8-K
MARIMED INC. (MRMD)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 24, 2026
MARIMED INC.
(Exact name of registrant as specified in its charter)
| Delaware | 0-54433 | 27-4672745 |
|---|---|---|
| (State or other jurisdiction<br>of incorporation) | (Commission<br>File Number) | (IRS Employer<br>Identification No.) |
10 Oceana Way
Norwood, MA 02062
(Address of Principal Executive Offices)
Registrant’s telephone number, including area code: (781) 277-0007
| (Former Name or Former Address, if Changed 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 (see General Instruction A.2. below):
| ☐ | 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.
| Title of each class | Ticker symbol(s) | Name of each exchange on which registered |
|---|---|---|
| Not Applicable. | Not Applicable. | Not Applicable. |
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 provided pursuant to Section 13(a) of the Exchange Act. o
Item 1.01 Entry into a Material Definitive Agreement.
Background
In November 2018, Navy Capital Green International, Ltd. and its affiliates (collectively, “Navy”) purchased 4,908,333 shares of MariMed Inc. (the “Company”) common stock (“Common Stock”) in a private placement financing for $3.00 per share, or aggregate consideration of $14,725,000.
On February 27, 2020, the Company and Navy entered into an Exchange Agreement (the “Exchange Agreement”) pursuant to which Navy loaned the Company an aggregate of $4,417,500 and, in consideration for the loan, the Company issued promissory notes, due August 27, 2021, in the aggregate principal amount of $4,417,500 to Navy (the “Notes”) and exchanged the 4,903,333 shares of Common Stock previously acquired by Navy in November 2018 for an equal number of newly designated Series B Convertible Preferred Shares (the “Series B Preferred Stock”). The Notes were fully paid in March 2021.
On the day following the six-year anniversary of the 2020 issuance of the Series B Preferred Stock (February 28, 2026), pursuant to the mandatory conversion provisions of the Series B Preferred Stock, all outstanding shares of Series B Preferred Stock would have automatically converted into 4,908,333 shares of Common Stock and the Company would have been obligated to pay the holders of the Series B Preferred Stock (the “Series B Holders”) an amount equal to the difference between the sixty-day VWAP (approximately $0.1018) and $3.00 per share, or approximately $14.2 million (the “Series B Obligation”).
The Restructuring Transaction
On February 24, 2026, the Company and Navy entered into a Restructuring and Exchange Agreement (the “Restructuring and Exchange Agreement”) to address and restructure the Series B Obligation (the “Loan Restructuring Transaction”).
Pursuant to the Restructuring and Exchange Agreement, the then outstanding shares of Series B Preferred Stock were cancelled, and the Series B Obligation was extinguished. In exchange therefor, the Company issued to Navy (i) two new promissory notes in the aggregate principal amount of $8,000,000, one in the principal amount of $2,000,000, due March 1, 2028, accruing interest at a rate of 8.0% per annum (“Note #1”) and the other in the principal amount of $6,000,000, due March 1, 2031, accruing interest at a rate of 10.0% per annum (subject to reduction to 8% if Note #1 is paid in full within six (6) months of February 24, 2026) (“Note #2” collectively with Note #1, the “New Notes”), and (ii) 26,900,000 shares of an amended and restated class of the Company’s Series B Convertible Preferred Stock (the “New Series B Preferred Stock”), having an aggregate liquidation preference of $6,725,000 ($0.25 per share), and the rights, preferences and privileges set forth in the Second Amended and Restated Certificate of Designation filed with the Secretary of State of the State of Delaware on February 26, 2026 (the “Amended Certificate of Designation”). The New Notes are guaranteed by certain subsidiaries of the Company pursuant to a Subsidiary Guaranty, dated as of February 24, 2026 (the “Subsidiary Guaranty”).
The New Series B Preferred Stock is non-voting. However, the affirmative vote or consent of the holders of the New Series B Preferred Stock (the "New Series B Holders") voting separately as a class is required for certain acts taken by the Company, including the amendment or repeal of certain charter provisions, liquidation or winding up of the Company, creation of stock senior to the New Series B Preferred Stock, and/or other acts as defined in the Amended Certificate of Designation. The New Series B Preferred Stock shall, with respect to dividend rights and rights on liquidation, winding up and dissolution, rank senior to the Common Stock. The Company shall not declare, pay, or set aside any dividends on shares of any other class or series of capital stock of the Company unless the New Series B Holders shall first receive, or simultaneously receive, a dividend on each outstanding share of New Series B Preferred Stock in an amount calculated pursuant to the Amended Certificate of Designation.
In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, the New Series B Holders shall be entitled to be paid out of the assets of the Company available for distribution to its stockholders before any payment shall be made to the holders of Common Stock by reason of their ownership thereof, an amount per share equal to $0.25, plus any dividends declared but unpaid thereon, with any remaining assets distributed on a prorated basis among the New Series B Holders and the holders of Common Stock, based on the number of shares held by each such holder, treating for this purpose all such securities as if they had been converted to Common Stock.
At any time on or prior to the five-year anniversary of the original issuance date of the New Series B Preferred Stock, (i) the New Series B Holders have the option to convert their shares of New Series B Preferred Stock into shares of Common Stock on a one-for-one basis, without the payment of additional consideration, and (ii) the Company has the option to convert all, but not less than all, of the shares of New Series B Preferred Stock into Common Stock, on a one-for-one basis, if the daily volume weighted average price of common stock (the “VWAP”) exceeds $2.00 per share for at least twenty consecutive trading days prior to the date on which the Company gives notice of such conversion to the New Series B Holders and the average daily volume of shares traded is at least 400,000 shares.
On February 25, 2031, the day following the five-year anniversary of the original issuance date of the New Series B Preferred Stock, all outstanding shares of New Series B Preferred Stock shall automatically convert into Common Stock as follows:
If the sixty-day VWAP is less than or equal to $0.25 per share, the Company shall have the option to:
•convert all shares of New Series B Preferred Stock into shares of the Common Stock at a conversion ratio of 1:1 (26,900,000 shares), subject to adjustment upon the occurrence of certain events, and pay cash to the New Series B Holders equal to the difference between the sixty-day VWAP and $0.25 per share; or
•pay cash to the New Series B Holders equal to $0.25 per share ($6,725,000).
If the sixty-day VWAP is greater than $0.25 per share, the Company shall have the option to:
•convert all shares of New Series B Preferred Stock into shares of Common Stock at a conversion price per share equal to $0.25 per share divided by the sixty-day VWAP;
•pay cash to the New Series B Holders equal to $0.25 per share ($6,725,000); or
•convert a number of shares of New Series B Preferred Stock, such number at the Company's sole discretion, into shares of Common Stock valued at the sixty-day VWAP (the "Conversion Value") and pay cash to the New Series B Holders equal to the difference between $6,725,000 and the Conversion Value (shares issued multiplied by the sixty-day VWAP).
The Company shall at all times when New Series B Preferred Stock is outstanding, reserve and keep available such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of New Series B Preferred Stock.
The foregoing description of the Loan Restructuring Transaction does not purport to be complete and is qualified in its entirety by reference to the full text of the Restructuring and Exchange Agreement, the New Notes, the Subsidiary Guaranty and the Amended Certificate of Designation, which are attached hereto as Exhibits 10.1, 4.1 and 4.2, 10.2, and 3.1 respectively, and are incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Company.
The information regarding the New Notes set forth in Item 1.01 above is incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities
On February 24, 2026, in connection with the Loan Restructuring Transaction described in Item 1.01 above, the Company issued 26,900,000 shares of New Series B Preferred Stock to Navy. The information regarding the conversion of the New Series B Preferred Stock into shares of Common Stock as set forth in Item 1.01 above is incorporated herein by reference.
The issuance of the New Series B Preferred Stock was made in reliance upon the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended, and Regulation D promulgated thereunder, as a transaction not involving a public offering.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
On February 26, 2026, in connection with the Loan Restructuring Transaction, the Company filed a Second Amended and Restated Certificate of Designation to designate the rights and preferences of the New Series B Preferred Stock with the Secretary of State of Delaware. The Second Amended and Restated Certificate of Designation became effective upon filing.
A copy of the Second Amended and Restated Certificate of Designation is attached hereto as Exhibit 3.1.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
**********
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| MARIMED INC. | ||
|---|---|---|
| Dated: March 2, 2026 | ||
| By: | /s/ Mario Pinho | |
| Mario Pinho | ||
| Chief Financial Officer |
ex-31secondamendmenttoco
ex41promissorynote1
Execution Version THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER SAID ACT, OR AN OPINION OF COUNSEL, IN FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT PROMISSORY NOTE #1 $2,000,000.00 New York, New York February 24, 2026 FOR VALUE RECEIVED, the undersigned, MARIMED INC., a Delaware corporation (the “Issuer”), hereby promises to pay to Navy Capital Green Fund, LP, Navy Capital Green Co-Invest Fund, LLC and Navy Capital Green Holdings II, LLC (each, a “Holder” and collectively, the “Holders”), or their registered assigns, on the Maturity Date (as hereinafter defined) (or earlier as hereinafter provided) the principal sum of Two Million Dollars ($2,000,000), as set forth on Schedule I hereto, plus interest on the unpaid principal amount of this Note from time to time as provided herein. For the purposes of this Promissory Note (this “Note”), the term “Maturity Date” shall mean March 1, 2028. Concurrently herewith, the Issuer is also entering into: (1) the Promissory Note 2 dated as of February 24, 2026 (the “Signing Date”), in the original principal amount of Six Million Dollars ($6,000,000) (“Note 2”); and (2) the Restructuring and Exchange Agreement dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Restructuring Agreement”). Additionally, certain subsidiaries and affiliates of the Issuer are guarantying the Issuer’s obligations hereunder and are entering into that certain Subsidiary Guaranty dated as of even date herewith (the “Guaranty”). 1. The Loan. As set forth in the Restructuring Agreement, and subject to the terms and conditions thereof, Issuer has requested, and Navy has agreed, that Navy shall be deemed to have extended loans to Issuer in an aggregate principal amount of Eight Million Dollars ($8,000,000), consisting of Two Million Dollars ($2,000,000) pursuant to this Note, and Six Million Dollars ($6,000,000) pursuant to Note 2. Capitalized terms used but not defined herein have the meanings assigned to them in the Restructuring Agreement. The obligations under this Note are guaranteed by each Guarantor party to the Guaranty. 2. Interest. (a) The Issuer shall pay interest on the outstanding principal amount of this Note at the rate of eight percent (8.0%) per annum, which shall be solely payable in cash from immediately available funds (the “Applicable Rate”). Interest shall accrue at the Applicable Rate on the outstanding principal amount of this Note from and including March 1, 2026 (the “Initial Payment Date”) until the principal and all
2 accrued interest are paid in full and shall be calculated on the basis of a 360-day year and the actual number of days elapsed. (b) Subject to applicable law, automatically while any Event of Default (as hereinafter defined) under Section 5(a)(i), Section 5(a)(ii), Section 5(a)(vi) or Section 5(a)(vii) exists, subject to any cure right, the principal amount of this Note shall bear interest, from the date of the occurrence of such Event of Default until such Event of Default is waived, payable on demand in immediately available funds, at a rate that is two percent (2.0%) per annum in excess of the Applicable Rate (the additional two percent (2.0%) per annum added to the Applicable Rate being referred to herein as the “Default Rate Margin”), which shall be payable solely in cash from immediately available funds. Any election made pursuant to the immediately preceding sentence may be made retroactive to the date of the occurrence of the applicable Event of Default. In the event that any interest rate provided for herein shall be determined to be in excess of the maximum rate permitted under applicable law, such interest rate shall be computed at the highest rate permitted by applicable law. Any payment by the Issuer of any interest amount in excess of that permitted by applicable law shall be considered a mistake, with the excess being applied to the principal of this Note without prepayment premium or penalty. 3. Payment of Principal and Interest; Amortization. (a) Commencing on the Initial Payment Date, and on the first day of each calendar month thereafter (or, if such day is not a Business Day, the immediately next succeeding Business Day) (each a “Payment Date”) until the Maturity Date (or earlier date that all amounts due hereunder are accelerated in accordance with Section 5(b) hereof), the Issuer shall make the following payments (in cash from immediately available funds) (i) monthly payments of principal sufficient to fully amortize the outstanding principal balance of this Note over an amortization period of five (5) years, and (ii) monthly payments of accrued interest at the Applicable Rate on the outstanding principal balance of this Note (including interest accrued on such Payment Date), payable in arrears. (b) Unless sooner paid, the Issuer shall pay the entire principal balance (including any remaining amortization) of this Note, together with all accrued interest thereon and any other amounts owing hereunder, in full on the Maturity Date (or earlier date that all amounts due hereunder are accelerated in accordance with Section 5(b) hereof). 4. Voluntary Prepayment/Prepayments on Acceleration. (a) Subject to the provisions of this Section 4, at any time following the Signing Date of this Note, the Issuer may, at any time and from time to time, prepay all or a portion of the then outstanding principal amount of this Note, accrued and unpaid interest thereon and all other amounts due hereunder in cash, without premium or penalty.
