Filed Pursuant to Rule 424(b)(3)
Registration No. 333-273728
PROSPECTUS SUPPLEMENT NO. 24
(to prospectus dated August 10, 2023)
VIREO GROWTH INC.
15,000,000 Subordinate Voting Shares
Up to 80,670,773 Subordinate Voting Shares Underlying
Notes
Up to 6,250,000 Subordinate Voting Shares Underlying
Warrants
This prospectus supplement is being filed to update
and supplement the information contained in the prospectus dated August 10, 2023 (the “Prospectus”), with the information
contained in our Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on November 7, 2024.
Accordingly, we have attached such report to this prospectus supplement.
The Prospectus and this prospectus supplement
relate to the resale by the selling security holders named in the Prospectus (the “Selling Shareholders”) of up to an aggregate
of 101,920,773 of our subordinate voting shares (“subordinate voting shares”), which consist of: (i) up to 15,000,000 subordinate
voting shares issued in a private offering to certain Selling Shareholders in connection with a Fifth Amendment to Credit Agreement and
First Amendment to Security Agreement by and among Goodness Growth Holdings, Inc. (n/k/a Vireo Growth Inc.), certain of its subsidiaries,
the persons from time-to-time party thereto as guarantors, the lenders party thereto, and Chicago Atlantic Admin, LLC, as administrative
agent and as collateral agent, dated as of March 31, 2023; (ii) up to 80,670,773 subordinate voting shares that are issuable from time
to time to certain Selling Shareholders upon conversion of, and payment of interest on, convertible notes issued in a private offering
pursuant to a Sixth Amendment to the Credit Agreement by and among Goodness Growth Holdings, Inc. (n/k/a Vireo Growth Inc.), certain of
its subsidiaries, the persons from time-to-time party thereto as guarantors, the lenders party thereto, and Chicago Atlantic Admin, LLC,
as administrative agent and as collateral agent, dated as of April 28, 2023 (the “Sixth Amendment”); and (iii) up to 6,250,000
subordinate voting shares that are issuable from time to time to certain of the Selling Shareholders upon the exercise of warrants to
purchase our subordinate voting shares that were issued in a private offering to Selling Shareholders in connection with the Sixth Amendment.
This prospectus supplement updates and supplements
the information in the Prospectus and is not complete without, and may not be delivered or utilized except in combination with, the Prospectus,
including any amendments or supplements thereto. This prospectus supplement should be read in conjunction with the Prospectus and if there
is any inconsistency between the information in the Prospectus and this prospectus supplement, you should rely on the information in this
prospectus supplement.
Our subordinate voting shares are listed on the
Canadian Securities Exchange (the “CSE”) under the symbol “VREO” and quoted on the OTCQX under the symbol “VREOF”.
On November 6, 2024, the closing sale price of our subordinate voting shares as reported on the CSE was C$0.60 and the closing sale price
of our subordinate voting shares on the OTCQX was $0.43.
Investing in our securities involves risks
that are described in the “Risk Factors” section beginning on page 13 of the Prospectus. Neither the SEC nor any state securities
commission has approved or disapproved of the securities to be issued under the Prospectus or determined if the Prospectus or this
prospectus supplement is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus supplement is November
7, 2024
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported):
November 1, 2024
VIREO GROWTH INC.
(Exact name of registrant as specified in its
charter)
British Columbia
(State or other jurisdiction of Incorporation)
000-56225 |
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82-3835655 |
(Commission File Number) |
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(IRS Employer Identification No.) |
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207 South 9th Street
Minneapolis, Minnesota |
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55402 |
(Address of principal executive offices) |
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(Zip Code) |
(612) 999-1606
(Registrant’s telephone number, including
area code)
Not Applicable
(Former name or former address, if changed since
last report)
Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
¨ | Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
N/A |
N/A |
N/A |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company x
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act. ¨
Item 1.01. | Entry into a Material Definitive Agreement |
Tenth Amendment to Credit Agreement
On November 1, 2024, Vireo Growth Inc. (the “Company”),
entered into a Joinder and Tenth Amendment to Credit Agreement by and among the Company and certain of its subsidiaries party thereto
as Borrowers (as defined in the Credit Agreement defined below), the lenders party thereto (the “Lenders”), and Chicago Atlantic
Admin, LLC (the “Agent”) as administrative agent and as collateral agent (the “Tenth Amendment”).
The Tenth Amendment modifies that certain Credit Agreement dated as
of March 25, 2021, as amended by an Omnibus First Amendment to Credit Agreement and Security Agreement dated as of November 1, 2021, a
Second Amendment to Credit Agreement dated as of November 18, 2021, a Third Amendment to Credit Agreement dated as of January 31, 2022,
a Fourth Amendment to Credit Agreement dated as of March 3, 2022, a Fifth Amendment to Credit Agreement and First Amendment to Security
Agreement dated as of March 31, 2023, a Sixth Amendment to Credit Agreement dated as of April 28, 2023, a Seventh Amendment to Credit
Agreement dated as of April 30, 2024, an Eighth Amendment to Credit Agreement dated as of June 14, 2024, and a Waiver and Ninth Amendment
to Credit Agreement dated as of July 31, 2024, each among the Company and certain subsidiaries of the Company as Borrowers (as defined
in the Credit Agreement), the other Credit Parties (as defined in the Credit Agreement) from time to time party thereto, the Lenders from
time to time party thereto, and the Agent (the “Existing Credit Agreement”; the Existing Credit Agreement as amended by the
Tenth Amendment, 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 other matters, the Tenth Amendment provides a convertible note
facility (the “Convertible Notes”) with a maximum principal amount of US$10 million. The Convertible Notes mature November
1, 2027, have a cash interest rate of 12.0 percent per year, are convertible into that number of the Company’s subordinate voting
shares determined by dividing the outstanding principal amount plus all accrued but unpaid interest on the Convertible Notes on the date
of such conversion by a conversion price of US$0.625.
This summary of the Tenth Amendment
is qualified in its entirety by reference to the full text of the Tenth Amendment, a copy of which is attached as Exhibit 10.1 hereto
and is incorporated herein by reference.
Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant |
The information under Item 1.01 is incorporated herein by reference
to the extent responsive to Item 2.03.
Item 3.02 | Unregistered Sales of Equity Securities |
The information set forth under Item 1.01 is incorporated herein by
reference to the extent responsive to Item 3.02. The Convertible Notes have not been registered under the Securities Act of 1933, as amended
(the “Securities Act”), and were issued in reliance on the exemptions provided by Section 4(a)(2) of the Securities Act as
a transaction not involving a public offering and Rule 506 promulgated under the Securities Act.
Item 7.01 | Regulation FD Disclosure |
On November 1, 2024, the Company issued a press release announcing
the matters addressed in this Current Report on Form 8-K. The press release is attached as Exhibit 99.1 to this Current Report on Form
8-K.
| Item 9.01. | Financial Statements and Exhibits |
(d) Exhibits.
Exhibit No. |
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Description |
10.1 |
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Joinder and Tenth Amendment to Credit Agreement, dated November 1, 2024, by and among Vireo Growth Inc., and certain of its subsidiaries, the lenders party thereto, and Chicago Atlantic Admin, LLC, as administrative agent and as collateral agent |
99.1 |
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Press Release, dated November 1, 2024* |
104 |
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Cover Page Interactive Data File (embedded within Inline XBRL document) |
*Furnished herewith
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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VIREO GROWTH INC.
(Registrant) |
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By: |
/s/ Amber Shimpa |
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Amber Shimpa |
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Chief Executive Officer and President |
Date: November 7, 2024
Exhibit 10.1
JOINDER AND TENTH AMENDMENT TO CREDIT AGREEMENT
This JOINDER AND TENTH AMENDMENT
TO CREDIT AGREEMENT (this “Amendment”) is made as of November 1, 2024 (the “Effective Date”),
among VIREO GROWTH INC. (formerly known as Goodness Growth Holdings, Inc. and Vireo Health International, Inc.), a British
Columbia corporation (“Parent”), the other Borrowers (as defined in the hereinafter-defined Credit Agreement),
the Lenders (as defined in the Credit Agreement) party hereto, and CHICAGO ATLANTIC ADMIN, LLC, a Delaware limited liability company,
as administrative agent (in such capacity, together with its successors and assigns in such capacity, “Administrative Agent”)
and as collateral agent (in such capacity, together with its successors and assigns in such capacity, “Collateral Agent”,
and together with Administrative Agent, collectively, “Agents” and each, an “Agent”).
RECITALS
WHEREAS, reference is made
to that certain Credit Agreement dated as of March 25, 2021, as amended by that certain Omnibus First Amendment to Credit Agreement
and Security Agreement dated as of November 1, 2021 (the “First Amendment”), that certain Second Amendment
to Credit Agreement dated as of November 18, 2021 (the “Second Amendment”), that certain Third Amendment
to Credit Agreement dated as of January 31, 2022 (the “Third Amendment”), that certain Fourth Amendment
to Credit Agreement dated as of March 3, 2022 (the “Fourth Amendment”), that certain Fifth Amendment to
Credit Agreement and First Amendment to Security Agreement dated as of March 31, 2023 (the “Fifth Amendment”),
that certain Sixth Amendment to Credit Agreement dated as of April 28, 2023 (the “Sixth Amendment”), that
certain Seventh Amendment to Credit Agreement dated as of April 30, 2024 (the “Seventh Amendment”), that
certain Eighth Amendment to Credit Agreement dated as of June 14, 2024 (the “Eighth Amendment”), and that
certain Waiver and Ninth Amendment to Credit Agreement dated as of July 31, 2024 (the “Ninth Amendment”; the Credit
Agreement, as amended by the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the
Sixth Amendment, the Seventh Amendment, the Eighth Amendment and the Ninth 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 Borrowers party thereto, the other Credit Parties
from time to time party thereto, the Lenders from time to time party thereto and Agents;
WHEREAS, the Credit Parties
have requested that Agents and the Lenders agree to amend certain provisions of the Credit Agreement, and, subject to the terms and conditions
of this Amendment, Agents and the Lenders have agreed to such requests; and
WHEREAS, Chicago Atlantic
Opportunity Finance, LLC, a Delaware limited liability company (“New Lender”), has agreed to join the Credit Agreement
as a Lender thereunder and to provide to Borrowers the 2024 Convertible Note Loans on the terms and subject to the conditions set forth
herein and in the Credit Agreement;
NOW, THEREFORE, in consideration
of the terms and mutual covenants set forth in this Amendment, the receipt and sufficiency which is hereby acknowledged by the parties,
the parties, intending to be legally bound, agree as follows:
1.
Amendments to Credit Agreement. Subject
to the satisfaction of the conditions precedent set forth in Section 5 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, (b) the Schedules to the Existing
Credit Agreement are hereby amended and modified by amending and restating Schedule 1.01 to the Existing Credit Agreement as set forth
in Annex B attached hereto, and (c) the Exhibits to the Existing Credit Agreement are hereby amended and modified by adding
the Exhibit F attached hereto as Annex C to such Exhibits. For the avoidance of doubt, all other Schedules, and all other Exhibits,
to the Existing Credit Agreement shall not be modified or otherwise affected by this Amendment.
2.
Joinder of New Lender. By its signature hereto, New Lender
hereby joins the Credit Agreement as a Lender thereunder and agrees to be bound by all of the terms thereof, and shall be as fully party
thereto as if New Lender was an original signatory thereto. New Lender hereby assumes all of the rights, duties and obligations of a
Lender under the Credit Agreement and each of the other Credit Documents to which the other Lenders are party. On and as of the date
hereof, each reference to a “Lender” in the Credit Agreement or any other Credit Document shall be deemed to include New
Lender. New Lender: (a) represents and warrants that it is legally authorized to enter into this Amendment; (b) confirms that
it has received a copy of each of the Credit Documents and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Amendment; (c) agrees that it will, independently and without reliance upon
any Agent or any other Lender or any of the Credit Documents 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 Documents or any other instrument
or document furnished pursuant thereto; (d) appoints and authorizes Agents to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement and the other Credit Documents as are delegated to Agents by the terms thereof, together with
such powers as are reasonably incidental thereto; and (d) agrees that it will be bound by the provisions of the Credit Documents
to which the other Lenders are party and will perform in accordance with its terms all the obligations which by the terms of such Credit
Documents are required to be performed by Lenders.
3.
Representations, Warranties and Acknowledgments of Borrowers.
In order to induce the Lenders and Agents to enter into this Amendment and to induce the Lenders to continue to make the Loans under
the Credit Agreement, each Borrower hereby represents and warrants to the Lenders and Agents on and as of the date of this Amendment
that:
(a) Each
Borrower (i) 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 (ii) 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 (ii), where the failure
to be so qualified could not reasonably be expected to result in a Material Adverse Effect.
(b) Each
Borrower 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. Each Borrower
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 Borrower enforceable against each Borrower that is a party thereto 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).
