FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.2
Certain confidential information contained in this document, marked by brackets, was omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential. “[***]” indicates where the information has been omitted from this document.
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is dated as of March 1, 2022, among VERANO HOLDINGS CORP., a British Columbia corporation (the “Parent”), the other Credit Parties (as defined in the hereinafter-defined Credit Agreement), the Lenders (as defined in the Credit Agreement) party hereto, CHICAGO ATLANTIC ADMIN, LLC, a Delaware limited liability company (as assignee of Chicago Atlantic Advisers, LLC, a Delaware limited liability company; hereafter, “Chicago Atlantic”), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”) and Chicago Atlantic, as collateral agent for the Secured Parties (as defined in the Credit Agreement) (in such capacity, together with its successors and assigns in such capacity, the “Collateral Agent”, and together with the Administrative Agent, collectively, the “Agents” and each, an “Agent”), the Opco Mortgagors (as defined in the Credit Agreement), the Pledgors (as defined in the Credit Agreement) party hereto and New Borrower (as defined below).
Recitals:
WHEREAS, reference is made to that certain Amended and Restated Credit Agreement dated as of May 10, 2021 (the “Amended and Restated Credit Agreement”), as amended by that certain Omnibus Amendment to Amended and Restated Credit Agreement and Amended and Restated Security Agreement dated as of May 20, 2021 (the “First Amendment”), that certain Second Amendment to Amended and Restated Credit Agreement, Waiver and Consent dated as of September 23, 2021 (the “Second Amendment”), and that certain Third Amendment to Amended and Restated Credit Agreement, Second Amendment to Amended and Restated Security Agreement and First Amendment to Canadian Security Agreement dated as of October 20, 2021 (the “Third Amendment”); the Amended and Restated Credit Agreement, as amended by the First Amendment, the Second Amendment and the Third Amendment, the “Existing Credit Agreement”), and this Amendment (the Existing Credit Agreement, as amended by this Amendment, and as further amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used herein and not otherwise defined herein shall have the meaning ascribed to such terms in the Credit Agreement), among the Borrower, the other Credit Parties from time to time party thereto, the Lenders from time to time party thereto and the Agents; and
WHEREAS, the Credit Parties have requested that the Agents and the Lenders agree to amend certain provisions of the Existing Credit Agreement, and, subject to the terms and conditions of this Amendment, the Agents and the Lenders, including, without limitation, each of the New Lenders, have agreed to such request;
WHEREAS, in connection with the foregoing, each of [***], collectively, the “New Lenders” and each, a “New Lender”) has agreed to join the Credit Agreement as a Lender; and
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows:
1.
Amendments to Credit Agreement. Subject to the satisfaction of the conditions precedent set forth in Section 6 hereof,
(a) the Existing Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following
example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following
example: double-underlined text) as set forth in Annex A attached hereto
and (b) Schedules 1.01 and 8.15 to the Existing Credit Agreement are hereby amended and restated as set forth in Annex A attached
hereto. For the avoidance of doubt, all other Schedules, and all Exhibits, to the Existing Credit Agreement shall not be modified or
otherwise affected by this Amendment.
2. Joinder of [***] as Borrower. [***] (“New Borrower”), is a wholly-owned Subsidiary of Verano US. New Borrower is hereby joined in, and hereby agrees that it is and for all purposes after the date hereof shall be a party to, the Credit Agreement and each of the other Credit Documents as one of the Persons comprising Borrower as if it were an original signatory to the Credit Agreement. In furtherance and without limitation of the preceding sentence, New Borrower acknowledges and agrees that it is jointly and severable liable with the other Persons comprising Borrower for all of the Indebtedness and other Obligations of Borrower under the Credit Documents. The term “Borrower” and “Persons comprising Borrower” as used in the Credit Agreement and the other Credit Documents shall be deemed to include New Borrower.
3. Joinder of the New Lenders. On the date hereof, each of the New Lenders hereby joins the Credit Agreement as a Lender and shall have the rights and obligations of a Lender under the Credit Documents. Each of the New Lenders (a) confirms that it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered to the Lenders pursuant to Sections 8.01(a) and 8.01(b) of the Credit Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment and the Credit Agreement, (b) agrees that it will, independently and without reliance upon either Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement, (c) appoints and authorizes each Agent to take such action as such Agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are delegated to such Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (d) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender, (e) confirms it has provided its lending office and address for notices to the Agents and (f) agrees that it has an Incremental Advance Commitment in the amount set forth opposite such New Lender’s name on Schedule 1.01 attached as part of Annex A attached hereto. Nothing contained herein shall constitute a novation of any Obligation.
4. Representations, Warranties and Acknowledgments of the Credit Parties, New Borrower, the Opco Mortgagors and the Pledgors.
(a) Representations and Warranties of the Credit Parties and New Borrower. In order to induce the Lenders and the Agents to enter into this Amendment and to induce the Lenders to make the Loans under the Credit Agreement, each of Credit Parties and New Borrower hereby represents and warrants to the Lenders and the Agents on and as of the date hereof that:
(i) Such Person (A) is a duly organized or formed and validly existing limited liability company or other registered entity in good standing under the laws of the jurisdiction of its organization and has the corporate or other organizational power and authority to own its property and assets and to transact the business in which it is engaged and (B) has duly qualified and is authorized to do business and is in good standing in all jurisdictions where it does business or owns assets, except, in the case of this clause (B), where the failure to be so qualified could not reasonably be expected to result in a Material Adverse Effect.
(ii) Such Person has the corporate or other organizational power and authority to execute, deliver and carry out the terms and provisions of this Amendment and the other Credit Documents to which it is a party and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Amendment and the other Credit Documents to which it is a party. Such Person has duly executed and delivered this Amendment and the other Credit Documents to which it is a party and such Credit Documents constitute the legal, valid and binding obligation of such Person enforceable against such Person in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, moratorium, examinership, reorganization and other similar laws relating to or affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding in equity or law).
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(iii) None of (A) the execution, delivery and performance by such Person of this Amendment or the other Credit Documents to which it is a party and compliance with the terms and provisions thereof or (B) the consummation of the Transactions or the other Credit Documents will (1) contravene any applicable provision of any material Applicable Law of any Governmental Authority, other than U.S. Federal Cannabis Laws, (2) result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of such Person (other than Liens created under the Credit Documents) pursuant to, (I) the terms of any material indenture, loan agreement, lease agreement, mortgage or deed of trust, or (II) any other Material Contract, in the case of any of clauses (I) and (II) to which such Person is a party or by which it or any of its property or assets is bound or (3) violate any provision of the Organization Documents or Permit of such Person, except with respect to any conflict, breach or contravention or default (but not creation of Liens) referred to in clause (2), to the extent that such conflict, breach, contravention or default could not reasonably be expected to have a Material Adverse Effect.
(iv) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person, and no consent or approval under any contract or instrument (other than those that have been duly obtained or made and which are in full force and effect, or if not obtained or made, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect) is required for the consummation of the Transactions or the due execution, delivery or performance by such Person of this Amendment or any other Credit Document to which it is a party, or for the due execution, delivery or performance of this Amendment or the other Credit Documents, in each case by any of the Credit Parties party thereto or, as applicable, New Borrower. There does not exist any judgment, order, injunction or other restraint issued or filed with respect to the transactions contemplated by the Credit Documents, the consummation of the Transactions, the making of the Loans or the performance by the Credit Parties or New Borrower of their Obligations under this Amendment and the other Credit Documents.
(v) The representations and warranties of such Person set forth in the Credit Agreement and in any other Credit Document are true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality, in all respects) on and as of the date hereof (or, in the case of any such representation or warranty expressly stated to have been made as of a specific date, as of such specific date).
(vi) After giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.
(b) Representations and Warranties of the Opco Mortgagors and the Pledgors. In order to induce the Lenders and the Agents to enter into this Amendment and to induce the Lenders to make the Loans under the Credit Agreement, each Opco Mortgagor and Pledgor hereby represents and warrants to the Lenders and the Agents on and as of the date hereof that:
(i) Such Person has duly executed and delivered this Amendment and the other Credit Documents to which it is a party and such Credit Documents constitute the legal, valid and binding obligation of such Person enforceable against such Person in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, moratorium, examinership, reorganization and other similar laws relating to or affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding in equity or law).
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(ii) None of (A) the execution, delivery and performance by such Person of this Amendment or the other Credit Documents to which it is a party and compliance with the terms and provisions thereof or (B) the consummation of the Transactions or the other Credit Documents will (1) contravene any applicable provision of any material Applicable Law of any Governmental Authority, other than U.S. Federal Cannabis Laws, or (2) result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of such Person (other than Liens created under the Credit Documents) pursuant to, (I) the terms of any material indenture, loan agreement, lease agreement, mortgage or deed of trust, or (II) any other Material Contract, in the case of any of clauses (I) and (II) to which such Person is a party or by which it or any of its property or assets is bound, except with respect to any conflict, breach or contravention or default (but not creation of Liens) referred to in clause (2), to the extent that such conflict, breach, contravention or default could not reasonably be expected to have a Material Adverse Effect.
(iii) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person, and no consent or approval under any contract or instrument (other than those that have been duly obtained or made and which are in full force and effect, or if not obtained or made, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect) is required for the consummation of the Transactions or the due execution, delivery or performance by such Person of this Amendment or any other Credit Document to which it is a party, or for the due execution, delivery or performance of this Amendment or the other Credit Documents, in each case by such Person. There does not exist any judgment, order, injunction or other restraint issued or filed with respect to the transactions contemplated by the Credit Documents, the consummation of the Transactions, the making of the Loans or the performance by such Person of its Obligations under this Amendment and the other Credit Documents.
(iv) With respect to each Pledgor, the representations and warranties of such Pledgor set forth in the Individual Pledge Agreement and in any other Credit Document are true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality, in all respects) on and as of the date hereof (or, in the case of any such representation or warranty expressly stated to have been made as of a specific date, as of such specific date).
(v) With respect to each Opco Mortgagor, the representations and warranties of such Opco Mortgagor set forth in the Opco Mortgagor Guaranty Agreement and in any other Credit Document are true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality, in all respects) on and as of the date hereof (or, in the case of any such representation or warranty expressly stated to have been made as of a specific date, as of such specific date).
5. Reaffirmation of Obligations. Each of the Credit Parties, Opco Mortgagors and the Pledgors hereby (a) reaffirms and confirms (i) the execution and delivery of, and all of its obligations under, the Credit Documents to which it is a party, including, without limitation, the Credit Agreement, the Individual Pledge Agreement, the Opco Mortgagor Guaranty Agreement and the Opco Mortgagor Mortgage, and agrees that this Amendment does not operate to reduce or discharge any Credit Party’s, any Opco Mortgagor’s or any Pledgor’s obligations under such Credit Documents or constitute a novation of any indebtedness or other obligations under any Credit Documents, and (ii) its guarantees, pledges, grants and other undertakings under the Credit Agreement and the other Credit Documents to which it is a party, (b) agrees that (i) each Credit Document to which it is a party shall continue to be in full force and effect and (ii) all guarantees, pledges, grants and other undertakings thereunder shall continue to be in full force and effect and shall accrue to the benefit of the Secured Parties, and (c) reaffirms and confirms the continuing security interests in its respective assets granted in favor of the Collateral Agent pursuant to each of the Security Documents. Each of the Credit Parties, the Opco Mortgagors and the Pledgors hereby acknowledges and consents to the transactions contemplated by, and the execution and delivery of, this Amendment and the other Credit Documents.
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6. Conditions Precedent to Effectiveness. This Amendment shall become effective as of the date of this Amendment when, and only when, the Administrative Agent shall have received the following, in form and substance satisfactory to Administrative Agent:
(a) counterparts of this Amendment, duly executed by an Authorized Officer of each Credit Party, New Borrower, each Opco Mortgagor, each Pledgor, Administrative Agent and the Lenders, including, without limitation, the New Lenders;
(b) amended and restated Notes reflecting the Incremental Advance Loans and the addition of New Borrower, duly executed by an Authorized Officer of each of New Borrower as a Person comprising Borrower and the other Persons comprising Borrower;
(c) an Assumption Agreement (as described in the Security Agreement), duly executed by an Authorized Officer of New Borrower;
(d) an Opco Mortgagor Guaranty Agreement, duly executed by [***];
(e) except as otherwise provided on Schedule 8.15 of the Credit Agreement, (i) Mortgages, or amendments thereof, with respect to the owned Real Property of a Credit Party that constitutes Collateral listed on Schedule 7.15(a) of the Credit Agreement and the Real Property owned by Opco Mortgagors, duly executed by Credit Party or Opco Mortgagor party thereto and, for the avoidance of doubt, securing all obligations under the Credit Agreement, as amended by this Amendment, and (ii) evidence that a counterpart of each such Mortgage or amendment thereof has been recorded, or that arrangements for recording reasonably satisfactory to Administrative Agent have been made, in the place necessary, in the Collateral Agent’s reasonable judgment, to create a valid and enforceable first priority Lien in favor of the Collateral Agent for the benefit of itself, the Lenders and the other Secured Parties;
(f) executed legal opinions of Dentons US LLP, counsel to the Credit Parties, New Borrower and Opco Mortgagors and Dentons Canada LLP, Canadian counsel to the Credit Parties, which opinions shall be addressed to the Agents and the Secured Parties and shall be in form and substance reasonably satisfactory to the Administrative Agent;
(g) a certificate for each Credit Party, New Borrower and each Opco Mortgagor, duly executed and delivered by an Authorized Officer of each such Person, as to: (i) resolutions of each such Person’s board of managers or directors (or other managing body, in the case of a Person that is not a corporation) then in full force and effect expressly and specifically authorizing, to the extent relevant, all aspects of the Credit Documents applicable to such Person and the execution, delivery and performance of each Credit Document, in each case, to be executed by such Person; (ii) the incumbency and signatures of its Authorized Officers and any other of its officers, directors, members, trustees, managers, managing member or general partner, as applicable, authorized to act with respect to each Credit Document to be executed by such Person; and (iii) each such Person’s Organization Documents, as amended, modified or supplemented as of the date hereof, certified by the appropriate officer or official body of the jurisdiction of organization of such Person, or, for each of clauses (i), (ii) and (iii) above, a confirmation that such documents have not changed since the most recent certification to Administrative Agent;
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(h) the results of a search of the UCC and PPSA filings (or equivalent filings), in addition to tax Lien and judgment Lien searches made with respect to each Credit Party and New Borrower, together with copies of the financing statements and other filings (or similar documents) disclosed by such searches, and accompanied by evidence reasonably satisfactory to the Collateral Agent that the Liens indicated in any such financing statement and other filings (or similar document) are Permitted Liens or have been released or will be released substantially simultaneously with the making of the Loans under the Credit Agreement;
(i) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof; and
(j) such other documents to be executed by the Credit Parties, the Opco Mortgagors and New Borrower as may be reasonably requested by the Administrative Agent.
7. Incorporation by Reference. Sections 12.05, 12.13 and 12.15 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis, as if such Sections were set forth in full herein.
8. Miscellaneous.
(a) Amendment, Modification and Waiver. This Amendment may not be amended and no provision hereof may be waived except pursuant to a writing signed by each of the parties hereto.
(b) Governing Law. This Amendment and any claims controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Amendment and the transactions contemplated hereby shall be governed by, and construed in accordance with, the laws of the State of Illinois, without reference to conflicts of law provisions which would result in the application of the laws of any other jurisdiction.
(c) Severability. Any term or provision of this Amendment that is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Amendment or affecting the validity or enforceability of any of the terms or provisions of this Amendment in any other jurisdiction. If any provision of this Amendment is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.
(d) Counterparts; Integration; Effectiveness. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Amendment, the Credit Agreement (as amended hereby) and the other Credit Documents constitute the entire agreement among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 6 hereof, this Amendment shall become effective when it shall have been executed by Agent and when Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Amendment.
(e) Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
(f) Reference to and Effect on the Credit Agreement and the Other Credit Documents. On and after the date hereof, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “herein” or words of like import referring to the Credit Agreement, and each reference in the other Credit Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Existing Credit Agreement as amended by this Amendment. Except as specifically amended by this Amendment, the Existing Credit Agreement and the other Credit Documents shall remain in full force and effect and are hereby ratified and confirmed and this Amendment shall not be considered a novation. The execution, delivery and performance of this Amendment shall not constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of Agent or Lender under, the Credit Agreement or any of the other Credit Documents. This Amendment shall be deemed to be a Credit Document as defined in the Credit Agreement.