3 (b) The Issuer shall give written notice of voluntary prepayment of this Note or any portion thereof not less than five (5) Business Days (or such shorter period as agreed to by the Holders) prior to the date fixed for such prepayment; provided that such notice may be conditioned upon the incurrence of other loans or the effectiveness of other credit facilities, in each case that will prepay the Note in full. (c) All voluntary prepayments under this Section 4 shall include payment in cash of all accrued unpaid interest on the principal amount so prepaid and shall be applied first to payment of unpaid interest that has accrued at the Default Rate Margin, if any, then to payment of all other accrued and unpaid interest, and thereafter to principal. (d) All optional prepayments of the Note shall be in a minimum amount of One Hundred Thousand Dollars ($100,000) applied in inverse order of maturity. 5. Defaults and Remedies. (a) Events of Default. The occurrence of any of the following conditions and/or events, whether voluntary or involuntary, by operation of law or otherwise, shall constitute an “Event of Default”: (i) the Issuer shall fail to pay when due any principal, interest, premium, fee or other amount under any Transaction Document and in the case of any such amount other than principal, such failure continues for three (3) consecutive Business Days; (ii) the Issuer shall fail to observe or perform any covenant contained in the Restructuring Agreement, this Note or any other Transaction Document (other than occurrences described in other provisions of this Section 5(a) for which a different grace or cure period is specified or for which no grace or cure period is specified) and such failure is not remedied or waived within twenty (20) days; (iii) any representation, warranty, certification or statement made by the Issuer or any Subsidiary in any Transaction Document or in any certificate, financial statement or other document required to be delivered pursuant to any Transaction Document is incorrect in any material respect (without duplication of any materiality qualification contained therein) when made (or deemed made); (iv) the Issuer shall fail to pay when due or within any applicable grace period any principal, interest or other amount on debt or the occurrence of any breach, default, condition or event with respect to (A) any Note issued pursuant to the Restructuring Agreement or (B) any other debt if the effect of such failure or occurrence is to cause or to permit the holder or holders of any such debt to cause debt or other liabilities having an aggregate
4 principal amount in excess of Five Hundred Thousand Dollars ($500,000) to become or be declared immediately due and payable prior to its maturity; (v) the Issuer shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any action to authorize any of the foregoing; (vi) (A) an involuntary case or other proceeding shall be commenced against any Issuer seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of sixty (60) days; or (B) an order for relief shall be entered against the Issuer or any Subsidiary under the federal bankruptcy laws (or similar insolvency laws under jurisdictions outside of the United States) as now or hereafter in effect; (vii) (A) the institution of any steps by any Person to terminate a pension plan if as a result of such termination the Issuer could reasonably be expected to be required to make a contribution to such pension plan, or could reasonably be expected to incur a liability or obligation to such pension plan, in either case in excess of One Hundred Thousand Dollars ($100,000), (B) a contribution failure occurs with respect to any pension plan that would reasonably be expected to give rise to a lien in excess of One Hundred Thousand Dollars ($100,000) on the assets of the Issuer under Section 303 of ERISA or Section 430 of the Code, or (C) there shall occur any withdrawal or partial withdrawal from a multiemployer plan and the withdrawal liability is assessed against the Issuer in excess of One Hundred Thousand Dollars ($100,000); (viii) one or more judgments, orders, decrees or arbitration awards for the payment of money (to the extent of the amount not paid or fully covered by indemnity or insurance or as to which the relevant insurance company has denied coverage) aggregating in excess of Five Hundred Thousand Dollars ($500,000) shall be rendered against the Issuer and Subsidiaries and either (A) enforcement proceedings shall have been commenced by any creditor upon any such judgments or orders or (B) there shall be any period of sixty (60) consecutive days during which a stay of enforcement of any such
5 judgments, or orders, decrees or awards, by reason of a pending appeal, bond or otherwise, shall not be in effect; (ix) (A) the acquisition by any person, or two or more persons acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934), directly or indirectly, of thirty five percent (35%) or more of the outstanding shares of voting stock of the Issuer; or (B) the majority of the Board of the Issuer fails to consist of directors that were members of such board of directors on the date hereof; or (x) any of the Transaction Documents (or any material provision thereof) shall for any reason fail to constitute the valid and binding agreement of the Issuer (other than pursuant to the terms thereof), or the Issuer shall so assert in writing. (b) Acceleration. Upon the occurrence and during the continuance of an Event of Default, each Holder may, (i) by written notice to Issuer declare this Note to be immediately due and payable including accrued interest on and all other amounts payable under, this Note and the other Transaction Documents shall be and become immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived, to the extent permitted by law, by Issuer and Issuer will pay the same; provided that in the case of any of the Events of Default specified in subsections (vi) or (vii) of Section 5(a) above, without any notice to any Issuer or any other act by any Holder, this Note shall automatically become immediately due and payable including accrued interest on and all other amounts payable under, this Note and the other Transaction Documents, which such amounts shall be and become immediately due and payable without further demand, presentment, protest or notice of any kind, all of which are hereby waived, to the extent permitted by law, by Issuer and Issuer will pay the same. 6. Indemnification. Issuer shall pay, indemnify, defend, and hold each Holder, its affiliates, officers, directions, employees, attorneys, and agents (each, an “Indemnified Person”) harmless (to the fullest extent permitted by law) from and against any and all claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and all reasonable, documented fees and out-of-pocket expenses of attorneys, experts, brokers or consultants and all other costs and reasonable expenses actually incurred in connection therewith or in connection with the enforcement of this indemnification (as and when they are incurred and irrespective of whether suit is brought), at any time asserted against, imposed upon, or incurred by any of them (a) in connection with or as a result of or related to the execution and delivery incurred in advising, structuring, drafting, reviewing, administering, amending, waiving or otherwise modifying any Transaction Document, to the extent covered by the indemnification rights and obligations under this Section 6,
6 enforcement, performance, or administration (including any restructuring or workout with respect hereto) of this Note, any of the other Transaction Documents, or the transactions contemplated hereby or thereby or the monitoring of Issuer’s compliance with the terms of the Transaction Documents, (b) with respect to any investigation, litigation, or proceeding related to this Note, any other Transaction Document, or the use of the proceeds of the credit provided hereunder (irrespective of whether any Indemnified Person is a party thereto), or any act, omission, event, or circumstance in any manner related thereto (each and all of the foregoing, the “Indemnified Liabilities”). The foregoing to the contrary notwithstanding, Issuer shall not have any obligation to any Indemnified Person with respect to any Indemnified Liability that a court of competent jurisdiction determines pursuant to a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnified Person. This provision shall survive the termination of this Note. 7. Notices. All notices, requests, consents and other communications hereunder shall be in writing, shall be mailed by first-class registered or certified airmail, facsimile (with receipt confirmed by telephone) or nationally recognized overnight express courier postage prepaid, and shall be deemed given when so mailed and shall be delivered as addressed as follows: if to the Issuer, to: MariMed Inc. 10 Oceana Way Norwood, MA 02062 Attention: Jon Levine Telephone: (781) 559-8713 Email: jlevine@marimedadvisors.com with copies to: Kurzman Eisenberg Corbin & Lever, LLP One North Broadway, 12th Floor White Plains, NY 10601 Attention: Kenneth S. Rose Telephone: (914) 993-6051 Email: krose@kelaw.com or to such other person at such other place as the Issuer shall designate in writing; and if to Navy, to: c/o Navy Capital, LLC 747 Third Avenue 35th Floor New York, New York 10017 Attn: Chetan Gulati E-mail: chetan@chetangulati.com
7 with a copy to: Feuerstein Kulick LLP 420 Lexington Avenue, Suite 2024 New York, New York 10170 Attn: Samantha Gleit E-mail: samantha@dfmklaw.com or at such other address as may have been furnished to the Issuer in writing. 8. Suits for Enforcement. Upon the occurrence and during the continuation of any one or more Events of Default, the Holders may proceed to protect and enforce its rights hereunder by suit in equity, action at law or by other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in the Restructuring Agreement, this Note or any other Transaction Document or in aid of the exercise of any power granted in the Restructuring Agreement, this Note or any other Transaction Document, including but not limited to appointment of a receiver, or may proceed to enforce the payment of this Note, or to enforce any other legal or equitable right of the Holders of this Note. 9. Remedies Cumulative. No remedy herein conferred upon the Holders is intended to be exclusive of any other remedy and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. 10. Remedies Not Waived. No course of dealing between any Issuer and any Holder (or any other holder of Note 2) or any delay on the part of any Holder (or any other holder of Note 2) in exercising any rights hereunder shall operate as a waiver of any right. 11. Transfer; Registration. (a) The term “Holder” or “Holders” as used herein shall also include any registered transferee of this Note. Each transferee of this Note acknowledges that this Note has not been registered under the Securities Act, and each Holder agrees that, prior to any proposed transfer of this Note, if such transfer is not made pursuant to either an effective registration statement under the Securities Act or an opinion of counsel, reasonably satisfactory in form and substance to the Issuer, that this Note may be sold without registration under the Securities Act, the Holders will, if requested by the Issuer, deliver to the Issuer: (i) an agreement by such transferee to the impression of the restrictive investment legend first set forth above; and
8 (ii) an agreement by such transferee to be bound by the provisions of this Section 11 relating to the transfer of such Note. (b) This Note is a registered instrument. The Issuer shall maintain a register (the “Note Register”) in its principal offices for the purpose of registering the Note and any transfer thereof, which register shall reflect and identify, at all times, the ownership of any interest in the Note. Upon the issuance of this Note, the Issuer shall record the name of the initial purchaser of this Note in the Note Register as the first Holder. Upon surrender for registration of a transfer or exchange of this Note at the principal offices of the Issuer, the Issuer shall, at their expense, execute and deliver a new Note of like tenor and of a like aggregate principal amount, registered in the name of the Holder or a transferee or transferees. Every Note surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer duly executed by the Holder of such Note or such Holder’s attorney duly authorized in writing. The Issuer shall have no obligation hereunder to any Person other than a registered Holder of this Note. (c) This Note may be transferred or assigned by each Holder, in whole or in part, at any time. In the event that any Holder intends to transfer this Note to more than one transferee, the Issuer shall, in good faith, cooperate with such Holder to effectuate such a transfer and to issue replacement Notes in the appropriate denominations. 12. Replacement of Note. On receipt by the Issuer of an affidavit of an authorized representative of a Holder stating the circumstances of the loss, theft, destruction or mutilation of this Note (and in the case of any such mutilation, on surrender and cancellation of such Note), in form and substance reasonably acceptable to the Issuer, the Issuer, at such Holder’s expense, will promptly execute and deliver, in lieu thereof, a new Note of like tenor and amount. If required by the Issuer, such Holder must provide an agreement to indemnify the Issuer, which in the judgment of the Issuer, is sufficient to protect the Issuer from any loss that they may suffer if a lost, stolen or destroyed Note is replaced. 13. Covenants Bind Successors and Assigns. All the covenants, stipulations, promises and agreements in this Note shall inure to the benefit of and be binding upon the successors and permitted assigns of the Issuer. Subject to the provisions of Section 11 hereof, each Holder may assign any of its respective rights under this Note to any Person. No Issuer may assign any of its rights under this Note without the prior written consent of the Holders, any such purported assignment without such consent being null and void. No Person other than parties to the Transaction Documents and their successors and permitted assigns is intended to be a beneficiary of any of the Transaction Documents.