(c) None
of (x) the execution, delivery and performance by any Borrower of this Amendment or the other Credit Documents to which it is a
party and compliance with the terms and provisions thereof or (y) the consummation of the transactions contemplated hereby (including
the or by the other Credit Documents will (i) contravene any applicable provision of any material Applicable Law of any Governmental
Authority or the policies of the CSE, (ii) 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 any Credit Party (other than Liens created under the Credit Documents) pursuant to, (A) the terms of any material
indenture, loan agreement, lease agreement, mortgage or deed of trust, or (B) any other Material Contract of any Consolidated Company,
in the case of any of clauses (A) and (B) to which any Borrower is a party or by which it or any of its property or assets
is bound or (iii) violate any provision of the Organization Documents or Permit of any Borrower, except with respect to any conflict,
breach or contravention or default (but not creation of Liens) referred to in clause (ii), to the extent that such conflict, breach,
contravention or default could not reasonably be expected to have a Material Adverse Effect.
(d) No
authorization or approval or other action by, and no notice to or filing with, any Governmental Authority, the CSE or other Person, and
no consent or approval under any contract or instrument (other than (i) 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, (ii) the filing of UCC financing statements, PPSA registrations and other equivalent filings for foreign jurisdictions,
and (iii) the filings or other actions necessary to perfect Liens under the Credit Documents) is required for the consummation of
the transactions contemplated hereby or the due execution, delivery or performance by any Credit Party of any Credit Document to which
it is a party, or for the due execution, delivery or performance of the Credit Documents, in each case by any of the Credit Parties party
thereto. 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 any
of their respective Subsidiaries of their Obligations under the Credit Documents.
(e) The
representations and warranties of each Borrower 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).
(f) No
Default or Event of Default has occurred and is continuing.
4. Reaffirmation
of Obligations. Each Borrower 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, and agrees that this Amendment
does not operate to reduce or discharge any Borrower’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 Collateral Agent pursuant to each of the Security Documents.
Each Borrower hereby acknowledges and consents to the transactions contemplated by, and the execution and delivery of, this Amendment
and the other Credit Documents.
5. Conditions
Precedent to Effectiveness. This Amendment shall become effective as of the Effective Date when, and only when, 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 Borrower, Agents and the Lenders;
(b) a
2024 Convertible Note reflecting the 2024 Convertible Note Commitment issued to New Lender, duly executed by an Authorized Officer of
each Borrower; and
(c) such
other documents and other information that Administrative Agent may reasonably request.
6. Amendment
Fee. On the date hereof, a Dispensary Loan Maturity Date extension fee in an amount equal to 1.00% of the aggregate outstanding
principal amount of the Dispensary Loan (including, for the avoidance of doubt, all PIK Interest that has been paid in kind and deemed
to be a part of the principal amount of the Dispensary Loans) will be deemed paid by Borrowers in kind for the pro rata benefit of the
Lenders holding Dispensary Loans. Such paid-in-kind amount shall be added to the aggregate outstanding principal amount of the Dispensary
Loans on the date hereof and shall thereafter be deemed to be a part of the aggregate outstanding principal amount of the Dispensary
Loans.
7. No
Novation or Waiver. Except as expressly set forth herein, this Amendment is not intended to be, nor shall it be construed to
create, a nullification, discharge, waiver or release of any obligation incurred in connection with the Notes, the Credit Agreement and/or
any other Credit Documents, or to waive or release any collateral given by Borrowers to secure the Notes, nor shall this Amendment be
deemed or considered to operate as a novation of the Notes, the Credit Agreement or the other Credit Documents. This Amendment shall
not constitute a modification of the Credit Agreement or any of the other Credit Documents or a course of dealing with Agents or the
Lenders at variance with the Credit Agreement or the other Credit Documents such as to require further notice by Administrative Agent
or the Lenders to require strict compliance with the terms of the Credit Agreement and the other Credit Documents in the future, except
as expressly set forth herein. Each Borrower acknowledge and expressly agree that Agents and the Lenders reserve the right to, and do
in fact, require strict compliance with all terms and provisions of the Credit Agreement and the other Credit Documents. Except to the
extent of any express conflict with this Amendment, all of the terms and conditions of the Notes, the Credit Agreement and the other
Credit Documents shall remain in full force and effect, and the same are hereby expressly approved, ratified and confirmed. In the event
of any express conflict between the terms and conditions of the Notes, the Credit Agreement or the other Credit Documents and this Amendment,
this Amendment shall be controlling and the terms and conditions of such other documents shall be deemed to be amended to conform with
this Amendment.
8. 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.
9. Headings.
The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
10. 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 any Agent or any 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.
11. Governing
Law. This Amendment and the rights and obligations of the parties hereunder shall be governed by, and construed and interpreted
in accordance with, the law 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.
12. 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.
13. Severability.
Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
14. Counterparts.
(a) This
Amendment may be executed in any number of counterpart signature pages, and by the different parties on different counterparts, each
of which when executed shall be deemed an original but all such counterparts taken together shall constitute one and the same instrument.
This Amendment will be deemed executed by the parties hereto when each has signed it and delivered its executed signature page to
Administrative Agent by facsimile transmission, electronic transmission or physical delivery. Delivery of an executed counterpart of
a signature page of this Amendment by facsimile or in electronic (e.g., “pdf,” “tif” or DocuSign) format
shall be effective as delivery of a manually executed counterpart of this Amendment. No party hereto shall raise the use of digital imaging,
DocuSign or electronic mail to deliver a signature or the fact that any signature was transmitted or communicated through the use of
a facsimile machine or digital imaging and electronic mail as a defense to the formation of a contract and each such party forever waives
any such defense.
(b) The
words “execution,” “signed,” “signature,” and words of like import in this Amendment shall be deemed
to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity
or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent
and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the Illinois
State Electronic Commerce Security Act, any other similar state laws based on the Uniform Electronic Transactions Act, Parts 2 and 3
of the Personal Information Protection and Electronic Documents Act (Canada), the Electronic Commerce Act, 2000 (Ontario),
or any other similar federal or provincial laws based on the Uniform Electronic Commerce Act of the Uniform Law Conference of
Canada or its Uniform Electronic Evidence Act, as the case may be.
15. 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.
16. Entire
Agreement. This Amendment and the other Credit Documents constitute the entire agreement and understanding between the parties
hereto with respect to the transactions contemplated hereby and thereby and supersede all prior negotiations, understandings and agreements
between such parties with respect to such transactions.
17. Credit
Document. This Amendment shall be deemed to be a Credit Document for all purposes.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties
hereto have caused this Amendment to be duly executed and delivered effective as of the Effective Date.
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BORROWERS: |
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VIREO GROWTH INC. |
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VIREO HEALTH, INC. |
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VIREO HEALTH OF MINNESOTA, LLC |
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VIREO HEALTH OF NEW YORK LLC |
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MARYMED LLC |
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RESURGENT BIOSCIENCES, INC. |
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VIREO HEALTH OF PUERTO RICO, LLC |
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VIREO HEALTH DE PUERTO RICO LLC |
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VIREO HEALTH OF NEVADA I, LLC |
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MJ DISTRIBUTING C201, LLC |
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MJ DISTRIBUTING P132, LLC |
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ELEPHANT HEAD FARM, LLC |
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RETAIL MANAGEMENT ASSOCIATES, LLC |
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VERDANT GROVE, LLC |
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MAYFLOWER BOTANICALS, INC. |
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VIREO HEALTH OF NEW MEXICO, LLC |
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VIREO OF CHARM CITY, LLC |
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EHF CULTIVATION MANAGEMENT LLC |
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By: |
/s/ Amber Shimpa |
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Name: Amber Shimpa |
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Title: Chief Executive Officer |
Joinder and Ninth Amendment
to Credit Agreement
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ADMINISTRATIVE AGENT AND COLLATERAL
AGENT: |
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CHICAGO ATLANTIC ADMIN, LLC |
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By: |
/s/ Pater Sack |
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Name: |
Peter Sack |
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Title: |
Authorized Person |
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LENDERS: |
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CHICAGO ATLANTIC LINCOLN, LLC |
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By: |
/s/ Peter Sack |
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Name: |
Peter Sack |
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Title: |
Authorized Person |
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CHICAGO ATLANTIC CREDIT COMPANY, LLC |
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By: |
/s/ Peter Sack |
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Name: |
Peter Sack |
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Title: |
Authorized Person |
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CHICAGO ATLANTIC OPPORTUNITY PORTFOLIO,
LP |
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By: |
Chicago Atlantic Opportunity GP, LLC, its general partner |
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By: |
Chicago Atlantic GP Holdings, LLC, as its sole member |
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By: |
/s/ Peter Sack |
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Name: |
Peter Sack |
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Title: |
Authorized Person |
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CHICAGO ATLANTIC OPPORTUNITY FINANCE,
LLC |
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By: |
/s/ Peter Sack |
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Name: |
Peter Sack |
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Title: |
Authorized Person |
Joinder and Ninth Amendment
to Credit Agreement
ANNEX A
AMENDED CREDIT AGREEMENT
See attached.
CREDIT AGREEMENT
among
VIREO
GROWTH INC. (formerly known as Goodness Growth Holdings, Inc.
and Vireo Health International, Inc.)
AND
CERTAIN OF ITS SUBSIDIARIES PARTY HERETO,
as Borrowers,
the Persons from time to time party hereto as
Guarantors,
the Lenders from time to time party hereto
and
CHICAGO
ATLANTIC ADMIN, LLC,
as Administrative Agent and Collateral Agent
Dated as of March 25, 2021
GREEN
IVY CAPITAL, LLC,
as Lead Arranger
As amended by that certain Omnibus First Amendment
to Credit Agreement and Security Agreement dated November 1, 2021, that certain Second Amendment to Credit Agreement dated as of
November 18, 2021, that certain Third Amendment to Credit Agreement dated as of January 31, 2022, that certain Fourth Amendment
to Credit Agreement dated as of March 3, 2022, that certain Fifth Amendment to Credit Agreement and First Amendment to Security
Agreement dated as of March 31, 2023, that certain Sixth Amendment to Credit Agreement dated as of April 28, 2023, that certain
Seventh Amendment to Credit Agreement dated as of April 30, 2024, that certain Eighth Amendment to Credit Agreement dated as of
June 14, 2024, and that certain Waiver and Ninth Amendment to Credit Agreement
dated as of July 31, 2024,
and that certain Joinder and Tenth Amendment to Credit Agreement dated as of November 1, 2024.
