: |
|---|---|
| (A) | with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate<br>consideration in excess of $10.0 million, a Board Resolution set forth in an Officers’ Certificate certifying that such Affiliate<br>Transaction or series of related Affiliate Transactions complies with this covenant and that such Affiliate Transaction or series of related<br>Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Issuer; and |
| --- | --- |
| (B) | with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate<br>consideration in excess of $25 million, an Officers’ Certificate certifying that, in the good faith determination of the certifying<br>officers, such Affiliate Transaction has undergone an appraisal by a third party which has been approved by a majority of the disinterested<br>directors of the Board of the Directors of the Issuer. |
| --- | --- |
| (b) | The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject<br>to the provisions of Section 7.12(a): |
| --- | --- |
| (i) | transactions between or among the Issuer and/or its Restricted Subsidiaries; |
| --- | --- |
| (ii) | payment of reasonable and customary fees to, and reasonable and customary indemnification and similar<br>payments to officers, directors, employees or consultants of the Issuer and its Subsidiaries; |
| --- | --- |
| (iii) | any Permitted Investments (other than pursuant to clauses (c) and (j) of the definition thereof)<br>or Restricted Payments that are permitted under Section 7.9; |
| --- | --- |
| (iv) | any issuance of Equity Interests (other than Disqualified Stock) of the Issuer to, or receipt of any capital<br>contribution from, any Affiliate of the Issuer; |
| --- | --- |
| (v) | transactions with a Person (other than an Unrestricted Subsidiary of the Issuer) that is an Affiliate<br>of the Issuer solely because the Issuer owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person; |
| --- | --- |
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| (vi) | transactions pursuant to agreements or arrangements in effect on the Initial Issue Date, or any amendment,<br>modification, or supplement thereto or replacement thereof, as long as such agreement or arrangement, as so amended, modified, supplemented<br>or replaced, taken as a whole, is not materially more disadvantageous to, or restrictive on, the Issuer and its Restricted Subsidiaries<br>than the original agreement or arrangement in existence on the Issue Date; |
|---|---|
| (vii) | any employment, consulting, service or termination agreement, employee benefit plan or arrangement, reasonable<br>indemnification arrangements or any similar agreement, plan or arrangement, entered into by the Issuer or any of its Restricted Subsidiaries<br>with officers, directors, consultants or employees of the Issuer or any of its Restricted Subsidiaries and the payment of compensation<br>or benefits to officers, directors, consultants and employees of the Issuer or any of its Subsidiaries (including amounts paid pursuant<br>to employee benefit plans, employee stock option or similar plans), and any payments, indemnities or other transactions permitted or required<br>by law, statutory provisions or any of the foregoing agreements, plans or arrangements; so long as such agreement or payment has been<br>approved by a majority of the disinterested members of the Board of Directors of the Issuer; |
| --- | --- |
| (viii) | transactions permitted by, and complying with, Section 12.1; |
| --- | --- |
| (ix) | payment of reasonable and customary fees and reimbursements and expenses (pursuant to indemnity arrangements<br>or otherwise) of officers, directors, employees or consultants of the Issuer, any of its Restricted Subsidiaries, or any direct or indirect<br>parent of the Issuer; |
| --- | --- |
| (x) | transactions with Affiliates solely in their capacity as holders of Indebtedness or Capital Stock of the<br>Issuer or any of its Subsidiaries, so long as such transaction is with all holders of such class (and there are such non-Affiliate holders)<br>and such Affiliates are treated no more favorably than all other holders of such class generally; |
| --- | --- |
| (xi) | any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired<br>by or merged or consolidated with or into the Issuer or a Restricted Subsidiary, as such agreement may be amended, modified, supplemented,<br>extended or renewed from time to time; provided that such agreement was not entered into contemplation of such acquisition, merger or<br>consolidation, and so long as any such amendment, modification, supplement, extension or renewal, when taken as a whole, is not materially<br>more disadvantageous to the Holders of the Notes in any material respect, than the applicable agreement as in effect on the date of such<br>acquisition, merger or consolidation; |
| --- | --- |
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| (xii) | transactions with customers, clients, joint ventures, joint venture partners, suppliers, or purchasers<br>or sellers of goods or services that are Affiliates of the Issuer, in each case in the ordinary course of business and otherwise in compliance<br>with the terms of the Indenture, provided that in the reasonable determination of the Board of Directors of the Issuer, such transactions<br>are on terms not less favorable to the Issuer or the relevant Restricted Subsidiary than those that could reasonably be expected to be<br>obtained in an comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Issuer; |
|---|---|
| (xiii) | payments to an Affiliate in respect of the Notes or any other Indebtedness of the Issuer or any of its<br>Restricted Subsidiaries on the same basis as concurrent payments are made or offered to be made in respect thereof to non-Affiliates or<br>on a basis more favorable to such non-Affiliate; or |
| --- | --- |
| (xiv) | transactions in which the Issuer or any Restricted Subsidiary of the Issuer, as the case may be, delivers<br>to the Trustee a letter from a Canadian or U.S. nationally recognized accounting, appraisal or investment banking firm stating that the<br>financial terms of such transaction (or a series of related transactions) are fair to the Issuer or such Restricted Subsidiary from a<br>financial point of view or meet the requirements of clause (1) of the first paragraph of this covenant |
| --- | --- |
| 7.13 | Business Activities, Material Permits, and Material Contracts |
| --- | --- |
| (a) | The Issuer will not, and will not permit any of its Restricted Subsidiaries to, engage in any business<br>other than Permitted Businesses, except to such extent as would not be material to the Issuer and its Restricted Subsidiaries taken as<br>a whole; it being understood that the Issuer and its Restricted Subsidiaries shall be deemed to be in compliance with the foregoing covenant<br>in respect of the acquisition of another Person that is primarily engaged in a Permitted Business or the acquisition of business operations<br>that primarily consist of a Permitted Business. |
| --- | --- |
| (b) | Except in connection with dispositions of assets or other transactions expressly permitted by this Indenture,<br>the Issuer shall, and shall cause each of its Restricted Subsidiaries to, maintain in full force and effect, and shall cause each of its<br>Restricted Subsidiaries to, perform all material obligations required to be performed thereunder, all Material Contracts to which the<br>Issuer or its Restricted Subsidiaries are party to as of the Issue Date. |
| --- | --- |
| (c) | Except in connection with dispositions of assets or other transaction permitted by this Indenture, the<br>Issuer shall, and shall cause each of its Restricted Subsidiaries to, obtain and maintain in full force and effect all Material Permits<br>necessary for the operation of its business in accordance with all applicable law, except where the failure to obtain or maintain could<br>not reasonably be expected to cause a Material Adverse Effect. |
| --- | --- |
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| 7.14 | Repurchase at the Option of Holders – Change of Control |
|---|---|
| (a) | If a Change of Control occurs, the Issuer will be required to make an offer to each Holder of Notes to<br>repurchase all or any part (equal to $1,000 or an integral multiple of $1,000) of that Holder’s Notes pursuant to the offer described<br>below (the “Change of Control Offer”). In the Change of Control Offer, the Issuer will offer a payment (the “Changeof Control Payment”) in cash equal to not less than 101% of the aggregate principal amount of Notes repurchased plus accrued<br>and unpaid interest, if any, on the Notes repurchased to the date of purchase (the “Change of Control Payment Date”<br>which date will be no earlier than the date of such Change of Control). |
| --- | --- |
| (b) | No later than 30 days following any Change of Control, the Issuer will mail or electronically transmit<br>a notice to each Holder describing the transaction or transactions that constitute the Change of Control, offer to repurchase Notes on<br>the Change of Control Payment Date specified in such notice, which date will be no earlier than 15 days and no later than 60 days from<br>the date such notice is mailed or electronically transmitted and describe the procedures, as required by this Indenture, that Holders<br>must follow in order to tender Notes (or portions thereof) for payment and withdraw an election to tender Notes (or portion thereof) for<br>payment. Notwithstanding anything to the contrary herein, a Change of Control Offer by the Issuer, or by any third party making a Change<br>of Control Offer in lieu of the Issuer as described below, may be made in advance of a Change of Control, conditional upon such Change<br>of Control if a definitive agreement is in place for the Change of Control at the time of making the Change of Control Offer. |
| --- | --- |
| (c) | The Issuer will comply with the requirements of any Applicable Securities Legislation to the extent such<br>requirements are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the<br>provisions of any Applicable Securities Legislation conflict with the Change of Control provisions of this Indenture, or compliance with<br>the Change of Control provisions of this Indenture would constitute a violation of any such laws or regulations, the Issuer will comply<br>with the Applicable Securities Legislation and will not be deemed to have breached its obligations under the Change of Control provisions<br>of this Indenture by virtue of such compliance. |
| --- | --- |
| (d) | On or before the Change of Control Payment Date, the Issuer will, to the extent lawful: |
| --- | --- |
| (i) | accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control<br>Offer; |
| --- | --- |
| (ii) | deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes<br>or portions of Notes properly tendered; and |
| --- | --- |
| (iii) | deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers’<br>Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuer. |
| --- | --- |
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| (e) | On the Change of Control Payment Date, the Paying Agent will promptly mail or wire transfer to each Holder<br>of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause<br>to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered,<br>if any; provided that each such new note will be in a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof. |
|---|---|
| (f) | The Issuer will advise the Trustee and the Holders of the Notes of the results of the Change of Control<br>Offer on or as soon as practicable after the Change of Control Payment Date. |
| --- | --- |
| (g) | If the Change of Control Payment Date is on or after a Record Date and on or before the related Interest<br>Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on<br>such Record Date, and no other interest will be payable to Holders who tender pursuant to the Change of Control Offer. |
| --- | --- |
| (h) | If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender<br>and do not withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu<br>of the Issuer as described below, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or such third<br>party, as the case may be, will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30<br>days following such purchase pursuant to the Change of Control Offer described above, to redeem or purchase, as applicable, all Notes<br>that remain outstanding following such purchase at a redemption price or purchase price, as the case may be, in cash equal to the applicable<br>Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, to the<br>Redemption Date. |
| --- | --- |
| (i) | The provisions of Section 7.14 that require the Issuer to make a Change of Control Offer following<br>a Change of Control will be applicable whether or not any other provisions of this Indenture are applicable. |
| --- | --- |
| (j) | Except as described in Section 7.14, the Holders of Notes shall not be permitted to require that<br>the Issuer repurchase or redeem any Notes in the event of a takeover, recapitalization, privatization or similar transaction. In addition,<br>Holders of Notes are not entitled to require the Issuer to purchase their Notes in circumstances involving a significant change in<br>the composition of the Board of Directors of the Issuer. |
| --- | --- |
| (k) | Notwithstanding anything to the contrary in this Section 7.14, the Issuer will not be required to<br>make a Change of Control Offer upon a Change of Control if: |
| --- | --- |
| (i) | a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance<br>with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes properly<br>tendered and not withdrawn under the Change of Control Offer; or |
| --- | --- |
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| (ii) | a Redemption Notice has been given pursuant to Section 4.7, unless and until there is a default in<br>payment of the applicable Redemption Price. |
|---|---|
| 7.15 | Repurchase at the Option of Holders – Asset Sales |
| --- | --- |
| (a) | The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly,<br>consummate an Asset Sale unless: |
| --- | --- |
| (i) | the Issuer (or the Restricted Subsidiary, as the case may be) receives consideration in respect of such<br>Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; |
| --- | --- |
| (ii) | if the Asset Sale would result a disposition of more than 10% of the total assets of the Issuer and each<br>Restricted Subsidiary, the Issuer obtains the consent (which, for greater certainty may be obtained in writing) from Holders of a majority<br>of the aggregate principal amount of the Notes then outstanding; |
| --- | --- |
| (iii) | if the Asset Sale is expected to result in Net Proceeds greater than $5.0 million, such Asset Sale has<br>received the unanimous approval of the Supporting Senior Noteholders Directors on Cannabist’s Board of Directors; |
| --- | --- |
| (iv) | if any Event of Default has occurred and is continuing, such Asset Sale is unanimously approved by Cannabist’s<br>Board of Directors; |
| --- | --- |
| (v) | each Asset Sale shall be completed for at least 75% of the consideration therefor received by the Issuer<br>or such Restricted Subsidiary is in the form of cash or Cash Equivalents, unless such Asset Sale was approved by: (i) two-thirds<br>of Cannabist’s Board of Directors if such Asset Sale is completed for less than $5.0 million of Net Proceeds, or (ii) unanimously<br>approved by the Supporting Senior Noteholders Directors if such Asset Sale is completed for greater than than $5.0 million of Net Proceeds.<br>For purposes of this provision, each of the following will be deemed to be cash: |
| --- | --- |
| (A) | any liabilities, as shown on the Issuer’s or such Restricted Subsidiary’s most recently available<br>annual or quarterly balance sheet, of the Issuer or any of its Restricted Subsidiaries (other than contingent liabilities and liabilities<br>that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant<br>to a customary novation agreement or similar agreement that releases the Issuer or such Restricted Subsidiary from further liability; |
| --- | --- |
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| (B) | any notes or other obligations received by the Issuer or any such Restricted Subsidiary in such Asset<br>Sale that are converted within 365 days by the Issuer or such Restricted Subsidiary into cash, to the extent of the cash received in that<br>conversion; and |
|---|---|
| (C) | any Designated Non-cash Consideration received by the Issuer or any of its Restricted Subsidiaries in<br>such Asset Sale, having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant<br>to this clause (C) (without giving effect to subsequent changes in value that is at the time outstanding), not to exceed 10% of the<br>Consolidated Net Tangible Assets of the Issuer measured at the time the determination is made. |
| --- | --- |
Notwithstanding the foregoing, any Asset Sale for which the Issuer has obtained the consent from Holders of a majority of the aggregate principal amount of the Notes then outstanding (which, for greater certainty may be obtained in writing) shall only require the approval of the majority of Cannabist’s Board of Directors.
| (b) | Subject to Section 4.17, within 274 days after the receipt of any Net Proceeds from an Asset Sale,<br>the Issuer or its Restricted Subsidiaries may apply an amount equal to such Net Proceeds to, at its option, any combination of the following<br>purposes: |
|---|---|
| (i) | to permanently repay, prepay, redeem, purchase or repurchase through open market transactions the 2028<br>Notes and 2028 Convertible Notes of the Issuer or any of its Restricted Subsidiaries secured by a Lien and, if the Indebtedness so repaid<br>is revolving credit Indebtedness, to correspondingly permanently reduce commitments with respect thereto; or |
| --- | --- |
| (ii) | if approved by a majority of the independent directors on Cannabist’s Board of Directors (an “ApprovedAlternate Use”), to reinvest in new assets and make any capital expenditure in or that is used or useful in a Permitted Business<br>or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement<br>Assets), or for other general working capital purposes. |
| --- | --- |
| (c) | Notwithstanding anything else contained in this Indenture, upon the Issuer’s or its Restricted Subsidiaries’<br>receipt of the first $36.5 million of aggregate Net Proceeds from Approved Sales which have closed during the Sale Period (“RetainedProceeds”), such Retained Proceeds may be retained by the Issuer or its Restricted Subsidiaries to reinvest in new assets and<br>make any capital expenditure in or that is used or useful in a Permitted Business or to purchase Replacement Assets (or enter into a binding<br>agreement to make such capital expenditure or to purchase such Replacement Assets), or for other general working capital purpose. |
| --- | --- |
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| (d) | An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in the<br>preceding paragraphs shall be deemed to be “Excess Proceeds” subject to an Asset Sale Offer as set forth herein unless there<br>is an Approved Alternate Use, approved by a majority of the independent directors on Cannabist’s Board of Directors pursuant to<br>Section 7.15(b) hereof. If on any date, the Issuer has received Net Proceeds from an Asset Sale not reinvested pursuant to this<br>Section 7.15, such proceeds shall be deemed to be “Excess Proceeds”, and on or before the 280^th^ day after<br>receipt thereof, Issuer will either (i) redeem 2028 Notes and Convertible 2028 Notes (on a pro rata basis, and in accordance with<br>Section 4.7), or (ii) make an offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other<br>First-Lien Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect<br>to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other<br>First-Lien Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100%<br>of principal amount plus accrued and unpaid interest to the date of purchase (subject to the right of Holders on the relevant record date<br>to receive interest on the relevant interest payment date), and will be payable in cash. The Issuer may satisfy the foregoing obligation<br>with respect to such Excess Proceeds from an Asset Sale by making an Asset Sale Offer in advance of being required to do so by this Indenture<br>(an “Advance Offer”) with respect to all or part of the available Excess Proceeds (the “Advance Portion”).<br>If any Excess Proceeds remain unapplied after the consummation of an Asset Sale Offer, the Issuer and its Restricted Subsidiaries may<br>use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture; provided that pending any such application, the<br>proceeds of the Asset Sale, whether assets, property or cash, are subject to a First-Priority Lien under Article 8. If the aggregate<br>principal amount of Notes and other First-Lien Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds,<br>the Trustee will select the Notes (and the Issuer or the respective agent for such other First-Lien Indebtedness shall select such other<br>First-Lien Indebtedness) to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that<br>only Notes in denominations of $1,000, or in integral multiples of $1,000 in excess thereof, shall be purchased , and the Issuer or the<br>respective agent for such other First-Lien Indebtedness shall make such adjustments for such other First-Lien Indebtedness). Upon completion<br>of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero (regardless of whether there are any remaining Excess Proceeds<br>upon such completion), and in the case of an Advance Offer, the Advance Portion shall be excluded in subsequent calculations of Excess<br>Proceeds. |
|---|---|
| (e) | Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of<br>the properties or assets of the Issuer and its Restricted Subsidiaries, taken as a whole, will be governed by Section 7.14 and/or<br>Section 12.1, and not by the provisions of this Section 7.15. |
| --- | --- |
| (f) | If the Asset Sale Offer purchase date is on or after a Record Date and on or before the related Interest<br>Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on<br>such Record Date, and no other interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. |
| --- | --- |
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| (g) | Within five Business Days after the Issuer is obligated to make an Asset Sale Offer as described in the<br>preceding paragraphs, the Issuer will deliver a written notice to the Holders, accompanied by such information regarding the Issuer and<br>its Affiliates as the Issuer in good faith believes will enable such Holders to make an informed decision with respect to such Asset Sale<br>Offer. Such notice shall state, among other things, the purchase price and the purchase date, which shall be a Business Day no earlier<br>than 30 days nor later than 60 days from the date such notice is delivered. |
|---|---|
| (h) | Without limiting the foregoing: |
| --- | --- |
| (i) | any Holder may decline any offer of prepayment pursuant to this Section 7.15; and |
| --- | --- |
| (ii) | the failure of any such Holder to accept or decline any such offer of prepayment shall be deemed to be<br>an election by such Holder to decline such prepayment. |
| --- | --- |
| (i) | The Issuer will comply with the requirements of any Applicable Securities Legislation to the extent such<br>requirements are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions<br>of any Applicable Securities Legislation conflict with the Asset Sale provisions of this Indenture, or compliance with the Asset Sale<br>provisions of this Indenture would constitute a violation of Applicable Securities Legislation, the Issuer will comply with the Applicable<br>Securities Legislation and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue<br>of such compliance. |
| --- | --- |
| (j) | Notwithstanding the foregoing, if the Issuer or its Restricted Subsidiaries realize more than $40 million<br>of Net Proceeds from the sale of Verano Common Shares (following the payment of the consent fee to the Supporting Senior Noteholders in<br>accordance with Section 4.17) on or before March 31, 2026, any incremental Net Proceeds in excess of $40 million shall be applied<br>in accordance with Section 7.15(b)(i). |
| --- | --- |
| 7.16 | Suspension of Covenants |
| --- | --- |
| (a) | If on any date following the Issue Date: |
| --- | --- |
| (i) | the Notes receive an Investment Grade Rating from 50% or more of the Designated Rating Organizations that<br>have provided ratings of the Notes (“Investment Grade Status”); and |
| --- | --- |
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| (ii) | no Default or Event of Default shall have occurred and be continuing on such date, |
|---|
then beginning on that day and continuing until such time, if any, at which the Notes cease to have Investment Grade Status (such period, the “Suspension Period”), the Sections listed below (the “Suspended Covenants”) will no longer be applicable to the Notes and any related default provisions of this Indenture will cease to be effective and will not be applicable to the Issuer and its Restricted Subsidiaries:
| (A) | Section 7.9; |
|---|---|
| (B) | Section 7.10; |
| --- | --- |
| (C) | Section 7.11; |
| --- | --- |
| (D) | Section 7.12; |
| --- | --- |
| (E) | Section 7.15; and |
| --- | --- |
| (F) | Section 12.1(a)(C). |
| --- | --- |
| (b) | If at any time the Notes cease to have Investment Grade Status, then the Suspended Covenants will thereafter<br>be reinstated as if such covenants had never been suspended (the “Reversion Date”) and be applicable pursuant to the<br>terms of this Indenture with respect to future events for the benefit of the Notes (including in connection with performing any calculation<br>or assessment to determine compliance with the terms of this Indenture), unless and until the Notes again achieve Investment Grade Status<br>and no Default or Event of Default shall have occurred and be continuing on such date (in which event the Suspended Covenants shall no<br>longer be in effect unless and until the Notes cease to have such Investment Grade Status). Such Suspended Covenants will not, however,<br>be of any effect with regard to the actions of the Issuer and its Restricted Subsidiaries properly taken during the continuance of the<br>Suspension Period. |
| --- | --- |
| (c) | With respect to the Restricted Payments made after any Reversion Date, the amount of Restricted Payments<br>will be calculated as though Section 7.9 had been in effect prior to, but not during, the Suspension Period. All Indebtedness<br>incurred, or Disqualified Stock issued, during the Suspension Period will be classified to have been incurred or issued pursuant to Section 7.10(b)(vi).<br>Any encumbrance or restriction of the type specified in Sections 7.11(a)(i), 7.11(a)(ii) and 7.11(a)(iii) entered into<br>(or which the Issuer or any Restricted Subsidiary become legally obligated to enter into) during the Suspension Period will be deemed<br>to have been in effect on the Issue Date so that they are permitted under Section 7.11(b)(i). Any contract, agreement, loan, advance<br>or guarantee with or for the benefit of any Affiliate of the Issuer entered into (or which the Issuer or any Restricted Subsidiary became<br>legally obligated to enter into) during the Suspension Period will be deemed to have been in effect on the Issue Date so that they are<br>permitted under Section 7.12(b)(vi). Upon the occurrence of a Suspension Period, the amount of Excess Proceeds shall be reset at<br>zero. During a Suspension Period, the Issuer may not designate any of its Restricted Subsidiaries to be Unrestricted Subsidiaries. |
| --- | --- |
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| (d) | Notwithstanding that the Suspended Covenants may be reinstated, and notwithstanding anything else contained<br>herein: |
|---|---|
| (i) | no Default or Event of Default will be deemed to have occurred as a result of a failure to comply with<br>the Suspended Covenants during the Suspension Period (or on the Reversion Date) or after the Suspension Period based solely on events<br>that occurred during the Suspension Period; and |
| --- | --- |
| (ii) | neither (a) the continued existence, after the Reversion Date, of facts or circumstances or obligations<br>that were incurred or otherwise came into existence during a Suspension Period nor (b) the performance of any such obligations, shall<br>constitute a breach of any covenant set forth in this Indenture or cause a Default or Event of Default thereunder; provided that (1) the<br>Issuer and its Restricted Subsidiaries did not incur or otherwise cause such facts or circumstances or obligations to exist in anticipation<br>of the Notes ceasing to have Investment Grade Status and (2) the Issuer reasonably expected that such incurrence or actions would<br>not result in such ceasing. |
| --- | --- |
| (e) | The Issuer shall notify the Trustee that the conditions set forth in this Section 7.16(a) have<br>been satisfied; provided that such notification shall not be a condition for the suspension of the covenants set forth above to be effective.<br>The Trustee shall be under no obligation to monitor the ratings of the Notes, determine whether the Notes achieve Investment Grade Status<br>or notify the Holders that the conditions set forth in this Section 7.16(a) have been satisfied. |
| --- | --- |
| 7.17 | Post-Closing Security Registration |
| --- | --- |
The Issuer shall, and shall cause each Restricted Subsidiary to, use commercially reasonable efforts to provide within one hundred and twenty (120) days after the Issue Date (a) deposit account control agreements with respect to all of their respective deposit accounts in favor of the Trustee, in form and substance reasonably satisfactory to the Supporting Senior Noteholders’ Representative (collectively, the “ControlledAccounts”), provided that Controlled Accounts shall exclude those accounts listed in Section 3 of Appendix D and any other deposit accounts used exclusively for: (i) amounts required to be paid over to an employee benefit plan pursuant to DOL Reg. Sec. 2510.3 102 on behalf of or for the benefit of employees of the Issuer and its Restricted Subsidiaries, (ii) amounts to be used to fund payroll obligations (including, but not limited to, amounts payable to any employment contracts between the Issuer and each Restricted Subsidiaries’ respective employees), and (iii) trust or fiduciary accounts; (b) mortgages with respect to all fee-owned real property owned by the Issuer or its Restricted Subsidiary; and (c) second-lien mortgages with respect to the fee-owned real property owned by the Unrestricted Subsidiaries listed in Section 5 of Appendix D to the extent obtaining agreements for such Controlled Accounts would result in a default under any Indebtedness of a Unrestricted Subsidiary.
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| 7.18 | Financial Covenants |
|---|---|
| (a) | Commencing on September 30, 2025, the Issuer and its Restricted Subsidiaries shall be required to<br>maintain cash and Cash Equivalents held in (i) Controlled Accounts, and (ii) the accounts listed in Section 4 of Appendix D,<br>on a consolidated basis, in an aggregate amount equal to or greater than $15 million at all times until the 2028 Notes and 2028 Convertible<br>Notes are no longer outstanding, provided that, for purposes of determining the amount of Cash Equivalents under this Section 7.18(a),<br>Cash Equivalents shall be deemed to include Verano Common Shares owned by the Issuer and its Restricted Subsidiaries and which shall deemed<br>to be valued at 66.67% of the 5-day Volume-Weighted Average Price on the Cboe Canada (or such other recognized exchange on which the highest<br>amount of trading activity in the Verano Common Shares may occur) as of the date of determination. |
| --- | --- |
| (b) | Commencing with its fiscal quarter ending March 31, 2026, the Issuer shall not permit the Consolidated<br>Net Leverage Ratio for any period of four (4) consecutive fiscal quarters ending on any date set forth below, as applicable, to be<br>greater than the applicable Consolidated Net Leverage Ratio set forth below as of any date of determination. |
| --- | --- |
| Fiscal Quarter End | Consolidated Net Leverage Ratio |
| --- | --- |
| March 31, 2026 | 5.58x |
| June 30, 2026 | 5.03x |
| September 30, 2026 | 4.53x |
| December 31, 2026 | 4.05x |
| March 31, 2027 | 3.78x |
| June 30, 2027 | 3.53x |
| September 30, 2027 | 3.49x |
| December 31, 2027, and at all times thereafter | 3.44x |
| 7.19 | Nomination Rights of Supporting Senior Noteholders, Cannabist Board, Etc. |
| --- | --- |
| (a) | On the Issue Date, Cannabist shall have taken all necessary steps to appoint the Supporting Senior Noteholders<br>Nominees to Cannabist’s Board of Directors (subject to such Supporting Senior Noteholder Nominee satisfying the Conditions and any<br>state or local cannabis regulatory approvals). Thereafter, and until the date that is the later of the date that both the 2028 Notes and<br>the 2028 Convertible Notes are no longer outstanding (the “Appointment Period”), the Supporting Senior Noteholders<br>shall have the right to nominate two Supporting Senior Noteholders Nominees for election at a Directors Election Meeting. In order to<br>facilitate the nomination of the Supporting Senior Noteholders Nominees, other than in connection with a Directors Election Meeting occurring<br>within 75 days of the Issue Date, Cannabist shall notify the Holders of any Directors Election Meeting at least 75 days prior to the date<br>of such Directors Election Meeting. Thereafter, at least 45 days and no more than 75 days before each Directors Election Meeting, the<br>Supporting Senior Noteholders Representative (on behalf of the majority of the aggregate principal amount of 2028 Notes and 2028 Convertible<br>Notes then held by the Supporting Senior Noteholders) will deliver to Cannabist (c/o its Board of Directors) in writing the names of the<br>two Supporting Senior Noteholders Nominees together with the information regarding such Supporting Senior Noteholders Nominee (including<br>the aggregate principal amount of 2028 Notes and 2028 Convertible Notes beneficially owned or over which control or direction is exercised<br>by such Supporting Senior Noteholders Nominees and a biography of such Supporting Senior Noteholders Nominee) that Cannabist is required<br>by the Act, Applicable Securities Laws and any other applicable Laws to include in a management information circular of Cannabist to be<br>sent to shareholders of Cannabist in respect of such Directors Election Meeting and such other information reasonably requested by Cannabist<br>and that is consistent with the information Cannabist intends to publish about the Supporting Senior Noteholders Nominee as directors<br>of Cannabist in such management information circular (the “Nomination Letter”). |
| --- | --- |
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| (b) | If either of the Supporting Senior Noteholders Nominees are not elected by Cannabist’s shareholders<br>at any Director Election Meeting following the Issue Date, the Supporting Senior Noteholder Representative shall provide alternative Supporting<br>Senior Noteholder Nominees in the manner set forth in Section 7.19(a) and Cannabist’s Board of Directors shall appoint<br>such alternative Supporting Senior Noteholders Nominees forthwith following the resignation of the Supporting Senior Noteholders Nominee<br>that failed to be elected. Upon the Issue Date, the Supporting Senior Noteholders Nominees shall be entitled to participate as observers<br>in meetings of Cannabist’s Board of Directors until the later of: (i) the date on which they are appointed to Cannabist’s<br>Board of Directors, as the case may be, and (ii) the date on which the Supporting Senior Noteholders Nominees have received applicable<br>regulatory approval(s) under state and local law, at which time they will be able to act in their full authority as directors of<br>Cannabist. |
|---|---|
| (c) | If the Holders fail to deliver the Nomination Letter to Cannabist at least 45 days before the Directors<br>Election Meeting, the Holders shall be deemed to have designated the same Supporting Senior Noteholders Nominees that serve as directors<br>of Cannabist at such time, subject to such individual satisfying the Conditions (as defined below) for re-election to the Board. |
| --- | --- |
| (d) | Notwithstanding anything to the contrary herein, each Supporting Senior Noteholders Nominee shall, upon<br>nomination and at all times while serving on the Board of Directors, (i) meet the qualification requirements to serve as an independent<br>director (within the meaning of NI 52-110) as reasonably determined by the Board of Directors, (ii) shall not be affiliated with<br>any competitors of Cannabist or its Restricted Subsidiaries, and (iii) meet the qualification requirements to serve as a director<br>under the Act, Articles, Applicable Securities Legislation, any other applicable Laws (including state or local cannabis Laws) and the<br>rules of any stock exchange on which the equity securities of Cannabist are then listed or trade ((i), (ii) and (iii) collectively<br>being, the “Conditions”). Without limiting the foregoing, no Supporting Senior Noteholders Nominee may be a Person<br>who has been convicted of a felony or a crime involving moral turpitude or a Person who is not acceptable to any stock exchange on which<br>the equity securities of Cannabist are then listed or trade, a securities regulatory authority having jurisdiction over Cannabist or any<br>other regulatory authority having jurisdiction over Cannabist or any of its Restricted Subsidiaries (including state or local cannabis<br>regulators). In the event of the resignation, removal, death or incapacity of a director who is a Supporting Senior Noteholders Nominee<br>that is serving on the Board, or in the event that a director who is a Supporting Senior Noteholders Nominee that is serving on the Board<br>at any time ceases to satisfy any of the Conditions, the Holders shall be entitled to designate an individual satisfying each of the Conditions<br>to replace such Director to serve on the Board by delivery of a written notice by the Supporting Senior Noteholders to Cannabist, and<br>to the extent permitted by the Act and the Articles, the Board of Directors shall promptly appoint such individual as a director, or to<br>the extent not so permitted, nominate such individual for election as a director at the next Directors Election Meeting. |
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| (e) | Cannabist agrees that the Board of Directors shall (i) nominate the Supporting Senior Noteholders<br>Nominees for election to the Board at each Director Election Meeting that is held during the Appointment Period, subject to his or her<br>consent to serve and the satisfaction of the Conditions, and (ii) recommend, support and solicit proxies for the Supporting Senior<br>Noteholders Nominees at each such Director Election Meeting in the same manner as it recommends, supports, and solicits proxies for the<br>election of all other directors nominated by the Board of Directors for election at such Director Election Meeting. |
|---|---|
| (f) | Up to four (4) of Cannabist’s director positions will be eliminated as of the 2025 annual and<br>general meeting of shareholders or thereafter, resulting in a seven-person Board (which, for greater certainty, shall include the Supporting<br>Senior Noteholders Nominees or other director nominees if no Supporting Senior Noteholder Nominees are put forward). The Company shall<br>not increase the size of its Board of Directors to more than seven (7) directors without the consent of the Supporting Senior Noteholders<br>(which consent may be obtained in writing) during the Appointment Period. The Chairman of Cannabist’s Board of Directors shall be<br>subject to approval by a majority of the independent directors serving on Cannabist’s Board of Directors. |
| --- | --- |
| 7.20 | Use of Warrant Proceeds |
| --- | --- |
Upon the receipt of any Net Proceeds by the Issuer from the exercise of a Warrant or Warrants (“Warrant Proceeds”) following the Issue Date, the Issuer shall apply 40% of such Warrant Proceeds to undertake open market purchases of 2028 Notes and/or 2028 Convertible Notes through a registered broker dealer or agent and in accordance with Applicable Securities Legislation. The Issuer shall be entitled to apply the remaining balance of the Warrant Proceeds towards general working capital.
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Article 8SECURITY
| 8.1 | Security |
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As security for the due payment of all principal, interest and any other amounts outstanding under the Notes and performance of all obligations of the Issuer and the Guarantors to each of the Holders, the Collateral Trustee and the Trustee from time to time, under or in respect of each Note, this Indenture, each Supplemental Indenture and each Subsidiary Guarantee, the Issuer shall grant pursuant to the Security Documents, and shall cause each Guarantor to grant pursuant to the Security Documents, in favour of the Collateral Trustee, in its own capacity and as trustee for the Holders and the Trustee:
| (a) | a first-priority security interest in all present and after-acquired personal property of the Issuer and<br>each Guarantor (other than Excluded Property) including a pledge of the Equity Interests owned by the Issuer and each Guarantor; and |
|---|---|
| (b) | a collateral assignment of leases in respect of leasehold property and all of the Issuer’s or such<br>Guarantor’s interests therein to the extent required pursuant to Section 7.8 but subject to the provisions of such Section 7.8. |
| --- | --- |
| 8.2 | Equal and Rateable Security |
| --- | --- |
The First-Priority Lien is for the equal and rateable benefit and security of all Holders and the Trustee, without any preference or priority of any Note over any other Note provided. Neither the Issuer nor any Guarantor shall create or permit to exist over any of its present or future assets, property or revenues, any Lien (other than the First-Priority Lien) as security for the Indebtedness of the Issuer evidenced or secured by any Note, unless the benefit of such Lien is extended equally and rateably to all Holders and the Trustee without any preference or priority of any Note over any other Note.
| 8.3 | Effective Date of Security |
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The First-Priority Lien shall be effective as of the date of this Indenture whether or not the Notes are issued, or any moneys secured by the Notes are advanced, before or after or at the same time as the execution of this Indenture. The attachment of the First-Priority Lien has not been postponed and the First-Priority Lien shall attach to any particular Collateral as soon as the Issuer or the applicable Guarantor has rights in such Collateral.
| 8.4 | Perfection of Security Interest |
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The Issuer shall take, and shall cause each Guarantor to take (on the Issue Date in the case of the Initial Guarantors and within 30 days of becoming a Guarantor in any other case), such action and execute and deliver to the Collateral Trustee (on its own behalf and on behalf of the Trustee and the Holders) the Security Documents and such other agreements, conveyances, deeds and other documents and instruments and make or cause to be made such filings, registrations or recordations as are necessary to perfect and preserve the First-Priority Lien in favour of the Collateral Trustee on behalf of the Trustee and the Holders (so far as may be possible under the local laws of the jurisdictions where the Collateral is situate) upon any of the Collateral to secure the payment of the indebtedness and performance of the obligations intended to be secured by this Indenture and the Supplemental Indentures together with (if so requested by the Collateral Trustee) an Opinion of Counsel with respect to such matters pertaining to the Security Documents and the perfection of the First-Priority Lien as the Collateral Trustee may reasonably request. Notwithstanding anything in the Indenture or Security Documents to the contrary, the Collateral Agent shall have no responsibility for the preparation, filing or recording of any instrument, document or financing statement or for the perfection or maintenance of any security interest created hereunder.
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Article 9DEFAULT AND ENFORCEMENT
| 9.1 | Events of Default |
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Unless otherwise provided in a Supplemental Indenture relating to a particular series of Notes, an “Event of Default” means any one of the following events:
| (a) | default for 30 days in the payment when due of interest on the Notes; |
|---|---|
| (b) | default in payment when due of the principal of, or premium, if any, on the Notes (whether at maturity,<br>upon redemption or upon a required repurchase); |
| --- | --- |
| (c) | failure by Cannabist to comply with its obligations under Section 12.1; |
| --- | --- |
| (d) | failure by the Issuer or any of its Restricted Subsidiaries for 30 days to comply with the provisions<br>of Section 7.14 or Section 7.15 to the extent not described in Section 9.1(b); |
| --- | --- |
| (e) | failure by the Issuer or any of its Restricted Subsidiaries for 60 days (including in connection with<br>a Reporting Failure) after written notice by the Trustee or Holders representing 25% or more of the aggregate principal amount of Notes<br>outstanding to comply with any of the other agreements in this Indenture; |
| --- | --- |
| (f) | default under any mortgage, indenture or instrument under which there may be issued or by which there<br>may be secured or evidenced any Indebtedness for money borrowed by the Issuer or any of its Restricted Subsidiaries (or the payment of<br>which is guaranteed by the Issuer or any of its Restricted Subsidiaries) whether such Indebtedness or guarantee now exists, or is created<br>after the Issue Date, if that default: |
| --- | --- |
| (i) | is caused by a failure to make any payment on such Indebtedness when due and prior to the expiration of<br>the grace period, if any, provided in such Indebtedness (a “Payment Default”); or |
| --- | --- |
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| (ii) | results in the acceleration of such Indebtedness prior to its Stated Maturity, |
|---|
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default which remains outstanding or the maturity of which has been so accelerated for a period of 30 days or more, aggregates $25.0 million or more, provided that if any such Payment Default is cured or waived or any such acceleration is rescinded, as the case may be, such Event of Default under this Indenture and any consequential acceleration of the Notes shall be automatically rescinded, so long as such rescission does not conflict with any judgement or decree;
| (g) | failure by the Issuer or any of its Restricted Subsidiaries to pay final non-appealable judgments (to<br>the extent such judgments are not paid or covered by in-force insurance provided by a reputable carrier that has the ability to perform<br>and has acknowledged coverage in writing) aggregating in excess of $15.0 million, which judgments are not paid, discharged or stayed for<br>a period of 60 days; |
|---|---|
| (h) | except as permitted by this Indenture, any Subsidiary Guarantee is held in any judicial proceeding to<br>be unenforceable or invalid or ceases for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of<br>any such Guarantor, denies or disaffirms its Obligations under its Subsidiary Guarantee; |
| --- | --- |
| (i) | Cannabist or any Restricted Subsidiary, pursuant to or within the meaning of any Bankruptcy Law: |
| --- | --- |
| (i) | commences a voluntary case or proceeding; |
| --- | --- |
| (ii) | applies for or consents to the entry of an order for relief against it in an involuntary case or proceeding; |
| --- | --- |
| (iii) | applies for or consents to the appointment of a custodian of it or for all or substantially all of its<br>assets; or |
| --- | --- |
| (iv) | makes a general assignment for the benefit of its creditors; |
| --- | --- |
| (j) | a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (i) is<br>for relief against Cannabist or any Restricted Subsidiary as debtor in an involuntary case or proceeding; (ii) appoints a custodian<br>of Cannabist or any Restricted Subsidiary or a custodian for all or any substantial part of the assets of Cannabist or any Restricted<br>Subsidiary; or (iii) orders the liquidation of Cannabist or any Restricted Subsidiary, and, in each such case, the order or decree<br>remains unstayed and in effect for 60 consecutive days and, in the case of the insolvency of a Restricted Subsidiary, such Restricted<br>Subsidiary remains a Restricted Subsidiary on such 60th day; |
| --- | --- |
| (k) | if the Noteholder Collateral Platform shall for any reason (other than pursuant to the terms thereof)<br>cease to create a valid and perfected First-Priority Lien on any material portion of the Collateral purported to be covered thereby and<br>the Issuer or the applicable Guarantor does not take all steps reasonably required to provide the Collateral Trustee with a valid and<br>perfected First-Priority Lien against such Collateral within five (5) Business Days of request therefor by the Collateral Trustee. |
| --- | --- |
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For greater certainty, for the purposes of this Section 9.1, an Event of Default shall occur with respect to a series of Notes if such Event of Default relates to a Default in the payment of principal, premium (if any), or interest on such series of Notes, in which case references to “Notes” in this Section 9.1 shall refer to Notes of that particular series.
For the purposes of this Article 9, where the Event of Default refers to an Event of Default with respect to a particular series of Notes as described in this Section 9.1, then this Article 9 shall apply mutatis mutandis to the Notes of such series and references in this Article 9 to the “Notes” shall be deemed to be references to Notes of such particular series, as applicable.
| 9.2 | Acceleration of Maturity; Rescission, Annulment and Waiver |
|---|---|
| (a) | If an Event of Default occurs and is continuing, the Trustee or the Holders of not less than 25% in aggregate<br>principal amount of the outstanding Notes may, and the Trustee at the request of such Holders shall, (i) declare by notice in writing<br>to the Issuer and (if given by the Holders) to the Trustee, the principal of (and premium, if any) and accrued and unpaid interest to<br>the date of acceleration on, all of the outstanding Notes immediately due and payable and, upon any such declaration, all such amounts<br>will become due and payable immediately, and (ii) deliver an Enforcement Request to the Collateral Trustee; provided, however, that<br>if an Event of Default specified in Section 9.1(i) or (j) occurs and is continuing, then subject to applicable law the<br>principal of (and premium, if any) and accrued and unpaid interest on all of the outstanding Notes will thereupon become and be immediately<br>due and payable without any declaration, notice or other action on the part of the Trustee or any Holder. |
| --- | --- |
| (b) | The Issuer shall deliver to the Trustee, within 10 days after the occurrence thereof, notice of any Payment<br>Default or acceleration referred to in Section 9.1(f)(ii). In addition, for the avoidance of doubt, if an Event of Default specified<br>in Section 9.1(b) occurs in relation to a failure by the Issuer to comply with the provisions of Section 7.14, “premium”<br>shall include, without duplication to any other amounts included in “premium” for these purposes, the excess of: |
| --- | --- |
| (i) | the Change of Control Payment that was required to be offered in accordance with Section 7.14, in<br>the event such offer was not made, or, in the event such offer was made, the Change of Control Payment that was required to be paid in<br>accordance with Section 7.14; over |
| --- | --- |
| (ii) | the principal amount of the Notes that were required to be subject to such offer or payment, as applicable. |
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| (c) | At any time after a declaration of acceleration, but before a judgment or decree for payment of the money<br>due has been obtained by the Trustee: |
|---|---|
| (i) | the Holders of a majority in aggregate principal amount of the outstanding Notes, by written notice to<br>the Issuer, the Holders and the Trustee, may rescind and annul such declaration and its consequences if: |
| --- | --- |
| (A) | all existing Events of Default, other than the non-payment of amounts of principal of (and premium, if<br>any) or interest on the Notes that have become due solely by such declaration of acceleration, have been cured or waived; and |
| --- | --- |
| (B) | such rescission would not conflict with any judgment or decree of a court of competent jurisdiction, |
| --- | --- |
provided that if the Event of Default has occurred by reason of the non-observance or non-performance by the Issuer of any covenant applicable only to one or more series of Notes, then the Holders of a majority of the principal amount of the outstanding Notes of that series shall be entitled to exercise the foregoing power of rescission and the Trustee shall so act and it shall not be necessary to obtain a waiver from the Holders of any other series of Notes; and
| (ii) | the Trustee, so long as it has not become bound to declare the principal and interest on the Notes (or<br>any of them) to be due and payable, or to obtain or enforce payment of the same, shall have the power to waive any Event of Default if,<br>in the Trustee’s opinion, the same shall have been cured or adequate satisfaction made therefor, and in such event to rescind and<br>annul such declaration and its consequences, |
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provided that no such rescission shall affect any subsequent Default or impair any right consequent thereon.
| (d) | Notwithstanding Section 9.2(a), in the event of a declaration of acceleration in respect of the Notes<br>because an Event of Default specified in Section 9.1(e) shall have occurred and be continuing, such declaration of acceleration<br>shall be automatically annulled if the Indebtedness that is the subject of such Event of Default has been discharged or the holders thereof<br>have rescinded their declaration of acceleration in respect of such Indebtedness, and written notice of such discharge or rescission,<br>as the case may be, shall have been given to the Trustee by the Issuer and countersigned by the holders of such Indebtedness or a trustee,<br>fiduciary or agent for such holders, within 30 days after such declaration of acceleration in respect of the Notes, and no other Event<br>of Default has occurred during such 30 day period which has not been cured or waived during such period. |
|---|---|
| (e) | The Holders of a majority in aggregate principal amount of the outstanding Notes, by written notice to<br>the Trustee, may on behalf of the Holders of all Notes waive any existing Default or Event of Default and its consequences under this<br>Indenture, except a Default or Event of Default in the payment of interest on, or principal (or premium, if any) of, Notes; provided that<br>if the Default or Event of Default has occurred by reason of the non-observance or non-performance by the Issuer of any covenant applicable<br>only to one or more series of Notes, then the Holders of a majority of the principal amount of the outstanding Notes of such series shall<br>be entitled to waive such Default or Event of Default and it shall not be necessary to obtain a waiver from the Holders of any other series<br>of Notes. |
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| (f) | In addition to any rights the Trustee or Holders may have pursuant to this Article 9, upon the occurrence<br>of an Event of Default that is continuing, the Holders of not less than 25% in aggregate principal amount of the outstanding Notes may,<br>and the Trustee at the request of such Holders shall, have the right to seek the appointment of a receiver to take possession of Collateral<br>and to enforce any of its remedies, with respect to such appointment without prior requirement to obtain a judgment for such appointment. |
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| 9.3 | Collection of Indebtedness and Suits for Enforcement by Trustee |
| --- | --- |
| (a) | The Issuer covenants that if: |
| --- | --- |
| (i) | Default is made in the payment of any instalment of interest on any Note when such interest becomes due<br>and payable and such default continues for a period of 30 days, or |
| --- | --- |
| (ii) | Default is made in the payment of the principal of (or premium, if any on) any Note at the Maturity thereof<br>and such default continues for a period of three Business Days, |
| --- | --- |
the Issuer will, upon demand of the Trustee, pay to the Trustee for the benefit of the Holders, the whole amount then due and payable on such Notes for principal (and premium, if any) and interest, and interest on any overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue instalment of interest, at the rate borne by the Notes, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
| (b) | If the Issuer fails to pay such amounts forthwith upon such demand, the Trustee, in its own name as trustee<br>of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding<br>to judgment or final decree and may enforce the same against the Issuer or any other obligor (including the Guarantors, if any) upon the<br>Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Issuer or any<br>other obligor upon the Notes, wherever situated. |
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| (c) | If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect<br>and enforce its rights and the rights of the Holders by such appropriate judicial proceedings as the Trustee shall deem most effective<br>to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid<br>of the exercise of any power granted herein, or to enforce any other proper remedy. |
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| 9.4 | Trustee May File Proofs of Claim |
|---|---|
| (a) | In case of any pending receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,<br>adjustment, composition or other judicial proceeding relative to the Issuer and its debts or any other obligor upon the Notes (including<br>the Guarantors, if any), and their debts or the property of the Issuer or of such other obligor or their creditors, the Trustee (irrespective<br>of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective<br>of whether the Trustee shall have made any demand on the Issuer for the payment of overdue principal (and premium, if any) or interest)<br>shall be entitled and empowered, by intervention in such proceeding or otherwise: |
| --- | --- |
| (i) | to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and<br>unpaid in respect of the Notes and to file such other papers or documents as may be necessary or advisable in order to have the claims<br>of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and<br>counsel) and of the Holders allowed in such judicial proceeding; and |
| --- | --- |
| (ii) | to collect and receive any moneys or other securities or property payable or deliverable upon the conversion<br>or exchange of such securities or upon any such claims and to distribute the same, |
| --- | --- |
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee hereunder.
| (b) | Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept<br>or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights<br>of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. |
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| 9.5 | Trustee May Enforce Claims Without Possession of Notes |
| --- | --- |
All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the rateable benefit of the Holders of the Notes in respect of which such judgment has been recovered.
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| 9.6 | Application of Monies by Trustee |
|---|---|
| (a) | Except as herein otherwise expressly provided, any money collected by the Trustee pursuant to this Article 9<br>shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account<br>of principal (or premium, if any) or interest, upon presentation of the Notes and the notation thereon of the payment if only partially<br>paid and upon surrender thereof if fully paid: |
| --- | --- |
| (i) | first, in payment or in reimbursement to the Trustee of its reasonable compensation, costs, charges, expenses,<br>borrowings, advances or other monies furnished or provided by or at the instance of the Trustee in or about the execution of its trusts<br>under, or otherwise in relation to, this Indenture, with interest thereon as herein provided; |
| --- | --- |
| (ii) | second, but subject as hereinafter in this Section 9.6 provided, in payment, rateably and proportionately<br>to the Holders, of the principal of and premium (if any) and accrued and unpaid interest and interest on amounts in default on the Notes<br>which shall then be outstanding in the priority of principal first and then premium and then accrued and unpaid interest and interest<br>on amounts in default unless otherwise directed by a resolution of the Holders in accordance with Article 12 and in that case in<br>such order or priority as between principal, premium (if any) and interest as may be directed by such resolution; and |
| --- | --- |
| (iii) | third, in payment of the surplus, if any, of such monies to the Issuer or its assigns and/or the Guarantors,<br>as the case may be; |
| --- | --- |
provided, however, that no payment shall be made pursuant to Section 9.6(a)(ii) above in respect of the principal, premium or interest on any Notes held, directly or indirectly, by or for the benefit of the Issuer or any Subsidiary of the Issuer (other than any Notes pledged for value and in good faith to a Person other than the Issuer or any Subsidiary of the Issuer but only to the extent of such Person’s interest therein), except subject to the prior payment in full of the principal, premium (if any) and interest (if any) on all Notes which are not so held.
| (b) | The Trustee shall not be bound to apply or make any partial or interim payment of any monies coming into<br>its hands if the amount so received by it, after reserving thereout such amount as the Trustee may think necessary to provide for the<br>payments mentioned in Section 9.6(a)(i), is insufficient to make payments in an amount equal to of at least 2% of the aggregate principal<br>amount of the outstanding Notes of each applicable series, but it may retain the money so received by it and invest or deposit the same<br>as provided in Section 13.10 until the money or the investments representing the same, with the income derived therefrom, together<br>with any other monies for the time being under its control shall be sufficient for the said purpose or until it shall consider it advisable<br>to apply the same in the manner hereinbefore set forth. The foregoing shall, however, not apply to a final payment or distribution hereunder. |
|---|
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| 9.7 | No Suits by Holders |
|---|
Except to enforce payment of the principal of, and premium (if any) or interest on any Note (after giving effect to any applicable grace period specified therefor in Section 9.1(a) and 9.1(b)), no Holder shall have any right to institute any action, suit or proceeding at law or in equity with respect to this Indenture or for the appointment of a liquidator, trustee or receiver or for a receiving order under any Bankruptcy Laws or to have the Issuer or any Guarantor wound up or to file or prove a claim in any liquidation or bankruptcy proceeding or for any other remedy hereunder, unless:
| (a) | the Holder has previously given the Trustee written notice of a continuing Event of Default; |
|---|---|
| (b) | the Holder or Holders of at least 25% in aggregate principal amount of outstanding Notes make a written<br>request to the Trustee to pursue the remedy; |
| --- | --- |
| (c) | such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee against any costs, liability<br>or expense; |
| --- | --- |
| (d) | the Trustee does not comply with the request within 60 days after receipt of the request and the offer<br> of indemnity; and |
| --- | --- |
| (e) | during such 60-day period, the Holders of a majority in aggregate principal amount of the outstanding<br>Notes do not give the Trustee a direction that is inconsistent with the request, |
| --- | --- |
it being understood and intended that no one or more Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and rateable benefit of all the Holders.
| 9.8 | Unconditional Right of Holders to Receive Principal, Premium and Interest |
|---|
Notwithstanding any other provision in this Indenture, a Holder shall have the right, which is absolute and unconditional, to receive payment, as provided herein of the principal of (and premium, if any) and interest on the Notes held by such Holder on the applicable Maturity date and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
| 9.9 | Restoration of Rights and Remedies |
|---|
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, the Guarantors (if any), the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
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| 9.10 | Rights and Remedies Cumulative |
|---|
Except as otherwise expressly provided herein, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
| 9.11 | Delay or Omission Not Waiver |
|---|
No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article 9 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
| 9.12 | Control by Holders |
|---|
The Holders of not less than a majority in principal amount of the outstanding Notes shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, provided that:
| (a) | such direction shall not be in conflict with any applicable rule of law or with this Indenture; |
|---|---|
| (b) | the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such<br>direction; |
| --- | --- |
| (c) | nothing herein shall require the Trustee to take any action under this Indenture or any direction from<br>Holders which might in its reasonable judgment involve any expense or any financial or other liability unless the Trustee shall be furnished<br>with indemnification acceptable to it, acting reasonably, including the advance of funds sufficient in the judgment of the Trustee to<br>satisfy such liability, costs and expenses; and |
| --- | --- |
| (d) | the Trustee shall have the right to not take any action which might involve it in personal liability or<br>be unjustly prejudicial to the Holders not consenting. For certainty, no Holder shall have any right of action whatsoever against the<br>Trustee as a result of the Trustee acting or refraining from acting under the terms of this Indenture in accordance with the instructions<br>from the Holders. |
| --- | --- |
| 9.13 | Notice of Event of Default |
| --- | --- |
If an Event of Default shall occur and be continuing the Trustee shall, within 30 days after it receives written notice of the occurrence of such Event of Default, give notice of such Event of Default to the Holders in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act unless such Default shall have been cured or waived before the mailing or publication of such notice, provided that, notwithstanding the foregoing, the Trustee shall not be required to give such notice if the Trustee in good faith shall have determined that the withholding of such notice is in the best interests of the Holders and shall have so advised the Issuer in writing. Notwithstanding the foregoing, notice relating to a Default or Event of Default relating to the payment of principal or interest shall not in any circumstances be withheld.