9 14. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OF SUCH STATE OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK. 15. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. THE ISSUER AND THE HOLDERS OF THIS NOTE HEREBY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS NOTE OR ANY AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY OR THE VALIDITY, PROTECTION, INTERPRETATION, OR ENFORCEMENT HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THIS NOTE, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE ISSUER AND THE HOLDERS OF THIS NOTE ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS TRANSACTION, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. THE ISSUER AND THE HOLDERS OF THIS NOTE FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH HAS KNOWINGLY AND VOLUNTARILY WAIVED ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THE TRANSACTION DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS NOTE. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. THE ISSUER AND THE HOLDERS OF THIS NOTE ALSO WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND THAT MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF EACH. THE ISSUER AND THE HOLDERS OF THIS NOTE HEREBY IRREVOCABLY AGREE THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE OR ANY AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND HEREBY EXPRESSLY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT SUCH COURTS ARE AN
10 INCONVENIENT FORUM. THE ISSUER AND THE HOLDERS OF THIS NOTE HEREBY IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING. 16. Headings. The headings in this Note are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. 17. Severability. If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the remaining provisions hereof. 18. Counterparts. This Note may be executed in two or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute but one instrument, and shall become effective when one or more counterparts have been signed by each party hereto and delivered to the other parties. The submission of a signature page transmitted by facsimile (or other electronic transmission, including pdf) shall be considered as an “original” signature page for purposes of this Note. 19. Entire Agreement. This Note, the attached Exhibits and Schedules, and the other agreements, documents and instruments contemplated hereby and referenced herein contain the entire understanding of the parties, and there are no further or other agreements or understanding, written or oral, in effect between the parties relating to the subject matter hereof. [Signature Page Follows]
SIGNATURE PAGE TO PROMISSORY NOTE IN WITNESS WHEREOF, each of the undersigned have caused this instrument to be duly executed. ISSUER: MARIMED INC. By: _______________________________________ Jon Levine, Chief Executive Officer Docusign Envelope ID: F7A0F98E-E39B-4983-9D77-628FE604FFBB
SIGNATURE PAGE TO PROMISSORY NOTE Schedule I Principal Commitment Amount Holder Commitment Amount Navy Capital Green Fund, LP $432,206 Navy Capital Green Co-Invest Fund, LLC $1,456,713 Navy Capital Green Holdings II, LLC $111,081 Total: $2,000,000
ex-42promissorynote2
Execution Version THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER SAID ACT, OR AN OPINION OF COUNSEL, IN FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT PROMISSORY NOTE #2 $6,000,000.00 New York, New York February 24, 2026 FOR VALUE RECEIVED, the undersigned, MARIMED INC., a Delaware corporation (the “Issuer”) hereby promises to pay to Navy Capital Green Fund, LP, Navy Capital Green Co-Invest Fund, LLC and Navy Capital Green Holdings II, LLC (each, a “Holder” and collectively, the “Holders”), or their registered assigns, on the Maturity Date (as hereinafter defined) (or earlier as hereinafter provided) the principal sum of Six Million Dollars ($6,000,000), as set forth on Schedule I hereto, plus interest on the unpaid principal amount of this Note from time to time as provided herein. For the purposes of this Promissory Note (this “Note”), the term “Maturity Date” shall mean March 1, 2031. Concurrently herewith, the Issuer is also entering into: (1) the Promissory Note 1 dated as of February 24, 2026 (the “Signing Date”), in the original principal amount of Two Million Dollars ($2,000,000) (“Note 1”); and (2) the Restructuring and Exchange Agreement dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Restructuring Agreement”). Additionally, certain subsidiaries and affiliates of the Issuer are guarantying the Issuer’s obligations hereunder and are entering into that certain Subsidiary Guaranty dated as of even date herewith (the “Guaranty”). 1. The Loan. As set forth in the Restructuring Agreement, and subject to the terms and conditions thereof, Issuer has requested, and Navy has agreed, that Navy shall be deemed to have extended loans to Issuer in an aggregate principal amount of Eight Million Dollars ($8,000,000), consisting of Six Million Dollars ($6,000,000) pursuant to this Note, and Two Million Dollars ($2,000,000) pursuant to Note 1. Capitalized terms used but not defined herein have the meanings assigned to them in the Restructuring Agreement. The obligations under this Note are guaranteed by each Guarantor party to the Guaranty. 2. Interest. (a) The Issuer shall pay interest on the outstanding principal amount of this Note at the rate of ten percent (10%) per annum, which shall be solely payable in cash from immediately available funds (the “Applicable Rate”); provided that in the event that Note 1 is paid in full within six (6) months of the Signing Date, commencing on the succeeding Payment Date (as defined below), the Applicable Rate shall be reduced to eight percent (8%) per annum from such date through and including the
2 Maturity Date. Interest shall accrue at the Applicable Rate on the outstanding principal amount of this Note from and including March 1, 2026 (the “Initial Payment Date”) until the principal and all accrued interest are paid in full and shall be calculated on the basis of a 360-day year and the actual number of days elapsed. (b) Subject to applicable law, automatically while any Event of Default (as hereinafter defined) under Section 5(a)(i), Section 5(a)(ii), Section 5(a)(vi) or Section 5(a)(vii) exists, subject to any cure right, the principal amount of this Note shall bear interest, from the date of the occurrence of such Event of Default until such Event of Default is waived, payable on demand in immediately available funds, at a rate that is two percent (2.0%) per annum in excess of the Applicable Rate (the additional two percent (2.0%) per annum added to the Applicable Rate being referred to herein as the “Default Rate Margin”), which shall be payable solely in cash from immediately available funds. Any election made pursuant to the immediately preceding sentence may be made retroactive to the date of the occurrence of the applicable Event of Default. In the event that any interest rate provided for herein shall be determined to be in excess of the maximum rate permitted under applicable law, such interest rate shall be computed at the highest rate permitted by applicable law. Any payment by the Issuer of any interest amount in excess of that permitted by applicable law shall be considered a mistake, with the excess being applied to the principal of this Note without prepayment premium or penalty. 3. Payment of Principal and Interest; Amortization. (a) Commencing on the Initial Payment Date, and on the first day of each calendar month thereafter (or, if such day is not a Business Day, the immediately next succeeding Business Day) (each a “Payment Date”) until the Maturity Date (or the earlier date that all amounts due hereunder are accelerated in accordance with Section 5(b) hereof), the Issuer shall make the following payments (in cash from immediately available funds) (i) monthly payments of principal sufficient to fully amortize the outstanding principal balance of this Note over an amortization period of ten (10) years, and (ii) monthly payments of accrued interest at the Applicable Rate on the outstanding principal balance of this Note (including interest accrued on such Payment Date), payable in arrears. (b) Unless sooner paid, the Issuer shall pay the entire principal balance (including any remaining amortization) of this Note, together with all accrued interest thereon and any other amounts owing hereunder, in full on the Maturity Date (or the earlier date that all amounts due hereunder are accelerated in accordance with Section 5(b) hereof). 4. Voluntary Prepayment/Prepayments on Acceleration. (a) Subject to the provisions of this Section 4, at any time following the Signing Date of this Note, the Issuer may, at any time and from time to time, prepay all or a portion of the then outstanding principal amount of this Note, accrued and unpaid
3 interest thereon and all other amounts due hereunder in cash, without premium or penalty. (b) The Issuer shall give written notice of voluntary prepayment of this Note or any portion thereof not less than five (5) Business Days (or such shorter period as agreed to by the Holders) prior to the date fixed for such prepayment; provided that such notice may be conditioned upon the incurrence of other loans or the effectiveness of other credit facilities, in each case that will prepay the Note in full. (c) All voluntary prepayments under this Section 4 shall include payment in cash of all accrued unpaid interest on the principal amount so prepaid and shall be applied first to payment of unpaid interest that has accrued at the Default Rate Margin, if any, then to payment of all other accrued and unpaid interest, and thereafter to principal. (d) All optional prepayments of the Note shall be in a minimum amount of One Hundred Thousand Dollars ($100,000) applied in inverse order of maturity. 5. Defaults and Remedies. (a) Events of Default. The occurrence of any of the following conditions and/or events, whether voluntary or involuntary, by operation of law or otherwise, shall constitute an “Event of Default”: (i) the Issuer shall fail to pay when due any principal, interest, premium, fee or other amount under any Transaction Document and in the case of any such amount other than principal, such failure continues for three (3) consecutive Business Days; (ii) the Issuer shall fail to observe or perform any covenant contained in the Restructuring Agreement, this Note or any other Transaction Document (other than occurrences described in other provisions of this Section 5(a) for which a different grace or cure period is specified or for which no grace or cure period is specified) and such failure is not remedied or waived within twenty (20) days; (iii) any representation, warranty, certification or statement made by the Issuer or any Subsidiary in any Transaction Document or in any certificate, financial statement or other document required to be delivered pursuant to any Transaction Document is incorrect in any material respect (without duplication of any materiality qualification contained therein) when made (or deemed made); (iv) the Issuer shall fail to pay when due or within any applicable grace period any principal, interest or other amount on debt or the occurrence of any breach, default, condition or event with respect to (A) any Note issued pursuant to the Restructuring Agreement or (B) any other debt if the effect
4 of such failure or occurrence is to cause or to permit the holder or holders of any such debt to cause debt or other liabilities having an aggregate principal amount in excess of Five Hundred Thousand Dollars ($500,000) to become or be declared immediately due and payable prior to its maturity; (v) the Issuer shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any action to authorize any of the foregoing; (vi) (A) an involuntary case or other proceeding shall be commenced against any Issuer seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of sixty (60) days; or (B) an order for relief shall be entered against the Issuer or any Subsidiary under the federal bankruptcy laws (or similar insolvency laws under jurisdictions outside of the United States) as now or hereafter in effect; (vii) (A) the institution of any steps by any Person to terminate a pension plan if as a result of such termination the Issuer could reasonably be expected to be required to make a contribution to such pension plan, or could reasonably be expected to incur a liability or obligation to such pension plan, in either case in excess of One Hundred Thousand Dollars ($100,000), (B) a contribution failure occurs with respect to any pension plan that would reasonably be expected to give rise to a lien in excess of One Hundred Thousand Dollars ($100,000) on the assets of the Issuer under Section 303 of ERISA or Section 430 of the Code, or (C) there shall occur any withdrawal or partial withdrawal from a multiemployer plan and the withdrawal liability is assessed against the Issuer in excess of One Hundred Thousand Dollars ($100,000); (viii) one or more judgments, orders, decrees or arbitration awards for the payment of money (to the extent of the amount not paid or fully covered by indemnity or insurance or as to which the relevant insurance company has denied coverage) aggregating in excess of Five Hundred Thousand Dollars ($500,000) shall be rendered against the Issuer and Subsidiaries and either (A) enforcement proceedings shall have been commenced by any creditor upon any such judgments or orders or (B) there shall be any period of sixty
5 (60) consecutive days during which a stay of enforcement of any such judgments, or orders, decrees or awards, by reason of a pending appeal, bond or otherwise, shall not be in effect; (ix) (A) the acquisition by any person, or two or more persons acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934), directly or indirectly, of thirty five percent (35%) or more of the outstanding shares of voting stock of the Issuer; or (B) the majority of the Board of the Issuer fails to consist of directors that were members of such board of directors on the date hereof; or (x) any of the Transaction Documents (or any material provision thereof) shall for any reason fail to constitute the valid and binding agreement of the Issuer (other than pursuant to the terms thereof), or the Issuer shall so assert in writing. (b) Acceleration. Upon the occurrence and during the continuance of an Event of Default, each Holder may, (i) by written notice to Issuer declare this Note to be immediately due and payable including accrued interest on and all other amounts payable under, this Note and the other Transaction Documents shall be and become immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived, to the extent permitted by law, by Issuer and Issuer will pay the same; provided that in the case of any of the Events of Default specified in subsections (vi) or (vii) of Section 5(a) above, without any notice to any Issuer or any other act by any Holder, this Note shall automatically become immediately due and payable including accrued interest on and all other amounts payable under, this Note and the other Transaction Documents, which such amounts shall be and become immediately due and payable without further demand, presentment, protest or notice of any kind, all of which are hereby waived, to the extent permitted by law, by Issuer and Issuer will pay the same. 6. Indemnification. Issuer shall pay, indemnify, defend, and hold each Holder, its affiliates, officers, directions, employees, attorneys, and agents (each, an “Indemnified Person”) harmless (to the fullest extent permitted by law) from and against any and all claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and all reasonable, documented fees and out-of-pocket expenses of attorneys, experts, brokers or consultants and all other costs and reasonable expenses actually incurred in connection therewith or in connection with the enforcement of this indemnification (as and when they are incurred and irrespective of whether suit is brought), at any time asserted against, imposed upon, or incurred by any of them (a) in connection with or as a result of or related to the execution and delivery incurred in advising, structuring, drafting, reviewing, administering, amending, waiving or otherwise modifying any Transaction Document, to
6 the extent covered by the indemnification rights and obligations under this Section 6, enforcement, performance, or administration (including any restructuring or workout with respect hereto) of this Note, any of the other Transaction Documents, or the transactions contemplated hereby or thereby or the monitoring of Issuer’s compliance with the terms of the Transaction Documents, (b) with respect to any investigation, litigation, or proceeding related to this Note, any other Transaction Document, or the use of the proceeds of the credit provided hereunder (irrespective of whether any Indemnified Person is a party thereto), or any act, omission, event, or circumstance in any manner related thereto (each and all of the foregoing, the “Indemnified Liabilities”). The foregoing to the contrary notwithstanding, Issuer shall not have any obligation to any Indemnified Person with respect to any Indemnified Liability that a court of competent jurisdiction determines pursuant to a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnified Person. This provision shall survive the termination of this Note. 7. Notices. All notices, requests, consents and other communications hereunder shall be in writing, shall be mailed by first-class registered or certified airmail, facsimile (with receipt confirmed by telephone) or nationally recognized overnight express courier postage prepaid, and shall be deemed given when so mailed and shall be delivered as addressed as follows: if to the Issuer, to: MariMed Inc. 10 Oceana Way Norwood, MA 02062 Attention: Jon Levine Telephone: (781) 559-8713 Email: jlevine@marimedadvisors.com with copies to: Kurzman Eisenberg Corbin & Lever, LLP One North Broadway, 12th Floor White Plains, NY 10601 Attention: Kenneth S. Rose Telephone: (914) 993-6051 Email: krose@kelaw.com or to such other person at such other place as the Issuer shall designate in writing; and