TABLE OF CONTENTS
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Pages |
|
|
ARTICLE I Definitions |
2 |
|
|
|
SECTION 1.01. |
Defined Terms |
2 |
SECTION 1.02. |
Other Interpretive Provisions |
29 |
SECTION 1.03. |
Accounting Terms and Principles |
30 |
SECTION 1.04. |
Rounding |
31 |
SECTION 1.05. |
References to Agreements, Laws, Etc. |
31 |
SECTION 1.06. |
Times of Day |
31 |
SECTION 1.07. |
Timing of Payment of Performance |
31 |
SECTION 1.08. |
Corporate Terminology |
31 |
|
|
|
ARTICLE II Amount and Terms of Loans |
31 |
|
|
SECTION 2.01. |
Loans |
31 |
SECTION 2.02. |
Disbursement of Funds; Original Issue Discount |
3332 |
SECTION 2.03. |
Payment of Loans; Evidence of Debt |
3433 |
SECTION 2.04. |
Interest |
35 |
SECTION 2.05. |
Multiple Borrowers |
35 |
SECTION 2.06. |
Borrower Representative |
36 |
SECTION 2.07. |
Fees |
36 |
|
|
|
ARTICLE III Mandatory Reduction of
Commitments |
3736 |
|
|
SECTION 3.01. |
Mandatory Reduction of Commitments |
3736 |
|
|
|
ARTICLE IV Payments |
3736 |
|
|
|
SECTION 4.01. |
Voluntary Prepayments |
3736 |
SECTION 4.02. |
Mandatory Prepayments |
37 |
SECTION 4.03. |
Payment of Obligations; Method and Place of Payment |
4039 |
SECTION 4.04. |
Taxes |
41 |
SECTION 4.05. |
Computations of Interest and Fees |
43 |
SECTION 4.06. |
Maximum Interest |
4443 |
|
|
|
ARTICLE V Conditions Precedent to
Loans |
4544 |
|
|
SECTION 5.01. |
Initial Delayed Draw Term Loans |
4544 |
SECTION 5.02. |
Loans Made after Closing Date |
49 |
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|
|
ARTICLE VI Guarantee |
51 |
|
|
SECTION 6.01. |
Guarantee |
51 |
SECTION 6.02. |
Right of Contribution |
52 |
SECTION 6.03. |
No Subrogation |
5352 |
SECTION 6.04. |
Modification of the Guarantor Obligations |
5352 |
SECTION 6.05. |
Guarantee Absolute and Unconditional |
53 |
SECTION 6.06. |
Reinstatement |
5453 |
SECTION 6.07. |
Payments |
5453 |
SECTION 6.08. |
Taxes |
54 |
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|
|
ARTICLE VII Representations, Warranties
and Agreements |
54 |
|
|
|
SECTION 7.01. |
Status |
54 |
SECTION 7.02. |
Power and Authority |
55 |
SECTION 7.03. |
No Violation |
5554 |
SECTION 7.04. |
Litigation, Labor Controversies, Etc |
5554 |
SECTION 7.05. |
Use of Proceeds; Regulations U and X |
55 |
SECTION 7.06. |
Approvals, Consents, Etc |
56 |
SECTION 7.07. |
Investment Company Act |
5655 |
SECTION 7.08. |
Accuracy of Information |
5655 |
SECTION 7.09. |
Financial Condition; Financial Statements |
56 |
SECTION 7.10. |
Tax Returns and Payments |
5756 |
SECTION 7.11. |
Benefit Plans |
5756 |
SECTION 7.12. |
Subsidiaries |
57 |
SECTION 7.13. |
Intellectual Property; Licenses, Etc. |
5857 |
SECTION 7.14. |
Environmental Warranties |
58 |
SECTION 7.15. |
Ownership of Properties |
59 |
SECTION 7.16. |
No Default |
6059 |
SECTION 7.17. |
Solvency |
6059 |
SECTION 7.18. |
Locations of Offices, Records and Collateral |
6059 |
SECTION 7.19. |
Compliance with Laws and Permits; Authorizations |
6059 |
SECTION 7.20. |
No Material Adverse Effect |
6160 |
SECTION 7.21. |
Contractual or other Restrictions |
6160 |
SECTION 7.22. |
Collective Bargaining Agreements; Officers |
6160 |
SECTION 7.23. |
Insurance |
6160 |
SECTION 7.24. |
Evidence of other Indebtedness |
6160 |
SECTION 7.25. |
Deposit Accounts and Securities Accounts |
61 |
SECTION 7.26. |
Absence of any Undisclosed Liabilities |
62 |
SECTION 7.27. |
Material Contracts and Regulatory Matters |
6261 |
SECTION 7.28. |
Anti-Terrorism Laws |
6261 |
SECTION 7.29. |
Conduct of Business |
62 |
SECTION 7.30. |
Transactions with Affiliates |
63 |
SECTION 7.31. |
Canadian Securities Law Matters |
6362 |
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ARTICLE VIII Affirmative Covenants |
6362 |
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SECTION 8.01. |
Financial Information, Reports, Notices and Information |
6362 |
SECTION 8.02. |
Books, Records and Inspections |
6766 |
SECTION 8.03. |
Maintenance of Insurance |
6766 |
SECTION 8.04. |
Payment of Taxes |
67 |
SECTION 8.05. |
Maintenance of Existence; Compliance with Laws, Etc. |
6867 |
SECTION 8.06. |
Environmental Compliance |
6867 |
SECTION 8.07. |
Maintenance of Properties |
6968 |
SECTION 8.08. |
Additional Credit Parties |
6968 |
SECTION 8.09. |
Use of Proceeds |
7069 |
SECTION 8.10. |
Further Assurances |
7069 |
SECTION 8.11. |
Collateral Access Agreements |
7170 |
SECTION 8.12. |
Bank Accounts |
7170 |
SECTION 8.13. |
Sanctions; Anti-Corruption Laws |
7271 |
SECTION 8.14. |
Regulatory Matters |
7271 |
SECTION 8.15. |
Annual Lender Meeting |
72 |
SECTION 8.16. |
Canadian Securities Law Matters |
72 |
SECTION 8.17. |
New York Disposition |
7372 |
SECTION 8.18. |
Triggering Event |
7372 |
SECTION 8.19. |
Meetings |
7372 |
SECTION 8.20. |
Post-Closing Matters |
73 |
ARTICLE IX Negative Covenants |
7574 |
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SECTION 9.01. |
Limitation on Indebtedness |
75 |
SECTION 9.02. |
Limitation on Liens |
77 |
SECTION 9.03. |
Consolidation, Merger, Etc. |
79 |
SECTION 9.04. |
Permitted Dispositions |
8079 |
SECTION 9.05. |
Investments |
8180 |
SECTION 9.06. |
ERISA |
82 |
SECTION 9.07. |
Restricted Payments |
8382 |
SECTION 9.08. |
Payments and Modification of Certain Agreements |
83 |
SECTION 9.09. |
Sale and Leaseback; Build-to-Suit Lease |
8483 |
SECTION 9.10. |
Transactions with Affiliates |
8483 |
SECTION 9.11. |
Restrictive Agreements, Etc. |
84 |
SECTION 9.12. |
Hedging Agreements |
8584 |
SECTION 9.13. |
Changes in Business and Fiscal Year |
8584 |
SECTION 9.14. |
Financial Covenants |
85 |
SECTION 9.15. |
Operations of Parent |
8685 |
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|
ARTICLE X Events of Default |
86 |
|
|
|
SECTION 10.01. |
Listing of Events of Default |
86 |
SECTION 10.02. |
Remedies Upon Event of Default |
8988 |
SECTION 10.03. |
Right to Cure Certain Covenant Violations |
89 |
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|
ARTICLE XI Agents |
9190 |
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SECTION 11.01. |
Appointment |
9190 |
SECTION 11.02. |
Delegation of Duties |
91 |
SECTION 11.03. |
Exculpatory Provisions |
91 |
SECTION 11.04. |
Reliance by Agents |
9291 |
SECTION 11.05. |
Notice of Default |
9291 |
SECTION 11.06. |
Non-Reliance on Agents and other Lenders |
92 |
SECTION 11.07. |
Indemnification |
9392 |
SECTION 11.08. |
Agent in Its Individual Capacity |
93 |
SECTION 11.09. |
Successor Agents |
93 |
SECTION 11.10. |
Agents Generally |
9493 |
SECTION 11.11. |
Restrictions on Actions by Secured Parties; Sharing
of Payments |
9493 |
SECTION 11.12. |
Agency for Perfection |
9594 |
SECTION 11.13. |
Enforcement by Agents |
95 |
SECTION 11.14. |
Credit Parties Not Beneficiaries |
95 |
SECTION 11.15. |
Intercreditor and Subordination Agreements |
95 |
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|
|
ARTICLE XII Miscellaneous |
9695 |
|
|
|
SECTION 12.01. |
Amendments and Waivers |
9695 |
SECTION 12.02. |
Notices and Other Communications; Facsimile Copies |
9796 |
SECTION 12.03. |
No Waiver; Cumulative Remedies |
97 |
SECTION 12.04. |
Survival of Representations and Warranties |
97 |
SECTION 12.05. |
Payment of Expenses and Taxes; Indemnification |
9897 |
SECTION 12.06. |
Successors and Assigns; Participations and Assignments;
Replacement of Lenders |
9998 |
SECTION 12.07. |
Pledge of Loans |
102101 |
SECTION 12.08. |
Adjustments; Set-off |
102101 |
SECTION 12.09. |
Counterparts |
103102 |
SECTION 12.10. |
Severability |
103102 |
SECTION 12.11. |
Integration |
103 |
SECTION 12.12. |
GOVERNING LAW |
103 |
SECTION 12.13. |
Submission to Jurisdiction; Waivers |
103 |
SECTION 12.14. |
Acknowledgments |
104 |
SECTION 12.15. |
WAIVERS OF JURY TRIAL |
104 |
SECTION 12.16. |
Confidentiality |
105104 |
SECTION 12.17. |
Press Releases, Etc. |
106 |
SECTION 12.18. |
Releases of Guarantees and Liens |
107106 |
SECTION 12.19. |
USA Patriot Act |
107106 |
SECTION 12.20. |
No Fiduciary Duty |
107 |
SECTION 12.21. |
Authorized Officers |
107 |
SECTION 12.22. |
Subordination of Intercompany Indebtedness |
108107 |
SECTION 12.23. |
Electronic Communication |
108107 |
SECTION 12.24. |
Original Issue Discount |
108107 |
SECTION 12.25. |
Tax Treatment |
108 |
SECTION 12.26. |
Trading of Parent Capital Stock |
108 |
|
|
|
ARTICLE XIII Additional Covenants
and Agreements. |
109 |
|
|
|
SECTION 13.01. |
Cannabis Laws |
109 |
SCHEDULES |
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|
|
Schedule 1.01 |
Commitments |
Schedule 2.01(c) |
Delayed Draw Term Loans Draw
Schedule |
Schedule 2.01(f) |
Convertible Note Loans Draw
Schedule |
Schedule 7.04 |
Litigation, Labor Controversies, Etc. |
Schedule 7.11 |
Benefit Plans |
Schedule 7.12 |
Subsidiaries |
Schedule 7.13 |
Intellectual Property, Licenses,
Etc. |
Schedule 7.14 |
Environmental Warranties |
Schedule 7.15 |
Ownership of Properties |
Schedule 7.18 |
Locations of Offices, Records
and Collateral |
Schedule 7.19 |
Regulatory Licenses |
Schedule 7.21 |
Contractual or other Restrictions |
Schedule 7.22 |
Collective Bargaining Agreements |
Schedule 7.24 |
Evidence of other Indebtedness |
Schedule 7.25 |
Deposit Accounts and Securities
Accounts |
Schedule 7.27 |
Material Contracts and Regulatory
Matters |
Schedule 7.29 |
Sales Tracking Software |
Schedule 9.02 |
Permitted Liens |
Schedule 9.05 |
Investments |
Schedule 9.10 |
Transactions with Affiliates |
Schedule 12.02 |
General (Addresses for Notices) |
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EXHIBITS |
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Exhibit A |
Form of Assignment and
Acceptance |
Exhibit B |
Form of Compliance Certificate |
Exhibit C |
Form of Credit Agreement
Joinder |
Exhibit D |
Form of Note |
Exhibit E |
Form of Convertible Note
Exhibit F Form of 2024 Convertible Note |
Exhibit F
Form of Convertible Note
CREDIT AGREEMENT
THIS
CREDIT AGREEMENT, dated as of March 25, 2021, is among VIREO GROWTH INC. (formerly known as Goodness Growth Holdings, Inc.
and Vireo Health International, Inc.), a corporation existing under the laws of the Province of British Columbia (“Parent”),
VIREO HEALTH, INC., a Delaware corporation (“Vireo Health”), VIREO HEALTH OF MINNESOTA, LLC,
a Minnesota limited liability company (“Vireo Minnesota”), VIREO HEALTH OF NEW YORK LLC, a New York
limited liability company (“Vireo NY”), MARYMED LLC, a Maryland limited liability company (“MaryMed”),
RESURGENT BIOSCIENCES, INC., a Delaware corporation (“Resurgent”), VIREO HEALTH OF PUERTO RICO,
LLC, a Delaware limited liability company (“Vireo PR”), VIREO HEALTH DE PUERTO RICO LLC, a Puerto
Rico limited liability company (“Vireo de Puerto Rico”), VIREO HEALTH OF NEVADA I, LLC, a Nevada limited
liability company (“Vireo Nevada”), MJ DISTRIBUTING C201, LLC, a Nevada limited liability company (“MJ
C201”), MJ DISTRIBUTING P132, LLC, a Nevada limited liability company (“MJ P132”), ELEPHANT
HEAD FARM, LLC, an Arizona limited liability company (“Elephant Head”), RETAIL MANAGEMENT ASSOCIATES,
LLC, an Arizona limited liability company (“Retail Management”), Verdant
GroveVERDANT
GROVE, LLC, a Delaware limited liability company (“Verdant Grove”), Mayflower
Botanicals, Inc MAYFLOWER
BOTANICALS, INC., a Massachusetts corporation (“Mayflower”),
Vireo Health of New MexicoVIREO
HEALTH OF NEW MEXICO, LLC, a Delaware limited liability company (“Vireo NM;”), EHF
CULTIVATION MANAGEMENT LLC (“EHF”);together with Parent,
Vireo Health, Vireo Minnesota, Vireo NY, MaryMed, Resurgent, Vireo PR, Vireo de Puerto Rico, Vireo Nevada, MJ C201, MJ P132, Elephant
Head, Retail Management, Verdant Grove, Mayflower, Vireo NM and each other Subsidiary of Parent that becomes a borrower hereunder pursuant
to Section 8.08, each, a “Borrower” and collectively, jointly and severally, “Borrowers”),
any Subsidiaries of Parent hereto that are Guarantors or become Guarantors hereunder pursuant to Section 8.08, the lenders from
time to time party hereto (each, a “Lender” and, collectively, the “Lenders”), Chicago
Atlantic AdminCHICAGO
ATLANTIC ADMIN, LLC, a Delaware limited liability company (“Chicago Atlantic”), as administrative
agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, “Administrative Agent”)
and Chicago Atlantic, as collateral agent for the Secured Parties (in such capacity, together with its successors and assigns in such
capacity, “Collateral Agent”, and together with Administrative Agent, each, an “Agent”
and collectively, “Agents”).