9. Construction. This Amendment has been prepared through the joint efforts of all of the parties hereto. Neither the provisions of this Amendment, nor any alleged ambiguity herein, shall be interpreted or resolved against any party on the grounds that such party or its counsel drafted this Amendment, or based on any other rule of strict construction. Each of the parties represents that such party has carefully read this Amendment and that such party knows the contents hereof and has signed the same freely and voluntarily.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered effective as of the date hereof.
| CREDIT PARTIES: | ||
| VERANO HOLDINGS CORP. | ||
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx X. Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***]. | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Manager | |
| [***] | ||
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Manager | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Manager | |
| [***] | ||
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Manager | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Manager | |
| [***] | ||
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Director | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Manager | |
| [***] | ||
| By: | its Manager, [***]. | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Manager | |
| [***] | ||
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Manager | |
| [***] | ||
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Manager | |
| [***] | ||
| By: | its Manager, Verano Holdings Corp. | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, Verano Holdings, LLC | |
| By: | its Manager, Verano Holdings Corp. | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its sole member, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its sole member, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its sole member, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its sole member, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Authorized Person | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Trustee | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Authorized Person | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Manager | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Trustee | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| NEW BORROWER: | ||
| [***] | ||
| By: | its Manager, [***] | |
| By: | its Manager, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Chief Executive Officer | |
| PLEDGORS: | ||
| [***] | ||
| [***] | ||
| [***] | ||
| [***] | ||
| [***] | ||
| [***] | ||
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | [***] | |
| Name: | [***] | |
| Title: | Authorized Representative | |
| OPCO MORTGAGORS: | ||
| [***] | ||
| By: | its sole member, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Member | |
| [***] | ||
| By: | its sole member, [***] | |
| By: | /s/ “Xxxxxx Archos” | |
| Name: | Xxxxxx Archos | |
| Title: | Member | |
| [***] | ||
| By: | its Manager, [***] | |
| By: | [***]” | |
| Name: | [***] | |
| Title: | Manager | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| ADMINISTRATIVE AGENT AND COLLATERAL AGENT: | ||
| CHICAGO ATLANTIC ADMIN, LLC | ||
| By: | /s/ “Xxxx Xxxxxxxxx” | |
| Name: | Xxxx Xxxxxxxxx | |
| Title: | Authorized Person | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| LENDERS: | ||
| CHICAGO ATLANTIC REAL ESTATE FINANCE, INC. | ||
| By: | /s/ “Xxxx Xxxxxxxxx” | |
| Name: | Xxxx Xxxxxxxxx | |
| Title: | Authorized Person | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| CHICAGO ATLANTIC CREDIT COMPANY, LLC | ||
| By: | /s/ “Xxxx Xxxxxxxxx” | |
| Name: | Xxxx Xxxxxxxxx | |
| Title: | Authorized Person | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | [***] | |
| Name: | [***] | |
| Title: | CEO and CFO | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | [***] | |
| Name: | [***] | |
| Title: | Managing Member | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | [***] | |
| Name: | [***] | |
| Title: | Trustee | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | [***] | |
| Name: | [***] | |
| Title: | Managing Member | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | [***] | |
| Name: | [***] | |
| Title: | President | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | [***] | |
| Name: | [***] | |
| Title: | XXX Owner | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | [***] | |
| Name: | [***] | |
| Title: | Manager | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | [***] | |
| Name: | [***] | |
| Title: | Managing Member | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| AFC GAMMA, INC. | ||
| By: | /s/ “Xxxxx Xxxxxxx” | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Chief Financial Officer | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | [***] | |
| Name: | [***] | |
| Title: | SVP, Portfolio Manager | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | [***] | |
| Name: | [***] | |
| Title: | SVP, Portfolio Manager | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | [***] | |
| Name: | [***] | |
| Title: | Authorized Person | |
| Fourth Amendment to Amended and Restated Credit Agreement |
| [***] | ||
| By: | [***] | |
| Name: | [***] | |
| Title: | Manager | |
| Fourth Amendment to Amended and Restated Credit Agreement |
AMENDED
AND RESTATED CREDIT AGREEMENT
by and among
VERANO HOLDINGS CORP.,
as Parent,
certain
Subsidiaries and Affiliates of Parent from time to time party hereto,
collectively with Parent, jointly and severally, as Borrower,
the Lenders from time to time party hereto and
CHICAGO ATLANTIC ADMIN, LLC,
as the Administrative Agent and as
the Collateral Agent
XXXXX XXX CAPITAL, LLC
as Lead Arranger
Dated as of May 10, 2021
As
amended by that certain Omnibus Amendment to Amended and Restated Credit Agreement and Amended and Restated Security Agreement dated
as of May 20, 2021, that certain Second Amendment to Amended and Restated Credit Agreement, Waiver and Consent dated as of September
3, 2021 and, that
certain Omnibus Third Amendment to Amended and Restated Credit Agreement, Second Amendment to Amended and Restated Security Agreement
and First Amendment to Canadian Security Agreement dated as of October 20, 2021,
and that certain Fourth Amendment to Amended and Restated Credit Agreement dated as of February 28, 2022.
NOTICE:
THIS COMPOSITE CREDIT AGREEMENT IS NOT THE ACTUAL CONTRACT AMONG THE PARTIES. THE COMPOSITE REPRESENTS A GOOD FAITH EFFORT OF COUNSEL
FOR THE AGENTS TO STATE THE TERMS OF THE CREDIT AGREEMENT AS AMENDED THROUGH THE LATEST AMENDMENT SET FORTH ABOVE. THE OPERATIVE LEGAL
DOCUMENT CONSISTS OF THE CREDIT AGREEMENT TOGETHER WITH ALL AMENDMENTS THERETO.
Table of Contents
(continued)
| Page | |||
| ARTICLE I | Definitions | 1 | |
| SECTION 1.01 | Defined Terms | 1 | |
| SECTION 1.02 | Other Interpretive Provisions | ||
| SECTION 1.03 | Accounting Terms and Principles | ||
| SECTION 1.04 | Rounding | ||
| SECTION 1.05 | References to Agreements, Laws, etc | ||
| SECTION 1.06 | Times of Day | ||
| SECTION 1.07 | Timing of Payment or Performance | ||
| SECTION 1.08 | Corporate Terminology | ||
| SECTION 1.09 | Currency Matters | ||
| SECTION 1.10 | Quebec Interpretation | ||
| ARTICLE II | Amount and Terms of Loans | ||
| SECTION 2.01 | Loans | ||
| SECTION 2.02 | Change of Lending Office | ||
| SECTION 2.03 | Lender Branches | ||
| SECTION 2.04 | Reserved | ||
| SECTION 2.05 | Disbursement of Funds | ||
| SECTION 2.06 | Payment of Loans; Evidence of Debt | ||
| SECTION 2.07 | Multiple Persons Constituting Borrower | ||
| SECTION 2.08 | Borrower Representative | ||
| SECTION 2.09 | Interest | ||
| SECTION 2.10 | Increased Costs, Illegality, etc | ||
| SECTION 2.11 | Interest Act (Canada); Criminal Rate of Interest | ||
| SECTION 2.12 | Defaulting Lender | ||
| ARTICLE III | Fees and Commitment Terminations | ||
| SECTION 3.01 | Fees | ||
| SECTION 3.02 | Mandatory Reduction of Commitments | ||
| ARTICLE IV | Payments | ||
| SECTION 4.01 | Voluntary Prepayments | ||
| SECTION 4.02 | Mandatory Prepayments | ||
| SECTION 4.03 | Payment of Obligations; Method and Place of Payment | ||
| SECTION 4.04 | Taxes | ||
| SECTION 4.05 | Reserved | ||
| SECTION 4.06 | Computations of Interest and Fees |
| i |
Table of Contents
(continued)
| Page | |||
| ARTICLE V | Conditions Precedent to Loans | ||
| SECTION 5.01 | Signing Date | ||
| SECTION 5.02 | Restatement Date | ||
| SECTION 5.03 | Third Amendment Effective Date | ||
| SECTION 5.04 | Conditions to the Incremental Advance Loans | ||
| ARTICLE VI | Guarantee | ||
| SECTION 6.01 | Guarantee | ||
| SECTION 6.02 | Guarantee Absolute and Unconditional | ||
| SECTION 6.03 | Reinstatement | ||
| SECTION 6.04 | Payments | ||
| SECTION 6.05 | Taxes | ||
| SECTION 6.06 | Joint and Several (Canada) | ||
| ARTICLE VII | Representations, Warranties and Agreements | ||
| SECTION 7.01 | Status | ||
| SECTION 7.02 | Power and Authority | ||
| SECTION 7.03 | No Violation | ||
| SECTION 7.04 | Litigation, Labor Controversies, etc | ||
| SECTION 7.05 | Use of Proceeds; Regulations U and X | ||
| SECTION 7.06 | Approvals, Consents, etc | ||
| SECTION 7.07 | Investment Company Xxx | ||
| SECTION 7.08 | Accuracy of Information | ||
| SECTION 7.09 | Financial Condition; Financial Statements | ||
| SECTION 7.10 | Tax Returns and Payments | ||
| SECTION 7.11 | Compliance with ERISA; Canadian Pension Plans | ||
| SECTION 7.12 | Subsidiaries; Opcos | ||
| SECTION 7.13 | Intellectual Property; Licenses, etc | ||
| SECTION 7.14 | Environmental Warranties | ||
| SECTION 7.15 | Ownership of Properties | ||
| SECTION 7.16 | No Default | ||
| SECTION 7.17 | Solvency | ||
| SECTION 7.18 | Locations of Offices, Records and Collateral | ||
| SECTION 7.19 | Compliance with Laws and Permits; Authorizations | ||
| SECTION 7.20 | No Material Adverse Effect | ||
| SECTION 7.21 | Contractual or Other Restrictions | ||
| SECTION 7.22 | Collective Bargaining Agreements | ||
| SECTION 7.23 | Insurance | ||
| SECTION 7.24 | Evidence of Other Indebtedness | ||
| SECTION 7.25 | Deposit Accounts and Securities Accounts |
| ii |
Table of Contents
(continued)
| Page | |||
| SECTION 7.26 | Absence of any Undisclosed Liabilities | ||
| SECTION 7.27 | Material Contracts and Regulatory Matters | ||
| SECTION 7.28 | Anti-Terrorism Laws | ||
| SECTION 7.29 | Conduct of Business | ||
| SECTION 7.30 | Transactions with Affiliates | ||
| ARTICLE VIII | Affirmative Covenants | ||
| SECTION 8.01 | Financial Information, Reports, Notices and Information | ||
| SECTION 8.02 | Books, Records and Inspections | ||
| SECTION 8.03 | Maintenance of Insurance | ||
| SECTION 8.04 | Payment of Taxes | ||
| SECTION 8.05 | Maintenance of Existence; Compliance with Laws, etc | ||
| SECTION 8.06 | Environmental Compliance | ||
| SECTION 8.07 | ERISA; Canadian Pension Plans | ||
| SECTION 8.08 | Maintenance of Properties | ||
| SECTION 8.09 | Reserved | ||
| SECTION 8.10 | Additional Borrowers | ||
| SECTION 8.11 | Use of Proceeds | ||
| SECTION 8.12 | Further Assurances | ||
| SECTION 8.13 | Access to Sales, Accounts Receivables and Securities and Bank Accounts | ||
| SECTION 8.14 | Annual Lender Meeting | ||
| SECTION 8.15 | Post-Closing Covenants | ||
| SECTION 8.16 | Sanctions; Anti-Corruption Laws | ||
| SECTION 8.17 | Regulatory Matters | ||
| SECTION 8.18 | Opco Requirements | ||
| ARTICLE IX | Negative Covenants | ||
| SECTION 9.01 | Limitation on Indebtedness | ||
| SECTION 9.02 | Limitation on Liens | ||
| SECTION 9.03 | Consolidation, Merger, etc | ||
| SECTION 9.04 | Permitted Dispositions | ||
| SECTION 9.05 | Investments | ||
| SECTION 9.06 | Restricted Payments | ||
| SECTION 9.07 | Prepayments and Modification of Certain Agreements | ||
| SECTION 9.08 | Sale and Leaseback | ||
| SECTION 9.09 | Transactions with Affiliates | ||
| SECTION 9.10 | Restrictive Agreements, etc |
| iii |
Table of Contents
(continued)
| Page | |||
| SECTION 9.11 | Hedging Agreements | ||
| SECTION 9.12 | Changes in Business and Fiscal Periods | ||
| SECTION 9.13 | Financial Covenants | ||
| SECTION 9.14 | Canadian Defined Benefit Plans | ||
| ARTICLE X | Events of Default | ||
| SECTION 10.01 | Listing of Events of Default | ||
| SECTION 10.02 | Remedies Upon Event of Default | ||
| ARTICLE XI | The Agents | ||
| SECTION 11.01 | Appointment | ||
| SECTION 11.02 | Delegation of Duties | ||
| SECTION 11.03 | Exculpatory Provisions | ||
| SECTION 11.04 | Reliance by Agents | ||
| SECTION 11.05 | Notice of Default | ||
| SECTION 11.06 | Non Reliance on Agents and Other Lenders | ||
| SECTION 11.07 | Indemnification | ||
| SECTION 11.08 | Agent in Its Individual Capacity | ||
| SECTION 11.09 | Successor Agents | ||
| SECTION 11.10 | Agents Generally | ||
| SECTION 11.11 | Restrictions on Actions by Secured Parties; Sharing of Payments | ||
| SECTION 11.12 | Agency for Perfection | ||
| SECTION 11.13 | Certain ERISA Matters | ||
| ARTICLE XII | Miscellaneous | ||
| SECTION 12.01 | Amendments and Waivers | ||
| SECTION 12.02 | Notices and Other Communications; Facsimile Copies | ||
| SECTION 12.03 | No Waiver; Cumulative Remedies | ||
| SECTION 12.04 | Survival of Representations and Warranties | ||
| SECTION 12.05 | Payment of Expenses and Taxes; Indemnification | ||
| SECTION 12.06 | Successors and Assigns; Participations and Assignments; Replacement of Lender | ||
| SECTION 12.07 | Pledge of Loans | ||
| SECTION 12.08 | Adjustments; Set-off | ||
| SECTION 12.09 | Counterparts | ||
| SECTION 12.10 | Severability | ||
| SECTION 12.11 | Integration | ||
| SECTION 12.12 | GOVERNING LAW | ||
| SECTION 12.13 | Submission to Jurisdiction; Waivers |
| iv |
Table of Contents
(continued)
| Page | |||
| SECTION 12.14 | Acknowledgments | ||
| SECTION 12.15 | WAIVERS OF JURY TRIAL | ||
| SECTION 12.16 | Confidentiality | ||
| SECTION 12.17 | Press Releases, etc | ||
| SECTION 12.18 | Releases of Guarantees and Liens | ||
| SECTION 12.19 | USA Xxxxxxx Xxx | ||
| SECTION 12.20 | No Fiduciary Duty | ||
| SECTION 12.21 | Authorized Officers | ||
| SECTION 12.22 | Judgment Currency | ||
| SECTION 12.23 | Subordination of Intercompany Indebtedness | ||
| SECTION 12.24 | Public Lenders | ||
| SECTION 12.25 | Reserved | ||
| SECTION 12.26 | Original Issue Discount | ||
| SECTION 12.27 | Tax Treatment | ||
| ARTICLE XIII | ADDITIONAL COVENANTS AND AGREEMENTS | ||
| SECTION 13.01 | Cannabis Laws | ||
| SECTION 13.02 | Amendment and Restatement |
| v |
| SCHEDULES | ||
| Schedule 1.01 | Commitments | |
| Schedule 7.04 | Litigation | |
| Schedule 7.12 | Subsidiaries | |
| Schedule 7.13 | Intellectual Property | |
| Schedule 7.14 | Environmental Matters | |
| Schedule 7.15 | Real Property | |
| Schedule 7.18 | Principal Place of Business | |
| Schedule 7.22 | Collective Bargaining Agreements | |
| Schedule 7.23 | Insurance | |
| Schedule 7.24 | Existing Indebtedness | |
| Schedule 7.25 | Accounts | |
| Schedule 7.27(a) | Material Contracts | |
| Schedule 7.27(b) | Regulatory Licenses | |
| Schedule 7.27(c) | Opco Agreements | |
| Schedule 7.29 | Sales Tracking Software | |
| Schedule 7.30 | Transactions with Affiliates | |
| Schedule 8.15 | Post-Closing Covenants | |
| Schedule 9.02 | Liens | |
| Schedule 9.04 | Dispositions | |
| Schedule 9.05 | Investments | |
| Schedule 9.10 | Restrictive Agreements | |
| Schedule 12.02 | Addresses for Notices | |
| EXHIBITS | ||
| Exhibit A | Form of Assignment and Acceptance | |
| Exhibit B | Form of Compliance Certificate | |
| Exhibit C | Form of Note |
| vi |
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 10, 2021, is among VERANO HOLDINGS CORP., a British Columbia corporation (the “Parent”), certain Subsidiaries and Affiliates of Parent signatory hereto as a Person comprising Borrower or hereafter designated as a Person comprising Borrower pursuant to Section 8.10 below (collectively with Parent, jointly and severally, the “Borrower”), the lenders from time to time party hereto (together with the Incremental Advance Lenders (as defined below) and the Second Incremental Term Loan Lenders (as defined below), each a “Lender” and, collectively, the “Lenders”), CHICAGO ATLANTIC ADMIN, LLC, a Delaware limited liability company (“Chicago Atlantic”) (as assignee of Chicago Atlantic Advisers, LLC, a Delaware limited liability company), as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”) and Chicago Atlantic, as collateral agent for the Secured Parties (in such capacity, together with its successors and assigns in such capacity, the “Collateral Agent”, and together with the Administrative Agent, collectively, the “Agents” and each, an “Agent”).
RECITALS
WHEREAS, Verano Holdings, LLC, a Delaware limited liability company (“Verano US”), as borrower, the other Credit Parties party thereto, the Lenders party thereto and the Agents are parties to that certain Credit Agreement dated as of July 2, 2020 (as amended, restated or otherwise modified from time to time prior to the Restatement Date, the “Original Credit Agreement”); and
WHEREAS, on the Restatement Date, Verano US and the other Credit Parties desire, and Agent and Lenders have agreed, to amend and restate the Original Credit Agreement in its entirety to make certain changes to the terms thereof, join Parent and certain additional Credit Parties as party thereto and increase the principal amount of loans available thereunder.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree that, as of the Restatement Date, the Original Credit Agreement shall be amended and restated in its entirety as follows:
ARTICLE I
Definitions
SECTION 1.01 Defined Terms. As used herein, the following terms shall have the meanings specified in this Section 1.01 unless the context otherwise requires:
“2020 Loans” shall have the meaning set forth in Section 2.01(a)(i).
“2021 Loans” shall have the meaning set forth in Section 2.01(a)(ii).
“Administrative Agent” shall have the meaning set forth in the preamble to this Agreement.