7 if to Navy, to: c/o Navy Capital, LLC 747 Third Avenue 35th Floor New York, New York 10017 Attn: Chetan Gulati E-mail: chetan@chetangulati.com with a copy to: Feuerstein Kulick LLP 420 Lexington Avenue, Suite 2024 New York, New York 10170 Attn: Samantha Gleit E-mail: samantha@dfmklaw.com or at such other address as may have been furnished to the Issuer in writing. 8. Suits for Enforcement. Upon the occurrence and during the continuation of any one or more Events of Default, the Holders may proceed to protect and enforce its rights hereunder by suit in equity, action at law or by other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in the Restructuring Agreement, this Note or any other Transaction Document or in aid of the exercise of any power granted in the Restructuring Agreement, this Note or any other Transaction Document, including but not limited to appointment of a receiver, or may proceed to enforce the payment of this Note, or to enforce any other legal or equitable right of the Holders of this Note. 9. Remedies Cumulative. No remedy herein conferred upon the Holders is intended to be exclusive of any other remedy and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. 10. Remedies Not Waived. No course of dealing between any Issuer and any Holder (or any other holder of Note 1) or any delay on the part of any Holder (or any other holder of Note 1) in exercising any rights hereunder shall operate as a waiver of any right. 11. Transfer; Registration. (a) The term “Holder” or “Holders” as used herein shall also include any registered transferee of this Note. Each transferee of this Note acknowledges that this Note has not been registered under the Securities Act, and each Holder agrees that, prior to any proposed transfer of this Note, if such transfer is not made pursuant to either
8 an effective registration statement under the Securities Act or an opinion of counsel, reasonably satisfactory in form and substance to the Issuer, that this Note may be sold without registration under the Securities Act, the Holders will, if requested by the Issuer, deliver to the Issuer: (i) an agreement by such transferee to the impression of the restrictive investment legend first set forth above; and (ii) an agreement by such transferee to be bound by the provisions of this Section 11 relating to the transfer of such Note. (b) This Note is a registered instrument. The Issuer shall maintain a register (the “Note Register”) in its principal offices for the purpose of registering the Note and any transfer thereof, which register shall reflect and identify, at all times, the ownership of any interest in the Note. Upon the issuance of this Note, the Issuer shall record the name of the initial purchaser of this Note in the Note Register as the first Holder. Upon surrender for registration of a transfer or exchange of this Note at the principal offices of the Issuer, the Issuer shall, at their expense, execute and deliver a new Note of like tenor and of a like aggregate principal amount, registered in the name of the Holder or a transferee or transferees. Every Note surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer duly executed by the Holder of such Note or such Holder’s attorney duly authorized in writing. The Issuer shall have no obligation hereunder to any Person other than a registered Holder of this Note. (c) This Note may be transferred or assigned by each Holder, in whole or in part, at any time. In the event that any Holder intends to transfer this Note to more than one transferee, the Issuer shall, in good faith, cooperate with such Holder to effectuate such a transfer and to issue replacement Notes in the appropriate denominations. 12. Replacement of Note. On receipt by the Issuer of an affidavit of an authorized representative of a Holder stating the circumstances of the loss, theft, destruction or mutilation of this Note (and in the case of any such mutilation, on surrender and cancellation of such Note), in form and substance reasonably acceptable to the Issuer, the Issuer, at such Holder’s expense, will promptly execute and deliver, in lieu thereof, a new Note of like tenor and amount. If required by the Issuer, such Holder must provide an agreement to indemnify the Issuer, which in the judgment of the Issuer, is sufficient to protect the Issuer from any loss that they may suffer if a lost, stolen or destroyed Note is replaced. 13. Covenants Bind Successors and Assigns. All the covenants, stipulations, promises and agreements in this Note shall inure to the benefit of and be binding upon the successors and permitted assigns of the Issuer. Subject to the provisions of Section 11 hereof, each Holder may assign any of its respective rights under this Note to any Person. No Issuer may assign any of its rights under this Note
9 without the prior written consent of the Holders, any such purported assignment without such consent being null and void. No Person other than parties to the Transaction Documents and their successors and permitted assigns is intended to be a beneficiary of any of the Transaction Documents. 14. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OF SUCH STATE OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK. 15. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. THE ISSUER AND THE HOLDERS OF THIS NOTE HEREBY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS NOTE OR ANY AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY OR THE VALIDITY, PROTECTION, INTERPRETATION, OR ENFORCEMENT HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THIS NOTE, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE ISSUER AND THE HOLDERS OF THIS NOTE ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS TRANSACTION, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. THE ISSUER AND THE HOLDERS OF THIS NOTE FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH HAS KNOWINGLY AND VOLUNTARILY WAIVED ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THE TRANSACTION DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS NOTE. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. THE ISSUER AND THE HOLDERS OF THIS NOTE ALSO WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND THAT MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF EACH. THE ISSUER AND THE HOLDERS OF THIS NOTE HEREBY IRREVOCABLY AGREE THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE OR ANY AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY MAY BE BROUGHT IN THE
10 COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND HEREBY EXPRESSLY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT SUCH COURTS ARE AN INCONVENIENT FORUM. THE ISSUER AND THE HOLDERS OF THIS NOTE HEREBY IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING. 16. Headings. The headings in this Note are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. 17. Severability. If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the remaining provisions hereof. 18. Counterparts. This Note may be executed in two or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute but one instrument, and shall become effective when one or more counterparts have been signed by each party hereto and delivered to the other parties. The submission of a signature page transmitted by facsimile (or other electronic transmission, including pdf) shall be considered as an “original” signature page for purposes of this Note. 19. Entire Agreement. This Note, the attached Exhibits and Schedules, and the other agreements, documents and instruments contemplated hereby and referenced herein contain the entire understanding of the parties, and there are no further or other agreements or understanding, written or oral, in effect between the parties relating to the subject matter hereof. [Signature Page Follows]
SIGNATURE PAGE TO PROMISSORY NOTE IN WITNESS WHEREOF, each of the undersigned have caused this instrument to be duly executed. ISSUER: MARIMED INC. By: _______________________________________ Jon Levine, Chief Executive Officer Docusign Envelope ID: F7A0F98E-E39B-4983-9D77-628FE604FFBB
Schedule I Principal Commitment Amount Holder Commitment Amount Navy Capital Green Fund, LP $1,296,619 Navy Capital Green Co-Invest Fund, LLC $4,370,139 Navy Capital Green Holdings II, LLC $333,242 Total: $6,000,000
Document
Exhibit 10.1
Execution Version
RESTRUCTURING AND EXCHANGE AGREEMENT
THIS RESTRUCTURING AND EXCHANGE AGREEMENT (this “Agreement”), dated as of February 24, 2026 (the “Effective Date”), is entered into by and among MariMed Inc., a Delaware corporation (the “Company”), and Navy Capital Green Management, LLC, a Delaware limited liability company, as discretionary investment manager of Navy Capital Green Fund, LP, Navy Capital Green Co-Invest Fund, LLC, and Navy Capital Green Holdings II, LLC (such funds, collectively, “Navy”).
RECITALS
WHEREAS, on February 27, 2020, the Company, Navy Capital Green Fund, LP and Navy Capital Green Co-Invest Fund, LLC entered into that certain Exchange Agreement (the “Exchange Agreement”) pursuant to which the Company issued Four Million Nine Hundred and Eight Thousand Three Hundred and Thirty-Three (4,908,333) shares of Series B Stock at Three Dollars ($3.00) per share, representing an aggregate value of Fourteen Million Seven Hundred Twenty-Five Thousand Dollars ($14,725,000) (the “Existing Shares”) to Navy. A portion of the Existing Shares was subsequently transferred by Navy Capital Green Fund, LP to Navy Capital Green Holdings II, LLC in 2024. The Existing Shares are convertible into common stock on a one-for-one basis at the option of Navy at any time on or prior to February 28, 2026;
WHEREAS, on February 27, 2020, the Company and Navy entered into (A) a Promissory Note in favor of Navy Capital Green Fund, LP in the principal amount of Three Million Seven Hundred Forty-Two Thousand Five Hundred Dollars ($3,742,500), and (B) a Promissory Note in favor of Navy Capital Green Co-Invest Fund, LLC in the principal amount of Six Hundred Seventy-Five Thousand Dollars ($675,000) (collectively, the “Existing Notes”);
WHEREAS, pursuant to the Exchange Agreement, on February 28, 2026, all of the Existing Shares will be subject to mandatory conversion provisions pursuant to which, if the sixty (60)-day VWAP exceeds Fifty Cents ($0.50) per share, the Company may convert the Existing Shares at a price equal to Three Dollars ($3.00) divided by the VWAP, redeem all Existing Shares at Three Dollars ($3.00) per share, or elect a combination of conversion and cash redemption such that the total value delivered equals Fourteen Million Seven Hundred Twenty-Five Thousand Dollars ($14,725,000) (the “Existing Obligations”). The Company has requested, and Navy has agreed to restructure the Existing Obligations pursuant to the terms set forth herein;
WHEREAS, in connection with such restructuring, the Company has requested, and Navy has agreed, that Navy shall be deemed to have extended a loan to the Company in an aggregate principal amount of Eight Million Dollars ($8,000,000) (the “Loan”), evidenced by: (1) the Promissory Note 1 dated as of the date hereof in the original principal amount of Two Million Dollars ($2,000,000) (“Note 1”) and (2) the Promissory Note 2 dated as of the date hereof in the original principal amount of Six Million Dollars ($6,000,000) (“Note 2”, together with Note 1, the “Notes”), each of which are guaranteed by certain affiliates of the Company as set forth in that certain Subsidiary Guaranty dated as of the date hereof (together with this Agreement, the Series B Certificate of Designation, the Notes, and all such other agreements, schedules, exhibits, certificates, and other documents contemplated hereby and thereby the
“Transaction Documents”). Note 1 is attached hereto as Exhibit A-1, and Note 2 is attached hereto as Exhibit A-2; and
WHEREAS, as additional consideration for the Loan, and pursuant to the terms and conditions of this Agreement, the Company has agreed to issue to Navy Twenty-Six Million Nine Hundred Thousand (26,900,000) shares of Series B Convertible Preferred Stock (the “Series B Preferred Stock”), having the rights, preferences and privileges set forth in the amended and restated certificate of designation to be filed with the Secretary of State of the State of Delaware in connection herewith (the “Series B Certificate of Designation”);
NOW, THEREFORE, in consideration of the mutual covenants and undertakings contained herein, and subject to and on the terms and conditions set forth herein, the parties hereto hereby agree as follows:
Section 1.Restructuring; Exchange; Issuance of Notes.
(a)As of the Effective Date, subject to the performance by the Company of its obligations set forth in Section 1(b) and satisfaction of the other conditions set forth herein, Navy hereby agrees to:
(i)Execute this Agreement and each other Transaction Document as applicable, in exchange for cancelling the Existing Notes; and
(ii)surrender, cancel, or cause to be cancelled all Existing Shares, free and clear of all liens other than restrictions arising under applicable securities laws.
(b)The Company hereby agrees to:
(i)upon execution and delivery of this Agreement, file an amended and restated Series B Certificate of Designation, substantially in the form attached hereto as Exhibit B, which shall amend and restate the certificate of designation filed by the Company on February 27, 2020;
(ii)upon confirmation that the Series B Certificate of Designation has been so filed, immediately issue and deliver to Navy stock certificates representing all of the Series B Preferred Stock, registered in the names set forth on Schedule 1 hereto and bearing the legend specified in Section 3(e);
(iii)on or prior to the Effective Date, deliver to Navy, in satisfactory form and substance, each of the following:
a)each duly executed Transaction Document;
b)a certificate from a responsible officer of the Company as to (A) the solvency of the Company and its Subsidiaries (after giving effect to the transactions contemplated by the Transaction Documents on a consolidated basis; and the (B) non-existence of any default or Event of Default (as such term is defined in the Notes) or Material Adverse Effect;
c)receipt of all third-party consents, if any, required to consummate the transactions contemplated hereby;
d)a legal opinion of counsel to the Company in substantially the form attached hereto as Exhibit C; and
e)true, complete and correct copies of such agreements, schedules, exhibits, certificates, and other documents, as they shall have been reasonably requested on or prior to the Effective Date in connection with or relating to the transactions contemplated hereby.
(iv)
(v)Within three (3) Business Days of the Effective Date, pay, by wire transfer of immediately available funds (or deduction from the purchase price of the Notes), all costs, expenses, fees and out-of-pocket expenses to date and required to be paid by the Company pursuant to Section 8 hereof.
(vi)
(c)The obligations of Navy to consummate the transactions contemplated herein and in the other Transaction Documents are subject to the satisfaction or waiver of the following conditions:
(i)Evidence in form and substance reasonably satisfactory to Navy that all conditions contemplated in Sections 1(a) and 1(b) have been satisfied;
(ii)confirmation of the availability of an exemption from registration under Regulation D and applicable state securities laws for the issuance of the Notes and the Series B Preferred Stock; and
(iii)no Governmental Entity shall have issued any order, injunction or other restraint prohibiting the consummation of the transactions contemplated hereby.
Section 2.The Company’s Representations and Warranties. The Company hereby represents and warrants to, and covenants with the Navy as follows:
(a)Organization and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company is qualified to do business as a foreign corporation in each jurisdiction in which such qualification is required, except where failure to be so qualified would not reasonably be expected to result in a Material Adverse Effect. Each Subsidiary (as defined below) is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation and is qualified to do business as a foreign entity in each jurisdiction in which such qualification is required, except where failure to be so qualified would not reasonably be expected to result in a Material Adverse Effect. For purposes of this Agreement, the term “Material Adverse Effect” means: (a) a material adverse effect on the condition (financial or otherwise), properties, assets (including intangible assets), business, operations or results of operations of the Company and the Subsidiaries, taken as a whole, or (b) a material adverse effect on the ability of the Company to perform its obligations under this Agreement. Schedule 2(a) sets forth each direct or indirect significant subsidiary of the Company (each a “Subsidiary” and collectively, the “Subsidiaries”).
(b)Authorized Capital Stock. As of the date hereof and prior to the consummation of the transactions contemplated hereby, the Company’s authorized capital stock is as set forth on Schedule 2(b). The issued and outstanding shares of the Company’s Common Stock have been duly authorized and validly issued, are fully paid and nonassessable, have been issued in compliance with all federal and state securities laws and were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities. The Company does not have outstanding any options to purchase, or any preemptive rights or other
rights to subscribe for or to purchase, any securities or obligations convertible into, or any agreements or commitments to issue or sell, shares of capital stock or other securities of the Company and there are no agreements or commitments obligating the Company to repurchase, redeem, or otherwise acquire capital stock or other securities of the Company. There are no agreements to which the Company is a party or by which it is bound with respect to the voting (including without limitation voting trusts or proxies), registration under the Securities Act of 1933, as amended (the “Securities Act”), or sale or transfer (including without limitation agreements relating to pre-emptive rights, rights of first refusal, rights of first offer, buy-sell rights, co-sale rights or “drag-along” rights) of any securities of the Company. Except as set forth in Schedule 2(a), with respect to each Subsidiary, (i) the Company owns 100% of each such Subsidiary’s capital stock or other equity securities, (ii) all the issued and outstanding shares of each such Subsidiary’s capital stock or other equity securities have been duly authorized and validly issued, are fully paid and nonassessable, have been issued in compliance with applicable federal and state securities laws, and were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities, (iii) there are no outstanding options to purchase, or any preemptive rights or other rights to subscribe for or to purchase, any securities or obligations convertible into, or any contracts or commitments to issue or sell, shares of any Subsidiary’s capital stock or other equity securities, and (iv) there are no agreements or commitments obligating any Subsidiary to repurchase, redeem, or otherwise acquire capital stock or other equity securities or other securities of the Company or any such Subsidiary. The Company does not directly or indirectly own, or have a right to acquire, any equity or similar interest in, or any interest convertible or exchangeable or exercisable for, any equity or similar interest in, any Person, other than the Subsidiaries. For purposes of this Agreement, the term “Person” shall mean any individual, partnership, company, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or agency or political subdivision thereof, or other entity.