RECITALS
WHEREAS,
Borrowers have requested that the Lenders extend to Borrowers certain Loans and Commitments to make Loans in the aggregate principal
amount of up to $46,000,000 commencing on the Closing Date; and
WHEREAS,
the Lenders have agreed to provide the Loans and the Commitments to make Loans, in each case subject to the terms and conditions contained
in this Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto
agree 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:
“Acquired Business”
shall mean the entity or assets acquired by any Borrower or a Subsidiary in an Acquisition, whether before or after the date hereof.
“Acquisition”
shall mean any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the
acquisition of all or substantially all of the assets of a Person (other than a Person that is a Subsidiary immediately prior to such
Acquisition), or of any line of business or division of a Person (other than a Person that is a Subsidiary immediately prior to such
Acquisition), (b) the acquisition of in excess of 50.00% of the capital stock, partnership interests, membership interests or equity
of any Person (other than a Person that is a Subsidiary), or otherwise causing any Person to become a Subsidiary, or (c) a merger
or consolidation or any other combination with another Person (other than a Person that is a Subsidiary), provided that a Credit
Party is the surviving entity.
“Administrative
Agent” shall have the meaning set forth in the Preamble.
“Administrative
Questionnaire” shall mean a questionnaire completed by each Lender, in a form approved by 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 or telephone number for notices
and communications with such Lender.
“Affiliate”
shall mean, with respect to any Person, (a) any Person which, directly or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, such Person, or (b) any Person who is a director or officer (i) of such
Person, (ii) of any Subsidiary of such Person or (iii) of any Person described in clause (a) above. For purposes of this
definition only, control of a Person shall mean the power, direct or indirect, to (x) vote 30.00% or more of the Capital Stock or
other form of ownership interest having ordinary voting power for the election of directors (or the comparable equivalent) of such Person
or (y) direct or cause the direction of the management and policies of such Person, in each case whether through the ownership of
any Capital Stock, by contract or otherwise. No Agent or Lender shall be an Affiliate of any Consolidated Company for purposes of this
Agreement or any other Credit Document.
“Agents”
shall have the meaning set forth in the Preamble.
“Agreement”
shall mean this Credit Agreement, as it may be amended, restated, amended and restated, supplemented or otherwise modified from time
to time.
“Aggregate Commitment”
shall mean $85,200,00075,200,000,
as such amount may be increased pursuant to Section 2.01(g).
“ALTA”
shall mean the American Land Title Association.
“Anti-Corruption
Laws” shall mean all laws, rules, and regulations of any jurisdiction applicable to any Credit Party or any of its Subsidiaries
from time to time concerning or relating to bribery or corruption, including the United States Foreign Corrupt Practices Act of 1977,
the Corruption of Foreign Public Officials Act (Canada) and other similar anti-corruption legislation in other jurisdictions.
“Anti-Terrorism
Laws” shall have the meaning set forth in Section 7.28.
“Applicable Laws”
shall mean, subject to the carve-outs and acknowledgments contained in Section 13.01, 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 Securities
Legislation” shall mean all applicable securities laws of each of the Reporting Jurisdictions and the respective rules and
regulations under such laws together with applicable published fee schedules, prescribed forms, policy statements, national or multilateral
instruments, orders, blanket rulings and other applicable regulatory instruments of the securities regulatory authorities in any of the
Reporting Jurisdictions.
“Application
Event” shall have the meaning set forth in Section 4.02(d).
“Applicable Fiscal
Period” shall mean the period of three consecutive fiscal months ending at the end of each prescribed fiscal month.
“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) an Affiliate
of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
“Arranger”
shall mean Green Ivy Capital, LLC, a Delaware limited liability company, in its capacity as lead arranger hereunder.
“Arizona Natural”
shall mean Arizona Natural Remedies, Inc., an Arizona non-profit corporation.
“Assignment and
Acceptance” shall mean an assignment and acceptance substantially in the form of Exhibit A.
“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 GAAP.
“Authorized Officer”
shall mean, with respect to any Credit Party, the president, the chief financial officer, the chief operating officer, the secretary,
the treasurer or any other senior officer of such Credit Party, but, in any event, with respect to financial matters, the chief financial
officer of such Credit Party or such other senior officer of such Credit Party designated as such by the applicable Credit Party in writing.
“Beneficial Ownership
Certification” shall mean a certification regarding beneficial ownership or control as required by the Beneficial Ownership
Regulation.
“Beneficial Ownership
Regulation” shall mean 31 C.F.R. § 1010.230.
“Benefited Lender”
shall have the meaning set forth in Section 12.08(a).
“BIA”
shall mean the Bankruptcy and Insolvency Act (Canada), as amended from time to time.
“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”
and “Borrowers” shall have the meanings set forth in the Preamble.
“Borrower Representative”
shall mean Parent.
“Budget”
shall have the meaning set forth in Section 8.01(g).
“Business”
shall mean: the business of cultivating, producing, processing, packaging and marketing cannabis products for distribution and sale;
all ancillary activities related to the foregoing including conducting or facilitating research regarding the properties or efficacy
of cannabis products, data collection or analysis related to the foregoing; and similar activities.
“Business Day”
shall mean any day excluding Saturday, Sunday and any day that shall be in Chicago, Illinois a legal holiday or a day on
which banking institutions are authorized by law or other governmental actions to close.
“Canadian Credit
Party” shall mean any Credit Party organized and existing under the federal laws of Canada or any province or territory
thereof.
“Canadian Pension
Plans” shall mean, with respect to any Canadian Credit Party, all plans or arrangements that are pension plans required
to be registered under Canadian federal or provincial law and that are administered or contributed to by such Credit Party for any of
its employees or former employees located in Canada or any province or territory thereof, but does not include the Canada Pension Plan
or the Quebec Pension Plan as maintained by the Government of Canada or the Province of Quebec, respectively.
“Canadian Security
Agreement” shall mean that certain General Security Agreement dated as of the Closing Date, by and among each Canadian
Credit Party and Collateral Agent for the benefit of the Secured Parties.
“Capital Expenditures”
shall mean, for any specified period, the sum of, without duplication, all expenditures made, directly or indirectly, by the Consolidated
Companies during such period, determined on a consolidated basis in accordance with GAAP, 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 the Consolidated
Companies, 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 or any
of its Subsidiaries, 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 GAAP.
“Capitalized
Leases” shall mean, as applied to any Person, all leases of property that have been or should be, in accordance with GAAP,
recorded as capitalized leases on the balance sheet of such Person or any of its Subsidiaries, on a consolidated basis; 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 GAAP.
“Cash Equivalents”
shall mean:
(a) any
direct obligation of (or unconditional guarantee by) the United States or, with respect to Parent, 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, as the
case may be) 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 (i) a corporation (other than an Affiliate of any Credit
Party) organized under the laws of any state of the United States, the District of Columbia or, with respect to Parent, any province
of Canada and, at the time of acquisition thereof, rated A-1 or higher by S&P or P-1 or higher by Moody’s, or carrying an equivalent
rating by a nationally recognized rating agency if at any time neither S&P or Moody’s shall be rating such obligations, or
(ii) any Lender (or its holding company);
(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 either: (i) a bank organized under the laws of the United States or, with respect to Parent, Canada (or any state or
province thereof) which has, at the time of acquisition thereof, (A) a credit rating of A-2 or higher from Moody’s or A or
higher from S&P and (B) a combined capital and surplus greater than $500,000,000, or (ii) a Lender;
(d) cash
and demand deposits maintained with the domestic office of any commercial bank organized under the laws of the United States;
(e) any
repurchase agreement having a term of 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 100.00% 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.
“Cash Interest
Rate” shall mean a per annum rate equal to the greater of (a) the Prime Rate plus 10.375% and (b) 13.625%.
“Casualty Event”
shall mean the damage, destruction or condemnation, as the case may be, of property of any Person or any of its Subsidiaries.
“CERCLA”
shall mean the Comprehensive Environmental Response, Compensation and Liability Act of 1980.
“Charm City Acquisition”
shall mean the Acquisition by Vireo Charm City of substantially all of the assets of Charm City Seller pursuant to the Charm City Acquisition
Agreement.
“Charm City Acquisition
Agreement” shall mean that certain Asset Purchase Agreement, dated as of July 8, 2021, by and among Vireo Charm City,
Charm City Seller, Arcarius, LLC, a Maryland limited liability company, and Bryan Hill (solely with respect to the obligations set forth
in Section 9.10 thereof).
“Charm City Intercreditor
Agreement” shall mean that certain Intercreditor and Collateral Sharing Agreement dated as of November 19, 2021, between
Collateral Agent and Charm City Seller and acknowledged and agreed to by Parent and Vireo Charm City.
“Charm City Note”
shall mean that certain Secured Promissory Note in the amended principal amount of $1,000,000 dated November 19, 2021, as amended
as of November 19, 2023, issued by Vireo Charm City to Charm City Seller in connection with the Charm City Acquisition.
“Charm City Pledge
Agreement” shall mean that certain Pledge Agreement dated as of November 19, 2021, by and between Vireo Health, Vireo
Charm City and Charm City Seller.
“Charm City Seller”
shall mean Charm City Medicus, LLC, a Maryland limited liability company.
“Change in Cannabis
Law” shall mean any change in Applicable Law, including U.S. Federal Cannabis Law and U.S. State Cannabis Law, (a) that
would make it 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, (b) pursuant to which any Governmental Authority has enjoined any Agent or Lender from
(i) performing any of its obligations hereunder or under any other Credit Document, or (ii) funding or maintaining the Loans,
or (c) that would result in any business activity conducted by any Credit Party being a Restricted Cannabis Activity, and such result
described in this clause (c) would have a Material Adverse Effect.
“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 Dodd Frank 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 an event or series of events by which (a) on or after March 31, 2023, there is a report filed with any securities
commission or securities regulatory authority in Canada, disclosing that any offeror (as such term is defined in section 1.1 of Multilateral
Instrument 62-104 Take-Over Bids and Issuer Bids) has acquired beneficial ownership (within the meaning of the Securities Act) of, or
the power to exercise control or direction over, or securities convertible into, any Voting Stock of Parent, that together with the offeror’s
securities (as such term is defined in section 1.1 of Multilateral Instrument 62-104 Take-Over Bids and Issuer Bids) in relation to any
Voting Stock of Parent, would constitute Voting Stock representing more than 30.00% of the total voting power attached to all Voting
Stock of Parent then outstanding; (b) there is consummated any amalgamation, consolidation, statutory arrangement (involving a business
combination) or merger of Parent (i) in which Parent is not the continuing or surviving corporation or (ii) pursuant to which
any Voting Stock would be reclassified, changed or converted into or exchanged for cash, securities or other property, other than (in
each case) an amalgamation, consolidation, statutory arrangement or merger of Parent in which the holders of the Voting Stock immediately
prior to the amalgamation, consolidation, statutory arrangement or merger have, directly or indirectly, more than 50.10% of the Voting
Stock of the continuing or surviving corporation immediately after such transaction; (c) there occurs any other change of Control
of Parent as it exists as at the date of this Agreement; (d) during any period of 24 consecutive months, a majority of the members
of the board of directors or other equivalent governing body 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 or equivalent
governing body 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 equivalent governing body or (iii) whose election or nomination to that board or other equivalent
governing body 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 or equivalent governing body; (e) except as permitted by Section 9.03
or 9.04, Parent shall cease to own and control, beneficially and of record, 100.00% of the Capital Stock of each other Borrower;
and (f) except as permitted by Section 9.03, 9.04 or 9.13, any Borrower shall cease to own and control,
directly or indirectly, free and clear of all Liens or other encumbrances (other than Liens created pursuant to any Credit Document),
(i) at least the percentage of the Capital Stock of each of its Subsidiaries held by such Borrower on the Closing Date and (ii) 100.00%
of the Capital Stock of each of its Subsidiaries formed or acquired after the Closing Date; provided, however, that the
acquisition of the Voting Stock of Parent by another Person that has been disclosed to Administrative Agent as of the Third Amendment
Effective Date pursuant to the agreement referenced in the proviso of Section 7.29 shall not be a Change of Control.
“Chicago Atlantic”
shall have the meaning set forth in the Preamble.
“Claims”
shall have the meaning set forth in the definition of Environmental Claims.
“Closing Date”
shall mean March 25, 2021.
“Code”
shall mean the Internal Revenue Code of 1986, and the Treasury Regulations promulgated and rulings issued thereunder.
“Collateral”
shall mean any assets of any Credit Party or other assets upon which Collateral Agent has been, or has purportedly been, granted a Lien
in connection with this Agreement or any other Credit Document.
“Collateral Access
Agreements” shall mean a collateral access agreement in form and substance reasonably satisfactory to Collateral Agent
between 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. “Collateral Assignee” shall have the meaning set forth in Section 12.06(d).
“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.