“Administrative Questionnaire” shall mean a questionnaire completed by each Lender, in a form approved by the Administrative Agent, in which such Lender, among other things, (a) designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Credit Parties and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with such Lender’s compliance procedures and Applicable Laws, including federal and state securities laws, and (b) designates an address, facsimile number, electronic mail address and/or telephone number for notices and communications with such Lender.
“Affiliate” shall mean, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided that, for purposes of this definition, any Person which owns directly or indirectly 10% or more of the equity interests having ordinary voting power for the election of directors or other members of the governing body of a Person or 10% or more of the partnership or other ownership interests of a Person (other than as a limited partner of such Person) shall be deemed an Affiliate of such Person. Notwithstanding anything to the contrary set forth herein, neither Agent nor any Lender shall be deemed to be an Affiliate of any Credit Party solely by virtue of complying with the terms and provisions of, or exercising its rights under, this Agreement and the other Credit Documents.
“Agents” shall have the meaning set forth in the preamble to this Agreement.
“Agreement” shall mean this Credit Agreement, as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“ALTA” shall mean the American Land Title Association.
“Applicable Laws” shall mean, as to any Person, any law (including common law), statute, regulation, ordinance, rule, order, policy, decree, judgment, consent decree, writ, injunction, settlement agreement or governmental requirement enacted, promulgated or imposed or entered into or agreed by any Governmental Authority or determination of an arbitrator, in each case applicable to or binding on such Person or any of its property, products, business, assets or operations or to which such Person or any of its property, products, business, assets or operations is subject.
“Applicable Fiscal Period” shall mean the period of two consecutive fiscal quarters ending at the end of each prescribed fiscal quarter.
“Applicable
Rate” shall mean (a) with respect to the 2020 Loans, fifteen and one-quarter percent (15.25%) per annum, (b) with respect
to the 2021 Loans, nine and three-quarters percent (9.75%) per annum, and (c) with respect
to the Initial Restatement Advance Loans and the Incremental Advance Loans (if any),
eight and one-half percent (8.50%) per annum, and (d) with respect to the
Second Incremental Term Loans, the per annum rate set forth in the Joinder Agreement for the Second Incremental Term Loans.
“Application Event” shall have the meaning set forth in Section 4.02(d).
“Approved Fund” shall mean any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in commercial loans and similar extensions of credit in the ordinary course and that is administered, advised or managed by (a) a Lender, (b) a Controlled Affiliate of a Lender or (c) an entity or a Controlled Affiliate of an entity that administers, advises or manages a Lender.
“Arranger” shall mean Xxxxx Xxx, in its capacity as lead arranger.
“Assignment and Acceptance” shall mean an assignment and acceptance substantially in the form of Exhibit A.
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“Attributable Indebtedness” shall mean, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear as a liability on a balance sheet of such Person prepared as of such date in accordance with IFRS.
“Authorized Officer” shall mean, with respect to any Credit Party, Opco Mortgagor, Pledgor or Vireo Guarantor, the president, vice president of finance, the chief executive officer, the chief financial officer, the chief operating officer, the secretary, the treasurer or any other senior officer of such Credit Party, Opco Mortgagor, Pledgor or Vireo Guarantor authorized under the borrowing resolutions of such Credit Party, Opco Mortgagor, Pledgor or Vireo Guarantor, but, in any event, with respect to financial matters, the vice president of finance, chief financial officer or treasurer of such Credit Party, Opco Mortgagor, Pledgor or Vireo Guarantor or such other senior officer of such Credit Party, Opco Mortgagor, Pledgor or Vireo Guarantor designated as such by the applicable Credit Party, Opco Mortgagor, Pledgor or Vireo Guarantor in writing.
“BCSC” shall mean the British Columbia Securities Commission, or any Governmental Authority succeeding to any of its principal functions.
“Benefited Lender” shall have the meaning set forth in Section 12.08.
“Benefit Plan” shall mean any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“Board” shall mean the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Board of Directors” shall mean the board of directors, board of managers or other equivalent governing body of a Person.
“Borrower” shall have the meaning set forth in the preamble to this Agreement.
“Borrower Materials” shall have the meaning set forth in Section 12.24.
“Business” shall mean the business of cultivating, producing, processing, packaging and marketing cannabis products, accessories or services for distribution and sale and all ancillary activities related to the foregoing.
“Business Day” shall mean any day excluding Saturday, Sunday and any day that shall be in the City of Chicago, Illinois, the City of Vancouver, British Columbia or the City of Calgary, Alberta a legal holiday or a day on which banking institutions are authorized by law or other governmental actions to close.
“Canadian Anti-Money Laundering & Anti-Terrorism Legislation” shall mean the Criminal Code, R.S.C. 1985, c. C-46, the Proceeds of Crime Act and the United Nations Act, R.S.C. 1985, c.U-2 or any similar Canadian legislation, together with all rules, regulations and interpretations thereunder or related thereto including, without limitation, the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism and the United Nations Al-Qaida and Taliban Regulations promulgated under the United Nations Act.
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“Canadian Blocked Person” shall mean any Person that is a “designated person”, “politically exposed foreign person” or “terrorist group” as described in any Canadian Economic Sanctions and Export Control Laws.
“Canadian Cannabis Laws” shall mean the Cannabis Act (Canada), the Cannabis Regulations (Canada), the Excise Act (Canada) as well as any other Applicable Law enacted or enforced by a Canadian Governmental Authority that governs the production, processing, sale, distribution, transfer or possession of any cannabis, cannabis accessory, or cannabis service.
“Canadian Credit Party” shall mean any Credit Party that is organized under the laws of Canada or any province or territory thereof.
“Canadian Defined Benefit Plan” shall mean any Canadian Pension Plan which contains a “defined benefit provision” as defined in subsection 147.1(1) of the Tax Act.
“Canadian Economic Sanctions and Export Control Laws” shall mean any Canadian laws, regulations or orders governing transactions in controlled goods or technologies or dealings with countries, entities, organizations, or individuals subject to economic sanctions and similar measures, including the Special Xxxxxxxx Xxxxxxxx Xxx (Xxxxxx), the United Nations Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada), Part II.1 of the Criminal Code (Canada) and the Export and Import Permits Act (Canada), and any related regulations.
“Canadian Pension Plan” shall mean each “registered pension plan” (as such term is defined in the Tax Act) and any pension plan that is subject to federal or provincial pension standards legislation in Canada that is established, maintained or contributed to by any Credit Party for its Canadian employees or former employees, but shall not include the Canada Pension Plan (CPP) as maintained by the Government of Canada or the Quebec Pension Plan (QPP) as maintained by the Government of Quebec.
“Canadian Pension Termination Event” shall mean (a) the voluntary full or partial wind up of a Canadian Defined Benefit Plan by any Credit Party or any Affiliate thereof or initiation of any action or filing to do so; (b) the institution of proceedings by any Governmental Authority to terminate in whole or in part or have a trustee appointed to administer any Canadian Defined Benefit Plan; or (c) any other event or condition which would reasonably be expected to result in the termination of, winding up or partial termination of, or the appointment of trustee to administer, any Canadian Defined Benefit Plan.
“Canadian Security Agreement” shall mean, collectively, (a) that certain Canadian Security Agreement dated as of the Signing Date, between Parent and the Collateral Agent, (b) any other Canadian security agreement entered into from time to time, in form and substance reasonably satisfactory to the Collateral Agent, among any other Credit Party party thereto and the Collateral Agent and (c) any deed of hypothec entered into from time to time, in form and substance reasonably satisfactory to the Collateral Agent, among any Credit Party party thereto, as grantors, and Agent, as the Hypothecary Representative, or any one of them as the context requires.
“Canadian Statutory Lien” shall mean a deemed trust or lien under applicable Canadian federal, provincial or territorial law securing claims for any unpaid wages, vacation pay, worker’s compensation, unemployment insurance, pension plan contributions, pension solvency deficiency, employee source or non-resident withholding tax deductions, unremitted goods and services, harmonized sales, sales or other excise taxes or similar statutory obligations (secured by a deemed trust or lien), each of which are not overdue or are being contested in good faith by a Credit Party.
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“Capital Expenditures” shall mean, for any specified period, the sum of, without duplication, all expenditures made, directly or indirectly, by such Person during such period, determined on a consolidated basis in accordance with IFRS, that are or should be reflected as additions to property, plant or equipment or similar items reflected in the consolidated statement of cash flows and balance sheet of such Person, or have a useful life of more than one year.
“Capital Stock” shall mean any and all shares, interests, participations, units or other equivalents (however designated) of capital stock of a corporation, membership interests in a limited liability company, partnership interests of a limited partnership, any and all equivalent ownership interests in a Person and any and all warrants, rights or options to purchase any of the foregoing.
“Capitalized Lease Obligations” shall mean, as applied to any Person, all obligations under Capitalized Leases of such Person, in each case taken at the amount thereof accounted for as liabilities on the balance sheet (excluding the footnotes thereto) of such Person in accordance with IFRS.
“Capitalized Leases” shall mean, as applied to any Person, all leases of property that have been or should be, in accordance with IFRS, recorded as capitalized leases on the balance sheet of such Person; provided that, for all purposes hereunder, the amount of obligations under any Capitalized Lease shall be the amount thereof accounted for as a liability on the balance sheet (excluding the footnotes thereto) of such Person in accordance with IFRS.
“Cash Equivalents” shall mean:
(a) any direct obligation of (or unconditional guarantee by) the United States or Canada (or any agency or political subdivision thereof, to the extent such obligations are supported by the full faith and credit of the United States or Canada) maturing not more than one year after the date of acquisition thereof;
(b) commercial paper maturing not more than one year from the date of issue and issued by a corporation (other than an Affiliate of any Credit Party) organized under the laws of any state of the United States or of the District of Columbia or of Canada or of any province or territory thereof and, at the time of acquisition thereof, rated A-2 or higher by S&P or P-2 or higher by Xxxxx’x, or carrying an equivalent rating by an American or Canadian nationally recognized rating agency if at any time neither S&P or Xxxxx’x shall be rating such obligations;
(c) any certificate of deposit, time deposit or bankers acceptance, maturing not more than one year after its date of issuance, which is issued by a bank organized under the laws of the United States (or any state thereof) or of Canada (or of any province or territory thereof) which has, at the time of acquisition thereof, (i) a credit rating of A-2 or higher from Xxxxx’x or A or higher from S&P and (ii) a combined capital and surplus greater than $500,000,000;
(d) cash and demand deposits maintained with the domestic office of any commercial bank organized under the laws of the United States of America or any State or Canada which has a combined capital and surplus and undivided profits of not less than $500,000,000;
(e) any repurchase agreement having a term of thirty (30) days or less entered into with any Lender or any commercial banking institution satisfying, at the time of acquisition thereof, the criteria set forth in clause (c)(i) which (i) is secured by a fully perfected security interest in any obligation of the type described in clause (a), and (ii) has a market value at the time such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such commercial banking institution thereunder; and
(f) mutual funds investing primarily in assets described in clauses (a) through (d) of this definition.
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“Casualty Event” shall mean the damage, destruction or condemnation, as the case may be, of any Collateral of any Credit Party or Vireo Guarantor.
“CERCLA” shall mean the Comprehensive Environmental Response, Compensation and Liability Act of 1980.
“Change in Accounting Principles” shall mean the Borrower’s written notice to the Administrative Agent that the accounting policies and reporting practices of Parent and its Subsidiaries will be conducted in accordance with GAAP instead of IFRS and that such change is permitted by Applicable Law.
“Change in Cannabis Law” shall mean any change after the Restatement Date in Applicable Law, including Canadian Cannabis Law, U.S. Federal Cannabis Law and U.S. State Cannabis Law, that would (a) make it unlawful, or cause any Governmental Authority to formally assert that it is unlawful, for any Agent or Lender to (i) perform any of its obligations hereunder or under any other Credit Document, or (ii) to fund or maintain the Loans, or (b) result in the activities conducted by any Credit Party being Restricted Cannabis Activities.
“Change in Law” shall mean (a) the adoption of any law, rule, regulation or treaty after the date of this Agreement, (b) any change in any law, rule, regulation or treaty or in the interpretation, implementation or application thereof by any Governmental Authority after the date of this Agreement or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority after the date of this Agreement; provided that notwithstanding anything herein to the contrary, (x) the Xxxx Xxxxx Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives issued thereunder or in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the day enacted, adopted, issued or implemented.
“Change of Control” shall mean: (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person, of Capital Stock representing more than 30% of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock of Parent on a fully-diluted basis; (b) except as otherwise permitted by Section 9.03 or 9.04, Parent shall cease to own directly or indirectly, beneficially and of record, 100% of the Capital Stock of each Credit Party (other than Parent) that Parent owned as of the Third Amendment Effective Date, free and clear of all Liens or other encumbrances (other than Liens created pursuant to or permitted under any Credit Document); provided that a Change of Control pursuant to this clause (b) shall not be deemed to occur if (i) such Capital Stock was required to be transferred or disposed of in order for Parent or its Subsidiaries, as applicable, to be in compliance with Applicable Law so long as the Net Disposition Proceeds from such Disposition are applied as required by Section 4.02(a)(ii); or (ii) the Parent’s ownership of the Capital Stock of [***] is reduced in accordance with the terms of its Organization Documents in effect as of the Restatement Date; or (c) during any period of 12 consecutive months, a majority of the members of the board of directors of Parent cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board, or (iii) whose election or nomination to that board was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board.
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“[***] JV Disposition” shall mean the sale by [***].
“Chicago Atlantic” shall have the meaning set forth in the preamble to this Agreement.
“Claims” shall have the meaning set forth in the definition of Environmental Claims.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the Treasury Regulations promulgated and rulings issued thereunder.
“Collateral” shall mean any assets of any Credit Party or other assets upon which the Collateral Agent has been, or has purportedly been, granted a Lien in connection with this Agreement.
“Collateral Access Agreements” shall mean a collateral access agreement in form and substance reasonably satisfactory to the Collateral Agent between the Collateral Agent and any lessor, warehouseman, processor, bailee, consignee, or other Person in possession of, having a Lien upon, or having rights or interests in, any Credit Party’s books and records or assets.
“Collateral Agent” shall have the meaning set forth in the preamble to this Agreement.
“Collateral Assignee” shall have the meaning set forth in Section 12.06(d) of this Agreement.
“Collateral Assignment” shall mean any agreement executed by a Credit Party in favor of the Collateral Agent pursuant to which such Credit Party collaterally assigns to Collateral Agent all of its rights, title, and interests under any Opco Agreements to which it is a party, in each case in form and substance reasonably satisfactory to the Collateral Agent and as such agreement may be amended, restated, supplemented, replaced or otherwise modified from time to time.
“Collections” shall mean all cash, checks, credit card slips or receipts, notes, instruments, and other items of payment (including insurance proceeds, proceeds of cash sales, rental proceeds, and tax refunds) of the Credit Parties.
“CommitmentCommitments”
shall mean, collectively, the Existing Commitments and,
the Incremental Advance Commitments and the Second Incremental
Term Loan Commitments.
“Commitment Percentage” shall mean, as to any Lender providing a portion of a Loan, the ratio, expressed as a percentage, (a) the numerator of which is the outstanding principal amount of such Lender’s portion of such Loan, and (b) the denominator of which is the aggregate outstanding principal amount of such Loan.
“Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Communications” shall mean, collectively, any notice, demand, communication, information, document or other material that any Credit Party provides to the Administrative Agent pursuant to any Credit Document or the transactions contemplated therein which is distributed to the Administrative Agent or any Lender by means of electronic communications pursuant to Section 12.24, including through the Platform.
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“Competitor” shall mean (a) the Persons that are identified in writing by the Borrower to the Administrative Agent as being a competitor of the Credit Parties at the time on or prior to the Third Amendment Effective Date, (b) any Person identified after the Third Amendment Effective Date in writing by the Borrower to the Administrative Agent by e-mail to [***] that is at the time a competitor of the Credit Parties and (c) any Affiliate of any Person described in clauses (a) or (b) that is (i) identified in writing by the Borrower to the Administrative Agent by e-mail to [***] or (ii) clearly identifiable solely on the basis of the similarity of such Affiliate’s name to any Person described in clauses (a) or (b) (but excluding any Affiliate of such Person that is a bona fide debt fund or investment vehicle that is primarily engaged, or that advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds or similar extensions of credit or securities in the ordinary course and with respect to which such Person does not, directly or indirectly, possess the power to direct or cause the direction of the investment policies of such entity), it being understood that to the extent the Borrower provides such list (or any supplement thereto) to the Administrative Agent, the Administrative Agent shall provide such list (and any such supplement thereto) to any Lender upon request; provided that (x) no supplement to the list of Competitor shall apply retroactively to disqualify any Persons that have previously acquired an assignment or participation interest in respect of any Loans or Commitments from continuing to hold or vote such previously acquired assignments and participations on the terms set forth herein for Lenders that are not Competitors and (y) no update shall become effective until three (3) Business Days after such update is provided to the Administrative Agent (it being understood that no update shall apply to any Person that is party to a pending trade at the time of such update).
“Compliance Certificate” shall mean a certificate duly completed and executed by an Authorized Officer of the Borrower substantially in the form of Exhibit B, together with such changes thereto or departures therefrom as the Administrative Agent may from time to time reasonably request or approve for the purpose of monitoring the Credit Parties’ compliance with the financial covenants contained herein or certain other calculations, or as otherwise agreed to by the Administrative Agent.
“Confidential Information” shall have the meaning set forth in Section 12.16.
“Connection Income Taxes” shall mean Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes.
“Consolidated Companies” shall mean Parent and its Subsidiaries on a consolidated basis in accordance with IFRS.