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| 9.14 | Waiver of Stay or Extension Laws |
|---|
The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
| 9.15 | Undertaking for Costs |
|---|
All parties to this Indenture agree, and each Holder of any Note by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorney’s fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant.
| 9.16 | Judgment Against the Issuer |
|---|
The Issuer covenants and agrees with the Trustee that, in case of any judicial or other proceedings to enforce the rights of the Holders, judgment may be rendered against it in favour of the Holders or in favour of the Trustee, as trustee for the Holders, for any amount which may remain due in respect of the Notes of any series and premium (if any) and the interest thereon and any other monies owing hereunder.
| 9.17 | Immunity of Officers and Others |
|---|
The Holders, the Beneficial Holders and the Trustee hereby waive and release any right, cause of action or remedy now or hereafter existing in any jurisdiction against any past, present or future officer, director, employee, consultant, contractor, incorporator, member, manager, partner or holder of Capital Stock of the Issuer and of any Guarantor or of any successor for the payment of the principal of or premium or interest on any of the Notes or on any covenant, agreement, representation or warranty by the Issuer contained herein or in the Notes. Each Holder and Beneficial Holder, by accepting its interest in Notes, waives and releases all such claims against, and liability of, such Persons. The waiver and release provided for in this Section 9.17 are part of the consideration for issuance of the Notes.
| 9.18 | Notice of Payment by Trustee |
|---|
Not less than 15 days’ notice shall be given in the manner provided in Section 16.2 by the Trustee to the Holders of Notes of any series of any payment to be made under this Article 9. Such notice shall state the time when and place where such payment is to be made and also the liability under this Indenture to which it is to be applied. After the day so fixed, unless payment shall have been duly demanded and have been refused, the Holders of Notes of the affected series will be entitled to interest only on the balance (if any) of the principal monies, premium (if any) and interest due (if any) to them, respectively, on the relevant Notes, after deduction of the respective amounts payable in respect thereof on the day so fixed.
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| 9.19 | Trustee May Demand Production of Notes |
|---|
The Trustee shall have the right to demand production of the Notes of any series in respect of which any payment of principal, interest or premium (if any) required by this Article 9 is made and may cause to be endorsed on the same a memorandum of the amount so paid and the date of payment, but the Trustee may, in its discretion, dispense with such production and endorsement, upon such indemnity being given to it and to the Issuer as the Trustee shall deem sufficient.
| 9.20 | Statement by Officers |
|---|---|
| (a) | The Issuer shall deliver to the Trustee, within 90 days after the end of each fiscal year, a brief certificate<br>from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of compliance<br>by the Issuer and the Restricted Subsidiaries with all conditions and covenants in this Indenture. For purposes of this Section 9.20(a),<br>such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture. |
| --- | --- |
| (b) | Upon becoming aware of any Default or Event of Default, the Issuer shall promptly deliver to the Trustee,<br>with a copy to the Financial Advisor (once appointed) by registered or certified mail or by electronic transmission, an Officers’<br>Certificate, specifying such event, notice or other action giving rise to such Default or Event of Default and the action that the Issuer<br>or Restricted Subsidiary, as applicable, is taking or proposes to take with respect thereto. |
| --- | --- |
Article 10DISCHARGE AND DEFEASANCE
| 10.1 | Satisfaction and Discharge |
|---|
This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder (except as to any surviving rights of registration of transfer or exchange of Notes expressly provided for herein), when
| (a) | either: |
|---|---|
| (i) | all Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced<br>or paid and Notes for whose payment money has been deposited in trust and thereafter repaid to the Issuer, have been delivered to the<br>Trustee for cancellation; or |
| --- | --- |
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| (ii) | all Notes that have not been delivered to the Trustee for cancellation have become due and payable, including<br>by redemption, by reason of the mailing or electronic transmission of a Redemption Notice or otherwise or will become due and payable<br>within one year and the Issuer or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in<br>trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such<br>amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public<br>accountants, without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not delivered<br>to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption; |
|---|---|
| (b) | no Default or Event of Default has occurred and is continuing on the date of the deposit (other than a<br>Default or Event of Default resulting from the borrowing of funds to be applied to such deposit); |
| --- | --- |
| (c) | such deposit will not result in a breach or violation of, or constitute a default under, any material<br>agreement or instrument (other than this Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor<br>is bound; |
| --- | --- |
| (d) | the Issuer or any Guarantor has paid or caused to be paid all sums payable by the Issuer under this Indenture;<br>and |
| --- | --- |
| (e) | the Issuer has delivered irrevocable written instructions to the Trustee under this Indenture to apply<br>the deposited money toward the payment of the Notes at maturity or the Redemption Date, as the case may be. |
| --- | --- |
Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to Section 10.1(a)(ii), the provisions of Sections 10.7 and 10.8 will survive.
| 10.2 | Option to Effect Discharge, Legal Defeasance or Covenant Defeasance |
|---|
Unless this Section 10.2 is otherwise specified in any series of Notes or Supplemental Indenture providing for Notes of a series to be inapplicable to the Notes of such series, the Issuer may, at the option of the Board of Directors of the Issuer evidenced by a resolution set forth in an Officers’ Certificate, at any time, elect to have either Section 10.3 or 10.4 applied to all outstanding Notes upon compliance with the conditions set forth in this Article 10.
| 10.3 | Legal Defeasance and Discharge |
|---|---|
| (a) | Upon the Issuer’s exercise under Section 10.2 of the option applicable to this Section 10.3<br>in respect of the Notes of any series, the Issuer and each of the Guarantors shall, subject to the satisfaction of the conditions set<br>forth in Section 10.5, be deemed to have been discharged from their Obligations under this Indenture, other than the provisions contemplated<br>to survive as set forth below, with respect to all outstanding Notes of such series on the date the conditions set forth below are satisfied<br>(hereinafter, “Legal Defeasance”) in respect of such series. For this purpose, Legal Defeasance means that the Issuer<br>and the Guarantors shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes of such series<br>(including the Guarantees thereof), which shall thereafter be deemed to be “outstanding” only for the purposes of Sections 10.6<br>and 10.8 and the other Sections of this Indenture referred to in paragraphs (i) and (ii) below, and to have satisfied all<br>their other obligations under such Notes and, to the extent applicable to such Notes, this Indenture and the Guarantees (and the Trustee,<br>on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions<br>which shall survive until otherwise terminated or discharged hereunder: |
| --- | --- |
| (i) | the rights of Holders to receive payments in respect of the principal of, premium, if any, and interest<br>on such Notes when such payments are due solely out of the trust created pursuant to this Indenture; |
| --- | --- |
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| (ii) | the Issuer’s obligations concerning issuing temporary Notes, mutilated, destroyed, lost, or stolen<br>Notes and the maintenance of a register in respect of the Notes; |
|---|---|
| (iii) | the rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s obligations in<br>connection therewith; and |
| --- | --- |
| (iv) | provisions of this Section 10.3. |
| --- | --- |
| (b) | Subject to compliance with Section 10.2, the Issuer may exercise its option under this Section 10.3<br>notwithstanding the prior exercise of its option under Section 10.4. |
| --- | --- |
| 10.4 | Covenant Defeasance |
| --- | --- |
Unless this Section 10.4 is otherwise specified in any Note or Supplemental Indenture providing for Notes of a series to be inapplicable to the Notes of such series, upon the Issuer’s exercise under Section 10.2 of the option applicable to this Section 10.4, the Issuer and each of the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 10.5, be released from each of their obligations under the covenants contained in Sections 7.2 (other than with respect to the Issuer), 7.3, 7.4 7.5, 7.7, 7.8, 7.9 ,7.10, 7.11, 7.12, 7.13, 7.14, 7.15, 9.20, 12.1(a)(ii)(C) and 15.1 (collectively, the “Defeased Covenants”) with respect to the outstanding Notes of any series on and after the date the conditions set forth in Section 10.5 are satisfied (hereinafter, “Covenant Defeasance”), and such Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders thereof (and the consequences of any thereof) in connection with the Defeased Covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes of the applicable series, the Issuer and the Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any Defeased Covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default hereunder, but, except as specified above, the remainder of this Indenture, such Notes and the obligations of the Guarantors under their respective Guarantees shall be unaffected thereby. In addition, upon the Issuer’s exercise under Section 10.2 of the option applicable to this Section 10.4, and subject to the satisfaction of the conditions set forth in Section 10.5, none of the events specified in Section 9.1 shall constitute a Default or Event of Default except for the events specified in Sections 9.1(i) or 9.1(j).
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| 10.5 | Conditions to Legal or Covenant Defeasance |
|---|---|
| (a) | In order to exercise either Legal Defeasance under Section 10.3 or Covenant Defeasance under Section 10.4<br>with respect to a series of Notes: |
| --- | --- |
| (i) | the Issuer must deposit or cause to be deposited with the Trustee as trust funds or property in trust<br>for the purpose of making payment on such Notes an amount of cash or Government Securities as will, together with the income to accrue<br>thereon and reinvestment thereof, be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of<br>independent public accountants, to pay, satisfy and discharge the entire principal, interest, if any, premium, if any and any other sums<br>due to the Stated Maturity or an optional Redemption Date of the Notes; |
| --- | --- |
| (ii) | no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other<br>than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and the granting of Liens to secure<br>such borrowing); |
| --- | --- |
| (iii) | the Issuer must deliver to the Trustee an Officers’ Certificate stating that the deposit was not<br>made by the Issuer with the intent of preferring the Holders over its other creditors or with the intent of defeating, hindering, delaying,<br>or defrauding any of its other creditors or others; |
| --- | --- |
| (iv) | the Issuer must deliver to the Trustee: an Opinion of Counsel or an advance tax ruling from<br>the Canada Revenue Agency (or successor agency) to the effect that the Holders and Beneficial Holders of outstanding Notes<br> will not recognize income, gain, or loss for Canadian federal, provincial or territorial income or other tax purposes as<br>a result of such Legal Defeasance or Covenant Defeasance, as the case may be, and will be subject to Canadian Taxes on<br>the same amounts, in the same manner, and at the same times as would have been the case if such Legal Defeasance or Covenant<br>Defeasance, as the case may be, had not occurred; |
| --- | --- |
| (v) | the Issuer must satisfy the Trustee that it has paid, caused to be paid or made provisions for the payment<br>of all applicable expenses of the Trustee; |
| --- | --- |
| (vi) | the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute<br> a Default under, any material agreement or instrument (other than the Indenture) to which the Issuer or any of its Subsidiaries<br>is a party or by which the Issuer or any of its Subsidiaries is bound; and |
| --- | --- |
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| (vii) | the Issuer must deliver to the Trustee an Officers’ Certificate stating that all conditions precedent<br>set forth in Section 10.1 relating to the Legal Defeasance or Covenant Defeasance, as the case may be, have been complied with. |
|---|---|
| 10.6 | Application of Trust Funds |
| --- | --- |
| (a) | Any funds or Government Securities deposited with the Trustee pursuant to Section 10.1 or 10.5 shall<br>be (i) denominated in the currency or denomination of the Notes in respect of which such deposit is made, (ii) irrevocable (except<br>as otherwise set out in this Indenture), and (iii) made under the terms of an escrow and/or trust agreement in form and substance<br>satisfactory to the Trustee and which provides for the due and punctual payment of the principal of, premium, if any, and interest on<br>the Notes being satisfied. |
| --- | --- |
| (b) | Subject to Section 10.7, any funds or Government Securities deposited with the Trustee pursuant to<br>Section 10.1 or 10.5 in respect of Notes shall be held by the Trustee in trust and applied by it in accordance with the provisions<br>of the applicable Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine,<br>to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such funds or Government Securities<br>has been deposited with the Trustee; provided that such funds or Government Securities need not be segregated from other funds or obligations<br>except to the extent required by law. |
| --- | --- |
| (c) | If the Trustee is unable to apply any funds or Government Securities in accordance with the above provisions<br>by reason of any legal proceeding or any order or judgment of any court or governmental authority enjoining, restraining or otherwise<br>prohibiting such application, the Issuer’s and the Guarantors’ obligations under this Indenture (including the Guarantees<br>as applicable) and the affected Notes shall be revived and reinstated as though no funds or Government Securities had been deposited pursuant<br>to Sections 10.1 and 10.5, as applicable, until such time as the Trustee is permitted to apply all funds or Government Securities<br>in accordance with the above provisions, provided that if the Issuer or any Guarantor has made any payment in respect of principal of,<br>premium, if any, or interest on Notes or, as applicable, other amounts because of the reinstatement of its obligations, the Issuer and<br>such Guarantor, as applicable, shall be subrogated to the rights of the Holders of such Notes to receive such payment from funds or Government<br>Securities held by the Trustee. |
| --- | --- |
| 10.7 | Repayment to the Issuer |
| --- | --- |
Notwithstanding anything in this Article 10 to the contrary, the Trustee will deliver or pay to the Issuer from time to time upon the request of the Issuer any funds or Government Securities held by it as provided in Section 10.1 or 10.5 which, in the opinion of a nationally recognized firm of independent public accountants selected by the Issuer expressed in a written certification thereof, delivered to the Trustee (which may be the opinion delivered under Section 10.5(a)(iv)), are in excess of the amount thereof that would then be required to be deposited to fully satisfy the obligations of the Issuer under Section 10.1(a)(ii) or to effect an equivalent Legal Defeasance or Covenant Defeasance.
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| 10.8 | Continuance of Rights, Duties and Obligations |
|---|---|
| (a) | Where trust funds or trust property have been deposited pursuant to Section 10.1 or 10.5, the Holders<br>and the Issuer shall continue to have and be subject to their respective rights, duties and obligations under Article 2, Article 4<br>and Article 6. |
| --- | --- |
| (b) | In the event that, after the deposit of trust funds or trust property pursuant to Section 10.1 or<br>10.5 in respect of a particular series of Notes, the Issuer is required to make an offer to purchase any outstanding Notes of such series<br>pursuant to the terms hereof, the Issuer shall be entitled to use any trust funds or trust property deposited with the Trustee pursuant<br>to Section 10.1 or 10.5 for the purpose of paying to any Holders of such Notes who have accepted any such offer of the total offer<br>price payable in respect of an offer relating to any such Notes. Upon receipt of an Issuer Order, the Trustee shall be entitled to pay<br>to such Holder from such trust funds or trust property deposited with the Trustee pursuant to Section 10.1 or 10.5 in respect of<br>such Notes which is applicable to the Notes held by such Holders who have accepted any such offer of the Issuer (which amount shall be<br>based on the applicable principal amount of the Notes held by accepting offerees in relation to the aggregate outstanding principal amount<br>of all the Notes). |
| --- | --- |
| 10.9 | Release of Liens |
| --- | --- |
| (a) | The Liens on the Collateral will be released in whole with respect to the Notes (including Pledged Notes)<br>and the Security Documents, as applicable, upon the occurrence of any of the following: |
| --- | --- |
| (i) | payment in full in cash of the principal of, accrued and unpaid interest and premium (if any) on,<br>the Notes; |
| --- | --- |
| (ii) | satisfaction and discharge of the Indenture; or |
| --- | --- |
| (iii) | Legal Defeasance or Covenant Defeasance as set forth under Sections 10.3 or 10.4, |
| --- | --- |
provided that in each case, all amounts owing to the Trustee under the Indenture and the Notes and to the Collateral Trustee under the Security Documents have been paid or otherwise provided for to the reasonable satisfaction of the Trustee and the Collateral Trustee, as applicable. For greater certainty, the Liens on the Collateral shall promptly cease to be for the benefit and security of such Holders with respect to a particular series of Notes or in respect of indebtedness secured by Pledged Notes and the applicable Security Documents upon the payment in full in cash of the principal of, accrued and unpaid interest and premium (if any) on such series of Notes or indebtedness secured by Pledged Notes, as applicable, but such release shall not release or otherwise affect the Liens in favour of Holders of Notes that remain outstanding under the Indenture or any Supplemental Indenture upon the event of such repayment(s).
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| (b) | The Liens on the Collateral will automatically be released with respect to any asset constituting<br>Collateral upon the occurrence of any of the following: |
|---|---|
| (i) | in connection with any disposition of such Collateral to any Person other than the Issuer (but excluding<br>any transaction subject to the covenant described under Section 12.1 if such other Person is required to become the obligor<br> on the Notes) that is permitted by this Indenture; or |
| --- | --- |
| (ii) | upon the sale or disposition of such Collateral pursuant to the exercise of any rights and remedies<br>by the Collateral Trustee with respect to any Collateral, subject to the Security Documents. |
| --- | --- |
| (c) | The release of any Collateral from the terms of this Indenture and any of the Security Documents will<br>not be deemed to impair the security under this Indenture in contravention of the provisions hereof if and to the extent the Collateral<br>is released pursuant to the terms hereof or of any of the Security Documents. |
| --- | --- |
| (d) | To the extent applicable, the Issuer shall cause Section 314(d) of the Trust Indenture Act,<br>relating to the release of property or securities from the Lien and security interest of the Security Documents and relating to the substitution<br>therefor of any property or securities to be subjected to the Lien and security interest of the Security Documents, to be complied with.<br>Any certificate or opinion required by Section 314(d) of the Trust Indenture Act may be made by an officer of the Issuer except<br>in cases where Section 314(d) of the Trust Indenture Act requires that such certificate or opinion be made by an independent<br>Person, which Person shall be an independent engineer, appraiser or other expert selected by the Issuer in a manner consistent with the<br>requirements of the Trust Indenture Act. |
| --- | --- |
Notwithstanding anything to the contrary herein, the Issuer and the Guarantors will not be required to comply with all or any portion of Section 314(d) of the Trust Indenture Act if they determines, in good faith based on advice of counsel, that under the terms of Section 314(d) of the Trust Indenture Act and/or any interpretation or guidance as to the meaning thereof of the SEC and its staff, including “no action” letters or exemptive orders (in each case, whether issued to Issuer or any other Person), all or any portion of Section 314(d) of the Trust Indenture Act is inapplicable to the released Collateral.
Without limiting the generality of the foregoing, certain no-action letters issued by the SEC have permitted an indenture qualified under the Trust Indenture Act to contain provisions permitting the release of collateral from Liens under such indenture in the ordinary course of an issuer’s business without requiring the issuer to provide certificates and other documents under Section 314(d) of the Trust Indenture Act. In addition, under interpretations provided by the SEC, to the extent that a release of a Lien is made without the need for consent by the Holders of the Notes or the Trustee, the provisions of Section 314(d) of the Trust Indenture Act may be inapplicable to the release.
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In addition, the Issuer shall not be required to comply with Section 314(d) of the Trust Indenture Act with respect to any of the following:
| (i) | cash payments (including for the scheduled repayment of Indebtedness) in the ordinary course of business<br>or consistent with past practice; |
|---|---|
| (ii) | sales or other dispositions of inventory in the ordinary course of business or consistent with past practice; |
| --- | --- |
| (iii) | collections, sales or other dispositions of accounts receivable in the ordinary course of business or<br>consistent with past practice; and |
| --- | --- |
| (iv) | sales or other dispositions in the ordinary course of business or consistent with past practice of any<br>property the use of which is no longer necessary or desirable in, and is not material to, the conduct of the business of the Issuer and<br>its Subsidiaries. |
| --- | --- |
Article 11MEETINGS OF HOLDERS
| 11.1 | Purpose, Effect and Convention of Meetings |
|---|---|
| (a) | Subject to Sections 14.1 and 14.2, wherever in this Indenture a consent, waiver, notice, authorization<br>or resolution of the Holders (or any of them) is required, a meeting may be convened in accordance with this Article 11 to consider<br>and resolve whether such consent, waiver, notice, authorization or resolution should be approved by such Holders. A resolution passed<br>by the affirmative votes of the Holders of at least a majority of the outstanding principal amount of the Notes represented and voting<br>on a poll at a meeting of Holders duly convened for the purpose and held in accordance with the provisions of this Indenture shall constitute<br>conclusively such consent, waiver, notice, authorization or resolution; except for those matters set out in Sections 14.1 and 14.2 |
| --- | --- |
| (b) | At any time and from time to time, the Trustee on behalf of the Issuer may and, on receipt of an Issuer<br>Order or a Holders’ Request and upon being indemnified and funded for the costs thereof to the reasonable satisfaction of the Trustee<br>by the Issuer or the Holders signing such Holders’ Request, will, convene a meeting of Holders. |
| --- | --- |
| (c) | If the Trustee fails to convene a meeting [within 7 Business Days] after being duly requested as aforesaid<br>(and indemnified and funded as aforesaid), the Issuer or such Holders may themselves convene such meeting and the notice calling such<br>meeting may be signed by such Person as the Issuer or those Holders designate, as applicable. Every such meeting will be held in Vancouver,<br>British Columbia or such other place as the Trustee may determine or approve. |
| --- | --- |
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| 11.2 | Notice of Meetings |
|---|---|
| (a) | Not more than 60 days’ nor less than at least 21 days’ notice of any meeting of the Holders<br>of Notes of any series or of all series then outstanding, as the case may be, shall be given to the Holders of Notes of such series or<br>of all series of Notes then outstanding, as applicable, in the manner provided in Section 16.2 and a copy of such notice shall be<br>sent by post to the Trustee, unless the meeting has been called by it, and to the Issuer, unless such meeting has been called by it. Such<br>notice shall state the time when and the place where the meeting is to be held and shall state briefly the general nature of the business<br>to be transacted thereat and it shall not be necessary for any such notice to set out the terms of any resolution to be proposed or any<br>of the provisions of this Article 11. The accidental omission to give notice of a meeting to any Holder shall not invalidate any<br>resolution passed at any such meeting. A Holder may waive notice of a meeting either before or after the meeting. |
| --- | --- |
| (b) | If the business to be transacted at any meeting by resolution of Holders, or any action to be taken or<br>power exercised by instrument in writing under Section 11.12, especially affects the rights of Holders of Notes of one or more series<br>in a manner or to an extent differing in any material way from that in or to which the rights of Holders of Notes of any other series<br>are affected (determined as provided in Sections 11.2(c) and 11.2(d), then: |
| --- | --- |
| (i) | a reference to such fact, indicating each series of Notes in the opinion of the Trustee (or the Person<br>calling the meeting) so especially affected (hereinafter referred to as the “especially affected series”) shall be made in<br>the notice of such meeting, and in any such case the meeting shall be and be deemed to be and is herein referred to as a “Serial<br>Meeting”; and |
| --- | --- |
| (ii) | the Holders of Notes of an especially affected series shall not be bound by any action taken at a Serial<br>Meeting or by instrument in writing under Section 11.12 unless in addition to compliance with the other applicable provisions of<br>this Article 11: |
| --- | --- |
| (A) | at such Serial Meeting: (I) there are Holders present in person or by proxy and representing at least<br>25% in principal amount of the Notes then outstanding of such series, subject to the provisions of this Article 11 as to quorum at<br>adjourned meetings; and (II) the resolution is passed by such proportion of Holders of the principal amount of the Notes of such<br>series then outstanding voted on the resolution as is required by Sections 14.1 or 14.2, as applicable; or |
| --- | --- |
| (B) | in the case of action taken or power exercised by instrument in writing under Section 11.12, such<br>instrument is signed in one or more counterparts by such proportion of Holders of the principal amount of the Notes of such series then<br>outstanding as is required by Sections 14.1 or 14.2, as applicable. |
| --- | --- |
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| (c) | Subject to Section 11.2(d), the determination as to whether any business to be transacted at a meeting<br>of Holders, or any action to be taken or power to be exercised by instrument in writing under Section 11.12, especially affects the<br>rights of the Holders of one or more series in a manner or to an extent differing in any material way from that in or to which it affects<br>the rights of Holders of any other series (and is therefore an especially affected series) shall be determined by an Opinion of Counsel,<br>which shall be binding on all Holders, the Trustee and the Issuer for all purposes hereof. |
|---|---|
| (d) | A proposal: |
| --- | --- |
| (i) | to extend the Maturity of Notes of any particular series or to reduce the principal amount thereof, the<br>rate of interest or premium thereon; |
| --- | --- |
| (ii) | to modify or terminate any covenant or agreement which by its terms is effective only so long as Notes<br>of a particular series are outstanding; or |
| --- | --- |
| (iii) | to reduce with respect to Holders of any particular series any percentage stated in this Section 11.2<br>or Sections 11.4 and 11.12; |
| --- | --- |
shall be deemed to especially affect the rights of the Holders of such series in a manner differing in a material way from that in which it affects the rights of Holders of Notes of any other series, whether or not a similar extension, reduction, modification or termination is proposed with respect to Notes of any or all other series.
| 11.3 | Chair |
|---|
Some individual, who need not be a Holder, nominated in writing by the Trustee shall be chair of the meeting and if no individual is so nominated, or if the individual so nominated is not present within 15 minutes from the time fixed for the holding of the meeting, a majority of the Holders present in person or by proxy shall choose some individual present to be chair.
| 11.4 | Quorum |
|---|
Subject to this Indenture, at any meeting of the Holders of Notes of any series or of all series then outstanding, as the case may be, a quorum shall consist of Holders present in person or by proxy and representing at least 25% of the principal amount of the outstanding Notes of the relevant series or all series then outstanding, as the case may be, and, if the meeting is a Serial Meeting, at least 25% of the Notes then outstanding of each especially affected series. If a quorum of the Holders shall not be present within 30 minutes from the time fixed for holding any meeting, the meeting, if convened by the Holders or pursuant to a Holders’ Request, shall be dissolved, but in any other case the meeting shall be adjourned to the same day in the next week (unless such day is not a Business Day in which case it shall be adjourned to the next following Business Day thereafter) at the same time and place and no notice shall be required to be given in respect of such adjourned meeting. At the adjourned meeting, the Holders present in person or by proxy shall constitute a quorum and may transact the business for which the meeting was originally convened notwithstanding that they may not represent 25% of the principal amount of the outstanding Notes of the relevant series or all series then outstanding, as the case may be, or of the Notes then outstanding of each especially affected series. Any business may be brought before or dealt with at an adjourned meeting which might have been brought before or dealt with at the original meeting in accordance with the notice calling the same. No business shall be transacted at any meeting unless the required quorum be present at the commencement of business.
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| 11.5 | Power to Adjourn |
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The chair of any meeting may adjourn any such meeting and no notice of such adjournment need be given except such notice, if any, as the meeting may prescribe.
| 11.6 | Voting |
|---|
On a poll each Holder present in person or represented by a duly appointed proxy shall be entitled to one vote in respect of each $1.00 principal amount of the Notes of the relevant series of Notes of which it is the Holder. A proxyholder need not be a Holder. In the case of joint registered Holders of a Note, any one of them present in person or by proxy at the meeting may vote in the absence of the other or others; but in case more than one of them be present in person or by proxy, they shall vote together in respect of the Notes of which they are joint Holders.
| 11.7 | Poll |
|---|
A poll will be taken on every resolution submitted for approval at a meeting of Holders, in such manner as the chair directs, and the results of such polls shall be binding on all Holders of the relevant series. Every resolution, other than in respect of those matters set out in Section 14.2, will be decided by a majority of the votes cast on the poll for that resolution.
| 11.8 | Proxies |
|---|
A Holder may be present and vote at any meeting of Holders by an authorized representative. The Issuer (in case it convenes the meeting) or the Trustee (in any other case) for the purpose of enabling the Holders to be present and vote at any meeting without producing their Notes, and of enabling them to be present and vote at any such meeting by proxy and of depositing instruments appointing such proxies at some place other than the place where the meeting is to be held, may from time to time make and vary such regulations as it shall think fit providing for and governing any or all of the following matters:
| (a) | the form of the instrument appointing a proxy, which shall be in writing, and the manner in which the<br>same shall be executed and the production of the authority of any individual signing on behalf of a Holder; |
|---|---|
| (b) | the deposit of instruments appointing proxies at such place as the Trustee, the Issuer or the Holder convening<br>the meeting, as the case may be, may, in the notice convening the meeting, direct and the time, if any, before the holding of the meeting<br>or any adjournment thereof by which the same must be deposited; and |
| --- | --- |
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| (c) | the deposit of instruments appointing proxies at some approved place or places other than the place at<br>which the meeting is to be held and enabling particulars of such instruments appointing proxies to be mailed, faxed, cabled, telegraphed<br>or sent by other electronic means before the meeting to the Issuer or to the Trustee at the place where the same is to be held and for<br>the voting of proxies so deposited as though the instruments themselves were produced at the meeting. |
|---|
Any regulations so made shall be binding and effective and the votes given in accordance therewith shall be valid and shall be counted. Save as such regulations may provide, the only Persons who shall be recognized at any meeting as the Holders of any Notes, or as entitled to vote or be present at the meeting in respect thereof, shall be Holders and Persons whom Holders have by instrument in writing duly appointed as their proxies.
| 11.9 | Persons Entitled to Attend Meetings |
|---|
The Issuer and the Trustee, by their respective directors, officers and employees and the respective legal advisors of the Issuer, the Trustee or any Holder may attend any meeting of the Holders, but shall have no vote as such.
| 11.10 | Powers Cumulative |
|---|
Any one or more of the powers in this Indenture stated to be exercisable by the Holders by resolution or otherwise may be exercised from time to time and the exercise of any one or more of such powers from time to time shall not be deemed to exhaust the rights of the Holders to exercise the same or any other such power or powers thereafter from time to time. No powers exercisable by resolution will derogate in any way from the rights of the Issuer pursuant to this Indenture.
| 11.11 | Minutes |
|---|
Minutes of all resolutions and proceedings at every meeting as aforesaid shall be made and duly entered in books to be from time to time provided for that purpose by the Trustee at the expense of the Issuer, and any such minutes as aforesaid, if signed by the chair of the meeting at which such resolutions were passed or proceedings had, or by the chair of the next succeeding meeting of the Holders, shall be prima facie evidence of the matters therein stated and, until the contrary is proved, every such meeting, in respect of the proceedings of which minutes shall have been made, shall be deemed to have been duly held and convened, and all resolutions passed thereat or proceedings taken thereat to have been duly passed and taken.
| 11.12 | Instruments in Writing |
|---|
Subject to Sections 14.1 and 14.2, any consent, waiver, notice, authorization or resolution of the Holders which may be given by resolution at a meeting of the Holders pursuant to this Article 11 may also be given by the Holders of not less than 51% of the aggregate principal amount of the outstanding Notes of such series by a signed instrument in one or more counterparts, and the expression “resolution” when used in this Indenture will include instruments so signed. Notice of any resolution passed in accordance with this Section 11.12 will be given by the Trustee to the affected Holders within 30 days of the date on which such resolution was passed.
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| 11.13 | Binding Effect of Resolutions |
|---|
Every resolution passed in accordance with the provisions of this Article 11 at a meeting of Holders of a particular series of Notes or of all series then outstanding, as the case may be, shall be binding upon all the Holders of Notes or of the particular series, as the case may be, whether present at or absent from such meeting, and every instrument in writing signed by Holders in accordance with Section 11.12 shall be binding upon all the Holders, whether signatories thereto or not, and each and every Holder and the Trustee (subject to the provisions for its indemnity herein contained) shall, subject to applicable law, be bound to give effect accordingly to every such resolution and instrument in writing. Notwithstanding anything in this Indenture (but subject to the provisions of any indenture, deed or instrument supplemental or ancillary hereto), any covenant or other provision in this Indenture or in any Supplemental Indenture which is expressed to be or is determined by the Trustee (relying on the advice of Counsel) to be effective only with respect to Notes of a particular series, may be modified by the required resolution or consent of the Holders of Notes of such series in the same manner as if the Notes of such series were the only Notes outstanding under this Indenture.
| 11.14 | Evidence of Rights of Holders |
|---|---|
| (a) | Any request, direction, notice, consent or other instrument which this Indenture may require or permit<br>to be signed or executed by the Holders may be in any number of concurrent instruments of similar tenor signed or executed by such Holders.<br>Proof of the execution of any such request, direction, notice, consent or other instrument or of a writing appointing any such attorney<br>will be sufficient for any purpose of this Indenture if the fact and date of the execution by any Person of such request, direction, notice,<br>consent or other instrument or writing may be proved by the certificate of any notary public, or other officer authorized to take acknowledgements<br>of deeds to be recorded at the place where such certificate is made, that the Person signing such request, direction, notice, consent<br>or other instrument or writing acknowledged to such notary public or other officer the execution thereof, or by an affidavit of a witness<br>of such execution or in any other manner which the Trustee may consider adequate. |
| --- | --- |
| (b) | Notwithstanding Section 11.14(a), the Trustee may, in its discretion, require proof of execution<br>in cases where it deems proof desirable and may accept such proof as it shall consider proper. |
| --- | --- |
Article 12SUCCESSORS TO THE ISSUER AND THE RESTRICTED SUBSIDIARIES
| 12.1 | Merger, Consolidation or Sale of Assets |
|---|---|
| (a) | The Issuer will not, directly or indirectly: |
| --- | --- |
| (i) | consolidate, amalgamate or merge with or into another Person (regardless of whether the Issuer is the<br>surviving Person or one of the Persons that amalgamates with one or more other Persons to form the continuing successor Person); or |
| --- | --- |
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| (ii) | sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of the properties<br>and assets of the Issuer and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, |
|---|
unless:
| (A) | either: (1) the Issuer is the surviving Person (or one of the Persons that amalgamates with one or<br>more other Persons to form the continuing successor Person); or (2) the Person formed by or surviving any such consolidation, amalgamation<br>or merger (if other than the Issuer or one of the Persons that amalgamates with one or more other Persons to form the continuing successor<br>Person) or to which such sale, assignment, transfer, conveyance or other disposition will have been made is a: (i) Person organized<br>or existing under the laws of the United States, any state thereof or the District of Columbia or Canada or any province or territory<br>thereof; and (ii) assumes all the Obligations of the Issuer under the Notes, and this Indenture by operation of law or pursuant<br>to agreements reasonably satisfactory to the Trustee; |
|---|---|
| (B) | immediately after giving effect to such transaction, no Default or Event of Default exists; |
| --- | --- |
| (C) | immediately after giving effect to such transaction on a pro forma basis and any related financing transactions<br>as if the same had occurred at the beginning of the applicable four quarter period, (1) the Issuer or the Person formed by or surviving<br>any such consolidation, amalgamation or merger (if other than the Issuer or one of the Persons that amalgamates with one or more other<br>Persons to form the continuing successor Person), or to which such sale, assignment, transfer, conveyance or other disposition will have<br>been made, would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio<br>test set forth in Section 7.10(a); or (2) the Consolidated Fixed Charge Coverage Ratio of the Issuer or the Person formed by<br>or surviving any such consolidation, amalgamation or merger (if other than the Issuer or one of the Persons that amalgamates with one<br>or more other Persons to form the continuing successor Person) or to which such sale, assignment, transfer, conveyance or other disposition<br>will have been made, is equal to or greater than the Consolidated Fixed Charge Coverage Ratio immediately before such transaction; and |
| --- | --- |
| (D) | each Guarantor, will, pursuant to the terms of its Subsidiary Guarantee agree, that its Subsidiary Guarantee<br>will apply to the Obligations of the Issuer or the surviving or continuing Person in accordance with the Notes and this Indenture (including<br>this covenant). |
| --- | --- |
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| (b) | Upon any consolidation, amalgamation or merger, or any sale, assignment, transfer, conveyance or other<br>disposition of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries in accordance with this<br>covenant, the continuing successor Person formed by the consolidation or amalgamation or into which the Issuer is merged or to which the<br>sale, assignment, transfer, conveyance or other disposition is made, will succeed to and be substituted for the Issuer, and may exercise<br>every right and power of the Issuer under this Indenture with the same effect as if the successor had been named as the Issuer therein.<br>When the continuing successor Person assumes all of the Issuer’s Obligations under this Indenture pursuant to a Supplemental Indenture<br>in form and substance reasonably satisfactory to the Trustee, the Issuer will be discharged from those Obligations; provided, however,<br>that the Issuer shall not be relieved from the Obligation to pay the principal of and interest on the Notes in the case of a lease of<br>all or substantially all of the Issuer’s assets. |
|---|---|
| (c) | This Section 12.1 will not apply to: |
| --- | --- |
| (i) | a merger of the Issuer with an Affiliate solely for the purpose of (1) reincorporating or continuing<br>the Issuer in another jurisdiction or (2) reorganizing the Issuer as a different type of entity; |
| --- | --- |
| (ii) | a merger, arrangement, amalgamation, continuance, consolidation or re-organization that results in the<br>Issuer reincorporating, continuing or re-domiciling into a jurisdiction within (1) the United States (including any state thereof<br>or the District of Columbia) or (2) Canada (including any province or territory thereof); or |
| --- | --- |
| (iii) | any consolidation, amalgamation or merger, or any sale, assignment, transfer, conveyance, lease or other<br>disposition of assets between or among the Issuer, Co-Issuer and/or its Restricted Subsidiaries. |
| --- | --- |
| 12.2 | Vesting of Powers in Successor |
| --- | --- |
Whenever the conditions of Section 12.1(a) have been duly observed and performed, the Trustee will execute and deliver a Supplemental Indenture as provided for in Section 14.5 and then:
| (a) | the successor Person will possess and from time to time may exercise each and every right and power of<br>the Issuer or Guarantor under this Indenture in the name of the Issuer or Guarantor, as applicable, or otherwise, and any act or proceeding<br>by any provision of this Indenture required to be done or performed by any directors or officers of the Issuer or Guarantor may be done<br>and performed with like force and effect by the like directors or officers of such successor; and |
|---|---|
| (b) | the Issuer or Guarantor, as applicable, will be released and discharged from liability under this Indenture<br>and the Trustee will execute any documents which it may be advised are necessary or advisable for effecting or evidencing such release<br>and discharge. |
| --- | --- |
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Article 13CONCERNING THE TRUSTEE
| 13.1 | Corporate Trustee Required; Eligibility |
|---|
There shall at all times be a corporate Trustee hereunder which shall at all times be a corporation and doing business under the laws of the United States or any state or territory thereof or of the District of Columbia, or a corporation or other Person permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers, which complies with the requirements of Section 310(a) of the Trust Indenture Act, has a combined capital and surplus as may be required by the Trust Indenture Act, and is subject to supervision or examination by federal, state, territorial, or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 13.1, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Issuer may not, nor may any Affiliate of the Issuer, serve as Trustee. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 13.1, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
| 13.2 | No Conflict of Interest |
|---|---|
| (a) | The Trustee represents to the Issuer that at the date of execution and delivery by it of this Indenture<br>there exists no material conflict of interest in the role of the Trustee as a fiduciary hereunder but if, notwithstanding the provisions<br>of this Section 13.1, such a material conflict of interest exists, or hereafter arises, the validity and enforceability of this Indenture<br>and the Notes of any series shall not be affected in any manner whatsoever by reason only that such material conflict of interest exists<br>or arises. |
| --- | --- |
| (b) | To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting<br>interest by virtue of being a trustee under this Indenture with respect to securities of more than one series |
| --- | --- |
| 13.3 | Replacement of Trustee or Collateral Trustee |
| --- | --- |
| (a) | The Trustee for the Notes issued hereunder shall be subject to the provisions of Section 310(b) of<br>the Trust Indenture Act during the period of time provided for therein. If at any time the Trustee has or shall acquire a conflict of<br>interest within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall, within 30 days after ascertaining<br>that such conflict of interest exists, either eliminate such material conflict of interest or resign in the manner, subject to the provisions<br>of the Trust Indenture Act, and with the effect specified in this Section 13.3 and shall in all respects comply with the provisions<br>of Section 310(b) of the Trust Indenture Act. The Trustee may resign its trust and be discharged from all further duties and<br>liabilities hereunder by giving to the Issuer 90 days’ notice in writing or such shorter notice as the Issuer may accept as sufficient.<br>The validity and enforceability of this Indenture and of the Notes issued hereunder shall not be affected in any manner whatsoever by<br>reason only that such a conflict of interest exists. Nothing herein shall prevent the Trustee from filing with the Commission the application<br>referred to in the second to last paragraph of Section 310(b) of the Trust Indenture Act. |
| --- | --- |
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| (b) | No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article 13<br>shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of<br>this Section 13.3. |
|---|---|
| (c) | The Trustee may resign at any time with respect to the Notes of one or more series by giving written notice<br>thereof to the Issuer. In the event of the Trustee resigning or being removed or being dissolved, becoming bankrupt, going into liquidation<br>or otherwise becoming incapable of acting hereunder, the Issuer shall forthwith appoint a new Trustee unless a new Trustee has already<br>been appointed by the Holders in accordance with the provisions hereof. Failing such appointment by the Issuer or if the instrument of<br>acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation,<br>the retiring Trustee or any Holder may apply to a judge of the British Columbia Supreme Court, on such notice as such Judge may direct<br>at the Issuer’s expense, for the appointment of a new Trustee but any new Trustee so appointed by the Issuer or by the Court shall<br>be subject to removal as aforesaid by the Holders. The appointment of such new Trustee shall be effective only upon such new Trustee becoming<br>bound by this Indenture. Any new Trustee appointed under any provision of this Section 13.3 shall be a corporation authorized to<br>carry on the business of a trust company in one or more of the Provinces of Canada. On any new appointment the new Trustee shall be vested<br>with the same powers, rights, duties and responsibilities as if it had been originally named herein as Trustee. |
| --- | --- |
| (d) | The Trustee may be removed at any time with respect to the Notes of any series by act of the Holders of<br>a majority in principal amount of the outstanding Notes of such series, upon written notice delivered to the Trustee and to the Issuer.<br>If the instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of<br>such notice of removal, the Trustee being removed may petition the British Columbia Supreme Court at the Issuer’s expense for the<br>appointment of a successor Trustee with respect to the Notes of such series. |
| --- | --- |
| (e) | If at any time: |
| --- | --- |
| (i) | the Trustee shall fail to comply with Article 13 after written request therefor by the Issuer or<br>by any Holder who has been a bona fide Holder of a security for at least six months; or |
| --- | --- |
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| (ii) | the Trustee shall cease to be eligible under Section 13.1 and shall fail to resign after written<br>request therefor by the Issuer or by any such Holder; or |
|---|---|
| (iii) | the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or commence<br>a voluntary bankruptcy proceeding or a receiver of the Trustee or of its property shall be appointed or consented to or any public officer<br>shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,<br>then, in any such case, (i) the Issuer by a Board Resolution may remove the Trustee with respect to all Notes, or (ii) subject<br>to Section 9.15, any Holder who has been a bona fide Holder of a security for at least six months may, on behalf of himself and all<br>others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Notes and the<br>appointment of a successor Trustee or Trustees. |
| --- | --- |
| (f) | If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in<br>the office of Trustee for any cause with respect to the Notes of one or more series, the Issuer, shall promptly appoint a successor Trustee<br>or Trustees with respect to the Notes of that or those series (it being understood that any such successor Trustee may be appointed with<br>respect to the Notes of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Notes<br>of any particular series) and shall comply with the applicable requirements of Article 13. If, within one year after such resignation,<br>removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Notes of any series shall be appointed<br>by act of the Holders of a majority in principal amount of the outstanding Notes of such series delivered to the Issuer and the retiring<br>Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable<br>requirements of Article 13, become the successor Trustee with respect to the Notes of such series and to that extent supersede the<br>successor Trustee appointed by the Issuer. If no successor Trustee with respect to the Notes of any series shall have been so appointed<br>by the Issuer or the Holders and accepted appointment in the manner required by Article 13, any Holder who has been a bona fide Holder<br>of a security of such series for at least six months may, on behalf of himself and all others similarly situated, petition the British<br>Columbia Supreme Court for the appointment of a successor Trustee with respect to the Notes of such series. |
| --- | --- |
| (g) | The Issuer shall give notice of each resignation and each removal of the Trustee with respect to the Notes<br>of any series and each appointment of a successor Trustee with respect to the Notes of any series by mailing or sending written notice<br>of such event to all Holders of Notes of such series as their names and addresses appear in the security register. Each notice shall include<br>the name of the successor Trustee with respect to the Notes of such series and the address of its corporate trust office. |
| --- | --- |
| (h) | Any entity into which the Trustee or Collateral Trustee, as applicable, may be merged or, with or to which<br>it may be consolidated, amalgamated or sold, or any entity resulting from any merger, consolidation, sale or amalgamation to which the<br>Trustee or Collateral Trustee, as applicable, shall be a party, shall be the successor Trustee or Collateral Trustee, as applicable, under<br>this Indenture without the execution of any instrument or any further act. Nevertheless, upon the written request of the successor Trustee<br>or Collateral Trustee, as applicable, or of the Issuer, the Trustee or Collateral Trustee, as applicable, ceasing to act shall execute<br>and deliver an instrument assigning and transferring to such successor Trustee or Collateral Trustee, as applicable, upon the trusts herein<br>expressed, all the rights, powers and trusts of the retiring Trustee or Collateral Trustee, as applicable, so ceasing to act, and shall<br>duly assign, transfer and deliver all property and money held by such Trustee or Collateral Trustee, as applicable, to the successor Trustee<br>or Collateral Trustee, as applicable, so appointed in its place. Should any deed, conveyance or instrument in writing from the Issuer<br>or any Guarantor be required by any new Trustee or Collateral Trustee, as applicable, for more fully and certainly vesting in and confirming<br>to it such estates, properties, rights, powers and trusts, then any and all such deeds, conveyances and instruments in writing shall on<br>request of said new Trustee or Collateral Trustee, as applicable, be made, executed, acknowledged and delivered by the Issuer or such<br>Guarantor, as applicable. |
| --- | --- |
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| 13.4 | Rights and Duties of Trustee |
|---|---|
| (a) | In the exercise of the rights, duties and obligations prescribed or conferred by the terms of this Indenture,<br>the Trustee shall act honestly and in good faith and exercise that degree of care, diligence and skill that a reasonably prudent Trustee<br>would exercise in comparable circumstances. Subject to the foregoing, the Trustee will be liable for its own wilful misconduct or gross<br>negligence. The Trustee will not be liable for any act or default on the part of any agent employed with due care by it or by a co-Trustee,<br>or for having permitted any agent employed with due care or co-Trustee to receive and retain any money payable to the Trustee, except<br>as aforesaid. |
| --- | --- |
| (b) | The Trustee shall transmit to Holders such brief reports concerning the Trustee and its actions under<br>this Indenture as may be required pursuant to Section 313(a) of the Trust Indenture Act at the times and in the manner provided<br>pursuant thereto, for so long as any Notes are outstanding hereunder (but if no event described in Section 313(a) of the Trust<br>Indenture Act has occurred, no report need be transmitted). The Trustee shall promptly deliver to the Issuer a copy of any report it delivers<br>to Holders pursuant to this Section 13.4. The Trustee also shall comply with Section 313(b) of the Trust Indenture Act.<br>The Trustee shall also transmit by mail all reports as required by Section 313(c) of the Trust Indenture Act. A copy of each<br>such report, at the time of such transmission to the Holders of Notes, shall be filed by the Trustee with the Issuer, with each stock<br>exchange on which the Notes are listed, if any, and with the Commission in accordance with Section 313(d) of the Trust Indenture<br>Act. The Issuer shall notify the Trustee when the Notes are listed on any stock exchange or delisted therefrom. |
| --- | --- |
| (c) | The Trustee may, upon any term or condition it specifies, delegate or exercise any of its rights, powers<br>and remedies under, and delegate or perform any of its duties or any other action with respect to, the Indenture or any Security Document<br>by or through any trustee, co-agent, employee, attorney-in-fact and any other Person. Any such Person shall have the benefit of the rights<br>and protections of this Article 13 to the same extent as the Trustee. |
| --- | --- |
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| (d) | Nothing herein contained shall impose any obligation on the Trustee to see to or require evidence of the<br>registration or filing (or renewal thereof) of this Indenture or any instrument ancillary or supplemental hereto or thereto. |
|---|---|
| (e) | No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly<br>negligent action, its own grossly negligent failure to act, or its own willful misconduct, except that this subsection shall not be construed<br>to limit the effect of this Section 13.4 or Section 13.5. |
| --- | --- |
| (f) | The Trustee and its officers shall not be: |
| --- | --- |
| (i) | accountable for the use or application by the Issuer of the Notes or the proceeds thereof; |
| --- | --- |
| (ii) | responsible to make any calculation with respect to any matter under this Indenture; |
| --- | --- |
| (iii) | liable for any error in judgment made in good faith by a responsible officer of the Trustee unless negligent<br>in ascertaining the pertinent facts; |
| --- | --- |
| (iv) | liable with respect to any action taken or omitted to be taken by it in good faith in accordance with<br>the direction of the Holders of a majority in principal amount of the outstanding Notes of any series, as provided in Section 9.12,<br>relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or<br>power conferred upon the Trustee, under this Indenture with respect to the Notes of such series; |
| --- | --- |
| (v) | responsible or liable for any failure or delay in the performance of its obligations under this Indenture<br>arising out of or caused, directly or indirectly, by circumstances beyond its control, including, without limitation, any provision of<br>any law or regulation or any act of any governmental authority, acts of God; earthquakes; fire; flood; terrorism; wars and other military<br>disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication<br>services; cyberterrorism; accidents; labor disputes; acts of civil or military authority and governmental action; or |
| --- | --- |
| (vi) | subject to Section 13.5(b) bound to make any investigation into the facts or matters stated<br>in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or<br>other paper or document, or inquiry as to the performance by the Issuer of any of its covenants in this Indenture. |
| --- | --- |
| (g) | The Trustee shall have the right to disclose any information disclosed or released to it if, in the reasonable<br>opinion of the Trustee, after consultation with Counsel, it is required to disclose under any applicable laws, court order or administrative<br>directions, or if, in the reasonable opinion of the Trustee, it is required to disclose to its regulatory authority. The Trustee shall<br>not be responsible or liable to any party for any loss or damage arising out of or in any way sustained or incurred or in any way relating<br>to such disclosure. |
| --- | --- |
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| (h) | The Trustee shall not be responsible for any error made or act done by it resulting from reliance upon<br>the signature of any Person on whose signature the Trustee is entitled to act, or refrain from acting, under a specific provision of this<br>Indenture. |
|---|---|
| (i) | The permissive rights of the Trustee enumerated herein shall not be construed as duties. |
| --- | --- |
| (j) | The Trustee shall be entitled to treat a facsimile, pdf or e-mail communication or communication by other<br>similar electronic means in a form satisfactory to the Trustee from a Person purporting to be (and whom the Trustee, acting reasonably,<br>believes in good faith to be) an authorized representative of the Issuer or a Holder, as sufficient instructions and authority of such<br>party for the Trustee to act and shall have no duty to verify or confirm that Person is so authorized. The Trustee shall have no liability<br>for any losses, liabilities, costs or expenses incurred by it as a result of such reliance upon, or compliance with, such instructions<br>or directions, except to the extent any such losses, cost or expense are the direct result of gross negligence, willful misconduct or<br>bad faith on the part of the Trustee. The Issuer and the Holders agree: (i) to assume all risks arising out of the use of such electronic<br>methods to submit instructions and directions to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized<br>instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks<br>associated with the various methods of transmitting instructions to the Trustee and that there may be more secure methods of transmitting<br>instructions than the method(s) selected by such party; and (iii) that the security procedures (if any) to be followed in connection<br>with its transmission of instructions provide to it a commercially reasonable degree of protection in light of its particular needs and<br>circumstances. |
| --- | --- |
| 13.5 | Reliance Upon Declarations, Opinions, etc. |
| --- | --- |
| (a) | The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default<br>which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no<br>implied covenants or obligations shall be read into this Indenture against the Trustee. |
| --- | --- |
| (b) | In the exercise of its rights, duties and obligations hereunder the Trustee may, if acting in good faith<br>and subject to Section 13.8, rely, as to the truth of the statements and accuracy of the opinions expressed therein, upon statutory<br>declarations, opinions, reports or certificates furnished pursuant to any covenant, condition or requirement of this Indenture or required<br>by the Trustee to be furnished to it in the exercise of its rights and duties hereunder, if the Trustee examines such statutory declarations,<br>opinions, reports or certificates and determines that they comply with Section 13.6, if applicable, and with any other applicable<br>requirements of this Indenture. But in the case of any such certificates or opinions which by any provision hereof are specifically required<br>to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the<br>requirements of this Indenture but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein.<br>The Trustee may nevertheless, in its discretion, require further proof in cases where it deems further proof desirable. Without restricting<br>the foregoing, the Trustee may rely on an Opinion of Counsel satisfactory to the Trustee notwithstanding that it is delivered by a solicitor<br>or firm which acts as solicitors for the Issuer. |
| --- | --- |
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| (c) | The Trustee shall have no obligation to ensure or verify compliance with any applicable laws or regulatory<br>requirements on the issue or transfer of any Notes provided such issue or transfer is effected in accordance with the terms of this Indenture.<br>The Trustee shall be entitled to process all transfers and redemptions upon the presumption that such transfer and redemption is permissible<br>pursuant to all applicable laws and regulatory requirements if such transfer and redemption is effected in accordance with the terms of<br>this Indenture. But in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished<br>to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of<br>this Indenture but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein. The Trustee<br>shall have no obligation, other than to confer with the Issuer and its Counsel, to ensure that legends appearing on the Notes comply with<br>regulatory requirements or securities laws of any applicable jurisdiction. |
|---|---|
| 13.6 | Evidence and Authority to Trustee, Opinions, etc. |
| --- | --- |
| (a) | The Issuer shall furnish to the Trustee evidence of compliance with the conditions precedent provided<br>for in this Indenture relating to any action or step required or permitted to be taken by the Issuer or the Trustee under this Indenture<br>or as a result of any obligation imposed under this Indenture, including without limitation, the authentication and delivery of Notes<br>hereunder, the satisfaction and discharge of this Indenture and the taking of any other action to be taken by the Trustee at the request<br>of or on the application of the Issuer, forthwith if and when (a) such evidence is required by any other Section of this Indenture<br>to be furnished to the Trustee in accordance with the terms of this Section 13.6, or (b) the Trustee, in the exercise of its<br>rights and duties under this Indenture, gives the Issuer written notice requiring it to furnish such evidence in relation to any particular<br>action or obligation specified in such notice. Such evidence shall consist of: |
| --- | --- |
| (i) | an Officers’ Certificate, stating that any such condition precedent has been complied with in accordance<br>with the terms of this Indenture; |
| --- | --- |
| (ii) | an Opinion of Counsel that such condition precedent has been complied with in accordance with the terms<br>of this Indenture; and |
| --- | --- |
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| (iii) | in the case of any such condition precedent the satisfaction of which is subject to review or examination<br>by auditors or accountants, a certificate or opinion of an accountant, that such condition precedent has been complied with in accordance<br>with the terms of this Indenture and in accordance with Section 314(b) of the Trust Indenture Act. |
|---|---|
| (b) | Whenever such evidence relates to a matter other than the authentication and delivery of Notes and the<br>satisfaction and discharge of this Indenture, and except as otherwise required by the Trust Indenture Act or specifically provided herein,<br>such evidence may consist of a report or opinion of any solicitor, auditor, accountant, engineer or appraiser or any other appraiser or<br>any other individual whose qualifications give authority to a statement made by such individual, provided that if such report or opinion<br>is furnished by a director, officer or employee of the Issuer it shall be in the form of a statutory declaration. Such evidence shall<br>be, so far as appropriate, in accordance with Section 13.6(a). |
| --- | --- |
| (c) | Each statutory declaration, certificate, opinion or report with respect to compliance with a condition<br>precedent provided for in this Indenture (other than certificates provided pursuant to Section 9.20(a)) shall include (i) a<br>statement by the individual giving the evidence that he or she has read and is familiar with those provisions of this Indenture relating<br>to the condition precedent in question, (ii) a brief statement of the nature and scope of the examination or investigation upon which<br>the statements or opinions contained in such evidence are based, (iii) a statement that, in the belief of the individual giving such<br>evidence, he or she has made such examination or investigation as is necessary to enable him or her to make the statements or give the<br>opinions contained or expressed therein, and (iv) a statement whether in the opinion of such individual the conditions precedent<br>in question have been complied with or satisfied. |
| --- | --- |
| (d) | In addition to its obligations under Section 9.20, the Issuer shall furnish or cause to be furnished<br>to the Trustee at any time if the Trustee reasonably so requires, an Officers’ Certificate certifying that the Issuer has complied<br>with all covenants, conditions or other requirements contained in this Indenture, the non-compliance with which would constitute a Default<br>or an Event of Default, or if such is not the case, specifying the covenant, condition or other requirement which has not been complied<br>with and giving particulars of such non-compliance. The Issuer shall, whenever the Trustee so requires, furnish the Trustee with evidence<br>by way of statutory declaration, opinion, report or certificate as specified by the Trustee as to any action or step required or permitted<br>to be taken by the Issuer or as a result of any obligation imposed by this Indenture. |
| --- | --- |
| 13.7 | Officers’ Certificates Evidence |
| --- | --- |
Except as otherwise specifically provided or prescribed by this Indenture, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, the Trustee, if acting in good faith, may rely upon an Officers’ Certificate.