(c)Issuance, Sale and Delivery of the Shares. When issued, delivered and paid for in accordance with the terms hereof, the Series B Preferred Stock will be duly authorized, validly issued, fully paid and nonassessable, shall have the rights, preferences and limitations set forth in the Series B Certificate of Designation and shall be free and clear of all liens, claims, encumbrances and restrictions, except as imposed by applicable securities laws. Upon the conversion of the Series B Preferred Stock pursuant to the terms of the Series B Certificate of Designation, the Conversion Shares will be validly issued, fully paid and nonassessable, and shall be free and clear of all liens, claims, encumbrances and restrictions except as imposed by applicable securities laws. No further approval or authorization of the Board of Directors of the Company (the “Board”) will be required for the issuance and sale of the Series B Preferred Stock to be sold by the Company pursuant to the terms hereof or for the issuance of the Conversion Shares upon the conversion of the Series B Preferred Stock pursuant to the terms of the Series B Certificate of Designation.
(d)Due Execution, Delivery and Performance of the Transaction Documents. The Company and each of its Subsidiaries that are party to the Transaction Documents have full legal right, corporate power and authority to authorize, execute and deliver each Transaction Document to which it is a party, and perform its obligations hereunder and thereunder and
consummate the transactions contemplated hereby and thereby. Each of the Company’s Subsidiaries has full legal right, corporate or other entity power and authority to authorize, execute and deliver the Subsidiary Guaranty and all such other Transaction Documents to which it is a party. The execution and delivery of the Transaction Documents, the performance of the Company and its Subsidiaries’ obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby have been duly authorized by the Company and its Subsidiaries. The execution and performance of the Transaction Documents by the Company and the Subsidiaries and the consummation of the transactions therein contemplated will not (i) violate any provision of the organizational documents of the Company or its Subsidiaries, (ii) result in the creation of any lien, pledge, hypothecation, charge, mortgage, security interest, encumbrance, restriction, adverse claim, interference or right of third party of any nature upon any material assets of the Company or its Subsidiaries pursuant to the terms or provisions of, conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under, any material agreement, commitment, undertaking, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument of any nature to which the Company or the Subsidiary is a party or by which the Company or its properties, or its Subsidiaries or its Subsidiaries’ properties, may be bound or affected, or (iii) violate any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental or quasi-governmental body applicable to the Company or its Subsidiaries or any of their respective properties. No consent, approval, authorization, order, filing with, or action by or in respect of any court, regulatory body, administrative agency or other governmental or quasi-governmental body is required for the execution and delivery of the Transaction Documents or the consummation of the transactions contemplated thereby, other than such as have been made or obtained and except for compliance with the Blue Sky laws and federal securities laws. Upon their execution and delivery, and assuming the valid execution thereof by Navy, the Transaction Documents will constitute valid and binding obligations of the Company and its Subsidiaries, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(e)No Stockholder Approval. The Company is not required to seek or obtain any approvals of its stockholders in connection with entering into the Transaction Documents and the consummation of the transactions contemplated thereby.
(f)Valid Offering; No Tender or Exchange Offer. Assuming the representations and warranties of Navy contained herein are true and complete, the offer, exchange, and issuance of the Series B Preferred Stock and the Notes is, and the issuance of the Conversion Shares will be, exempt from (i) the registration requirements of the Securities Act and will have been registered or qualified (or are exempt from registration and qualification) under the registration or qualification requirements of all applicable state securities Laws, and (ii) the reporting and other requirements of Section 14(d), Section 14(e) and Section 13(e) of the Exchange Act, and Rules
14D, 14E and 13e-4 promulgated thereunder. Neither the Company nor any Person acting on its behalf will knowingly take any action that would cause the loss of any such exemption.
(g)Litigation. There are no judicial, administrative, arbitral or mediation-related actions, suits, proceedings (public or private) or claims or proceedings by or before a Governmental Entity pending or, to the knowledge of the Company or its Subsidiaries, threatened that are reasonably likely to prohibit or restrain the ability of the Company or its Subsidiaries to enter into this Agreement or consummate the transactions contemplated hereby.
(h)No Disagreements with Accountants and Lawyers. There are no disagreements of any kind presently existing, or anticipated by the Company to arise, between the Company and any accountants and/or lawyers formerly or presently engaged by the Company. The Company is current with respect to fees owed to its accountants and, except for any past-due amounts that may be owed in the ordinary course of business, its lawyers.
(i)SEC Filings; Financial Statements.
(i)The Company has filed all forms, reports and documents required to be filed with the United States Securities and Exchange Commission (the “SEC”) since January 1, 2021, all of which are available to Navy on the website maintained by the SEC at http://www.sec.gov (the “SEC Website”). All such required forms, reports and documents (including those that the Company may file subsequent to the date hereof) are referred to herein collectively as the “Company SEC Reports”. In addition, all documents filed as exhibits to the Company SEC Reports are available on the SEC Website. All documents required to be filed as exhibits to the Company SEC Reports have been so filed. As of their respective filing dates, the Company SEC Reports (A) complied in all material respects with the requirements of the Securities Act or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports, and (B) did not at the time they were filed (or if amended or superseded by a subsequent filing prior to the date of this Agreement, then on the date of such subsequent filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company is engaged only in the business described in the Company SEC Reports and the Company SEC Reports contain a complete and accurate description in all material respects of the Company’s and the Subsidiaries’ business.
(ii)Each of the consolidated financial statements (including, in each case, any related notes thereto) contained in the Company SEC Reports (the “Company Financials”) (A) complied as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto as of their respective dates, (B) was prepared in accordance with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout the periods involved and consistent with each other (except as may be indicated in the notes thereto or, in the case of unaudited interim financial statements, as may be permitted by the SEC on Form 10-Q under the Exchange Act) and (C) fairly presented in all material respects the consolidated financial position of the Company and the subsidiaries as at the respective dates thereof and the consolidated results of operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are reasonably expected to be subject to normal and recurring year-end adjustments. There has been no material change in the Company’s
accounting policies except as described in the notes to the Company Financials. The balance sheet of the Company contained in the Company SEC Report for the quarter ended September 30, 2025, is hereinafter referred to as the “Company Balance Sheet.” Neither the Company, nor any Subsidiary, has incurred any obligations or liabilities (absolute, accrued, contingent or otherwise) of any nature required to be disclosed on a balance sheet or in the related notes to the consolidated financial statements prepared in accordance with GAAP which are, individually or in the aggregate, material to the business, operations, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, except liabilities (X) reflected on, reserved against, or disclosed in the notes to the Company Balance Sheet, or (Y) incurred since the date of the Company Balance Sheet in the ordinary course of business consistent with past practice.
(iii)The Company has heretofore made available to Navy complete and correct copies of any amendments or modifications, which have not yet been filed with the SEC but which are required to be filed, to agreements, documents or other instruments which previously had been filed by the Company with the SEC pursuant to the Securities Act or the Exchange Act.
(j)Absence of Certain Developments. Except as set forth on Schedule 2(j) or as expressly contemplated by this Agreement, since September 30, 2025 through the date hereof, (i) the Company has conducted business only in the ordinary course of its business, (ii) there has not been any Material Adverse Effect; (iii) the Company has not incurred any liabilities, obligations, claims or losses, contingent or otherwise, including debt obligations, other than in the ordinary course of business; (iv) other than pursuant to this Agreement, the Company has not declared or made any dividend or distribution of cash or property to its shareholders, purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock, or issued any equity securities other than with respect to transactions contemplated hereby; (v) the Company has not made any loan, advance or capital contribution to or investment in any Person or entity; (vi) the Company has not discharged or satisfied any lien or encumbrance or paid any obligation or liability (absolute or contingent), other than current liabilities paid in the ordinary course of business; (vii) the Company has not waived any rights of material value, whether or not in the ordinary course of business, or suffered the loss of any material amount of prospective business; and (viii) other than pursuant to this Agreement, the Company has not entered into any other transaction other than in the ordinary course of business, or entered into any other material transaction, whether or not in the ordinary course of business.
(k)Exchange Act Registration. The Company’s Common Stock is registered pursuant to Section 12(b) of the Exchange Act. The Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act. No order ceasing or suspending trading in any securities of the Company or prohibiting the issuance and/or sale of the Common Stock is in effect and no proceedings for such purpose are pending or threatened.
(l)No Integrated Offering. The Company does not have any registration statement pending before the SEC or currently under the SEC’s review.
Section 3.Navy’s Representations and Warranties. Navy hereby represents and warrants to, and covenants with, the Company, as follows:
(a)Investment Representations and Covenants. Navy: (i) is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in securities including the Series B Preferred Stock and the Notes it is receiving hereunder and the Common Stock to be issued upon conversion thereof (the “Conversion Shares”, and together with the Series B Preferred Stock, the “Transaction Shares”); (ii) is acquiring the Transaction Shares and the Notes in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Transaction Shares or the Notes or any arrangement or understanding with any other persons regarding the distribution of such Transaction Shares or the Notes within the meaning of Section 2(11) of the Securities Act; (iii) will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Transaction Shares or the Notes except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act. Navy understands that its acquisition of the Transaction Shares and the Notes has not been registered under the Securities Act or registered or qualified under any state securities laws in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of its investment intent as expressed herein.
(b)Authorization; Validity of Transaction Documents. Navy (i) has full right, power, authority and capacity to enter into the Transaction Documents to which it is a party and to consummate the transactions contemplated thereby and has taken all necessary action to authorize the execution, delivery and performance of the Transaction Documents to which it is a party, and (ii) upon the execution and delivery of the Transaction Documents to which it is a party, assuming the valid execution thereof by the Company, the Transaction Documents to which it is a party shall constitute valid and binding obligations of Navy enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(c)No Conflict. The execution, delivery and performance of the Transaction Documents and the consummation of the transactions contemplated thereby by Navy will not result in any violation of, be in conflict with or constitute a default under, any law, statute, regulation, ordinance, material contract or agreement, instrument, judgment, decree or order to which Navy is a party or by which it is bound, except as would not reasonably be expected to have a material adverse effect on the ability of Navy to consummate the transactions contemplated hereby.
(d)No Legal, Tax or Investment Advice. Navy understands that nothing in the Transaction Documents, the SEC Documents or any other materials presented to Navy in connection with the exchange for the Transaction Shares or the issuance of the Notes constitutes legal, tax or investment advice. Navy has consulted such legal, tax and investment advisors as it,
in its sole discretion, has deemed necessary or appropriate in connection with its exchange for the Transaction Shares and the issuance of the Notes. Navy acknowledges that it has not relied on any representation or warranty from the Company or any other Person in making its investment or decision to invest in the Company, except as expressly set forth in this Agreement.
(e)Restrictive Legend. Navy understands that, until such time as a registration statement covering the Transaction Shares has been declared effective or the Transaction Shares may be sold pursuant to Rule 144 under the Securities Act without any restriction as to the number of securities as of a particular date that can then be immediately sold, the Transaction Shares shall bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of the certificates for the Transaction Shares):
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER SAID ACT, OR AN OPINION OF COUNSEL, IN FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.”
Section 4.Covenants.
(a)General.
(i)At and from time to time after the Effective Date, at the reasonable request of any party hereto, the other parties shall execute and deliver such additional certificates, instruments, and other documents and take such other actions as may be reasonably necessary to carry out the purposes and intentions of this Agreement.
(ii)Each party hereto shall promptly inform the other party of any communication from any regulatory body, agency, court, tribunal or governmental or quasi-governmental entity, foreign or domestic (“Governmental Entity”) regarding any of the transactions contemplated by this Agreement. If any party or affiliate thereof receives a request for additional information or documentary material from any such Governmental Entity in respect of the transactions contemplated hereby, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, if such consultation is permitted, an appropriate response in compliance with such request.
(b)Supersession; Termination of Exchange Agreement. As of the Effective Date, the Exchange Agreement is hereby terminated and superseded in its entirety and shall be of no further force or effect, and all obligations thereunder shall be deemed fully satisfied and discharged, except for any provisions which, pursuant to Section 5 of the Exchange Agreement, shall survive termination.
(c)Loan Covenants. From the date hereof until the Maturity Date (as defined in the Notes), the Company shall, and shall cause each of its Subsidiaries to:
(i)Promptly pay when due, all of their respective obligations and liabilities hereunder and under all Transaction Documents;
(ii)Provide immediate notice to Navy upon the Company or such Subsidiary obtaining knowledge of the existence of any Event of Default or default (as defined in the Notes);
(iii)Promptly provide copies of all notices of the occurrence of a default, an Event of Default or other event described by terms of similar import under any other outstanding debt documents received by the Company or any of its Subsidiaries;
(iv)Promptly provide such other material information and data with respect to the operations, business affairs and financial condition of the Company or any Subsidiary as from time to time may be reasonably requested by Navy;
(v)Promptly and duly take, execute, acknowledge and deliver, at the Company’s expense, all such further acts, documents and assurances as may from time to time be necessary or desirable or as Navy may from time to time reasonably request in order to carry out the intent and purposes of the Transaction Documents and the transactions contemplated thereby;
(vi)Maintain its corporate existence and good standing under the laws of its jurisdiction of formation and qualify to do business in each jurisdiction where failure to do so would reasonably be expected to result in a Material Adverse Effect; and
(vii)Not take any action that would reasonably be expected to impair the validity or enforceability of this Agreement, the Notes, or the Series B Certificate of Designation.