“Consolidated EBITDA” shall mean, for a specified period, an amount determined for the Consolidated Companies, equal to:
(a) Consolidated Net Income, plus;
(b) to the extent reducing Consolidated Net Income, the sum of, without duplication, amounts for:
(i) Consolidated Interest Expense,
(ii) Taxes paid in cash by such Person (provided that, if there is a Tax refund received in such period, the amount thereof shall be deducted from Consolidated Net Income for purposes of calculating Consolidated EBITDA),
(iii) total depreciation expense,
(iv) total amortization expense,
(v) fees, charges and expenses incurred in connection with the consummation of the Transactions on or prior to the Restatement Date,
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(vi) non-cash charges reducing Consolidated Net Income (excluding any such non-cash item to the extent that it represents an accrual or reserve for potential cash items in any future period or amortization of a prepaid cash item that was paid in a prior period) including non-cash compensation expense in respect of stock option plans,
(vii) any cash expenses or losses from disposal of abandoned, transferred, closed or discontinued operations to the extent such disposal is permitted hereunder,
(viii) fees and expenses incurred in connection with Permitted Acquisitions in an aggregate amount not exceeding five percent (5%) of Consolidated EBITDA during any period of four fiscal quarters (calculated before giving effect to any addbacks in this clause (viii)),
(ix) reserved,
(x) any costs or expenses for such period related to issuance of equity interests, Investments, or Dispositions, in each case to the extent permitted under this Agreement, and any costs or expenses for such period related to any Extraordinary Receipts or the incurrence, extension, renewal, refinancing, repayment, prepayment or exchange of Indebtedness, in each case, permitted to be incurred hereunder; provided, that the aggregate amount permitted to be added back pursuant to this clause (x) shall not exceed $1,000,000 during any period of four fiscal quarters (calculated before giving effect to any addbacks in this clause (x)), and
(xi) any expenses, charges and losses (less any gains or positive adjustments) accrued during such period due to the effects of purchase accounting, as set forth in the Financial Accounting Standards Board Accounting Standards Code Topic 805, Business Combinations,
(c) minus, to the extent increasing Consolidated Net Income, the sum of, without duplication, amounts for:
(i) other non-cash gains increasing Consolidated Net Income for such period (excluding any such non-cash item to the extent it represents the reversal of an accrual or reserve for potential cash item in any prior period),
(ii) any income or gains from disposal of disposed, abandoned, transferred, closed or discontinued operations, and
(iii) to the extent not deducted in determining such Consolidated Net Income, all cash payments during such period on account of reserves and other non-cash charges added to Consolidated Net Income after the Restatement Date pursuant to clause (b)(vi).
Notwithstanding the foregoing, for all purposes of this Agreement, Consolidated EBITDA for each of the fiscal quarters set forth below shall be deemed to equal the amount set forth below for such fiscal quarter:
| Fiscal Quarter Ending | Consolidated EBITDA | |||
| March 31, 2020 | $ | 45,966,770 | ||
| June 30, 2020 | $ | 53,442,730 | ||
| September 30, 2020 | $ | 125,936,174 | ||
| December 31, 2020 | $ | 129,570,809 | ||
“Consolidated Fixed Charge Coverage Ratio” shall mean, with respect to the Consolidated Companies as of each applicable date of determination: (a) Consolidated EBITDA for the Applicable Fiscal Period, less the sum of (i) all Capital Expenditures made by the Consolidated Companies in the Applicable Fiscal Period plus (ii) all cash Taxes paid by the Consolidated Companies in the Applicable Fiscal Period (without benefit of any refund), divided by (b) the sum of (i) all cash distributions paid, and other distributions made, by the Consolidated Companies (other than such distributions made by a Consolidated Company to another Consolidated Company) during the Applicable Fiscal Period, plus (ii) the aggregate principal amount of the Indebtedness of the Consolidated Companies that was paid or scheduled to be paid during the Applicable Fiscal Period plus (iii) the aggregate of amount of the interest expense of the Consolidated Companies paid during the Applicable Fiscal Period, all determined in accordance with IFRS, consistently applied.
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“Consolidated Interest Expense” shall mean, for the Consolidated Companies, the sum of: (a) all interest in respect of Indebtedness (including, without limitation, the interest component of any payments in respect of Capitalized Lease Obligations of the Consolidated Companies) accrued or capitalized during such period (whether or not actually paid during such period), less interest income during such period, plus (b) the net amount payable (or minus the net amount receivable) in respect of Hedging Obligations of the Consolidated Companies relating to interest during such period (whether or not actually paid or received during such period).
“Consolidated Net Income” shall mean, for any specified period, the consolidated net income (or deficit) of the Consolidated Companies, in each case, after eliminating therefrom all extraordinary nonrecurring items of income or loss; provided that there shall be excluded, in determining Consolidated Net Income (without duplication): (a) the consolidated net income (or deficit) of any Person in which any Person has a joint interest, except to the extent of the amount of dividends or other distributions actually paid in cash to any of the Consolidated Companies by such Person during such specified period, (b) the income (or loss) of any Person accrued prior to the date it becomes a consolidated Subsidiary of any of the Consolidated Companies or is merged into or consolidated with any of the Consolidated Companies or such Person’s assets are acquired by any of the Consolidated Companies, (c) the income of any consolidated Subsidiary of any of the Consolidated Companies to the extent that the declaration or payment of dividends or other distributions by that consolidated Subsidiary of that income is not at the time permitted by operation of the terms of any Contractual Obligation or Applicable Law applicable to that consolidated Subsidiary, (d) any gain attributable to the write-up of any asset and any loss attributable to the write-down of any asset; (e) any net gain from the collection of the proceeds of life insurance policies; (f) any net gain or loss arising from the acquisition of any securities, or the extinguishment, under IFRS, of any Indebtedness of any of the Consolidated Companies, (g) in the case of a successor to any consolidated Subsidiary of any of the Consolidated Companies by consolidation or merger or as a transferee of its assets, any earnings of such successor prior to such consolidation, merger or transfer of asset (unless such successor was a consolidated Subsidiary of any of the Consolidated Companies prior to such consolidation, merger or transfer), (h) any deferred credit representing the excess of equity in any consolidated Subsidiary of any of the Consolidated Companies at the date of acquisition of such consolidated Subsidiary over the cost to the Consolidated Companies of the investment in such Subsidiary, (i) the cumulative effect of any change in IFRS during such period, and (j) any non-cash income (or loss) related to hedging activities.
“Contingent Liability” shall mean, for any Person, any agreement, undertaking or arrangement by which such Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the Indebtedness of any other Person (other than by endorsements of instruments in the course of collection), or guarantees the payment of dividends or other distributions upon the Capital Stock of any other Person. The amount of any Person’s obligation under any Contingent Liability shall (subject to any limitation set forth therein) be deemed to be the outstanding principal amount of the debt, obligation or other liability guaranteed thereby.
“Contractual Obligation” shall mean, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound other than the Obligations.
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“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. The terms “Controlling” and “Controlled” have meanings correlative thereto.
“Control Agreement” shall mean a pledge, collateral assignment, control agreement or bank consent letter, in form and substance reasonably satisfactory to the Collateral Agent, executed and delivered by the applicable Credit Party, the Collateral Agent, and the applicable securities intermediary or bank, which agreement is sufficient to give the Collateral Agent “control” over each of such Credit Party’s securities accounts, deposit accounts or investment property, as the case may be, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Copyright Security Agreements” shall mean any and all copyright security agreements entered into by the Credit Parties in favor of the Collateral Agent (as required by the Agreement or any other Credit Document), in each case, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Credit
Documents” shall mean (a) this Agreement, the Security Documents, the Opco Mortgagor Guaranty Agreement, any Notes, the
Pennsylvania Mortgage Intercreditor Agreement, each Joinder Agreement, the
Vireo Intercreditor Agreement, any fee letter, any subordination or intercreditor agreements in favor of any Agent with respect
to this Agreement and (b) any other document or agreement executed by any Credit Party, Pledgor or,
Opco Mortgagor or Vireo Guarantor, or by the
Borrower on behalf of the Credit Parties, the Pledgors or,
the Opco Mortgagors or the Vireo Guarantors, or any
of them, and delivered to any Agent or Lender in connection with any of the foregoing or the Obligations, in each case, as the same may
be amended, restated, supplemented or otherwise modified from time to time. For the avoidance of doubt, the Credit Documents shall not
include any Hedging Agreements.
“Credit Parties” shall mean the Borrower, and “Credit Party” shall mean any of the Persons comprising the Borrower, individually.
“CSA” shall mean the Canadian Securities Administrators, or any Governmental Authority succeeding to any of its principal functions.
“Debtor Relief Laws” shall mean Title 11 of the United States Code, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada), and all other liquidation, bankruptcy, assignment for the benefit of creditors, conservatorship, moratorium, receivership, insolvency, rearrangement, reorganization, or similar debtor relief laws of the United States of America, Canada or other applicable jurisdictions in effect from time to time.
“Default” shall mean any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Default Rate” shall mean a rate per annum equal to the Applicable Rate plus three percent (3.00%) per annum (except with respect to any Material Event of Default, in which case such additional amount shall be six percent (6.00%) per annum).
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“Defaulting Lender” shall mean any Lender that: (a) has failed, within two (2) Business Days of the date required to be funded or paid, to (i) fund any portion of its Commitment, (ii) pay over to either Agent or any Lender any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including a particular Default or Event of Default, if any) has not been satisfied; (b) has notified the Borrower or the Administrative Agent in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including a particular Default or Event of Default, if any) to funding a Loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit; (c) has failed, within two (2) Business Days after request by the Administrative Agent, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon the Administrative Agent’s receipt of such certification in form and substance satisfactory to the Administrative Agent or (d) has become the subject of an Insolvency Event.
“Designated Jurisdiction” shall mean any country or territory to the extent that such country or territory is the subject of any Sanction.
“Disposition” shall mean, with respect to any Person, any sale, transfer, lease, contribution, assignment or other conveyance (including by way of merger) of, or the granting of options, warrants or other rights to, any of such Person’s assets (including Capital Stock) to any other Person in a single transaction or series of transactions.
“Disqualified Capital Stock” shall mean any Capital Stock that, by its terms (or by the terms of any security or other Capital Stock into which it is convertible or for which it is exchangeable) or upon the happening of any event or condition, (a) matures or is mandatorily redeemable (other than solely for Qualified Capital Stock after the Secured Parties are paid in full), pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof (other than solely for Qualified Capital Stock or in connection with a Change of Control after the Secured Parties are paid in full), in whole or in part, (c) provides for the scheduled payment of dividends in cash or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Capital Stock that would constitute Disqualified Capital Stock, in each case, prior to the date that is one hundred and eighty (180) days after the latest Maturity Date; provided that, if such Capital Stock is issued pursuant to a plan for the benefit of employees of the Borrower or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“Dollars” and “$” shall mean dollars in lawful currency of the United States of America.
“XXXXX” shall mean the United States Securities and Exchange Commission’s Electronic Data Gathering, Analysis, and Retrieval system.
“Environmental Claims” shall mean any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations (other than internal reports prepared by the Credit Parties (a) in the ordinary course of such Person’s business or (b) as required in connection with a financing transaction or an acquisition or disposition of real estate) or proceedings relating to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (“Claims”), including (i) any and all Claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from the Release or threatened Release of Hazardous Materials or arising from alleged injury or threat of injury to health or safety (to the extent relating to the exposure to Hazardous Materials) or the environment.
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“Environmental Law” shall mean any applicable federal, state, provincial, territorial, foreign or local statute, law, rule, regulation, ordinance, code and rule of common law now or hereafter in effect and in each case as amended, and any binding judicial or administrative interpretation thereof, including any binding judicial or administrative order, consent decree or judgment, relating to the protection of the environment or human health or safety (to the extent relating to exposure to Hazardous Materials).
“Equivalent Amount” shall mean, on any date of determination, with respect to obligations or valuations denominated in one currency (the “first currency”), the amount of another currency (the “second currency”) which would result from the conversion of the relevant amount of the first currency into the second currency at the 12:00 noon rate quoted by Bloomberg on xxx.xxxxxxxxx.xxx/xxxxxxx/xxxxxxxxxx/xxx.xxxx (Page BOFC or such other Page as may replace such Page for the purpose of displaying such exchange rates) on such date or, if such date is not a Business Day, on the Business Day immediately preceding such date of determination, or such other rate as may have been agreed to in writing between the Borrower and the Administrative Agent.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated thereunder. Section references to ERISA are to ERISA as in effect at the date of this Agreement and any subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted therefor.
“ERISA Affiliate” shall mean each Person (as defined in Section 3(9) of ERISA), as to which any Credit Party or any Subsidiary of any Credit Party, is, or within the last six (6) years was, treated as a “single employer” (a) within the meaning of Section 414(b), (c) of the Code (and sections 414(m) and (o) of the Code for purposes of provisions relating to section 412 of the Code and section 302 of ERISA) or (b) as a result of any Credit Party or any Subsidiary of any Credit Party being or having been a general partner of such Person.
“Event of Default” shall have the meaning set forth in Article X.
“Excluded Accounts” shall mean (a) deposit accounts used solely to fund payroll or employee benefits, (b) escrow or trust accounts, (c) zero balance accounts and (d) unless the Collateral Agent receives a Control Agreement with respect thereto, those deposit accounts noted as “Excluded Account (<25%)” on Schedule 7.25 as of the Signing Date.
“Excluded Hedging Obligation” shall mean, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes illegal.
“Excluded Issuances” shall mean (a) the issuance of Capital Stock (other than Disqualified Capital Stock) by the Borrower to members of the management, employees or directors of any Credit Party; (b) the issuance of Capital Stock of the Borrower (other than Disqualified Capital Stock) upon the exercise of any warrants issued by the Borrower on or prior to the Restatement Date; (c) the issuance of Capital Stock by Parent (other than Disqualified Capital Stock) so long as such issuance of Capital Stock by Parent does not result in a Change of Control; and (d) the issuance of Capital Stock by a Subsidiary (other than Disqualified Capital Stock) to a Credit Party so long as such issuance of Capital Stock by such Subsidiary does not result in a Change of Control.
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“Excluded Property” shall the meaning provided for such term in the Security Agreement.
“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 12.06) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 4.04, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 4.04(f), (d) any U.S. and (in the case of any payment made by a Canadian Credit Party) Canadian federal withholding Taxes imposed under FATCA; and (e) Canadian federal withholding Taxes imposed upon a Recipient as a result of such Recipient (i) not dealing at “arm’s length” (within the meaning of the Tax Act), with the Borrower, or (ii) being a “specified shareholder” (within the meaning of subsection 18(5) of the Tax Act) of the Borrower or not dealing at “arm’s length” (within the meaning of the Tax Act) with a “specified shareholder” (within the meaning of subsection 18(5) of the Tax Act) of the Borrower, except, in the case of (i) or (ii), where the non-arm’s length relationship arises, or where the Recipient is (or is deemed to be) a specified non-resident shareholder of the Borrower or does not deal at arm’s length with a specified shareholder of the Borrower, on account of the Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or enforced this Agreement or any other Credit Document.
“Existing
Commitments” shall mean the obligation of the Lenders to make the Loans (other than the Incremental Advance Loans and
the Second Incremental Term Loans) hereunder, in each case in the Dollar amounts set forth beside such Lender’s name
under the applicable heading on Schedule 1.01 attached hereto, or in the Assignment
and Acceptance pursuant to which such Lender became a Lender under this Agreement, as such amounts may be changed from time to time pursuant
to the terms of this Agreement.
“Extraordinary Receipts” shall mean any cash received by or paid to or for the account of any Consolidated Company not in the ordinary course of business, including, without limitation: (a) proceeds of judgments, proceeds of settlements or other consideration of any kind in connection with any cause of action to the extent not used to pay any corresponding cause of action or to reimburse a Consolidated Company for amounts previously expended, (b) indemnification payments received by any Consolidated Company to the extent not used or anticipated to be used to pay any corresponding liability or reimburse such Consolidated Company for the payment of any such liability, (c) tax refunds, and (d) pension plan reversions, net of Taxes paid or payable with respect to such amounts.
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future Treasury Regulations thereunder or official interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above), and any intergovernmental agreements (together with any Applicable Laws implementing such agreements) implementing the foregoing.
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“Fees” shall mean all amounts payable pursuant to, or referred to in, Section 3.01.
“Federal Funds Rate” shall mean, for any period, a fluctuating per annum interest rate (rounded upwards, if necessary, to the nearest 1/100 of one percentage point) equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by the Administrative Agent.
“Financial Performance Covenants” shall mean the covenants set forth in Section 9.13.
“Foreign Lender” shall mean a Lender that is not a U.S. Person.
“Foreign Plan” shall mean any employee pension benefit plan, program, policy, arrangement or agreement maintained or contributed to by any Credit Party or any Subsidiary with respect to employees not employed in the United States (other than any governmental arrangement) or Canada.
“GAAP” shall mean generally accepted accounting principles in the United States of America set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the accounting profession), including the FASB Accounting Standards Codification™, which are applicable to the circumstances as of the date of determination, subject to Section 1.03.
“Governmental Authority” shall mean the government of the United States, Canada any foreign country or any multinational or supranational authority, or any state, province, territory, commonwealth, protectorate or political subdivision thereof, and any entity, body or authority exercising executive, legislative, taxing, judicial, regulatory or administrative functions of or pertaining to government, including, without limitation, the PBGC, Health Canada and other administrative bodies or quasi-governmental entities established to perform the functions of any such agency or authority.
“Xxxxx Xxx” shall mean Xxxxx Xxx Capital, LLC, a Delaware limited liability company.
“Guarantee Obligations” shall mean, as to any Person, any Contingent Liability of such Person or other obligation of such Person guaranteeing or intended to guarantee any Indebtedness of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (a) to purchase any such Indebtedness or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such Indebtedness or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor to make payment of such Indebtedness or (d) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect thereof; provided that the term “Guarantee Obligations” shall not include endorsements of instruments for deposit or collection in the ordinary course of business and consistent with past practice (unless a departure from past practice coincides with an industry-wide departure from past practice or results from a new technological development or custom) or customary and reasonable indemnity obligations in effect on the Restatement Date, entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than with respect to Indebtedness). The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith and reasonable business judgment.