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| 13.8 | Experts, Advisers and Agents |
|---|
Subject to Sections 13.4 and 13.5, the Trustee may:
| (a) | employ or retain and act and rely on the opinion or advice of or information obtained from any solicitor,<br>auditor, valuator, engineer, surveyor, appraiser or other expert, whether obtained by the Trustee or by the Issuer, or otherwise, and<br>shall not be liable for acting, or refusing to act, in good faith on any such opinion or advice and may pay proper and reasonable compensation<br>for all such legal and other advice or assistance as aforesaid; and |
|---|---|
| (b) | employ such agents and other assistants as it may reasonably require for the proper discharge of its duties<br>hereunder, and may pay reasonable remuneration for all services performed for it (and shall be entitled to receive reasonable remuneration<br>for all services performed by it) in the discharge of the trusts hereof and compensation for all disbursements, costs and expenses made<br>or incurred by it in the discharge of its duties hereunder and in the management of the trusts hereof and any solicitors employed or consulted<br>by the Trustee may, but need not be, solicitors for the Issuer. |
| --- | --- |
| 13.9 | Trustee May Deal in Notes |
| --- | --- |
Subject to Sections 13.1 and 13.4, the Trustee may, in its personal or other capacity, buy, sell, lend upon and deal in Notes and generally contract and enter into financial transactions with the Issuer or otherwise, without being liable to account for any profits made thereby. However, the Trustee is subject to Sections 310(b) of the Trust Indenture Act and Section 13.3 shall apply and in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days or resign.
| 13.10 | Trustee Not Ordinarily Bound |
|---|
Except as provided in Section 9.2 and as otherwise specifically provided herein or required pursuant to the Trust Indenture Act, the Trustee shall not, subject to Section 13.4, be bound to give notice to any Person of the execution hereof, nor to do, observe or perform or see to the observance or performance by the Issuer of any of the obligations herein imposed upon the Issuer or of the covenants on the part of the Issuer herein contained, nor in any way to supervise or interfere with the conduct of the Issuer’s business, unless the Trustee shall have been required to do so in writing by the Holders of not less than 25% of the aggregate principal amount of the Notes then outstanding, and then only after it shall have been funded and indemnified to its satisfaction against all actions, proceedings, claims and demands to which it may render itself liable and all costs, charges, damages and expenses which it may incur by so doing
| 13.11 | Investment of Monies Held by Trustee |
|---|---|
| (a) | Any securities, documents of title or other instruments that may at any time be held by the Trustee subject<br>to the trusts hereof may be placed in the deposit vaults of the Trustee or of any Canadian chartered bank or deposited for safe-keeping<br>in the Province of British Columbia with any such bank. In respect of any moneys so held, upon receipt of a written order from a Participant<br>or a Beneficial Holder, the Trustee shall invest the funds in accordance with such written order in Authorized Investments (as defined<br>below). Any such written order from a Participant or a Beneficial Holder shall be provided to the Trustee no later than 9:00 a.m. (Toronto<br>time) on the day on which the investment is to be made. Any such written order from a Participant or a Beneficial Holder received by the<br>Trustee after 9:00 a.m. (Toronto time) or received on a non-Business Day, shall be deemed to have been given prior to 9:00 a.m. (Toronto<br>time) the next Business Day. For certainty, after an Event of Default, the Trustee shall only be obligated to make investments on receipt<br>of appropriate instructions from the Holders by way of a resolution of Holders of at least a majority in principal amount of the Notes<br>represented and voting at a meeting of Holders, or by a resolution in writing. |
| --- | --- |
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| (b) | The Trustee shall have no liability for any loss sustained as a result of any investment selected by and<br>made pursuant to the instructions of the Issuer or the Holders, as applicable, as a result of any liquidation of any investment prior<br>to its maturity or for failure of either the Issuer or the Holders, as applicable, to give the Trustee instructions to liquidate, invest<br>or reinvest amounts held with it. In the absence of written instructions from either the Issuer or the Holders as to investment of funds<br>held by it, such funds shall be held uninvested by the Trustee without liability for interest thereon. |
|---|---|
| (c) | For the purposes of this section, “Authorized Investments” means short term interest<br>bearing or discount debt obligations issued or guaranteed by the government of Canada or a Province or a Canadian chartered bank (which<br>may include an Affiliate or related party of the Trustee) provided that such obligation is rated at least R1 (middle) by DBRS or an equivalent<br>rating service. For certainty, the Issuer and the Holders acknowledge and agree that the Trustee has no obligation or liability to confirm<br>or verify that investment instructions delivered pursuant to this Section 13.11 comply with the definition of Authorized Investments. |
| --- | --- |
| 13.12 | [Reserved] |
| --- | --- |
| 13.13 | Trustee Not Required to Give Security |
| --- | --- |
The Trustee shall not be required to give any bond or security in respect of the execution of the trusts and powers of this Indenture or otherwise in respect of the premises.
| 13.14 | Trustee Not Bound to Act on Issuer’s Request |
|---|
Except as in this Indenture otherwise specifically provided, the Trustee shall not be bound to act in accordance with any direction or request of the Issuer until a duly authenticated copy of the instrument or resolution containing such direction or request shall have been delivered to the Trustee, and the Trustee shall be empowered to act upon any such copy purporting to be authenticated and believed by the Trustee to be genuine.
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| 13.15 | Conditions Precedent to Trustee’s Obligations to Act Hereunder |
|---|---|
| (a) | The obligation of the Trustee to commence or continue any act, action or proceeding for the purpose of<br>enforcing the rights of the Trustee and of the Holders hereunder shall be conditional upon any one or more Holders furnishing when required<br>by notice in writing by the Trustee, sufficient funds to commence or continue such act, action or proceeding and indemnity reasonably<br>satisfactory to the Trustee to protect and hold harmless the Trustee against the costs, charges and expenses and liabilities to be incurred<br>thereby and any loss and damage it may suffer by reason thereof. |
| --- | --- |
| (b) | None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own<br>funds or otherwise incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers<br>unless indemnified as aforesaid. |
| --- | --- |
| (c) | The Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding<br>require the Holders of Notes of a series at whose instance it is acting to deposit with the Trustee such Notes held by them for which<br>Notes the Trustee shall issue receipts. |
| --- | --- |
| 13.16 | Authority to Carry on Business |
| --- | --- |
The Trustee represents to the Issuer that at the date of execution and delivery by it of this Indenture it is authorized to carry on the business of a trust company in the all of the provinces of Canada but if, notwithstanding the provisions of this Section 13.15, it ceases to be so authorized to carry on business, the validity and enforceability of this Indenture and the securities issued hereunder shall not be affected in any manner whatsoever by reason only of such event but the Trustee shall, within 90 days after ceasing to be authorized to carry on the business of a trust company in any province of Canada, either become so authorized or resign in the manner and with the effect specified in Section 13.3.
| 13.17 | Compensation and Indemnity |
|---|---|
| (a) | The Issuer shall pay to the Trustee from time to time compensation for its services hereunder as agreed<br>separately by the Issuer and the Trustee, and shall pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements<br>and advances incurred or made by the Trustee in the administration or execution of its duties under this Indenture (including the reasonable<br>and documented compensation and disbursements of its Counsel and all other advisers and assistants not regularly in its employ), both<br>before any default hereunder and thereafter until all duties of the Trustee under this Indenture shall be finally and fully performed.<br>The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. |
| --- | --- |
| (b) | The Issuer hereby indemnifies and saves harmless the Trustee and its directors, officers, agents, employees<br>and shareholders from and against any and all loss, damages, charges, expenses, claims, demands, actions or liability whatsoever which<br>may be brought against the Trustee or which it may suffer or incur as a result of or arising out of the performance of its duties and<br>obligations hereunder save only in the event of the gross negligence or wilful misconduct of the Trustee. This indemnity will survive<br>the termination or discharge of this Indenture and the resignation or removal of the Trustee. The Trustee shall notify the Issuer promptly<br>of any claim for which it may seek indemnity. The Issuer shall defend the claim and the Trustee shall cooperate in the defence. The Trustee<br>may have separate Counsel and the Issuer shall pay the reasonable fees and expenses of such Counsel. The Issuer need not pay for any settlement<br>made without its consent, which consent must not be unreasonably withheld. This indemnity shall survive the resignation or removal of<br>the Trustee or the discharge of this Indenture. |
| --- | --- |
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| (c) | The Issuer need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee<br>through gross negligence, wilful misconduct or bad faith on the part of the Trustee. |
|---|---|
| 13.18 | Acceptance of Trust |
| --- | --- |
The Trustee hereby accepts the trusts in this Indenture declared and provided for and agrees to perform the same upon the terms and conditions herein set forth and to hold all rights, privileges and benefits conferred hereby and by law in trust for the various Persons who shall from time to time be Holders, subject to all the terms and conditions herein set forth.
| 13.19 | Anti-Money Laundering |
|---|
The Trustee shall retain the right not to act and shall not be liable for refusing to act if, due to a lack of information or for any other reason whatsoever, the Trustee, in its sole judgment, acting reasonably, determines that such act might cause it to be in non-compliance with any applicable anti-money laundering or anti-terrorist legislation, regulation or guideline. Further, should the Trustee, in its sole judgment, acting reasonably, determine at any time that its acting under this Indenture has resulted in its being in non-compliance with any applicable anti-money laundering or anti-terrorist legislation, regulation or guideline, then it shall have the right to resign on 10 days’ prior written notice sent to all parties hereto; provided that (A) the written notice shall describe the circumstances of such non-compliance; and (B) if such circumstances are rectified to the Trustee’s satisfaction within such 10 day period, then such resignation shall not be effective.
| 13.20 | Privacy |
|---|---|
| (a) | The parties hereto acknowledge that the Trustee may, in the course of providing services hereunder, collect<br>or receive financial and other personal information about such parties and/or their representatives, as individuals, or about other individuals<br>related to the subject matter hereof, and use such information for the following purposes: |
| --- | --- |
| (i) | to provide the services required under this Indenture and other services that may be requested from time<br>to time; |
| --- | --- |
| (ii) | to help the Trustee manage its servicing relationships with such individuals; |
| --- | --- |
| (iii) | to meet the Trustee’s legal and regulatory requirements; and |
| --- | --- |
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| (iv) | if social insurance numbers are collected by the Trustee, to perform tax reporting and to assist in verification<br>of an individual’s identity for security purposes. |
|---|---|
| (b) | Each party acknowledges and agrees that the Trustee may receive, collect, use and disclose personal information<br>provided to it or acquired by it in the course of providing services under this Indenture for the purposes described above and, generally,<br>in the manner and on the terms described in its privacy code, which the Trustee shall make available on its website or upon request, including<br>revisions thereto. The Trustee may transfer some of that personal information to service providers in the United States for data processing<br>and/or storage. Further, each party agrees that it shall not provide or cause to be provided to the Trustee any personal information relating<br>to an individual who is not a party to this Indenture unless that party has assured itself that such individual understands and has consented<br>to the aforementioned uses and disclosures. |
| --- | --- |
| 13.21 | Preferential Collection of Claims Against Issuer |
| --- | --- |
The Trustee is subject to Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated therein.
| 13.22 | Evidence of Recording of Indenture |
|---|
If required pursuant to the Trust Indenture Act, the Issuer shall furnish to the Trustee:
| (a) | promptly after the execution and delivery of this Indenture or any Supplemental Indenture, an Opinion<br>of Counsel either stating that in the opinion of such counsel the Indenture has been properly recorded and filed so as to make effective<br>the lien intended to be created thereby, and reciting the details of such action, or stating that in the opinion of such counsel no such<br>action is necessary to make such lien effective; and |
|---|---|
| (b) | at least annually after the date of execution and delivery of this Indenture, an Opinion of Counsel either<br>stating that in the opinion of such counsel such action has been taken with respect to the recording, filing, re-recording, and refiling<br>of this Indenture as is necessary to maintain the lien of the Indenture, and reciting the details of such action, or stating that in the<br>opinion of such counsel no such action is necessary to maintain such lien. |
| --- | --- |
| 13.23 | Certificates of Fair Value |
| --- | --- |
The Issuer shall furnish to the Trustee certificates or opinions of fair value with regard to released property pursuant to Section 314(d) of the Trust Indenture Act, which certificates or opinions shall be made by an independent engineer, appraiser or other expert to the extent required by Section 314(d) of the Trust Indenture Act.
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| 13.24 | Acts of Holders; Record Dates |
|---|
The Issuer or the Trustee, as applicable, may set a date for the purpose of determining the Holders of Notes entitled to consent, vote or take any other action referred to in Article 9 or Article 14.
Article 14AMENDMENT, SUPPLEMENT AND WAIVER
| 14.1 | Ordinary Consent |
|---|
Except as provided in Sections 14.2 and 14.3, with the affirmative votes of the Holders of at least a majority in principal amount of the Notes represented and voting at a meeting of Holders, or by a resolution in writing of the Holders of at least a majority in principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes):
| (a) | this Indenture, the Notes and the Guarantees may each be amended or supplemented, and |
|---|---|
| (b) | any existing Default or Event of Default (other than a Default or Event of Default in the payment of the<br>principal or, premium (if any) or interest on the Notes, except such Default or Event of Default resulting from an acceleration that has<br>been rescinded) or lack of compliance with any provision of this Indenture, the Notes or the Guarantees may be waived, |
| --- | --- |
provided that if any such amendment, supplement or waiver affects only one or more series of Notes, then consent to such amendment, supplement or waiver shall only be required to be obtained from the Holders of such affected series of Notes.
| 14.2 | Special Consent |
|---|---|
| (a) | Notwithstanding Section 14.1, without the consent of, or a resolution passed by the affirmative votes<br>of or signed by each Holder affected, an amendment, supplement or waiver may not (with respect to any Notes of any series held by a non-consenting<br>Holder): |
| --- | --- |
| (i) | reduce the principal amount of Notes of any series whose Holders must consent to an amendment, supplement<br>or waiver; |
| --- | --- |
| (ii) | reduce the principal of or change the fixed maturity of any Note or alter the provisions, or waive any<br>payment with respect to the redemption of the Notes (other than with respect to any required notice periods); provided, however, that<br>solely for the avoidance of doubt, and without any other implication, any purchase or repurchase of Notes, including pursuant Sections 7.14<br>and 7.15, as distinguished from any redemption of Notes, shall not be deemed a redemption of the Notes; |
| --- | --- |
| (iii) | reduce the rate of or change the time for payment of interest on any Note; |
| --- | --- |
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| (iv) | waive a Default or Event of Default in the payment of principal of, or interest, or premium, if any, on,<br>the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the<br>then outstanding Notes and a waiver of the Payment Default that resulted from such acceleration); |
|---|---|
| (v) | make any Note payable in money other than its stated currency; |
| --- | --- |
| (vi) | make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights<br>of Holders of Notes to receive payments of principal of, or interest or premium, if any, on, the Notes on or after their respective due<br>dates; |
| --- | --- |
| (vii) | impair the right to institute suit for the enforcement of any payment on or with respect to the Notes<br>or the Subsidiary Guarantees on or after their respective due dates; |
| --- | --- |
| (viii) | amend or modify any of the provisions of this Indenture or the related definitions affecting the ranking<br>of the Notes or any Subsidiary Guarantee in any manner adverse to the Holders of the Notes or any Guarantee; |
| --- | --- |
| (ix) | expressly subordinate the Notes or any Subsidiary Guarantees in right of payment to any other Indebtedness<br>of the Issuer or any Guarantor; |
| --- | --- |
| (x) | make any change in the amending and waiver provisions under this Article 14; |
| --- | --- |
| (xi) | release any Guarantor from any of its Obligations under its Subsidiary Guarantee, or this Indenture, except<br>in accordance with the terms of this Indenture; |
| --- | --- |
| (xii) | waive, amend, change or modify the obligation of the Issuer to make and consummate an Asset Sale Offer<br>with respect to any Asset Sale in accordance with Section 7.15 after the obligation to make such Asset Sale Offer has arisen, including<br>amending, changing or modifying any definition relating thereto; |
| --- | --- |
| (xiii) | waive, amend, change or modify in any material respect the Issuer’s obligation to make and consummate<br>a Change of Control Offer in the event of a Change of Control in accordance with Section 7.14 after the occurrence of such Change<br>of Control, including amending, changing or modifying any definition relating thereto; or |
| --- | --- |
| (xiv) | release a material portion of the Collateral from the First-Priority Lien, other than in accordance with<br>the terms of the Security Documents and/or this Indenture; |
| --- | --- |
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| 14.3 | Without Consent |
|---|
Notwithstanding Sections 14.1 and 14.2, without the consent of any Holder, the Issuer, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes or the Subsidiary Guarantees to:
| (a) | cure any ambiguity, defect or inconsistency; |
|---|---|
| (b) | provide for uncertificated Notes in addition to or in place of certificated Notes; |
| --- | --- |
| (c) | provide for the assumption of the Issuer’s or any Guarantor’s Obligations to Holders of Notes<br>in the case of a merger, amalgamation or consolidation or sale of all or substantially all of the Issuer’s or such Guarantor’s<br>assets or otherwise comply with Section 12.1; |
| --- | --- |
| (d) | make any change that would provide any additional rights or benefits to the Holders of Notes or that does<br>not materially adversely affect the legal rights under this Indenture of any Holder of Notes; |
| --- | --- |
| (e) | add any Subsidiary Guarantee or to effect the release of a Guarantor from its Subsidiary Guarantee, all<br>in accordance with the provisions of this Indenture governing such release and termination or to otherwise comply with Article 15; |
| --- | --- |
| (f) | secure the Notes or any Subsidiary Guarantees or any other Obligation under this Indenture; |
| --- | --- |
| (g) | evidence and provide for the acceptance of appointment by a successor Trustee; |
| --- | --- |
| (h) | conform the text of this Indenture, the Notes or the Subsidiary Guarantees to any provision of<br>the Description of Notes to the extent that such provision in this Indenture, the Notes or the Subsidiary Guarantees was intended<br>to be a verbatim recitation of a provision of the Description of Notes; |
| --- | --- |
| (i) | provide for the issuance of Additional Notes in accordance with this Indenture; |
| --- | --- |
| (j) | to enter into additional or supplemental Security Documents or to add additional parties to the Security<br>Documents to the extent permitted thereunder and under this Indenture; |
| --- | --- |
| (k) | allow any Guarantor to execute a Subsidiary Guarantee; or |
| --- | --- |
| (l) | to release Collateral from the First-Priority Liens when permitted or required by this Indenture and the<br>Security Documents or add assets to Collateral to secure First-Lien Indebtedness to the extent such Indebtedness is permitted under<br>this Indenture. |
| --- | --- |
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| 14.4 | Form of Consent |
|---|
It is not necessary for the consent of the Holders under Section 14.1 or 14.2 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.
| 14.5 | Supplemental Indentures |
|---|---|
| (a) | Subject to the provisions of this Indenture, the Issuer and the Trustee may from time to time execute,<br>acknowledge and deliver Supplemental Indentures which thereafter shall form part of this Indenture, for any one or more of the following<br>purposes: |
| --- | --- |
| (i) | establishing the terms of any series of Notes and the forms and denominations in which they may be issued<br>as provided in Article 2; |
| --- | --- |
| (ii) | making such amendments not inconsistent with this Indenture as may be necessary or desirable with respect<br>to matters or questions arising hereunder, including the making of any modifications in the form of the Notes of any series which do not<br>affect the substance thereof and which in the opinion of the Trustee relying on an Opinion of Counsel will not be materially prejudicial<br>to the interests of Holders; |
| --- | --- |
| (iii) | rectifying typographical, clerical or other manifest errors contained in this Indenture or any Supplemental<br>Indenture, or making any modification to this Indenture or any Supplemental Indenture which, in the opinion of Counsel, are of a formal,<br>minor or technical nature and that are not materially prejudicial to the interests of the Holders; |
| --- | --- |
| (iv) | to give effect to any amendment or supplement to this Indenture or the Notes of any series made in accordance<br>with Sections 14.1, 14.2 or 14.3; |
| --- | --- |
| (v) | evidencing the succession, or successive successions, of others to the Issuer or any Guarantor and the<br>covenants of and obligations assumed by any such successor in accordance with the provisions of this Indenture; or |
| --- | --- |
| (vi) | for any other purpose not inconsistent with the terms of this Indenture, provided that in the opinion<br>of the Trustee (relying on an Opinion of Counsel) the rights of neither the Holders nor the Trustee are materially prejudiced thereby. |
| --- | --- |
| (b) | Unless this Indenture expressly requires the consent or concurrence of Holders, the consent or concurrence<br>of Holders shall not be required in connection with the execution, acknowledgement or delivery of a Supplemental Indenture contemplated<br>by this Indenture. |
| --- | --- |
| (c) | Upon receipt by the Trustee of (i) an Issuer Order accompanied by a Board Resolution authorizing<br>the execution of any such Supplemental Indenture, and (ii) an Officers’ Certificate stating that such amended or Supplemental<br>Indenture complies with this Section 14.5, the Trustee shall join with the Issuer and the Guarantors in the execution of any amended<br>or Supplemental Indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations<br>that may be therein contained. |
| --- | --- |
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| (d) | This Section 14.5 shall apply, as the context requires, to any assumption agreement or instrument<br>contemplated by Section 12.1(a)(ii)(A). |
|---|
Article 15GUARANTEES
| 15.1 | Issuance of Guarantees |
|---|---|
| (a) | All of the Restricted Subsidiaries as of the Issue Date shall execute and deliver to the Collateral Trustee<br>a Subsidiary Guarantee in the form attached hereto as Appendix B on the Issue Date. |
| --- | --- |
| (b) | The Issuer will not permit any of its Restricted Subsidiaries, directly or indirectly, to guarantee or<br>otherwise Incur any Indebtedness (without regard to “Indebtedness” as defined in clause (x) of the second paragraph of<br>the definition of the term “Indebtedness”) that, individually or in the aggregate with all other of its then outstanding Indebtedness<br>(without regard to “Indebtedness” as defined in clause (x) of the second paragraph of the definition of the term “Indebtedness”),<br>exceeds at any time $2.0 million, unless such Restricted Subsidiary is a Guarantor or within 30 days of such Incurrence, executes and<br>delivers to the Collateral Trustee a Subsidiary Guarantee and an Opinion of Counsel (which may contain customary exceptions) that such<br>Subsidiary Guarantee has been duly authorized, executed and delivered by such Restricted Subsidiary and constitutes a legal, valid and<br>binding obligation of such Restricted Subsidiary enforceable against such Restricted Subsidiary in accordance with its terms. |
| --- | --- |
| (c) | The obligations of each Guarantor formed under the laws of the United States or any state thereof or the<br>District of Columbia will be limited to the maximum amount that will result in the obligations of such Guarantor under its Subsidiary<br>Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law. |
| --- | --- |
| (d) | The Issuer may also elect to cause any other Restricted Subsidiary to issue a Subsidiary Guarantee and<br>become a Guarantor. |
| --- | --- |
| (e) | Except as set out in Section 15.2(a), a Guarantor may not sell, assign, transfer, convey or otherwise<br>dispose of all or substantially all of its assets, in one or more related transactions, to, or consolidate or amalgamate with or merge<br>with or into (regardless of whether such Guarantor is the surviving Person), another Person, other than the Issuer or another Guarantor,<br>unless: |
| --- | --- |
| (i) | immediately after giving effect to that transaction, no Default or Event of Default exists; and |
| --- | --- |
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| (ii) | either: |
|---|---|
| (A) | the Person acquiring the property in any such sale or disposition or the Person formed by or surviving<br>any such consolidation, amalgamation or merger (if other than the Guarantor) is organized or existing under the laws of (1) the United<br>States, any state thereof or the District of Columbia, (2) Canada or any province or territory thereof or (3) the jurisdiction<br>of organization of the Guarantor, and assumes all the Obligations of that Guarantor under this Indenture and its Subsidiary Guarantee<br>by operation of law or pursuant to any agreement reasonably satisfactory to the Trustee; or |
| --- | --- |
| (B) | such sale or other disposition or consolidation, amalgamation or merger complies with Section 7.15. |
| --- | --- |
| 15.2 | Release of Guarantees |
| --- | --- |
| (a) | The Subsidiary Guarantee of a Guarantor will be automatically released: |
| --- | --- |
| (i) | in connection with any sale, assignment, transfer, conveyance or other disposition of all or substantially<br>all of the assets of that Guarantor (including by way of merger, consolidation or otherwise), in one or more related transactions, to<br>a Person that is not (either before or after giving effect to such transaction) Cannabist or a Restricted Subsidiary of the Issuer, if<br>the sale or other disposition does not violate Section 7.15; |
| --- | --- |
| (ii) | in connection with any sale or other disposition of the Capital Stock of a Guarantor to a Person that<br>is not (either before or after giving effect to such transaction) a Restricted Subsidiary of Cannabist after which such Guarantor is no<br>longer a Subsidiary of the Issuer, if the sale of such Capital Stock of that Guarantor complies with Section 7.15; |
| --- | --- |
| (iii) | [Reserved]; |
| --- | --- |
| (iv) | if the Guarantor is released in full from its obligations under any other Indebtedness which resulted<br>in the creation of such Subsidiary Guarantee pursuant to this covenant; or |
| --- | --- |
| (v) | upon Legal Defeasance, Covenant Defeasance or satisfaction and discharge of this Indenture as provided<br>above under Article 10. |
| --- | --- |
| (b) | The Trustee shall promptly execute and deliver a release together with all instruments and other documents<br>reasonably requested by the Issuer or the applicable Restricted Subsidiary to evidence the release and termination of any Guarantee upon<br>receipt of a request by the Issuer accompanied by an Officers’ Certificate certifying as to compliance with this Section 15.2. |
| --- | --- |
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Article 16NOTICES
| 16.1 | Notice to Issuer |
|---|
Any notice to the Issuer under the provisions of this Indenture shall be valid and effective (i) if delivered to the Issuer at 321 Billerica Road, Chelmsford, MA 01824, Attention: David Hart, (ii) if delivered by email to david.hart@cannabistcompany.com, immediately upon sending the email, provided that if such email is not sent during the normal business hours of the recipient, such email shall be deemed to have been sent at the opening of business on the next business day for the recipient, or (iii) **** if given by registered letter, postage prepaid, to such office and so addressed and if mailed, five days following the mailing thereof. The Issuer may from time to time notify the Trustee in writing of a change of address which thereafter, until changed by like notice, shall be the address of the Issuer for all purposes of this Indenture.
| 16.2 | Notice to Holders |
|---|---|
| (a) | Except as otherwise provided in this Indenture, all notices to be given hereunder with respect to the<br>Notes shall be deemed to be validly given to the Holders thereof if sent by first class mail, postage prepaid, or, if agreed to by the<br>applicable recipient, by email, by letter or circular addressed to such Holders at their post office addresses appearing in any of the<br>registers hereinbefore mentioned and shall be deemed to have been effectively given five days following the day of mailing, or immediately<br>upon sending the email, provided that if such email is not sent during the normal business hours of the recipient, such email shall be<br>deemed to have been sent at the opening of business on the next business day for the recipient, as applicable. Accidental error or omission<br>in giving notice or accidental failure to mail notice to any Holder or the inability of the Issuer to give or mail any notice due to anything<br>beyond the reasonable control of the Issuer shall not invalidate any action or proceeding founded thereon. |
| --- | --- |
| (b) | If any notice given in accordance with Section 16.2(a) would be unlikely to reach the Holders<br>to whom it is addressed in the ordinary course of post by reason of an interruption in mail service, whether at the place of dispatch<br>or receipt or both, the Issuer shall give such notice by publication at least once in a daily newspaper of general national circulation<br>in Canada. |
| --- | --- |
| (c) | Any notice given to Holders by publication shall be deemed to have been given on the day on which publication<br>shall have been effected at least once in each of the newspapers in which publication was required. |
| --- | --- |
| (d) | All notices with respect to any Note may be given to whichever one of the Holders thereof (if more than<br>one) is named first in the registers hereinbefore mentioned, and any notice so given shall be sufficient notice to all Holders of any<br>Persons interested in such Note. |
| --- | --- |
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| 16.3 | Notice to Trustee or Collateral Trustee |
|---|
Any notice to the Trustee or Collateral Trustee under the provisions of this Indenture shall be valid and effective: (i) if delivered to the Trustee at its principal office in the City of Vancouver, British Columbia at 323 – 409 Granville Street, Vancouver, British Columbia V6C 1T2, Attention: Corporate Trust, (ii) if delivered by email to corptrust@odysseytrust.com, immediately upon sending the email, provided that if such email is not sent during the normal business hours of the recipient, such email shall be deemed to have been sent at the opening of business on the next business day for the recipient, or (iii) if given by registered letter, postage prepaid, to such office and so addressed and, if mailed, shall be deemed to have been effectively given five days following the mailing thereof.
| 16.4 | Mail Service Interruption |
|---|
If by reason of any interruption of mail service, actual or threatened, any notice to be given to the Trustee would reasonably be unlikely to reach its destination by the time notice by mail is deemed to have been given pursuant to Section 16.3, such notice shall be valid and effective only if delivered at the appropriate address in accordance with Section 16.3.
Article 17MISCELLANEOUS
| 17.1 | Copies of Indenture |
|---|
Any Holder may obtain a copy of this Indenture without charge by writing to the Issuer at 321 Billerica Road, Chelmsford, MA 01824, Attention: Chief Financial Officer.
| 17.2 | Force Majeure |
|---|
Except for the payment obligations of the Issuer contained herein, neither the Issuer nor the Trustee shall be liable to the other, or held in breach of this Indenture, if prevented, hindered, or delayed in the performance or observance of any provision contained herein by reason of act of God, riots, terrorism, acts of war, epidemics, governmental action or judicial order, earthquakes, or any other similar causes (including, but not limited to, mechanical, electronic or communication interruptions, disruptions or failures). Performance times under this Indenture shall be extended for a period of time equivalent to the time lost because of any delay that is excusable under this Section 17.2.
| 17.3 | Waiver of Jury Trial |
|---|
EACH OF THE ISSUER, THE GUARANTORS AND THE TRUSTEE HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS INDENTURE, THE NOTES OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS INDENTURE. The scope of this waiver is intended to encompass any and all disputes that may be filed in any court and that relate to the subject matter of this Indenture, including contract claims, tort claims, breach of duty claims, and all other common law and statutory claims. Each party hereto acknowledges that this waiver is a material inducement to enter into a business relationship, that such party has already relied on the waiver in entering into this Indenture, and that such party shall continue to rely on the waiver in its related future dealings. Each party hereto further warrants and represents that it has reviewed this waiver with its legal counsel, and that it knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. In the event of litigation, this Indenture may be filed as a written consent to a trial by the court without a jury.
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| 17.4 | Appointment of Supporting Senior Noteholder Representative |
|---|---|
| (a) | After the Issue Date, each Supporting Senior Noteholder may elect to irrevocably appoint in writing a<br>person or entity to serve as its representative, agent, proxy and attorney in fact (the “Supporting Senior Noteholders’Representative”) for such Supporting Senior Noteholder and in such Supporting Senior Noteholder’s name, place and stead<br>for all purposes relating to the Supporting Senior Noteholders under this Indenture. In the event no Supporting Senior Noteholder Representative<br>has been appointed by the Supporting Senior Noteholders on any date of determination, all such references to such Supporting Senior Noteholders’<br>Representative in this Indenture shall be deemed to refer counsel to the Supporting Senior Noteholders’ at such date of determination. |
| --- | --- |
| (b) | In order to administer efficiently the determination of certain matters relating to the Supporting Senior<br>Noteholders under this Indenture, each Supporting Senior Noteholder hereby agrees that the Issuer will be entitled to: |
| --- | --- |
| (i) | rely on the Supporting Senior Noteholders’ Representative as having full power, authority and discretion<br>to make all decisions and take all actions relating to the Supporting Senior Noteholders respective rights, obligations and remedies under<br>this Indenture, including to receive and make payments, to receive and send notices, to receive and deliver documents, to exercise, enforce<br>or waive rights or conditions, to give releases and discharges; and |
| --- | --- |
| (ii) | deal only with the Supporting Senior Noteholders’ Representative in respect of all matters arising<br>under this Indenture that relate to the Supporting Senior Noteholders, including to receive and make payments, to receive and send notices,<br>to receive and deliver documents, to exercise, enforce or waive rights or conditions, to give releases and discharges. |
| --- | --- |
| (c) | All references in this Indenture to decisions and actions to be taken by the Supporting Senior Noteholders<br>or any one of them, as the case may be, shall be deemed taken by the Supporting Senior Noteholders or any one of them, as the case may<br>be, if such decisions or actions are taken by the Supporting Senior Noteholders’ Representative. All references in this Indenture<br>to decisions and actions to be taken by the Issuer and directed to the Supporting Senior Noteholders or any one of them, as the case may<br>be, shall be deemed directed to the Supporting Senior Noteholders or any one of them, as the case may be, if such decisions or actions<br>are directed by the Issuer to the Supporting Senior Noteholders’ Representative. |
| --- | --- |
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| (d) | In no event shall the Issuer be held responsible or liable for the application or allocation of any monies<br>paid to the Supporting Senior Noteholders’ Representative by the Issuer, and the Issuer shall be entitled to rely upon any notice<br>provided to the Issuer by the Supporting Senior Noteholders’ Representative or action taken by the Supporting Senior Noteholders’<br>Representative acting within the scope of his authority. |
|---|---|
| (e) | Notwithstanding the foregoing, no payment, notice, receipt or delivery of documents, exercise, enforcement<br>or waiver of rights or conditions, indemnification claim or indemnification defence shall be ineffective by reason only of it having been<br>made or given to or by a Supporting Senior Noteholder directly if each of the Issuer and such Supporting Senior Noteholder consent by<br>virtue of not objecting to such dealings without the intermediary of the Supporting Senior Noteholders’ Representative. |
| --- | --- |
Article 18EXECUTION AND FORMAL DATE
| 18.1 | Execution |
|---|
This Indenture may be simultaneously executed in several counterparts, each of which when so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument. Delivery of an executed signature page to this Indenture by any party hereto by facsimile transmission or PDF shall be as effective as delivery of a manually executed copy of this Indenture by such party.
| 18.2 | Formal Date |
|---|
For the purpose of convenience, this Indenture may be referred to as bearing the formal date of May 29, 2025, irrespective of the actual date of execution hereof.
[SIGNATURE PAGE FOLLOWS]
- 1 -
IN WITNESS whereof the parties hereto have executed these presents under their respective corporate seals and the hands of their proper officers in that behalf.
| ISSUER: | ||
|---|---|---|
| THE CANNABIST COMPANY HOLDINGS INC. | ||
| Per: | (Signed) “David Hart” | |
| Name: | David Hart | |
| Title: | Authorized Signatory | |
| CO-ISSUER: | ||
| THE CANNABIST COMPANY HOLDINGS (CANADA) INC. | ||
| Per: | (Signed) “David Hart” | |
| Name: | David Hart | |
| Title: | Authorized Signatory | |
| TRUSTEE: ODYSSEY TRUST COMPANY | ||
| Per: | (Signed) “Amy Douglas” | |
| Name: | Amy Douglas | |
| Title: | Managing Director, Corporate Trust | |
| Per: | (Signed) “Rachel Wales” | |
| Name: | Rachel Wales | |
| Title: | Director, Corporate Trust |
APPENDIX A
FORM OF 2028 NOTE
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THIS INDENTURE HEREIN REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE TRANSFERRED TO OR EXCHANGED FOR NOTES REGISTERED IN THE NAME OF ANY PERSON OTHER THAN THE DEPOSITORY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THIS INDENTURE. EVERY NOTE AUTHENTICATED AND DELIVERED UPON REGISTRATION OF, TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS NOTE SHALL BE A GLOBAL NOTE SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES DESCRIBED IN THIS INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF CDS CLEARING AND DEPOSITORY SERVICES INC. (“CDS”) [THE CANNABIST COMPANY HOLDINGS INC.] [THE CANNABIST COMPANY HOLDINGS (CANADA) INC.]. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF CDS & CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS (AND ANY PAYMENT IS MADE TO CDS & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, CDS & CO., HAS A PROPERTY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD, TRANSFER OR DEAL WITH THIS CERTIFICATE. [INSERT GLOBAL NOTES LEGEND FOR ALL GLOBAL NOTES]
For Notes originally issued for the benefitor account of a U.S. Holder (other than an Original U.S. Holder), and each Definitive Note issued in exchange therefor or in substitutionthereof, also include the following legends:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY ACQUIRING SUCH SECURITIES, AGREES, FOR THE BENEFIT OF [THE CANNABIST COMPANY HOLDINGS INC.] [THE CANNABIST COMPANY HOLDINGS (CANADA) INC.] (THE “ISSUER”), THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION; (B) IN COMPLIANCE WITH (1) RULE 144A UNDER THE U.S. SECURITIES ACT, IF AVAILABLE, OR (2) RULE 144 UNDER THE U.S. SECURITIES ACT, IF AVAILABLE, AND, IN EACH CASE, IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS; OR (C) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS, PROVIDED THAT IN THE CASE OF TRANSFERS PURSUANT TO (B)(2) OR (C) ABOVE, A LEGAL OPINION FROM COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION MUST FIRST BE PROVIDED. HEDGING TRANSACTIONS INVOLVING SUCH SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE U.S. SECURITIES ACT. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.
A-1
| CUSIP ● | |
|---|---|
| ISIN CA● | |
| No.● | $● |
THE CANNABIST COMPANY HOLDINGS INC.
(a corporation formed under the Business CorporationsAct (British Columbia))
and
CANNABIST COMPANY HOLDINGS (CANADA) INC.
(a corporation formed under the Canada BusinessCorporations Act)
9.25% SENIOR SECURED NOTES DUE December 31, 2028
THE CANNABIST COMPANY HOLDINGS INC. (the “Issuer”) and CANNABIST COMPANY HOLDINGS (CANADA) INC. (as “Co-Issuer” and together with the Issuer, the “Issuers” and each an “Issuer”) for value received hereby acknowledges itself indebted and, subject to the provisions of the trust indenture dated as of May 29, 2025 (the “Indenture”) between the Issuer and Odyssey Trust Company (the “Trustee”), promises to pay to the registered holder hereof on December 31, 2028 (the “Stated Maturity”) (unless extended to June 30, 2029 or December 31, 2029 in accordance with the terms of the Indenture) or on such earlier date as the principal amount hereof may become due in accordance with the provisions of this Indenture the principal sum of ● million dollars ($[●]) in lawful money of the United States of America on presentation and surrender of this Note (the “Note”) at the main branch of the Trustee in Vancouver, British Columbia, in accordance with the terms of this Indenture and, subject as hereinafter provided, to pay interest on the principal amount hereof (i) from and including the date hereof, or (ii) from and including the last Interest Payment Date to which interest shall have been paid or made available for payment hereon, whichever shall be the later, in all cases, to and excluding the next Interest Payment Date, at the rate of 9.25% per annum, in like money, calculated and payable semi-annually in arrears on June 30 and December 31 in each year commencing on June 30, 2025, and the last payment (representing interest payable from the last Interest Payment Date to, but excluding, the Maturity of this Note) to fall due on the Maturity of this Note and, should the Issuer at any time make default in the payment of any principal or interest, to pay interest on the amount in default at a rate that is 1% higher than the applicable interest rate on the Notes, in like money and on the same dates.
A-2
Interest on this Note will be computed on the basis of a 365-day or 366-day year, as applicable, and will be payable in equal semi-annual amounts; provided that for any Interest Period that is shorter than a full semi-annual interest period, interest shall be calculated on the basis of a year of 365 days or 366 days, as applicable, and the actual number of days elapsed in that period.
If the date for payment of any amount of principal, premium or interest is not a Business Day at the place of payment, then payment will be made on the next Business Day and the holder hereof will not be entitled to any further interest on such principal, or to any interest on such interest, premium or other amount so payable, in respect of the period from the date for payment to such next Business Day.
Interest hereon shall be payable by cheque mailed by prepaid ordinary mail or by electronic transfer of funds to the registered holder hereof and, subject to the provisions of this Indenture, the mailing of such cheque or the electronic transfer of such funds shall, to the extent of the sum represented thereby (plus the amount of any Taxes deducted or withheld), satisfy and discharge all liability for interest on this Note.
This Note is one of the 2028 Notes of the Issuer issued under the provisions of this Indenture. Reference is hereby expressly made to this Indenture for a description of the terms and conditions upon which this Note and other Notes of the Issuer are or are to be issued and held and the rights and remedies of the holder of this Note and other Notes and of the Issuer and of the Trustee, all to the same effect as if the provisions of this Indenture were herein set forth to all of which provisions the holder of this Note by acceptance hereof assents.
2028 Notes are issuable at a price of $1,000 per $1,000 of principal amount and only in denominations of $1,000 and integral multiples of $1,000. Upon compliance with the provisions of this Indenture, Notes of any denomination may be exchanged for an equal aggregate principal amount of Notes in any other authorized denomination or denominations.
The indebtedness evidenced by this Note, and by all other 2028 Note now or hereafter certified and delivered under this Indenture, is a direct senior secured obligation of the Issuer.
The principal hereof may become or be declared due and payable before the Stated Maturity in the events, in the manner, with the effect and at the times provided in this Indenture.
This Note may be redeemed at the option of the Issuer on the terms and conditions set out in this Indenture at the Redemption Price therein. The right is reserved to the Issuer to purchase Notes (including this Note) for cancellation in accordance with the provisions of this Indenture.
Upon the occurrence of a Change of Control, the Holders may require the Issuer to repurchase such Holder’s Notes, in whole or in part, at a purchase price in cash equal to 101% of the principal amount of such Notes, plus accrued and unpaid interest, if any, to the date of purchase.
This Indenture contains provisions making binding upon all Holders of Notes outstanding thereunder resolutions passed at meetings of such Holders held in accordance with such provisions and instruments signed by the Holders of a specified majority of Notes outstanding (or certain series of Notes outstanding), which resolutions or instruments may have the effect of amending the terms of this Note or this Indenture.
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This Note may only be transferred, upon compliance with the conditions prescribed in this Indenture, in one of the registers to be kept at the principal office of the Trustee in Vancouver, British Columbia and in such other place or places and/or by such other Registrars (if any) as the Issuer with the approval of the Trustee may designate. No transfer of this Note shall be valid unless made on the register by the registered holder hereof or his executors or administrators or other legal representatives, or his or their attorney duly appointed by an instrument in form and substance satisfactory to the Trustee or other registrar, and upon compliance with such reasonable requirements as the Trustee and/or other registrar may prescribe and upon surrender of this Note for cancellation. Thereupon a new Note or Notes in the same aggregate principal amount shall be issued to the transferee in exchange hereof.
This Note shall not become obligatory for any purpose until it shall have been authenticated by the Trustee under this Indenture.
This Note and this Indenture are governed by, and are to be construed and enforced in accordance with, the laws of the Province of British Columbia and the laws of Canada applicable therein.
Capitalized words or expressions used in this Notes shall, unless otherwise defined herein, have the meaning ascribed thereto in this Indenture.
IN WITNESS WHEREOF THE CANNABIST COMPANY HOLDINGSINC. and THE CANNABIST COMPANY HOLDINGS (CANADA) INC. have caused this Note to be signed by its authorized representatives as of [_____________], 202__.
| ISSUER: | ||
|---|---|---|
| THE CANNABIST COMPANY HOLDINGS INC. | ||
| Per: | ||
| Name: | David Hart | |
| Title: | Authorized Signatory | |
| CO-ISSUER: | ||
| THE CANNABIST COMPANY HOLDINGS (CANADA) INC. | ||
| Per: | ||
| Name: | David Hart | |
| Title: | Authorized Signatory |
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(FORM OF TRUSTEE’S CERTIFICATE)
This Note is one of the The Cannabist Company Holdings Inc. and Cannabist Company Holdings (Canada) Inc. 9.25% Senior Secured Notes due December 31, 2028 referred to in this Indenture within mentioned.
| ODYSSEY TRUST COMPANY | |
|---|---|
| Per: | |
| Name: | |
| Title: | |
| Per: | |
| Name: | |
| Title: |
(FORM OF REGISTRATION PANEL)
(No writing hereon except by Trustee or other registrar)
| Date of Registration | In Whose Name Registered | Signature of Trustee or Registrar |
|---|
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto _____________________________, whose address and social insurance number, if applicable are set forth below, this Note (or $_________________ principal amount hereof) of THE CANNABIST COMPANY HOLDINGS INC. AND THE CANNABIST COMPANY HOLDINGS (CANADA) INC. standing in the name(s) of the undersigned in the register maintained by the Issuer with respect to such Note and does hereby irrevocably authorize and direct the Trustee to transfer such Note in such register, with full power of substitution in the premises.
| Dated: | |
|---|---|
| Address of Transferee: | |
| --- | --- |
| (Street Address, City, Province and Postal Code) | |
| Social Insurance Number of Transferee, if applicable: | |
| --- |
If less than the full principal amount of the within Note is to be transferred, indicate in the space provided the principal amount (which must be $1,000 or an integral multiple of $1,000) to be transferred.