“Commitment”
shall mean, as to each Lender, the Existing Loans Commitment of such Lender or, the Convertible Note Commitment of such Lender or
the 2024 Convertible Note Commitment of such Lender.
“Communications”
shall mean, collectively, any notice, demand, communication, information, document or other material that any Credit Party provides to
Administrative Agent pursuant to any Credit Document or the transactions contemplated therein which is distributed to Administrative
Agent or any Lender by means of electronic communications pursuant to Section 12.23, including through the Platform.
“Compliance Certificate”
shall mean a certificate duly completed and executed by an Authorized Officer of Parent substantially in the form of Exhibit B,
together with such changes thereto or departures therefrom as 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 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
Adjusted EBITDA” shall mean, for a specified period, (a) the net income or loss of the Consolidated Companies (other
than Vireo NY), plus (b) to the extent deducted in determining net income for such period, the sum of, without duplication,
(i) interest expense, (ii) income tax expense, (iii) depreciation and amortization expense, (iv) charges, costs,
losses and expenses related to asset dispositions permitted under this Agreement or discontinued operations, (v) non-cash write-downs
of assets, (vi) (A) fees, costs and expenses paid in cash in connection with the closing of the Credit Documents, (B) pre-opening
costs and expenses in connection with the opening of any retail, cultivation or processing location and (C) other extraordinary
or non-recurring charges, costs and expenses, (vii) Judgments and costs and expenses incurred in connection with such Judgments
and (vii) non-cash compensation expense in respect of stock option plans or other equity compensation plans, minus (c) to
the extent included in determining net income for such period, the sum of, without duplication, (i) any income or gains from asset
dispositions or discontinued operations, (ii) any extraordinary or non-recurring gains and (iii) non-cash write-ups of assets,
in the case of each of the foregoing in clauses (a) through (c), for such period and as determined in accordance with GAAP consistently
applied; provided that the aggregate amount of add-backs permitted pursuant to clause (a)(vi) shall not exceed $20,000,000 for any
consecutive 12-month period.
“Consolidated
Companies” shall mean Parent and its Subsidiaries on a consolidated basis in accordance with GAAP.
“Consolidated
Fixed Charge Coverage Ratio” shall mean, with respect to the Consolidated Companies (other than Vireo NY) as of each applicable
date of determination: (a) Consolidated Adjusted EBITDA for the Applicable Fiscal Period, plus the aggregate amount of GAAP rent
expense of such Consolidated Companies owed to third parties for the Applicable Fiscal Period, less the aggregate amount all cash distributions
paid, and other distributions made, by such Consolidated Companies during the Applicable Fiscal Period, divided by (b) the sum of
(i) the aggregate principal amount of the Indebtedness of such Consolidated Companies (including the principal or amortization component
of any Attributable Indebtedness but excluding the Loans or the Indebtedness outstanding under the Charm City Note) that was paid or
scheduled to be paid during the Applicable Fiscal Period plus (ii) the aggregate of amount of the interest payments (including the
interest component of any payments in respect to Capitalized Lease Obligations) of such Consolidated Companies due and payable during
the Applicable Fiscal Period, plus (iii) the aggregate amount of GAAP rent expense of such Consolidated Companies owed to third
parties during the Applicable Fiscal Period, in the case of each of the foregoing in clauses (a) and (b), as determined in accordance
with GAAP consistently applied.
“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.
“Control”
shall mean, as to any Person, (a) the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to: (i) cast,
or control the casting of, more than 50.00% of the maximum number of votes that might be cast at a general meeting of such Person; (ii) appoint
or remove all, or the majority, of the directors or other equivalent officers of such Person; (iii) give directions with which the
directors or other equivalent officers of such Person are obliged to comply; or (iv) to direct or cause the direction of the management
or policies of a Person; and/or (b) the holding beneficially of more than 50.00% of the issued Capital Stock of such Person.
“Control Agreement”
shall mean a pledge, collateral assignment, control agreement or bank consent letter, in form and substance reasonably satisfactory to
Collateral Agent, executed and delivered by the applicable Credit Party, Collateral Agent, and the applicable securities intermediary
or bank, which agreement is sufficient to give Collateral Agent “control” over each of such Credit Party’s securities
accounts, deposit accounts or investment property, as the case may be.
“Convertible
Note” shall mean a promissory note (or amended and restated promissory note) substantially in the form of Exhibit E.
“Convertible
Note Cash Interest Rate” shall mean a per annum rate equal to 6.00%.
“Convertible
Note Commitment” shall mean, as to any Lender, its obligation to make a Convertible Note Loan to Borrowers pursuant to
Section 2.01(f) or, as applicable, Section 2.01(g) in the principal
amount set forth for such Lender on Schedule 1.01 on the Sixth Amendment Date, as such amount may be increased
pursuant to Section 2.01(g) or adjusted by assignment by any Lender pursuant to Section 12.06(b). As of
the SixthTenth
Amendment Date, the aggregate amount of the Convertible Note Commitments
is $10,000,000have
been terminated and the Convertible Note Loans have been converted into Subordinated Voting Shares of Parent.
“Convertible
Note Lender” shall mean each Lender with a Convertible Note Commitment.
“Convertible
Note Loans” shall mean the aggregate amount of up to the aggregate amount of the Convertible Note Commitments advanced
by Lenders on or after the Sixth Amendment Date as provided in SectionsSection 2.01(f) and
2.01(g).
“Convertible
Note Maturity Date” shall mean April 30, 2026.
“Convertible
Note PIK Interest Rate” shall mean the rate of 6.00% per annum.
“Copyright Security
Agreements” shall mean any and all copyright security agreements entered into by the Credit Parties in favor of Collateral
Agent (as required by the Agreement or any other Credit Document).
“Credit Agreement
Joinder” shall mean a joinder substantially in the form of Exhibit C.
“Credit Documents”
shall mean (a) this Agreement, the Security Documents, any Notes, the Charm City Intercreditor Agreement, the Refinancing Intercreditor
Agreement, the Stearns
Bank Intercreditor Agreement, any other 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, or by any Borrower on behalf of the Credit Parties,
or any of them, and delivered to any Agent or Lender in connection with any of the foregoing or the Obligations.
“Credit Parties”
shall mean, collectively, Borrowers and Guarantors, and “Credit Party” shall mean any of the Credit Parties, individually.
“CSE”
shall mean the Canadian Securities Exchange and its successors.
“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 sum of (a) (i) with respect to the Dispensary Loans, the Dispensary Loan Cash Interest
Rate, (ii) with respect to the Convertible Note Loans, the Convertible Note Cash Interest Rate, or
(iii) with respect to the
2024 Convertible Note Loans, the 2024 Convertible Note Cash Interest Rate, or (iv) with respect to the other Loans, the
Cash Interest Rate plus (b) 8.00%, plus (c) (i) with respect to the Dispensary Loans, the Dispensary Loan PIK Interest
Rate, (ii) with respect to the Convertible Note Loans, the Convertible Note PIK Interest Rate, or (iii) with respect to the
other Loans(other than
the 2024 Convertible Note Loans), the PIK Interest Rate.
“Delayed Draw
Term Loans” shall mean the aggregate amount of $35,000,000 provided by Lenders on or after the Third Amendment Initial
Funding Date as provided in Sections 2.01(c) and 2.01(d).
“Designated Jurisdiction”
shall mean any country or territory to the extent that such country or territory is the subject of any Sanction.
“Dispensary Loans”
shall mean the aggregate amount of $4,200,000 provided by Lenders to Borrowers on or about November 18, 2021, on the terms described
in the Second Amendment, a portion of the proceeds of were used by Borrowers to finance the Charm City Acquisition.
“Dispensary Loan
Cash Interest Rate” shall mean a per annum rate equal to 15.00%. “Dispensary Loan Maturity Date” shall mean
NovemberMay 29,
202426.
“Dispensary Loan
PIK Interest Rate” shall mean the rate of 2.00% per annum.
“Disposition”
shall mean, with respect to any Person, any sale, transfer, lease, contribution or other conveyance (including by way of merger or amalgamation)
of, or the granting of options, warrants or other rights to, any of such Person’s or their respective Subsidiaries’ assets
(including Capital Stock of Subsidiaries) 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 transaction that would constitute an Event of Default under Section 10.01(j) 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 91 days after the latest Tranche Maturity Date; provided that if such Capital Stock is issued by Parent
pursuant to a plan for the benefit of employees of Parent 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 such Person in order to satisfy
applicable statutory or regulatory obligations.
“Dollars”
and “$” shall mean dollars in lawful currency of the United States. “Elephant Head” shall have
the meaning set forth in the Preamble.
“Employee Retention
Credit” shall mean the Federal refundable tax credit for businesses that continued to pay employees while experiencing
a full or partial suspension of operations limiting commerce, travel or group meetings due to COVID-19 or had significant declines in
gross receipts from March 13, 2020, to December 31, 2020, or declines in gross receipts from January 1, 2021, through
September 30, 2021.
“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 (collectively, “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.
“Environmental
Law” shall mean any applicable federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance,
code and rule of common law now or hereafter in effect, 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). For avoidance of doubt, Environmental Law does not include U.S.
State Cannabis Laws, U.S. Federal Cannabis Laws, or any Applicable Law regulating the use of Cannabis products by consumers.
“Environmental
Permit” shall have the meaning set forth in Section 7.14(a)(ii).
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, and the regulations promulgated thereunder.
“Event of Default”
shall have the meaning set forth in Section 10.01.
“Excluded Accounts”
shall mean any deposit account that is used solely to fund payroll or employee benefits, so long as the applicable Credit Party does
not deposit or maintain funds in any such account in excess of amounts necessary to fund current payroll liabilities, payroll taxes or
other wage and employee benefit payments.
“Excluded Issuances”
shall mean (a) the issuance of Capital Stock (other than Disqualified Capital Stock) by Parent to members of the management, employees
or directors of any Credit Party and (b) the issuance of Capital Stock of Parent (other than Disqualified Capital Stock) upon the
exercise of any warrants or options issued by Parent on or prior to the Closing Date.
“Excluded Subsidiary”
shall mean (a) 1776 Hemp, LLC, a Delaware limited liability company and wholly-owned by Vireo Health, so long as such Person has
no operations or Indebtedness and the only asset held by such Subsidiary is HEMP-G-000084, the license provided to such Person pursuant
to New York’s Industrial Hemp Agricultural Research Pilot Program, (b) Ohio Medical Solutions, Inc., an Ohio limited
liability company, so long as 100.00% of the Capital Stock of such Person is sold on or before June 30, 2021, (c) 844 East
Tallmadge LLC, an Ohio limited liability company, so long as 100.00% of the Capital Stock of such Person is sold on or before June 30,
2021, (d) each Person that (i) would be a Subsidiary of a Consolidated Company under the definition of Subsidiary if it were
not an Excluded Subsidiary and (ii) has no assets, no Indebtedness and no operations, and (e) any other Person in which Parent
does not hold any ownership interest, but that may be a Consolidated Company solely for accounting purposes (in accordance with GAAP).
“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, 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 latest date on which (i) such
Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by Borrowers 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. federal withholding Taxes imposed under FATCA and (e) Canadian withholding Taxes
imposed on a Recipient by reason of such Recipient (i) being a “specified shareholder” (as defined in subsection 18(5) of
the Income Tax Act (Canada) ) of any Borrower, or (ii) not dealing at arm’s length with a “specified shareholder”
(as defined in subsection 18(5) of the Income Tax Act (Canada)) of any Borrower.
“Executive Order”
shall have the meaning set forth in Section 7.28.
“Existing Loans
Commitment” shall mean, as to any Lender, its obligation to make Loans to Borrowers, the outstanding aggregate principal
amount relating to such obligation as
of October 31, 2024,being set forth for such Lender on Schedule 1.01. As of the Fifth Amendment Date, the Existing Loans
CommitmentCommitments have been terminated.
“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: (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) any
purchase price adjustment (other than a working capital adjustment) received in connection with any purchase agreements, (d) tax
refunds, (e) Employee Retention Credits and (f) 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.
“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) for each day during such period equal 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 Administrative Agent from three federal funds brokers of
recognized standing selected by Administrative Agent.
“Fees”
shall mean all fees payable pursuant to, or referred to in, this Agreement.
“Fifth Amendment”
shall mean that certain Fifth Amendment to Credit Agreement and First Amendment to Security Agreement dated as of the Fifth Amendment
Date among Borrowers, the Lenders party thereto, Administrative Agent and Collateral Agent.
“Fifth Amendment
Date” shall mean March 31, 2023.
“Financial Covenant”
shall have the meaning set forth in Section 10.03.
“Financial Covenant
Cure Period” shall have the meaning set forth in Section 10.03.
“Financial Covenant
Equity Cure” shall have the meaning set forth in Section 10.03.
“Financial Covenant
Event of Default” shall mean an Event of Default under Section 10.01(c) as a result of Borrower’s
failure to comply with any Financial Performance Covenant.