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“Guarantors” shall mean, collectively, jointly and severally, Parent, the other Persons comprising the Borrower, the Vireo Guarantors and the Opco Mortgagors.
“Hazardous Materials” shall mean (a) any petroleum or petroleum products, radioactive materials, friable asbestos, urea formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing regulated levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “waste”, “recycled materials”, “sludge”, “hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous waste”, “restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”, or “pollutants”, or words of similar import, under any applicable Environmental Law; and (c) any other chemical, waste, recycled material, material or substance, which is prohibited, limited or regulated by any Environmental Law.
“Hedging Agreement” shall mean (a) any and all agreements or documents not entered into for speculative purposes that provide for an interest rate, credit, commodity or equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross currency rate swap, currency option, or any combination of, or option with respect to, these or similar transactions, for the purpose of hedging exposure to fluctuations in interest or exchange rates, loan, credit exchange, security, or currency valuations or commodity prices, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement or any other master agreement including any such obligations or liabilities under any such master agreement.
“Hedging Obligations” shall mean, with respect to any Person, the obligations of such Person under Hedging Agreements.
“Hypothecary Representative” shall have the meaning set forth in Section 11.01.
“IFRS” shall mean the International Financial Reporting Standards set forth in the opinions and pronouncements of the Canadian Accounting Standards Board, consistently applied.
“Incremental
Advance Commitment” shall mean the obligation of the Lenders to make the Loans (other than the 2020 Loans, the 2021 Loans
and, the Initial
Restatement Loans and, if any, the Second Incremental Term Loans)
hereunder, in each case in the Dollar amounts set forth beside such Lender’s name under the applicable heading on Schedule 1.01
attached hereto (as amended pursuant to Section 2.01(c)), or in the Assignment
and Acceptance pursuant to which such Lender became a Lender under this Agreement, as such amounts may be changed from time to time pursuant
to the terms of this Agreement.
“Incremental Advance Commitment Effective Date” has the meaning specified in Section 2.01(c)(iii).
“Incremental Advance Lender” has the meaning specified in Section 2.01(c)(ii).
“Incremental Advance Loan” shall mean the loans advanced pursuant to the Increased Advance Commitments as provided in Section 2.01(c).
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“Indebtedness” shall mean, as to any Person at a particular time, without duplication, whether or not included as indebtedness or liabilities in accordance with IFRS:
(a) all indebtedness of such Person for borrowed money and all indebtedness of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) the maximum amount (after giving effect to any prior drawings or reductions which may have been reimbursed) of all letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person;
(c) net Hedging Obligations of such Person;
(d) all obligations of such Person to pay the deferred purchase price of property or services, but excluding trade accounts payable in the ordinary course of business which are not overdue for a period of more than ninety (90) days past the applicable due date thereof excluding any such obligations that are subject to a bona fide dispute regarding amount or such Person’s liability to pay so long as (A) such dispute is being properly contested in good faith by appropriate proceedings promptly instituted and diligently pursued; and (B) appropriate reserves have been established in accordance with IFRS;
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f) all Attributable Indebtedness;
(g) all obligations of such Person with respect to the redemption, repayment or other repurchase or payment in respect of any Disqualified Capital Stock; and
(h) all Guarantee Obligations of such Person in respect of any of the foregoing;
provided, that Indebtedness shall not include (w) prepaid or deferred revenue arising in the ordinary course of business on customary terms, (x) purchase price holdbacks arising in the ordinary course of business and on customary terms in respect of a portion of the purchase price of an asset to satisfy warranties or other unperformed obligations of the seller of such asset, (y) endorsements of checks or drafts arising in the ordinary course of business and consistent with past practice (unless a departure from past practice coincides with an industry-wide departure from past practice or results from a new technological development or custom), and (z) preferred Capital Stock to the extent not constituting Disqualified Capital Stock.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or another entity not disregarded for tax purposes) in which such Person is a general partner or a joint venture (whether partner or member), except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. The amount of Indebtedness of any Person for purposes of clause (e) above shall be deemed to be equal to the lesser of (x) the aggregate unpaid amount of such Indebtedness and (y) the fair market value of the property encumbered thereby as determined by such Person in good faith and reasonable business judgment.
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“Indemnified Liabilities” shall have the meaning set forth in Section 12.05.
“Indemnified Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party, Opco Mortgagor, Pledgor or Vireo Guarantor under any Credit Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Individual Pledge Agreement” shall mean that certain Amended and Restated Limited Recourse Guaranty and Pledge Agreement dated as of the Restatement Date from the Pledgors in favor of the Collateral Agent, for the benefit of the Secured Parties, as may be amended or modified from time to time.
“Initial Restatement Advance Loans” shall have the meaning set forth in Section 2.01(b).
“Insolvency Event” shall mean, with respect to any Person, including without limitation any Lender, such Person or such Person’s direct or indirect parent company (a) becomes the subject of a bankruptcy, insolvency, examinership or receivership proceeding (including any proceeding under Title 11 of the United States Code, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or the Canada Business Corporations Act or any similar law or proceeding seeking the compromise or extinguishment of claims of creditors), or regulatory restrictions, (b) has had a receiver, interim receiver, monitor, sequestrator, examiner, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it or has called a meeting of its creditors, (c) admits in writing its inability, or be generally unable, to pay its debts as they become due or cease material operations of its present business, (d) with respect to a Lender, such Lender is unable to perform hereunder due to the application of Applicable Law, or (e) in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment of a type described in clauses (a) or (b), provided that an Insolvency Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person or such Person’s direct or indirect parent company by a Governmental Authority or instrumentality thereof if, and only if, such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
“Investment” shall mean, relative to any Person, (a) any loan, advance or extension of credit made by such Person to any other Person, including the purchase by such first Person of any bonds, notes, debentures or other debt securities of any such other Person; (b) the incurrence of Contingent Liabilities for the benefit of any other Person; and (c) acquisition of any Capital Stock or other investment held by such Person in any other Person. The amount of any Investment at any time shall be the original principal or capital amount thereof less all returns of principal or equity thereon made on or before such time and shall, if made by the transfer or exchange of property other than cash, be deemed to have been made in an original principal or capital amount equal to the fair market value of such property at the time of such Investment.
“IP Rights” shall have the meaning set forth in Section 7.13.
“Joinder
Agreement” shall mean a joinder or similar agreement entered into by any Person (including any Lender) under Section
2.01(c) or 2.01(d) pursuant to which such Person shall provide an
Incremental Advance Commitment or a Second Incremental Term Loan Commitment,
respectively, hereunder and (if such Person is not then a Lender) shall become a Lender party hereto.,
in form and substance reasonably acceptable to the Administrative Agent, as executed by the applicable Credit Parties or Vireo Guarantors,
one or more Lender(s) providing an Incremental Advance Commitment or a Second Incremental Term Loan Commitment, as the case may be, and
the Administrative Agent. A Joinder Agreement may take the form of an amendment to this Agreement.
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“Lender” shall have the meaning set forth in the preamble to this Agreement.
“Lien” shall mean any mortgage, pledge, security interest, hypothecation, assignment for collateral purposes, lien (statutory or other) or similar encumbrance, and any easement, right-of-way, license, restriction (including zoning restrictions), defect, exception or irregularity in title or similar charge or encumbrance (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof); provided that in no event shall an operating lease entered into in the ordinary course of business and on customary terms or any precautionary UCC or PPSA filings made pursuant thereto by an applicable lessor or lessee, be deemed to be a Lien.
“Liquidity” shall mean the sum, for the Credit Parties, of unrestricted cash and Cash Equivalents, in each case, which is held in a deposit account or a securities account subject to the Lien of the Collateral Agent and a Control Agreement.
”Loans” shall mean the loans made by the Lenders to the Borrower pursuant to this Agreement, including the Incremental Advance Loans and the Second Incremental Term Loans.
“Make-Whole
Amount” shall mean, with respect to any Prepayment Event, (a) if the Loans being repaid are 2020 Loans or 2021 Loans, an
amount equal to the present value of all payments of interest on the principal amount of such prepaid Loans that are scheduled to accrue
through the Make-Whole Date, calculated using a discount rate equal to the Treasury Rate and (b) if the Loans being repaid are Initial
Restatement Advance Loans, an amount equal to (i) the sum of (A) all payments of interest on the principal amount of such prepaid Loans
that would have been due hereunder after the date of such prepayment through the date that is the 12-month anniversary of the Third Amendment
Effective Date with respect to such principal if no prepayment of such principal was made prior to its scheduled due date; plus (B) all
fees that would have been due to any Agent or any Lender with respect to such prepaid Loans after the date of such prepayment through
such anniversary date if no prepayment of such principal was made prior to its scheduled due date multiplied by (ii) 80.00%, and
(c) if the Loans being repaid are Incremental Advance Loans, an amount equal to (i) the sum of (A) all payments of interest
on the principal amount of such prepaid Loans that would have been due hereunder after the date of such prepayment through the date that
is the 12-month anniversary of the Incremental Advance Commitment Effective
Date with respect to such principal if no prepayment of such principal was made prior to its scheduled due date; plus (B) all fees that
would have been due to any Agent or any Lender with respect to such prepaid Loans after the date of such prepayment through such anniversary
date if no prepayment of such principal was made prior to its scheduled due date multiplied by (ii) 80.00%,
and (d) if the Loans being repaid are the Second Incremental Term Loans, as set forth in the Joinder Agreement for the Second Incremental
Term Loans.
“Make-Whole
Date” shall mean (a) with respect to the 2020 Loans and the 2021 Loans, the last calendar day of the ninth (9th) month
following the Restatement Date, (b) with respect to the Initial Restatement Advance Loans, the last calendar day of the ninth (9th) month
following the Third Amendment Effective Date and,
(c) with respect to the Incremental Advance Loans, the last calendar day of the ninth (9th) month following the Incremental
Advance Commitment Effective Date and
(d) with respect to the Second Incremental Term Loans, as set forth in the Joinder Agreement for the Second Incremental Term Loans.
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“Material Adverse Effect” shall mean a material adverse effect on (a) the business, assets, liabilities (actual or contingent), operations, financial condition, results of operations or performance of Credit Parties taken as a whole, (b) the validity or enforceability of this Agreement or any of the other Credit Documents (it being agreed that documents described in clause (b) of the definition of “Credit Documents” shall be taken as a whole), (c) the ability of any Credit Parties, taken as a whole, to perform their obligations under any Credit Document (it being agreed that documents described in clause (b) of the definition of “Credit Documents” shall be taken as a whole) to which they are parties, (d) the rights or remedies of the Secured Parties or the Lenders hereunder or thereunder, (e) the priority of any Liens granted to the Collateral Agent in or to any Collateral (other than as a result of voluntary and intentional discharge of the Lien by the Collateral Agent or Permitted Liens), (f) the Regulatory Licenses taken as a whole or (g) the cultivation center permit of [***].
“Material Contracts” shall mean: (a) any agreement to which Parent or any Subsidiary is a party evidencing, securing or pertaining to any Indebtedness owing to or from such Person, or any guaranty thereof, in a principal amount exceeding $25,000,000; (b) any real property lease of any Credit Party where annual rent exceeds $2,500,000; (c) any operating lease of any Credit Party where annual rent exceed $2,500,000; (d) any other agreement (other than the agreements set forth in the foregoing clauses (a) through (c)) to which any Credit Party is a party which involves aggregate annual consideration payable to or by such Person of $10,000,000 or more; (e) any document, agreement or instrument evidencing or governing any Permitted Subordinated Indebtedness; (f) each Opco Agreement; (g) any documents evidencing deferred purchase price obligations in an aggregate amount exceeding $20,000,000; and (h) any other agreement the termination of which (without contemporaneous replacement of substantially equivalent value) could reasonably be expected to have a Material Adverse Effect.
“Material Default” shall mean any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default arising under Section 10.01(a), 10.01(c) (solely with respect to a default related to Section 9.13), 10.01(i) or 10.01(n).
“Material
Event of Default” shall mean any Event of Default arising under Section 10.01(a), 10.01(c) (solely with respect
to a default related to Section 8.01, 8.178.15
or 9.13), 10.01(f), 10.01(i), 10.01(j), 10.01(n) or 10.01(o).
“Maturity
Date” shall mean (a) with respect to the 2020 Loan and the 2021 Loan, May 30, 2023; (b) with respect to the Initial Restatement
Advance Loans, April 28, 2023, and (c) with respect to the Incremental Advance Loans,
the 18-month anniversary of theAugust
31, 2023, and (d) as to the Second Incremental Advance Effective DateTerm
Loans, the maturity date set forth in the Joinder Agreement for the Second Incremental Term Loans.
“Moody’s” shall mean Xxxxx’x Investors Service, Inc. or any successor by merger or consolidation to its business.
“Mortgage” shall mean each mortgage, deed of trust, deed to secure debt, trust deed or other security document granted by any applicable Credit Party or Vireo Guarantor to the Collateral Agent for the benefit of the Secured Parties in respect of any Real Property owned or leased by such Credit Party or Vireo Guarantor that is Collateral, in such form as agreed between such Credit Party and the Collateral Agent.
“Mortgaged
Property” shall mean (a) all Real Property owned
by any of the Credit Parties or,
Opco Mortgagors or Vireo Guarantors that constitutes,
or will constitute upon the acquisition thereof, Collateral, as further identified on Schedule 7.15(a) and
(b) all Real Property required to be pledged pursuant to Section 8.10.
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“Multiemployer Plan” shall mean any multiemployer plan, as defined in Section 4001(a)(3) of ERISA, which is contributed to by (or to which there is or may be an obligation to contribute of) any Credit Party, any Subsidiary of any Credit Party or any ERISA Affiliate, and each such plan for the five-year period immediately following the latest date on which any Credit Party, any Subsidiary of any Credit Party or any ERISA Affiliate contributed to or had an obligation to contribute to such plan.
“Net Casualty Proceeds” shall mean, with respect to any Casualty Event, the amount of any insurance proceeds or condemnation awards received by any Credit Party or Vireo Guarantor in connection with such Casualty Event (net of (a) the amount of any reserves to be maintained in connection with the Casualty Event, to the extent such reserve is maintained in accordance with IFRS, and (b) all reasonable and customary collection expenses thereof (including, without limitation, any legal or other professional fees) (except with respect to any expenses paid to an Affiliate of such Person)), but excluding any proceeds or awards required to be paid to a creditor (other than the Lenders) which holds a Lien permitted by Section 9.02(c) on the property which is the subject of such Casualty Event, and less any Taxes payable on account of such insurance proceeds or condemnation award, actually paid, assessed or estimated (in good faith) to be payable within the next 12 months in cash in connection with such Casualty Event, in each case to the extent, but only to the extent, that the amounts are properly attributable to such transaction; provided that if, after the expiration of such 12-month period, the amount of such estimated or assessed Taxes, if any, exceeded the Taxes actually paid in cash in respect of proceeds from such Casualty Event, the aggregate amount of such excess shall constitute Net Casualty Proceeds under Section 4.02(a)(iii) and be immediately applied to the Obligations pursuant to Section 4.02(c).
“Net Debt Proceeds” shall mean, with respect to the sale or issuance by any Credit Party of any Indebtedness (other than Indebtedness permitted by Section 9.01), the excess of: (a) the gross cash proceeds received by the issuer of such Indebtedness from such sale or issuance, over (b) all reasonable and customary underwriting commissions and legal, investment banking, underwriting, brokerage, accounting and other professional fees, sales commissions and disbursements and all other reasonable fees, expenses and charges, in each case actually incurred and paid in connection with such sale or issuance, except any such amounts that have not been paid, and are not payable, to any Affiliate of such Person.
“Net Disposition Proceeds” shall mean, with respect to any Disposition by any Credit Party or Vireo Guarantor of Collateral, the excess of: (a) the gross cash proceeds received by such Person from such Disposition, over (b) the sum of: (i) all reasonable and customary legal, investment banking, underwriting, brokerage and accounting and other professional fees, sales commissions and disbursements and all other reasonable fees, expenses and charges, in each case actually incurred and paid in connection with such Disposition, except any such amounts that have not been paid, and are not payable, to any Affiliate of such Person, (ii) all Taxes payable on account of proceeds from such Disposition, actually paid, assessed or estimated (in good faith) to be payable in cash within the next 12 months in connection with such proceeds, in each case to the extent, but only to the extent, that the amounts so are properly attributable to such transaction, and (iii) the amount of any reserves to be maintained in connection with such Disposition, to the extent such reserve is maintained in accordance with IFRS; provided that if, after the expiration of the 12-month period referred to in clause (b)(ii) above, the amount of estimated or assessed Taxes, if any, pursuant to clause (b)(ii) above exceeded the Taxes actually paid in cash in respect of proceeds from such Disposition, the aggregate amount of such excess shall constitute Net Disposition Proceeds under Section 4.02(a)(ii) and be immediately applied to the Obligations pursuant to Section 4.02(c).
“Net Equity Proceeds” shall mean, with respect to the sale, issuance or exercise after the Restatement Date by any Credit Party of any Capital Stock or any capital contribution by any Person to any such Credit Party, the excess of: (a) the gross cash proceeds received by such Credit Party from such sale, issuance or exercise, over (b) all reasonable and customary underwriting commissions and legal, investment banking, brokerage, accounting and other professional fees, original issue discount, sales commissions and disbursements actually incurred and paid in connection with such sale or issuance, in each case for this clause (b), solely to the extent such discounts, commissions, costs, fees, expenses and disbursements are paid to non-Affiliates.
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“Non-Credit Party Subsidiary” shall mean, at any time, a direct or indirect Subsidiary of Parent that is not a Credit Party.