In the case of a Note that contains a U.S. restrictive legend, the undersigned hereby represents, warrants and certifies that (one (only) of the following must be checked):
| ¨ | (A) | the<br>transfer is being made to the Issuer; |
|---|---|---|
| ¨ | (B) | the transfer is being made outside the United States in compliance with Rule 904 of Regulation S under the U.S. Securities Act of<br>1933, as amended (the “U.S. Securities Act”), and in compliance with any applicable local securities laws and regulations<br>and the holder has provided herewith the Declaration for Removal of Legend attached as Appendix C to the Indenture, or |
| ¨ | (C) | the transfer is being made in accordance with a transaction that does not require registration under the U.S. Securities Act or any applicable<br>state securities laws and the undersigned has furnished to the Issuer and the Trustee an opinion of counsel of recognized standing or<br>other evidence in form and substance reasonably satisfactory to the Issuer to such effect. |
In the case of a Note that does not contain a U.S. restrictive legend, if the proposed transfer is to, or for the account or benefit of a person in the United States, the undersigned hereby represents, warrants and certifies that the transfer of the Note is being completed pursuant to an exemption from the registration requirements of the U.S. Securities Act and any applicable state securities laws, in which case the undersigned has furnished to the Issuer and the Trustee an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Issuer to such effect.
| 1. | The signature(s) to this assignment must correspond with the name(s) as written upon the face<br>of the Note in every particular without alteration or any change whatsoever. The signature(s) must be guaranteed by a Canadian chartered<br>bank of trust company or by a member of an acceptable Medallion Guarantee Program. Notarized or witnessed signatures are not acceptable<br>as guaranteed signatures. The Guarantor must affix a stamp bearing the actual words: “SIGNATURE GUARANTEED”. |
|---|
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| 2. | The registered holder of this Note is responsible for the payment of any documentary, stamp or other transfer<br>taxes that may be payable in respect of the transfer of this Note. |
|---|
Signature of Guarantor
| Authorized Officer | Signature of transferring registered holder |
|---|---|
| Name of Institution | |
| --- |
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APPENDIX BFORM OF GUARANTEE
(see attached)
[Execution Version]
AMENDED AND RESTATED GUARANTEE
THIS AMENDED AND RESTATED GUARANTEE (“Amended and Restated Guarantee”) dated as of May 29, 2025 is executed by each of the Restricted Subsidiaries signatory hereto (together with each Person executing a Guarantee Supplement as an Additional Guarantor in accordance with this Amended and Restated Guarantee each, individually, a “Guarantor”, and, collectively, the “Guarantors”) in favor of Odyssey Trust Company, as trustee (the “Trustee”), as Trustee under the AR Indenture (as defined below).
RECITALS
WHEREAS, The Cannabist Company Holdings Inc. (F/K/A Columbia Care Inc.), a company subsisting under the laws of the Province of British Columbia ( “CBST”) is party to that certain Indenture dated as of May 14, 2020 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Original Indenture”) between CBST and the Trustee;
WHEREAS, CBST issued senior secured notes (the “Original Notes”) pursuant to the terms of the Original Indenture to certain noteholders;
WHEREAS, to induce the Trustee and the noteholders to enter into the Original Indenture, certain of the Guarantors party hereto (the “Original Guarantors”) guaranteed the obligations of CBST under the Original Indenture pursuant to that certain Guarantee dated as of May 14, 2020 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Original Guarantee”);
WHEREAS, pursuant to, among other things, a plan of arrangement under Section 192 of the Canada Business Corporations Act, CBST, as issuer, and The Cannabist Company Holdings (Canada) Inc., a company subsisting under the laws of Canada (“CBST Canada”, and together with CBST, the “Issuers”), as co-issuer, have entered into that certain Amended and Restated Trust Indenture dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “AR Indenture”; capitalized terms used but not otherwise defined herein shall have the meaning given to such terms in the AR Indenture) with the Trustee;
WHEREAS, the Issuers will issue additional senior secured notes (the “Notes”) in exchange for the Original Notes pursuant to the terms of the AR Indenture to be held by certain noteholders (each a “Noteholder” and, collectively, the “Noteholders”);
WHEREAS, each Guarantor is a direct or indirect Subsidiary of CBST;
WHEREAS, each Guarantor acknowledges that it will derive substantial direct and indirect benefit from the making of loans pursuant to the AR Indenture and is willing to guarantee the Liabilities (as defined below) as hereinafter set forth; and
WHEREAS, as an inducement to the Trustee and the Noteholders to enter into the AR Indenture and make the credit accommodations provided for therein, each Original Guarantor has agreed to execute and deliver this Amended and Restated Guarantee (as an amendment and restatement of the Original Guarantee) and each other Guarantor party hereto has agreed to guarantee the obligations of the Issuer under the AR Indenture and the other Security Documents, all on the terms and conditions set forth in this Amended and Restated Guarantee.
Amended and Restated Guarantee
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Guarantor hereby agrees with the Trustee for the benefit of the Noteholders as follows:
1. Guarantee. Each Guarantor, jointly and severally, unconditionally and irrevocably, as primary obligor and not merely as surety, guarantees the full and prompt payment when due, whether by acceleration or otherwise, and at all times thereafter, of: (a) all obligations (monetary or otherwise) of the Issuers to each of the Trustee and each of the Noteholders (as defined below) under or in connection with the AR Indenture, the Notes the Security Documents and any other document or instrument executed in connection therewith and (b) all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and charges) paid or incurred by the Trustee or any Noteholder in enforcing this Amended and Restated Guarantee, any Security Document or any other applicable document against such Guarantor (all such obligations being herein collectively called the “Liabilities”); provided that the liability of such Guarantor hereunder shall be limited to the maximum amount of the Liabilities that such Guarantor may guarantee without violating any fraudulent conveyance or fraudulent transfer law.
| 2. | Payment. |
|---|
(a) Each Guarantor agrees that if any Event of Default occurs under Article 9 of the AR Indenture, at a time when the Liabilities are not otherwise due and payable (whether due to a judicial stay of acceleration or otherwise), then such Guarantor will pay on demand to the Trustee for the account of the Noteholders forthwith the full amount that would be payable hereunder by such Guarantor if all Liabilities were then due and payable, subject to applicable law.
(b) Section 4.12 of the AR Indenture shall apply to all payments made by each Guarantor under this Amended and Restated Guarantee, and all such payments shall be payable in the currency of the underlying Liability (the “Relevant Currency”). The obligation of each Guarantor under this Amended and Restated Guarantee shall, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the Relevant Currency that Trustee may purchase at the rate of exchange with the sum paid in such other currency (after any premium and costs of exchange) on the Business Day immediately following the day on which Trustee receives such payment. If the amount of the Relevant Currency which may be so purchased is less than the sum originally due to Trustee in the Relevant Currency, each Guarantor agrees, as a separate obligation and notwithstanding any such payment or judgment, to indemnify Trustee against such loss.
Amended and Restated Guarantee
(c) Each Guarantor further agrees that if at any time all or any part of any payment theretofore applied by the Trustee or any Noteholder to any of the Liabilities is or must be rescinded or returned by the Trustee or such Noteholder for any reason whatsoever (including the insolvency, bankruptcy or reorganization of the Issuer or any Guarantor), such Liabilities shall, for purposes of this Amended and Restated Guarantee, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence, notwithstanding such application by the Trustee or such Noteholder, and this Amended and Restated Guarantee shall continue to be effective or be reinstated, as the case may be, as to such Liabilities, all as though such application by the Trustee or such Noteholder had not been made, subject to applicable law.
3. Continuing Obligation. This Amended and Restated Guarantee shall in all respects be a continuing, irrevocable, absolute and unconditional guarantee of payment and performance and not merely a guarantee of collectability and, without limiting the generality of the foregoing, shall not be released, discharged, limited or otherwise affected by:
(a) any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination or release in respect of any Liabilities, security, person or otherwise, including any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination or release of any of the Liabilities, covenants or undertakings of the Issuer under any of the AR Indenture, any Note, any Security Document or any other document or instrument executed in connection therewith or any modification or amendment of or supplement to any of the foregoing;
(b) any loss of or in respect of any security held by or on behalf of the Trustee or any Noteholder, whether occasioned by the fault of the Trustee or any Noteholder or otherwise, including any release, non-perfection, irregularity, defect, unenforceability or invalidity of any such security;
(c) any change in the existence, structure, constitution, name, control or ownership of the Issuer or any other person, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Issuer or any other person or their respective assets;
(d) the existence of any set-off, deduction, abatement, recoupment, appropriation, application, reduction, counterclaim, claim or other right which the Guarantor or the Issuer may have at any time against the Trustee or any other person, whether in connection with any agreement, instrument or other document in connection with the Liabilities or any unrelated transaction;
(e) any release, substitution or addition of any Guarantor or any other guarantor of any of the Liabilities;
(f) any provision of applicable law purporting to prohibit or limit the payment by the Issuer of any Liabilities, and any defense arising by reason of any failure of the Trustee or any of the Noteholders or any other person on their behalf to make any presentment, demand, or protest or to give any other notice, including notice of all of the following: (i) notice of the acceptance of this Amended and Restated Guarantee by the Trustee or any Noteholder, (ii) notice of the existence or creation or non-payment of all or any of the Liabilities including any new Liabilities, (iii) presentment, demand, notice of dishonor, protest, and all other notices whatsoever, and (iv) all diligence in collection or protection of or realization upon any Liabilities or any security for or guarantee of any Liabilities;
Amended and Restated Guarantee
(g) any defense arising by reason of any failure of the Trustee or any other person on behalf of the Trustee or any of the Noteholders to proceed against the Issuer or any other person, or to obtain, register, perfect, apply or exhaust any security held from the Issuer or any other person for the Liabilities or any other obligations, to proceed against, apply or exhaust any security held from the Guarantor or any other person, or to pursue any other remedy available to the Trustee or any of the Noteholders;
(h) any defense arising by reason of the invalidity, illegality or lack of enforceability of the Liabilities or any part thereof or of any security or guarantee in support thereof, in each case by reason of any incapacity, lack of authority, or similar defense of the Issuer or any other person, or by reason of any limitation, postponement or prohibition on the right of the Trustee to payment from any other cause whatsoever other than irrevocable payment or performance, as applicable, in full of the Liabilities;
(i) any defense arising by reason of the failure of the Trustee, or any other person on behalf of the Trustee, to marshal assets;
(j) to the extent permitted under applicable law, any defense based upon any failure of the Trustee or any other Secured Party or any other person on behalf of the Trustee or any other Secured Party to give to the Issuer or the Guarantor notice of any sale or other disposition of any property securing any or all of the Liabilities or any other guarantee thereof, or any notice that may be given in connection with any sale or other disposition of any such property;
(k) any defense based upon or arising out of any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, composition, winding-up, liquidation or dissolution proceeding commenced by or against the Issuer or any other person, including any discharge or bar against collection of any of the Liabilities; or
(l) any other law, event or circumstance or any other act or failure to act or delay of any kind by the Issuer, or any other person, which might, but for the provisions of this Section, constitute a legal or equitable defense to or discharge, limitation or reduction of the Guarantor's obligations under this Amended and Restated Guarantee.
4. Dealing With Issuer and Others. Without limiting any of the foregoing, the Trustee or any Noteholder may, from time to time, at its sole discretion and without notice to any Guarantor, deal in any way with the Issuer or take or fail to take any or all of the following actions without affecting in any way any of the obligations of any Guarantor hereunder, subject, in each case, to applicable law: (a) retain or obtain a security interest in any property to secure any of the Liabilities or any obligation hereunder, (b) retain or obtain the primary or secondary obligation of any obligor or obligors, in addition to each Guarantor, with respect to any of the Liabilities, (c) extend or renew any of the Liabilities for one or more periods (whether or not longer than the original period), alter or exchange any of the Liabilities, or release or compromise any obligation of any of any Guarantor hereunder or any obligation of any nature of any other obligor with respect to any of the Liabilities, (d) release or fail to perfect or preserve any security interest in, or surrender, release or permit any substitution or exchange for, any part of any property securing any of the Liabilities or any obligation hereunder, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such property, and (e) resort to any Guarantor for payment of any of the Liabilities when due, whether or not the Trustee or such Noteholder shall have resorted to any property securing any of the Liabilities or any obligation hereunder or shall have proceeded against any other Guarantor or any other obligor primarily or secondarily obligated with respect to any of the Liabilities.
Amended and Restated Guarantee
5. No Subrogation. Notwithstanding any payment made by or for the account of any Guarantor pursuant to this Amended and Restated Guarantee, no Guarantor shall be subrogated to any right of the Trustee or any Noteholder until such time as the Trustee and the Noteholders shall have received final payment in cash of the full amount of all Liabilities.
6. Attorney’s Fees. Each Guarantor further agrees to pay all expenses (including reasonable attorneys’ fees and charges) paid or incurred by the Trustee or any Noteholder in endeavoring to collect the Liabilities from such Guarantor, or any part thereof; and in enforcing this Amended and Restated Guarantee against such Guarantor, including all manner of participation in or other involvement with (a) bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation proceedings, (b) judicial or regulatory proceedings and (c) workout, restructuring or other negotiations or proceedings (whether or not the workout, restructuring or transaction contemplated thereby is consummated).
7. Additional Liabilities. The creation or existence from time to time of additional Liabilities to the Trustee or the Noteholders or any of them is hereby authorized, without notice to any Guarantor, and shall in no way affect or impair the rights of the Trustee or the Noteholders or the obligations of any Guarantor under this Amended and Restated Guarantee, including any Guarantor’s guarantee of such additional Liabilities.
8. Transfer. The Trustee and any Noteholder may from time to time, without notice to any Guarantor, assign or transfer any of the Liabilities or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Liabilities shall be and remain Liabilities for the purposes of this Amended and Restated Guarantee, and each and every immediate and successive assignee or transferee of any of the Liabilities or of any interest therein shall, to the extent of the interest of such assignee or transferee in the Liabilities, be entitled to the benefits of this Amended and Restated Guarantee to the same extent as if such assignee or transferee were an original Noteholder.
9. No Waiver; Cumulative Remedies. No delay on the part of the Trustee or any Noteholder in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by the Trustee or any Noteholder of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy; nor shall any modification or waiver of any provision of this Amended and Restated Guarantee be binding upon the Trustee or the Noteholder, except as expressly set forth in a writing duly signed and delivered on behalf of the Trustee. No action of the Trustee or any Noteholder permitted hereunder shall in any way affect or impair the rights of the Trustee or any Noteholder or the obligations of any Guarantor under this Amended and Restated Guarantee. For purposes of this Amended and Restated Guarantee, Liabilities shall include all obligations of the Issuer to the Trustee or any Noteholder arising under or in connection with the AR Indenture, any Note, any Security Document or any other document or instrument executed in connection therewith, notwithstanding any right or power of the Issuer or anyone else to assert any claim or defense as to the invalidity or unenforceability of any obligation, and no such claim or defense shall affect or impair the obligations of any Guarantor hereunder. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.
Amended and Restated Guarantee
10. Delivery. Pursuant to the AR Indenture, (a) this Amended and Restated Guarantee has been delivered to the Trustee and (b) the Trustee has been authorized to enforce this Amended and Restated Guarantee on behalf of itself and each of the Noteholders. All payments by any Guarantor pursuant to this Amended and Restated Guarantee shall be made to the Trustee for the benefit of the Noteholders (and any amount received by the Trustee for the account of a Noteholder shall, subject to the other provisions of this Amended and Restated Guarantee, be deemed received by such Noteholder upon receipt by the Trustee).
11. Successors and Assigns. This Amended and Restated Guarantee shall be binding upon each Guarantor and the successors and assigns of such Guarantor; and to the extent the Issuer or any Guarantor is a partnership, corporation, limited liability company or other entity, all references herein to the Issuer and any Guarantor, respectively, shall be deemed to include any successor or successors, whether immediate or remote, to such entity. Each Guarantor shall be jointly and severally obligated hereunder and such obligations shall remain in full force and effect until the earlier of (i) the payment in full in cash of all Liabilities, (ii) the termination of all obligations to extend credit under the AR Indenture and (iii) all other conditions to the release and discharge of the Guarantor specified under the AR Indenture having been met.
12. Governing Law. THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS AMENDED AND RESTATED GUARANTEE SHALL BE GOVERNED BY THE LAWS OF THESTATE OF NEW YORK, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORKGENERAL OBLIGATIONS LAW), EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST, OR REMEDIES HEREUNDER, INRESPECT OF ANY PARTICULAR COLLATERAL ARE MANDATORILY GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. Whenever possible, each provision of this Amended and Restated Guarantee and any other statement, instrument or transaction contemplated hereby or relating hereto shall be interpreted so as to be effective and valid under such applicable law, but if any provision of this Amended and Restated Guarantee or any other statement, instrument or transaction contemplated hereby or relating hereto is held to be prohibited or invalid under such applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision, the remaining provisions of this Amended and Restated Guarantee or any other statement, instrument or transaction contemplated hereby or relating hereto.
Amended and Restated Guarantee
13. Severability. If any of the provisions of this Amended and Restated Guarantee shall be held invalid or unenforceable, this Amended and Restated Guarantee shall be construed as if not containing such provisions, and the rights and obligations of the parties hereto shall be construed and enforced accordingly.
14. Section Headings. The section headings used in this Amended and Restated Guarantee are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
15. Time of the Essence. Time shall be of the essence of every provision of this Guarantee.
16. Inconsistencies. To the extent of any conflict or inconsistency between the provisions of the AR Indenture and this Amended and Restated Guarantee, the AR Indenture shall prevail.
17. Final Agreement. This Amended and Restated Guarantee contains the entire and exclusive agreement of the parties hereto with reference to the matters discussed herein. This Amended and Restated Guarantee supersedes all prior drafts and communications with respect thereto.
18. Notices. All notices and communications required or provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail as follows:
| (a) | if to a Guarantor, at its address set forth on its signature page hereto; and |
|---|---|
| (b) | if<br>to the Trustee, at 323-409 Granville Street, Vancouver, BC V6C 1T2, Attn: Corporate Trust. |
Amended and Restated Guarantee
19. Counterparts. This Amended and Restated Guarantee may be executed in any number of counterparts and by the different parties hereto on separate counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute one and the same Amended and Restated Guarantee. Delivery of a counterpart hereof, or a signature page hereto, by facsimile or in a .pdf or similar file shall be effective as delivery of a manually executed original counterpart thereof.
20. Additional Guarantor. At any time after the date of this Amended and Restated Guarantee, one or more additional Persons may become parties hereto by executing and delivering to the Trustee a guarantee supplement in substantially the form of Exhibit A hereto (each a “Guarantee Supplement”). Such Person shall be referred to as an “Additional Guarantor” and shall be and become a Guarantor, and each reference in this Amended and Restated Guarantee to “Guarantor” shall also mean and refer to such Additional Guarantor.
21. Modifications. Other than automatic modifications related to the addition of a party hereto as described in the preceding paragraph, no amendment, modification or waiver of, or consent with respect to, any provision of this Amended and Restated Guarantee shall be effective unless the same shall be in writing and signed and delivered by the Trustee, and then such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
22. Jurisdiction. EACH GUARANTOR AND THE COLLATERAL TRUSTEE ON BEHALF OF ITSELF AND EACH HOLDER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTIONOF ANY UNITED STATES FEDERAL OR STATE COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THISAMENDED AND RESTATED GUARANTEE, IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD ANDDETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THECOLLATERAL TRUSTEE TO BRING PROCEEDINGS AGAINST ANY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANYGUARANTOR AGAINST THE COLLATERAL TRUSTEE OR ANY AFFILIATE OF THE COLLATERAL TRUSTEE INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANYWAY ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS AMENDED AND RESTATED GUARANTEE SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEWYORK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR HEREBY WAIVES ALL RIGHTS TO A JUDICIAL HEARING OF ANY KIND PRIOR TO THECOLLATERAL TRUSTEE’S EXERCISE OF ITS RIGHTS TO POSSESSION OF THE COLLATERAL FOLLOWING THE OCCURRENCE AND DURING THE CONTINUANCEOF AN EVENT OF DEFAULT WITHOUT JUDICIAL PROCESS OR OF ITS RIGHTS TO REPLEVY, ATTACH OR LEVY UPON THE COLLATERAL WITHOUT PRIOR NOTICE ORHEARING. EACH GUARANTOR ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY COUNSEL OF ITS CHOICE WITH RESPECT TO THIS PROVISION AND THIS AMENDEDAND RESTATED GUARANTEE. EACH GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, TOTHE ADDRESS SET FORTH BENEATH ITS NAME ON SCHEDULE “I” (OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THETRUSTEE AS ITS ADDRESS FOR NOTICES HEREUNDER) OR BY PERSONAL SERVICE AT SUCH ADDRESS OR ELSEWHERE.
Amended and Restated Guarantee
23. Waiver of Jury Trial. EACH GUARANTOR AND THE TRUSTEE AND EACH NOTEHOLDER, BY THEIR ACCEPTANCE OF THIS AMENDED AND RESTATED GUARANTEE, IRREVOCABLYWAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDED AND RESTATED GUARANTEE, ANYOTHER DOCUMENT ASSOCIATED HEREWITH AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTUREBE DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY.
24. Amendment and Restatement. This Amended and Restated Guarantee constitutes an amendment and restatement of the Original Guarantee, and no novation of the obligations of the Original Guarantors under the Original Guarantee shall be deemed to have occurred.
[Signature pages follow.]
Amended and Restated Guarantee
IN WITNESS WHEREOF, this Amended and Restated Guarantee has been duly executed and delivered as of the date first above written.
| Address for Guarantors: | GUARANTORS: | |
|---|---|---|
| c/o The Cannabist Company Holdings Inc | ||
| 321 Billerica Road | BEACON HOLDINGS, LLC | |
| Suite 204 | ||
| Chelmsford, MA 01824 | BY: | (Signed) “David Hart” |
| Attn: Dvid Hart, Chief Executive Officer | NAME: | DAVID HART |
| Email: david.hart@cannabistcompany.com | TITLE: | PRESIDENT |
| CANNASCEND ALTERNATIVE LOGAN, L.L.C. | ||
| --- | --- | |
| BY: | (Signed) “David Hart” | |
| NAME: | DAVID HART | |
| TITLE: | PRESIDENT | |
| CANNASCEND ALTERNATIVE, LLC | ||
| BY: | (Signed) “David Hart” | |
| NAME: | DAVID HART | |
| TITLE: | PRESIDENT | |
| CC CALIFORNIA LLC | ||
| BY: | (Signed) “David Hart” | |
| NAME: | DAVID HART | |
| TITLE: | PRESIDENT | |
| CC OH REALTY LLC | ||
| BY: | COLUMBIA CARE LLC, ITS MEMBER | |
| BY: | (Signed) “David Hart” | |
| NAME: | DAVID HART | |
| TITLE: | CEO | |
| COLUMBIA CARE CO INC. | ||
| BY: | (Signed) “David Hart” | |
| NAME: | DAVID HART | |
| TITLE: | PRESIDENT |
Amended and Restated Guarantee
| COLUMBIA CARE DE MANAGEMENT, LLC | |
|---|---|
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| COLUMBIA CARE DELAWARE, LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| COLUMBIA CARE INDUSTRIAL HEMP LLC | |
| BY: COLUMBIA CARE LLC, ITS MEMBER | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | CEO |
| COLUMBIA CARE LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | CEO |
| COLUMBIA CARE MARYLAND LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| COLUMBIA CARE MD, LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| COLUMBIA CARE NEW JERSEY LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
Amended and Restated Guarantee
| COLUMBIA CARE NY LLC | |
|---|---|
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| COLUMBIA CARE OH LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| COLUMBIA CARE PENNSYLVANIA LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| COLUMBIA CARE WV LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| CORSA VERDE LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| FUTUREVISION, LTD. | |
| BY: COLUMBIA CARE CO INC., ITS MEMBER | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| GREEN LEAF EXTRACTS, LLC | |
| BY: GREEN LEAF MEDICAL, LLC, ITS MEMBER | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
Amended and Restated Guarantee
| GREEN LEAF MEDICAL OF VIRGINIA, LLC | |
|---|---|
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| GREEN LEAF MEDICAL, LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| GREEN LEAF MEDICALS LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| INFUSIONZ, LLC | |
| BY: BEACON HOLDINGS, LLC, ITS MEMBER | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| MJ BRAIN BANK, LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| PATRIOT CARE CORP. | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| ROCKY MOUNTAIN TILLAGE, LLC | |
| BY: BEACON HOLDINGS, LLC, ITS MEMBER | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
Amended and Restated Guarantee
| THE GREEN SOLUTION, LLC | |
|---|---|
| BY: BEACON HOLDINGS, LLC, ITS MEMBER | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| TIME FOR HEALING, LLC | |
| BY: GREEN LEAF MEDICAL, LLC, ITS MEMBER | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| WELLNESS INSTITUTE OF MARYLAND, LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| AVUM, LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| CC PROCUREMENT LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| COL. CARE (DELAWARE) LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| GREEN LEAF MANAGEMENT, LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
Amended and Restated Guarantee
| GREEN LEAF MEDICAL OHIO II, LLC | |
|---|---|
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| GREEN LEAF MEDICAL OHIO III, LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
| TGS COLORADO MANAGEMENT, LLC | |
| BY: | (Signed) “David Hart” |
| NAME: | DAVID HART |
| TITLE: | PRESIDENT |
Amended and Restated Guarantee
EXHIBIT A
SUPPLEMENT TO GUARANTEE
Reference is hereby made to the Amended and Restated Guarantee (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Amendedand Restated Guarantee”), dated as of May 29, 2025, made by each of the Restricted Subsidiaries of The Cannabist Company Holdings Inc., a corporation incorporated under the Business Corporations Act (British Columbia) (“CBST”) and The Cannabist Company Holdings (Canada) Inc. (collectively with CBST, the “Issuers”) on the signature pages thereto (each an “Initial Guarantor”, and together with any additional Persons which become parties to the Guarantee by executing Guarantee Supplements thereto substantially similar in form and substance hereto, the “Guarantors”), in favor of Odyssey Trust Company, as trustee (the “Trustee”), as Trustee under that certain Amended and Restated Trust Indenture dated as of May 29, 2025, between the Issuers and the Trustee (the “AR Indenture”), for the ratable benefit of certain noteholders (each a “Noteholder” and, collectively, the “Noteholders”) pursuant to the terms of the AR Indenture. Each capitalized term used herein and not defined herein shall have the meaning given to it in the Amended and Restated Guarantee.
The undersigned, [NAME OF NEW GUARANTOR], a [__________] [corporation/[partnership/limited liability company] (the “New Guarantor”), hereby agrees, as of the date first above written, to become, and does hereby become, a Guarantor under the Amended and Restated Guarantee as if it were an original party thereto and agrees that each reference in the Amended and Restated Guarantee to a Guarantor shall also mean and refer to the New Guarantor.
The New Guarantor hereby jointly and severally (together with each other Guarantor) unconditionally and irrevocably guarantees the full and prompt payment when due, whether at stated maturity, by acceleration or otherwise, all the Liabilities, subject to all the terms of the Amended and Restated Guarantee.
In accordance with Section 7.18 of the AR Indenture and the terms of the Amended and Restated Guarantee, the New Guarantor hereby agrees that, from and after the date hereof, it shall be a “Guarantor” for all purposes of the AR Indenture and the Amended and Restated Guarantee, with all the rights and obligations of a Guarantor under the Amended and Restated Guarantee.
By its execution below, the New Guarantor represents and warrants as to itself that all of the representations and warranties contained in the Amended and Restated Guarantee are true and correct in all respects as of the date hereof.
This Supplement to Guarantee shall be governed by and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the New Guarantor has executed and delivered this Supplement to Guarantee as of this __________ day of _________, 20___.
| [NAME OF NEW GUARANTOR] |
|---|
| By: |
| Name: |
| Title: |
APPENDIX C
PART I – INITIAL GUARANTORS
| Patriot Care Corp |
|---|
| Columbia Care Pennsylvania LLC |
| Columbia Care Industrial Hemp LLC |
| Columbia Care NY LLC |
| Columbia Care New Jersey LLC |
| CC OH Realty LLC |
| CC California LLC |
| Columbia Care MD LLC |
| Columbia Care DE Management LLC |
| Columbia Care Delaware, LLC (non-profit) |
| Columbia Care LLC |
| Columbia Care Maryland LLC |
| Beacon Holdings, LLC |
| MJ Brain Bank, LLC |
| The Green Solution, LLC |
| Rocky Mountain Tillage, LLC |
| Infuzionz LLC |
| Green Leaf Extracts, LLC |
| Time for Healing, LLC |
| Columbia Care OH LLC |
| Corsa Verde, LLC |
| Green Leaf Medicals, LLC |
| Green Leaf Medical of Virginia, LLC |
| Green Leaf Medical, LLC |
| Columbia Care CO Inc. |
| Futurevision, Ltd. |
| Wellness Institute of Maryland, LLC |
| Cannascend Alternative, LLC |
| Cannascend Alternative Logan, L.L.C. |
| Columbia Care WV LLC |
| TGS Colorado Management LLC |
| Avum LLC |
| CC Procurement LLC |
| Col. Care (Delaware) LLC |
| Green Leaf Management LLC |
| Green Leaf Medical of Ohio II LLC |
| Green Leaf Medical of Ohio III LLC |
C-1
| PART II – UNRESTRICTED SUBSIDIARIES |
|---|
| Tetra Holdings LLC |
| Tetra Finco LLC |
| Tetra Opco LLC |
| CC Logistics Services LLC |
| Oveom LLC |
| Columbia Care International Holdco LLC |
| Columbia Care UK LTD |
| Columbia Care Deutschland GmbH |
| Columbia Care NY Realty LLC |
| Columbia Care NY RO LLC |
| Columbia Care MO LLC |
| Columbia Care NJ Realty LLC |
| Columbia Care MD Realty LLC |
C-2
APPENDIX D
[***]
D-1
[***]
D-2
[***]
D-3
APPENDIX EPERMITTED LIENS
| File Number | Secured Party | Debtor | File Date | Collateral Classification / Description |
|---|---|---|---|---|
| Colorado (Secretary of State) | ||||
| 20192094432 (Original)<br><br> <br>20242086801 (Continuation) | GF 4650 Nome Street | Futurevision, Ltd. f/k/a Medicine Man Production | 10/10/2019 (Original)<br><br> <br>09/20/2024 (Continuation) | Lease Equipment<br><br> <br>Continuation of the original file number 20192094432<br> filed 10/10/2019 |
| 20202128686 | Xtraction Services, Inc. | Infuzionz, LLC | 11/18/2020 | Leased Equipment |
| 20212051362 | Xtraction Services, Inc. | Rocky Mountain Tillage, LLC | 05/29/2021 | Leased Equipment |
| 20212064015 | Xtraction Services, Inc. | Rocky Mountain Tillage, LLC | 07/02/2021 | Leased Equipment |
| 20212064278 | Xtraction Services, Inc. | Rocky Mountain Tillage, LLC | 07/06/2021 | Leased Equipment |
| 20212064018 | Xtraction Services, Inc. | The Green Solution, LLC | 07/02/2021 | Leased Equipment |
| Delaware (Secretary of State) | ||||
| 20238636291 | 110-160 West 84th Avenue Trust | Columbia Care CO Inc. | 12/18/2023 | Lease Equipment |
| 20208078554 | Xtraction Services, Inc. | Columbia Care LLC | 11/18/2020 | Leased Equipment |
| 20212722545 | Xtraction Services, Inc. | Columbia Care LLC | 04/07/2021 | Leased Equipment |
| 20213309797 (Original)<br><br> <br>20231985877 (Amended) | Xtraction Services, Inc. | Columbia Care LLC | 04/28/2021 (Original)<br><br> <br>03/15/2023 (Amended) | Leased Equipment<br><br> <br>Amendment to the original file number 20213309797<br> filed 4/28/2021 to Restate the Collateral |
| 20214190212 | Xtraction Services, Inc. | Columbia Care LLC | 05/29/2021 | Leased Equipment |
| 20210348812 (Original)<br><br> <br>20210363803 (Amended)<br><br> <br>20210370279 (Amended) | Xtraction Services, Inc. | Columbia Care LLC | 12/17/2021 (Original)<br><br> <br>12/17/2021 (Amended)<br><br> <br>12/18/2021 (Amended) | Leased Equipment<br><br> <br>Amendment to the original file number 20210348812<br> filed 12/17/2021 to Delete Specific Collateral<br><br> <br>Amendment to the original file number 20210348812<br> filed 12/17/2021 to Delete Specific Collateral |
E-1
| File Number | Secured Party | Debtor | File Date | Collateral Classification / Description |
|---|---|---|---|---|
| 20210363266 | Xtraction Services, Inc. | Columbia Care LLC | 12/17/2021 | Leased Equipment |
| 20210419746 | Xtraction Services, Inc. | Columbia Care LLC | 12/20/2021 | Leased Equipment |
| 20210422286 | Xtraction Services, Inc. | Columbia Care LLC | 12/20/2021 | Leased Equipment |
| 20210464650 | Xtraction Services, Inc. | Columbia Care LLC | 12/21/2021 | Leased Equipment |
| 20210464858 | Xtraction Services, Inc. | Columbia Care LLC | 12/21/2021 | Leased Equipment |
| 20220124354 | Xtraction Services, Inc. | Columbia Care LLC | 01/05/2022 | Leased Equipment |
| 20220481051 | Xtraction Services, Inc. | Columbia Care LLC | 01/19/2022 | Leased Equipment |
| 20235495949 | East West Bank | Columbia Care DE Realty LLC | 08/10/2023 | Blanket Lien |
| Illinois (Secretary of State) | ||||
| 26708583 FS | Xtraction Services, Inc. | Curative Health Cultivation LLC | 11/19/2020 | Leased Equipment |
| 27802192 FS | Xtraction Services, Inc. | Curative Health Cultivation LLC | 10/21/2021 | Leased Equipment |
| 027952070 | Xtraction Services, Inc. | Curative Heath Cultivation LLC | 12/07/2021 | Leased Equipment |
| Massachusetts (Secretary of State) | ||||
| 202072264920 | Xtraction Services, Inc. | Patriot Care Corp. | 11/18/2020 | Leased Equipment |
| 202173898600 | Xtraction Services, Inc. | Patriot Care Corp. | 01/14/2021 | Leased Equipment |
| Maryland (Department of Assessments & Taxation) | ||||
| 230809-1646000 | East West Bank | Columbia Care MD Realty LLC | 08/09/2023 | Blanket Lien |
E-2
| File Number | Secured Party | Debtor | File Date | Collateral Classification / Description |
|---|---|---|---|---|
| New Jersey (Division of Revenue & Enterprise Services) | ||||
| 54902233 | Xtraction Services, Inc. | Columbia Care New Jersey LLC | 11/18/2020 | Leased Equipment |
| 54999664 | Xtraction Services, Inc. | Columbia Care New Jersey LLC | 01/14/2021 | Leased Equipment |
| 55243421 | Xtraction Services, Inc. | Columbia Care New Jersey LLC | 06/01/2021 | Leased Equipment |
| 55389051 | Xtraction Services, Inc. | Columbia Care New Jersey LLC | 08/17/2021 | Leased Equipment |
| 55389134 | Xtraction Services, Inc. | Columbia Care New Jersey LLC | 08/17/2021 | Leased Equipment |
| 55524513 | Xtraction Services, Inc. | Columbia Care New Jersey LLC | 10/22/2021 | Leased Equipment |
| 55877477 | Xtraction Services, Inc. | Columbia Care New Jersey LLC | 04/11/2022 | Leased Equipment |
| New York (Secretary of State) | ||||
| 202008050325426 | Forum Financial Services, Inc. | Columbia Care NY LLC | 08/05/2020 | Leased Equipment |
| 202107060242852 | Xtraction Services, Inc. | Columbia Care NY LLC | 07/06/2021 | Leased Equipment |
| 202108190307215 | Xtraction Services, Inc. | Columbia Care NY LLC | 08/19/2021 | Leased Equipment |
| 202110250395799 | Xtraction Services, Inc. | Columbia Care NY LLC | 10/25/2021 | Leased Equipment |
| 202204110149243 | Xtraction Services, Inc. | Columbia Care NY LLC | 04/11/2022 | Leased Equipment |
| Ohio (Secretary of State) | ||||
| OH00254295968 | Xtraction Services, Inc. | Columbia Care OH LLC | 07/02/2021 | Leased Equipment |
| OH00258579510 | Xtraction Services, Inc. | Columbia Care OH LLC | 12/07/2021 | Leased Equipment |
| West Virginia (Secretary of State) | ||||
| 2021E040800021 | Xtraction Services, Inc. | Columbia Care WV LLC | 04/18/2021 | Leased Equipment |
| 2021E042900038 | Xtraction Services, Inc. | Columbia Care WV LLC | 04/29/2021 | Leased Equipment |
| 2022E010600033 | Xtraction Services, Inc. | Columbia Care WV LLC | 01/06/2022 | Leased Equipment |
E-3
Exhibit 4.2
THE CANNABIST COMPANY HOLDINGS INC., AS ISSUER
THE CANNABIST COMPANY HOLDINGS (CANADA) INC.,AS CO-ISSUER
AND
ODYSSEY TRUST COMPANY, AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
Dated as of May 29, 2025
Providing for the issuance of $19,200,000 aggregate principal amount of 9.00% Senior Secured Convertible Notes due December 31, 2028
TABLE OF CONTENTS
| ARTICLE 1 | ||
|---|---|---|
| DEFINITION AND INTERPRETATION | 3 | |
| Section 1.1 | To Be Read With Indenture | 4 |
| Section 1.2 | Definitions | 4 |
| Section 1.3 | Conflicts with Indenture | 4 |
| Section 1.4 | Headings,etc. | 5 |
| Section 1.5 | Governing Law | 5 |
| ARTICLE 2 | ||
| 2028 CONVERTIBLE NOTES | 5 | |
| Section 2.1 | Creation and Designation of 2028 Convertible Notes | 5 |
| Section 2.2 | Aggregate Principal Amount | 5 |
| Section 2.3 | Authentication | 5 |
| Section 2.4 | Date of Issue and Maturity | 5 |
| Section 2.5 | Permitted Pari-Passu Indebtedness and First-Lien Indebtedness | 5 |
| Section 2.6 | Currency | 6 |
| Section 2.7 | Interest | 6 |
| Section 2.8 | Form of 2028 Convertible Notes | 6 |
| Section 2.9 | Redemptions and Market Purchases | 6 |
| Section 2.10 | Additional Amounts Payable on 2028 Convertible Notes | 7 |
| Section 2.11 | Appointment | 8 |
| ARTICLE 3 | ||
| CONVERSION OF NOTES | 9 | |
| Section 3.1 | Note Conversion | 9 |
| Section 3.2 | [Reserved] | 10 |
| Section 3.3 | Transfer Fees and Taxes | 10 |
| Section 3.4 | Note Agency | 10 |
| Section 3.5 | Securities Restrictions | 11 |
| Section 3.6 | Certain Limitations on Conversion | 11 |
| ARTICLE 4 | ||
| ADJUSTMENT OF NUMBER OF COMMON SHARES AND CONVERSION PRICE | 12 | |
| Section 4.1 | Adjustment of Number of Common Shares and Conversion Price | 12 |
| Section 4.2 | Entitlement to Common Shares on Conversion of 2028 Convertible Notes | 15 |
| Section 4.3 | No Adjustment for Certain Transactions | 16 |
| Section 4.4 | Determination by Auditors | 16 |
| Section 4.5 | Proceedings Prior to any Action Requiring Adjustment | 16 |
| Section 4.6 | Certificate of Adjustment | 16 |
| Section 4.7 | Notice of Special Matters | 16 |
| Section 4.8 | Protection of Trustee | 17 |
| Section 4.9 | Other Adjustments | 17 |
| Section 4.10 | Participation by Holder | 17 |
| ARTICLE 5 | ||
| MISCELLANEOUS | 17 | |
| Section 5.1 | Acceptance of Trust | 17 |
| Section 5.2 | Confirmation of Indenture | 17 |
| Section 5.3 | Effective Date | 17 |
| Section 5.4 | Counterparts | 18 |
| Section 5.5 | Fax/Email | 18 |
| Section 5.6 | Force Majeure | 18 |
| Section 5.7 | Trial by Jury | 18 |
| Schedule “B” | ||
| CONVERSION NOTICE | 1 |
ADDENDA
SCHEDULE A – FORM OF 2028CONVERTIBLE NOTE
SCHEDULE B – FORM OF CONVERSIONNOTICE
THISFIRST SUPPLEMENTAL INDENTURE dated as of May 29, 2025
BETWEEN:
THECANNABIST COMPANY HOLDINGS INC., a company subsisting under the laws of the Province of British Columbia (hereinafter called the “Issuer”),
THECANNABIST COMPANY HOLDINGS (CANADA) INC., a company subsisting under the laws of Canada (hereinafter called the “Co-Issuer” and together with the Issuer, the “Issuers” and each an “Issuer”),
- and -
ODYSSEYTRUST COMPANY, a trust company incorporated under the laws of the Province of Alberta authorized to carry on the business of a trust company in the Province of British Columbia (hereinafter called the “Trustee”).
WHEREAS the Issuer and the Co-Issuer have entered into an amended and restated trust indenture dated as of May 29, 2025 (the “Indenture”);
ANDWHEREAS pursuant to Section 14.5 of the Indenture, the Issuers and the Trustee may enter into Supplemental Indentures providing for the issue of any series of Notes and for establishing the terms, provisions and conditions of a particular series of Notes;
ANDWHEREAS this First Supplemental Indenture is entered into to provide for the issuance of Notes to be designated as “9.00% Senior Secured Convertible Notes due 2028” pursuant to the Indenture and establishing the terms, provisions and conditions of the Notes;
ANDWHEREAS the foregoing recitals are made as representations and statements of fact by the Issuer and not by the Trustee;
NOWTHEREFORE THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH that in consideration of the foregoing and the mutual agreements contained herein (the receipt and adequacy of which are acknowledged), the parties agree as follows:
ARTICLE 1DEFINITION AND INTERPRETATION
Section 1.1 ToBe Read With Indenture.
This First Supplemental Indenture is a supplemental indenture to the Indenture. The Indenture and this First Supplemental Indenture (except for Article 4) will be read together and will have effect as though all the provisions of both indentures were contained in one instrument. If any terms of the Indenture are inconsistent with the express terms or provisions hereof, the terms of this First Supplemental Indenture shall prevail to the extent of the inconsistency.
-4-
Section 1.2 Definitions.
| (1) | All terms which are defined in the Indenture and used but not defined in this First Supplemental Indenture<br>have the meanings ascribed to them in the Indenture, as such meanings may be amended or supplemented by this First Supplemental Indenture.<br>The Indenture shall be amended by adding the following definitions to Section 1.1 (Definitions) of the Amended and Restated<br>Indenture (with all references to Sections in the following definitions to refer, unless otherwise specified, to sections, subsections<br>or clauses of this First Supplemental Indenture): |
|---|
“2028 Convertible Notes” means the 9.00% Senior Secured Convertible Notes due December 31, 2028, unless extended by the Issuer in accordance with the terms of the Indenture.
“2028 Convertible Notes Certificate” has the meaning given to it in Section 2.8(1).
“2028 Convertible Notes MaturityDate” has the meaning given to it in Section 2.4.
“2028 Convertible Note RecordDate” means the close of business on June 15 and December 15 immediately preceding the relevant Interest Payment Date.
“CanadianSecurities Legend” means the legend identified as such in set out in Schedule "A" hereto.
“Common Shares” means the common shares in the capital of the Issuer.
“Conversion Notice” has the meaning given to it in Section 3.1(7).
“Conversion Period” has the meaning given to it in Section 3.1(1).
“Conversion Price” has the meaning given to it in Section 3.1(1).
“Definitive Note” means a certificated 2028 Convertible Note registered in the name of the Holder thereof and issued in accordance with this First Supplemental Indenture, substantially in the form set out herein, except that such 2028 Convertible Note will not bear the Global Note Legend.
“Global Notes” means the Regulation D Global Notes deposited with or on behalf of and registered in the name of the Depository or its nominee, substantially in the form of Schedule "A" hereto and that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with the applicable provisions of the Indenture.
“InterestPayment Date” means June 30 and December 31 of each year that the 2028 Convertible Notes are outstanding and commencing on December 31, 2025**.**
“Interest Period” means the period commencing on the later of (a) the applicable date of issue of the 2028 Convertible Notes and (b) the immediately preceding Interest Payment Date on which interest has been paid for such 2028 Convertible Notes, and ending on the day immediately preceding the Interest Payment Date in respect of which interest is payable for such 2028 Convertible Notes.
“NoteShare” has the meaning given to it in Section 3.1(1).
Section 1.3 Conflictswith Indenture
In the event of any inconsistency between the meaning given to a term in the Indenture and the meaning given to the same term in this First Supplemental Indenture, the meaning given to the term in this First Supplemental Indenture shall prevail to the extent of the inconsistency; provided, however, that the terms and provisions of this First Supplemental Indenture may modify or amend the terms and provisions of the Indenture solely as applied to the 2028 Convertible Notes.
If any provisions hereof limits, qualifies or conflicts with the duties imposed by any of Sections 310 to 317, inclusive, through operation of Section 318 (c) of the Trust Indenture Act, such imposed duties shall control.
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Section 1.4 Headings, etc.
The division of this First Supplemental Indenture into Articles, Sections and paragraphs, the inclusion of a table of contents and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this First Supplemental Indenture.
Section 1.5 GoverningLaw.
This First Supplemental Indenture shall be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein.
ARTICLE 22028 CONVERTIBLE NOTES
Section 2.1 Creationand Designation of 2028 Convertible Notes
In accordance with the Indenture and this First Supplemental Indenture, the Issuer is authorized to issue a series of Notes designated “9.00% Senior Secured Convertible Notes due 2028” having the terms set forth in this Article 2.
Section 2.2 AggregatePrincipal Amount
The aggregate principal amount of 2028 Convertible Notes which may be issued under this First Supplemental Indenture shall be $19,200,000.
Section 2.3 Authentication
The Trustee shall initially authenticate one or more Global Notes and/or Definitive Notes, as directed by the Issuer in the Authentication Order, for original issue on the Issue Date in an aggregate principal amount of $19,200,000 or otherwise to permit transfers or exchanges in accordance with Section 5.6 of the Indenture upon receipt by the Trustee of a duly executed Authentication Order.
Section 2.4 Dateof Issue and Maturity
The 2028 Convertible Notes will be dated May 29, 2025 and the 2028 Convertible Notes will become due and payable, together with all accrued and unpaid interest thereon, on December 31, 2028 (the “2028 Convertible Notes Maturity Date”). Notwithstanding the foregoing and provided the Issuer is not in Default, the Issuer may, in its sole discretion, elect to extend the 2028 Convertible Note Maturity Date to June 30, 2029 and subsequently to December 31, 2029 at any time upon (i) a concurrent election to extend the maturity of any of the 2028 Notes or the 2028 Convertible Notes, and (ii) 30 days notice, by mailing or electronically transmitting a notice to the Trustee and Holders (the “Extension Notice”) of its intention to extend the 2028 Convertible Note Maturity Date. Upon the Holders’ receipt of (i) a payment, in cash, equal to 0.5% of the aggregate principal amount of the 2028 Convertible Notes then outstanding, to the Trustee for the distribution to each Holder of the 2028 Convertible Notes on a pro rata basis, and (ii) an Extension Notice for the 2028 Convertibles Notes (a copy of which shall be provided to the Holders by the Trustee), the 2028 Convertible Notes Maturity Date shall be deemed to be June 30, 2029 or December 31, 2029, as applicable, without any further action on the part of the Issuer or the Trustee.
Section 2.5 PermittedPari-Passu Indebtedness and First-Lien Indebtedness
The 2028 Convertible Notes authorized hereunder shall be deemed Permitted Pari-Passu Indebtedness for the purposes of Section 7.10(b)(i) of the Indenture and shall be a direct senior secured obligation of the Issuer hereby automatically guaranteed by the Guarantors pursuant to the Indenture and the Subsidiary Guarantees and automatically secured by a First-Priority Lien in certain Collateral of the Issuer and Guarantors in favour of the Collateral Trustee pursuant to the Security Documents and, for greater certainty, shall be First-Lien Indebtedness of the Issuer ranking equally and rateably with all other First-Lien Indebtedness of the Issuer pursuant to Section 2.1 of the Indenture.
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Section 2.6 Currency
The principal of the 2028 Convertible Notes and interest thereon and all sums that may at any time become payable thereon, whether at the 2028 Convertible Notes Maturity Date or otherwise, shall be payable in lawful money of the United States of America as provided herein.