“Financial Performance
Covenants” shall mean the covenants set forth in Section 9.14.
“Foreign Lender”
shall mean a Lender that is resident or organized under the laws of a jurisdiction other than that in which a Borrower is resident for
tax purposes.
“Future Loan
Purchase Ratio” shall mean a ratio to be negotiated between Borrowers and Lenders, in any case not less than 98.00%.
“GAAP”
shall mean generally accepted accounting principles in the United States 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 CodificationTM, 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, any foreign country or any multinational or supranational authority,
or any state, 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 the Pension Benefit Guaranty Corporation
and other administrative bodies or quasi-governmental entities established to perform the functions of any such agency or authority.
“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 Closing 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.
“Guarantor Obligations”
shall have the meaning set forth in Section 6.01(a).
“Guarantors”
shall mean (a) each direct or indirect Subsidiary of Parent (other than any Borrower or any Excluded Subsidiary) and (b) any
other Person that provides a guarantee for the payment and performance of the Obligations pursuant to an agreement reasonably acceptable
to Administrative Agent after the Closing Date.
“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 rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps
or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, 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 (any such master agreement, together with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.
“Hostile Acquisition”
shall mean the acquisition of the capital stock or other Capital Stock of a Person through a tender offer or similar solicitation of
the owners of such capital stock or other Capital Stock which has not been approved (prior to such acquisition) by resolutions of the
board of directors of such Person or by similar action if such Person is not a corporation, and, if such acquisition has been so approved,
as to which such approval has not been withdrawn.
“Indebtedness”
shall mean, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness
or liabilities in accordance with GAAP:
(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) 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 90 days past the applicable due date thereof);
(d) 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;
(e) all
Attributable Indebtedness;
(f) all
obligations of such Person with respect to the redemption, repayment or other repurchase or payment in respect of any Disqualified Capital
Stock;
(g) all
obligations of such Person with respect to Hedging Agreements (valued as the termination value thereof computed in accordance with a
method approved by the International Swap Dealers Association and agreed to by such Person in the applicable Hedging Agreement, if any);
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.
“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 under any Credit Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Information
Certificate” shall mean that certain Information Certificate dated as of the Closing Date and executed by Borrowers in
favor of Collateral Agent and Lenders.
“Insolvency Event”
shall mean, with respect to any Person, including any Lender, such Person or such Person’s direct or indirect parent company (a) makes
a proposal under the BIA or becomes the subject of a bankruptcy, insolvency or examinership proceeding (including any proceeding under
any Insolvency Legislation), or regulatory restrictions, (b) has had a receiver, 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) commits an act of bankruptcy or becomes insolvent (such
terms having the respective meanings ascribed thereto in the BIA), (e) is adjudicated insolvent or bankrupt by a court of competent
jurisdiction, (f) admits the material allegations of a petition or application filed with respect to it in any bankruptcy, reorganization
or insolvency proceeding, (g) takes any corporate action for the purpose of effecting any of the foregoing, (h) with respect
to a Lender, such Lender is unable to perform hereunder due to the application of Applicable Law, or (i) in the good faith determination
of 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.
“Insolvency Legislation”
shall mean legislation in any applicable jurisdiction relating to reorganization, arrangement, compromise or re adjustment of debt, dissolution
or winding up, or any similar legislation, and specifically includes the BIA, the Companies’ Creditors Arrangement Act (Canada),
the Winding Up and Restructuring Act (Canada), the U.S. Bankruptcy Code and any similar legislation under Applicable Law.
“Intercompany
Indebtedness” shall have the meaning set forth in Section 12.22.
“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; (c) acquisition of any Capital Stock or other investment held by
such Person in any other Person; and (d) any contribution made by such Person to 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.
“Judgment”
shall mean any judgment or order for the payment of money, fine, enforcement penalty, or a settlement of any lawsuit or arbitration proceeding,
or other disputed claim or enforcement action.
“Lender”
and “Lenders” shall have the meanings set forth in the Preamble.
“Lien”
shall mean any mortgage, pledge, security interest, hypothecation, charge, claim, 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 filings or PPSA registrations 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
(other than any deposit accounts which is an Excluded Account) set forth on Schedule 7.25 and subject to a Control Agreement.
“Loans”
shall mean, collectively, the amounts advanced by Lenders to Borrowers pursuant to Section 2.01, including the Dispensary
Loans, the Delayed Draw Term Loans, the
Convertible Note Loans and the 2024 Convertible Note Loans, plus the aggregate amount of interest at the PIK Interest Rate, the Dispensary Loan PIK Interest Rate
and the Convertible Note PIK Interest Rate added to such amounts pursuant to Section 2.04(b).
“Make-Whole
Amount” shall mean, with respect to (a) (a)
any voluntary prepayment of the Dispensary Loans,
any mandatory prepayment of thesuch
Loans pursuant to
Section 4.02(a)(i), 4.02(a)(ii), 4.02(a)(iii) or 4.02(a)(vi), or any repayment in connection with an acceleration of such
Loans on or prior to November 30, 2025, an amount equal to the greater of (i) the sum of all payments of interest on such
Loans that would be due through November 30, 2025, had such prepayment or repayment not occurred, and (ii) 3.00% of the
aggregate amount of such Loans being prepaid or repaid, and (b) any voluntary prepayment of any other Loans, any mandatory
prepayment of such Loans pursuant to Section 4.02(a)(i), 4.02(a)(ii), 4.02(a)(iii) or 4.02(a)(vi), or any
repayment in connection with an acceleration of such Loans on or prior to July 31, 2025, an amount equal to the greater of
(ai)
the sum of all payments of interest on such Loans that would be due through July 31, 2025, had such prepayment or repayment not
occurred, and (bii)
3.00% of the aggregate amount of such Loans being prepaid or repaid.
“Maryland Real
Property” shall mean the Real Property of MaryMed located at 12418 Massey Road, Massey, Maryland 21650.
“MaryMed”
shall have the meaning set forth in the Preamble.
“Massachusetts
Real Property” shall mean the Real Property of Verdant Grove located at 487 Mashapaug Road, Holland, Massachusetts 01521.
“Material Adverse
Effect” shall mean a material adverse effect on (a) the business, assets, liabilities (actual or contingent), operations,
condition (financial or otherwise), results of operations or performance of Parent and its Subsidiaries taken as a whole, (b) the
validity or enforceability of this Agreement, any other Credit Document or any Warrant Agreement, (c) the ability of any Credit
Party to perform its obligations under any Credit Document or any Warrant Agreement to which it is a party, (d) the rights or remedies
of the Secured Parties or the Lenders hereunder or thereunder, or (e) the priority of any Liens granted to Collateral Agent in or
to any Collateral (other than as a result of voluntary and intentional discharge of the Lien by Collateral Agent).
“Material Contracts”
shall mean (a) any agreement evidencing, securing or pertaining to any Indebtedness, or any guaranty thereof, in a principal amount
exceeding $500,000, (b) any real property lease where annual rent exceeds $250,000, (c) any operating lease where annual rentals
exceed $250,000, (d) any agreement (other than the agreements set forth in the foregoing clauses (a) through (c)) which involves
aggregate consideration payable to or by any Person of $500,000 or more on an annual basis, (e) any other agreement the termination
of which (without contemporaneous replacement of substantially equivalent value) could reasonably be expected to have a Material Adverse
Effect and (f) each Material Regulatory License.
“Material Credit
Party” shall mean at any point of determination any Credit Party and its direct and indirect Subsidiaries, which account
for, individually or in the aggregate, more than 10.00% of the annual aggregate revenue of the Consolidated Companies as measured on
a trailing 12-month basis.
“Material Regulatory
License” shall mean any Regulatory License designated on Schedule 7.19 by Borrowers as material, as such Schedule
may be supplemented or updated in accordance with Section 8.01(i)(viii).
“Maturity Date”
shall mean January 29, 2027.
“Mayflower”
shall have the meaning set forth in the Preamble.
“MJ C201”
shall have the meaning set forth in the Preamble.
“MJ P132”
shall have the meaning set forth in the Preamble.
“Minnesota Disposition”
shall have the meaning set forth in Section 8.18.
“Moody’s”
shall mean Moody’s Investors Service, Inc. or any successor by merger or consolidation to its business.
“Mortgage”
shall mean each mortgage, deed of trust, or deed to secure debt, trust deed or other security document granted by any applicable Credit
Party to Collateral Agent for the benefit of the Secured Parties in respect of any Real Property owned or leased by such Credit Party,
in such form as agreed between such Credit Party and Collateral Agent.
“Net Cash Proceeds”
shall mean, as applicable, (a) with respect to any Disposition by a Person, cash and cash equivalent proceeds received by or for
such Person’s account, net of (i) fees, costs and expenses paid to third parties (other than Affiliates) and relating to such
Disposition, (ii) the amount of any Indebtedness secured by any Permitted Lien on any asset (other than Indebtedness assumed by
the purchaser of such asset) that is required to be, and is, repaid in connection with such Disposition, (iii) net income taxes
to be paid in connection with such Disposition and (iv) sale, use or other transactional taxes paid or payable by such Person as
a result of such Disposition, (b) with respect to any condemnation or taking of such assets by eminent domain proceedings of a Person,
cash and cash equivalent proceeds received by or for such Person’s account (whether as a result of payments made under any applicable
insurance policy therefor or in connection with condemnation proceedings or otherwise), net of (i) fees, costs and expenses paid
to third parties (other than Affiliates) in connection with the collection of such proceeds, awards or other payments and (ii) taxes
paid or payable by such Person as a result of such casualty, condemnation or taking, and (c) with respect to any offering of Capital
Stock of a Person or the issuance of any Indebtedness by a Person, cash and cash equivalent proceeds received by or for such Person’s
account, net of (i) legal, underwriting, and other fees, costs and expenses paid to third parties (other than Affiliates) and incurred
as a result thereof, (ii) transfer taxes paid by such Person or such Subsidiary in connection therewith and (iii) net income
taxes to be paid in connection therewith.
“New York Disposition”
shall mean (a) the completion of either (i) the sale, in one transaction or multiple transactions, of substantially all of
Borrowers’ assets in New York state to a non-Affiliate of Borrowers pursuant to a sale of such assets, a sale of the Capital Stock
of the Persons that own such assets or a combination of the foregoing, and such sale results in the complete divestiture of all costs,
obligations and liabilities of the Credit Parties with respect to such assets, including under the New York Lease, or (ii) such
other divestiture of all costs, obligations and liabilities of the Credit Parties under the New York Lease, in each case, pursuant to
documentation with terms, and otherwise in form and substance, acceptable to Administrative Agent, and (b) receipt of all regulatory
approvals necessary or appropriate to complete such event described in clause (a) above.
“New York Lease”
shall mean that certain Lease Agreement dated as of October 23, 2017, as amended by that certain First Amendment to Lease Agreement
dated as of December 7, 2018, that certain Second Amendment to Lease Agreement dated as of April 10, 2020, that certain Third
Amendment to Lease Agreement dated as of September 24, 2021, that certain Fourth Amendment to Lease Agreement dated as of February 24,
2023, that certain Fifth Amendment to Lease Agreement dated as of October 27, 2023, that certain Sixth Amendment to Lease Agreement
dated as of March 5, 2024, that certain Seventh Amendment to Lease Agreement dated as of March 11, 2024, and that certain Eighth
Amendment to Lease Agreement dated as of March 28, 2024, each by and between IIP-NY 2 LLC, a Delaware limited liability company,
and Vireo NY, pursuant to which Vireo NY leases the premises located at 256 County Route 117 in Perth, New York.
“Ninth Amendment”
shall mean that certain Waiver and Ninth Amendment to Credit Agreement dated as of July 31, 2024, among Borrowers, the Lenders party
thereto, Administrative Agent and Collateral Agent.
“Note”
shall mean (a) a
promissory note (or amended and restated promissory note) substantially in the form of Exhibit D or,
(b) with
respect to the Convertible Note Loans, a Convertible Note,
or (c) with respect to the 2024 Convertible Note Loans, a 2024 Convertible Note.
“Notice of Control”
shall have the meaning set forth in Section 8.12(b).
“Obligations”
shall mean (a) with respect to each Borrower, all obligations (monetary or otherwise, whether absolute or contingent, matured or
unmatured) of such Borrower arising under or in connection with any Credit Document or any Warrant Agreement, 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(h), 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(h),
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, (b) all other fees to be paid to any Agent or Arranger
under the Credit Documents or otherwise, or (c) with respect to each Credit Party other than Borrowers, all obligations (monetary
or otherwise, whether absolute or contingent, matured or unmatured) of such 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.
“OFAC”
shall mean the Office of Foreign Assets Control of the United States Department of the Treasury.
“OID”
shall have the meaning set forth in Section 12.24.
“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, the certificate of incorporation, constitution or articles of formation or organization and operating agreement (if
relevant); 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.
“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 12.06).
“Parent”
shall have the meaning set forth in the Preamble.