“Non-Defaulting Lender” shall mean, at any time, any Lender holding a Commitment which is not a Defaulting Lender.
“Note” shall mean a promissory note (or amended and restated promissory note) substantially in the form of Exhibit C.
“Notice of Control” shall have the meaning set forth in Section 8.13(c).
“Obligations” shall mean (a) with respect to the Borrower, all obligations (monetary or otherwise, whether absolute or contingent, matured or unmatured) of the Borrower arising under or in connection with any Credit Document, including all original issue discount, fees, costs, expenses (including fees, costs and expenses incurred during the pendency of any proceeding of the type described in Section 10.01(i), whether or not allowed or allowable in such proceeding) and premiums payable under any Credit Document, the principal of and interest (including interest accruing during the pendency of any proceeding of the type described in Section 10.01(i), whether or not allowed or allowable in such proceeding) on the Loans, all indemnification obligations and all obligations to pay or reimburse any Secured Party for paying any costs or expenses under any Credit Document, or (b) with respect to each Pledgor, each Opco Mortgagor, each Vireo Guarantor and each Credit Party other than the Borrower, all obligations (monetary or otherwise, whether absolute or contingent, matured or unmatured) of such Pledgor, Opco Mortgagor, Vireo Guarantor or Credit Party arising under or in connection with any Credit Document, all indemnification obligations and all obligations to pay or reimburse any Secured Party for paying any costs or expenses under any Credit Document. For the avoidance of doubt, the Obligations shall not include any Hedging Obligations.
“Opco” shall mean any Person (other than the Credit Parties) (a) that is a party to an Opco Management Agreement, (b) for whom any Credit Party provides services similar to those set forth in the Opco Management Agreements or (c) who holds a Permit for the direct or indirect economic benefit of the Credit Parties, in each case, including, for the avoidance of doubt, (x) if the Vireo Acquisition closes, any such Person, and (y) if the Potential Acquisition closes, any nonprofit corporation that is a part of the Potential Acquisition.
“Opco Agreements” shall mean, collectively, (a) Opco Management Agreements, (b) Opco Option Agreements, (c) Opco Security Agreements and any other agreement granting or perfecting a lien on the assets of an Opco for the benefit of a Credit Party, (d) any promissory note, deficit funding loan agreement or similar agreement between an Opco and a Credit Party, and (e) any other similar agreement entered into between a Credit Party and an Opco or an owner of an Opco in relation to the provision of services to any such Opco.
“Opco Management Agreement” shall mean each agreement between a Credit Party and an Opco, pursuant to which, among other things, such Credit Party agrees to provide management, administrative, consulting or business services to such Opco, substantially in form and substance of the Opco Management Agreements existing as of the Restatement Date.
“Opco Mortgagor” shall mean [***].
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“Opco Mortgagor Guaranty Agreement” shall mean any guaranty agreement executed and delivered by an Opco Mortgagor, in form and substance reasonably acceptable to the Administrative Agent, as amended, restated or otherwise modified from time to time.
“Opco Mortgagor Mortgage” shall mean any mortgage granted by an Opco Mortgagor to the Collateral Agent for the benefit of the Secured Parties in respect of Real Property owned by such Opco Mortgagor, in form and substance reasonably acceptable to the Collateral Agent, as amended, restated or otherwise modified from time to time.
“Opco Option Agreement” shall mean an agreement (which may be included as part of the terms of an Opco Management Agreement or any other Opco Agreement) pursuant to which the owner(s) of Capital Stock issued by an Opco grant(s) to a Credit Party a right to purchase or transfer, or cause the purchase or transfer, of Capital Stock of the Opco held by such owner(s) by or to a Person duly qualified to hold such Capital Stock under applicable Laws and designated by such Credit Party that is party thereto.
“Opco Requirements” shall mean, with respect to each Opco, the satisfaction of each of the requirements contained in Section 8.18, together with such other items that may be reasonably required by the Administrative Agent in connection with an Opco.
“Opco Security Agreement” shall mean a security agreement executed and delivered by an Opco in favor of each Credit Party that is a party to an Opco Management Agreement with such Opco, granting to such Credit Party a first priority Lien in all property of such Opco (subject to limitations under Applicable Law) to secure the repayment of all Indebtedness owed from time to time by such Opco to each such Credit Party, which security agreement shall be substantially in form and substance of the Opco Security Agreements existing as of the Restatement Date; provided, that the terms otherwise required of an Opco Security Agreement may be included in the relevant Opco Management Agreement or other Opco Agreement.
“Original Closing Date” shall mean July 2, 2020.
“Original Credit Agreement” shall have the meaning set forth in the preamble to this Agreement.
“Original Loans” shall mean all “Loans” as defined in the Original Credit Agreement outstanding immediately prior to the Restatement Date.
“Organization Documents” shall mean, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company or unlimited liability company, the certificate of incorporation, constitution or articles of formation or organization and operating agreement (if relevant) or memorandum of association; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and, if applicable, any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“OSC” shall mean the Ontario Securities Commission, or any Governmental Authority succeeding to any of its principal functions.
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“Other Connection Taxes” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document).
“Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Credit Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.02).
“Parent” shall have the meaning set forth in the preamble to this Agreement.
“Parent Pledge Agreement” shall mean that certain Pledge Agreement dated as of May 20, 2021 between Parent and the Collateral Agent, for the benefit of the Secured Parties, as may be amended or modified from time to time.
“Participant” shall have the meaning set forth in Section 12.06(c)(i).
“Participant Register” shall have the meaning set forth in Section 12.06(c)(iii).
“Patent Security Agreements” shall mean the (a) Patent Security Agreement dated as of May 20, 2021 made in favor of the Collateral Agent by each applicable Credit Party; and (b) any patent security agreements entered into by a Credit Party in favor of the Collateral Agent (as required by the Agreement or any other Credit Document), in each case, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Patriot Act” shall have the meaning set forth in Section 12.19.
“Payment Conditions” shall mean, with respect to the making of any Permitted Subordinated Debt Payment, or the incurrence of any Permitted Subordinated Indebtedness, each of the following conditions:
(a) no Event of Default or Material Default shall have occurred and be continuing prior to or after giving effect to the making of such Permitted Subordinated Debt Payment, or the incurrence of such Permitted Subordinated Indebtedness, as applicable;
(b) the Borrower has delivered to the Administrative Agent (i) the financial information for the immediately preceding fiscal quarter required by Section 8.01, and (ii) calculations evidencing that after the making of such Permitted Subordinated Debt Payment, or the incurrence of such Permitted Subordinated Indebtedness, as applicable, the Credit Parties will be in compliance on a Pro Forma Basis with the Financial Performance Covenants as of the last day of such immediately preceding fiscal quarter; and
(c) at least five (5) Business Days prior to making such Permitted Subordinated Debt Payment, or incurring such Permitted Subordinated Indebtedness, as applicable, the Borrower has delivered a duly executed certificate to the Administrative Agent, in form and substance acceptable to the Administrative Agent, pursuant to which the Borrower shall certify that the conditions set forth in clauses (a) and (b) above have been satisfied and will continue to be satisfied as of the making of such Permitted Subordinated Debt Payment, or the incurrence of such Permitted Subordinated Indebtedness, as applicable.
“Payment Date” shall mean the last Business Day of each calendar month.
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“PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.
“Pension Plan” shall mean any Multiemployer Plan or any “employee benefit plan,” as defined in Section 3 of ERISA subject to Title IV of ERISA, Section 412 of the Code or Sections 302 or 303 of ERISA, sponsored, maintained or contributed to by any Credit Party, Subsidiary of a Credit Party or any ERISA Affiliate (or to which any Credit Party, Subsidiary of a Credit Party or any ERISA Affiliate has or may have an obligation to contribute or to make payments), and each such plan for the five-year period immediately following the latest date on which any Credit Party, Subsidiary of a Credit Party or any ERISA Affiliate maintained, contributed to or had an obligation to contribute to (or is deemed under Sections 4069 or 4212(c) of ERISA to have maintained or contributed to or to have had an obligation to contribute to, or otherwise to have liability with respect to) such plan.
“Pennsylvania Borrowers” shall mean [***].
“Pennsylvania Mortgage Collateral Agent” shall mean Chicago Atlantic, in its capacity as collateral agent under the Pennsylvania Mortgage Credit Agreement.
“Pennsylvania Mortgage Credit Agreement” shall mean that certain Credit Agreement dated as of September 3, 2021, among Pennsylvania Borrowers, the Guarantors (as defined therein), the Lenders (as defined therein) party thereto, Chicago Atlantic, as Administrative Agent (as defined therein) and the Pennsylvania Mortgage Collateral Agent.
“Pennsylvania Mortgage Debt” shall mean that certain Indebtedness owed by the Pennsylvania Borrowers, and guaranteed by the Borrower, in an aggregate principal amount not to exceed $12,000,000 and evidenced by the Pennsylvania Mortgage Documents.
”Pennsylvania Mortgage Documents” shall mean the Pennsylvania Mortgage Credit Agreement and the other Credit Documents (as defined in the Pennsylvania Mortgage Credit Agreement).
“Pennsylvania Mortgage Intercreditor Agreement” shall mean that certain Intercreditor Agreement dated as of September 3, 2021, between the Collateral Agent and the Pennsylvania Mortgage Collateral Agent.
”Pennsylvania Mortgaged Property” shall mean [***].
“Permits” shall mean, with respect to any Person, any permit, approval, authorization, license, registration, certificate, concession, grant, franchise, variance or permission from, and any other Contractual Obligations with, any Governmental Authority, in each case whether or not having the force of law and applicable to or binding upon such Person or any of its property or operations or to which such Person or any of its property or operations is subject.
“Permitted Acquisition” shall mean an acquisition by any Credit Party of the Capital Stock of any Person (each, a “Target”) or all or substantially all of the assets of any Person (or a division thereof) that satisfies each of the following conditions:
(a) immediately before and after giving effect thereto, no Event of Default or Material Default shall have occurred and be continuing;
(b) such acquisition and all transactions related thereto shall be consummated in accordance with all Applicable Laws in all material respects (excluding U.S. Federal Cannabis Laws);
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(c)
if such acquisition involvesis
structured as the purchase of Capital Stock, such acquisition shall be structured such that the acquired
PersonTarget shall, upon completion of such acquisition,
be a wholly-owned direct or indirect Subsidiary of a Credit Party organized under the
laws of the United States, any state thereof or the District of Columbia;
(d) such acquisition is of a business or entity which is engaged in the Business or business activities incidental or reasonably related thereto or to the operations of an existing Credit Party;
(e)
if such acquisition is structured as the purchase of assets (which assets
may include Capital Stock), all or substantially all of the assets acquired in connection with anysuch
acquisition shall be located within the United States and shall be heldowned
by a Credit Party;
(f)
(i) the Credit Parties will be in compliance with the Financial Performance Covenants on a Pro Forma Basis as of the last day of the
most recent fiscal quarter for which financial statements have been delivered (or were required to have been delivered) pursuant to Section
8.01(a), and (ii) if such Permitted Acquisition involves consideration of $25,000,000 or more, the
Borrower shall have furnished to the Administrative Agent a certificate of the chief financial officer of the
Borrower demonstrating such compliance and certifying that all conditions contained in thethis
definition of Permitted Acquisition have been satisfied or will be satisfied as of the consummation of the applicable Permitted
Acquisition;
(g) if such acquisition involves consideration of $50,000,000 or more, the Borrower shall have, in addition to the certification required by clause (f)(ii) above:
(i)
except as set forth in clauses (h) and (i) below, notified the Administrative Agent
of such proposed Permitted Acquisitionacquisition
at least ten (10) days prior to the consummation thereof,
(ii)
except as set forth in clauses (h) and (i) below, furnished to the Administrative Agent
at least ten (10) days prior to the consummation thereof,
with such notice (A) an executed term sheet and/or letter of intent (setting forth in reasonable detail the terms and conditions
of such acquisition) and,
(B) or when available, whichever is later, such other information and documents that the Administrative Agent may reasonably
request, including, without limitation, drafts of the respective agreements, documents or instruments pursuant to which such acquisition
is to be consummated (including, without limitation, any related management, non-compete, employment, option or other material agreements),
any schedules to such agreements, documents or instruments and all other material ancillary agreements, instruments and documents to
be executed or delivered in connection therewith (with executed counterparts of such documents to be furnished promptly when available)
and (BC) if
such Permitted Acquisition involves consideration of $25,000,000 or more,consolidated
financial statements of Parent and its Subsidiaries prepared on a Pro Forma Basis (after giving effect to the consummation
of such acquisition) as of the last day of the most recent fiscal quarter for which financial statements have been delivered (or are
required to have been delivered) pursuant to Section 8.01(a),
(iii) furnished to the Administrative Agent at least five (5) Business Days prior to the consummation thereof (or such shorter period as may be agreed to by the Administrative Agent), drafts of the purchase documents and related schedules and exhibits, and
(iv) furnished to the Administrative Agent, prior to the consummation thereof, executed copies of such purchase documents and related schedules and exhibits thereto;
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(h)
if such Permitted Acquisition will be funded with Incremental Advance Loans, the notification and items
to be provided pursuant to clauses (i) and (ii) above will be provided at least sixty (60) days prior to the proposed Incremental Advance
Effective Date; andproposed acquisition involves consideration
of less than $50,000,000 but equal to or more than $25,000,000, the Borrower shall have, in addition to the certification required by
clause (f)(ii) above:
(i)
if such Permitted Acquisition involves consideration
of less than $50,000,000, (A) Borrower shall have notified the Administrative Agent of
such proposed Permitted Acquisition at least one (1) Business Day prior to the consummation thereof and
(B) except with respect to the deliverables described in clause (g)(ii)(B) if such Permitted Acquisition involves consideration of $25,000,000
or more,
(ii) furnished to the Administrative Agent at least ten (10) days prior to the consummation thereof consolidated financial statements of Parent and its Subsidiaries prepared on a Pro Forma Basis (after giving effect to the consummation of such acquisition) as of the last day of the most recent fiscal quarter for which financial statements have been delivered (or are required to have been delivered) pursuant to Section 8.01(a), and
(iii) furnished to the Administrative Agent all other items described in clause (g) with respect to such acquisition promptly upon the reasonable request of the Administrative Agent therefor; and
(i) if such proposed acquisition involves consideration of less than $25,000,000, the Borrower shall have:
(i) notified the Administrative Agent at least one (1) Business Day prior to the consummation thereof and
(ii)
furnished to the Administrative Agent all items
described in clause (g) with respect to such acquisition shall not be required to
be delivered to the Administrative Agent except promptly upon the reasonable request
of the Administrative Agent therefor.
The
consummation of a Permitted Acquisition shall be deemed to be a representation and warranty by the
Borrower to the Secured Parties that all conditions contained in thethis
definition of Permitted Acquisition have been satisfied or will be satisfied as of the consummation of such Permitted Acquisition.
“Permitted Currency Hedging Agreements” mean Hedging Agreements entered into by the Credit Parties or their Subsidiaries for the primary purpose of eliminating or reducing foreign exchange risk and not for speculative purposes.
“Permitted Liens” shall have the meaning set forth in Section 9.02.
“Permitted Subordinated Debt Payments” shall mean regularly scheduled payments of principal and interest on any Permitted Subordinated Indebtedness in accordance with the terms thereof.
“Permitted Subordinated Indebtedness” shall mean Indebtedness of any Credit Party which has been expressly subordinated in right of payment to the Obligations and, if secured, any Lien securing such Indebtedness is subordinated to the Liens of the Collateral Agent, in each case, pursuant to a subordination agreement or other writing in form and substance reasonably satisfactory to the Administrative Agent (including provisions contained in the documentation evidencing such Indebtedness reasonably acceptable to the Administrative Agent).
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“Permitted Third-Party Mortgage Debt” shall mean that certain Indebtedness owed by the fee owner of the applicable Permitted Third-Party Mortgaged Property, as evidenced by the Permitted Third-Party Mortgage Documents.
“Permitted Third-Party Mortgage Documents” shall mean any loan agreement, promissory note, mortgage or other related agreement entered into by the applicable fee owner of a Permitted Third-Party Mortgaged Property evidencing or relating to the applicable Permitted Third-Party Mortgage Debt and containing customary terms for a mortgage financing, as determined by the Administrative Agent in its reasonable discretion.
“Permitted Third-Party Mortgaged Property” shall mean (a) [***], (b) [***], (c) [***], (d) [***], (e) [***] and (f) [***].
“Person” shall mean any individual, partnership, joint venture, firm, corporation, limited liability company, unlimited liability company, association, trust or other enterprise or any Governmental Authority.
“Plan” shall mean any employee benefit plan within the meaning of Section 3(3) of ERISA, sponsored, maintained or contributed to by any Credit Party or any Subsidiary, or any such plan to which any Credit Party or any Subsidiary has any liability.
“Platform” shall have the meaning set forth in Section 12.24.
“Pledgors” shall mean, jointly and severally, those Persons party to the Individual Pledge Agreement, together with their respective successors, assigns, heirs and personal representatives.
“Potential Acquisition” shall mean the potential acquisition by Parent or one or more of its Subsidiaries of Real Property, other assets and operations disclosed and identified as such to the Administrative Agent prior to February 28, 2022, and as may be more particularly described in any definitive purchase documents among Parent, one or more of its Subsidiaries, the owner of such Real Property, the applicable Opco and any other Persons that may be party thereto.