Section 2.7 Interest
| (1) | The 2028 Convertible Notes will bear interest on the unpaid principal amount thereof at the rate of 9.00%<br>per annum from their respective Issue Date to, but excluding, the 2028 Convertible Notes Maturity Date, compounded semi-annually and payable<br>in arrears on each Interest Payment Date. The first Interest Payment Date for the initial 2028 Convertible Notes will be December 31,<br>2025. |
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| (2) | Interest will be payable in respect of each Interest Period (including after the 2028 Convertible Notes<br>Maturity Date, default and judgment, with interest overdue on principal and interest at a rate that is 1% higher than the applicable rate<br>on the 2028 Convertible Notes) on each Interest Payment Date in accordance with Section 3.11 and Section 3.14 of the Indenture.<br>Interest on any 2028 Convertible Note will accrue from its respective Issue Date or, if interest has already been paid, from and including<br>the last Interest Payment Date therefor to which interest has been paid or made available for payment. Interest will be computed on the<br>basis of a 365-day or 366-day year, as applicable, and will be payable in equal semi-annual amounts; except that interest in respect of<br>any period that is shorter than a full semi-annual interest period will be computed on the basis of a 365-day or 366-day year, as applicable,<br>and the actual number of days elapsed in that period. |
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Section 2.8 Form of2028 Convertible Notes
| (1) | The Trustee shall authenticate one or more Global Notes and /or Definitive Notes, which shall be in the<br>form substantially set out in Schedule "A" hereto (the “2028 Convertible Notes Certificate”) with such insertions,<br>deletions, substitutions and variations as may be required or permitted by the terms of the Indenture or as may be required to comply<br>with any law or the rules of the Depository. |
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| (2) | The 2028 Convertible Notes shall bear such distinguishing letters, numbers and legends as the Trustee<br>and the Issuer may approve, including such legend as may be set out in Schedule "A" hereto, notwithstanding Section 3.3(h) of<br>the Indenture which does not apply to the 2028 Convertible Note. The 2028 Convertible Notes shall include the Canadian Securities Legend.<br>The 2028 Convertible Notes issued as Global Notes shall also include the Global Note Legend. |
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Section 2.9 Redemptionsand Market Purchases
| (1) | The Issuer is not required to make mandatory redemption or sinking fund payments with respect to the 2028<br>Convertible Notes; provided, however, that the Issuer may be required to offer to purchase the 2028 Convertible Notes pursuant to Sections<br>7.14 and 7.15 of the Indenture. |
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| (2) | The Issuer may at any time and from time to time purchase the 2028 Convertible Notes (including any Additional<br>Notes) by means other than a redemption, whether by a tender offer, open market purchases, negotiated transactions, private agreement<br>or otherwise at any price in accordance with Applicable Securities Legislation, the U.S. federal<br>securities laws, and the applicable securities laws of any of the states of the United States, so long as such acquisition does<br>not violate the terms of this First Supplemental Indenture or the Indenture. |
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| (3) | Pursuant to Section 4.7 of the Indenture, at any time after the Issue Date, the Issuer may, on any<br>one or more occasions, redeem all or any part of the 2028 Convertible Notes, upon not less than 15 nor more than 60 days’ notice,<br>at par plus accrued and unpaid interest, if any, to but excluding the date of redemption (subject to the right of Holders on the relevant<br>2028 Convertible Note Record Date to receive interest on the relevant Interest Payment Date). Unless otherwise specifically provided in<br>Section 2.9(3), the terms of Article 6 of the Indenture shall apply to the redemption of any 2028 Convertible Notes and in the<br>event of any inconsistency, the terms of this Section 2.9(3) shall prevail. |
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Section 2.10 AdditionalAmounts Payable on 2028 Convertible Notes
| (1) | All payments made by any Guarantor under or with respect to any Subsidiary Guarantee in respect of the<br>2028 Convertible Notes will be made free and clear of and without withholding or deduction for or on account of, any present or future<br>tax, duty, levy, impost, assessment or other governmental charge imposed or levied by or on behalf of any United States taxing authority<br>(hereinafter “Taxes”), unless any Guarantor is required to withhold or deduct Taxes by law or by the interpretation<br>or administration thereof. If any Guarantor is so required to withhold or deduct any amount of interest for or on account of Taxes from<br>any payment made under or with respect to any Subsidiary Guarantee, such Guarantor will pay such additional amounts of interest (“AdditionalAmounts”) as may be necessary so that the net amount received by each holder or beneficial owner of Notes (including Additional<br>Amounts) after such withholding or deduction will not be less than the amount the holder or beneficial owner of Notes would have received<br>if such Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment made to<br>a holder or beneficial owner of Notes (an “Excluded Holder”): |
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| (a) | which is subject to such Taxes by reason of any connection between such holder or beneficial owner of<br>2028 Convertible Notes and the United States or any political subdivision thereof or authority thereof other than the mere holding of<br>Notes or the receipt of payments thereunder; |
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| (b) | which failed to duly and timely comply with a timely request of the Issuer to provide information, documents,<br>certification or other evidence concerning such holder’s or beneficial owner’s nationality, residence, entitlement to treaty<br>benefits, identity or connection with the United States or any political subdivision or authority thereof, if and to the extent that due<br>and timely compliance with such request would have resulted in the reduction or elimination of any Taxes as to which Additional Amounts<br>would have otherwise been payable to such holder or beneficial owner of 2028 Convertible Notes but for this Section 2.10(1)(b); |
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| (c) | which is a fiduciary, a partnership or not the beneficial owner of any payment on a Note, if and to the<br>extent that, as a result of an applicable tax treaty, no Additional Amounts would have been payable had the beneficiary, partner or beneficial<br>owner owned the Note directly (but only if there is no material cost or expense associated with transferring such Note to such beneficiary,<br>partner or beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or beneficial<br>owner); |
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| (d) | which is subject to Taxes to the extent that such Taxes would not have been imposed but for the holder<br>or beneficial owner of 2028 Convertible Notes or the recipient of interest payable on the 2028 Convertible Notes not dealing at arm’s<br>length, within the meaning of the Tax Act, with the Issuer or relevant Guarantor, as applicable; |
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| (e) | which is subject to Taxes to the extent that such Taxes would not have been imposed but for such holder<br>or beneficial owner of Notes being, or not dealing at arm’s length (within the meaning of the Tax Act) with, at any time a “specified<br>shareholder” of the Issuer as defined in subsection 18(5) of the Tax Act; |
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| (f) | to the extent that the Taxes required to be withheld or deducted are imposed pursuant to sections 1471<br>through 1474 of the United States Internal Revenue Code of 1986, as amended (and any amended or successor version that is substantially<br>comparable), and any regulations or other official guidance thereunder or agreements (including any intergovernmental agreements or any<br>laws, rules or practices implementing such intergovernmental agreements) entered into in connection therewith; or |
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| (g) | any combination of the foregoing clauses of this proviso. |
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| (2) | The Issuer or such Guarantor, as the case may be, will also (a) make such withholding or deduction<br>and, (b) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Issuer or such<br>Guarantor, as the case may be, will furnish to the holders of the 2028 Convertible Notes, within 30 days after the date the payment of<br>any Taxes is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by such Guarantor, as the case may<br>be. |
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| (3) | Such Guarantor will indemnify and hold harmless each holder or beneficial owner (other than all Excluded<br>Holders) for the amount of (A) any Taxes not withheld or deducted by such Guarantor and levied or imposed and paid by such holder<br>or beneficial owner as a result of payments made under or with respect to the Guarantees, (B) any liability (including penalties,<br>interest and expenses) arising therefrom or with respect thereto, and (C) any Taxes imposed with respect to any reimbursement under<br>clauses (a) or (b) above. |
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| (4) | At least 30 days prior to each date on which any payment under or with respect to the 2028 Convertible<br>Notes is due and payable, if any Guarantor is aware that it will be obligated to pay Additional Amounts with respect to such payment,<br>the Issuer will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, the<br>amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to holders<br>on the payment date. Whenever in the First Supplemental Indenture there is mentioned, in any context, the payment of principal (and premium,<br>if any), interest or any other amount payable under or with respect to any note, such mention shall be deemed to include mention of the<br>payment of Additional Amounts provided for in this Section 2.10 to the extent that, in such context, Additional Amounts are, were<br>or would be payable in respect thereof. |
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| (5) | The obligations described under this heading will survive any termination, defeasance or discharge of<br>the Indenture and will apply mutatis mutandis to any successor Person and to any jurisdiction in which such successor is organized or<br>is otherwise resident or doing business for tax purposes or any jurisdiction from or through which payment is made by such successor or<br>its respective agents. |
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Section 2.11 Appointment
| (1) | The Trustee will be the trustee for the 2028 Convertible Notes, subject to Article 13 of the Indenture. |
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| (2) | The Issuer initially appoints CDS to act as Depository with respect to the 2028 Convertible Notes. |
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| (3) | The Issuer initially appoints the Trustee at its corporate office in Vancouver, British Columbia to act<br>as the Registrar, transfer agent, authentication agent and Paying Agent with respect to the 2028 Convertible Notes. The Issuer may change<br>the Registrar, transfer agent, authentication agent or Paying Agent for the 2028 Convertible Notes at any time and from time to time without<br>prior notice to the Holders of the 2028 Convertible Notes. |
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ARTICLE 3
CONVERSIONOF NOTES
Section 3.1 NoteConversion.
| (1) | The 2028 Convertible Notes shall be convertible, for no additional consideration, at the option of the<br>holder thereof, in whole or in part, at any time and from time to time from the date of issuance of the 2028 Convertible Notes until the<br>date that is the earlier of: (i) the close of business on the 2028 Convertible Notes Maturity Date, and (ii) the Business Day<br>immediately preceding the date specified by the Issuer for redemption upon a Change of Control in accordance with Section 7.14 of<br>the Indenture, as amended hereby (the “Conversion Period”) into common shares of the Issuer (the “Note Shares”)<br>at a conversion price per Note Share equal to $0.305 (the “Conversion Price”), all subject to the terms and conditions<br>and in the manner set forth herein. Holders converting their 2028 Convertible Notes will receive accrued and unpaid interest (in cash)<br>thereon for the period from and including the date of the latest Interest Payment Date to, and including, the date of conversion. |
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| (2) | For the purposes of this Section 3.1, a 2028 Convertible Note surrendered for conversion shall be<br>deemed to be surrendered on the earlier of the date received by the Trustee or the 2028 Convertible Notes Maturity Date, provided that<br>the register of the Trustee is open and received all necessary documentation in respect of the conversion; provided that if a 2028 Convertible<br>Note is surrendered for conversion on a day on which the register of Common Shares is closed, the person or persons entitled to receive<br>Common Shares shall become the holder or holders of record of such Common Shares as at the date on which such registers are next reopened. |
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| (3) | A beneficial Holder of uncertificated 2028 Convertible Notes evidenced by a security entitlement in respect<br>of 2028 Convertible Notes in the book entry registration system who desires to convert his or her Notes must do so by causing a participant<br>in the Depository’s book entry registration system for the 2028 Convertible Notes (the “Book Entry Only Participant”)<br>to deliver to the Depository on behalf of the entitlement holder, notice of the owner’s intention to convert 2028 Convertible Notes<br>in a manner acceptable to the Depository. Forthwith upon receipt by the Depository of such notice, the Depository shall deliver to the<br>Trustee confirmation of its intention to convert Notes (“Confirmation”) in a manner acceptable to the Trustee, including<br>by electronic means through the book entry registration system. |
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| (4) | A notice in form acceptable to the Book Entry Only Participant should be provided to the Book Entry Only<br>Participant sufficiently in advance so as to permit the Book Entry Only Participant to deliver notice and payment to the Depository and<br>for the Depository in turn to deliver notice and payment to the Trustee prior to the 2028 Convertible Notes Maturity Date. The Depository<br>will initiate the conversion by way of the Confirmation and the Trustee will execute the conversion by issuing to the Depository through<br>the book entry registration system or as a physical certificate the Common Shares to which the exercising Holder is entitled pursuant<br>to the conversion. Any expense associated with the conversion process will be for the account of the entitlement holder converting the<br>2028 Convertible Notes and the Book Entry Only Participant exercising the 2028 Convertible Note on its behalf. |
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| (5) | By causing a Book Entry Only Participant to deliver notice to the Depository, a Holder shall be deemed<br>to have irrevocably surrendered his or her Notes so converted and appointed such Book Entry Only Participant to act as his or her exclusive<br>settlement agent with respect to the conversion and the receipt of Common Shares in connection with the obligations arising from such<br>conversion. |
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| (6) | Any notice which the Depository determines to be incomplete, not in proper form or not duly executed shall<br>for all purposes be void and of no effect and the conversion to which it relates shall be considered for all purposes not to have been<br>converted thereby. A failure by a Book Entry Only Participant to convert or to give effect to the settlement thereof in accordance with<br>the Holders instructions will not give rise to any obligations or liability on the part of the Issuer or Trustee to the Book Entry Only<br>Participant or the Holder. |
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| (7) | Any conversion notice for the 2028 Convertible Notes substantially in the form as set out in Schedule<br> "B" attached hereto (the “Conversion Notice”) referred to in this Article 3 shall be signed by the persons<br>who are registered owners of Notes as such names appear on the register, and for greater certainty, shall include the Depository as well<br>as the holders of uncertificated 2028 Convertible Notes appearing on the register of the Trustee (the “Registered Holder”),<br>or its executors or administrators or other legal representatives or an attorney of the Registered Holder, duly appointed by an instrument<br>in writing satisfactory to the Trustee but such conversion form need not be executed by the Depository. |
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| (8) | Any conversion referred to in this Section 3.1 shall require that the original Conversion Notice<br>executed by the Registered Holder or the Confirmation from the Depository must be received by the Trustee prior to the 2028 Convertible<br>Notes Maturity Date. |
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| (9) | Notwithstanding the foregoing in this Section 3.1, a 2028 Convertible Note may only be converted<br>pursuant to this Section 3.1 by or on behalf of a Registered Holder, except the Depository or Holder, as applicable, who makes the<br>certifications set forth on the Conversion Notice set out in Schedule "B" . |
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| (10) | If the form of Conversion Notice set forth in the 2028 Convertible Notes Certificate shall have been amended,<br>the Issuer shall cause the amended Conversion Notice to be forwarded to all Registered Holders. |
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| (11) | Conversion Notices and Confirmations must be delivered to the Trustee at any time during the Trustee’s<br>actual business hours on any Business Day prior to the 2028 Convertible Notes Maturity Date. Any Conversion Notice or Confirmations received<br>by the Trustee after business hours on any Business Day will be deemed to have been received by the Trustee on the next following Business<br>Day. |
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| (12) | Any 2028 Convertible Notes with respect to which a Conversion Notice or a Confirmation is not received<br>by the Trustee prior to the 2028 Convertible Notes Maturity Date shall be deemed to have expired and become void and all rights with respect<br>to such 2028 Convertible Notes shall terminate and be cancelled. |
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Section 3.2 [Reserved]
Section 3.3 TransferFees and Taxes.
If any Common Shares are to be issued to a person or persons other than the Registered Holder, the Registered Holder shall execute the Form of Transfer and will comply with such reasonable requirements as the Trustee may stipulate and will pay to the Issuer or the Trustee on behalf of the Issuer, all applicable transfer or similar taxes and the Issuer will not be required to issue or deliver certificates evidencing the Common Shares unless or until such Holder shall have paid to the Issuer or the Trustee on behalf of the Issuer, the amount of such tax or shall have established to the satisfaction of the Issuer and the Trustee that such tax has been paid or that no tax is due.
Section 3.4 NoteAgency.
To facilitate the exchange, transfer or conversion of 2028 Convertible Notes and compliance with such other terms and conditions hereof as may be required, the Issuer has appointed the principal office of the Trustee in the city of Vancouver, British Columbia (the “Note Agency”), as the agency at which 2028 Convertible Notes may be surrendered for exchange or transfer or at which 2028 Convertible Notes may be converted and the Trustee has accepted such appointment. The Issuer may from time to time designate alternate or additional places as the Note Agency (subject to the Trustee’s prior approval) and will give notice to the Trustee of any proposed change of the Note Agency. Branch registers shall also be kept at such other place or places, if any, as the Issuer, with the approval of the Trustee, may designate. The Trustee will from time to time when requested to do so by the Issuer or any Registered Holder, upon payment of the Trustee’s reasonable charges, furnish a list of the names and addresses of each Registered Holder and showing the number of 2028 Convertible Notes held by each such Registered Holder.
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Section 3.5 SecuritiesRestrictions.
Notwithstanding anything herein contained, Common Shares will be issued upon conversion of a Holder only in compliance with the securities laws of any applicable jurisdiction and, without limiting the generality of the foregoing, the Issuer will legend the certificates representing the Common Shares if, in the opinion of counsel to the Trustee or Issuer, such legend is necessary in order to comply with the securities law of any applicable jurisdiction or the rules of any applicable stock exchange. Notwithstanding any other provisions of this First Supplemental Indenture, in processing and registering transfers of 2028 Convertible Notes, and in processing conversions of 2028 Convertible Notes, no duty or responsibility whatsoever shall rest upon the Trustee to determine the compliance by any transferor or transferee or by a holder converting 2028 Convertible Notes with the terms of any legend affixed on the Holder certificates, or with the relevant securities laws or regulations, and the Trustee shall be entitled to assume that all transfers and conversions of 2028 Convertible Notes are legal and proper.
Section 3.6 CertainLimitations on Conversion.
Notwithstanding anything to the contrary in this First Supplemental Indenture, for greater certainty, in no event shall (i) the Issuer issue, be required to issue or be deemed to have issued a number of Common Shares upon conversion or otherwise pursuant to the 2028 Convertible Notes, or (ii) the Holder shall have the right to convert any portion of the 2028 Convertible Notes, and any such conversion shall be null and void and treated as if never made, in each case, to the extent that after giving effect to such conversion, the Holder and its affiliates together with any person acting jointly or in concert (the “Attribution Parties”), collectively would beneficially own or exercise control or direction over, directly or indirectly in excess of 4.99% (the “Maximum Percentage”) of the Common Shares outstanding immediately after giving effect to such conversion. For purposes of this Section 3.6, the aggregate number of Common Shares beneficially owned by the Holder and the other Attribution Parties shall include the number of Common Shares held by the Holder and all other Attribution Parties plus the number of Note Shares issuable upon conversion of the 2028 Convertible Notes with respect to which the determination of such calculation is being made, but shall exclude Common Shares which would be issuable upon (A) conversion of the remaining, unconverted portion of the 2028 Convertible Notes beneficially owned by the Holder or any of the other Attribution Parties and (B) conversion or exercise of the unexercised or unconverted portion of any other securities of the Issuer (including, without limitation, any convertible notes or convertible preferred share or warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 3.6. For purposes of this Section 3.6, beneficial ownership shall be calculated in accordance with Section 13(d) of the U.S. Securities Exchange Act. For purposes of determining the number of outstanding Common Shares a Holder may acquire upon the conversion of the 2028 Convertible Notes without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding Common Shares as reflected in the most recent of (x) the Issuer’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the U.S. Securities and Exchange Commission, as the case may be, (y) a more recent public announcement by the Issuer or (z) any other written notice by the Issuer or its transfer agent, if any, setting forth the number of Common Shares outstanding (the “Reported Outstanding Share Number”). If the Issuer receives a conversion notice from the Holder at a time when the actual number of outstanding Common Shares is less than the Reported Outstanding Share Number, the Issuer shall notify the Holder in writing of the number of Common Shares then outstanding and, to the extent that such conversion notice would otherwise cause such Holder’s beneficial ownership, as determined pursuant to this Section 3.6, to exceed the Maximum Percentage, the Holder must notify the Issuer of a reduced number of Note Shares to be issued pursuant to such conversion notice. For any reason at any time, upon the written request of the Holder, the Issuer shall within three (3) Business Days confirm in writing or by electronic mail to the Holder the number of Common Shares then outstanding. In any case, the number of outstanding Common Shares shall be determined after giving effect to the exercise or conversion of securities of the Issuer, including the 2028 Convertible Notes, by the Holder and any other Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Note Shares to the Holder upon conversion of 2028 Convertible Notes results in the Holder and the other Attribution Parties being deemed to beneficially own or exercise control or direction over, directly or indirectly, in the aggregate, more than the Maximum Percentage of the number of outstanding Common Shares (as determined under Section 13(d) of the U.S. Securities Exchange Act), the number of shares so issued by which the Holder and the other Attribution Parties’ aggregate beneficial ownership or control exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or to transfer the Excess Shares. Upon delivery of a written notice to the Issuer, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not to exceed 9.99%; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61^st^) day after such notice is delivered to the Issuer and (ii) any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of 2028 Convertible Notes that is not an Attribution Party of the Holder. The provisions of this Section 3.6 shall be construed and implemented in strict conformity with the terms of this Section 3.6 except to the extent necessary to correct this paragraph (or any portion of this Section 3.6) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 3.6 or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this Section 3.6 may not be waived and shall apply to a successor holder of any and all 2028 Convertible Notes. For greater certainty the Trustee shall not be required to confirm whether or not a holder has exceeded the Maximum Percentage threshold, nor will the Trustee be liable for processing the valid conversion of 2028 Convertible Notes that is then determined, by the Issuer, to result in a holder exceeding the Maximum Percentage threshold.
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ARTICLE 4
ADJUSTMENTOF NUMBER OF COMMON SHARES AND CONVERSION PRICE
Section 4.1 Adjustmentof Number of Common Shares and Conversion Price.
| (1) | The conversion rights in effect under the 2028 Convertible Notes for Common Shares issuable upon the conversion<br>of the 2028 Convertible Notes shall be subject to adjustment from time to time as follows: |
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| (a) | if, at any time prior to the 2028 Convertible Notes Maturity Date, the Issuer shall: |
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| (i) | subdivide, re-divide or change its outstanding Common Shares into a greater number of Common Shares; |
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| (ii) | reduce, combine or consolidate its outstanding Common Shares into a smaller number of Common Shares; or |
| --- | --- |
| (iii) | issue Common Shares or securities exchangeable for, or convertible into, Common Shares to all or substantially<br>all of the holders of Common Shares by way of distribution (other than a distribution of Common Shares upon the conversion of 2028 Convertible<br>Notes); |
| --- | --- |
the Conversion Price in effect on the effective date of such subdivision, re-division, change, reduction, combination, consolidation or on the record date of such distribution, as the case may be, shall in the case of the events referred to in (i) or (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, re-division, change or distribution, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation. Such adjustment shall be made successively whenever any event referred to in this Section 4.1 shall occur. Upon any adjustment of the Conversion Price pursuant to this Section 4.1, the Conversion Price shall be contemporaneously adjusted by multiplying the number of Common Shares theretofore obtainable on the exercise thereof by a fraction of which the numerator shall be the Conversion Price in effect immediately prior to such adjustment and the denominator shall be the Conversion Price resulting from such adjustment;
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| (b) | if and whenever at any time prior to the 2028 Convertible Notes Maturity Date, the Issuer shall fix a<br>record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling<br>them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible<br>or exchangeable into Common Shares) at a price per Common Share (or having a conversion or exchange price per Common Share) less than<br>95% of the weighted average of the trading price per Common Share for each day there was a closing price for 20 consecutive trading days<br>ending five Business Days prior to such date on the Exchange (the “Common Share Current Market Price”) on such record<br>date (a “Common Share Rights Offering”), the Conversion Price shall be adjusted immediately after such record date<br>so that it shall equal the amount determined by multiplying the Conversion Price in effect on such record date by a fraction, of which<br>the numerator shall be the total number of Common Shares outstanding on such record date plus a number of Common Shares equal to the number<br>arrived at by dividing the aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the<br>aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by such Common Share Current Market Price,<br>and of which the denominator shall be the total number of Common Shares outstanding on such record date plus the total number of additional<br>Common Shares offered for subscription or purchase or into which the convertible or exchangeable securities so offered are convertible<br>or exchangeable; any Common Shares owned by or held for the account of the Issuer shall be deemed not to be outstanding for the purpose<br>of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that no such rights<br>or warrants are exercised prior to the expiration thereof, the Conversion Price shall be readjusted to the Conversion Price which would<br>then be in effect if such record date had not been fixed or, if any such rights or warrants are exercised, to the Conversion Price which<br>would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually<br>issued upon the exercise of such rights or warrants, as the case may be. Upon any adjustment of the Conversion Price pursuant to this<br>Section 4.1(b), the Conversion Price will be adjusted immediately after such record date so that it will equal the rate determined<br>by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the Conversion Price<br>in effect immediately prior to such adjustment and the denominator shall be the Conversion Price resulting from such adjustment. Such<br>adjustment will be made successively whenever such a record date is fixed, provided that if two or more such record dates or record dates<br>referred to in this Section 4.1(b) are fixed within a period of 25 trading days, such adjustment will be made successively as<br>if each of such record dates occurred on the earliest of such record dates; |
|---|---|
| (c) | if and whenever at any time prior to the 2028 Convertible Notes Maturity Date the Issuer shall fix a record<br>date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) securities<br>of any class, whether of the Issuer or any other entity (other than Common Shares), (ii) rights, options or warrants to subscribe<br>for or purchase Common Shares (or other securities convertible into or exchangeable for Common Shares), other than pursuant to a Common<br>Share Rights Offering; (iii) evidences of its indebtedness or (iv) any property or other assets then, in each such case, the<br>Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion<br>Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such<br>record date multiplied by the Common Share Current Market Price on such record date, less the excess, if any, of the fair market value<br>on such record date, as determined by the Issuer (whose determination shall be conclusive), of such securities or other assets so issued<br>or distributed over the fair market value of any consideration received therefor by the Issuer from the holders of the Common Shares,<br>and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Common Share<br>Current Market Price; and Common Shares owned by or held for the account of the Issuer shall be deemed not to be outstanding for the purpose<br>of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that such distribution<br>is not so made, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had<br>not been fixed. Upon any adjustment of the Conversion Price pursuant to this Section 4.1(c), the Conversion Price will be adjusted<br>immediately after such record date so that it will equal the rate determined by multiplying the Conversion Price in effect on such record<br>date by a fraction, of which the numerator shall be the Conversion Price in effect immediately prior to such adjustment and the denominator<br>shall be the Conversion Price resulting from such adjustment; |
| --- | --- |
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| (d) | if and whenever at any time prior to the 2028 Convertible Notes Maturity Date, there is a reclassification<br>of the Common Shares or a capital reorganization of the Issuer other than as described in Section 4.1(c) or a consolidation,<br>amalgamation, arrangement or merger of the Issuer with or into any other body corporate, trust, partnership or other entity, or a sale<br>or conveyance of the property and assets of the Issuer as an entirety or substantially as an entirety to any other body corporate, trust,<br>partnership or other entity, any Registered Holder who has not exercised its right of acquisition prior to the effective date of such<br>reclassification, capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, upon the exercise of<br>such right thereafter, shall be entitled to receive and shall accept, in lieu of the number of Common Shares that prior to such effective<br>date the Registered Holder would have been entitled to receive, the number of shares or other securities or property of the Issuer or<br>of the body corporate, trust, partnership or other entity resulting from such merger, amalgamation or consolidation, or to which such<br>sale or conveyance may be made, as the case may be, that such Registered Holder would have been entitled to receive on such reclassification,<br>capital reorganization, consolidation, amalgamation, arrangement or merger, sale or conveyance, if, on the effective date thereof, as<br>the case may be, the Registered Holder had been the registered holder of the number of Common Shares to which prior to such effective<br>date it was entitled to acquire upon the conversion of the 2028 Convertible Notes. If determined appropriate by the Trustee, relying on<br>advice of counsel to the Trustee or Issuer, to give effect to or to evidence the provisions of this Section 4.1(d), the Issuer, its<br>successor, or such purchasing body corporate, partnership, trust or other entity, as the case may be, shall, prior to or contemporaneously<br>with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance, enter into<br>an indenture which shall provide, to the extent possible, for the application of the provisions set forth in this First Supplemental Indenture<br>with respect to the rights and interests thereafter of the Registered Holder to the end that the provisions set forth in this First Supplemental<br>Indenture shall thereafter correspondingly be made applicable, as nearly as may reasonably be, with respect to any shares, other securities<br>or property to which a Registered Holder is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into<br>between the Issuer, any successor to the Issuer or such purchasing body corporate, partnership, trust or other entity and the Trustee<br>shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 4.1(d) and<br>which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, sales or conveyances; |
|---|
-15-
| (e) | in any case in which this Section 4.1(e) shall require that an adjustment shall become effective<br>immediately after a record date for an event referred to herein, the Issuer may defer, until the occurrence of such event, issuing to<br>the Registered Holder of any 2028 Convertible Note converted after such event the additional Common Shares issuable upon such conversion<br>by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Issuer shall deliver<br>to such Registered Holder an appropriate instrument evidencing such Registered Holder’s right to receive such additional Common<br>Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common<br>Shares declared in favour of holders of record of Common Shares on and after the relevant date of conversion or such later date as such<br>Registered Holder would, but for the provisions of this Section 4.1(e), have become the holder of record of such additional Common<br>Shares pursuant to Section 4.1; |
|---|---|
| (f) | in any case in which Section 4.1(a)(iii), Section 4.1(b) or Section 4.1(c) of<br>this First Supplemental Indenture, require that an adjustment be made to the Conversion Price, no such adjustment shall be made if the<br>Registered Holders of the outstanding 2028 Convertible Notes receive, subject to the approval of the Exchange if required, the rights<br>or warrants referred to in Section 4.1(a)(iii), Section 4.1(b) or the shares, rights, options, warrants, evidences of indebtedness<br>or assets referred to in Section 4.1(c) of this First Supplemental Indenture, as the case may be, in such kind and number as<br>they would have received if they had been holders of Common Shares on the applicable record date or effective date, as the case may be,<br>by virtue of their outstanding 2028 Convertible Notes having then been converted into Common Shares at the Conversion Price in effect<br>on the applicable record date or effective date, as the case may be; |
| --- | --- |
| (g) | the adjustments provided for in this Section 4.1 are cumulative, and shall, in the case of adjustments<br>to the Conversion Price be computed to the nearest whole cent and shall apply to successive subdivisions, re-divisions, reductions, combinations,<br>consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Section 4.1, provided<br>that, notwithstanding any other provision of this Section 4.1, no adjustment of the Conversion Price shall be required unless such<br>adjustment would require an increase or decrease of at least 1% in the Conversion Price then in effect; provided, however, that any adjustments<br>which by reason of this Section 4.1(g) are not required to be made shall be carried forward and taken into account in any subsequent<br>adjustment; and |
| --- | --- |
| (h) | after any adjustment pursuant to this Section 4.1, the term “Common Shares” where used<br>in this First Supplemental Indenture shall be interpreted to mean securities of any class or classes which, as a result of such adjustment<br>and all prior adjustments pursuant to this Section 4.1, the Registered Holder is entitled to receive upon the conversion of its 2028<br>Convertible Notes, and the number of Common Shares indicated by any conversion made pursuant to a 2028 Convertible Note shall be interpreted<br>to mean the number of Common Shares or other property or securities a Registered Holder is entitled to receive, as a result of such adjustment<br>and all prior adjustments pursuant to this Section 4.1, upon the full or partial conversion of a 2028 Convertible Note. |
| --- | --- |
Section 4.2 Entitlementto Common Shares on Conversion of 2028 Convertible Notes.
All Common Shares or shares of any class or other securities, which a Registered Holder is at the time in question entitled to receive on the conversion of its 2028 Convertible Note, whether or not as a result of adjustments made pursuant to this Article 4, shall, for the purposes of the interpretation of this First Supplemental Indenture, be deemed to be Common Shares which such Registered Holder is entitled to acquire pursuant to such 2028 Convertible Note.
-16-
Section 4.3 NoAdjustment for Certain Transactions.
Notwithstanding anything in this Article 4, no adjustment shall be made in the acquisition rights attached to the 2028 Convertible Notes if the issue of Common Shares is being made pursuant to this First Supplemental Indenture or in connection with (a) any share incentive plan or restricted share plan or share purchase plan in force from time to time for directors, officers, employees, consultants or other service providers of the Issuer; or (b) the satisfaction of existing instruments issued at the date hereof.
Section 4.4 Determinationby Auditors.
In the event of any question arising with respect to the adjustments provided for in this Article 4 such question shall be conclusively determined by an independent firm of chartered accountants other than the auditors of the Issuer, who shall have access to all necessary records of the Issuer, and such determination shall be binding upon the Issuer, the Trustee, all holders and all other persons interested therein.
Section 4.5 ProceedingsPrior to any Action Requiring Adjustment.
As a condition precedent to the taking of any action which would require an adjustment in any of the acquisition rights pursuant to any of the 2028 Convertible Notes, including the number of Common Shares which are to be received upon the conversion thereof, the Issuer shall take any action which may, in the opinion of counsel to the Trustee or Issuer, be necessary in order that the Issuer has unissued and reserved in its authorized capital and may validly and legally issue as fully paid and non-assessable all the Common Shares which the holders of such 2028 Convertible Notes are entitled to receive on the conversion thereof in accordance with the provisions hereof.
Section 4.6 Certificateof Adjustment.
The Issuer shall from time to time immediately after the occurrence of any event which requires an adjustment or readjustment as provided in this Article 4, deliver a certificate of the Issuer to the Trustee specifying the nature of the event requiring the same and the amount of the adjustment or readjustment necessitated thereby and setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based, which certificate shall be supported by a certificate of the Issuer’s auditors verifying such calculation. The Trustee shall rely, and shall be protected in so doing, upon the certificate of the Issuer or of the Issuer’s auditor and any other document filed by the Issuer pursuant to this Article 4 for all purposes.
Section 4.7 Noticeof Special Matters.
The Issuer covenants with the Trustee that, so long as any 2028 Convertible Notes remain outstanding, it will give notice to the Trustee and to the Registered Holder of its intention to fix a record date that is prior to the 2028 Convertible Notes Maturity Date for any matter for which an adjustment may be required pursuant to Section 4.1. Such notice shall specify the particulars of such event and the record date for such event, provided that the Issuer shall only be required to specify in the notice such particulars of the event as shall have been fixed and determined on the date on which the notice is given. The notice shall be given in each case not less than 14 days prior to such applicable record date. If notice has been given and the adjustment is not then determinable, the Issuer shall promptly, after the adjustment is determinable, file with the Trustee a computation of the adjustment and give notice to the Registered Holders of such adjustment computation.
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Section 4.8 Protectionof Trustee.
The Trustee shall not:
| (a) | at any time be under any duty or responsibility to any Registered Holder to determine whether any facts<br>exist which may require any adjustment contemplated by Section 4.1 of this First Supplemental Indenture, or with respect to the nature<br>or extent of any such adjustment when made, or with respect to the method employed in making the same; |
|---|---|
| (b) | be accountable with respect to the validity or value (or the kind or amount) of any Common Shares or of<br>any other securities or property which may at any time be issued or delivered upon the exercise of the rights attaching to any 2028 Convertible<br>Note; and |
| --- | --- |
| (c) | incur any liability or be in any way responsible for the consequences of any breach on the part of the<br>Issuer of any of the representations, warranties or covenants herein contained or of any acts of the directors, officers, employees, agents<br>or servants of the Issuer. |
| --- | --- |
Section 4.9 OtherAdjustments.
If the Issuer after the date hereof shall take any action affecting the Common Shares, other than an action described in this Article 4 which, in the opinion of the directors of the Issuer, would have a material adverse effect on the rights of Registered Holders, or the Conversion Price, there shall be an adjustment in such manner, if any, and at such time, by action of the directors, acting reasonably and in good faith, as they may reasonably determine to be equitable to the Registered Holders in such circumstances, provided that no such adjustment will be made unless prior approval of any stock exchange on which the Common Shares are listed for trading, if any, has been obtained.
Section 4.10 Participationby Holder.
No adjustments shall be made pursuant to this Article 4 if the Registered Holder are entitled to participate in any event described in this Article 4 on the same terms, mutatis mutandis, as if the Registered Holder had converted their 2028 Convertible Notes prior to, or on the effective date or record date of, such event.
ARTICLE 5MISCELLANEOUS
Section 5.1 Acceptanceof Trust.
The Trustee accepts the trusts in this First Supplemental Indenture and agrees to carry out and discharge the same upon the terms and conditions set out in this First Supplemental Indenture and in accordance with the Indenture.
Section 5.2 Confirmationof Indenture.
The Indenture as amended and supplemented by this First Supplemental Indenture is in all respects confirmed and for greater certainty the Issuer acknowledges and confirms that the Security Documents granted by it pursuant to the Indenture secure the due payment of all principal, interest and other amounts outstanding under the 2028 Convertible Notes.
Section 5.3 EffectiveDate
This First Supplemental Indenture shall take effect upon the date first above written.
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Section 5.4 Counterparts.
This First Supplemental Indenture may be executed in one or more counterparts, each of which taken together shall constitute one and the same instrument. Counterparts may be executed either in original or electronic form and the parties hereto adopt any signatures received by electronic means as original signatures of the parties.
Section 5.5 Fax/Email.
The Trustee shall be entitled to treat a facsimile, pdf or e-mail communication or communication by other similar electronic means in a form satisfactory to the Trustee (“Electronic Methods”) from a person purporting to be (and whom such Trustee, acting reasonably, believes in good faith to be) the authorized representative of the Issuer, as sufficient instructions and authority of the Issuer for the Trustee to act and shall have no duty to verify or confirm that person is so authorized. The Issuer acknowledges that it is fully informed of the protections and risks associated with the various methods of transmitting instructions to the Trustee and that there may be more secure methods of transmitting instructions than Electronic Methods.
Section 5.6 ForceMajeure.
The Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Trustee (including but not limited to any act or provision of any present or future law or regulation or Governmental Authority, any act of God or war, civil unrest, pandemic, local or national disturbance or disaster, any act of terrorism, cyber terrorism, loss or malfunctions of utilities, computer (hardware or software) or communication services or the unavailability of any wire or facsimile or other wire or communication facility.
Section 5.7 Trialby Jury.
The parties hereto hereby waive any right they may have to require a trial by jury of any proceeding commenced in connection herewith.
[Signature Page Follows]
INWITNESS OF WHICH this First Supplemental Indenture has been duly executed by the Issuer and the Trustee.
Dated as of the date first written above.
| THE CANNABIST COMPANY HOLDINGS INC. **** | |
|---|---|
| Per: | (Signed) “David Hart” |
| David Hart <br> Authorized Signatory | |
| THE CANNABIST COMPANY HOLDINGS (CANADA) INC. **** | |
| --- | --- |
| Per: | (Signed) “David Hart” |
| David Hart <br> Authorized Signatory | |
| ODYSSEY TRUST COMPANY | |
| --- | --- |
| Per: | (Signed) “Amy Douglas” |
| Amy Douglas <br><br>Managing Director, Corporate Trust | |
| Per: | (Signed) “Rachel Wales” |
| Rachel Wales <br><br>Director, Corporate Trust |
**Schedule "A"**FORM OF NOTE CERTIFICATE
**[**CanadianSecurities Legend: UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE[INSERT THE DATE THAT IS 4 MONTHS AND A DAY AFTER THE DISTRIBUTION DATE]].^1^
**[**GlobalNote Legend: THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREIN REFERRED TO AND IS REGISTERED IN THE NAME OFA DEPOSITORY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE TRANSFERRED TO OR EXCHANGED FOR NOTES REGISTERED IN THE NAME OF ANY PERSONOTHER THAN THE DEPOSITORY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBEDIN THE INDENTURE. EVERY NOTE AUTHENTICATED AND DELIVERED UPON REGISTRATION OF, TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS NOTESHALL BE A GLOBAL NOTE SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY ANAUTHORIZED REPRESENTATIVE OF CDS CLEARING AND DEPOSITORY SERVICES INC. (“CDS”) TO THE CANNABIST COMPANY HOLDINGS INC. ORITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAMEOF CDS & CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS (AND ANY PAYMENT IS MADE TO CDS &CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUEOR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, CDS & CO., HAS A PROPERTY INTEREST IN THE SECURITIESREPRESENTED BY THIS CERTIFICATE HEREIN AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD, TRANSFER OR DEAL WITH THIS CERTIFICATE.]^2^
^1^ Include legend on all Notes.
^2^ Include legend on all Global Notes.
“A”-1
CUSIP ●
ISIN ●
| No. ● | $● |
|---|
THE CANNABIST COMPANY HOLDINGS INC.
(a corporation formed under the Business CorporationsAct (British Columbia))
and
THE CANNABIST COMPANY HOLDINGS (CANADA) INC.
(a corporation formed under the Canada BusinessCorporations Act)
9.00% Senior Secured Convertible Notes Due 2028
THE CANNABIST COMPANY HOLDINGS INC. (the “Issuer”) and CANNABIST COMPANY HOLDINGS (CANADA) INC. (as “Co-Issuer” and together with the Issuer, the “Issuer” and each an “Issuer”) for value received hereby acknowledges itself indebted and, subject to the provisions of the trust indenture dated as of May 29, 2025 (the “Indenture”) between the Issuer, the Co-Issuer and Odyssey Trust Company (the “Trustee”), promises to pay to ____________________________on December 31, 2028 (the “Maturity Date”) (unless extended to June 30, 2029 or December 31, 2029 in accordance with the terms of the Indenture) or on such earlier date as the principal amount hereof may become due in accordance with the provisions of the Indenture, the principal sum of ● ($●) in lawful money of the United States of America on presentation and surrender of this 2028 Convertible Note at the main branch of the Trustee in Vancouver, British Columbia in accordance with the terms of the Indenture and, subject as hereinafter provided, to pay interest on the principal amount hereof from the date hereof, at the rate of 9.00% per annum, in like money, in arrears in equal installments on June 30 and December 31 in each year commencing on December 31, 2025 (each, an “Interest Payment Date”), and, should the Issuer at any time make default in the payment of any principal, or interest, to pay interest on the amount in default at a rate that is 1% higher than the applicable rate on the 2028 Convertible Notes, in like money and on the same date.
Interest on this 2028 Convertible Note will be computed on the basis of a 365-day or 366-day year, as applicable, and will be payable in equal semi-annual amounts; provided that for any Interest Period that is shorter than a full semi-annual interest period, interest shall be calculated on the basis of a year of 365 days or 366 days, as applicable, and the actual number of days elapsed in that period.
If the date for payment of any amount of principal, premium or interest is not a Business Day at the place of payment, then payment will be made on the next Business Day and the holder hereof will not be entitled to any further interest on such principal, or to any interest on such interest, premium or other amount so payable, in respect of the period from the date for payment to such next Business Day.
Interest hereon shall be payable on the applicable Interest Payment Date by cheque mailed by prepaid ordinary mail or by electronic transfer of funds to the registered holder hereof as of the close of business on June 25 and December 26 immediately preceding the relevant Interest Payment Date, and, subject to the provisions of this Indenture, the mailing of such cheque or the electronic transfer of such funds shall, to the extent of the sum represented thereby (plus the amount of any Taxes required by law to be deducted or withheld), satisfy and discharge all liability for interest then accrued on this 2028 Convertible Note.
This Note is one of the 9.00% Senior Secured Convertible Notes due 2028 (referred to herein as the “2028 Convertible Notes”) of the Issuer issued under the provisions of the Indenture. The 2028 Convertible Notes authorized for issue immediately are limited to an aggregate principal amount of $[●] in lawful money of the United States. Reference is hereby expressly made to the Indenture for a description of the terms and conditions upon which the 2028 Convertible Notes are or are to be issued and held and the rights and remedies of the holders of the 2028 Convertible Notes and of the Issuer and of the Trustee, all to the same effect as if the provisions of the Indenture were herein set forth to all of which provisions the holder of this Note by acceptance hereof assents.
“A”-2
The 2028 Convertible Notes are issuable at a price of $1,000 per $1,000 of principal amount and only in denominations of $1,000 and integral multiples of $1,000. Upon compliance with the provisions of the Indenture, 2028 Convertible Notes of any denomination may be exchanged for an equal aggregate principal amount of 2028 Convertible Notes in any other authorized denomination or denominations.
This 2028 Convertible Note or any part, being $1,000 or an integral multiple thereof, of the principal of this 2028 Convertible Note, provided that the principal amount of this 2028 Convertible Note is in a denomination in excess of $1,000, is convertible, at the option of the holder hereof, upon surrender of this 2028 Convertible Note at the principal office of the Trustee in Vancouver, British Columbia, for no additional consideration, at any time and from time to time prior to the earlier of: (i) the close of business on the Maturity Date, and (ii) the Business Day immediately preceding the date specified by the Issuer for redemption of the 2028 Convertible Notes upon a Change of Control, in each case at a conversion price per Common Share equal to $0.305 payable on the Business Day prior to the date of conversion (the “Conversion Price”), all subject to the terms and conditions and in the manner set forth herein. Holders converting their 2028 Convertible Notes will receive accrued and unpaid interest (in cash) thereon for the period from and including the date of the latest Interest Payment Date to, and including, the date of conversion.
Notwithstanding anything to the contrary in this 2028 Convertible Note, for greater certainty, in no event shall (i) the Issuer issue, be required to issue or be deemed to have issued a number of common shares (the “Common Shares”) upon conversion or otherwise pursuant to the 2028 Convertible Notes, or (ii) the holder hereof shall have the right to convert any portion of the 2028 Convertible Notes, and any such conversion shall be null and void and treated as if never made, in each case, to the extent that after giving effect to such conversion, the holder hereof and its affiliates together with any person acting jointly or in concert (the “Attribution Parties”), collectively would beneficially own or exercise control or direction over, directly or indirectly in excess of 4.99% (the “MaximumPercentage”) of the Common Shares outstanding immediately after giving effect to such conversion. For purposes of this paragraph, the aggregate number of Common Shares beneficially owned by the holder hereof and the other Attribution Parties shall include the number of Common Shares held by the holder hereof and all other Attribution Parties plus the number of Note Shares issuable upon conversion of the 2028 Convertible Notes with respect to which the determination of such calculation is being made, but shall exclude Common Shares which would be issuable upon (A) conversion of the remaining, unconverted portion of the 2028 Convertible Notes beneficially owned by the holder hereof or any of the other Attribution Parties and (B) conversion or exercise of the unexercised or unconverted portion of any other securities of the Issuer (including, without limitation, any convertible notes or convertible preferred share or warrants) beneficially owned by the holder hereof or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this paragraph. For purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the U.S. Securities Exchange Act. For purposes of determining the number of outstanding Common Shares a holder hereof may acquire upon the conversion of the 2028 Convertible Notes without exceeding the Maximum Percentage, the holder hereof may rely on the number of outstanding Common Shares as reflected in the most recent of (x) the Issuer’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the U.S. Securities and Exchange Commission, as the case may be, (y) a more recent public announcement by the Issuer or (z) any other written notice by the Issuer or its transfer agent, if any, setting forth the number of Common Shares outstanding (the “Reported OutstandingShare Number”). If the Issuer receives a conversion notice from the holder hereof at a time when the actual number of outstanding Common Shares is less than the Reported Outstanding Share Number, the Issuer shall notify the holder hereof in writing of the number of Common Shares then outstanding and, to the extent that such conversion notice would otherwise cause such holder’s beneficial ownership, as determined pursuant to this paragraph, to exceed the Maximum Percentage, the holder hereof must notify the Issuer of a reduced number of Note Shares to be issued pursuant to such conversion notice. For any reason at any time, upon the written request of the holder hereof, the Issuer shall within three (3) Business Days confirm in writing or by electronic mail to the holder hereof the number of Common Shares then outstanding. In any case, the number of outstanding Common Shares shall be determined after giving effect to the exercise or conversion of securities of the Issuer, including the 2028 Convertible Notes, by the holder hereof and any other Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Note Shares to the holder hereof upon conversion of 2028 Convertible Notes results in the holder hereof and the other Attribution Parties being deemed to beneficially own or exercise control or direction over, directly or indirectly, in the aggregate, more than the Maximum Percentage of the number of outstanding Common Shares (as determined under Section 13(d) of the U.S. Securities Exchange Act), the number of shares so issued by which the holder hereof and the other Attribution Parties’ aggregate beneficial ownership or control exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the holder hereof shall not have the power to vote or to transfer the Excess Shares. Upon delivery of a written notice to the Issuer, the holder hereof may from time to time increase or decrease the Maximum Percentage to any other percentage not to exceed 9.99%; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61^st^) day after such notice is delivered to the Issuer and (ii) any such increase or decrease will apply only to the holder hereof and the other Attribution Parties and not to any other holder of 2028 Convertible Notes that is not an Attribution Party of the holder. The provisions of this paragraph shall be construed and implemented in strict conformity with the terms of this paragraph except to the extent necessary to correct this paragraph (or any portion of this paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this paragraph or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of any and all 2028 Convertible Notes. For greater certainty the Trustee shall not be required to confirm whether or not a holder has exceeded the Maximum Percentage threshold, nor will the Trustee be liable for processing the valid conversion of 2028 Convertible Notes that is then determined, by the Issuer, to result in a holder exceeding the Maximum Percentage threshold.
“A”-3
The Indenture makes provision for the adjustment of the Conversion Price in the events therein specified. No fractional Common Shares will be issued on any conversion and holders will receive a cash payment in satisfaction of any fractional interest.
Upon the occurrence of a Change of Control of the Issuer, the Issuer is required to make an offer, at the option of each Holder, to repurchase all of the 2028 Convertible Notes at a cash price equal to 101% principal amount of such 2028 Convertible Notes, plus accrued and unpaid interest thereon up to and including the date of repurchase, in accordance with the terms of the Indenture.
The indebtedness evidenced by this 2028 Convertible Note, and by all other 2028 Convertible Notes now or hereafter certified and delivered under the Indenture, is a direct senior secured obligation of the Issuer hereby automatically guaranteed by the Guarantors pursuant to the Indenture and the Subsidiary Guarantees and automatically secured by a First-Priority Lien in certain Collateral of the Issuer and Guarantors in favour of the Collateral Trustee pursuant to the Security Documents.
The principal hereof may become or be declared due and payable before the stated maturity in the events, in the manner, with the effect and at the times provided in the Indenture.
The Indenture contains provisions making binding upon all holders of 2028 Convertible Notes outstanding thereunder resolutions passed at meetings of such holders held in accordance with such provisions and instruments signed by the holders of a specified majority of 2028 Convertible Notes outstanding, which resolutions or instruments may have the effect of amending the terms of this 2028 Convertible Note or the Indenture.
The Indenture contains provisions disclaiming any personal liability on the part of holders of the Common Shares, officers, directors and employees of the Issuer in respect of any obligation or claim arising out of the Indenture or this 2028 Convertible Note.
This 2028 Convertible Note may only be transferred, upon compliance with the conditions prescribed in the Indenture, in one of the registers to be kept at the principal office of the Trustee in the City of Vancouver, British Columbia and in such other place or places and/or by such other registrars (if any) as the Issuer with the approval of the Trustee may designate. No transfer of this 2028 Convertible Note shall be valid unless made on the register by the registered holder hereof or his executors or administrators or other legal representatives, or his or their attorney duly appointed by an instrument in form and substance satisfactory to the Trustee or other registrar, and upon compliance with such reasonable requirements as the Trustee or other registrar may prescribe and upon surrender of this 2028 Convertible Note for cancellation. Thereupon a new 2028 Convertible Note or 2028 Convertible Notes in the same aggregate principal amount shall be issued to the transferee in exchange hereof.
This 2028 Convertible Note shall not become obligatory for any purpose until it shall have been certified by the Trustee under the Indenture.
Capitalized words or expressions used in this 2028 Convertible Note shall, unless otherwise defined herein, have the meaning ascribed thereto in the Indenture.
[Remainder of this page intentionallyleft blank.]
“A”-4
INWITNESS WHEREOF THE CANNABIST COMPANY HOLDINGS INC. has caused this 2028 Convertible Note to be signed by its authorized representatives as of the _____ day of __________, 2025.
| THE CANNABIST COMPANY HOLDINGS INC. | |
|---|---|
| By: | |
| Authorized Signatory | |
| THE CANNABIST COMPANY HOLDINGS (CANADA) INC. | |
| --- | --- |
| By: | |
| Authorized Signatory |
This 2028 Convertible Note is one of the 9.00% Senior Secured Convertible Notes due 2028 referred to in the Indenture within mentioned.
| ODYSSEY TRUST COMPANY | |
|---|---|
| By: | |
| Authorized Signatory | |
| Date: | |
| --- |
“A”-5
FORM OF TRANSFER
ODYSSEY TRUST COMPANY FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers to
(print name and address) the 2028 Convertible Notes represented by this 2028 Convertible Note Certificate and hereby irrevocable constitutes and appoints _______________________________ as its attorney with full power of substitution to transfer the said securities on the appropriate register of the Trustee.
DATED this day ___of ___________, 20 .
| SPACE FOR GUARANTEES OF SIGNATURES (BELOW) | ) | |
|---|---|---|
| ) | Signature of Transferor | |
| ) | ||
| ) | ||
| Guarantor’s Signature/Stamp | Name of Transferor | |
| ) |
“A”-6
CERTAIN REQUIREMENTS RELATING TO TRANSFERS –READ CAREFULLY
The signature(s) of the transferor(s) must correspond with the name(s) as written upon the face of this certificate(s), in every particular, without alteration or enlargement, or any change whatsoever. The signature(s) on this form must be guaranteed in accordance with the transfer agent’s then current guidelines and requirements at the time of transfer. Notarized or witnessed signatures are not acceptable as guaranteed signatures. As at the time of closing, you may choose one of the following methods (although subject to change in accordance with industry practice and standards):
| · | Canada and the USA: A Medallion Signature Guarantee obtained from a member of an acceptable Medallion<br>Signature Guarantee Program (STAMP, SEMP, NYSE MSP). Many commercial banks, savings banks, credit unions, and all broker dealers participate<br>in a Medallion Signature Guarantee Program. The Guarantor must affix a stamp bearing the actual words “Medallion Guaranteed”,<br>with the correct prefix covering the face value of the certificate. |
|---|---|
| · | Canada: A Signature Guarantee obtained from the Guarantor must affix a stamp bearing the actual<br>words “Signature Guaranteed”. Signature Guarantees are not accepted from Treasury Branches, Credit Unions or Caisse<br>Populaires unless they are members of a Medallion Signature Guarantee Program. For corporate holders, corporate signing resolutions, including<br>certificate of incumbency, are also required to accompany the transfer, unless there is a “Signature & Authority toSign Guarantee” Stamp affixed to the transfer (as opposed to a “Signature Guarantee” Stamp) obtained from<br>an authorized officer of a major Canadian Schedule 1 chartered bank. |
| --- | --- |
| · | Outside North America: For holders located outside North America, present the certificates(s) and/or<br>document(s) that require a guarantee to a local financial institution that has a corresponding Canadian or American affiliate which<br>is a member of an acceptable Medallion Signature Guarantee Program. The corresponding affiliate will arrange for the signature to be over-guaranteed. |
| --- | --- |
“A”-7
TO CDS GLOBAL 2028 CONVERTIBLE NOTE
THE CANNABIST COMPANY HOLDINGS INC.
And
THE CANNABIST COMPANY HOLDINGS (CANADA) INC.
9.00% SENIOR SECURED CONVERTIBLE NOTESDUE, 2028
Initial Principal Amount: $●
| Authorization: |
|---|
ADJUSTMENTS
| Date | Amount of Increase | Amount of Decrease | New Principal Amount | Authorization |
|---|
“A”-8
Schedule "B"
FORM OF NOTICE OF CONVERSION
CONVERSION NOTICE
| To: | THE CANNABIST COMPANY HOLDINGS INC. and THE CANNABIST COMPANY<br>HOLDINGS (CANADA) INC. |
|---|---|
| Note: | All capitalized terms used herein have the meaning ascribed thereto in the Indenture mentioned below,<br>unless otherwise indicated. |
| --- | --- |
The undersigned registered holder of 9.00% Senior Secured Convertible Notes Due 2028 irrevocably elects to convert such 2028 Convertible Notes (or $● principal amount thereof*) in accordance with the terms of the Indenture referred to in such 2028 Convertible Notes and tenders herewith the 2028 Convertible Notes and directs that the Common Shares of The Cannabist Company Holdings Inc. issuable upon a conversion be issued and delivered to the person indicated below. (If Common Shares are to be issued in the name of a person other than the holder, all requisite transfer taxes must be tendered by the undersigned).
| Dated: | (Signature of Registered Holder) |
|---|
* If less than the full principal amount of the 2028 Convertible Notes, indicate in the space provided the principal amount (which must be $1,000 or integral multiples thereof).
NOTE: If Common Shares are to be issued in the name of a person other than the holder, the signature must be guaranteed by a chartered bank, a trust company or by a member of an acceptable Medallion Guarantee Program. The guarantor must affix a stamp bearing the actual words: “SIGNATURE GUARANTEED”.