(d)Confidentiality. Navy shall and shall cause its representatives to, keep confidential and not divulge any information provided to Navy pursuant to Section 4(c)(iii) and (iv); provided, that nothing herein shall prevent Navy from disclosing such information (a) upon the request or order of any Governmental Entity having jurisdiction over Navy, (b) to the extent compelled by legal process or required or requested pursuant to subpoena, interrogatories or other discovery requests, (c) to the extent necessary in connection with the exercise of any remedy under any of the Transaction Documents, or (d) to its representatives that, in Navy’s reasonable judgment need to know such information, provided, further, that in the case of clauses (a), (b) or (c), Navy shall notify the Company of the proposed disclosure as far in advance of such disclosure as practicable and use reasonable efforts to ensure that any such information so disclosed is accorded confidential treatment, when and if available. The foregoing restrictions shall not apply to any such information that (i) is or becomes generally available to the public other than as a result of a disclosure by Navy or any of its representatives in violation of this Agreement; (ii) is or becomes available to Navy or any of its representatives on a non-confidential basis prior to its disclosure to Navy or its representatives, (iii) is or has been independently developed or conceived by Navy without use of the Company’s information or (iv) becomes available to Navy or its representatives on a non-confidential basis from a source other than the Company or its representatives, which source is not known by Navy to be bound by a confidentiality agreement with Navy.
(e)Public Announcements. The Company and Navy will consult with each other and will mutually agree (the agreement of each party not to be unreasonably withheld) upon the content and timing of any press release or other public statement (including pursuant to Section
14 of the Exchange Act) in respect of the transactions contemplated hereby and shall not issue any such press release or make any such public statement prior to such consultation and agreement, except as may be required by applicable law.
(f)Reservation of Common Stock; Acknowledgment of Conversion Terms. Following the Effective Date, the Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of providing for the conversion of the Series B Preferred Stock, such number of shares of Common Stock as shall from time to time equal the number of shares sufficient to permit the full conversion of the Series B Preferred Stock issued pursuant to this Agreement in accordance with the terms of the Series B Certificate of Designation, free of preemptive rights or other similar rights. The Company acknowledges that the conversion, mandatory conversion, anti-dilution adjustments, and related mechanics applicable to the Series B Preferred Stock are governed exclusively by the Series B Certificate of Designation.
Section 5.Survival. The representations and warranties contained herein or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive until the eighteen (18) month anniversary of the Effective Date; provided that the representations and warranties in Sections 2(a), (b), (c), and (d) shall survive indefinitely or for the maximum period permitted by applicable law. The covenants and agreements contained herein or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Effective Date indefinitely or for the shorter period explicitly specified herein or therein. Notwithstanding the foregoing, any claim for indemnification based upon a breach of any representation, warranty, covenant, or agreement shall survive if written notice of such breach is given prior to the expiration of the applicable survival period.
Section 6.Broker’s Fee. Each of the parties hereto hereby represents to the other that, on the basis of any actions and agreements by it, there are no brokers or finders entitled to compensation in connection with the transactions contemplated hereby.
Section 7.Assignment. All the covenants, stipulations, promises and agreements in this Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and Navy. Navy may assign any of its respective rights under this Agreement to any Person, subject to compliance with all applicable laws. Company may not assign any of its rights under this Agreement without the prior written consent of Navy, any such purported assignment without such consent being null and void. No Person other than parties to the Transaction Documents and their successors and permitted assigns is intended to be a beneficiary of any of the Transaction Documents.
Section 8.Expenses. Within three € Business Days after the Effective Date, the Company shall reimburse Navy for legal fees and expenses actually incurred on or prior to the date hereof in connection with the transactions contemplated hereby in an amount not to exceed $25,000.
Section 9.Notices. All notices, requests, consents and other communications hereunder shall be in writing, shall be mailed by first-class registered or certified airmail, facsimile (with receipt confirmed by telephone) or nationally recognized overnight express courier postage
prepaid, and shall be deemed given when so mailed and shall be delivered as addressed as follows:
(a)if to the Company, to:
MariMed Inc. 10 Oceana Way Norwood, MA 02062 Attention: Jon Levine Telephone: (781) 559-8713 Email: jlevine@marimedadvisors.com
with copies to:
Kurzman Eisenberg Corbin & Lever, LLP One North Broadway, 12th Floor White Plains, NY 10601 Attention: Kenneth S. Rose Telephone: (914) 993-6051 Email: krose@kelaw.com
or to such other person at such other place as the Company shall designate in writing; and
(b)if to Navy, to:
c/o Navy Capital, LLC 747 Third Avenue 35th Floor New York, New York 10017 Attn: Chetan Gulati. E-mail: chetan@chetangulati.com
with a copy to:
Feuerstein Kulick LLP 420 Lexington Avenue, Suite 2024 New York, New York 10170 Attn: Samantha Gleit E-mail: samantha@dfmklaw.com
or at such other address as may have been furnished to the Company in writing.
Section 10.Incorporation by Reference. The following sections of the Notes are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms: Section 6 (Indemnification), 14 (Governing Law), 15 (Waiver of Jury Trial; Consent to Jurisdiction), 16 (Headings), 17 (Severability), 18 (Counterparts), and 19 (Entire Agreement) are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.
Section 11.Changes. This Agreement may not be modified or amended except pursuant to an instrument in writing signed by each of the parties hereto.
Section 12.Interpretation.
(a)Each of the parties hereto acknowledges that this Agreement has been prepared jointly by the parties hereto, and shall not be strictly construed against any party. In this Agreement and in the Exhibits hereto, except to the extent that the context otherwise requires:
(b)the headings are for convenience of reference only and shall not affect the interpretation of this Agreement;
(c)defined terms include the plural as well as the singular and vice versa;
(d)words importing gender include all genders;
(e)a reference to any statute or statutory provision shall be construed as a reference to the same as it may have been or may from time to time be amended, extended, re-enacted or consolidated and to all statutory instruments or orders made under it;
(f)any reference to a “day” or a “business day” shall mean the whole of such day, being the period of 24 hours running from midnight to midnight;
(g)references to Articles, Sections, subsections, clauses, Annexes and Exhibits are references to Articles, Sections, subsections and clauses of, and Annexes and Exhibits to, this Agreement;
(h)the words “including” and “include” and other words of similar import shall be deemed to be followed by the phrase “without limitation”; and
(i)unless otherwise specified, references to any party to this Agreement or any other document or agreement shall include its successors and permitted assigns.
[Signature Page Follows]
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date and year first above written by the undersigned, or a duly authorized officer or representative thereof, as the case may be.
MARIMED INC.
By: _/s/ Jon Levine_______________________ Name: Jon Levine Title: Chief Financial Officer
NAVY CAPITAL GREEN FUND, LP,
NAVY CAPITAL GREEN CO-INVEST FUND, LLC, and
NAVY CAPITAL GREEN HOLDINGS II, LLC
By: Navy Capital Green Management, LLC, as discretionary fund manager
By: _/s/ Chetan Gulati ________________ Name: Chetan Gulati Title:Managing Member
Signature Page to Restructuring and Exchange Agreement
SCHEDULE 1
NOTES AND SERIES B PREFERRED STOCK
| Navy Holder | Note 1 Principal Amount | Note 2 Principal Amount | Series B Preferred Stock |
|---|---|---|---|
| Navy Capital Green Fund, LP | $432,206 | $1,296,619 | 5,813,177 |
| Navy Capital Green Co-Invest Fund, LLC | $1,456,713 | $4,370,139 | 19,592,788 |
| Navy Capital Green Holdings II, LLC | $111,081 | $333,242 | 1,494,035 |
| Total | $2,000,000 | $6,000,000 | 26,900,000 |
SCHEDULE 2(a)
SUBSIDIARIES
| Name | Jurisdiction of Incorporation | Percentage Owned by MariMed |
|---|---|---|
| MariMed Advisors Inc. | Massachusetts | 100.0% |
| ARL Healthcare Inc. | Massachusetts | 100.0% |
| Hartwell Realty Holdings LLC | Massachusetts | 100.0% |
| Mari Holdings IL LLC | Massachusetts | 100.0% |
| Mari Holdings MD LLC | Massachusetts | 100.0% |
| Mari Holdings Metropolis LLC | Massachusetts | 70.0% |
| Mari Holdings Mt. Vernon LLC | Massachusetts | 100.0% |
| Mia Development LLC | Massachusetts | 94.3% |
| MMA Hemp LLC | Massachusetts | 100.0% |
| First State Compassion Center | Delaware | 100.0% |
| Allgreens Dispensary LLC | Illinois | 100.0% |
| Green Growth Group Inc. | Illinois | 100.0% |
| KPG of Anna LLC | Illinois | 100.0% |
| KPG of Harrisburg LLC | Illinois | 100.0% |
| Kind Therapeutics USA LLC | Maryland | 100.0% |
| MMMO LLC | Missouri | 100.0% |
| MariMed OH LLC | Ohio | 100.0% |
SCHEDULE 2(b)
CAPITALIZATION
The total authorized capital stock of the MariMed Inc. as of the date hereof is 750,000,000 shares comprised of:
1)700,000,000 shares of common stock, par value $0.001 per share, of which 397,425,998 are currently issued and outstanding; and
50,000,000 shares of preferred stock, par value $0.001 per share, of which 4,908,333 shares have been designated as Series B Convertible Preferred Stock and 4,908,333 shares Series B Convertible Preferred Stock are issued and outstanding.
SCHEDULE 2(j)
ABSENCE OF CERTAIN DEVELOPMENTS
None.
Document
Exhibit 10.2
Execution Version
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY (this “Guaranty”), dated as of February 24, 2026, (the “Effective Date”), is executed and delivered by the Guarantors listed on the signature pages hereof (collectively, jointly, and severally, the “Guarantors” and each, individually, a “Guarantor”), in favor of Navy Capital Green Fund, LP, Navy Capital Green Co-Invest Fund, LLC, and Navy Capital Green Holdings II, LLC, together with their successors and assigns, (each , a “Holder” and collectively, the “Holders”), in light of the following:
WHEREAS, MariMed Inc., a Delaware corporation, (the “Issuer”), Holders, and certain other parties are concurrently entering into: (1) the Promissory Note 1 dated as of the date hereof in the original principal amount of Two Million Dollars ($2,000,000) (“Note 1”); (2) the Promissory Note 2 dated as of the date hereof in the original principal amount of Six Million Dollars ($6,000,000) (“Note 2”, together with Note 1, the “Notes”)); and (3) the Restructuring and Exchange Agreement dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Restructuring Agreement”). Note 1 is attached hereto as Exhibit A-1, and Note 2 is attached hereto as Exhibit A-2;
WHEREAS, in order to induce Holders to enter into the Notes and the other Transaction Documents and extend the financial accommodations to the Issuer pursuant to the Transaction Documents, and in consideration thereof, and in consideration of any notes or other financial accommodations heretofore or hereafter extended by the Holders to the Issuer pursuant to the Transaction Documents, each Guarantor has agreed to guarantee the Obligations (as defined below) under the Notes and the other Transaction Documents; and
WHEREAS, each Guarantor is a subsidiary or affiliate of the Issuer and, in consideration of the direct and indirect financial and other support and benefits that the Issuer has provided, and such direct and indirect financial and other support and benefits as the Issuer may in the future provide, to the Guarantors, and in consideration of the increased ability of each Guarantor to receive funds through contributions to capital, and for each Guarantor to receive funds through intercompany advances or otherwise, from funds provided to the Issuer pursuant to the Notes and the flexibility provided by the Notes for each Guarantor to do so, which significantly facilitates the business operations of the Issuer and each Guarantor, each of the Guarantors is willing to guarantee the Obligations pursuant to the terms and conditions set forth in this Guaranty.
NOW, THEREFORE, in consideration of the foregoing, each Guarantor hereby agrees as follows:
1.Definitions and Construction.
(a)Definitions. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Notes. The following terms, as used in this Guaranty, shall have the following meanings:
Execution Version
“Bankruptcy Code” means Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) or any successor statute.
“Foreclosed Guarantor” has meaning set forth in Section 6(a)(ii).
“Guaranteed Obligations” means all of the Obligations now or hereafter existing, whether for principal, interest (including any interest that accrues after the commencement of an insolvency proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such insolvency proceeding), premiums, including any prepayment premium, extension fees, liabilities, obligations (including indemnification obligations), any other fees, charges, costs, expenses (including any fees or expenses that accrue after the commencement of an insolvency proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such insolvency proceeding), or otherwise, and any and all expenses (including reasonable and documented out-of-pocket counsel fees and expenses) incurred by any Holder in enforcing any rights under this Guaranty. Without limiting the generality of the foregoing, Guaranteed Obligations shall include all amounts that constitute part of the Guaranteed Obligations and would be owed by the Issuer to any Holder, but for the fact that they are unenforceable or not allowable, including due to the existence of a bankruptcy, reorganization, other insolvency proceeding or similar proceeding involving the Issuer or any other Guarantor.
“Indemnified Liabilities” has the meaning set forth in Section 15.
“Indemnified Person” has the meaning set forth in Section 15.
“Insolvency Event” means if all or any part of the assets of any Obligor, or the proceeds thereof, are subject to any distribution, division or application to the creditors of such Obligor, whether partial or complete, voluntary or involuntary, and whether by reason of liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of creditors or any other action or proceeding, or if the business of any such Obligor is dissolved or if substantially all of the assets of any such Obligor are sold.
“Intercompany Indebtedness” means any payment or distribution of any kind or character, either in cash, securities or other property, which shall be payable or deliverable upon or with respect to any indebtedness of any Obligor to any Guarantor.