“PPSA” shall mean the Personal Property Security Act (Ontario), including the regulations thereto; provided, that, if perfection or the effect of perfection or non-perfection or the priority of any Lien created hereunder or under any other Credit Document on the Collateral is governed by the personal property security legislation or other applicable legislation with respect to personal property security in effect in a jurisdiction in Canada other than the Province of Ontario, “PPSA” shall mean the Personal Property Security Act or such other applicable legislation (including the Civil Code (Quebec)) in effect from time to time in such other jurisdiction in Canada for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
“Prepayment Event” shall mean any (a) voluntary prepayment of the Loans that is made prior to the applicable Maturity Date (including, without limitation, any payment upon acceleration in accordance with Section 10.02 (including, for the avoidance of doubt, in connection with Sections 10.01(a), (i) and (k)) and, for the avoidance of doubt, any refinancing of the Loans other than as provided in Section 4.01(a)) or (b) mandatory prepayment of the Loans pursuant to Sections 4.02(a)(i), 4.02(a)(ii) or 4.02(a)(iv), in each case for this clause (b), that is made prior to the applicable Maturity Date.
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“Prepayment
Premium” shall mean, with respect to any Prepayment Event, an amount equal to:
(a) with respect to any such Prepayment Event that occurs prior to the applicable Make-Whole Date, the greater of (xi)
the applicable Make-Whole Amount and (yii)
with respect to any prepayments of the 2020 Loans, the 2021 Loans, the Initial Restatement Advance Loans and the Incremental Advance
Loans, one percent (1.00%) of the principal amount prepaid; and (b) with respect to any such Prepayment Event that occurs on or after
the applicable Make-Whole Date, (xi)
zero percent (0.00%) of the principal amount prepaid with respect to any prepayments of the 2020 Loans, the Initial Restatement Advance
Loans or the Incremental Advance Loans; and,
(yii)
one percent (1.00%) of the principal amount prepaid with respect to any prepayments of the 2021 Loans and
(iii) the amount set forth in the Joinder Agreement for the Second Incremental Term Loans, with respect to the Second Incremental Term
Loans.
“Pro Forma Basis” shall mean, with respect to any period during which (a) any Permitted Acquisition or any Investment, (b) any Disposition, or (c) any incurrence, repayment or cancellation of Indebtedness shall have been consummated (in each case, to the extent permitted hereunder), a calculation as if such event or events described by the preceding clauses (a) through (c) had been consummated and incurred at the beginning of the applicable period for any applicable financial covenant test, in each case, subject only to those pro forma adjustments which are directly attributable to any event or events described by the preceding clauses (a) through (c) that are factually supportable, are reasonably expected to have a continuing impact on the Credit Parties and are determined on a basis consistent with Article 11 of Regulation S-X of the Securities Act of 1933, as amended, as interpreted by the Securities and Exchange Commission.
“Proceeds of Crime Act” shall mean the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), as amended from time to time, and including all regulations thereunder.
“Public Lender” shall have the meaning set forth in Section 12.24.
“Qualified Capital Stock” shall mean any Capital Stock that is not Disqualified Capital Stock.
“Real Property” shall mean, with respect to any Person, all right, title and interest of such Person (including, without limitation, any leasehold estate) in and to a parcel of real property owned, leased or operated by such Person together with, in each case, all improvements and appurtenant fixtures, equipment, personal property, easements and other property and rights incidental to the ownership, lease or operation thereof.
“Recipient” shall mean (a) the Administrative Agent and (b) any Lender.
“Refinancing Indebtedness” shall mean refinancings, renewals, or extensions of Indebtedness so long as:
(a) such refinancings, renewals, or extensions do not result in an increase in the principal amount of the Indebtedness so refinanced, renewed, or extended, other than by the amount of premiums and compounded interest paid thereon and the reasonable and customary fees and expenses incurred in connection therewith and by the amount of unfunded commitments with respect thereto,
(b) such refinancings, renewals, or extensions do not result in a shortening of the average weighted maturity (measured as of the refinancing, renewal, or extension) of the Indebtedness so refinanced, renewed, or extended,
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(c) if the Indebtedness that is refinanced, renewed, or extended was subordinated in right of payment to the Obligations, then the terms and conditions of the refinancing, renewal, or extension must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the refinanced, renewed, or extended Indebtedness, and
(d) the Indebtedness that is refinanced, renewed, or extended is not recourse to any Person that is liable on account of the Obligations other than those Persons which were obligated with respect to the Indebtedness that was refinanced, renewed, or extended.
“Register” shall have the meaning set forth in Section 12.06(b)(iv).
“Regulation D” shall mean Regulation D of the Board as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements.
“Regulation U” shall mean Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.
“Regulation X” shall mean Regulation X of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.
“Regulatory Licenses” shall mean each Permit required to be held any Credit Party or any Subsidiary thereof to conduct its Business in compliance with Applicable Laws.
“Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the directors, officers, employees, agents, trustees, advisors of such Person and any Person that possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of such Person, whether through the ability to exercise voting power, by contract or otherwise.
“Release” shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, depositing, disposing, emanating or migrating of Hazardous Materials in the environment.
“Reportable Event” shall mean an event described in Section 4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA other than those events as to which the 30 day notice period is waived under subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
“Required Lenders” shall mean, at any time when there is more than one Lender which is not a Defaulting Lender, at least two Lenders which are not Defaulting Lenders having Loans and unused Commitments representing greater than 50% of the sum of the aggregate Loans and unused Commitments at such time, or at any time when there is only one Lender which is not a Defaulting Lender, such Lender.
“Rescindable Amount” shall have the meaning set forth in Section 4.03(d).
“Restatement Date” shall mean the date on which all of the conditions to closing and funding set forth in Section 5.02 have been satisfied, or waived in accordance with Section 12.01, which date shall be no later than May 19, 2021 (or such later date as the Administrative Agent may approve in writing in its sole discretion).
“Restatement Date Opco” shall mean each Opco identified as a “Restatement Date Opco” on Schedule 7.12 as of the Signing Date.
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“Restricted Cannabis Activities” shall mean, in connection with the cultivation, processing, distribution, sale, possession, disposal and destruction of cannabis and related products, accessories, or services: (a) any activity that is not permitted under applicable U.S. State Cannabis Laws or Canadian Cannabis Laws; (b) any activity that is not permitted under applicable U.S. Federal Cannabis Laws and for which a Credit Party or Subsidiary of a Credit Party is convicted or otherwise found liable, pursuant to a non-appealable judgment, notwithstanding its compliance with applicable U.S. State Cannabis Laws; (c) knowingly or recklessly distributing or selling cannabis and related products to minors, except those minors who are duly registered medical patients under the applicable U.S. State Cannabis Laws; (d) knowingly making payments to criminal enterprises, gangs, cartels and persons subject to Sanctions; (e) non-compliance with anti-terrorism laws and other Applicable Law relating to money-laundering; (f) diversion of cannabis and related products from states where it is legal under U.S. State Cannabis Law to other states or to Canada, or, unless permitted by Applicable Law, importing cannabis and related products from Canada; (g) use of activities permitted under U.S. State Cannabis Law or Canadian Cannabis Laws as a cover or pretext for the trafficking of other controlled substances or illegal drugs or other illegal activity; (h) the commission, or making threats, of violence and, unless required for security purposes under applicable U.S. State Cannabis Laws, the use of firearms; (i) growing cannabis and related products on public lands unless otherwise permitted to do so under Canadian Cannabis Laws; and (j) directly or indirectly, aiding, abetting or otherwise participating in a common enterprise with any Person or Persons in any activities described in clauses (a) through (i) of this definition.
“Restricted Payment” shall mean, with respect to any Person, (a) the declaration or payment of any dividend on, or the making of any payment or distribution on account of, or setting apart assets for a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of, any class of Capital Stock of such Person or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or the making of any other distribution in respect thereof, either directly or indirectly, whether in cash or property, (b) any payment of a management fee (or other fee of a similar nature) or any reimbursable costs and expenses related thereto by such Person to any holder of its Capital Stock or any Affiliate thereof, (c) the payment or prepayment of principal of, or premium or interest on, any Indebtedness subordinate to the Obligations or (d) any payment or prepayment of principal, interest or any other amount made by (i) Parent in connection with Guarantee Obligations incurred under Section 9.01(p) or (ii) any other Credit Party in connection with obligations under Section 9.01(s).
“S&P” shall mean S&P Global Ratings or any successor by merger or consolidation to its business.
“Sales Tracking Software” shall mean any “seed-to-sale” tracking, point-of-sale, or other inventory or sales reporting software used by the Credit Parties.
“Sanction(s)”
shall mean any sanction administered or enforced by the United States Government (including, without
limitation, OFAC), the Government of Canada, the United Nations Security Council or other relevant sanctions authority.
“SEC” shall mean the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Second Incremental Term Loan” shall have the meaning set forth in Section 2.01(d).
“Second Incremental Term Loan Commitment” shall mean, as to any Lender, its obligation to make its portion of a Second Incremental Term Loan to the Borrower pursuant to Section 2.01(d) in the principal amount set forth in the Joinder Agreement for the Second Incremental Term Loans.
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“Second Incremental Term Loan Commitment Effective Date” shall have the meaning set forth in Section 2.01(d)(iii).
“Second Incremental Term Loan Lender” shall have the meaning set forth in Section 2.01(d).
“Secured Parties” shall mean, collectively, (a) the Lenders, (b) the Agents, (c) the beneficiaries of each indemnification obligation undertaken by any Credit Party, Opco Mortgagor, Pledgor or Vireo Guarantor under the Credit Documents, (d) any successors, endorsees, transferees and assigns of each of the foregoing to the extent any such transfer or assign is permitted by the terms of this Agreement and (e) any other holder of any Obligation and/or Secured Obligation (as defined in any applicable Security Document).
“Security Agreement” shall mean that certain Amended and Restated Security Agreement dated as of the Signing Date, by and among the Credit Parties and the Collateral Agent for the benefit of the Secured Parties, as amended, restated, supplemented or otherwise modified from time to time.
“Security Documents” shall mean, collectively, as applicable, the Security Agreement, the Canadian Security Agreement, the Collateral Access Agreements, the Collateral Assignments, the Control Agreements, the Individual Pledge Agreement, the Parent Pledge Agreement, the Patent Security Agreements, the Trademark Security Agreements, the Copyright Security Agreements, each Mortgage, each Opco Mortgagor Mortgage and each other instrument or document executed and delivered pursuant to Sections 8.10, 8.12 or 8.15 or pursuant to any of the Security Documents to guarantee or secure any of the Obligations.
“SEDAR” shall mean the Canadian Securities Administrators’ System for Electronic Document Analysis and Retrieval.
“Signing Date” shall mean May 10, 2021.
“Solvency Certificate” shall mean a solvency certificate, duly executed and delivered by the chief financial officer of Parent to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent.
“Solvent” shall mean, with respect to any Person, at any date, that (a) the sum of such Person’s debt (including Contingent Liabilities) does not exceed the present fair saleable value of such Person’s present assets as a going concern (which, for this purpose, shall include, without limitation, rights of contribution in respect of obligations for which such Person has provided a guarantee), (b) such Person’s capital is not unreasonably small in relation to its business as contemplated on such date, (c) such Person has not incurred and does not intend to incur debts including current obligations beyond its ability to generally pay such debts as they become due (whether at maturity or otherwise), (d) such Person is not an ‘insolvent person’ as such term is defined in the Bankruptcy and Insolvency Act (Canada), and (e) such Person is “solvent” or is not “insolvent”, as applicable, within the meaning given that term and similar terms under Applicable Laws relating to fraudulent and other avoidable transfers and conveyances. For purposes of this definition, the amount of any Contingent Liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).
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“Subsidiary” of any Person shall mean and include (a) any corporation more than 50% of whose Voting Stock having by the terms thereof power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries and (b) any partnership, limited liability company, unlimited liability company, association, joint venture or other entity in which such Person directly or indirectly through one or more Subsidiaries has more than (i) a 50% equity interest measured by either vote or value at the time or (ii) a 50% general partnership interest at the time. Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of Parent.
“Swap Obligation” shall mean with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Tax Act” shall mean the Income Tax Act (Canada), as amended.
“Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Termination Date” shall mean the date on which the Loans and the other Obligations (other than Unasserted Contingent Obligations) shall have been paid in full in cash in accordance with the terms of this Agreement.
“Third Amendment” shall mean that certain Third Amendment to Amended and Restated Credit Agreement dated as of October 20, 2021, amending this Agreement.
“Third Amendment Effective Date” shall mean the date of the Third Amendment.
“Total Assets” shall mean, at any time, the total assets of such Person, determined in accordance with IFRS (or, if in reference to more than one Person, determined on a consolidated basis in accordance with IFRS), as shown on the then most recent balance sheet of such Person delivered pursuant to Section 8.01.
“Total Credit Exposure” shall mean, as of any date of determination (a) with respect to each Lender, (i) prior to the termination of the Commitments, the sum of such Lender’s Commitment plus the outstanding principal amount of such Lender’s Loans or (ii) upon the termination of the Commitments, the outstanding principal amount of such Lender’s Loans and (b) with respect to all Lenders, (i) prior to the termination of the Commitments, the sum of all of the Lenders’ Commitments plus the aggregate outstanding principal amount of all Loans and (ii) upon the termination of the Commitments, the aggregate outstanding principal amount of all Loans.
“Trademark Security Agreements” shall mean the (a) Amended and Restated Trademark Security Agreement dated as of May 20, 2021 made in favor of the Collateral Agent by each applicable Credit Party; and (b) any trademark security agreement entered into after the Restatement Date (as required by the Agreement or any other Credit Document), in each case, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Tranche”
refers to whether the Loans are 2020 Loans, 2021 Loans, Initial Restatement Advance Loans or,
Incremental Advance Loans or Second Incremental Term Loans.
“Transactions” shall mean the funding of the Loans pursuant hereto and the use of the proceeds thereof and all other transactions contemplated by or described in the Credit Documents.
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“Treasury Rate” shall mean, as of any applicable date on which a Prepayment Event occurs with respect to the 2020 Loans or the 2021 Loans, the weekly average rounded to the nearest 1/100th of a percentage point (for the most recently completed week for which such information is available as of the date that is two Business Days prior to the applicable date on which such Prepayment Event occurs) of the yield to maturity of United States Treasury securities with a constant maturity (as compiled and published in the Federal Reserve Statistical Release H.15 with respect to each applicable day during such week or, if such Statistical Release is no longer published or available, any publicly available source of similar market data selected by the Administrative Agent) most nearly equal to the period from the applicable date on which such Prepayment Event occurs through the applicable Make-Whole Date; provided, however, that if the period from the applicable date on which a Prepayment Event occurs with respect to the 2020 Loans or the 2021 Loans is not equal to the constant maturity of a United States Treasury security for which such a yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the applicable date on which such Prepayment Event occurs to the Make-Whole Date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. The Treasury Rate shall be obtained by the Administrative Agent.
“Treasury Regulations” shall mean the United States Treasury regulations promulgated under the Code.
“U.S.” and “United States” shall mean the United States of America.
“U.S. Person” shall mean any person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S. Federal Cannabis Law” shall mean any federal laws of the United States treating cannabis and related products as illegal or as controlled substances.
“U.S. State Cannabis Law” shall mean any law enacted by any state of the United States which implements regulatory and/or enforcement systems to control the cultivation, distribution, sale and/or possession of cannabis and related products.
“U.S. Tax Compliance Certificate” has the meaning specified in Section 4.04(f).
“UCC” shall mean the Uniform Commercial Code as from time to time in effect in the State of Illinois and any other applicable jurisdiction.
“Unasserted Contingent Obligations” shall mean, at any time, Obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no assertion of liability (whether oral or written) and no claim or demand for payment or indemnification (whether oral or written) has been made or threatened.
“Unfunded Current Liability” shall mean, with respect to any Plan the amount, if any, by which the value of the accumulated plan benefits under the Plan, determined on a plan termination basis in accordance with actuarial assumptions at such time consistent with those prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds the fair market value of all plan assets allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid contributions).
“Verano US” shall have the meaning set forth in the preamble to this Agreement.
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“Vireo” shall mean Goodness Growth Holdings, Inc. (f/k/a Vireo Health International, Inc.), a corporation existing under the laws of the Province of British Columbia.
“Vireo Acquisition” shall mean the proposed acquisition by Parent of the Capital Stock of Vireo, as more particularly provided in that certain Arrangement Agreement dated as of January 31, 2022, between Parent and Vireo, the Plan of Arrangement (as defined therein) and the other agreements, instruments and documents executed in connection therewith or relating thereto.
“Vireo Acquisition Date” shall mean the date on which the Vireo Acquisition is consummated.
“Vireo Borrowers” shall mean Vireo and the other Persons that are “Borrowers” (as defined in the Vireo Credit Agreement).
“Vireo Collateral Agent” shall mean Chicago Atlantic, in its capacity as collateral agent under the Vireo Credit Agreement, and its successors and permitted assigns thereunder.
“Vireo Credit Agreement” shall mean that certain Credit Agreement dated as of March 26, 2021, among the Vireo Borrowers, the Guarantors (as defined therein) party thereto, the Lenders (as defined therein) party thereto, Chicago Atlantic, as Administrative Agent (as defined therein) and the Vireo Collateral Agent.
”Vireo Credit Documents” shall mean the Vireo Credit Agreement and the other “Credit Documents” (as defined in the Vireo Credit Agreement).
“Vireo Debt” shall mean that certain Indebtedness and other obligations owed by the “Credit Parties” (as defined in the Vireo Credit Agreement) and evidenced by the Vireo Credit Documents.
“Vireo Guarantors” shall have the meaning set forth in Section 8.10(b).
“Vireo Intercreditor Agreement” shall mean that certain Intercreditor Agreement entered into and dated as of the Vireo Acquisition Date between the Collateral Agent and the Vireo Collateral Agent.
“Voting Stock” shall mean, with respect to any Person, shares of such Person’s Capital Stock having the right to vote for the election of directors (or Persons acting in a comparable capacity) of such Person under ordinary circumstances.
“Withholding Agent” shall mean any Credit Party and the Administrative Agent.