(Print name in which Common Shares are to be issued, delivered and registered)
| Name: |
|---|
| Address: |
| --- |
| City, Province and Postal Code |
| --- |
| Name of Guarantor: |
| --- |
| Authorized Signature: |
| --- |
“B”-1
Exhibit 10.1
THE CANNABIST COMPANY HOLDINGS INC.
as the Corporation
and
ODYSSEYTRUST COMPANY
as the Warrant Agent
warrantAGENCY Agreement
May 29, 2025
TABLE OF CONTENTS
| Article 1 INTERPRETATION | 3 | |
|---|---|---|
| Section 1.1 | Definitions | 3 |
| Section 1.2 | Meaning of “Outstanding” for Certain Purposes | 8 |
| Section 1.3 | Certain Rules of Interpretation | 9 |
| Section 1.4 | Interpretation not Affected by Headings, etc. | 9 |
| Section 1.5 | Applicable Law | 9 |
| Section 1.6 | Language Clause | 9 |
| Section 1.7 | Day Not A Business Day | 10 |
| Section 1.8 | Conflict | 10 |
| Section 1.9 | Time Of The Essence | 10 |
| Section 1.10 | Currency | 10 |
| Section 1.11 | Severability | 10 |
| Section 1.12 | Schedules | 10 |
| Article 2 ISSUE OF WARRANTS | 11 | |
| Section 2.1 | Creation and Issue of Warrants | 11 |
| Section 2.2 | Terms of Warrants | 11 |
| Section 2.3 | Holder Not A Shareholder | 11 |
| Section 2.4 | Fractions of Warrants | 12 |
| Section 2.5 | Form of Warrants, Certificated Warrants | 12 |
| Section 2.6 | Book Entry (Non-Certificated Inventory) Warrants | 14 |
| Section 2.7 | Register for Warrants | 16 |
| Section 2.8 | Issue in Substitution for Lost Warrant Certificate | 16 |
| Section 2.9 | Transfer and Ownership of Warrants | 17 |
| Section 2.10 | Transferee Entitled to Registration | 17 |
| Section 2.11 | Ownership of Warrants | 18 |
| Section 2.12 | Exchange of Warrant Certificates | 18 |
| Section 2.13 | Legend | 19 |
| Section 2.14 | Restrictions and Transfers under United States Securities | 20 |
| Article 3 EXERCISE OF WARRANTS | 21 | |
| Section 3.1 | Rights of Exercise of Warrants | 21 |
| Section 3.2 | Method of Exercise of Warrants | 21 |
| Section 3.3 | Arrangement. | 23 |
| Section 3.4 | Effect of Exercise of Warrants | 23 |
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| Section 3.5 | Partial Exercise of Warrants | 23 |
|---|---|---|
| Section 3.6 | Cancellation of Warrants | 24 |
| Section 3.7 | Warrants Void after the Expiry Time | 24 |
| Section 3.8 | Accounting and Recording | 24 |
| Section 3.9 | Securities Restrictions | 24 |
| Section 3.10 | Restrictions on Exercise under United States Securities Laws | 24 |
| Article 4 ADJUSTMENTS | 25 | |
| Section 4.1 | Adjustment upon Share Reorganization or Capital Reorganization | 25 |
| Section 4.2 | Adjustment upon Rights Offering | 27 |
| Section 4.3 | Adjustment to Exercise Price and Extraordinary Dividend Threshold | 29 |
| Section 4.4 | Entitlement to Shares and Other Securities on Exercise of Warrants | 30 |
| Section 4.5 | No Adjustment for Stock Options, Issuances Below Exercise Prices, etc. | 30 |
| Section 4.6 | Determination by Corporation’s Auditors | 31 |
| Section 4.7 | Proceedings Prior to Any Action Requiring Adjustment | 31 |
| Section 4.8 | Action Requiring Adjustment | 31 |
| Section 4.9 | Certificate of Adjustment | 31 |
| Section 4.10 | Notice of Special Matters | 31 |
| Section 4.11 | No Action after Notice | 32 |
| Section 4.12 | Protection of Warrant Agent | 32 |
| Section 4.13 | Adjustments Cumulative | 33 |
| Section 4.14 | Participation by Holder. | 33 |
| Article 5 PURCHASES BY THE CORPORATION | 33 | |
| Section 5.1 | Optional Purchase by the Corporation | 33 |
| Article 6 COVENANTS OF THE CORPORATION | 33 | |
| Section 6.1 | Issuance of Shares | 33 |
| Section 6.2 | To Pay Warrant Agent Remuneration and Expenses | 34 |
| Section 6.3 | To Perform Covenants | 35 |
| Section 6.4 | Warrant Agent May Perform Covenants | 35 |
| Article 7 ENFORCEMENT | 35 | |
| Section 7.1 | Suits by Holders of Warrants | 35 |
| Section 7.2 | Suits by the Corporation | 35 |
| Section 7.3 | Immunity of Shareholders, etc. | 36 |
-ii-
| Section 7.4 | Limitation of Liability | 36 |
|---|---|---|
| Section 7.5 | Waiver of Default | 36 |
| Article 8 SUCCESSOR CORPORATIONS | 36 | |
| Section 8.1 | Certain Requirements | 36 |
| Section 8.2 | Vesting Of Powers in Successor | 37 |
| Article 9 MEETINGS OF HOLDERS OF WARRANTS | 37 | |
| Section 9.1 | Right to Convene Meetings | 37 |
| Section 9.2 | Notice of Meetings | 37 |
| Section 9.3 | Chairman | 37 |
| Section 9.4 | Quorum | 38 |
| Section 9.5 | Power to Adjourn | 38 |
| Section 9.6 | Show Of Hands | 38 |
| Section 9.7 | Poll | 38 |
| Section 9.8 | Voting | 38 |
| Section 9.9 | Regulations | 39 |
| Section 9.10 | Corporation and Warrant Agent May Be Represented | 39 |
| Section 9.11 | Powers Exercisable By Extraordinary Resolution | 40 |
| Section 9.12 | Meaning of “Extraordinary Resolution” | 41 |
| Section 9.13 | Powers Cumulative | 41 |
| Section 9.14 | Minutes | 41 |
| Section 9.15 | Instruments in Writing | 42 |
| Section 9.16 | Binding Effect of Resolutions | 42 |
| Section 9.17 | Holdings by Corporation and its Subsidiaries Disregarded | 42 |
| Article 10 NOTICES | 42 | |
| Section 10.1 | Notice to the Corporation and the Warrant Agent | 42 |
| Section 10.2 | Notice to Holders of Warrants | 43 |
| Section 10.3 | Mail Service Information | 43 |
| Article 11 CONCERNING THE WARRANT AGENT | 44 | |
| Section 11.1 | No Conflict of Interest | 44 |
| Section 11.2 | Replacement of Warrant Agent | 44 |
| Section 11.3 | Evidence, Experts and Advisers | 45 |
| Section 11.4 | Warrant Agent May Deal in Securities | 46 |
-iii-
| Section 11.5 | Warrant Agent Not Ordinarily Bound | 46 |
|---|---|---|
| Section 11.6 | Warrant Agent Not Required To Give Security | 46 |
| Section 11.7 | Warrant Agent Not Required To Give Notice of Default | 46 |
| Section 11.8 | Acceptance of Appointment | 46 |
| Section 11.9 | Duties of Warrant Agent | 47 |
| Section 11.10 | Actions by Warrant Agent | 47 |
| Section 11.11 | Protection of Warrant Agent | 48 |
| Section 11.12 | Indemnification of the Warrant Agent | 49 |
| Section 11.13 | Third Party Interests | 49 |
| Section 11.14 | Not Bound To Act | 49 |
| Section 11.15 | Privacy Laws | 50 |
| Article 12 SUPPLEMENTAL AGREEMENTS | 50 | |
| Section 12.1 | Supplemental Agreements | 50 |
| Article 13 GENERAL PROVISIONS | 51 | |
| Section 13.1 | Execution | 51 |
| Section 13.2 | Rights of Rescission | 51 |
| Section 13.3 | Force Majeure | 51 |
| Section 13.4 | Satisfaction and Discharge of Agreement | 52 |
| Section 13.5 | Warrants Owned by the Corporation or its Subsidiaries - Certificate to be Provided | 52 |
| Section 13.6 | Provisions of Agreement and Warrants for the Sole Benefit of Parties and Holders | 52 |
| Section 13.7 | DRS Advices | 52 |
ADDENDA
SCHEDULE “A” FORM OF WARRANT CERTIFICATE
-iv-
WARRANT AGENCY AGREEMENT
THISAGREEMENT made as of May 29, 2025
BETWEEN:
THECANNABIST COMPANY HOLDINGS INC., a corporation incorporated under the laws of the Province of British Columbia (the “Corporation”)
AND
ODYSSEYTRUST COMPANY, a trust company incorporated under the laws of the Loan and Trust Corporations Act (Alberta) with an office in the City of Calgary in the Province of Alberta (the “Warrant Agent”)
WHEREAS:
| A. | All capitalized terms used in these recitals have the meanings ascribed to them in Section 1.1 below; |
|---|---|
| B. | In conjunction with the Arrangement, the Corporation intends to issue an aggregate of 118,246,947 Warrants<br>to the holders of its Common Shares and Proportionate Voting Shares; |
| --- | --- |
| C. | Each Warrant entitles the Holder thereof to receive, upon payment by the Holder of the Exercise Price,<br>and subject to adjustment in certain circumstances, one Common Share, commencing at the Commencement Time and terminating at the Expiry<br>Time upon the terms and conditions herein set forth; |
| --- | --- |
| D. | The Corporation is duly authorized to create and issue the Warrants to be issued as herein provided; |
| --- | --- |
| E. | All things necessary have been done and performed to make the Warrants, when certified by the Warrant<br>Agent and issued as provided in this Agreement, legal, valid and binding obligations of the Corporation with the benefits of and subject<br>to the terms of this Agreement; |
| --- | --- |
| F. | The foregoing recitals are made as representations and statements of fact by the Corporation and not by<br>the Warrant Agent; and |
| --- | --- |
| G. | The Warrant Agent has agreed to enter into this Agreement and to hold all rights, interests and benefits<br>contained herein for and on behalf of those Persons who from time to time become holders of Warrants issued pursuant to this Agreement; |
| --- | --- |
NOWTHEREFORE THIS AGREEMENT WITNESSES that for good and valuable consideration mutually given and received, the receipt and sufficiency of which are hereby acknowledged by each of the Corporation and the Warrant Agent, the Corporation appoints the Warrant Agent as warrant agent to hold all rights, interests and benefits contained in this Agreement for and on behalf of those Persons who from time to time become holders of Warrants issued pursuant to this Agreement, and the parties hereby covenant, agree and declare as follows:
-2-
Article 1****INTERPRETATION
Section 1.1****Definitions
In this Agreement, including the recitals and schedules hereto, the following words and phrases shall have the following meanings:
“Accredited Investor” means an “accredited investor” as such term is defined in Rule 501(a) of Regulation D of the U.S. Securities Act;
“Acquiring Person” shall have the meaning ascribed thereto in Section 4.1(1)(e)(i);
“Agreement” or “thisAgreement” means this warrant agency agreement dated as of the date hereof between the Corporation and the Warrant Agent;
“Arrangement” means the plan of arrangement in respect of The Cannabist Company Holdings (Canada) Inc. and 16834434 Canada Inc. involving the Corporation and concerning, among other things, the issuance of new debt of the Corporation and The Cannabist Company Holdings (Canada) Inc. and the issuance by the Corporation of Common Shares or rights thereto and the Warrants;
“Authenticated” means (a) with respect to the issuance of a Warrant Certificate, one which has been duly signed by the Corporation and authenticated by manual signature of an authorized officer of the Warrant Agent, and (b) with respect to the issuance of an Uncertificated Warrant, one in respect of which the Warrant Agent has completed all Internal Procedures such that the particulars of such Uncertificated Warrant as required by Section 2.5 are entered in the register of holders of Warrants; and “Authenticate”, “Authenticating” and “Authentication” have the appropriate correlative meanings;
“Book Entry Participant” means an institution that participates directly or indirectly in the Depository’s book entry registration system for the Warrants;
“Book Entry Warrant” means a Warrant that is to be held only by or on behalf of the Depository;
“BusinessDay” means any day of the year (prior to 5:00 p.m. Toronto time), other than a Saturday, Sunday or any day on which the main branches of Canadian chartered banks are closed for regular business in Toronto, Ontario and New York, New York;
“Capital Reorganization” shall have the meaning ascribed thereto in Section 4.1(1)(c);
-3-
“CDS” means CDS Clearing and Depository Services Inc., or such other Person as is designated in writing by the Corporation to act as depository in respect of all or a portion of the Warrants;
“CDS Global Warrants” means Warrants representing all or a portion of the aggregate number of Warrants issued in the name of the Depository represented by an Uncertificated Warrant, or if requested by the Depository or the Corporation, by a Warrant Certificate;
“CertificatedWarrant” means a Warrant evidenced by a writing or writings substantially in the form of the Warrant Certificate attached hereto at Schedule “A”;
“Closing of the Arrangement” means the closing of the transactions contemplated under the Arrangement;
“Commencement Time” means the date of original issue of the Warrants;
“Common Shares” means the common shares in the capital of the Corporation as such shares are presently constituted, provided that in the event of any adjustment in accordance with the provisions of Article 4 hereof, “Common Shares” shall thereafter mean the shares or other securities or property resulting from such adjustment, and “Common Share” means any one of them;
“Confirmation” has the meaning ascribed thereto in Section 3.2(6);
“Convertible Securities” means securities of the Corporation (other than the Warrants) or of any other issuer convertible into or exchangeable for or otherwise carrying the right to acquire Common Shares, including for certainty, the Proportionate Voting Shares;
“Corporation” means The Cannabist Company Holdings Inc., and includes any Successor Corporation to or of The Cannabist Company Holdings Inc., which has complied with the provisions of Article 8;
“Corporation’s Auditors” means an independent firm of chartered accountants duly appointed as auditors of the Corporation, and as of the date hereof, means PKF O’Connor Davies, LLP;
“Current Market Price” in respect of a Common Share at any date means the VWAP for the 20 consecutive Trading Days ending on the fifth Trading Day before such date on the Exchange or, if the Common Shares are not then listed on the Exchange, then on such other stock exchange on which the Common Shares are then listed as may be selected by the Directors or, if the Common Shares are not then listed on a stock exchange, on the over-the-counter market; provided that, if there is no market for the Common Shares during all or part of such period during which the Current Market Price thereof would otherwise be determined, the Current Market Price in respect of a Common Share shall in respect of all or such part of the period be determined by a nationally recognized accounting firm chosen by the Corporation;
-4-
“Depository” means CDS or its successor, or any other depository offering a book based securities registration and transfer system similar to that administered by CDS which the Corporation, with the consent of the Warrant Agent, acting reasonably, may designate;
“Designated Jurisdiction” means all of the provinces and territories of Canada;
“Director” means a director of the Corporation and “Directors” or “Board of Directors” means the board of directors of the Corporation or, whenever duly empowered, a committee of the board of directors of the Corporation;
“Dividends” means dividends or distributions (payable in cash or in securities, property or assets of equivalent value, as determined by the Board of Directors) declared payable on the Shares;
“Equity Shares” means the Common Shares and the Proportionate Voting Shares, and any shares of any other class or series of the Corporation which may, from time to time, be authorized for issue if by their terms such shares confer on the holders thereof the right to participate in the distribution of assets upon the voluntary or involuntary liquidation, dissolution or winding up of the Corporation beyond a fixed sum or a fixed sum plus accrued Dividends;
“Excess Amount” means, with respect to any Extraordinary Dividend, the aggregate absolute dollar value of such Extraordinary Dividend per Share (as determined by the Board of Directors in the case of non-cash dividends), less the Extraordinary Dividend Threshold;
“Exchange” means Cboe Canada Inc. or any successor, assign or replacement exchange on which any of the Corporation’s securities are listed from time to time;
“Exercise Date” means, with respect to any Warrant, the date on which such Warrant is validly exercised or deemed to be validly exercised in accordance with Article 3;
“Exercise Form” has the meaning ascribed thereto in Section 3.2(1);
“Exercise Price” has the meaning ascribed thereto in Section 3.2(1);
“ExpiryDate” means, with respect to any Warrant, May 29, 2027 provided that, if such date is not a Business Day the Expiry Date shall be on the next Business Day;
“ExpiryTime” means 5:00 p.m. (Toronto time) on the Expiry Date;
“Extraordinary Dividend” means any dividend, together with all other Dividends payable in the same calendar year, that has an aggregate absolute dollar value (as determined by the Board of Directors in the case of non-cash dividends) which is greater than the Extraordinary Dividend Threshold;
-5-
“ExtraordinaryDividend Threshold” means C$0.50 per Share, unless such threshold shall have been adjusted in accordance with the provisions of Article 4, in which case it shall mean the adjusted threshold in effect at such time;
“Extraordinary Resolution” has the meaning ascribed thereto in Section 9.12 and Section 9.15;
“Holders” means the Persons, from time to time, who are registered owners of the Warrants, as such names appear on the register, and for greater certainty, shall include the Depository as well as the holders of Uncertificated Warrants appearing on the register of the Warrant Agent;
“holders” without reference to Warrants, means the warrantholders as and in respect of Warrants registered in the name of the Depository and includes owners of Warrants who beneficially hold securities entitlements in respect of the Warrants through a Book Entry Participant or means, at a particular time, the persons entered in the register hereinafter mentioned as holders of the Warrants outstanding at such time;
“Holders’ Request” means an instrument signed in one or more counterparts by Holders of not less than 25% of the aggregate number of the Warrants then outstanding, requesting the Warrant Agent to take some action or proceeding specified therein;
“Internal Procedures” means in respect of the making of any one or more entries to, changes in or deletions of any one or more entries in the register at any time (including without limitation, original issuance or registration of transfer of ownership) the minimum number of the Warrant Agent’s internal procedures customary at such time for the entry, change or deletion made to be complete under the operating procedures followed at the time by the Warrant Agent;
“Officers’ Certificate” means a certificate signed by any one or more of the Directors or officers of the Corporation;
“Person” includes any individual, corporation, company, partnership, association, joint venture, trust, unincorporated association, government or governmental authority;
“Privacy Laws” has the meaning ascribed thereto in Section 11.15;
“Proportionate Voting Shares” means the proportionate voting shares in the capital of the Corporation, and “Proportionate Voting Share” means any one of them;
“register” means the one set of records and accounts maintained by the Warrant Agent pursuant to Section 2.7;
“Regulation S” means Regulation S promulgated under the U.S. Securities Act*;*
“Rights Offering” has the meaning ascribed thereto in Section 4.2(1);
-6-
“SEC” means the United States Securities and Exchange Commission;
“Securities Commissions” means the securities regulatory authority in each of the Designated Jurisdictions;
“Securities Laws” means, as applicable, the securities laws, regulations, rules, rulings and orders in each of the Designated Jurisdictions, the published policy statements issued by the Securities Commissions and the rules of the Exchange, as each may be amended from time to time;
“Share Reorganization” shall have the meaning ascribed thereto in Section 4.1(1)(a);
“Shares” means the Common Shares for which the Warrants are conferred the right to acquire, provided that in the event of any adjustment in accordance with the provisions of Article 4 hereof, “Shares” shall thereafter mean the shares or other securities or property resulting from such adjustment, and “Share” means any one of them;
“Special Distribution” has the meaning ascribed thereto in Section 4.2(2);
“Subsidiary” shall have the meaning ascribed thereto in National Instrument 45-106 -Prospectus Exemptions under the Securities Act (Ontario) as at the date hereof;
“Successor Corporation” has the meaning ascribed thereto in Section 8.1;
“TaxAct” means the Income Tax Act (Canada), as amended from time to time;
“Trading Day” means any day on which the Exchange (or such other exchange on which the Shares are listed and which forms the primary trading market for the Shares) is open for trading;
“U.S. Person” means a “U.S. person” as such term is defined in Regulation S under the U.S. Securities Act;
“U.S. Securities Act” means the United States Securities Act of 1933*,* as amended, and the rules and regulations promulgated thereunder;
“U.S. Securities Exchange Act” means the United States Securities Exchange Act of 1934, as amended;
“Uncertificated Warrant” means any Warrant which is not a Certificated Warrant;
“United States” means the United States of America, its territories and possessions, any state of the United States and the District of Colombia;
“VWAP” means the volume weighted average trading price of the Shares on the Exchange or such other principal stock exchange on which the Shares are trading, calculated by dividing the total value by the total volume of Shares traded for the relevant period;
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“Warrant Agency” means the principal transfer office of the Warrant Agent in the City of Calgary, Alberta, and such other locations as the Corporation may designate with the approval of the Warrant Agent;
“WarrantAgent” means Odyssey Trust Company or its successor or successors for the time being as warrant agent appointed hereunder, at its principal office in the City of Calgary, Alberta;
“Warrant Certificate” means a certificate, substantially in the form set forth in Schedule “A” hereto, to evidence those Warrants that will be evidenced by a certificate;
“Warrants” means, collectively, (i) the 118,246,947 Share purchase warrants to be issued at the Closing of the Arrangement created and issued hereunder, and for the time being outstanding entitling registered holders thereof to acquire, upon the valid exercise thereof and subject to adjustment in certain circumstances, one Share in accordance with the terms hereof, and “Warrant” means any one of them; and
“written order of the Corporation”, “written request of the Corporation”, “written consent of the Corporation” and “certificateof the Corporation” means, respectively, a written order, request, consent and certificate signed in the name of the Corporation by any one or more of the Directors or officers of the Corporation and may consist of one or more instruments so executed and any other documents referred to herein which is required or contemplated to be provided or given by the Corporation;
and a derivative of any defined word or phrase has the meaning appropriate to the derivation of the word or phrase.
Section 1.2****Meaningof “Outstanding”for Certain Purposes
Except as provided in Section 3.7, every Warrant Certificate countersigned and delivered by the Warrant Agent under this Agreement shall be deemed to be outstanding until it has been surrendered to the Warrant Agent pursuant to this Agreement, provided however that:
| (1) | a Warrant Certificate that has been partially exercised or exchanged shall be deemed to be outstanding<br>only to the extent of the unexercised or unexchanged, as the case may be, part of the Warrants evidenced thereby; |
|---|---|
| (2) | where a Warrant Certificate has been issued in substitution for a Warrant Certificate that has been lost,<br>stolen or destroyed, only one of them shall be counted for the purpose of determining the Warrants outstanding; and |
| --- | --- |
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| (3) | for the purpose of any provision of this Agreement entitling Holders of outstanding Warrants to vote,<br>sign consents, requests or other instruments or take any other action under this Agreement, Warrants owned legally or beneficially by<br>the Corporation or any Subsidiary shall be disregarded, except that: |
|---|---|
| (a) | for the purpose of determining whether the Warrant Agent will be protected in relying on any vote, consent,<br>request or other instrument or other action, only the Warrants of which the Warrant Agent has notice that they are so owned shall be so<br>disregarded; and |
| --- | --- |
| (b) | Warrants so owned that have been pledged in good faith other than to the Corporation or any Subsidiary<br>shall not be so disregarded if the pledgee establishes to the satisfaction of the Warrant Agent the pledgee’s right to vote the<br>Warrants in the pledgee’s discretion free from the control of the Corporation or any Subsidiary pursuant to the terms of the pledge. |
| --- | --- |
Section 1.3****CertainRules of Interpretation
Unless otherwise specified in this Agreement:
| (1) | words importing the singular number include the plural and vice versa; |
|---|---|
| (2) | words importing gender include both genders and vice versa and words importing individuals include firms<br>and corporations and vice versa; |
| --- | --- |
| (3) | the words “hereto”,<br>“herein”,<br>“hereby”,<br>“hereunder”,<br>“hereof”<br>and similar expressions used herein refer to this instrument and not to any particular article, section, clause, subdivision or other<br>portion hereof, and include each instrument supplemental or ancillary hereto or required to implement this instrument; |
| --- | --- |
| (4) | “in writing”<br>or “written”<br>includes printing, typewriting or any electronic means of communication capable of being visibly reproduced at the point of reception,<br>including telecopy and scan (in PDF format); |
| --- | --- |
| (5) | “including”<br>is used for illustration only and not to limit the generality of any preceding words, whether or not non-limiting language (such as, “without<br>limitation”, “but<br>not limited to” and similar expressions) is used with reference<br>thereto; and |
| --- | --- |
| (6) | reference to any statute, regulation or by-law includes amendments, consolidations, re-enactments and<br>replacements thereof and instruments and legislation thereunder. |
| --- | --- |
Section 1.4****Interpretationnot Affected by Headings, etc.
The division of this Agreement into Articles, sections and other subdivisions, the inclusion of a table of contents and the insertion of headings are for convenience of reference only and do not affect the construction or interpretation of this Agreement.
Section 1.5****ApplicableLaw
This Agreement, the Warrants and the Warrant Certificates (including all documents relating thereto, which by common accord have been and will be drafted in English) shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein. Any and all disputes arising under this Agreement, the Warrants and the Warrant Certificates, whether as to interpretation, performance or otherwise, shall be subject to the exclusive jurisdiction of the courts of the Province of British Columbia and each of the parties hereto irrevocably attorns to the jurisdiction of the courts of such Province.
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Section 1.6****LanguageClause
The parties hereto have required that this Agreement and all documents and notices related thereto or resulting therefrom be drawn up in the English language. Les parties ont expressément demandé que la présente convention ainsi que tout autre document à être ou pouvant être donné ou conclu en vertu des dispositions des présentes, soient rédigés en langue anglaise seulement.
Section 1.7****DayNot A Business Day
If any day on or before which any action or notice is required to be taken or given hereunder is not a Business Day, then such action or notice shall be required to be taken or given on or before the requisite time on the next succeeding day that is a Business Day.
Section 1.8****Conflict
In the event of a conflict or inconsistency between a provision of this Agreement and in the Warrant Certificates issued hereunder, the relevant provision in this Agreement shall prevail to the extent of the inconsistency.
Section 1.9****TimeOf The Essence
Time shall be of the essence of this Agreement, the Warrants and the Warrant Certificates.
Section 1.10****Currency
Except as otherwise stated, all dollar amounts herein are expressed in Canadian dollars.
Section 1.11****Severability
In the event that any provision of this Agreement is determined to be invalid or unenforceable in any respect, such determination shall not affect such provision in any other respect or any other provision of this Agreement, all of which shall remain in full force and effect.
Section 1.12****Schedules
Schedule “A” to this Agreement is incorporated into this Agreement by reference.
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Article 2****ISSUE OF WARRANTS
Section 2.1****Creationand Issue of Warrants
| (1) | The Warrant Agent is hereby appointed as warrant agent in respect of the Warrants. |
|---|---|
| (2) | Subject to the terms and conditions<br>of this Agreement, and subject to any adjustment hereunder, a total of 118,246,947 Warrants entitling the holders thereof to acquire<br>up to 118,246,947 Shares are hereby created and authorized to be issued hereunder upon the terms and conditions herein set forth and shall<br>be executed. For greater certainty, the number of Warrants authorized to be issued hereunder shall be limited to 118,246,947 Warrants. |
| --- | --- |
Section 2.2****Termsof Warrants
| (1) | The Warrants shall be issued hereunder in accordance with the direction provided to the Warrant Agent<br>pursuant to Section 2.5 and Section 2.6<br>hereof. |
|---|---|
| (2) | Upon the valid exercise of the Warrants after the Commencement Time and prior to the Expiry Time in accordance<br>with Section 3.2 hereof, including payment of the Exercise Price<br>in connection therewith, each Warrant shall entitle the Holder to acquire, subject to adjustment in accordance with Article 4<br>hereof, one Share. |
| --- | --- |
| (3) | All Warrants shall, save as to denominations, be of like tenor and effect. No certificate or other forms<br>of ownership statement evidencing fractional Warrants shall be issued or otherwise provided for. |
| --- | --- |
| (4) | The number of Shares which may be acquired pursuant to the exercise of the Warrants shall be adjusted<br>in the events and in the manner specified in Article 4. |
| --- | --- |
| (5) | All Warrants shall rank pari passu, or equally, and without preference over each other, whatever may be<br>the actual date of issue thereof. |
| --- | --- |
| (6) | The Warrants and any rights thereunder shall expire in accordance with and subject to the provisions of<br>Section 3.7. |
| --- | --- |
| (7) | All Warrants need not be issued at the same time and may be issued from time to time, consistent with<br>the terms of this Agreement, if so provided herein, by or pursuant to such resolution of the Board of Directors or in an agreement supplemental<br>hereto. |
| --- | --- |
Section 2.3****HolderNot A Shareholder
Except as may be specifically provided herein or in the Warrant Certificates, nothing in this Agreement or in holding of a Warrant Certificate, entitlement to a Warrant or otherwise, shall be construed as conferring upon a holder or a Holder any right or interest whatsoever as a shareholder of the Corporation, including, but not limited to, the right to vote at, to receive notice of, or to attend, meetings of shareholders or any other proceedings of the Corporation, or the right to receive Dividends and other distributions.
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Section 2.4****Fractionsof Warrants
The Corporation will not be obligated to issue any fraction of a Warrant, and any Warrants which a Holder is entitled to receive shall be rounded down to the nearest whole number and no consideration shall be paid for any such fractional Warrants.
Section 2.5****Form ofWarrants, Certificated Warrants
| (1) | The Warrants may be issued in both certificated and uncertificated form. All Warrants issued to the Depository<br>may be in either a certificated or uncertificated form, such uncertificated form being evidenced by a book position on the register of<br>Holders to be maintained by the Warrant Agent in accordance with Section 2.7.<br>Notwithstanding anything to the contrary in this Agreement, subject to Securities Laws, the CDS Global Warrant will be issued as an Uncertificated<br>Warrant, unless otherwise requested in writing by the Depository or the Corporation. |
|---|---|
| (2) | For those Warrants that will<br>be evidenced by a certificate, the form of certificate representing Warrants shall be substantially as set out in Schedule “A”<br>hereto or such other form as is authorized from time to time by the Corporation and the Warrant Agent, shall be dated as of the issue<br>date thereof (including all replacements issued in accordance with this Agreement), shall bear such distinguishing letters and numbers<br>as the Corporation may, with the approval of the Warrant Agent, prescribe, and shall be issuable in any denomination excluding fractions.<br>Irrespective of any adjustments pursuant to Article 4 hereof, all replacement Warrants Certificates shall continue to express the<br>number of Shares purchasable upon the exercise of the Warrant(s) evidenced thereby and the Exercise Price thereof as if such Warrant<br>Certificates were initially issued as of the original issue date thereof pursuant hereto. Each Warrant Certificate shall be Authenticated<br>manually on behalf of the Warrant Agent. Each Warrant Certificate shall be signed by either of the Chief Executive Officer or Chief Financial<br>Officer of the Corporation, whose signature shall appear on the Warrant Certificate and may be printed, lithographed or otherwise mechanically<br>reproduced thereon and, in such event, certificates so signed are as valid and binding upon the Corporation as if it had been signed manually.<br>Any Warrant Certificate which has the applicable signatures as hereinbefore provided shall be valid notwithstanding that one or more of<br>the persons whose signature is printed, lithographed or mechanically reproduced no longer holds office at the date of issuance of such<br>certificate. The Warrant Certificates may be engraved, printed or lithographed, or partly in one form and partly in another, as the Warrant<br>Agent may determine. |
| --- | --- |
| (3) | Upon the written order of the Corporation, the Warrant Agent shall Authenticate Uncertificated Warrants<br>(whether upon original issuance, exchange, registration of transfer, partial payment, or otherwise) by completing its Internal Procedures<br>and the Corporation shall, and hereby acknowledges that it shall, thereupon be deemed to have duly and validly issued such Uncertificated<br>Warrants under this Agreement. Such Authentication shall be conclusive evidence that such Uncertificated Warrant has been duly issued<br>hereunder and that the Holder or Holders are entitled to the benefits of this Agreement. The register shall be final and conclusive evidence<br>as to all matters relating to Uncertificated Warrants with respect to which this Agreement requires the Warrant Agent to maintain records<br>or accounts. In case of differences between the register at any time and any other time, the register at the later time shall be controlling,<br>absent manifest error and such Uncertificated Warrants are binding on the Corporation. |
| --- | --- |
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| (4) | Any Warrant Certificate validly issued in accordance with the terms of this Agreement in effect at the<br>time of issue of such Warrant Certificate shall, subject to the terms of this Agreement and applicable Securities Laws, validly entitle<br>the holder to acquire Shares, notwithstanding that the form of such Warrant Certificate may not be in the form currently required by this<br>Agreement. |
|---|---|
| (5) | No Warrant shall be considered issued and shall be valid or obligatory or shall entitle the Holder thereof<br>to the benefits of this Agreement until it has been Authenticated by the Warrant Agent. Authentication by the Warrant Agent shall not<br>be construed as a representation or warranty by the Warrant Agent as to the validity of this Agreement or of such Warrant Certificates<br>or Uncertificated Warrants (except the due Authentication thereof) or as to the performance by the Corporation of its obligations under<br>this Agreement, and the Warrant Agent shall in no respect be liable or answerable for the use made of the Warrants or any of them or of<br>the consideration thereof. Authentication by the Warrant Agent shall be conclusive evidence as against the Corporation that the Warrants<br>so Authenticated have been duly issued hereunder and that the Holder thereof is entitled to the benefits of this Agreement. |
| --- | --- |
| (6) | No Certificated Warrant shall be considered issued and Authenticated or, if Authenticated, shall be obligatory<br>or shall entitle the Holder thereof to the benefits of this Agreement, until it has been Authenticated by manual signature by or on behalf<br>of the Warrant Agent substantially in the form of the Warrant Certificate set out in Schedule “A” hereto. Such Authentication<br>on any such Certificated Warrant shall be conclusive evidence that such Certificated Warrant is duly Authenticated and is valid and a<br>binding obligation of the Corporation and that the Holder is entitled to the benefits of this Agreement. The Authentication by the Warrant<br>Agent on any such Certificated Warrant hereunder shall not be construed as a representation or warranty by the Warrant Agent as to the<br>validity of this Agreement or of such Warrant or its issuance (except the due Authentication thereof and any other warranties by law)<br>or as to the performance by the Corporation of its obligations under this Agreement and the Warrant Agent shall in no respect be liable<br>or answerable for the use made of the Warrants or any of them or the proceeds thereof. |
| --- | --- |
| (7) | No Uncertificated Warrant shall be considered issued and shall be obligatory or shall entitle the Holder<br>thereof to the benefits of this Agreement, until it has been Authenticated by entry on the register of the particulars of the Uncertificated<br>Warrant. Such entry on the register of the particulars of an Uncertificated Warrant shall be conclusive evidence that such Uncertificated<br>Warrant is a valid and binding obligation of the Corporation and that the holder is entitled to the benefits of this Agreement. Authenticating<br>by way of entry on the register shall not be construed as a representation or warranty by the Warrant Agent as to the validity of this<br>Agreement or of such Warrants (except the due Authentication thereof) or as to the performance by the Corporation of its obligations under<br>this Agreement and the Warrant Agent shall in no respect be liable or answerable for the use made of the Uncertificated Warrants or any<br>of them or the proceeds thereof. |
| --- | --- |
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| (8) | Warrants may be issued in either certificated or uncertificated form. |
|---|
Section 2.6****BookEntry (Non-Certificated Inventory) Warrants
| (1) | Re-registration of beneficial interests in, and transfers of, Warrants held by the Depository shall be<br>made only through the book entry registration system and no Warrant Certificates shall be issued in respect of such Warrants except where<br>physical certificates evidencing ownership in such securities are required or as set out herein or as may be requested by the Depository,<br>as determined by the Corporation, from time to time. |
|---|---|
| (2) | Notwithstanding any other provision in this Agreement, no CDS Global Warrants may be exchanged in whole<br>or in part for Warrants registered, and no transfer of any CDS Global Warrants in whole or in part may be registered, in the name of any<br>person other than the Depository for such CDS Global Warrants or a nominee thereof unless: |
| --- | --- |
| (a) | the Depository notifies the Corporation that it is unwilling or unable to continue to act as depository<br>in connection with the Warrants and the Corporation is unable to locate a qualified successor; |
| --- | --- |
| (b) | the Corporation determines that the Depository is no longer willing, able or qualified to discharge properly<br>its responsibilities as holder of the CDS Global Warrants and the Corporation is unable to locate a qualified successor; |
| --- | --- |
| (c) | the Depository ceases to be a clearing agency or otherwise ceases to be eligible to be a depository and<br>the Corporation is unable to locate a qualified successor; |
| --- | --- |
| (d) | the Corporation determines that the Warrants shall no longer be held as Uncertificated Warrants through<br>the Depository; |
| --- | --- |
| (e) | such right is required by applicable law, as determined by the Corporation and the Corporation’s<br>counsel; or |
| --- | --- |
| (f) | the Warrant is to be Authenticated to or for the account or benefit of a person in the United States or<br>a U.S. Person and such registration is determined to be necessary by the Corporation and the Corporation’s counsel; |
| --- | --- |
following which, Warrants for those holders requesting the same shall be registered to the beneficial owners of such Warrants or their nominees as directed by the holder. The Corporation shall provide an Officer’s Certificate giving notice to the Warrant Agent of the occurrence of any event outlined in this Section 2.6(2).
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| (3) | Subject to the provisions of this Section 2.6,<br>any exchange of CDS Global Warrants for Warrants which are not CDS Global Warrants may be made in whole or in part in accordance with<br>the provisions of Section 2.12, mutatis mutandis. All such<br>Warrants issued in exchange for a CDS Global Warrant or any portion thereof shall be registered in such names as the Depository for such<br>CDS Global Warrants shall direct and shall be entitled to the same benefits and subject to the same terms and conditions (except insofar<br>as they relate specifically to CDS Global Warrants) as the CDS Global Warrants or portion thereof surrendered upon such exchange. |
|---|---|
| (4) | Every Warrant that is Authenticated upon registration or transfer of a CDS Global Warrant, or in exchange<br>for or in lieu of a CDS Global Warrant or any portion thereof, whether pursuant to this Section 2.6,<br>or otherwise, shall be Authenticated in the form of, and shall be, a CDS Global Warrant, unless such Warrant is registered in the name<br>of a person other than the Depository for such CDS Global Warrant or a nominee thereof. |
| --- | --- |
| (5) | Notwithstanding anything to the contrary in this Agreement, subject to applicable law, the CDS Global<br>Warrant will be issued as an Uncertificated Warrant, unless otherwise requested in writing by the Depository or the Corporation. |
| --- | --- |
| (6) | The rights of beneficial owners of Warrants who hold securities entitlements in respect of the Warrants<br>through the book entry registration system shall be limited to those established by applicable law and agreements between the Depository<br>and the Book Entry Participants and between such Book Entry Participants and the beneficial owners of Warrants who hold securities entitlements<br>in respect of the Warrants through the book entry registration system, and such rights must be exercised through a Book Entry Participant<br>in accordance with the rules and procedures of the Depository. |
| --- | --- |
| (7) | Notwithstanding anything herein to the contrary, neither the Corporation nor the Warrant Agent nor any<br>agent thereof shall have any responsibility or liability for: |
| --- | --- |
| (a) | the electronic records maintained by the Depository relating to any ownership interests or any other interests<br>in the Warrants or the depository system maintained by the Depository, or payments made on account of any ownership interest or any other<br>interest of any person in any Warrant represented by an electronic position in the book entry registration system (other than the Depository<br>or its nominee); |
| --- | --- |
| (b) | maintaining, supervising or reviewing any records of the Depository or any Book Entry Participant relating<br>to any such interest; or |
| --- | --- |
| (c) | any advice or representation made or given by the Depository or those contained herein that relate to<br>the rules and regulations of the Depository or any action to be taken<br>by the Depository on its own direction or at the direction of any Book Entry Participant. |
| --- | --- |
| (8) | The Corporation may terminate the application of this Section 2.6<br>in its sole discretion in which case all Warrants shall be evidenced by Warrant Certificates registered in the name of a person other<br>than the Depository. |
| --- | --- |
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Section 2.7****Registerfor Warrants
| (1) | The Warrant Agent shall maintain records and accounts concerning the Warrants, whether certificated and<br>uncertificated, which shall contain the information called for below with respect to each Warrant, together with such other information<br>as may be required by law or as the Warrant Agent may elect to record. All such information shall be kept in one set of accounts and records<br>which the Warrant Agent shall designate (in such manner as shall permit it to be so identified as such by an unaffiliated party) as the<br>register of the holders of Warrants. The information to be entered for each account in the register of Warrants at any time shall include<br>(without limitation): |
|---|---|
| (a) | the name and address of the Holder of the Warrants, the date of Authentication thereof and the number<br>Warrants; |
| --- | --- |
| (b) | whether such Warrant is a Certificated Warrant or an Uncertificated Warrant and, if a Certificated Warrant,<br>the unique number or code assigned to and imprinted thereupon and, if an Uncertificated Warrant, the unique number or code assigned thereto,<br>if any; |
| --- | --- |
| (c) | whether such Warrant has been cancelled; and |
| --- | --- |
| (d) | a register of transfers in which all transfers of Warrants and the date and other particulars of each<br>transfer shall be entered. |
| --- | --- |
| (2) | The register or registers, as applicable, shall be available for inspection by the Corporation and or<br>any holder during the Warrant Agent’s regular business hours on a Business Day and upon payment to the Warrant Agent of its reasonable<br>fees. Any holder exercising such right of inspection shall first provide an affidavit in form satisfactory to the Corporation and the<br>Warrant Agent stating the name and address of the holder and agreeing not to use the information therein except in connection with an<br>effort to call a meeting of holders or to influence the voting of holders at any meeting of holders. |
| --- | --- |
Section 2.8****Issuein Substitution for Lost Warrant Certificate
| (1) | If any of the Warrant Certificates<br>shall become mutilated or lost, destroyed or stolen, the Corporation, subject to applicable law and to Section 2.8(2), shall issue<br>and thereupon, at the written direction of the Corporation, the Warrant Agent shall countersign and deliver a new Warrant Certificate<br>of like date and tenor and bearing the same legend as the one mutilated, lost, destroyed or stolen upon surrender and in place<br>of and upon cancellation of such mutilated Warrant Certificate, or in lieu of and in substitution for such lost, destroyed or stolen Warrant<br>Certificate, and the substituted Warrant Certificate shall be in a form approved by the Warrant Agent and shall be entitled to the benefits<br>hereof and shall rank equally in accordance with its terms with all other Warrant Certificates issued or to be issued hereunder. |
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| (2) | The applicant for the issue of a new Warrant Certificate pursuant to this Section 2.8<br>shall bear the reasonable cost of the issue thereof and in case of loss, destruction or theft shall, as a condition precedent to the issue<br>thereof, furnish to the Corporation and to the Warrant Agent evidence of ownership and of the loss, destruction or theft of the Warrant<br>Certificate so lost, destroyed or stolen satisfactory to the Warrant Agent in its sole discretion, acting reasonably, and such applicant<br>may also be required to furnish an indemnity and surety bond in amount and form satisfactory to the Warrant Agent in its sole discretion,<br>acting reasonably, and shall pay the reasonable charges of the Corporation and the Warrant Agent in connection therewith. |
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Section 2.9****Transferand Ownership of Warrants
| (1) | The Warrants may be transferred on the register kept at the Warrant Agency by the holder or its legal<br>representatives or its attorney duly appointed by an instrument in writing in form and manner of execution satisfactory to the Warrant<br>Agent, acting reasonably, only upon (a) in the case of a Warrant<br>Certificate, surrendering to the Warrant Agent at the Warrant Agency (or at any other place that is designated by the Corporation with<br>the approval of the Warrant Agent) the Warrant Certificates representing the Warrants to be transferred together with a duly executed<br>transfer form as set forth in Schedule “A”<br>hereto, (b) in the case of Book Entry Warrants, in accordance with<br>procedures prescribed by the Depository under the book entry registration system, and (c) upon<br>compliance with: |
|---|---|
| (a) | the conditions herein; |
| --- | --- |
| (b) | such requirements as the Warrant Agent may reasonably prescribe; and |
| --- | --- |
| (c) | all applicable securities legislation and requirements of regulatory authorities; |
| --- | --- |
and such transfer shall be duly noted in such register by the Warrant Agent. Upon compliance with such requirements, the Warrant Agent shall issue to the transferee a Warrant Certificate, or the Warrant Agent shall Authenticate and deliver a Warrant Certificate upon request that part of the CDS Global Warrant be certificated, and Warrants that are held as Book Entry Warrants shall be transferred and recorded through the relevant Book Entry Participant in accordance with the book entry registration system as the entitlement holder in respect of such Warrants.
| (2) | Subject to the provisions of this Agreement, and applicable law, the holder shall be entitled to the rights<br>and privileges attaching to the Warrants, and the issue of Shares (or other securities issued in accordance with Article 4)<br>by the Corporation upon the exercise of Warrants in accordance with the terms and conditions herein contained shall discharge all responsibilities<br>of the Corporation and the Warrant Agent with respect to such Warrants and neither the Corporation nor the Warrant Agent shall be bound<br>to inquire into the title of any such holder. |
|---|
Section 2.10****TransfereeEntitled to Registration
| (1) | The transferee of a Warrant shall, after the transfer form attached to the Warrant Certificate is duly<br>completed and the Warrant Certificate and transfer form are lodged with the Warrant Agent, and upon compliance with all other conditions<br>in that regard required by this Agreement and by all applicable securities legislation and requirements of regulatory authorities, be<br>entitled to have his or her name entered on the register as the owner of such Warrant, free from all equities or rights of set-off or<br>counterclaim between the Corporation and his or her transferor or any previous holder of such Warrant, save in respect of equities of<br>which the Corporation or the transferee is required to take notice by statute or by order of a court of competent jurisdiction. |
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| (2) | Upon compliance with all such applicable requirements, the Warrant Agent shall issue to the transferee<br>of a Certificated Warrant, a Warrant Certificate, and to the transferee of an Uncertificated Warrant, an Uncertificated Warrant (or it<br>shall Authenticate and deliver a Certificated Warrant instead, upon request), representing the Warrants transferred and the transferee<br>of a Book Entry Warrant shall be recorded through the relevant Book Entry Participant in accordance with the book entry registration system<br>as the entitlement holder in respect of such Warrants. |
|---|
Section 2.11****Ownershipof Warrants
| (1) | The Corporation and the Warrant Agent may deem and treat the registered Holder of any Warrant Certificate<br>as the absolute owner of the Warrants represented thereby for all purposes and the Corporation and the Warrant Agent shall not be affected<br>by any notice or knowledge to the contrary, except where the Corporation or the Warrant Agent is required to take notice by statute or<br>by order of a court of competent jurisdiction. For greater certainty, subject to applicable law, neither the Corporation nor the Warrant<br>Agent shall be bound to take notice of, or see to the execution of, any trust, whether express, implied or constructive, in respect of<br>any Warrant, and may transfer any Warrant on the direction of the Person registered as Holder thereof, whether named as trustee or otherwise,<br>as though that Person were the beneficial owner thereof. |
|---|---|
| (2) | Subject to the provisions of this Agreement and applicable law, each Holder shall be entitled to the rights<br>and privileges attaching to the Warrants held thereby. The exercise of the Warrants in accordance with the terms hereof and the receipt<br>by any such Holder of Shares pursuant thereto shall be a good discharge to the Corporation and the Warrant Agent with respect to such<br>Warrants and neither the Corporation nor the Warrant Agent shall be bound to inquire into the title of any such Holder except where the<br>Corporation or the Warrant Agent is required to take notice by statute or by order of a court of competent jurisdiction. |
| --- | --- |
Section 2.12****Exchangeof Warrant Certificates
| (1) | Warrant Certificates, representing Warrants entitling the Holders to receive any specified number of Shares,<br>may, prior to the Expiry Time and upon compliance with the reasonable requirements of the Warrant Agent, be exchanged for another Warrant<br>Certificate or Warrant Certificates entitling the Holder thereof to receive in the aggregate the same number of Shares as are issuable<br>under the Warrant Certificate or Warrant Certificates so exchanged. |
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| (2) | Warrant Certificates may be exchanged only at the Warrant Agency or at any other place that is designated<br>by the Corporation with the approval of the Warrant Agent. Any Warrant Certificates tendered for exchange shall be surrendered to the<br>Warrant Agent and shall, upon the valid completion of the exchange in accordance with the terms of this Agreement, be cancelled. |
|---|---|
| (3) | Except as otherwise herein provided, the Warrant Agent may charge to the Holder requesting an exchange<br>a reasonable sum for each new Warrant Certificate issued in exchange for Warrant Certificate(s), and payment of such charges and reimbursement<br>to the Warrant Agent or the Corporation for any and all taxes or governmental or other charges required to be paid shall be made by such<br>Holder as a condition precedent to such exchange. |
| --- | --- |
| (4) | Warrant Certificates exchanged in accordance with this Section 2.12<br>that bear a legend set forth in Section 2.14 herein shall bear the<br>same legend. |
| --- | --- |
Section 2.13 Legend
| (1) | If there is no effective registration statement covering the exercise of the Warrants with the SEC, all<br>share certificates for the Shares issuable upon the exercise of any Warrants, or if applicable, the relevant ownership statement under<br>a direct registration system or other book-entry system or other form of written notice, shall bear the following legend: |
|---|
**“**THESECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S.SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITEDSTATES. THE HOLDER HEREOF, BY ACQUIRING SUCH SECURITIES, AGREES, FOR THE BENEFIT OF THE CANNABIST COMPANY HOLDINGS INC. (THE “CORPORATION”),THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED,DIRECTLY OR INDIRECTLY, ONLY (A) TO THE CORPORATION; (B) INCOMPLIANCE WITH (1) RULE 144A UNDER THE U.S. SECURITIES ACT, IFAVAILABLE, OR (2) RULE 144 UNDER THE U.S. SECURITIES ACT, IFAVAILABLE, AND, IN EACH CASE, INCOMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS; OR (C) IN ANOTHERTRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS, PROVIDED THAT INTHE CASE OF TRANSFERS PURSUANT TO (B)(2) OR (C) ABOVE,A LEGAL OPINION FROM COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCEREASONABLY SATISFACTORY TO THE CORPORATION MUST FIRST BE PROVIDED. HEDGING TRANSACTIONS INVOLVING SUCH SECURITIES MAY NOTBE CONDUCTED UNLESS IN COMPLIANCE WITH THE U.S. SECURITIES ACT. DELIVERY OF THIS CERTIFICATE MAY NOTCONSTITUTE “GOOD DELIVERY”IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.”
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provided, that if any of Shares issuable upon the exercise of any Warrants, are being sold pursuant to Rule 144 under the U.S. Securities Act, if available, or in another transaction that does not require registration under the U.S. Securities Act or applicable state securities laws, the legend may be removed by delivery to the Company and its registrar and transfer agent of an opinion of counsel of recognized standing reasonably satisfactory to the Company, to the effect that the legend is no longer required under applicable requirements of the U.S. Securities Act or applicable state securities laws.
Section 2.14****Restrictionsand Transfers under United States Securities
| (1) | The Warrants and the Shares<br>have not been registered under the U.S. Securities Act and applicable state securities laws. Each Warrant Certificate shall bear<br>or be deemed to bear the following legend: |
|---|
**“**THISWARRANT AND THE SHARES ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED(THE “U.S. SECURITIES ACT”),OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THIS WARRANT MAY NOTBE EXERCISED IN THE UNITED STATES OR BY OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON OR PERSON IN THE UNITED STATES AND THE UNDERLYINGSHARES MAY NOT BE DELIVERED WITHIN THE UNITED STATES UNLESS THE WARRANTAND THE UNDERLYING SHARES HAVE BEEN REGISTERED UNDER THE U.S. SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTIONFROM SUCH REGISTRATION REQUIREMENTS IS AVAILABLE, AND THE HOLDER HAS, IFREQUIRED, DELIVERED AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORYTO THE CORPORATION TO SUCH EFFECT. “UNITED STATES”AND “U.S. PERSON”ARE USED HEREIN AS SUCH TERMS ARE DEFINED BY REGULATION S UNDER THE U.S. SECURITIES ACT.”
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Article 3****EXERCISE OF WARRANTS
Section 3.1****Rightsof Exercise of Warrants
The Warrants may be exercised at any time during the period commencing on the Commencement Time and terminating at the Expiry Time in accordance with the conditions herein and subject to adjustment in accordance with Article 4.