“Obligations” means the Notes and all other advances, debts liabilities, obligations, covenants and duties owing, arising, due or payable from Issuer to Holders of any kind or nature, existing or future, arising under or issued pursuant to the Notes, and whether direct or indirect (including those acquired by assignment), absolute or contingent, primary or secondary, due or to become due, existing on or after the date hereof and however acquired or extended, and whether or not of the same kind or quality or that relate to the same transactions or series of transactions, and all amendments, renewals, restatements, replacements, consolidations or other modifications of the foregoing from time to time. The term includes all principal, interest, fees, expenses and any other amounts chargeable to Issuer under the Notes.
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“Obligor” means the Issuer and each Guarantor, including the Guarantor asserting a claim.
“Record” means information that is inscribed on a tangible medium or which is stored in an electronic or other medium and is retrievable in perceivable form.
“Transaction Documents” means collectively this Guaranty, the Restructuring Agreement, the Series B Certificate of Designation, the Notes, and all such other agreements, schedules, exhibits, certificates, and other documents contemplated hereby and thereby.
“Voidable Transfer” means any incurrence or payment of the Guaranteed Obligations, any obligation of a Guarantor under this Guaranty, or any transfer by any Guarantor to the Holders of any property of such Guarantor, in each case that is subsequently declared to be void or voidable under any state or federal law relating to creditors’ rights, including provisions of the Bankruptcy Code relating to fraudulent conveyances, preferences, or other voidable or recoverable payments of money or transfers of property (including pursuant to any settlement entered into by any Holder in its discretion).
(b)Construction. Unless the context of this Guaranty clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and other similar terms in this Guaranty refer to this Guaranty as a whole and not to any particular provision of this Guaranty. Section, subsection, clause, schedule, and exhibit references herein are to this Guaranty unless otherwise specified. Any reference in this Guaranty to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein). The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts, and contract rights. This Guaranty has been reviewed by all parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of each Guarantor and Holders. Any reference herein to the satisfaction, repayment, or payment in full of the Guaranteed Obligations shall mean the repayment in full in cash or immediately available funds of all of the Guaranteed Obligations other than contingent indemnification obligations which are not yet due and payable. Any reference herein to any person shall be construed to include such person’s successors and assigns. Any requirement of a writing contained herein shall be satisfied by the transmission of a Record. The captions and headings are for convenience of reference only and shall not affect the construction of this Guaranty.
2.Obligations. Each Guarantor hereby irrevocably and unconditionally guaranties to Holders, for the benefit of the Holders, as and for its own debt, until the final payment in full thereof, in cash, has been made, (a) the due and punctual payment of the Guaranteed Obligations, when and as the same shall become due and payable, whether at maturity, pursuant to a mandatory prepayment requirement, by acceleration, or otherwise and after the expiration of any applicable grace and notice period under the Notes; it being the intent of each Guarantor that the
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guaranty set forth herein shall be a guaranty of payment and not a guaranty of collection; and (b) the punctual and faithful performance, keeping, observance, and fulfillment by the Issuer of all of the agreements, conditions, covenants, and obligations of the Issuer contained in the Notes. Each of the Guarantors hereby agrees that this Guaranty is an absolute, irrevocable and unconditional guaranty of payment and is not a guaranty of collection.
3.Continuing Guaranty; Discharge Only Upon Payment in Full. Each of the Guarantors’ obligations hereunder shall constitute a continuing and irrevocable guaranty of all Guaranteed Obligations now or hereafter existing and shall remain in full force and effect until all Guaranteed Obligations shall have been paid in full in cash (other than contingent indemnification obligations which are not yet due and payable), at which time, subject to all the foregoing conditions, the guaranties made hereunder shall automatically terminate. This Guaranty includes Guaranteed Obligations arising under successive transactions continuing, compromising, extending, increasing, modifying, releasing, or renewing the Guaranteed Obligations, changing the interest rate, payment terms, or other terms and conditions thereof. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guaranteed Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (a) no such revocation shall be effective until written notice thereof has been received by Holders, (b) no such revocation shall apply to any Guaranteed Obligations in existence on the date of receipt by Holders of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (c) no such revocation shall apply to any Guaranteed Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any Holder in existence on the date of such revocation, (d) no payment by any Guarantor, the Issuer, or from any other source, prior to the date Holders receive written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (e) any payment by the Issuer or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guaranteed Obligations as to which the revocation is effective and which are not, therefore, guaranteed hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder.
4.Performance Under this Guaranty. In the event that the Issuer fails to make any payment of any Guaranteed Obligations, on or prior to the due date thereof, or if the Issuer shall fail to perform, keep, observe, or fulfill any other obligation referred to in clause (b) of Section 2 of this Guaranty in the manner provided in the Notes, the Guarantors immediately shall cause, as applicable, such payment in respect of the Guaranteed Obligations to be made or such obligation to be performed, kept, observed, or fulfilled.
5.Primary Obligations.
(a)This Guaranty is a primary and original obligation of each Guarantor, is not merely the creation of a surety relationship, and is an absolute, unconditional, and continuing guaranty of payment and performance which shall remain in full force and effect without respect to future changes in conditions. Each Guarantor hereby agrees that it is directly, jointly and severally with any other Guarantor of the Guaranteed Obligations, liable to Holders, for the benefit of the Holders, that the obligations of each Guarantor hereunder are independent of the obligations of the Issuer or any other Guarantor, and that a separate action may be brought against each Guarantor, whether such action is brought against the Issuer or any other Guarantor or whether the Issuer or any other Guarantor is joined in such action. Each Guarantor hereby agrees that its liability hereunder shall be immediate and shall not be contingent upon the exercise or enforcement by any Holder of whatever remedies they may have against the Issuer or
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any other Guarantor. Each Guarantor hereby agrees that any release which may be given by a Holder to the Issuer or any other Guarantor shall not release or affect the obligations of such Guarantor hereunder. Each Guarantor consents and agrees that no Holder shall be under any obligation to marshal any property or assets of the Issuer or any other Guarantor in favor of such Guarantor, or against or in payment of any or all of the Guaranteed Obligations.
(b)Without limiting the generality of the foregoing clause (a), the obligations of each of the Guarantors hereunder shall not be released, discharged or otherwise affected by:
(i)any change in the corporate, partnership, limited liability company or other existence, structure or ownership of the Issuer or any other Guarantor of any of the Guaranteed Obligations, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Issuer or any other Guarantor of the Guaranteed Obligations, or any of their respective assets or any resulting release or discharge of any obligation of Issuer or any other Guarantor of any of the Guaranteed Obligations;
(ii)the existence of any claim, setoff or other rights which the Guarantors may have at any time against the Issuer, any other Guarantor of any of the Guaranteed Obligations, any Holder or any other person, whether in connection herewith or in connection with any unrelated transactions, provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;
(iii)the enforceability or validity of the Guaranteed Obligations or any part thereof under applicable law, or the genuineness, enforceability or validity of any agreement relating thereto, or any other invalidity or unenforceability relating to or against the Issuer or any other Guarantor of any of the Guaranteed Obligations (with the exception of any state or local laws, judgments or related decrees issued by any governmental authority relating to the cultivation, manufacture, development, distribution or sale of cannabis), for any reason related to the Notes, or any provision of applicable law purporting to prohibit the payment by the Issuer or any other Guarantor of the Guaranteed Obligations, of any of the Guaranteed Obligations or otherwise affecting any term of any of the Guaranteed Obligations;
(iv)the election by, or on behalf of, any one or more members of the Holders, in any proceeding instituted under, the Bankruptcy Code, or any other applicable federal, state, provincial, municipal, local or foreign law relating to such matters;
(v)any borrowing or grant of a security interest by the Issuer, as debtor-in- possession, under Section 364 of the Bankruptcy Code or any other applicable federal, state, provincial, municipal, local or foreign law relating to such matters;
(vi)the disallowance, under Section 502 of the Bankruptcy Code or any other applicable federal, state, provincial, municipal, local or foreign law relating to such matters, of all or any portion of the claims of the Holders for repayment of all or any part of the Guaranteed Obligations;
(vii)the failure of any other Guarantor to sign or become party to this Guaranty or any amendment, change, or reaffirmation hereof, solely to the extent such signature is required pursuant to the terms hereof or the Notes; or
(viii)any other act or omission to act or delay of any kind by the Issuer, any other Guarantor of the Guaranteed Obligations, any Holder or any other person or any other circumstance whatsoever which might, but for the provisions of this Section 5(b), constitute a
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legal or equitable discharge of any Guarantor’s obligations hereunder or otherwise reduce, release, prejudice or extinguish its liability under this Guaranty.
6.Waivers.
(a)To the fullest extent permitted by applicable law, each Guarantor hereby waives: (i) notice of acceptance hereof; (ii) notice of any loans or other financial accommodations made or extended under the Notes, or the creation or existence of any Guaranteed Obligations; (iii) notice of the amount of the Guaranteed Obligations, subject, however, to such Guarantor’s right to make inquiry of Holders to ascertain the amount of the Guaranteed Obligations at any reasonable time; (iv) notice of any adverse change in the financial condition of the Issuer or of any other fact that might increase such Guarantor’s risk hereunder; (v) notice of presentment for payment, intent to accelerate, acceleration, demand, protest, and notice thereof as to any instrument among the Notes; (vi) notice of any default or Event of Default under any of the Notes; and (vii) all other notices (except if such notice is specifically required to be given to such Guarantor under this Guaranty) and demands to which such Guarantor might otherwise be entitled.
(b)To the fullest extent permitted by applicable law, each Guarantor hereby waives the right by statute or otherwise to require any Holder to institute suit against the Issuer or any other Guarantor or to exhaust any rights and remedies which any Holder has or may have against the Issuer or any other Guarantor. In this regard, each Guarantor agrees that it is bound to the payment of each and all Guaranteed Obligations, whether now existing or hereafter arising, as fully as if the Guaranteed Obligations were directly owing to Holders or the Holders, as applicable, by such Guarantor. Each Guarantor further waives any defense arising by reason of any disability or other defense (other than the defense that the Guaranteed Obligations shall have been fully and finally performed and indefeasibly paid in full in cash, to the extent of any such payment) of the Issuer or by reason of the cessation from any cause whatsoever of the liability of the Issuer in respect thereof.
(i)To the fullest extent permitted by applicable law, each Guarantor hereby waives: (A) any right to assert against any Holder any defense (legal or equitable), set-off, counterclaim, or claim which each Guarantor may now or at any time hereafter have against the Issuer or any other party liable to any Holder (including but not limited to the appointment of a receiver, and the identity thereof); (B) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Guaranteed Obligations; (C) any right or defense arising by reason of any claim or defense based upon an election of remedies by any Holder, including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor against the Issuer or other Guarantors or sureties; (D) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement thereof, and any act which shall defer or delay the operation of any statute of limitations applicable to the Guaranteed Obligations shall similarly operate to defer or delay the operation of such statute of limitations applicable to such Guarantor’s liability hereunder and (E) any election by the Holders under the Bankruptcy Code to limit the amount of, or any collateral securing, its claim against the Guarantors.
(ii)No Guarantor will exercise any rights that it may now or hereafter acquire against any Guarantor or any other Guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under this Guaranty, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Holders or any other member of the Holders against any
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Guarantor or any other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any Guarantor or any other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash and all of the commitments have been terminated. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence, such amount shall be held in trust for the benefit of Holders, for the benefit of the Holders, and shall forthwith be paid to Holders to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Notes, or to be held as collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. Notwithstanding anything to the contrary contained in this Guaranty, no Guarantor may exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights against, and may not proceed or seek recourse against or with respect to any property or asset of, any other Guarantor (the “Foreclosed Guarantor”), including after payment in full of the Obligations, if all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the equity interests of such Foreclosed Guarantor whether pursuant to this Guaranty or otherwise.
(c)Each Guarantor waives any defense arising by reason of or deriving from (i) any claim or defense based upon an election of remedies by the Holders; or (ii) any election by the Holders under the Bankruptcy Code, to limit the amount of, or any collateral securing, its claim against the Guarantors.
7.Releases. Each Guarantor consents and agrees that, without notice to or by such Guarantor and without affecting or impairing the obligations of such Guarantor hereunder, any Holder may, by action or inaction, compromise or settle, shorten or extend the Maturity Date or any other period of duration or the time for the payment of the Obligations, or discharge the performance of the Obligations, or may refuse to enforce the Obligations, or otherwise elect not to enforce the Obligations, or may, by action or inaction, release all or any one or more parties to, any one or more of the terms and provisions of the Notes, or may grant other indulgences to the Issuer or any other Guarantor in respect thereof, or may amend or modify in any manner and at any time (or from time to time) any one or more of the Obligations or the Notes (including any increase or decrease in the principal amount of any Obligations or the interest, fees or other amounts that may accrue from time to time in respect thereof).