“Participant”
shall have the meaning set forth in Section 12.06(c).
“Participant
Register” shall have the meaning set forth in Section 12.06(c)(ii).
“Patent Security
Agreements” shall mean any patent security agreements entered into by a Credit Party in favor of 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 mean, collectively, the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), and the Proceeds
of Crime (money laundering) and Terrorist Financing Act (Canada).
“Payment Date”
shall mean the last Business Day of each calendar month.
“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 any Acquisition with respect to which all of the following conditions shall have been satisfied:
(a) the
Acquired Business is engaged in the Business;
(b) such
Acquisition shall not be a Hostile Acquisition;
(c) Parent
shall have notified Administrative Agent and Lenders not less than 10 days (or such shorter time period as may be agreed to by Administrative
Agent) prior to any such Permitted Acquisition;
(d) if
a new Subsidiary is formed or acquired as a result of or in connection with such Acquisition, Borrowers shall have complied with the
requirements of Section 8.08 in connection therewith;
(e) (i) no
Default or Event of Default shall exist, and (ii) the Credit Parties shall be in compliance with the Financial Performance Covenants
recomputed as of the end of the Applicable Fiscal Period most recently ended for which financial statements have been delivered pursuant
to Section 8.01(a) or 8.01(b) after giving effect to such Acquisition on a pro forma basis, and Parent shall have delivered
to Administrative Agent a Compliance Certificate evidencing such compliance;
(f) such
Acquisition would not reasonably be expected to cause a Material Adverse Effect; and
(g) Parent
shall have delivered any additional information or other materials relating to such Acquisition, including financial statements of the
Acquired Business and the documents evidencing such Acquisition (each in form and substance reasonably satisfactory to Administrative
Agent) that have been reasonably requested by Administrative Agent.
“Permitted Liens”
shall have the meaning set forth in Section 9.02.
“Person”
shall mean any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust or other enterprise
or any Governmental Authority.
“PIK Interest”
shall mean interest accruing at the PIK Interest Rate, the Dispensary Loan PIK Interest Rate or the Convertible Note PIK Interest Rate,
as applicable.
“PIK Interest
Rate” shall mean the rate of 2.75% per annum. “Platform” shall have the meaning set forth in Section 12.23.
“PPSA”
shall mean the Personal Property Security Act (British Columbia) or any other applicable Canadian federal or provincial statute
pertaining to the granting, perfecting, priority or ranking of Liens on personal property, and any successor statutes, together with
any regulations thereunder, in each case as in effect from time to time, and any reference to any particular section of the PPSA shall
be construed to also refer to any successor section thereto.
“Prime Rate”
shall mean, for any day, a floating rate equal to the rate publicly quoted in The Wall Street Journal’s “Bonds, Rates &
Yields” table as the “prime rate” on such day; provided, however, that in no event shall the Prime Rate
be less than 7.75% per annum. Any change in such prime rate publicly quoted in The Wall Street Journal’s “Bonds, Rates &
Yields” table shall take effect at the opening of business on the day specified in the public announcement of such change.
“Promotional
Rights” shall have the meaning set forth in Section 12.16.
“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 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) Administrative Agent and (b) any Lender.
“Red Barn”
shall mean Red Barn Growers, a New Mexico non-profit corporation.
“Refinancing
Indebtedness” shall mean any Indebtedness incurred by Borrowers to refinance the Loans (other than the Convertible
Note Loans and the 2024 Convertible Note Loans) and the interest and other Obligations relating thereto in full in cash, so
long as (a) such refinancing does not result in an increase in the principal amount of the Indebtedness so refinanced, other than
by the amount of premiums and compounded interest paid thereon and the reasonable and customary fees and expenses incurred in connection
therewith, (b) only those Persons obligated with respect to Indebtedness being refinanced may be obligated with respect to such
refinancing, (c) no additional property may be subject to a Lien to secure such refinancing other than after-acquired property,
or other property, falling within the same scope of collateral description, and (d) such refinancing shall be evidenced by documentation
in form and substance reasonably satisfactory to Agents.
“Refinancing
Intercreditor Agreement” shall mean an intercreditor agreement between Collateral Agent, on the one hand, and the lender
or lenders (or agent therefor) advancing the Refinancing Indebtedness, on the other hand, pursuant to which the parties thereto agree
the Liens on the Obligations are pani passu with the Liens securing the Refinancing Indebtedness, and otherwise in form and substance
satisfactory to Agents.
“Register”
shall have the meaning set forth in Section 12.06(b)(iii). “Registration Statement” shall have the meaning set forth
in Section 8.20(a).
“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 (a) each Permit listed on Schedule 7.19 and (b) each Permit required to be held by any Consolidated Company, or
that any Consolidated Company must have rights to use, 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.
“Replacement
Lender” shall mean one or more substitute Lenders reasonably acceptable to Administrative Agent.
“Reporting Jurisdictions”
shall mean (a) all of the jurisdictions in Canada in which Parent is a “reporting issuer”, including as of the date
hereof, the Provinces of British Columbia, Alberta, and Ontario and (b) if Parent’s Capital Stock is listed and posting for
trading on the New York Stock Exchange or Nasdaq, the applicable reporting jurisdictions in the United States.
“Representation
Letter” shall mean each representation letter, in form and substance reasonably satisfactory to Agents and Parent, signed
by a recipient of any Warrant Shares or any Subordinate Voting Shares of Parent, whether issued or reserved for issuance in connection
with any conversion of the Convertible Note Loans or the
2024 Convertible Note Loans or as consideration for any amendment or other modification of any Credit Document.
“Required Lenders”
shall mean, at any time when there is more than one Lender, at least two Lenders having Loans and unused Commitments representing greater
than 50.00% of the sum of the aggregate Loans and unused Commitments at such time, or at any time when there is only one Lender, such
Lender.
“Rescindable
Amount” shall have the meaning set forth in Section 4.03(d).
“Restricted Cannabis
Activities” shall mean, in connection with the cultivation, distribution, sale and possession of cannabis and related products:
(a) any activity that is not permitted under applicable U.S. State Cannabis Laws; (b) notwithstanding compliance with applicable
U.S. State Cannabis Laws, any activity which a Governmental Authority asserts is unlawful under U.S. Federal Cannabis Law and the applicable
Person is enjoined from conducting such activity; (c) distribution and sale of cannabis and related products to minors that is not
approved under a U.S. State Cannabis Law; (d) 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; (g) use of activities permitted
under U.S. State Cannabis Law 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 the use of firearms in violation of Applicable Law; (i) drugged
driving and other adverse public health consequences associated with the use of cannabis and related products; (j) growing cannabis
and related products on public lands; and (k) directly or indirectly, aiding, abetting or otherwise participating in a common enterprise
with any Person or Persons in such activities.
“Restricted Debt”
shall mean (a) the Indebtedness of any Credit Party existing on the Closing Date and listed on Schedule 7.24, and (b) any other
Indebtedness the repayment of which is expressly subordinated and made junior to the payment in full of the Obligations and contains
terms and conditions (including terms relating to interest, fees, repayment and subordination) satisfactory to Agents.
“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 and (c) the payment or prepayment of principal
of, or premium or interest on, any Indebtedness subordinate to the Obligations.
“Resurgent”
shall have the meaning set forth in the Preamble.
“Retail Management”
shall have the meaning set forth in the Preamble.
“S&P”
shall mean Standard & Poor’s Ratings Services 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 all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the
U.S. government, including those administered by OFAC or the U.S. Department of State, (b) the Canadian government, or (c) the
United Nations Security Council, the European Union, any European Union member state or Her Majesty’s Treasury of the United Kingdom
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 Amendment”
shall mean that certain Second Amendment to Credit Agreement dated as of November 18, 2021, among Borrowers, the Lenders party thereto
and Agents.
“Secured Parties”
shall mean, collectively, (a) the Lenders, (b) Agents, (c) the beneficiaries of each indemnification obligation undertaken
by any Credit Party 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
or Secured Obligation (as defined in any applicable Security Document).
“Securities Act”
meansshall
mean the United States Securities Act of 1933.
“Security Agreements”
shall mean, collectively, the U.S. Security Agreement and the Canadian Security Agreement.
“Security Documents”
shall mean, collectively, as applicable, the Security Agreements, security under 427 of the Bank Act (Canada) executed by the Canadian
Credit Parties, the Collateral Access Agreements, the Control Agreements, the Patent Security Agreements, the Trademark Security Agreements,
the Copyright Security Agreements, each Mortgage, and each other instrument or document executed and delivered pursuant to this Agreement
or any of the Security Documents to guarantee or secure any of the Obligations.
“Sixth Amendment”
shall mean that certain Sixth Amendment to Credit Agreement dated as of the Sixth Amendment Date among Borrowers, the Lenders party thereto,
Administrative Agent and Collateral Agent.
“Sixth Amendment
Date” shall mean April 28, 2023.
“Solvency
Certificate” shall mean a solvency certificate, duly executed and delivered by the chief financial officer of Parent
to Administrative Agent, in form and substance reasonably satisfactory to Administrative Agent.
“Solvent”
shall mean:
(a) with
respect to any U.S. Credit Party, at any date, that (i) the sum of such Person’s debt (including Contingent Liabilities) does
not exceed the present fair saleable value of such Person’s present assets (which, for this purpose, shall include rights of contribution
in respect of obligations for which such Person has provided a guarantee), (ii) such Person’s capital is not unreasonably
small in relation to its business as contemplated on such date, (iii) 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),
and (iv) 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); and
(b) with
respect to any Canadian Credit Party, at any date, that (i) the aggregate property of such Credit Party is sufficient, if disposed
of at a fairly conducted sale under legal process, to enable payment of all its obligations, due and accruing due; (ii) the aggregate
property of such Credit Party is, at a fair valuation, sufficient to enable payment of all its obligations, due and accruing due; (iii) such
Credit Party is able to meet its obligations as they generally become due; and (iv) such Credit Party has not ceased paying its
current obligations in the ordinary course of business as they generally become due.
“Stearns
Bank Indebtedness” shall mean Indebtedness in the aggregate principal amount not to exceed $15,000,000 owed by Vireo Minnesota
to Stearns Bank N.A., as such amount decreases through repayment or prepayment in accordance with the terms of the Stearns Bank Loan
Documents.
“Stearns
Bank Intercreditor Agreement” shall mean that certain Intercreditor Agreement dated the date of the Stearns Bank Loan Documents
among Agents and Stearns Bank N.A., in form and substance satisfactory to Agents.
“Stearns
Bank Loan Documents” shall mean the loan agreement, promissory note, mortgages and other instruments, agreements and documents
executed or delivered to evidence or secure the Stearns Bank Indebtedness, in each case, in form and substance satisfactory to Agents.
“Subsequent Funding
Dates” shall mean the date of the making of each Loan, if any, that occurs after the Closing Date.
“Subsidiary”
of any Person shall mean and include (a) any corporation more than 30.00% 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, association, joint venture or other
entity in which such Person directly or indirectly through one or more Subsidiaries has more than (i) a 30.00% equity interest measured
by either vote or value at the time or (ii) a 30.00% general partnership interest at the time. Unless otherwise expressly provided,
all references herein to a Subsidiary shall mean a Subsidiary of Parent and shall exclude all Subsidiaries that are Excluded Subsidiaries.
“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.
“Tenth
Amendment” shall mean that certain Tenth Amendment to Credit Agreement dated as of the Tenth Amendment Date, among Borrowers,
the Lenders and Agents.
“Tenth
Amendment Date” shall mean November 1, 2024.
“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 Credit Agreement dated as of the Third Amendment Effective Date, among Borrowers, the Lenders
and Agents.
“Third Amendment
Effective Date” shall mean January 26, 2022.
“Third Amendment
Initial Funding Date” shall mean the date on which all of the conditions to closing and funding set forth in Section 5.01
have been satisfied, or waived in accordance with Section 12.01, which date is expected to be on or about March 1, 2022.
“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 Trademark Security Agreements made in favor of Collateral Agent and the Lenders by each applicable
Credit Party and any trademark security agreement entered into after the Closing 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
Maturity Date” shall mean the Maturity Date, the Dispensary Loan Maturity Date,
the Convertible Note Maturity Date or the 2024 Convertible
Note Maturity Date, as applicable.
“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.
“Treasury Regulations”
shall mean the United States Treasury regulations promulgated under the Code.
“Triggering Event”
shall mean the enacting of any adult-use cannabis legislation by both houses of the legislature, and approved by the Governor, of the
State of Minnesota that would (a) require Vireo Minnesota to participate in a competitive application process for new licenses for
one or more tiers (cultivation, processing, retail) of the adult-use market in the State of Minnesota, (b) limit Vireo Minnesota’s
cannabis canopy to 10,000 square feet or less for a period of one year or more or (c) require Vireo Minnesota to be controlled,
directly or indirectly, by a Person that is resident or formed, as the case may be, in the State of Minnesota.