Section 3.2****Methodof Exercise of Warrants
| (1) | Subject always to the provisions of this Article 3<br>and compliance by both the Corporation and the Holder with applicable law, the Holder of any Warrant may exercise the right thereby conferred<br>on him or her to acquire one Share (subject to adjustment pursuant to Article 4)<br>in respect of each Warrant held by surrendering to the Warrant Agent at the Warrant Agency the Warrant Certificate(s) held<br>by him or her, together with (i) the exercise form forming part of<br>the Warrant Certificate (the “Exercise Form”)<br>duly completed and executed by the Holder or his or her executors, administrators or other legal representatives or his or her or their<br>attorney duly appointed by an instrument in writing in form and manner satisfactory to the Warrant Agent and the Corporation, acting reasonably;<br>and (ii) a certified cheque, bank draft, money order or wire transfer<br>in lawful money of Canada, payable to or to the order of the Corporation in an amount equal to C$0.14 per Share (the “ExercisePrice”) multiplied by the number of Shares subscribed for pursuant<br>to such Exercise Form. A Warrant Certificate with the duly completed and executed Exercise Form and<br>payment of the applicable Exercise Price shall be deemed to be surrendered only upon personal delivery thereof to or, if sent by mail<br>or other means of transmission, upon actual receipt thereof by, the Warrant Agent at the Warrant Agency. |
|---|---|
| (2) | The Exercise Form shall be executed<br>as set out in Section 3.2(1) and<br>shall specify the number of Shares which the Holder wishes to acquire (being not more than that number which he or she is entitled to<br>acquire pursuant to the Warrant Certificate(s) so surrendered). |
| --- | --- |
| (3) | Such Shares shall be issued in the name of the Holder. |
| --- | --- |
| (4) | In the event that a Holder has not exercised his or her Warrants in accordance with the provisions hereof<br>prior to the Expiry Time, all Warrants then held by such Holder shall expire and be of no further force and effect as at the Expiry Time. |
| --- | --- |
| (5) | If the principal transfer office of the Warrant Agent in the city where the Warrant Agency is situate<br>is for any reason not available to act in connection with the exchange of Warrant Certificates or exercise of Warrants as contemplated<br>by this Agreement, the Corporation and the Warrant Agent shall arrange for another office in such city to act in connection with the exchange<br>of Warrant Certificates and exercise of Warrants and shall give notice of the change of such office to the Holders. |
| --- | --- |
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| (6) | A beneficial owner of Uncertificated Warrants evidenced by a security entitlement in respect of Warrants<br>in the book entry registration system who desires to exercise his or her Warrants must do so by causing a Book Entry Participant to deliver<br>to the Depository on behalf of the entitlement holder, notice of the owner’s<br>intention to exercise Warrants in a manner acceptable to the Depository. Forthwith upon receipt by the Depository of such notice, as well<br>as payment of the Exercise Price, the Depository shall deliver to the Warrant Agent confirmation of its intention to exercise Warrants<br>(“Confirmation”)<br>in a manner acceptable to the Warrant Agent, including by electronic means through the book entry registration system. If there is no<br>effective registration statement covering the exercise of the Warrants with the SEC, such Confirmation from the Depository to the Warrant<br>Agent shall electronically confirm that the beneficial holder of Uncertificated Warrants at the time of exercise of the Uncertificated<br>Warrants: (a) is not in the United States; (b) is<br>not a U.S. Person and is not exercising the Uncertificated Warrants on behalf of a U.S. Person or a person in the United States; (c) will<br>not offer or sell Shares to a U.S. Person or for the account or benefit of a U.S. Person (other than a distributor (as defined in Rule 902<br>of Regulation S under the U.S. Securities Act); (d) agrees not to<br>engage in hedging transactions with regard to such securities unless in compliance with the U.S.<br>Securities Act; and (e) understands that the Corporation will refuse<br>to register any transfer of the Shares if not made in accordance with Regulation S, pursuant to registration under the U.S. Securities<br>Act or pursuant to an exemption from registration. If the Depository (i) is<br>not able to make or deliver the foregoing Confirmation to the Warrant Agent or (ii) the<br>beneficial owner of the Uncertificated Warrants is in the United States or exercising for the account or benefit of a U.S. Person, including<br>without limitation Accredited Investors that acquired Warrants pursuant to the Arrangement, such Uncertificated Warrants shall be removed<br>from the book entry registration system, and an individually registered Warrant Certificate shall be issued to such beneficial holder,<br>and the exercise procedures set forth in Section 3.2(1) shall<br>be followed. |
|---|---|
| (7) | Payment representing the Exercise Price must be provided to the appropriate office of the Book Entry Participant<br>in a manner acceptable to it. A notice in form acceptable to the Book Entry Participant and payment from such beneficial holder should<br>be provided to the Book Entry Participant sufficiently in advance so as to permit the Book Entry Participant to deliver notice and payment<br>to the Depository and for the Depository in turn to deliver notice and payment to the Warrant Agent prior to Expiry Time. The Depository<br>will initiate the exercise by way of the Confirmation and forward the Exercise Price electronically to the Warrant Agent, and the Warrant<br>Agent will execute the exercise by issuing to the Depository through the book entry registration system the Shares to which the exercising<br>Holder is entitled pursuant to the exercise. Any expense associated with the exercise process will be for the account of the entitlement<br>holder exercising the Warrants and/or the Book Entry Participant exercising the Warrants on its behalf. A failure by a Book Entry Participant<br>to exercise or to give effect to the settlement thereof in accordance with the beneficial owner’s instructions will not give rise<br>to any obligations or liability on the part of the Corporation or Warrant Agent to the Book Entry Participant or the beneficial owner. |
| --- | --- |
| (8) | By causing a Book Entry Participant to deliver notice to the Depository, a holder shall be deemed to have<br>irrevocably surrendered his, her or its Warrants so exercised and appointed such Book Entry Participant to act as his, her or its exclusive<br>settlement agent with respect to the exercise and the receipt of Shares in connection with the obligations arising from such exercise. |
| --- | --- |
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Section 3.3****Arrangement.
The original issue date of the Warrants shall be on or after the date of the Closing of the Arrangement.
Section 3.4****Effectof Exercise of Warrants
| (1) | If the Warrants are duly exercised in accordance with Section 3.1<br>and Section 3.2, the Shares subscribed for shall be deemed to have<br>been issued and the Person or Persons to whom such Shares are to be issued shall be deemed to have become the holder or holders of record<br>of such Shares on the Exercise Date unless the transfer registers for the Shares shall be closed on such date, in which case the Shares<br>subscribed for shall be deemed to have been issued and such Person or Persons shall be deemed to have become the holder or holders of<br>record of the same on the date on which such transfer registers are re-opened. |
|---|---|
| (2) | In the case of Warrants which are exercised in accordance with the provisions of Section 3.1<br>and Section 3.2, within five Business Days after the Exercise Date<br>of such Warrants, the Warrant Agent shall cause to be delivered or mailed to the Person in whose name the Shares so subscribed for are<br>to be delivered, as specified in the Exercise Form, at the address specified in such Exercise Form, or, if so specified in such Exercise<br>Form, cause to be held for such Person for pick-up at the Warrant Agency, certificates representing the Shares to be issued pursuant to<br>such Exercise Form, registered in such name. |
| --- | --- |
Section 3.5****PartialExercise of Warrants
| (1) | The holder of any Warrants may exercise his or her right to acquire Shares in part and may thereby acquire<br>a number of Shares less than the aggregate number which he or she is entitled to acquire pursuant to the Warrant Certificate(s) surrendered<br>in connection therewith. In the event of any acquisition of a number of Shares less than the number which the holder is entitled to acquire,<br>he or she shall, upon exercise thereof, be entitled to receive, without charge therefor, a new Warrant Certificate(s) representing<br>the balance of the Shares which he or she was entitled to acquire pursuant to the surrendered Warrant Certificate(s) and<br>which were not then acquired. |
|---|---|
| (2) | Notwithstanding anything herein contained including any adjustment provided for in Article 4,<br>the Corporation shall not be required, upon valid exercise of any Warrants after the Commencement Time and prior to the Expiry Time, to<br>issue fractions of Shares or to distribute certificates or direct registration system advices which evidence the same. A holder or a Holder<br>shall not be entitled to any cash or other consideration in lieu of any fractional interest in a Warrant or claim thereto. Any fractional<br>Shares to which a Holder is entitled shall be rounded down to the nearest whole Share, and no cash or other consideration will be paid<br>in lieu of fractional Shares. |
| --- | --- |
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Section 3.6****Cancellationof Warrants
All Warrant Certificates surrendered to the Warrant Agent pursuant hereto (including those exercised and surrendered under Section 3.2 or Section 3.5) shall be cancelled and, after the expiry of any period of retention prescribed by law, cancelled by the Warrant Agent, and the Warrant Agent shall furnish the Corporation on request with a cancellation certificate identifying the Warrant Certificates so cancelled, the number of Warrants evidenced thereby and the number of Shares which could have been or were acquired pursuant to each cancelled Warrant Certificate.
Section 3.7****WarrantsVoid after the Expiry Time
No Holder shall have any further rights under this Agreement or the Warrant Certificates (other than the right to receive Shares in respect of Warrants duly exercised prior to or at the Expiry Time, as the case may be), after the Expiry Time and the Warrants shall be null and void and of no effect.
Section 3.8****Accountingand Recording
| (1) | The Warrant Agent shall promptly, and in any event within five Business Days following any exercise of<br>Warrants, notify the Corporation with respect to Warrants exercised, and shall promptly forward to the Corporation (or into an account<br>or accounts of the Corporation as designated by the Corporation) all monies received by the Warrant Agent on the subscription of Shares<br>through the exercise of Warrants. All such monies, and any securities or other instruments, from time to time received by the Warrant<br>Agent, shall be received in trust for, and shall be segregated and kept apart by, the Warrant Agent for the Corporation. |
|---|---|
| (2) | The Warrant Agent shall record the particulars of Warrants exercised which shall include the names and<br>addresses of the Persons who become holders of Shares on the Exercise Date. Within three Business Days of each Exercise Date, the Warrant<br>Agent shall provide such particulars in writing to the Corporation. |
| --- | --- |
Section 3.9****SecuritiesRestrictions
Notwithstanding anything herein contained, directions, announcements, notices or other communications shall only be provided, and Shares shall only be issued by the Corporation (upon exercise of the Warrants) in compliance with the Securities Laws of all applicable jurisdictions.
Section 3.10****Restrictionson Exercise under United States Securities Laws
The Warrants may not be exercised unless the securities issuable on the exercise thereof have been registered under the U.S. Securities Act or an exemption is available from the registration requirements of the U.S. Securities Act and applicable state securities laws. Unless the Warrants have been registered under the U.S. Securities Act and under any applicable state securities laws, each holder who is exercising the Warrants and who does not either check Box B on the Exercise Form, certifying that such holder is an Accredited Investor, or check Box A, certifying that such holder is not a U.S. Person, shall furnish an opinion of counsel of recognized standing, in form and substance reasonably satisfactory to the Corporation and to the Warrant Agent, to such effect.
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Article 4****ADJUSTMENTS
Section 4.1****Adjustmentupon Share Reorganization or Capital Reorganization
| (1) | The number of Shares purchasable upon the exercise of the Warrants shall be subject to adjustment from<br>time to time as follows: |
|---|---|
| (a) | If, at any time prior to the Expiry Time, the Corporation shall: |
| --- | --- |
| (i) | subdivide, redivide or change its then outstanding Common Shares into a greater number of shares; or |
| --- | --- |
| (ii) | consolidate, reduce or combine its then outstanding Common Shares into a lesser number of shares; or |
| --- | --- |
| (iii) | fix a record date for the issue of, or issue Common Shares or Convertible Securities to all or substantially<br>all of the holders of the Common Shares as a stock dividend or other distribution (other than at the holder’s option in lieu of<br>a cash dividend), and for greater certainty, not including the distribution of Common Shares upon the exercise of any Warrants or outstanding<br>options; |
| --- | --- |
(any such event being herein called a “Share Reorganization”), then the number of Shares that a Holder is entitled to upon exercise shall be adjusted, effective immediately after the effective date or record date at which holders of Common Shares are determined for the purposes of the Share Reorganization, by multiplying the number of Shares that a Holder was entitled to upon exercise of Warrants immediately prior to such effective date or record date, by a fraction of which:
| (i) | the numerator shall be the number of Common Shares outstanding immediately after giving effect to such<br>Share Reorganization (on a fully diluted basis, assuming the conversion of all of the then issued and outstanding Convertible Securities),<br>including, without limitation, in the case of a distribution of securities exchangeable for or convertible into Common Shares, the number<br>of Common Shares that would have been outstanding if such securities had been exchanged for or converted into Common Shares on such date;<br>and |
|---|---|
| (ii) | the denominator shall be the number of Common Shares outstanding on such effective date or record date<br>before giving effect to such Share Reorganization (on a fully diluted basis, assuming the conversion of all of the then issued and outstanding<br>Convertible Securities). |
| --- | --- |
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| (b) | To the extent that any adjustment in the number of Shares issuable upon exercise of the Warrants occurs<br>pursuant to Section 4.1(1)(a) as<br>a result of the fixing by the Corporation of a record date for the distribution of securities exchangeable for or convertible into Common<br>Shares, the number of Shares to which a Holder is entitled on the exercise of his or her Warrants shall be readjusted immediately after<br>the expiration of any relevant exchange or conversion right to the number of Shares to which such Holder is entitled on the exercise of<br>his or her Warrants which would then be in effect based upon the number of Shares actually issued and remaining issuable after such expiration. |
|---|---|
| (c) | If, at any time prior to the Expiry Time, there occurs: |
| --- | --- |
| (i) | a reclassification or redesignation of the Common Shares or a change, exchange or conversion of the Common<br>Shares into or for other shares or securities or property or any other capital reorganization (other than a Share Reorganization); or |
| --- | --- |
| (ii) | a consolidation, merger, plan<br>of arrangement (for greater certainty, not including the Arrangement), compulsory acquisition under the Business CorporationsAct (British Columbia) or amalgamation of the Corporation with or into any other Person which results in the cancellation, reclassification<br>or redesignation of the Common Shares or a change, exchange or conversion of the Common Shares into or for other shares or securities<br>or property or the transfer of all or substantially all of the assets of the Corporation to another body corporate, trust, partnership<br>or other entity or the Corporation being controlled (within the meaning of the Tax Act*)* by another corporation or entity; |
| --- | --- |
(any such event being herein called a “Capital Reorganization”), then, immediately upon the effective time of such Capital Reorganization and at all times thereafter, a Holder who exercises his or her right to acquire Shares shall be entitled to be issued and receive, and shall accept for the same aggregate consideration, upon such exercise, in lieu of the number of Shares to which he or she was theretofore entitled upon exercise of his or her Warrants, the kind and aggregate number of shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such Capital Reorganization or any other corporation that a Holder would have been entitled to be issued and receive upon such Capital Reorganization if, immediately prior to the effective time thereof, such Holder had been the registered holder of the number of Shares to which he or she was theretofore entitled upon exercise of his or her Warrants.
| (d) | If determined appropriate to give effect to or to evidence the provisions of Section 4.1(1)(c) on<br>the advice of counsel, the Corporation, its successor, or such purchasing body corporate, partnership, trust or other entity, as the case<br>may be, shall, prior to or contemporaneously with any such Capital Reorganization, enter into an agreement which shall provide, to the<br>extent possible, for the application of the provisions set forth in this Agreement with respect to the rights and interests thereafter<br>of the Holders to the end that the provisions set forth in this Agreement shall thereafter correspondingly be made applicable, as nearly<br>as may reasonably be possible, with respect to any shares, other securities or property to which a Holder is entitled on the exercise<br>of its acquisition rights thereafter. Any agreement entered into between the Corporation and the Warrant Agent pursuant to the provisions<br>of this Section 4.1(1)(d) shall be a supplemental agreement entered into pursuant to the provisions of Article 12 hereof.<br>Any agreement entered into between the Corporation, any successor to the Corporation or such purchasing body corporate, partnership, trust<br>or other entity and the Warrant Agent shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments<br>provided in Section 4.1(1)(c) and which shall apply to successive reclassifications, reorganizations, amalgamations, consolidations,<br>mergers, sales or conveyances; |
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| (e) | Except where permitted under applicable laws, the Corporation shall not complete or facilitate a Capital<br>Reorganization if the effect of such transaction is that: |
|---|---|
| (i) | all or substantially all of<br>the assets of the Corporation become the property of, or are under the control of, or the Corporation is controlled (within the meaning<br>of the Tax Act) by another Person (an “Acquiring Person”); and |
| --- | --- |
| (ii) | holders of Common Shares receive any other security in replacement of, or in addition to, or in consideration<br>for their Common Shares; |
| --- | --- |
unless, at or prior to the effective time of such Capital Reorganization, the holders of Common Shares vote in favour of such Capital Reorganization, or the Acquiring Person agrees to be bound by the terms of this Agreement by executing and delivering such supplemental agreement, warrant or other document as may be satisfactory to the Corporation, acting reasonably.
Section 4.2****Adjustmentupon Rights Offering
| (1) | Subject to applicable law and the rules, regulations and policies of any stock exchange having jurisdiction,<br>if and whenever at any time from the date hereof and prior to the Expiry Time, the Corporation fixes a record date for the issuance of<br>rights, options or warrants to all or substantially all the holders of Common Shares pursuant to which those holders are entitled to subscribe<br>for, purchase or otherwise acquire Common Shares or Convertible Securities within a period of not more than 45 days from such record date<br>at a price per share, or at a conversion price per share, of less than 95% of the Current Market Price on such record date (any such issuance<br>being herein called a “Rights Offering” and the Common Shares that may be acquired in exercise of the Rights Offering,<br>or upon conversion of the Convertible Securities offered by the Rights Offering, being herein called the “Offered Shares”),<br>the number of Shares issuable upon exercise of a Warrant shall be adjusted effective immediately after the applicable record date to a<br>number that is the product of (1) the number of Shares issuable upon the exercise of a Warrant in effect on the record date and (2) a<br>fraction: |
|---|---|
| (a) | the numerator of which shall<br>be the sum of (a) the number of Common Shares outstanding on the record date (on a fully diluted basis, assuming the conversion<br>of all of the then issued and outstanding Convertible Securities), plus (b) the number of Offered Shares offered pursuant to the<br>Rights Offering or the maximum number of Offered Shares into which the Convertible Securities so offered pursuant to the Rights Offering<br>may be converted, as the case may be; and |
| --- | --- |
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| (b) | the denominator of which shall be the sum of: |
|---|---|
| (i) | the number of Common Shares<br>outstanding on the record date (on a fully diluted basis, assuming the conversion of all of the then issued and outstanding Convertible<br>Securities); and |
| --- | --- |
| (ii) | the number arrived at when (I) either the product of (a) the number of Offered Shares so offered<br>and (b) the price at which those shares are offered, or the product of (c) the conversion price thereof and (d) the maximum<br>number of Offered Shares for or into which the Convertible Securities so offered pursuant to the Rights Offering may be converted, as<br>the case may be, is divided by (II) the Current Market Price of the Common Shares on the record date. |
| --- | --- |
| (c) | Any Offered Shares owned by or held for the account of the Corporation or a Subsidiary shall be deemed<br>not to be outstanding for the purpose of any such computation; if all the rights, options or warrants are not so issued or if all rights,<br>options or warrants are not exercised prior to the expiration thereof, the number of Shares issuable upon exercise of a Warrant shall<br>be readjusted to that number in effect immediately prior to the record date, and such number shall be further adjusted based upon the<br>number of Offered Shares (or Convertible Securities that are convertible into Offered Shares) actually delivered upon the exercise of<br>the rights, options or warrants, as the case may be, but subject to any other adjustment required hereunder by reason of any event arising<br>after that record date. |
| --- | --- |
| (2) | If and whenever at any time from the date hereof and prior to the Expiry Time, the Corporation issues<br>or distributes to all or substantially all the holders of Common Shares, (i) shares of any class other than Common Shares, or (ii) rights,<br>options or warrants for or into Equity Shares, other than rights, options or warrants exercisable within 45 days from the date of issue<br>thereof at a price, or at a conversion price, of at least 95% of the Current Market Price at the record date for such distribution, or<br>evidences of indebtedness, or (iii) any other cash, securities or other property or assets and that issuance or distribution does<br>not constitute a dividend paid in the ordinary course or an Extraordinary Dividend or is not adjusted pursuant to this Section 4.2(2) or<br>a Rights Offering (any of those non-excluded events being herein called a “Special Distribution”), the number of Shares<br>issuable upon exercise of a Warrant shall be adjusted effective immediately after the record date at which the Holders of Common Shares<br>are determined for purposes of the Special Distribution to a number that is the product of (1) the number of Shares issuable upon<br>exercise of a Warrant in effect on the record date and (2) a fraction: |
| --- | --- |
| (a) | the numerator of which shall<br>be the product of (I) the sum of the number of Common Shares outstanding on the record date (on a fully diluted basis, assuming<br>the conversion of all of the then issued and outstanding Convertible Securities) plus the number of Shares which the Holders would be<br>entitled to receive upon exercise of all their outstanding Warrants if they were exercised on the record date and (II) the Current<br>Market Price thereof on that date; and |
| --- | --- |
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| (b) | the denominator of which shall be: |
|---|---|
| (i) | the product of (I) the<br>sum of the number of Common Shares outstanding on the record date (on a fully diluted basis, assuming the conversion of all of<br>the then issued and outstanding Convertible Securities) plus the number of Shares which the Holders would be entitled to receive upon<br>exercise of all their outstanding Warrants if they were exercised on the record date and (II) the Current Market Price thereof on<br>the earlier of such record date and the date on which the Corporation announces its intention to make such Special Distribution; |
| --- | --- |
less
| (ii) | the aggregate fair market value, as determined by the Board of Directors, whose determination shall be<br>conclusive, absent manifest error, of the shares, rights, options, warrants, evidences of indebtedness or other assets issued or distributed<br>in the Special Distribution. |
|---|---|
| (c) | Any Common Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding<br>for the purpose of any such computation; to the extent that the distribution of shares, rights, options, warrants, evidences of indebtedness<br>or assets is not so made or to the extent that any rights, options or warrants so distributed are not exercised, the number of Shares<br>issuable upon exercise of a Warrant shall be readjusted to the number that would then be in effect based upon shares, rights, options,<br>warrants, evidences of indebtedness or assets actually distributed or based upon the number of Common Shares or Convertible Securities<br>actually delivered upon the exercise of the rights, options or warrants, as the case may be, but subject to any other adjustment required<br>hereunder by reason of any event arising after the record date. |
| --- | --- |
Section 4.3****Adjustmentto Exercise Price and Extraordinary Dividend Threshold
| (1) | If at any time after the date hereof and prior to the Expiry Time any adjustment in the number of Shares<br>purchasable upon the exercise of any Warrant shall occur as a result of the operation of: |
|---|---|
| (a) | Section 4.1(1); |
| --- | --- |
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| (b) | Section 4.2(1); or |
|---|---|
| (c) | Section 4.2(2) if<br>the event referred to therein constitutes the issue or distribution to all or substantially all the holders of Common Shares of (A) Equity<br>Shares, or (B) rights, options or warrants exchangeable for or convertible<br>into Equity Shares at an exchange or conversion price per Equity Share less than the Current Market Price on the record date for such<br>Special Distribution; |
| --- | --- |
then (i) the Exercise Price payable upon the subsequent exercise of any Warrants shall be simultaneously adjusted by multiplying the Exercise Price in effect immediately prior to such adjustment by a fraction which shall be the reciprocal of the fraction employed in the adjustment of the number of Shares issuable upon exercise of the Warrant; and (ii) the Extraordinary Dividend Threshold shall be simultaneously adjusted by multiplying the Extraordinary Dividend Threshold in effect immediately prior to such adjustment by a fraction which shall be the reciprocal fraction employed in the adjustment of the number of Shares issuable upon exercise of the Warrant, in each case subject to readjustment upon the operation of, and in accordance with, the provisions of Section 4.1(1), Section 4.2(1) and/or Section 4.2(2), as applicable.
| (2) | If at any time after the date hereof and prior to the Expiry Time, any Extraordinary Dividend is paid,<br>the then Exercise Price shall on the payment date be reduced by the Excess Amount. |
|---|
Section 4.4****Entitlementto Shares and Other Securities on Exercise of Warrants
All Shares or shares of any class or other securities which a Holder is at the time in question entitled to receive on the exercise of his or her Warrants, whether or not as a result of adjustments made pursuant to this Article 4, shall, for the purposes of the interpretation of this Agreement, be deemed to be shares or other securities which such Holder is entitled to acquire pursuant to such Warrants.
Section 4.5****NoAdjustment for Stock Options, Issuances Below Exercise Prices, etc.
| (1) | Notwithstanding anything in this Article 4,<br>no adjustment shall be made in the acquisition rights attached to the Warrants if the issue of Common Shares, rights, options, warrants<br>or securities exchangeable or convertible into Common Shares, is being made pursuant to this Agreement or pursuant to any stock option<br>or stock purchase plan in force from time to time for directors, officers or employees of the Corporation, or pursuant to the Arrangement,<br>or being made to satisfy existing instruments issued and outstanding as of the date of this Agreement. |
|---|---|
| (2) | Notwithstanding anything in this Article 4,<br>no adjustment shall be made in the acquisition rights attached to the Warrants if the issue of Common Shares, rights, options, warrants<br>or securities exchangeable or convertible into Common Shares, is made at a price below their respective exercise prices, including the<br>Exercise Price. |
| --- | --- |
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Section 4.6****Determinationby Corporation’s Auditors
In the event of any question arising with respect to the adjustments provided for in this Article 4, including the failure to adjust, such question shall be conclusively determined by the Corporation’s Auditors, or if they are unwilling or unable to act, by such other firm of independent accountants accredited by the Canadian Public Accountability Board as may be selected by the Directors, and they shall have access to all necessary records of the Corporation, and such determination shall be binding upon the Corporation, the Warrant Agent, all holders and all other Persons interested therein.
Section 4.7****ProceedingsPrior to Any Action Requiring Adjustment
As a condition precedent to the taking of any action which would require an adjustment in any of the acquisition rights pursuant to any of the Warrants, including the number of Shares which are to be received upon the exercise thereof, the Corporation shall take any corporate action which may, in the opinion of its counsel, be necessary in order that the Corporation has sufficient authorized capital and that the Corporation may validly and legally issue as fully-paid and non-assessable all the Shares (or other securities) which the holders of such Warrants are entitled to receive on the full exercise thereof in accordance with the provisions hereof.
Section 4.8****ActionRequiring Adjustment
In case the Corporation, after the date hereof, shall take any action affecting the Common Shares, other than the actions described in this Article 4 or in respect of the Arrangement, which, in the opinion of the Directors would materially affect the rights of the holders and/or the acquisition rights of the holders, then that number of Shares which are to be received upon the exercise of the Warrants shall be adjusted in such manner, if any, and at such time, by action of the Directors, in their discretion as they may reasonably determine to be equitable to the holders in such circumstances, subject to the prior consent of the Exchange or any other exchange on which the Corporation’s securities are then listed.
Section 4.9****Certificateof Adjustment
The Corporation shall from time to time immediately after the occurrence of any event which requires an adjustment or readjustment as provided in Article 4, deliver a certificate of the Corporation to the Warrant Agent specifying the nature of the event requiring the same and the amount of the adjustment necessitated thereby and setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based, which certificate shall be supported by a certificate of the Corporation’s Auditors verifying such calculation. The Warrant Agent shall rely, and shall be protected in so doing, upon the certificate of the Corporation or of the Corporation’s Auditor and any other document filed by the Corporation pursuant to this Article 4 for all purposes.
Section 4.10****Noticeof Special Matters
The Corporation covenants with the Warrant Agent that, so long as any Warrant remains outstanding, it will announce to the Warrant Agent and to the Holders, by way of notice, its intention to fix a record date that is prior to the Expiry Date for any matter for which an adjustment may be required pursuant to Article 4. Such notice shall specify the particulars of such event and the record date for such event, provided that the Corporation shall only be required to specify in the notice such particulars of the event as shall have been fixed and determined on the date on which the notice is provided. The notice shall be provided in each case not less than 14 days prior to such applicable record date. If the notice has been provided and the adjustment is not then determinable, the Corporation shall promptly, after the adjustment is determinable, file with the Warrant Agent a computation of the adjustment and provide a notice confirming such adjustment computation.
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Section 4.11****NoAction after Notice
The Corporation covenants with the Warrant Agent that it will not close its transfer books or take any other corporate action which might deprive the Holder of a Warrant of the opportunity to exercise its right of acquisition pursuant thereto during the period of 14 days after the giving of the certificate or notices set forth in Section 4.9 and Section 4.10, respectively.
Section 4.12****Protection of Warrant Agent
| (1) | The Warrant Agent shall not: |
|---|---|
| (a) | at any time be under any duty or responsibility to any Holder to determine whether any facts exist which<br>may require any adjustment contemplated by Article 4, or with respect<br>to the nature or extent of any such adjustment when made, or with respect to the method employed in making the same; |
| --- | --- |
| (b) | be accountable with respect to the validity or value (or the kind or amount) of any Shares or any shares<br>or other securities or property which may at any time be issued or delivered upon the exercise of the rights attaching to any Warrant; |
| --- | --- |
| (c) | be responsible for any failure of the Corporation to issue, transfer or deliver Shares or certificates<br>for the same upon the surrender of any Warrants for the purpose of the exercise of such rights or to comply with any of the covenants<br>contained in this Article 4; |
| --- | --- |
| (d) | incur any liability or responsibility whatsoever or be in any way responsible for the consequences of<br>any breach on the part of the Corporation of any of the representations, warranties or covenants herein contained or of any acts of the<br>directors, officers, employees, agents or servants of the Corporation; and |
| --- | --- |
| (2) | The Warrant Agent shall be entitled to act and rely upon the certificates or adjustment calculations of<br>the Corporation and the auditor of the Corporation and any other documents filed by the Corporation pursuant to Section 4.9,<br>without verification or liability. |
| --- | --- |
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Section 4.13****AdjustmentsCumulative
The adjustments provided in this Article 4 shall be cumulative and such adjustments shall be made successively whenever an event referred to herein shall occur.
Section 4.14****Participationby Holder.
No adjustments shall be made pursuant to this Article 4 if the Holders are entitled to participate in any event described in this Article 4 on the same terms, mutatis mutandis, as if the Holders had exercised their Warrants prior to, or on the effective date or record date of, such event.
Article 5****PURCHASES BY THE CORPORATION
Section 5.1****OptionalPurchase by the Corporation
Subject to compliance with Securities Laws and approval of applicable regulatory authorities, the Corporation may from time to time purchase on any stock exchange, in the open market, by private contract or otherwise, any of the Warrants. Any such purchase shall be made at the lowest price or prices at which such Warrants are then obtainable (and agreed to by the sellers of such Warrants), plus reasonable costs of purchase, and may be made in such manner, from such Persons, and on such other terms as the Corporation and the sellers of such Warrants may determine. In the case of Certificated Warrants, the Warrant Certificates representing the Warrants purchased pursuant to this Section 5.1 shall forthwith be delivered to and cancelled by the Warrant Agent upon the written direction of the Corporation. In the case of Uncertificated Warrants, the Warrants purchased pursuant to this Section 5.1 shall be reflected accordingly on the register of Warrants and in accordance with procedures prescribed by the Depository under the book entry registration system. No Warrants shall be issued in replacement thereof.
Article 6****COVENANTS OF THE CORPORATION
Section 6.1****Issuanceof Shares
| (1) | The Warrants, when issued as herein provided, and in the case of a Warrant Certificate, when countersigned<br>as herein provided, shall be valid and enforceable against the Corporation and, subject to the provisions of this Agreement, the Corporation<br>shall cause the Shares to be acquired pursuant to the valid exercise of Warrants under this Agreement and the certificates representing<br>such Shares to be duly issued and delivered in accordance with the Warrant Certificates and the terms hereof. At all times prior to the<br>Expiry Date, while any of the Warrants are outstanding, the Corporation shall reserve, and there shall be conditionally allotted but unissued<br>out of its authorized capital, that number of Shares sufficient to enable the Corporation to meet its obligations hereunder. All Shares<br>issued pursuant to the exercise of the Warrants shall be issued as fully paid and non-assessable. The Corporation shall make all requisite<br>filings, and pay all applicable fees, under applicable Securities Laws to report the exercise of the Warrants. |
|---|
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| (2) | As long as any Warrants remain outstanding, the Corporation covenants to the Warrant Agent for the benefit<br>of the Holders as follows: |
|---|---|
| (a) | it will maintain its corporate existence and carry on and conduct its business in a prudent manner in<br>accordance with industry standards and good business practice; |
| --- | --- |
| (b) | it will use commercially reasonable efforts to maintain its status as a reporting issuer or equivalent<br>under the applicable securities laws of at least one of the provinces or territories of Canada (but this shall in no way prevent any tender<br>offer, merger or similar transaction); |
| --- | --- |
| (c) | it will use commercially reasonable efforts to maintain the listing of its outstanding Common Shares on<br>the Exchange and to seek to ensure the Shares issuable upon the exercise of the Warrants will be listed and posted for trading on such<br>exchange simultaneously with or as soon as practicable following their issue (but this shall in no way prevent any tender offer, merger<br>or similar transaction or listing or re-listing on another securities marketplace); |
| --- | --- |
| (d) | it will do, execute, acknowledge and deliver or cause to be done, executed acknowledged and delivered,<br>all other acts, deeds and assurances as the Warrant Agent may reasonably require for better accomplishing and affecting the provisions<br>of this Agreement; |
| --- | --- |
| (e) | it will reserve and there shall be conditionally allotted but unissued out of its authorized capital,<br>that number of Shares sufficient to enable the Corporation to meet its obligations hereunder; |
| --- | --- |
| (f) | all Shares which are issued upon the exercise of the right to subscribe for and purchase provided for<br>herein, upon payment of the Exercise Price, shall be fully paid and non-assessable; |
| --- | --- |
| (g) | it will duly and punctually perform and carry out all of the acts and things to be done by it as provided<br>in this Agreement; and |
| --- | --- |
| (h) | it will promptly notify the Warrant Agent in writing of any default under the terms of this Agreement<br>which remains unrectified for more than ten days following its occurrence. |
| --- | --- |
Section 6.2****ToPay Warrant Agent Remuneration and Expenses
The Corporation covenants that it shall pay to the Warrant Agent from time to time reasonable remuneration for its services hereunder and shall pay or reimburse the Warrant Agent upon its request for all reasonable expenses, disbursements and advances incurred or made by the Warrant Agent in the administration or execution of its duties hereunder (including the reasonable compensation and the disbursements of its counsel and all other advisers and assistants not regularly in its employ) both before any default hereunder and thereafter until all duties of the Warrant Agent hereunder shall be finally and fully performed, except any such expenses, disbursements or advances as may arise out of or result from the Warrant Agent’s gross negligence, wilful misconduct or bad faith. The Warrant Agent shall not have any recourse against the securities or any other property held by it pursuant to this Agreement for payment of its fees. Any amount owing under this Section 6.2 and remaining unpaid after 30 days from the invoice date will bear interest at the then current rate charged by the Warrant Agent against unpaid invoices and shall be payable upon demand. This Section 6.2 shall survive the resignation of the Warrant Agent or the termination of this Agreement.
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Section 6.3****ToPerform Covenants
The Corporation shall duly and punctually perform and carry out all of the acts or things to be done by it as provided in this Agreement and that it shall do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, all other acts, deeds and assurances in law as the Warrant Agent may reasonably require for the better accomplishing and effecting the intentions and provisions of this Agreement.
Section 6.4****WarrantAgent May Perform Covenants
If the Corporation shall fail to perform any of its covenants contained in this Agreement, the Warrant Agent may notify the Holders of such failure on the part of the Corporation or may itself perform any of the covenants capable of being performed by it but shall be under no obligation to perform said covenants or to notify the Holders of such performance by it. All sums expended or advanced by the Warrant Agent in so doing shall be repayable as provided in Section 6.2. No such performance, expenditure or advance by the Warrant Agent shall relieve the Corporation of any default hereunder or of its continuing obligations under the covenants herein contained.
Article 7****ENFORCEMENT
Section 7.1****Suitsby Holders of Warrants
Subject to Section 9.11, all or any of the rights conferred upon any Holder by any of the terms of the Warrant Certificates, Uncertificated Warrants or this Agreement may be enforced by the Holder by appropriate legal proceedings but without prejudice to the right which is hereby conferred upon the Warrant Agent to proceed in its own name to enforce each and all of the provisions herein contained for the benefit of the Holders.
Section 7.2****Suitsby the Corporation
The Corporation shall have the right to enforce full payment of the Exercise Price of all Shares issued to a Holder hereunder upon exercise of any Warrant, and shall be entitled to demand such payment from the Holder or alternatively to instruct the Warrant Agent to cancel the certificates and amend the securities register accordingly.
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Section 7.3****Immunityof Shareholders, etc.
The Warrant Agent and the holders hereby waive and release any right, cause of action or remedy now or hereafter existing in any jurisdiction against any incorporator or any past, present or future shareholder, director, officer, employee or agent of the Corporation or any Successor Corporation on any covenant, agreement, representation or warranty by the Corporation herein.
Section 7.4****Limitationof Liability
The obligations hereunder are not personally binding upon, nor shall resort hereunder be had to, the private property of any of the past, present or future director, officer or shareholder of the Corporation or any Successor Corporation or any of the past, present or future employees or agents of the Corporation or any Successor Corporation, but only the property of the Corporation or any Successor Corporation shall be bound in respect hereof.
Section 7.5****Waiverof Default
| (1) | Upon the happening of any default hereunder: |
|---|---|
| (a) | the Holders of not less than 66 2/3% of the aggregate number of the Warrants then outstanding shall have<br>the power (in addition to the powers exercisable by Extraordinary Resolution) by requisition in writing to instruct the Warrant Agent<br>to waive any default hereunder and the Warrant Agent shall thereupon waive the default upon such terms and conditions as shall be prescribed<br>in such requisition; or |
| --- | --- |
| (b) | the Warrant Agent shall have the power to waive any default hereunder upon such terms and conditions as<br>the Warrant Agent may deem advisable, if, in the Warrant Agent’s opinion based on the advice of counsel, the same shall have been<br>cured or adequate provision made therefor; |
| --- | --- |
provided that no delay or omission of the Warrant Agent or of the Holders, as applicable, to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default or acquiescence therein, and provided further that no act or omission either of the Warrant Agent or the Holders in the premises shall extend to or be taken in any manner whatsoever to affect any subsequent default hereunder or the rights resulting therefrom.
Article 8****SUCCESSOR CORPORATIONS
Section 8.1****CertainRequirements
A successor corporation (as the result of an amalgamation or merger with the Corporation) (a “Successor Corporation”), shall, to the extent necessary and desirable, execute, before or contemporaneously with the consummation of any such transaction, an agreement supplemental hereto together with such other instruments as are satisfactory to the Warrant Agent and are necessary or advisable to evidence the assumption by the Successor Corporation of the due and punctual observance and performance of all the covenants and obligations of the Corporation under this Agreement.
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Section 8.2****VestingOf Powers in Successor
Whenever the conditions of Section 8.1 have been duly observed and performed, the Successor Corporation shall possess and from time to time may exercise each and every right and power of the Corporation under this Agreement in the name of the Corporation or otherwise and any act or proceeding by any provision of this Agreement required to be done or performed by any Directors or officers of the Corporation may be done and performed with like force and effect by the directors or officers of such Successor Corporation.
Article 9****MEETINGS OF HOLDERS OF WARRANTS
Section 9.1****Rightto Convene Meetings
The Warrant Agent shall on receipt of a written request of the Corporation or a Holders’ Request and upon being indemnified and funded to its reasonable satisfaction by the Corporation or by the Holders signing such request against the costs which may be incurred in connection with the calling and holding of such meeting, convene a meeting of the Holders. In the event of the Warrant Agent failing, within seven days after receipt of any such request and such indemnity and funding, to give notice convening a meeting, the Corporation or such Holders, as the case may be, may convene such meeting. Every such meeting shall be held in the City of Toronto, Ontario, or at such other place as may be approved or determined by the Warrant Agent. Any meeting held pursuant to this Article 9 may be done through a virtual or electronic meeting platform, subject to the Warrant Agent's capabilities at the time.
Section 9.2****Noticeof Meetings
At least 21 calendar days’ prior written notice of any meeting of the Holders shall be given to the Holders in the manner provided in Article 10, and a copy thereof must be sent by mail to the Warrant Agent (unless the meeting has been called by the Warrant Agent), and to the Corporation (unless the meeting has been called by the Corporation). Such notice must state the time when and the place where the meeting is to be held and state briefly the general nature of the business to be transacted thereat with such information as to enable the Holders to make a reasoned decision on the matter, but it shall not be necessary for any such notice to set out the terms of any resolution to be proposed or any of the provisions of this Article 9.
Section 9.3****Chairman
An individual (who need not be a Holder) designated in writing by the Corporation shall be the chairman of the meeting and if no individual is so designated, or if the individual so designated is not present within 15 minutes from the time fixed for the holding of the meeting, the Holders present in Person or by proxy shall choose an individual present to be chairman. The chairman of the meeting need not be a holder.
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Section 9.4****Quorum
Subject to Section 9.12, at any meeting of the Holders a quorum shall be two persons (including beneficial holders of the Warrants) present in person, each being a Holder entitled to vote thereat or a duly appointed proxyholder or representative for an absent Holder so entitled, and together holding or representing by proxy more than 20% of the aggregate number of the Warrants then outstanding. If a quorum is present at the opening of any meeting of Holders, the Holders present or represented by proxy may proceed with the business of the meeting notwithstanding that a quorum is not present throughout the meeting. If a quorum is not present within 30 minutes from the time fixed for holding any meeting, the meeting, if summoned by the Holders or pursuant to a Holders’ Request, shall be dissolved; but in any other case, the meeting shall be adjourned to the same day in the next week (unless such day is not a Business Day, in which case it shall be adjourned to the next following Business Day) at the same time and place and no notice shall be required to be given in respect of such adjourned meeting. At the adjourned meeting, the Holders present in Person or by proxy shall form a quorum and may transact the business for which the meeting was originally convened notwithstanding that they may not hold or represent by proxy more than 20% of the aggregate number of the Warrants then outstanding.
Section 9.5****Powerto Adjourn
The chairman of any meeting at which a quorum is present may, with the consent of the meeting, adjourn any such meeting and no notice of such adjournment need be given, except such notice, if any, as the meeting may prescribe.
Section 9.6****ShowOf Hands
Every question submitted to a meeting shall be decided in the first place by a majority of the votes given on a show of hands except that votes on Extraordinary Resolutions shall be given in the manner hereinafter provided. At any such meeting, unless a poll is duly demanded as herein provided, a declaration by the chairman that a resolution has been carried or carried unanimously or by a particular majority or lost or not carried by a particular majority shall be conclusive evidence of the fact.
Section 9.7****Poll
On every Extraordinary Resolution, and on any other question submitted to a meeting when demanded by the chairman or by one or more Holders and/or proxies for Holders, a poll must be taken in such manner and either at once or after an adjournment, as the chairman directs. Questions other than Extraordinary Resolutions shall, if a poll is taken, be decided by a majority of the votes cast on the poll.
Section 9.8****Voting
On a show of hands, every Person who is present and entitled to vote, whether as a Holder or as proxy for one or more Holders or both, shall have one vote. On a poll, each Holder present in Person or represented by a proxy duly appointed by an instrument in writing shall be entitled to one vote in respect of each Share to which that Person is entitled to acquire pursuant to the Warrant or Warrants held or represented by that Person. A proxy need not be a Holder. In the case of joint Holders of a Warrant, any one of them present in Person or by proxy at the meeting may vote in the absence of the other or others; but in case that more than one of them is present in Person or by proxy, they must vote together in respect of the Warrants of which they are joint Holders. The chairman of any meeting shall be entitled, both on a show of hands and on a poll, to vote in respect of any Warrants held or represented by him or her, but shall not have a second or deciding vote.
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Section 9.9****Regulations
| (1) | The Corporation may from time to time, make or vary or restate such regulations as it shall from time<br>to time think fit regarding the following: |
|---|---|
| (a) | providing for and governing the voting by proxy by Holders and the form of instrument appointing proxies<br>and the manner in which the same shall be executed, and for the production of the authority of any Person signing on behalf of the giver<br>of such proxy; |
| --- | --- |
| (b) | for the deposit of instruments appointing proxies at such place as the Corporation or the Holders convening<br>the meeting, as the case may be, may, in the notice convening the meeting, direct and the time, if any, before the holding of the meeting<br>or any adjournment thereof by which the same must be deposited; |
| --- | --- |
| (c) | for the deposit of instruments appointing proxies at some approved place or places other than the place<br>at which the meeting is to be held and enabling particulars of such instruments appointing proxies to be mailed, telecopied or sent by<br>facsimile before the meeting to the Corporation or to the Warrant Agent at the place where the same is to be held and for the voting of<br>proxies so deposited as though the instruments themselves were produced at the meeting; and |
| --- | --- |
| (d) | generally, the calling of meetings of Holders and the conduct of business thereat. |
| --- | --- |
| (2) | Any regulations so made shall be binding and effective and the votes given in accordance therewith shall<br>be valid and shall be counted. Except as such regulations may provide, the only Persons who shall be recognized at any meeting as Holders,<br>or as entitled to vote or be present at the meeting in respect thereof (subject to Section 9.10),<br>shall be the Holders and Persons whom the Holders have by instrument in writing duly appointed as their proxies. |
| --- | --- |
Section 9.10****Corporationand Warrant Agent May Be Represented
The Corporation and the Warrant Agent, by their respective officers, directors, agents or employees, and the legal advisers of the Corporation and the Warrant Agent, may attend any meeting of the Holders, and shall be recognized and given reasonable opportunity to speak to any resolutions proposed for consideration by the meeting, but shall not be entitled to vote thereat, whether in respect of any Warrants held by them or otherwise.
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Section 9.11****PowersExercisable By Extraordinary Resolution
| (1) | Subject to applicable law and the rules and<br>regulations of any stock exchange having jurisdiction, in addition to the powers conferred upon them by any other provisions of this Agreement<br>or by law, the Holders at a meeting shall have the power, exercisable from time to time by Extraordinary Resolution: |
|---|---|
| (a) | with the consent of the Corporation, such consent not to be unreasonably withheld, to sanction any modification,<br>abrogation, alteration, compromise or arrangement of the rights of the Holders and/or the Warrant Agent in its capacity as warrant agent<br>hereunder (with the prior written approval of the Warrant Agent) against the Corporation, or against its property, whether such rights<br>arise under this Agreement or the Warrant Certificates or otherwise; |
| --- | --- |
| (b) | to assent to any modification of or change in or addition to or omission from the provisions contained<br>in this Agreement or in the Warrant Certificates which must be agreed to by the Corporation and the Warrant Agent and to authorize the<br>Warrant Agent to concur in and execute any Agreement supplemental hereto embodying any such modification, change, addition or omission; |
| --- | --- |
| (c) | to direct or authorize the Warrant Agent to exercise any power, right, remedy or authority given to it<br>by this Agreement in any manner specified in any such Extraordinary Resolution or to refrain from exercising any such power, right, remedy<br>or authority; |
| --- | --- |
| (d) | to waive and direct the Warrant Agent to waive any default of the Corporation hereunder either unconditionally<br>or upon any condition specified in such Extraordinary Resolution; |
| --- | --- |
| (e) | to restrain any Holder from taking or instituting any suit, action or proceeding for the purpose of enforcing<br>any of the covenants of the Corporation contained in this Agreement or the Warrant Certificates, or for the execution of any power hereunder; |
| --- | --- |
| (f) | to direct any Holder who, as such, has brought any action, suit or proceeding to stay or discontinue or<br>otherwise deal with the same upon payment of the costs, charges and expenses reasonably and properly incurred by such Holder in connection<br>therewith; |
| --- | --- |
| (g) | to amend, alter or repeal any Extraordinary Resolution previously passed or sanctioned by the Holders;<br>and |
| --- | --- |
| (h) | with the consent of the Corporation, such consent not to be unreasonably withheld, to remove the Warrant<br>Agent or its successor in office and to appoint a new warrant agent or warrant agents to take the place of the Warrant Agent so removed. |
| --- | --- |
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Section 9.12****Meaningof “Extraordinary Resolution”
| (1) | The expression “ExtraordinaryResolution” when used in this Agreement means, subject as provided<br>in this Article 9, a resolution proposed to be passed at a meeting<br>of Holders duly convened and held in accordance with the provisions of this Article 9<br>at which there are Holders present in Person or by proxy of not less than 20% of the aggregate number of the Warrants then outstanding<br>and passed by the affirmative votes of the Holders of not less than 66 2/3% of the aggregate number of the Warrants then outstanding represented<br>at the meeting and voted on a poll upon such resolution. |
|---|---|
| (2) | If, at any such meeting, the Holders of not less than 20% of the Warrants then outstanding, are not present<br>in Person or by proxy within 30 minutes after the time appointed for the meeting, then the meeting, if convened by or on the requisition<br>of the Holders, shall be dissolved; but in any other case it shall stand adjourned to such date, being not less than 14 nor more than<br>60 days later, and to such place and time as may be appointed by the chairman. Not less than seven days’ prior notice shall be given<br>of the time and place of such adjourned meeting in the manner provided in Article 10.<br>Such notice must state that at the adjourned meeting, the Holders present in Person or by proxy shall form a quorum, but that it shall<br>not be necessary to set forth the purposes for which the meeting was originally called or any other particulars. At the adjourned meeting,<br>the Holders present in Person or by proxy shall form a quorum and may transact the business for which the meeting was originally convened<br>and a resolution proposed at such adjourned meeting and passed by the requisite vote as provided in Section 9.12(1) shall<br>be an Extraordinary Resolution within the meaning of this Agreement, notwithstanding that Holders of not less than 20% of the Warrants<br>then outstanding are not present in Person or by proxy at such adjourned meeting. |
| --- | --- |
| (3) | Votes on an Extraordinary Resolution shall always be given on a poll and no demand for a poll on an Extraordinary<br>Resolution shall be necessary. |
| --- | --- |
Section 9.13****PowersCumulative
It is hereby declared and agreed that any one or more of the powers and/or any combination of the powers in this Agreement stated to be exercisable by the Holders by Extraordinary Resolution or otherwise may be exercised from time to time and the exercise of any one or more of such powers or any combination of powers from time to time shall not be deemed to exhaust the rights of the Holders to exercise the same or any other such power or combination of powers thereafter from time to time.
Section 9.14****Minutes
Minutes of all resolutions and proceedings at every meeting of Holders shall be made and duly entered in books to be from time to time provided for that purpose by the Warrant Agent at the expense of the Corporation, and any such minutes as aforesaid, if signed by the chairman or secretary of the meeting at which such resolutions were passed or proceedings had, or by the chairman or secretary of the next succeeding meeting (if any) of the Holders, shall be prima facie evidence of the matters therein stated and, until the contrary is proved, every such meeting in respect of the proceedings of which minutes shall have been made shall be deemed to have been duly held and convened, and all resolutions passed thereat or proceedings taken thereat, to have been duly passed and taken.
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Section 9.15****Instrumentsin Writing
All actions which may be taken and all powers which may be exercised by the Holders at a meeting held as hereinbefore provided in this Article 9 provided may also be taken and exercised by Holders of not less than 66 2/3% of the Warrants then outstanding by an instrument in writing signed in one or more counterparts and the expression “Extraordinary Resolution” when used in this Agreement shall include an instrument so signed.
Section 9.16****BindingEffect of Resolutions
Every resolution and every Extraordinary Resolution passed in accordance with the provisions of this Article 9 at a meeting of Holders shall be binding upon all holders, whether present at or absent from such meeting, and every instrument in writing signed by the Holders in accordance with Section 9.15 shall be binding upon all the holders of Warrants, whether signatories thereto or not, and each and every holder shall be bound to give effect accordingly to every such resolution, Extraordinary Resolution and instrument in writing. In the case of an instrument in writing, the Warrant Agent shall give notice of the effect of the instrument in writing to all Holders and the Corporation as soon as reasonably practicable.
Section 9.17****Holdingsby Corporation and its Subsidiaries Disregarded
In determining whether a Holder holding Warrant Certificates evidencing the entitlement to acquire the required number of Shares are present at a meeting of Holders for the purpose of determining a quorum or have concurred in any consent, waiver, Extraordinary Resolution, Holders’ Request or other action under this Agreement, Warrants owned legally or beneficially by the Corporation or any Subsidiary of the Corporation and not cancelled shall be disregarded.
Article 10****NOTICES
Section 10.1****Noticeto the Corporation and the Warrant Agent
| (1) | Unless herein otherwise expressly provided, any notice to be given hereunder to the Corporation or the<br>Warrant Agent shall be deemed to be validly given if delivered or if sent by letter, postage prepaid, or by prepaid mail or recognized<br>courier: |
|---|
If to the Corporation, to:
The Cannabist Company Holdings Inc.