8.Subordination of Intercompany Indebtedness. Each Obligor agrees that any claims and all claims of such Obligor against any other Obligor hereunder with respect to any Intercompany Indebtedness, any endorser, obligor or any other Guarantor of all or any part of the Guaranteed Obligations, or against any of its properties, shall be subordinate and subject in right of payment to the prior payment, in full and in cash, of all Guaranteed Obligations; provided that, as long as no Event of Default has occurred and is continuing, such Guarantor may receive payments of principal and interest from any Obligor with respect to Intercompany Indebtedness. Notwithstanding any right of any Guarantor to ask, demand, sue for, take or receive any payment from any Obligor, all rights, liens and security interests of such Guarantor, whether now or hereafter arising and howsoever existing, in any assets of any other Obligor shall be and are subordinated to the rights of the Holders in those assets. No Guarantor shall have any right to possession of any such asset or to foreclose upon any such asset, whether by judicial action or otherwise, unless and until all of the Guaranteed Obligations shall have been fully paid and satisfied (in cash) and all financing arrangements pursuant to the Notes have been terminated. Any Insolvency Event and any Intercompany Indebtedness shall be paid or delivered directly to Holders for application on any of the Guaranteed Obligations, due or to become due, until such
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Guaranteed Obligations shall have first been fully paid and satisfied (in cash). Should any payment, distribution, security or instrument or proceeds thereof be received by the applicable Guarantor upon or with respect to the Intercompany Indebtedness after any Insolvency Event and prior to the satisfaction of all of the Guaranteed Obligations and the termination of all financing arrangements pursuant to the Notes among the Issuer and the Holders, such Guarantor shall receive and hold the same in trust, as trustee, for the benefit of the Holders and shall forthwith deliver the same to Holders, for the benefit of the Holders, in precisely the form received (except for the endorsement or assignment of the Guarantor where necessary), for application to any of the Guaranteed Obligations, due or not due, and, until so delivered, the same shall be held in trust by the Guarantor as the property of the Holders. If any such Guarantor fails to make any such endorsement or assignment to Holders, Holders or any of its officers or employees is irrevocably authorized to make the same. Each Guarantor agrees that until the Guaranteed Obligations have been paid in full (in cash) and satisfied and all financing arrangements pursuant to the Notes among the Issuer and the Holders have been terminated, no Guarantor will assign or transfer to any person (other than Holders) any claim any such Guarantor has or may have against any Obligor.
9.Limitation of Guaranty. Notwithstanding any other provision of this Guaranty, the amount guaranteed by each Guarantor hereunder shall be limited to the extent, if any, required so that its obligations hereunder shall not be subject to avoidance under Section 548 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law. In determining the limitations, if any, on the amount of any Guarantor’s obligations hereunder pursuant to the preceding sentence, it is the intention of the parties hereto that any rights of subrogation, indemnification or contribution which such Guarantor may have under this Guaranty, any other agreement or applicable law shall be taken into account.
10.Stay of Acceleration. If acceleration of the time for payment of any amount payable by the Issuer under the Notes is stayed upon the insolvency, bankruptcy or reorganization of the Issuer or any of the Issuer, all such amounts otherwise subject to acceleration under the terms of the Notes shall nonetheless be payable by each of the Guarantors hereunder forthwith on demand by Holders.
11.No Election. The Holders shall have the right to seek recourse against each Obligor to the fullest extent provided for herein and no election by any Holder to proceed in one form of action or proceeding, or against any party, or on any obligation, shall constitute a waiver of the any Holder’s right to proceed in any other form of action or proceeding or against other parties unless such Holder, has expressly waived such right in writing. Specifically, but without limiting the generality of the foregoing, no action or proceeding by the Holders under any document or instrument evidencing the Guaranteed Obligations shall serve to diminish the liability of any Obligor under this Guaranty except to the extent that the Holders finally and unconditionally shall have realized indefeasible payment in full of the Guaranteed Obligations by such action or proceeding.
12.Revival and Reinstatement. If the incurrence or payment of the Guaranteed Obligations or the obligations of such Guarantor under this Guaranty by such Guarantor or the transfer by any Guarantor to Holders of any property of such Guarantor should for any reason subsequently be declared a Voidable Transfer, and if the Holders are required to repay or restore, in whole or in part, any such Voidable Transfer, or elects to do so upon the reasonable advice of its counsel, then, as to any such Voidable Transfer, or the amount thereof that the Holders are required or elects to repay or restore, and as to all reasonable costs and expenses, and reasonable and documented out- of-pocket attorneys’ fees of the Holders related thereto, the liability of the
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Guarantors automatically shall be revived, reinstated, and restored and shall exist as though such Voidable Transfer had never been made.
13.Financial Condition. Each Guarantor represents and warrants to the Holders that it is currently informed of the financial condition of the Issuer, the other Guarantors and any and all endorsers and/or other Guarantors of all or any part of the Guaranteed Obligations, and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Guaranteed Obligations. Each Guarantor further represents and warrants to the Holders that it has read and understands the terms and conditions of the Notes. Each Guarantor hereby covenants that it will continue to keep itself informed of the Issuer’s financial condition, the financial condition of other Guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Guaranteed Obligations. Each Guarantor hereby agrees that none of the members of the Holders shall have any duty to advise such Guarantor of information known to any of them regarding such condition or any such circumstances. In the event any Holder, in its sole discretion, undertakes at any time or from time to time to provide any such information to a Guarantor, Holders shall be under no obligation (i) to undertake any investigation not a part of its regular business routine, (ii) to disclose any information which such Holder, pursuant to accepted or reasonable commercial finance or banking practices, wishes to maintain confidential or (iii) to update such information or make any other or future disclosures of such information or any other information to such Guarantor.
14.Payments; Application. All payments to be made hereunder by any Guarantor shall be made in dollars, in immediately available funds, and without deduction (except as otherwise required by applicable law) or offset and shall be applied to the Guaranteed Obligations in accordance with the terms of the Notes.
15.Indemnification. Each Guarantor party hereto shall pay, indemnify, defend, and hold each Holder, its affiliates, officers, directions, employees, attorneys, and agents (each, an “Indemnified Person”) harmless (to the fullest extent permitted by law) from and against any and all claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and all reasonable, documented fees and out-of-pocket expenses of attorneys, experts, brokers or consultants and all other costs and reasonable expenses actually incurred in connection therewith or in connection with the enforcement of this indemnification (as and when they are incurred and irrespective of whether suit is brought), at any time asserted against, imposed upon, or incurred by any of them (a) in connection with or as a result of or related to the execution and delivery incurred in advising, structuring, drafting, reviewing, administering, amending, waiving or otherwise modifying any Note, to the extent covered by the indemnification rights and obligations under this Section 15, enforcement, performance, or administration (including any restructuring or workout with respect hereto) of this Guaranty, the Notes, or the transactions contemplated hereby or thereby or the monitoring of Issuer’s compliance with the terms of the Notes, (b) with respect to any investigation, litigation, or proceeding related to this Guaranty, any of the Notes, or the use of the proceeds of the credit provided hereunder (irrespective of whether any Indemnified Person is a party thereto), or any act, omission, event, or circumstance in any manner related thereto (each and all of the foregoing, the “Indemnified Liabilities”). The foregoing to the contrary notwithstanding, Issuer shall not have any obligation to any Indemnified Person with respect to any Indemnified Liability that a court of competent jurisdiction determines pursuant to a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnified Person. This provision shall survive the termination of this Guaranty.
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16.Setoff. At any time after all or any part of the Guaranteed Obligations have become due and payable (by acceleration or otherwise), the Holders may, without notice to the Guarantors, set off and apply toward the payment of all or any part of the Guaranteed Obligations any and all deposits (general or special, time or demand, provisional or final and in whatever currency denominated at any time held) and other obligations at any time owing by any Holder or any of their affiliates to or for the credit or the account of any Guarantor against any of and all the Guaranteed Obligations, irrespective of whether or not such Holder shall have made any demand under this Guaranty and although such obligations may be unmatured. The rights of Each Holder under this Section 16 are in addition to other rights and remedies (including other rights of setoff) which such Holder may have.
17.Notices. All notices, requests, consents and other communications hereunder shall be in writing, shall be mailed by first-class registered or certified airmail, facsimile (with receipt confirmed by telephone) or nationally recognized overnight express courier postage prepaid, and shall be deemed given when so mailed and shall be delivered as addressed as follows:
18.if to the Obligors, to:
MariMed Inc. 10 Oceana Way Norwood, MA 02062 Attention: Jon Levine Telephone: (781) 559-8713 Email: jlevine@marimedadvisors.com
with copies to:
19.Kurzman Eisenberg Corbin & Lever, LLP One North Broadway, 12th Floor White Plains, NY 10601 Attention: Kenneth S. Rose Telephone: (914) 993-6051
20.Email: krose@kelaw.com
or to such other person at such other place as an Obligor shall designate in writing; and
if to Navy, to:
c/o Navy Capital, LLC 747 Third Avenue 35th Floor New York, New York 10017 Attn: Chetan Gulati E-mail: chetan@chetangulati.com
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with a copy to:
Feuerstein Kulick LLP 420 Lexington Avenue, Suite 2024 New York, New York 10170 Attn: Samantha Gleit E-mail: samantha@dfmklaw.com
or at such other address as may have been furnished to the Obligors in writing.
21.No Waiver; Cumulative Remedies. No remedy under this Guaranty, or under the Notes, is intended to be exclusive of any other remedy, but each and every remedy shall be cumulative and in addition to any and every other remedy given under this Guaranty, under the Notes, and those provided by law. No delay or omission by the Holders to exercise any right under this Guaranty shall impair any such right nor be construed to be a waiver thereof. No failure on the part of any Holder on behalf thereof, to exercise, and no delay in exercising, any right under this Guaranty shall operate as a waiver thereof; nor shall any single or partial exercise of any right under this Guaranty preclude any other or further exercise thereof or the exercise of any other right.
22.Severability of Provisions. Each provision of this Guaranty shall be severable from every other provision of this Guaranty for the purpose of determining the legal enforceability of any specific provision.
23.Entire Agreement; Amendments. This Guaranty constitutes the entire agreement between each Obligor and the Holders pertaining to the subject matter contained herein. This Guaranty may not be altered, amended, or modified, nor may any provision hereof be waived or noncompliance therewith consented to, except by means of a writing executed by each Obligor and the Holders. Any such alteration, amendment, modification, waiver, or consent shall be effective only to the extent specified therein and for the specific purpose for which given. No course of dealing and no delay or waiver of any right or default under this Guaranty shall be deemed a waiver of any other, similar or dissimilar, right or default or otherwise prejudice the rights and remedies hereunder.
24.Successors and Assigns. This Guaranty shall be binding upon each Guarantor and its successors and assigns and shall inure to the benefit of the successors and assigns of each Holder; provided, however, no Guarantor shall assign this Guaranty or delegate any of its duties hereunder without Holders’ prior written consent and any unconsented to assignment shall be absolutely null and void. In the event of any assignment, participation, or other transfer of rights by the Holders in compliance with Section 11(c) of the Notes, the rights and benefits herein conferred upon the Holders shall automatically extend to and be vested in such assignee or other transferee.
25.No Third Party Beneficiary. This Guaranty is solely for the benefit of each Holder and each of their successors and assigns and may not be relied on by any other person.
26.Incorporation by Reference. The terms of the Notes with respect to Sections 14 (Governing Law), 15 (Waiver of Jury Trial; Consent to Jurisdiction), and 16 (Headings) are incorporated herein by reference, mutatis mutandis, in each case substituting references to Issuer with references to Guarantor or Obligor, as applicable, and the parties hereto agree to such terms.
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27.Execution in Counterparts. This Guaranty may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
28.Agreement to be Bound. Each Guarantor hereby acknowledges that such Guarantor has received a copy of the Notes and agrees to be bound by each and all of the terms and provisions of the Notes applicable to such Guarantor. Without limiting the generality of the foregoing, by its execution and delivery of this Guaranty, each Guarantor hereby makes to the Holders each of the representations and warranties set forth in the Notes applicable to such Guarantor fully as though such Guarantor were a party thereto, and such representations and warranties are incorporated herein by this reference, mutatis mutandis. In addition to the foregoing, each of the Guarantors covenants that, so long as there are any outstanding amounts payable under the Notes or any other Obligations (other than contingent indemnification obligations which are not yet due and payable) shall remain unpaid, it will, and, if necessary, will use commercially reasonable efforts to cause the Issuer to fully comply with those covenants and agreements of the Issuer applicable to such Guarantor set forth in the Notes.
29.New Subsidiaries. Any subsidiary of the Issuer formed after the Effective Date (whether by acquisition or creation) that acquires any assets or undertakes any business operations, must enter into this Guaranty by executing a joinder to this Guaranty and delivering such joinder to the Holders within 15 Business Days of such acquisition or creation. The execution and delivery of any instrument adding an additional Guarantor as a party to this Guaranty shall not require the consent of any Guarantor hereunder. The rights and obligations of each Guarantor hereunder shall remain in full force and effect notwithstanding the addition of any new Guarantor hereunder.
30.Conflict. In the event of a conflict of the terms or provisions of this Guaranty and the Notes, the terms and provisions of the Notes shall govern.
[Signature pages to follow]
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IN WITNESS WHEREOF, the undersigned has executed and delivered this Guaranty as of the date first written above.
ISSUER:
MARIMED INC.
By: /s/Jon Levine
Jon Levine, Chief Executive Officer
GUARANTORS:
FIRST STATE COMPASSION CENTER, INC.
By: /s/Jon Levine
Jon Levine, Chief Executive Officer
KPG of ANNA, LLC
By: /s/Jon Levine
Jon Levine, Manager
KPG of HARRISBURG, LLC
By: /s/Jon Levine
Jon Levine, Manager
GREEN GROWTH GROUP INC.
By: /s/Jon Levine
Jon Levine, Chief Executive Officer
[signatures continued on following page]
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ALL GREENS DISPENSARY LLC
By: /s/Jon Levine
Jon Levine, Manager
MARIMED OH LLC
By: /s/Jon Levine
Jon Levine, Manager
HOLDERS:
NAVY CAPITAL GREEN FUND, LP
NAVY CAPITAL GREEN CO-INVEST FUND, LLC
NAVY CAPITAL GREEN HOLDINGS II, LLC
By: Navy Capital Green Management, LLC, as discretionary fund manager
By: /s/Chetan Gulati ________________ Name: Chetan Gulati Title: Managing Member
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