SECTION 1.02 Other Interpretive Provisions. With reference to this Agreement and each other Credit Document, unless otherwise specified herein or in such other Credit Document:
(a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b) The words “herein”, “hereto”, “hereof” and “hereunder” and words of similar import when used in any Credit Document shall refer to such Credit Document as a whole and not to any particular provision thereof.
(c) Article, Section, Exhibit and Schedule references are to the Credit Document in which such reference appears.
(d) The term “including” is by way of example and not limitation.
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(e) The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.
(f) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including”.
(g) Section headings herein and in the other Credit Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Credit Document.
(h) All references in any Credit Document to the consent of or approval by any Agent or Lender shall be deemed to mean the consent of or approval by such Agent or Lender in its sole discretion, except as otherwise expressly provided in the applicable Credit Document.
(i) Any reference herein to a merger, transfer, consolidation, combination, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, combination, amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, Credit Party, joint venture or any other like term shall also constitute such a Person or entity).
SECTION 1.03 Accounting Terms and Principles. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, IFRS, applied in a consistent manner. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by the Borrower or any of its Subsidiaries, including pursuant to a Change in Accounting Principles, shall be given effect for purposes of measuring compliance with any provision of Article IX, including Section 9.13, or otherwise in this Agreement unless the Borrower and the Administrative Agent agree in writing to modify such provisions to reflect such changes, and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to in Article IX shall be made, without giving effect to any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value”. A breach of a financial covenant contained in Article IX shall be deemed to have occurred as of any date of determination by the Administrative Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to any Agent. Anything in this Agreement to the contrary notwithstanding, any obligation of a Person under a lease (whether existing as of the Restatement Date or entered into after the Restatement Date) that is not (or would not be) required to be classified and accounted for as a financing lease on the balance sheet of such Person under GAAP, as in effect on the Restatement Date shall not be treated as a Capitalized Lease Obligation solely as a result of (x) the adoption of any changes in, or (y) changes in the application of GAAP, after the Restatement Date. From and after the occurrence of a Change in Accounting Principles, all references to “IFRS” in this Agreement shall be construed as references to “GAAP” as the context may require. From and after the occurrence of a Change in Accounting Principles, with respect to any change in accounting for leases pursuant to GAAP resulting from the adoption of Financial Accounting Standards Board Accounting Standards Update No. 2016-02, Leases (Topic 842), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a financing lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2015, such lease shall not be considered a financing lease, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith.
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SECTION 1.04 Rounding. Any financial ratios required to be maintained or complied with by the Credit Parties pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
SECTION 1.05 References to Agreements, Laws, etc. Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including this Agreement and each of the other Credit Documents) and other Contractual Obligations shall be deemed to include all subsequent amendments, restatements, amendment and restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, amendment and restatements, extensions, supplements and other modifications are not prohibited by any Credit Document nor materially adverse to the interests of the Secured Parties; and (b) references to any Applicable Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Applicable Law.
SECTION 1.06 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to the time in Chicago, Illinois.
SECTION 1.07 Timing of Payment of Performance. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day. All payments required hereunder shall be paid in immediately available funds unless otherwise expressly provided herein.
SECTION 1.08 Corporate Terminology. Any reference to officers, shareholders, stock, shares, directors, boards of directors, corporate authority, articles of incorporation, bylaws or any other such references to matters relating to a corporation made herein or in any other Credit Document with respect to a Person that is not a corporation shall mean and be references to the comparable terms used with respect to such Person.
SECTION 1.09 Currency Matters. Principal, interest, fees and all other amounts payable under this Agreement and the other Credit Documents to the Agents and the Lenders shall be payable in Dollars. Unless stated otherwise, all calculations, comparisons, measurements or determinations under this Agreement shall be made in Dollars. For the purpose of such calculations, comparisons, measurements or determinations, amounts or proceeds denominated in other currencies shall be converted to the Equivalent Amount in Dollars on the date of calculation, comparison, measurement or determination. In particular, without limitation, for purposes of valuations or computations under Article II, Article III, Article IV, Article VII, Article VIII, Article IX and Article X, unless expressly provided otherwise, where a reference is made to a dollar amount, the amount is to be considered as the amount in Dollars and, therefore, each other currency shall be converted into the Equivalent Amount thereof in Dollars.
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SECTION 1.10 Quebec Interpretation. For purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec (or any other Credit Document) and for all other purposes pursuant to which the interpretation or construction of a Credit Document may be subject to the laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Quebec, (i) “personal property” shall be deemed to include “movable property”, (ii) “real property” shall be deemed to include “immovable property”, (iii) “tangible property” shall be deemed to include “corporeal property”, (iv) “intangible property” shall be deemed to include “incorporeal property”, (v) “security interest”, “mortgage” and “lien” shall be deemed to include a “hypothec”, “prior claim” and a “resolutory clause,” (vi) all references to filing, registering or recording under the UCC or the PPSA shall be deemed to include publication under the Civil Code of Quebec, (vii) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to an “opposable” or “set up” Liens as against third parties, (viii) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (ix) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (x) an “agent” shall be deemed to include a “mandatary,” (xi) “construction liens” shall be deemed to include “legal hypothecs”, (xii) “joint and several” shall be deemed to include “solidary” and “jointly and severally” shall be deemed to include “solidarily” (xiii) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”, (xiv) “beneficial ownership” shall be deemed to include “ownership on behalf of another as mandatary”, (xv) “easement” shall be deemed to include “servitude”, (xvi) “priority” shall be deemed to include “prior claim”, (xvii) “survey” shall be deemed to include “certificate of location and plan”, (xviii) “fee simple title” shall be deemed to include “absolute ownership”, and (xix) “foreclosure” shall be deemed to include “the exercise of a hypothecary recourse”. The parties hereto confirm that it is their wish that this Agreement and any other document executed in connection with the transactions contemplated herein be drawn up in the English language only (except if another language is required under any applicable law) and that all other documents contemplated thereunder or relating thereto, including notices, may also be drawn up in the English language only. Les parties aux présentes confirment que c’est leur volonté que cette convention et les autres documents de crédit soient rédigés en langue anglaise seulement et que tous les documents, y compris tous avis, envisagés par cette convention et les autres documents peuvent être rédigés en langue anglaise seulement (sauf si une autre langue est requise en vertu d’une loi applicable).
ARTICLE
II
Amount and Terms of Loans
SECTION 2.01 Loans.
(a) 2020 Loans and 2021 Loans.
(i)
Subject to the terms and conditions set forth herein, on the Restatement Date, all Original Loans will be automatically deemed to constitute
Loans outstanding under this Agreement (such Loans, collectively, the “2020 Loans”). Each Lender that held
an interest in the Original Loans shall be automatically deemed, on the Restatement Date, to hold an interest in the 2020 Loans in a
principal amount equal to the principal amount of such Lender’s Original Loans as set forth under the heading “2020 Loans”
on Schedule 1.01 hereto.
(ii)
Subject to and upon the terms and conditions herein set forth, each Lender having a Commitment shall, on the Restatement Date, severally
(and not jointly), make a Loan to the Borrower (such Loans, collectively,
the “2021 Loans”), which 2021 Loan (i) when aggregated with each other 2021 Loan made hereunder, shall
be in an amount not to exceed the aggregate Commitments for 2021 Loans of all Lenders as set forth under the heading “2021
Loans” on Schedule 1.01 hereto and (ii) for each Lender shall be in an amount
of such Lender’s Commitment for 2021 Loans as set forth under the heading “2021 Loans” on Schedule 1.01
hereto.
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(b)
Initial Restatement Advance Loans. Subject to the terms and conditions set forth herein, each Lender having a Commitment
shall, on the Third Amendment Effective Date, severally (and not jointly), make a Loan to the
Borrower (such Loans, collectively, the “Initial Restatement Advance Loans”), which Initial Restatement
Advance Loan (i) when aggregated with each other Initial Restatement Advance Loan made hereunder, shall be in an amount not to exceed
the aggregate Commitments for Initial Restatement Advance Loans of all Lenders as set forth under the heading “Initial Restatement
Advance Loans” on Schedule 1.01 hereto and (ii) for each Lender shall be
in an amount of such Lender’s Commitment for Initial Restatement Advance Loans as set forth under the heading “Initial
Restatement Advance Loans” on Schedule 1.01.
(c) Incremental Advance Loans. Subject to the terms and conditions set forth herein and in the applicable Joinder Agreement, each Incremental Advance Lender severally agrees to make a Loan to the Borrower on the Incremental Advance Commitment Effective Date in an aggregate principal amount equal to such Incremental Advance Lender’s Incremental Advance Commitment.
(i)
Request for Incremental Advance Commitments. On or prior to July [15],
2022, the Borrower may, by notice to the Administrative Agent (who
shall promptly notify the Lenders), request, one time, the establishment of the Incremental Advance Commitments for an aggregate amount
not exceeding $100,000,000, the proceeds of which will be used to fund one or moreCapital
Expenditures, the acquisition and fees of cannabis Regulatory Licenses, the Vireo Acquisition, other Permitted Acquisitions
and(including previously
consummated Permitted Acquisitions, including any payment obligations deriving from any Permitted Acquisitions, such as earn-outs or
payments under promissory notes related thereto), reasonable, out-of-pocket costs and expenses associated therewithwith
any of the foregoing and such other uses as otherwise may be permitted by the Incremental Advance Lenders.
(ii) Incremental Advance Lenders. An Incremental Advance Commitment may be provided by any existing Lender or other Person to which any Lender may assign a Commitment pursuant to Section 12.06 (each such existing Lender or other Person that agrees to provide an Incremental Advance Commitment, an “Incremental Advance Lender”); provided that each Incremental Advance Lender shall be subject to the consent (in each case, not to be unreasonably withheld or delayed) of the Administrative Agent. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to provide an Incremental Advance Commitment pursuant to this Section 2.01(c) and any election to do so shall be in the sole discretion of such Lender.
(iii) Terms of Incremental Advance Commitments. The Borrower shall propose the effective date for the making of the Incremental Advance Loans pursuant to this Section 2.01(c) (the “Incremental Advance Commitment Effective Date”) and, if applicable, the final allocation of such Incremental Advance Commitments among the Incremental Advance Lenders; provided that such date shall be a Business Day at least 60 days after delivery of the request for the Incremental Advance Commitments, unless otherwise permitted by the Incremental Advance Lenders.
(iv) Joinder Agreements. In order for the Incremental Advance Loans to be issued, the Borrower, the Incremental Advance Lenders and the Administrative Agent (but no other Lenders or Persons) shall enter into one or more Joinder Agreements, each in form and substance satisfactory to the Borrower and the Administrative Agent, pursuant to which the Incremental Advance Lenders will provide the Incremental Advance Commitments.
(v) Change to Commitments. Effective as of the Incremental Advance Commitment Effective Date, subject to the terms and conditions set forth in this Section 2.01(c), each Incremental Advance Commitment shall be a Commitment and Schedule 1.01 shall be updated accordingly to reflect such Incremental Advance Commitment, and each Incremental Advance Lender providing such Incremental Advance Commitment shall be, and have all the rights of, a Lender, and the Loans made by it on such Incremental Advance Commitment Effective Date shall be Loans, for all purposes of this Agreement.
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(vi) Conditions to Effectiveness. Notwithstanding the foregoing, the Incremental Advance Commitments pursuant to this Section 2.01(c) shall not be effective with respect to any Incremental Advance Lender unless the Borrower complies with each condition set forth in Section 5.04; provided, however, that the Incremental Advance Lenders may, collectively, waive any such condition in their discretion. As of the Incremental Advance Commitment Effective Date, upon satisfaction or, as applicable, waiver of the conditions set forth in this Section 2.01(c) and Section 5.04 and the making of the Incremental Advance Loans, the Administrative Agent shall record the information contained in the applicable Joinder Agreements in the Register and give prompt notice of the Incremental Advance Commitments to the Borrower and the Lenders (including each Incremental Advance Lender).
(d) Second Incremental Term Loans. Subject to the terms and conditions set forth herein and in the Joinder Agreement for the Second Incremental Term Loans, on the Second Incremental Term Loan Commitment Effective Date, each Lender party thereto (each, a “Second Incremental Term Loan Lender”) severally agrees to make its portion of a Loan (each, a “Second Incremental Term Loan”) in a single advance to the Borrower in the amount of its Second Incremental Term Loan Commitment as set forth in such Joinder Agreement.
(i) Request for Second Incremental Term Loan Commitments. The Borrower may, by delivery of written notice to the Administrative Agent at least 60 days prior to the Second Incremental Term Loan Commitment Effective Date (or such shorter notice to which the Administrative Agent may agree in its discretion), request, one time, the establishment of the Second Incremental Term Loan Commitments for an aggregate amount not exceeding $175,000,000, subject to the satisfaction of the conditions precedent set forth in the Joinder Agreement for the Second Incremental Term Loans and Section 5.04. The Administrative Agent shall notify the Lenders of such notice promptly after receipt thereof.
(ii) Second Incremental Term Loan Lenders. A Second Incremental Term Loan Commitment may be provided by any existing Lender or other Person to which any Lender may assign a Commitment pursuant to Section 12.06; provided that each Second Incremental Term Loan Lender shall be subject to the consent (in each case, not to be unreasonably withheld or delayed) of the Administrative Agent. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to provide a Second Incremental Term Loan Commitment pursuant to this Section 2.01(d) and any election to do so shall be in the sole discretion of such Lender.
(iii) Terms of Second Incremental Term Loan Commitments. The Borrower shall propose the effective date for the making of the Second Incremental Term Loans pursuant to this Section 2.01(d), which date shall be a Business Day (the “Second Incremental Term Loan Commitment Effective Date”) and, if applicable, the final allocation of such Second Incremental Term Loan Commitments among the Second Incremental Term Loan Lenders.
(iv) Joinder Agreements. In order for the Second Incremental Term Loans to be issued, the Borrower, the Second Incremental Term Loan Lenders, the Administrative Agent and the other Persons party thereto shall enter into one or more Joinder Agreements, each in form and substance satisfactory to the Borrower and the Administrative Agent, pursuant to which the Second Incremental Term Loan Lenders will provide the Second Incremental Term Loan Commitments.
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(v) Change to Commitments. Effective as of the Second Incremental Term Loan Commitment Effective Date, subject to the terms and conditions set forth in this Section 2.01(d), each Second Incremental Term Loan Commitment shall be a Commitment and Schedule 1.01 shall be updated accordingly to reflect such Second Incremental Term Loan Commitment, and each Second Incremental Term Loan Lender providing such Second Incremental Term Loan Commitment shall be, and have all the rights of, a Lender, and the Loans made by it on such Second Incremental Term Loan Commitment Effective Date shall be Loans, for all purposes of this Agreement.
(vi) Conditions to Effectiveness. Notwithstanding the foregoing, the Second Incremental Term Loan Commitments pursuant to this Section 2.01(d) shall not be effective with respect to any Second Incremental Term Loan Lender unless the Borrower complies with each condition set forth in Section 5.04; provided, however, that the Second Incremental Term Loan Lenders may, collectively, waive any such condition in their discretion. As of the Second Incremental Term Loan Commitment Effective Date, upon satisfaction or, as applicable, waiver of the conditions set forth in this Section 2.01(c) and Section 5.04 and the making of the Second Incremental Term Loans, the Administrative Agent shall record the information contained in the applicable Joinder Agreements in the Register and give prompt notice of the Second Incremental Term Loan Commitments to the Borrower and the Lenders (including each Second Incremental Term Loan Lender).
(e)
(d) Payments on Loans. Each Loan may be repaid or prepaid in accordance with
the provisions hereof, but once repaid or prepaid may not be reborrowed.
SECTION 2.02 Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.10(a), or if such Lender requires the Borrower to pay any Indemnified Taxes or additional amounts to such Lender or any Governmental Authority for the account of any Lender pursuant to Section 4.04, such Lender will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event; provided, that such designation is made on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of any such Section. Nothing in this Section 2.02 shall affect or postpone any of the obligations of the Borrower or the right of any Lender provided in Sections 2.10 or 4.04. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
SECTION 2.03 Lender Branches. Each Lender may at its option, make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make any Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan, and provided, further, that the exercise of such option shall not cause the Borrower to pay any Indemnified Taxes or additional amounts to such Lender or any Governmental Authority for the account of any Lender pursuant to Section 4.04 if such Lender has an alternative domestic or foreign branch or Affiliate for which such Indemnified Taxes or additional amounts would not be required to be paid.
SECTION 2.04 Reserved.
SECTION 2.05 Disbursement of Funds.
(a) The borrowing of Loans to be made on the Restatement Date shall be requested in writing by the Borrower to the Administrative Agent at least one (1) Business Day prior to the Restatement Date, which such written request shall be irrevocable and shall be in form and substance acceptable to the Administrative Agent. Subject to the terms and conditions set forth herein, on the Restatement Date each Lender will make available its pro rata portion of the Loans to be made on the Restatement Date in the manner provided below no later than 10:00 a.m. on the Restatement Date.
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(b) Each Lender shall make available all amounts it is to fund to the Borrower in immediately available funds to the Administrative Agent, and, following receipt thereof in an account designated by the Administrative Agent, the Administrative Agent will remit such amounts, in immediately available funds and in Dollars to the Borrower, by remitting the same to such Persons and such accounts as may be designated by the Borrower to the Administrative Agent in writing. The failure of any Lender to make available the amounts it is to fund to the Borrower hereunder or to make a payment required to be made by it under any Credit Document shall not relieve any other Lender of its obligations under any Credit Document, but no Lender shall be responsible for the failure of any other Lender to make any payment required to be made by such other Lender under any Credit Document.
(c) Nothing in this Section 2.05 shall be deemed to relieve any Lender from its obligation to fulfill its commitments and obligations hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to fulfill its commitments and obligations hereunder).