321 Billerica Road, Suite 204
Chelmsford, MA 01824
| Attention: | David Hart |
|---|---|
| Email: | david.hart@cannabistcompany.com |
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If to the Warrant Agent, to:
Odyssey Trust Company
1230 – 300 5th Ave SW
Calgary, AB T2P 3C4
| Attention: | Corporate Trust |
|---|---|
| Email: | corptrust@odysseytrust.com |
and any such notice delivered in accordance with the foregoing shall be deemed to have been received on the date of delivery or if sent by prepaid mail or recognized courier, on the fifth Business Day following the date of the postmark on such notice or of sending in the case of a courier.
| (2) | The Corporation or the Warrant Agent, as the case may be, may from time to time, notify the others in<br>the manner provided in Section 10.1(1) of<br>a change of address which, from the effective date of such notice and until changed by like notice, shall be the address of the Corporation<br>or the Warrant Agent, as the case may be, for all purposes of this Agreement. |
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Section 10.2****Noticeto Holders of Warrants
Except as herein otherwise expressly provided and subject to Section 10.3, any notice required or permitted to be given to Holders under the provisions of this Agreement shall be deemed to be validly given if personally delivered, if sent by ordinary post to the Holders at their addresses appearing in one of the registers hereinbefore mentioned, or if issued by a press release, at the Corporation’s discretion; provided that a notice given pursuant to Section 4.10 may not be provided by issuing a press release. Any notice so sent shall be deemed to have been received on the next Business Day after the date of delivery to such address or, if mailed, on the fifth Business Day following the date on which it was mailed, or if disseminated by way of press release, on the day it is so issued. In the event that Warrants are held in the name of the Depository, a copy of such notice shall also be sent by electronic communication to the Depository and shall be deemed received and given on the day it is so sent. Accidental error or omission in giving notice or accidental failure to give notice to Holders shall not invalidate any action or proceeding founded thereon. In determining under any provision hereof the date when notice of any meeting or other event must be given, the date of giving notice shall be included and the date of the meeting or other event shall be excluded.
Section 10.3****MailService Information
| (1) | If, by reason of any interruption of mail service, actual or threatened, any notice to be given to the<br>Holders, the Warrant Agent or the Corporation would be unlikely to reach its destination in the ordinary course of mail, such notice shall<br>be valid and effective only if the notice is: |
|---|---|
| (a) | in the case of the Warrant Agent or the Corporation, delivered to an officer of the party to which it<br>is addressed or if sent to such party, at the appropriate address in accordance with Section 10.1<br>by facsimile or other means of prepaid transmitted or recorded communication; and |
| --- | --- |
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| (b) | in the case of Holders, published once (i) in<br>the national edition of The Globe & Mail, and (ii) in<br>such other place or places and manner, if any, as the Warrant Agent may require. |
|---|---|
| (2) | Any notice given to the Holders by publication shall be deemed to have been given on the last day on which<br>publication shall have been effected as required pursuant to Section 10.3(1). |
| --- | --- |
Article 11****CONCERNING THE WARRANT AGENT
Section 11.1****NoConflict of Interest
The Warrant Agent represents to the Corporation, to the best of its knowledge that, at the date of the execution and delivery of this Agreement, there exists no material conflict of interest in its duties and obligations as a warrant agent hereunder. In the event of a material conflict of interest arising in the Warrant Agent’s role as warrant agent hereunder, the Warrant Agent shall, as soon as practicable but in any case within 90 days after ascertaining that it has such material conflict of interest, either eliminate the same or assign its duties and obligations hereunder to a successor Warrant Agent approved by the Corporation. Notwithstanding the foregoing provisions of this Section 11.1, if any such material conflict of interest exists or hereafter shall exist, the validity and enforceability of this Agreement and the Warrant Certificate(s) shall not be affected in any manner whatsoever by reason hereof.
Section 11.2****Replacementof Warrant Agent
| (1) | The Warrant Agent may resign and be discharged from all duties and liabilities hereunder by giving to<br>the Corporation at least 45 days’ notice in writing or such shorter notice as the Corporation may accept as sufficient. The Holders<br>by Extraordinary Resolution shall have the power, at any time, to remove the existing Warrant Agent and to appoint a new Warrant Agent.<br>If the Warrant Agent resigns or is removed by Extraordinary Resolution or is dissolved, becomes bankrupt, goes into liquidation or otherwise<br>becomes incapable of acting hereunder, the Corporation shall forthwith appoint a new Warrant Agent unless a new Warrant Agent has already<br>been appointed by the Holders; failing such appointment by the Corporation, the retiring Warrant Agent or any Holder may apply to a judge<br>of a court having jurisdiction, on such notice as such judge may direct, for the appointment of a new Warrant Agent; but any new Warrant<br>Agent so appointed by the Corporation or by a court of competent jurisdiction in the Province of British Columbia shall be subject to<br>removal as aforesaid by the Holders. Any new Warrant Agent appointed under any provision of this Section 11.2(1) must<br>be a corporation authorized to carry on the business of a transfer agent in one or more Provinces of Canada. On any new appointment, the<br>new Warrant Agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein<br>as Warrant Agent without any further assurances conveyance, act or deed. If, for any reason, it becomes necessary or expedient to execute<br>any further deed or assurance, the former Warrant Agent shall, at the expense of the Corporation, execute the same in favour of the new<br>warrant agent. |
|---|
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| (2) | Any corporation into which the Warrant Agent may be sold, merged or with which it may be consolidated<br>or amalgamated or any corporation resulting from any merger, consolidation or amalgamation to which the Warrant Agent shall be a party<br>or any corporation succeeding to the corporate trust or transfer agency business of the Warrant Agent, shall be the successor Warrant<br>Agent under this Agreement without the execution of any instrument or any further act. |
|---|---|
| (3) | Upon the appointment of a new Warrant Agent, the Corporation shall promptly notify the Holders thereof<br>in the manner prescribed by Section 10.2 hereof. |
| --- | --- |
Section 11.3****Evidence,Experts and Advisers
| (1) | In addition to the reports, certificates, opinions and other evidence required by this Agreement, the<br>Corporation shall furnish to the Warrant Agent such additional evidence of compliance with any provision hereof, and in such form, as<br>the Warrant Agent may reasonably require by written notice to the Corporation. |
|---|---|
| (2) | In the exercise of its rights and duties hereunder, the Warrant Agent may, if it is acting in good faith,<br>rely as to the truth of the statements and the accuracy of the opinions expressed in statutory declarations, opinions, reports, written<br>requests, consents, or orders of the Corporation, certificates of the Corporation or other evidence furnished to the Warrant Agent pursuant<br>to any provision hereof or pursuant to a request of the Warrant Agent, not only as to its due execution and the validity and effectiveness<br>of its provisions, but also to the truth and acceptability of any information therein contained which the Warrant Agent in good faith<br>believes to be genuine. |
| --- | --- |
| (3) | Proof of the execution of an instrument in writing, including a Holders’ Request, by any Holder<br>may be made by the certificate of a notary public, or other officer with similar powers, that the Person signing such instrument acknowledged<br>to it the execution thereof, or by an affidavit of a witness to such execution or in any other manner which the Warrant Agent may consider<br>adequate. |
| --- | --- |
| (4) | The Warrant Agent may, at the expense of the Corporation, employ or retain such counsel, accountants,<br>appraisers or other experts or advisers as it may reasonably require for the purpose of discharging its duties hereunder and may pay reasonable<br>remuneration for all services so performed by any of them, without taxation of costs of any counsel, and shall not be responsible for<br>any misconduct or negligence on the part of any such experts or advisers who have been appointed with reasonable care by the Warrant Agent.<br>The Warrant Agent may act and rely and shall be protected in acting and relying in good faith on the opinion or advice of or information<br>obtained from any counsel, accountant, appraiser, engineer or other expert or adviser, whether retained or employed by the Corporation<br>or by the Warrant Agent, in relation to any matter arising in the administration of the agency hereof. |
| --- | --- |
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Section 11.4****WarrantAgent May Deal in Securities
Subject to Section 11.1, the Warrant Agent may buy, sell, lend upon and deal in securities of the Corporation and generally contract and enter into financial transactions with the Corporation or otherwise, without being liable to account for any profits made thereby.
Section 11.5****WarrantAgent Not Ordinarily Bound
Except as otherwise specifically provided herein, the Warrant Agent shall not be bound to give notice to any Person of the execution hereof, nor to do, observe or perform or see to the observance or performance by the Corporation of any of the obligations herein imposed upon the Corporation or of the covenants on the part of the Corporation herein contained.
Section 11.6****WarrantAgent Not Required To Give Security
The Warrant Agent shall not be required to give any bond or security in respect of the execution or administration of its duties under this Agreement or otherwise in respect of the premises.
Section 11.7****WarrantAgent Not Required To Give Notice of Default
The Warrant Agent shall not be bound to give any notice or do or take any act, action or proceeding by virtue of the powers conferred on it hereby unless and until it shall have been required to do so under the terms hereof; nor shall the Warrant Agent be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the default desired to be brought to the attention of the Warrant Agent and in the absence of any such notice, the Warrant Agent may, for all purposes of this Agreement, conclusively assume that no default has been made in the observance or performance of any of the representations, warranties, covenants, agreements or conditions contained herein. Any such notice shall in no way limit any discretion herein given to the Warrant Agent to determine whether or not the Warrant Agent shall take action with respect to any default.
Section 11.8****Acceptanceof Appointment
The Warrant Agent hereby accepts its appointment as warrant agent under this Agreement and agrees to perform its duties hereunder upon the terms and conditions herein set forth or referred to unless and until discharged therefrom by resignation or in some other lawful way.
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Section 11.9****Dutiesof Warrant Agent
| (1) | The Warrant Agent, in exercising its powers and discharging its duties hereunder, shall: |
|---|---|
| (a) | act honestly and in good faith; and |
| --- | --- |
| (b) | exercise the care, diligence and skill that a reasonably prudent warrant agent would exercise in comparable<br>circumstances. |
| --- | --- |
Section 11.10****Actionsby Warrant Agent
| (1) | The Warrant Agent shall have the power to institute and to maintain such actions and proceedings as it<br>may consider necessary or expedient to preserve, protect or enforce its interests and the interests of the Holders. |
|---|---|
| (2) | Subject only to Section 11.7, the<br>obligation of the Warrant Agent to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Warrant<br>Agent or the Holders hereunder shall be conditional upon the Holders delivering to the Warrant Agent: |
| --- | --- |
| (a) | a Holder’s Request or Extraordinary Resolution directing the Warrant Agent to take such act, action,<br>or proceeding; |
| --- | --- |
| (b) | sufficient funds to commence or continue such act, action or proceeding; and |
| --- | --- |
| (c) | an indemnity reasonably satisfactory to the Warrant Agent to protect and hold harmless the Warrant Agent<br>and its officers, directors, employees and agents, against the costs, charges and expenses and liabilities to be incurred thereby and<br>any loss and damages it may suffer by reason thereof. |
| --- | --- |
| (3) | None of the provisions contained in this Agreement shall require the Warrant Agent to expend or risk its<br>own funds or otherwise incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers<br>unless indemnified and funded as aforesaid. |
| --- | --- |
| (4) | The Warrant Agent may, before commencing or at any time during the continuance of any such act, action<br>or proceeding, require the Holders, at whose instance it is acting, to deposit with the Warrant Agent the Warrants held by them, for which<br>Warrants the Warrant Agent shall issue receipts. |
| --- | --- |
| (5) | No duty shall rest with the Warrant Agent to determine compliance of the transferor or transferee with<br>applicable securities laws. The Warrant Agent shall be entitled to assume that all transfers are legal and proper. |
| --- | --- |
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Section 11.11****Protectionof Warrant Agent
| (1) | By way of supplement to the provisions of any law for the time being relating to Warrant Agents, it is<br>expressly declared and agreed as follows: |
|---|---|
| (a) | the Warrant Agent shall not be liable for or by reason of any statements of fact or recitals in this Agreement<br>or in the Warrant Certificates (except the representation contained in Section 11.1)<br>or be required to verify the same, but all such statements or recitals are and shall be deemed to be made by the Corporation; |
| --- | --- |
| (b) | nothing herein contained shall impose any obligation on the Warrant Agent to see to or to require evidence<br>of the registration or filing (or renewal thereof) of this Agreement or any instrument ancillary or supplemental hereto; |
| --- | --- |
| (c) | the Warrant Agent shall not be bound to give notice to any Person or Persons of the execution hereof; |
| --- | --- |
| (d) | notwithstanding the foregoing or any other provision of this Agreement, any liability of the Warrant Agent<br>shall be limited, in the aggregate, to the amount of annual retainer fees paid by the Corporation to the Warrant Agent under this Agreement<br>in the twelve (12) months immediately prior to the Warrant Agent receiving the first notice of the claim. Notwithstanding any other provision<br>of this Agreement, and whether such losses or damages are foreseeable or unforeseeable, the Warrant Agent shall not be liable under any<br>circumstances whatsoever for any (i) breach by any other party of<br>securities law or other rule of any securities regulatory authority;<br>(ii) lost profits; or (iii) special,<br>indirect, incidental, consequential, exemplary, aggravated or punitive losses or damages; |
| --- | --- |
| (e) | the Warrant Agent shall not be liable for any error in judgment or for any act done or step taken or omitted<br>by it in good faith or for any mistake, in fact or law, or for anything which it may do or refrain from doing in connection herewith except<br>arising out of its own gross negligence, bad faith, willful misconduct or fraud; |
| --- | --- |
| (f) | in the event that any of the funds provided to the Warrant Agent hereunder are received by it in the form<br>of an uncertified cheque or bank draft, the Warrant Agent shall be entitled to delay the time for release of such funds until such uncertified<br>cheque has cleared the financial institution upon which the same is drawn; and |
| --- | --- |
| (g) | the forwarding of a cheque or the sending of funds by wire transfer by the Warrant Agent will satisfy<br>and discharge the liability of any amounts due to the extent of the sum represented thereby unless such cheque is not honoured on presentation,<br>provided that in the event of the non-receipt of such cheque by the payee, or the loss or destruction thereof, the Warrant Agent, upon<br>being furnished with reasonable evidence of such non-receipt, loss or destruction and indemnity reasonably satisfactory to it, will issue<br>to such payee a replacement cheque for the amount of such cheque. |
| --- | --- |
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Section 11.12****Indemnificationof the Warrant Agent
The Corporation hereby indemnifies and agrees to hold harmless the Warrant Agent, its affiliates, their officers, directors, employees, agents, successors and assigns (the “Indemnified Parties”) from and against any and all liabilities whatsoever, losses, damages, penalties, claims, demands, actions, suits, proceedings, costs, charges, assessments, judgments, expenses and disbursements, including reasonable legal fees and disbursements of whatever kind and nature which may at any time be imposed on or incurred by or asserted against the Indemnified Parties, or any of them, whether at law or in equity, in any way caused by or arising, directly or indirectly, in respect of any act, deed, matter or thing whatsoever made, done, acquiesced in or omitted in or about or in relation to the execution of the Indemnified Parties’ duties, or any other services that Warrant Agent may provide in connection with this Agreement. The Corporation agrees that its liability hereunder shall be absolute and unconditional regardless of the correctness of any representations of any third parties and regardless of any liability of third parties to the Indemnified Parties, and shall accrue and become enforceable without prior demand or any other precedent action or proceeding; provided that the Corporation shall not be required to indemnify the Indemnified Parties in the event of the gross negligence, fraud, wilful misconduct or bad faith of any Indemnified Party, and this provision shall survive the resignation or removal of the Warrant Agent or the termination or discharge of this Agreement.
Section 11.13****ThirdParty Interests
Each party to this Agreement hereby represents to the Warrant Agent that any account to be opened by, or interest to held by the Warrant Agent in connection with this Agreement, for or to the credit of such party, either (i) is not intended to be used by or on behalf of any third party; or (ii) is intended to be used by or on behalf of a third party, in which case such party hereto agrees to complete and execute forthwith a declaration in the Warrant Agent’s prescribed form as to the particulars of such third party.
Section 11.14****NotBound To Act
The Warrant Agent shall retain the right not to act and shall not be liable for refusing to act if, due to a lack of information or for any other reason whatsoever, the Warrant Agent, in its sole judgment, determines that such act might cause it to be in non-compliance with any applicable anti-money laundering or anti-terrorist or economic sanctions legislation, regulation or guideline. Further, should the Warrant Agent, in its sole judgment, determine at any time that its acting under this Agreement has resulted in its being in non-compliance with any applicable anti-money laundering or anti-terrorist or economic sanctions legislation, regulation or guideline, then it shall have the right to resign on 10 days’ written notice to the Corporation, provided (i) that the Warrant Agent’s written notice shall describe the circumstances of such non-compliance; and (ii) that if such circumstances are rectified to the Warrant Agent’s satisfaction within such 10-day period, then such resignation shall not be effective.
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Section 11.15****PrivacyLaws
The parties acknowledge that federal and/or provincial legislation that addresses the protection of individuals’ personal information (collectively, “Privacy Laws”) applies to obligations and activities under this Agreement. Despite any other provision of this Agreement, neither party shall take or direct any action that would contravene, or cause the other to contravene, applicable Privacy Laws. The Corporation shall, prior to transferring or causing to be transferred personal information to the Warrant Agent, obtain and retain required consents of the relevant individuals to the collection, use and disclosure of their personal information, or shall have determined that such consents either have previously been given upon which the parties can rely or are not required under the Privacy Laws. The Warrant Agent shall use commercially reasonable efforts to ensure that its services hereunder comply with Privacy Laws.
Article 12****SUPPLEMENTAL AGREEMENTS
Section 12.1****SupplementalAgreements
| (1) | From time to time, the Warrant Agent and, when authorized by a resolution of its Directors, the Corporation,<br>may, subject to the provisions hereof, and they shall, when required by this Agreement, execute, acknowledge and deliver, by their proper<br>officers, deeds or agreements supplemental hereto, which thereafter shall form part hereof, for any one or more of the following purposes: |
|---|---|
| (a) | adding to the covenants of the Corporation herein contained for the protection of the Holders in addition<br>to those herein specified; |
| --- | --- |
| (b) | making such provision not inconsistent with this Agreement as may be necessary or desirable with respect<br>to matters or questions arising hereunder provided that the Warrant Agent shall be of the opinion, relying on the advice of its counsel,<br>that such provisions shall not be prejudicial to the interests of the Holders; |
| --- | --- |
| (c) | adding to or altering the provisions hereof in respect of the transfer of Warrants, making provision for<br>the exchange of Warrant Certificates and making any modification in the form of the Warrant Certificate which does not affect the substance<br>thereof; |
| --- | --- |
| (d) | evidencing the succession, or successive successions, of other corporations to the Corporation and the<br>covenants of and obligations assumed by any such successor in accordance with the provisions of this Agreement; |
| --- | --- |
| (e) | giving effect to any Extraordinary Resolution passed as provided in Article 9; |
| --- | --- |
| (f) | setting forth adjustments in the application of the provisions of Article 4;<br>and |
| --- | --- |
| (g) | for any other purpose not inconsistent with the terms of this Agreement, provided that in the opinion<br>of the Warrant Agent relying on the advice of counsel, the rights of the Warrant Agent and of the Holders are in no way prejudiced thereby. |
| --- | --- |
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| (2) | The Warrant Agent may also, without the consent or concurrence of the Holders, by supplemental agreement<br>or otherwise, concur with the Corporation in making any changes or corrections in this Agreement which it has been advised by its counsel<br>are required for the purpose of curing or correcting any ambiguity or defective or inconsistent provision or clerical omission or mistake<br>or manifest error contained herein or in any deed or agreement supplemental or ancillary hereto, provided that in the opinion of the Warrant<br>Agent, relying on the advice of counsel, the rights of the Warrant Agent and of the Holders are in no way prejudiced thereby. |
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Article 13****GENERAL PROVISIONS
Section 13.1****Execution
This Agreement may be simultaneously executed in several counterparts, and may be executed by facsimile or other means of electronic communication producing a printed copy, each of which when so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument, and notwithstanding their date of execution, they shall be deemed to be dated as of the date hereof.
Section 13.2****Rightsof Rescission
Should a Holder of Warrants exercise any legal, statutory, contractual or other right of withdrawal or rescission that may be available to it, and the Holder’s funds which were paid on exercise have already been released to the Corporation by the Warrant Agent, the Warrant Agent shall not be responsible for ensuring the exercise is cancelled and a refund is paid back to the Holder. In such cases, the Holder shall seek a refund directly from the Corporation and subsequently, the Corporation shall instruct the Warrant Agent in writing, to cancel the exercise transaction and any Shares on the register, which may have already been issued upon the Warrant exercise. In the event that any payment is received from the Corporation by virtue of the Holder being a shareholder for such Warrants that were subsequently rescinded, such payment must be returned to the Corporation by such Holder. The Warrant Agent shall not be under any duty or obligation to take any steps to ensure or enforce that the funds are returned pursuant to this Section 13.2, nor shall the Warrant Agent be in any other way responsible in the event that any payment is not delivered or received pursuant to this Section 13.2. Notwithstanding the foregoing, in the event that the Corporation provides the refund to the Warrant Agent for distribution to the Holder, the Warrant Agent shall return such funds to the Holder as soon as reasonably practicable, and in so doing, the Warrant Agent shall incur no liability with respect to the delivery or non-delivery of any such funds.
Section 13.3****ForceMajeure
Neither party shall be liable to the other, or held in breach of this Agreement, if prevented, hindered, or delayed in the performance or observance of any provision contained herein by reason of act of God, riots, terrorism, acts of war, epidemics, governmental action or judicial order, earthquakes, or any other similar causes (including, but not limited to, mechanical, electronic or communication interruptions, disruptions or failures). Performance times under this Agreement shall be extended for a period of time equivalent to the time lost because of any delay that is excusable under this Section 13.3.
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Section 13.4****Satisfactionand Discharge of Agreement
Upon the earlier of:
| (1) | the date by which there shall have been delivered to the Warrant Agent for exercise or cancellation all<br>Warrant Certificates theretofore issued hereunder; and |
|---|---|
| (2) | the Expiry Time; |
| --- | --- |
and if all certificates representing Shares, if any, required to be issued in compliance with the provisions hereof have been issued and delivered hereunder or to the Warrant Agent in accordance with such provisions, this Agreement shall cease to be of any force and effect and the Warrant Agent, on demand of and at the cost and expense of the Corporation and upon delivery to the Warrant Agent of a certificate of the Corporation stating that all conditions precedent to the satisfaction and discharge of this Agreement have been complied with, shall execute proper instruments acknowledging satisfaction of and discharging this Agreement. Notwithstanding the foregoing, the indemnities provided to the Warrant Agent by the Corporation hereunder shall remain in full force and effect and survive the termination of this Agreement.
Section 13.5****WarrantsOwned by the Corporation or its Subsidiaries - Certificate to be Provided
For the purpose of disregarding any Warrants owned legally or beneficially by the Corporation or any Subsidiary of the Corporation in Section 9.17 hereof, the Corporation shall provide to the Warrant Agent, from time to time, a certificate of the Corporation setting forth as at the date of such certificate:
| (1) | the names (other than the name of the Corporation) of the Holders of Warrants which, to the knowledge<br>of the Corporation, are owned by or held for the account of the Corporation or any Subsidiary of the Corporation; and |
|---|---|
| (2) | the number of Warrants owned legally or beneficially by the Corporation or any Subsidiary of the Corporation<br>have not been cancelled; |
| --- | --- |
and the Warrant Agent, in making the computations in Section 9.17 hereof, shall be entitled to rely on such certificate without any additional evidence.
Section 13.6****Provisionsof Agreement and Warrants for the Sole Benefit of Parties and Holders
Nothing in this Agreement or in the Warrant Certificates, expressed or implied, shall give or be construed to give to any Person other than the parties thereto and the Holders, as the case may be, any legal or equitable right, remedy or claim under this Agreement, or under any covenant or provision herein or therein contained, all such covenants and provisions being for the sole benefit of the parties hereto and the Holders.
Section 13.7 DRSAdvices
Notwithstanding to the contrary contained herein, direct registration system advices may be issued in lieu of Warrant Certificates and/or share certificates, except to CDS unless CDS agrees thereto.
[Remainder of page left intentionally blank.]
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INWITNESS WHEREOF the parties hereto have executed these presents under the hands of their proper officers in that behalf.
| THE CANNABIST COMPANY HOLDINGS INC. | |
|---|---|
| By: | (Signed) “David Hart” |
| David Hart | |
| Authorized Signatory | |
| ODYSSEY TRUST COMPANY | |
| By: | (Signed) “Amy Douglas” |
| Authorized Signatory | |
| By: | (Signed) “Rachel Wales” |
| Authorized Signatory |
SCHEDULE “A”THE CANNABIST COMPANY HOLDINGS INC.
FORM OF WARRANT CERTIFICATE
**“**THISWARRANT AND THE SHARES ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED(THE “U.S. SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THIS WARRANT MAY NOT BE EXERCISEDIN THE UNITED STATES OR BY OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON OR PERSON IN THE UNITED STATES AND THE UNDERLYING SHARES MAY NOTBE DELIVERED WITHIN THE UNITED STATES UNLESS THE WARRANT AND THE UNDERLYING SHARES HAVE BEEN REGISTERED UNDER THE U.S. SECURITIES ACTAND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS IS AVAILABLE, AND THE HOLDER HAS, IFREQUIRED, DELIVERED AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CORPORATION TO SUCH EFFECT. “UNITED STATES”AND “U.S. PERSON” ARE USED HEREIN AS SUCH TERMS ARE DEFINED BY REGULATION S UNDER THE U.S. SECURITIES ACT.”
THE WARRANTS REPRESENTED HEREBY WILL BE VOIDAFTER THE TIME OF EXPIRY AS DESCRIBED HEREIN.
Certificate No.·
CUSIP**●**
| ISIN ● | _______________________ |
|---|
Share Purchase Warrants
THISCERTIFICATE IS TO CERTIFY that for value received · (herein referred to as the “Holder”) is the registered holder of the number of Warrants of The Cannabist Company Holdings Inc. (the “Corporation”) stated above, and subject to adjustment provisions as set forth in the Warrant Agency Agreement (as defined below), is entitled to acquire, commencing on the original date of issuance of the Warrants (the “Commencement Time”) and up until 5:00 p.m. (Toronto time) on May 29, 2027, or the next succeeding Business Day if such date is not a Business Day (the “Expiry Date”), upon payment of C$0.14 (the “Exercise Price”) for each Warrant represented hereby, one Share (as defined herein), all in the manner and subject to the restrictions and adjustments set forth in the Warrant Agency Agreement.
For purposes of this Certificate, any reference to “Shares” shall mean the Common Shares for which the Warrants are conferred the right to acquire, provided that in the event of any adjustment in accordance with the provisions of the Warrant Agency Agreement, “Shares” shall thereafter mean the shares or other securities or property resulting from such adjustment, and “Share” means any one of them.
Any capitalized term in this Certificate that is not otherwise defined herein, shall have the meaning ascribed thereto in the Warrant Agency Agreement. In the event of any discrepancy between anything contained in this Warrant Certificate and the terms and conditions of the Warrant Agency Agreement, the terms and conditions of the Warrant Agency Agreement shall govern.
“A” - 1
The Warrants represented by this Certificate are issued or issuable under the provisions of an Agreement (which Agreement, together with all other instruments ancillary thereto, is referred to herein as the “Warrant Agency Agreement”) dated as of May 29, 2025 between the Corporation and Odyssey Trust Company (the “Warrant Agent”). Reference is hereby made to the Warrant Agency Agreement for a full description of the rights of the holders of the Warrants, the Corporation and the Warrant Agent in respect thereof, and the terms and conditions upon which the Warrants evidenced hereby are issued and held, all to the same effect as if the provisions of the Warrant Agency Agreement were herein set forth. By acceptance of this Certificate, the Holder assents to all provisions of the Warrant Agency Agreement. To the extent that the terms and conditions set forth in this Certificate conflict with the terms and conditions of the Warrant Agency Agreement, the Warrant Agency Agreement shall prevail. The Corporation will furnish to the holder of this Certificate, upon request and without charge, a copy of the Warrant Agency Agreement.
In the event that prior to the Expiry Date,the Holder has not exercised the Warrants represented hereby in accordance with the terms of the Warrant Agency Agreement, then any Warrantsrepresented by this Certificate which have not been so exercised shall be deemed to have expired and shall be of no further force andeffect as of 5:00 p.m. (Toronto time) on the Expiry Date.
Upon exercise, the Warrants so exercised shall be void and of no value or effect.
Certificates or direct registration system advices representing the Shares issued upon exercise of the Warrants (reflecting any adjustments as provided herein and in the Warrant Agency Agreement) shall, within five Business Days after the Exercise Date, be mailed by the Corporation to the address of the Holder thereof last appearing on the register of Holders maintained by the Warrant Agent.
The right to acquire Shares may only be exercised by the Holder within the time set forth above by:
| (a) | duly completing and executing the Exercise Form attached hereto; |
|---|---|
| (b) | by providing a certified cheque, bank draft, money order or wire transfer in lawful money of Canada payable<br>to the order of the Corporation for the aggregate purchase price of the Shares so subscribed; and |
| --- | --- |
| (c) | surrendering this Warrant Certificate to the Warrant Agent at the Warrant Agency; |
| --- | --- |
all in accordance with Section 3.2 of the Warrant Agency Agreement.
The Warrants represented by this Certificate shall be deemed to be surrendered only upon personal delivery hereof or, if sent by mail or other means of transmission, upon actual receipt thereof by the Warrant Agent at the offices referred to above.
Upon surrender of these Warrants, the Person or Persons in whose name or names the Shares issuable upon exercise of the Warrants are to be issued shall be deemed for all purposes (except as provided in the Warrant Agency Agreement) to be the holder or holders of record of such Shares, and the Corporation has covenanted that it will (subject to the provisions of the Warrant Agency Agreement) cause a certificate or certificates or direct registration system advice(s) representing the Shares to be delivered or mailed to the Person or Persons at the address or addresses specified in the Exercise Form within five Business Days.
“A” - 2
The Warrant Agency Agreement provides for adjustments to certain rights of Holders including the number of Shares issuable upon exercise of the Warrants upon subdivision, consolidation or reclassification of the Shares or any reclassification or capital reorganization of the Corporation and certain dividends and distributions of securities, including rights, options or warrants to purchase Shares or securities convertible or exchangeable into Shares or assets of the Corporation. The Holder should refer to the Warrant Agency Agreement which provides for adjustments in certain other events.
The Corporation shall not be required, upon valid exercise of any Warrants after the Commencement Time and prior to the Expiry Time, to issue fractions of Shares or to distribute certificates which evidence the same. A Holder shall not be entitled to any cash or other consideration in lieu of any fractional interest in a Warrant or claim thereto. Any fractional Shares to which a Holder is entitled shall be rounded down to the nearest whole Share, and no cash or other consideration will be paid in lieu of fractional Shares.
The terms and conditions relating to the Warrants and this Certificate may be modified, changed or added to in accordance with the provisions of the Warrant Agency Agreement. The Warrant Agency Agreement contains provisions making binding upon all Holders of Warrants outstanding thereunder resolutions passed at meetings of such Holders held in accordance with such provisions and instruments in writing signed by the Holders entitled to acquire a specified percentage of the Shares which may be acquired pursuant to the exercise of all of the then outstanding Warrants.
The holding of the Warrants, as evidenced by this Certificate, shall not constitute, or be construed as conferring upon, a Holder any right or interest whatsoever as a shareholder of the Corporation except such rights as may be provided in the Warrant Agency Agreement or in this Certificate.
The Holder of this Certificate may, upon compliance with the reasonable requirements of the Warrant Agent and upon surrender of this Certificate, exchange this Certificate for another Certificate or Certificates (or direct registration system advices) entitling the Holder thereof to receive, in the aggregate, the same number of Shares as are issuable under this Certificate.
The Warrants evidenced by this Certificate may only be transferred in accordance with applicable securities laws and upon due execution and delivery to the Warrant Agent of a Transfer Form in the form attached hereto and in compliance with all the conditions prescribed in the Warrant Agency Agreement and compliance with such other reasonable requirements as the Warrant Agent may prescribe.
This Warrant Certificate shall not be valid for any purpose until it has been countersigned by or on behalf of the Warrant Agent under the Warrant Agency Agreement.
The registered holder of this Warrant Certificate expressly acknowledges having requested, and consents to, the drawing in the English language only of this Warrant Certificate evidencing the Warrants registered in his or her name and all documents relating to such Warrants. Le détenteur inscrit du présent certificat de bons de souscription reconnaît expressément avoir demandé et consenti que le présent certificat attestant qu’il est le détenteur inscrit de bons de souscription, ainsi que tous les documents s’y rapportant, soient rédigés en anglais seulement.
Time shall be of the essence hereof.
[Remainder of page left intentionally blank.]
“A” - 3
IN WITNESS WHEREOF the Corporation has caused this Warrant Certificate to be signed as of the _____ day of May, 2025.
| THE CANNABIST COMPANY HOLDINGS INC. | |
|---|---|
| By: | |
| Name: | |
| Title: |
This Warrant Certificate is one of the Warrant Certificates referred to in the Warrant Agency Agreement. Signed by the Warrant Agent as of the _____ day of May, 2025.
| odyssey TRUST COMPANY | |
|---|---|
| By: | |
| Authorized Signing Officer |
“A” - 4
EXERCISE FORM
| TO: | THE CANNABIST COMPANY HOLDINGS INC. | |
|---|---|---|
| AND TO: | ODYSSEY TRUST COMPANY | |
| (1) | The undersigned hereby irrevocably subscribes for, and exercises his or her right to be issued, the number<br>of Shares set forth below, such Shares being issuable upon exercise of such Warrants pursuant to the terms specified in the said Warrants<br>and the Warrant Agency Agreement. | |
| --- | --- | |
| (2) | If the Shares are not registered pursuant to an effective registration statement under the U.S. Securities<br>Act, the undersigned represents, warrants and certifies as follows (one (only) of the following must be checked): | |
| --- | --- | |
| A | ¨ | The undersigned holder (i) at the time of exercise of the Warrants is not in the United States and did not execute and deliver this<br>exercise form in the United States; (ii) is not a “U.S. Person” (a “U.S. Person”), as defined in<br>Regulation S under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”), and is not exercising<br>the Warrants for the account or benefit of a “U.S. Person” (except, in each case, if the undersigned holder is deemed to<br>be outside of the United States and not a U.S. Person by the applicable provisions of Regulation S); (iii) the undersigned holder<br>will not offer or sell Shares to a U.S. Person or for the account or benefit of a U.S. Person (other than a distributor (as defined in<br>Rule 902 of Regulation S under the U.S. Securities Act) on or prior to six months after the issue date of the Shares; (iv) agrees<br>not to engage in hedging transactions with regard to such securities unless in compliance with the U.S. Securities Act and (v) understands<br>that the Corporation will refuse to register any transfer of the Shares if not made in accordance with Regulation S, pursuant to registration<br>under the U.S. Securities Act or pursuant to an exemption from registration. |
| --- | --- | --- |
| B | ¨ | The undersigned holder is an “accredited investor” as defined in Rule 501(a) of Regulation D under the U.S.<br>Securities Act and has completed Exhibit “A” and Exhibit “B,” as applicable, hereto. |
| --- | --- | --- |
| C | ¨ | The undersigned holder has delivered to Odyssey Trust Company an opinion of counsel of recognized standing in form and substance satisfactory<br>to the Corporation to the effect that an exemption from the registration requirements of the U.S. Securities Act is available. |
| --- | --- | --- |
Note: The undersigned holder understands that the Shares, unless registered under the U.S. Securities Act, will be considered “restricted securities” within the meaning of Rule 144 under the U.S. Securities Act and subject to restrictions on transfer. Further, the certificate or direct registration statement representing the Shares will bear a legend restricting transfer of the Shares in the United States without registration under the U.S. Securities Act and applicable state securities laws unless an exemption from registration is available. If Box C above is checked, holders are encouraged to consult with the Corporation in advance to determine that the legal opinion tendered in connection with the exercise will be satisfactory in form and substance to the Corporation.
“A” - 5
The undersigned hereby irrevocably directs that the Shares be issued and delivered as follows:
| Name in full | Address (include Postal Code or Zip Code) | Number of Shares |
|---|
(Please print full name in which certificate(s) or direct registration system advice(s) are to be issued.)
Dated this _______ day of ________________________, ____________.
| Signature Guaranteed | Signature of Registered Holder |
|---|---|
| Name of Registered Holder |
¨ Please check box if certificates or direct registration system advice(s) representing these Shares are to be delivered at the office of the Warrant Agent where this Warrant Certificate is surrendered, failing which the certificates or direct registration system advice(s) shall be mailed to the address set forth above.
Instructions:
The registered holder may exercise his or her right to receive Shares by completing this form and surrendering this form and the Warrant Certificate representing the Warrants being exercised, together with the applicable payment therefor, to Odyssey Trust Company, 1230 – 300 5th Ave SW, Calgary, AB T2P 3C4. Certificates or direct registration system advice(s) for Shares shall be delivered or mailed within five Business Days after the exercise of the Warrants.
If the Exercise Form indicates that Shares are to be issued to a Person or Persons other than the registered holder of the Certificate, the signature on this Exercise Form must be guaranteed by a Canadian chartered bank or eligible guarantor institution with membership in an approved signature guarantee medallion program.
If the Exercise Form is signed by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation or any Person acting in a fiduciary or representative capacity, the certificate must be accompanied by evidence of authority to sign satisfactory to the Warrant Agent and the Corporation.
If Box B is checked, the registered holder must deliver a copy of the Certifications in Exhibit “A” and Exhibit “B,” as applicable, together with copies of any documentation required pursuant thereto to The Cannabist Company Holdings Inc., 321 Billerica Road, Suite 204 Chelmsford, MA 01824, Attention: David Hart.
If Box C is checked, any opinion tendered must be in form and substance satisfactory to the Corporation and the Warrant Agent. Holders planning to deliver an opinion of counsel in connection with the exercise of Warrants should contact the Corporation and the Warrant Agent in advance to determine whether any opinions to be tendered will be acceptable to the Corporation and the Warrant Agent.
“A” - 6
EXHIBIT “A”
UNITED STATES ACCREDITED INVESTOR CERTIFICATION
| TO: | THE CANNABIST COMPANY HOLDINGS INC. |
|---|---|
| AND TO: | ODYSSEY TRUST COMPANY |
Capitalized terms not specifically defined in this Certification have the meaning ascribed to them in the warrant agency agreement to which this Exercise Form is attached.
The undersigned represents, warrants and certifies as follows (one (only) of the following must be checked):
| (1) | If the undersigned is an individual (that is, a natural person and not a corporation, partnership, trust<br>or other entity), then it satisfies one or more of the categories of “accredited investor” as defined in Rule 501(a) of<br>Regulation D under the U.S. Securities Act indicated below (if the undersigned selects either category A or B below, the undersigned<br>MUST also complete Exhibit “B” and provide the applicable documentation requested therein): | |
|---|---|---|
| A | ¨ | A natural person (including an Individual Retirement Account (“IRA”) owned by such person) whose individual net worth,<br>or joint net worth with that person’s spouse or spousal equivalent, at the date hereof exceeds US $1,000,000 (Note: For<br>purposes of calculating net worth, (i) the person’s primary residence shall not be included as an asset, (ii) indebtedness<br>that is secured by the person’s primary residence, up to the estimated fair market value of the primary residence at the time of<br>the sale of securities, shall not be included as a liability (except that if the amount of such indebtedness outstanding at the time<br>of sale of securities exceeds the amount outstanding 60 days before such time, other than as a result of the acquisition of the<br>primary residence, the amount of such excess shall be included as a liability), and (iii) indebtedness that is secured by the person’s<br>primary residence in excess of the estimated fair market value of the primary residence at the time of the sale of securities shall be<br>included as a liability); |
| --- | --- | --- |
| B | ¨ | A natural person (including an IRA owned by such person) who had an individual income in excess of US $200,000 in each of the two most<br>recent years or joint income with that person’s spouse or spousal equivalent in excess of US $300,000 in each of those years<br>and has a reasonable expectation of reaching the same income level in the current year; |
| --- | --- | --- |
| C | ¨ | A natural person who is a director or executive officer of the Company; |
| --- | --- | --- |
| D | ¨ | A natural person holding in good standing one or more professional certifications or designations or credentials from an accredited educational<br>institution that the SEC has designated as qualifying an individual for accredited investor status. In making such a determination, the<br>SEC will consider, among others, the following attributes: (i) the certification, designation, or credential arises out of an examination<br>or series of examinations administered by a self-regulatory organization or other industry body or is issued by an accredited educational<br>institution; (ii) the examination or series of examinations is designed to reliably and validly demonstrate an individual's comprehension<br>and sophistication in the areas of securities and investing; (iii) persons obtaining such certification, designation, or credential<br>can reasonably be expected to have sufficient knowledge and experience in financial and business matters to evaluate the merits and risks<br>of a prospective investment; and (iv) an indication that an individual holds the certification or designation is either made publicly<br>available by the relevant self-regulatory organization or other industry body or is otherwise independently verifiable; or |
| --- | --- | --- |
“A” - 7
| E | ¨ | A natural person who is a family client as defined in Rule 202(a)(11)(G)–1 under the Investment Advisers Act of 1940, of a<br>family office as defined in Rule 202(a)(11)(G)–1 under the Investment Advisers Act of 1940 (i) with assets under management<br>in excess of US 5,000,000, (ii) that is not formed for the specific purpose of acquiring the Securities and (iii) whose prospective<br>investment in the issuer is directed by a person who has such knowledge and experience in financial and business matters that such family<br>office is capable of evaluating the merits and risks of the prospective investment. |
|---|---|---|
| (2) | If the undersigned is<br>a corporation, partnership, trust or other entity), then it satisfies one or more of the categories of “accredited investor”<br>as defined in Rule 501(a) of Regulation D under the U.S. Securities Act indicated below: | |
| --- | --- | |
| A | ¨ | An organization described in Section 501(c)(3) of the United States Internal Revenue Code, a corporation, a Massachusetts or<br>similar business trust or partnership, not formed for the specific purpose of acquiring the Securities, with total assets in excess of<br>US $5,000,000; |
| --- | --- | --- |
| B | ¨ | A<br>trust that (a) has total assets in excess of US $5,000,000, (b) was not formed for the specific purpose of acquiring the Securities<br>and (c) is directed in its purchases of securities by a person who has such knowledge and experience in financial and business matters<br>that he/she is capable of evaluating the merits and risks of an investment in the Securities; |
| --- | --- | --- |
| C | ¨ | A bank as defined in Section 3(a)(2) of under the U.S. Securities Act or any savings and loan association or other institution<br>as defined in Section 3(a)(5)(A) of that Act whether acing in its individual or fiduciary capacity. |
| --- | --- | --- |
| D | ¨ | A broker or dealer registered pursuant to Section 15 of the U. S. Securities Exchange Act; |
| --- | --- | --- |
| E | ¨ | An investment adviser registered pursuant to Section 203 of the Investment Advisers Act of 1940 or registered pursuant to the laws<br>of a state or any investment adviser relying on the exemption from registering with the SEC under Section 203(l) or (m) of<br>the Investment Advisers Act of 1940; |
| --- | --- | --- |
| F | ¨ | An insurance company as defined in Section 2(a)(13) of the U.S. Securities Act; |
| --- | --- | --- |
| G | ¨ | An investment company registered under the Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48)<br>of that Act; |
| --- | --- | --- |
| H | ¨ | A Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of<br>the Small Business Investment Act of 1958; |
| --- | --- | --- |
“A” - 8
| I | ¨ | A Rural Business Investment Company as defined in section 384A of the Consolidated Farm and Rural Development Act; |
|---|---|---|
| J | ¨ | A plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political<br>subdivisions, for the benefit of its employees, if such plan has total assets in excess of US $5,000,000; |
| --- | --- | --- |
| K | ¨ | An employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 if the investment decision is made<br>by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company,<br>or registered investment adviser, or if the employee benefit plan has total assets in excess of US $5,000,000 or, if a self-directed<br>plan, with investment decisions made solely by persons that are accredited investors; |
| --- | --- | --- |
| L | ¨ | A private business development company as defined in Section 202(a)(22) of the Investment Advisors Act of 1940; |
| --- | --- | --- |
| M | ¨ | An entity in which all of the equity owners are accredited investors; |
| --- | --- | --- |
| N | ¨ | An entity, of a type not listed in the preceding paragraphs, not formed for the specific purpose of acquiring the securities offered,<br>owning investments in excess of US $5,000,000; |
| --- | --- | --- |
| O | ¨ | A family office as defined in Rule 202(a)(11)(G)–1 under the Investment Advisers Act of 1940 (i) with assets under management<br>in excess of US $5,000,000, (ii) that is not formed for the specific purpose of acquiring the Securities and (iii) whose prospective<br>investment in the issuer is directed by a person who has such knowledge and experience in financial and business matters that such family<br>office is capable of evaluating the merits and risks of the prospective investment; |
| --- | --- | --- |
| P | ¨ | A<br>revocable trust which does not satisfy the requirements of (2)B of this Certification (more than US $5,000,000 in assets, etc.),<br>which may be revoked or amended at any time by its settlors (grantors) and each of its settlors is an accredited investor by virtue of<br>being a natural person whose individual net worth, or joint net worth with that person’s spouse, at the date hereof exceeds US<br>$1,000,000 (excluding such person’s primary residence and certain indebtedness, as more fully described in (1)A, above). |
| --- | --- | --- |
The Corporation may request documentation from the undersigned in order to confirm accredited investors status eligibility and the Corporation may reject the exercise if sufficient documentation is not provided.
The undersigned acknowledges that the foregoing representations and warranties are made by the undersigned with the intent that they be relied upon in determining the suitability of the undersigned in connection with the exercise of the Warrants and that this certificate is incorporated into and forms part of the Exercise Form and the undersigned undertakes to immediately notify the Corporation of any change in any statement or other information relating to the undersigned set forth herein which takes place prior to the exercise of the Warrants.
“A” - 9
Dated: ________________________, 202___.
| Print name | |
|---|---|
| By: | |
| Signature | |
| Title | |
| (please print name of individual whose signature appears above, if different from name of Purchaser printed above) |
“A” - 10
EXHIBIT “B”
ACCREDITED INVESTOR VERIFICATION CERTIFICATE
| TO: | THE CANNABIST COMPANY HOLDINGS INC. |
|---|---|
| AND TO: | ODYSSEY TRUST COMPANY |
This Certification must be completed by each “accredited investor” as defined in Rule 501(a) of Regulation D under the U.S. Securities Act that has selected boxes (1)A or (1)B of Exhibit “A,” and by any other accredited investors that the Corporation directs to complete this form. Accredited investors must check one of (1), (2) or (3) below and provide the applicable referenced documentation along with this completed and signed Certification.
Capitalized terms not specifically defined in this Certification have the meaning ascribed to them in the warrant agency agreement to which this Exercise Form is attached.
| (1) | ¨ The<br>undersigned is an accredited investor* that has selected box (1)A of Exhibit “A”: |
|---|---|
| A | the undersigned has provided one or more of the following types of documentation dated within the prior<br>three months: |
| --- | --- |
| (i) | With respect to assets: Bank statements, brokerage statements and other statements of securities holdings,<br>certificates of deposit, tax assessments, and appraisal reports issued by independent third parties; and |
| --- | --- |
| (ii) | With respect to liabilities: A consumer report from at least one of the nationwide consumer reporting<br>agencies; and |
| --- | --- |
| B | the undersigned represents, warrants and certifies that all liabilities necessary to make a determination<br>of net worth have been disclosed. |
| --- | --- |
| (2) | ¨ The<br>undersigned is an accredited investor* that has selected box (1)B of Exhibit “A”: |
| --- | --- |
| A | the undersigned has provided an Internal Revenue Service form that reports the undersigned’s income<br>for the two most recent years (including, but not limited to, Form W-2, Form 1099, Schedule K-1 to Form 1065, and Form 1040);<br>and |
| --- | --- |
| B | the undersigned represents, warrants and certifies that he or she has a reasonable expectation of reaching<br>the income level necessary to qualify as an accredited investor during the current year. |
| --- | --- |
| (3) | ¨ The<br>undersigned is an accredited investor* that has selected either box (1)A or box (1)B of Exhibit “A”: |
| --- | --- |
| A | the undersigned has provided to the Corporation a written confirmation from one of the following persons<br>or entities that such person or entity has taken reasonable steps to verify that the undersigned is an accredited investor within the<br>prior three months and has determined that such purchaser is an accredited investor: |
| --- | --- |
“B” - 1
| (i) | a registered broker-dealer; |
|---|---|
| (ii) | an investment adviser registered with the SEC; |
| --- | --- |
| (iii) | a licensed attorney who is in good standing under the laws of the jurisdictions in which he or she is<br>admitted to practice law; or |
| --- | --- |
| (iv) | a certified public accountant who is duly registered and in good standing under the laws of the place<br>of his or her residence or principal office. |
| --- | --- |
The undersigned acknowledges that the foregoing documentation and representations and warranties are made by the undersigned with the intent that they be relied upon in determining the suitability of the undersigned in connection with the exercise of the Warrants and that this certificate is incorporated into and forms part of the Exercise Form and the undersigned undertakes to immediately notify the Corporation of any change in any statement or other information relating to the undersigned set forth herein which takes place prior to the exercise of the Warrants.
*If the undersigned qualifies as an accredited investor based on joint net worth or joint income with the undersigned’s spouse, both the undersigned and the undersigned’s spouse must sign this Certification and provide the applicable requested documentation.
Dated: ________________________, 202___.
| Print name | |
|---|---|
| By: | |
| Signature | |
| Title | |
| (please print name of individual whose signature appears above, if different from name of Purchaser printed above) |
“B” - 2
TRANSFER FORM
ANY TRANSFER OF WARRANTS WILL REQUIRE COMPLIANCEWITH APPLICABLE SECURITIES LEGISLATION. TRANSFERORS AND TRANSFEREES ARE URGED TO CONTACT LEGAL COUNSEL BEFORE EFFECTING ANY SUCH TRANSFER.
| TO: | THE CANNABIST COMPANY HOLDINGS INC. (the “Corporation”) |
|---|---|
| AND TO: | ODYSSEY TRUST COMPANY |
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers to
_______(print name and address) the Warrants represented by this Warrants Certificate and hereby irrevocable constitutes and appoints ____________________ as its attorney with full power of substitution to transfer the said securities on the appropriate register of the Warrant Agent.
“B” - 3
| ¨ | If transfer is to a person in the United States, or to or for<br>the account or benefit of a U.S. Person, check this box. |
|---|
DATED this ____ day of_________________, 20____.
| SPACE FOR GUARANTEES OF | ) | |
|---|---|---|
| SIGNATURES (BELOW) | ) | |
| ) | ||
| ) | Signature of Transferor | |
| ) | ||
| ) | ||
| ) | ||
| ) | ||
| ) | ||
| ) | ||
| Guarantor’s Signature/Stamp | ) | Name of Transferor |
| ) |
CERTAIN REQUIREMENTS RELATING TO TRANSFERS – READ CAREFULLY
The signature(s) of the transferor(s) must correspond with the name(s) as written upon the face of this certificate(s), in every particular, without alteration or enlargement, or any change whatsoever. The signature(s) on this form must be guaranteed in accordance with the transfer agent’s then current guidelines and requirements at the time of transfer. Notarized or witnessed signatures are not acceptable as guaranteed signatures. As at the time of closing, you may choose one of the following methods (although subject to change in accordance with industry practice and standards):
| · | Canada and the USA: A<br>Medallion Signature Guarantee obtained from a member of an acceptable Medallion Signature Guarantee Program (STAMP, SEMP, NYSE MSP). Many<br>commercial banks, savings banks, credit unions, and all broker dealers participate in a Medallion Signature Guarantee Program. The Guarantor<br>must affix a stamp bearing the actual words “Medallion Guaranteed”, with the correct prefix covering the face value<br>of the certificate. |
|---|---|
| · | Canada: A Signature Guarantee<br>obtained from the Guarantor must affix a stamp bearing the actual words “Signature Guaranteed”. Signature Guarantees<br>are not accepted from Treasury Branches, Credit Unions or Caisse Populaires unless they are members of a Medallion Signature Guarantee<br>Program. For corporate holders, corporate signing resolutions, including certificate of incumbency, are also required to accompany the<br>transfer, unless there is a “Signature & Authority to Sign Guarantee” Stamp affixed to the transfer (as opposed to<br>a “Signature Guarantee” Stamp) obtained from an authorized officer of a major Canadian Schedule 1 chartered bank. |
| --- | --- |
| · | Outside North America: For holders located outside North America, present the certificates(s) and/or<br>document(s) that require a guarantee to a local financial institution that has a corresponding Canadian or American affiliate which<br>is a member of an acceptable Medallion Signature Guarantee Program. The corresponding affiliate will arrange for the signature to be over-guaranteed. |
| --- | --- |
“B” - 4