“2024
Convertible Note” shall mean a promissory note (or amended and restated promissory note) substantially in the form of Exhibit F.
“2024
Convertible Note Cash Interest Rate” shall mean a per annum rate equal to 12.00%.
“2024
Convertible Note Commitment” shall mean, as to any Lender, its obligation to make a 2024 Convertible Note Loan to Borrowers
pursuant to Section 2.01(g) in the principal amount set forth for such Lender on Schedule 1.01 on the Tenth Amendment Date,
as such amount may be adjusted by assignment by any Lender pursuant to Section 12.06(b). As of the Tenth Amendment Date, the aggregate
amount of the 2024 Convertible Note Commitments is $10,000,000.
“2024
Convertible Note Lender” shall mean each Lender with a 2024 Convertible Note Commitment.
“2024
Convertible Note Loans” shall mean the aggregate amount of up to the aggregate amount of the 2024 Convertible Note Commitments
advanced by Lenders on or after the Tenth Amendment Date as provided in Section 2.01(g).
“2024
Convertible Note Maturity Date” shall mean November 1, 2027.
“U.S.”
and “United States” shall mean the United States of America.
“U.S. Bankruptcy
Code” shall mean the United States Bankruptcy Code (11 U.S.C. Section 101 et seq.).
“U.S. Credit
Party” shall mean any Credit Party organized and existing under the laws of the United States or any state or subdivision
thereof.
“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. Person”
shall mean any person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S. Security
Agreement” shall mean that certain Security Agreement dated as of the Closing Date, by and among each Credit Party party
thereto and Collateral Agent for the benefit of the Secured Parties.
“U.S. State Cannabis
Law” shall mean any law enacted by any state of the United States which legalizes cannabis and related products in some
form and which implements strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale and
possession of cannabis and related products.
“U.S. Tax Compliance
Certificate” has the meaning specified in Section 4.04(f)(ii)(B)(3).
“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.
“Verano Litigation”
shall mean Goodness Growth Holdings, Inc. v. Verano Holdings Corp., filed in the Supreme Court of British Columbia, Canada,
on October 21, 2022, as amended, refiled, supplemented, extended or otherwise amended from time to time.
“Verdant Grove”
shall have the meaning set forth in the Preamble.
“Vireo Arizona”
shall have the meaning set forth in the Preamble.
“Vireo Charm
City” shall mean Vireo of Charm City, LLC, a Maryland limited liability company.
“Vireo de Puerto
Rico” shall have the meaning set forth in the Preamble.
“Vireo Health”
shall have the meaning set forth in the Preamble.
“Vireo Massachusetts”
shall have the meaning set forth in the Preamble.
“Vireo Minnesota”
shall have the meaning set forth in the Preamble.
“Vireo Nevada”
shall have the meaning set forth in the Preamble.
“Vireo NM”
shall have the meaning set forth in the Preamble.
“Vireo NY”
shall have the meaning set forth in the Preamble.
“Vireo PR”
shall have the meaning set forth in the Preamble.
“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.
“Warrant Agreements”
shall mean, collectively, those certain Warrant Certificates executed by Parent for the issuance of Warrant Shares to, or as directed
by, Administrative Agent, each Lender, each Participant and any designee thereof, in form and substance satisfactory to Administrative
Agent and Lenders.
“Warrant Shares”
shall have the meaning set forth in the Warrant Agreements.
“Withholding
Agent” shall mean any Credit Party and Administrative Agent. “Xaas” shall have the meaning set forth in the
Preamble.
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. Any pronoun used shall be deemed
to cover all genders.
(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) Preamble,
Article, Section, Exhibit and Schedule references are to the Credit Document in which such reference appears unless otherwise specifically
provided.
(d) The
term “including” is by way of example and not limitation, and the term “or” has, except where otherwise indicated,
the inclusive meaning represented by the phrase “and/or.”
(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, discretion, or satisfaction of, acceptability to or approval by any Agent or any Lender
shall be deemed to mean the consent, discretion or satisfaction of, acceptability to or approval by such Agent or such Lender in its
sole and absolute discretion, except as otherwise expressly provided in the applicable Credit Document.
(i) A
Default or an Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event
of Default occurs to the date on which such Default or Event of Default is waived in writing pursuant to this Agreement or, with respect
to any Default, is cured within any period of cure expressly provided in this Agreement. Whenever in any provision of this Agreement
or any other Credit Document any Agent or any Lender is authorized to take or decline to take any action (including making any determination)
in the exercise of its “discretion,” such provision shall be understood to mean that such Agent or such Lender may take or
refrain to take such action in its sole and absolute discretion.
(j) Any
reference herein to a merger, transfer, consolidation, 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,
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).
(k) Where
the context so requires, any term defined in this Agreement by reference to the “UCC” shall also have any extended, alternative
or analogous meaning given to such term in the PPSA when used in relation to any Collateral subject to the PPSA.
(l) Whenever
any provision in any Credit Document refers to the knowledge (or an analogous phrase) of any Credit Party or officer thereof, such words
are intended to signify that the chief executive officer, the chief financial officer, the chief operating officer, the chief administrative
officer or general counsel of Parent has actual knowledge or awareness of a particular fact or circumstance or that such person, if they
had exercised reasonable diligence, would have known or been aware of such fact or circumstance.
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, GAAP, applied in a consistent manner. No change in the accounting principles used in the preparation
of any financial statement hereafter adopted by Parent or any of its Subsidiaries shall be given effect for purposes of measuring compliance
with any provision of Article IX, including Section 9.14, or otherwise in this Agreement unless Parent, Administrative
Agent and Required Lenders agree in writing to modify such provisions to reflect such changes in GAAP 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 in GAAP. 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 Performance
Covenant shall be deemed to have occurred as of any date of determination by Administrative Agent or Required Lenders 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 Closing
Date or entered into after the Closing Date) that is not (or would not be) required to be classified and accounted for as a capital lease
on the balance sheet of such Person under GAAP as in effect on the Closing 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 Closing Date.
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, renewals and other modifications thereto, but only to the extent that
such amendments, restatements, amendment and restatements, extensions, supplements, renewals and other modifications are permitted by
the terms hereof and thereof; and (b) references to any Applicable Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing, implementing or interpreting such Applicable Law and any successor or replacement statutes and regulations.
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.
ARTICLE II
Amount and Terms of Loans
SECTION 2.01. Loans.
Subject to and upon the terms and conditions herein set forth, each Lender having the applicable Commitment shall, severally (and not
jointly), make one or more Loans to Borrowers, which Loans (x) when aggregated with each other Loan made hereunder (but excluding,
for the avoidance of doubt, all PIK Interest that is paid in kind and deemed to be a part of the principal amount of the Loans), shall
be in an amount not to exceed the Aggregate Commitment and (y) for each Lender, when aggregated with each other Loan made by such
Lender hereunder (but excluding, for the avoidance of doubt, all PIK Interest that is paid in kind to such Lender and deemed to be a
part of the principal amount of the Loans), shall be in an amount not to exceed, for each Lender, such Lender’s applicable Commitment,
as follows:
(a) on
the Closing Date, Loans in the aggregate amount of $26,000,000;
(b) on
November 18, 2021, the Dispensary Loans;
(c) on
one or more Subsequent Funding Dates during the period commencing on the Third Amendment Initial Funding Date and ending on December 30,
2022, Delayed Draw Loans in the aggregate amount of up to $25,000,000 to be made pursuant to the draw schedule attached hereto
as Schedule 2.01(c), which Schedule may be modified with the consent of Administrative Agent in its discretion; provided
that: (i) on the Third Amendment Initial Funding Date, Borrowers may draw an additional amount equal to the fees and expenses paid
or to be paid by Borrowers to Agents, Arranger and the Lenders on or prior to such date; (ii) the aggregate amount to be advanced
on one other Subsequent Funding Date pursuant to this Section 2.01(c) may, at the option of Borrowers, be increased
to $5,000,000; (iii) the draw amounts on Schedule 2.01(c) shall be reduced by an aggregate amount equal to the sum of
each amount in excess of $3,000,000 advanced pursuant to each of clauses (i) and (ii) above, such reduction to be applied in
inverse chronological order until such aggregate amount is exhausted; and (iv) the aggregate amount to be advanced on one Subsequent
Funding Date (which may be the same as the Subsequent Funding Date referred to in clause (ii) above) pursuant to this Section 2.01(c) may,
at the option of Borrowers, be increased by an additional $3,000,000;
(d) on
January 3, 2023 (or such other date to which Administrative Agent agrees in its discretion), Delayed Draw Loans in the aggregate
amount of up to $10,000,000; provided that such amount shall be reduced to $7,000,000 in the event Borrowers elect to increase a prior
draw as provided in Section 2.01(c)(iv);
(e) [reserved];
(f) Convertible
Note Loans in the aggregate amount of up to $10,000,000 to be made pursuant to the draw schedule attached hereto as Schedule 2.01(f),
which Schedule 2.01(f) may be modified with the consent of the Convertible Note Lenders in their discretion; provided that, notwithstanding
anything in this Agreement or any other Credit Document to the contrary, the Convertible Note Lenders may elect, in their discretion,
to make one or more of the Convertible Note Loans, or the aggregate remaining amount of Convertible Note Loans available under their
Convertible Note Commitments, at any time or from time to time, regardless of (i) such draw schedule, (ii) the lack of any
request of Borrowers for such Loans, (ii) any of the conditions set forth in Sections 5.02(b) through 5.02(h) not being
met at the time such Loans are advanced or (iv) the occurrence of a Default or Event of Default as a result of any such advance
(although any such advance shall be deemed to be, for purposes of calculation of the Consolidated Fixed Charge Coverage Ratio, made in
accordance with Schedule 2.01(f)); and provided, further, that Borrowers may elect not to receive a Convertible Note Loan on a date set
forth on such draw schedule, and the Convertible Note Loans to be made on such date shall no longer be available to Borrowers unless
Convertible Note Lenders elect to make such Convertible Note Loans pursuant to the immediately preceding proviso.
(a) on
one or more Subsequent Funding Dates, upon the request of Borrowers and as approved by the Convertible Note Lenders in their discretion,
Convertible Note Loans in the aggregate amount of up to $5,000,000. The Credit Parties acknowledge and agree that any Loans disbursed
on a Subsequent Funding Date pursuant to this Section 2.01(g) shall be made in the sole and absolute discretion of the Convertible
Note Lenders. No Convertible Note Lender shall have any obligation to make any Convertible Note Loan under this Section 2.01(g).
This Section 2.01(g) shall not constitute a commitment on the part of any Convertible Note Lender to make any Convertible Note
Loans under and pursuant to this Section 2.01(g). The Aggregate Commitment shall be deemed increased as of each Subsequent Funding
Date by the aggregate amount of the Convertible Note Loans made on such Subsequent Funding Date, and the Convertible Note Commitment
of each Convertible Note Lender shall be deemed increased as of each Subsequent Funding Date by the aggregate amount of the Convertible
Note Loans made by such Convertible Note Lender.
(g) on
November 7, 2024 Convertible Note Loans in the aggregate amount of $10,000,000.
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. Disbursement
of Funds; Original Issue Discount.
(a) If
all the conditions set forth in Section 5.01 to the effectiveness of this Agreement are met prior to 10:00 a.m. on the Business
Day immediately prior to the Closing Date, then, each Lender will make available its pro rata portion of the Loans to be made on the
Closing Date in the manner provided below no later than 2:00 p.m. on the Closing Date. If all the conditions set forth in Section 5.02
are met prior to 10:00 a.m. on the Business Day immediately prior to an applicable Subsequent Funding Date, then each Lender
with a 2024 Convertible
Note Commitment will make available its pro rata portion of the Loans to be made on such Subsequent Funding Date in the manner
provided below no later than 2:00 p.m. on such Subsequent Funding Date.
(b) Each
Lender shall make available all amounts it is to fund to Borrowers in immediately available funds to Administrative Agent, and, following
receipt thereof in an account designated by Administrative Agent by the applicable time set forth in Section 2.02(a), Administrative
Agent will remit such amounts by 4:00 p.m., in immediately available funds and in Dollars to Borrowers, by remitting the same to such
Persons and such accounts as may be designated by Parent to Administrative Agent in writing. The failure of any Lender to make available
the amounts it is to fund to Borrowers 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 2.02 shall be deemed to relieve any Lender from its obligation to fulfill its commitments and obligations hereunder
or to prejudice any rights that Borrowers 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).
(d) Each
of Borrowers and Lenders agrees that, on the Closing Date, Borrowers shall receive proceeds of such Loans based on a purchase price of
97.00% of the principal amount thereof. For the avoidance of doubt, on the Closing Date each Lender shall advance to Borrowers an amount
equal to 97.00% of its ratable share of all Loans requested by Borrowers as of the Closing Date in exchange for Borrowers’ obligations
to repay in full the face amount of such Loans, plus interest accrued thereon in accordance with the terms hereof.
(e) Each
of Borrowers and Lenders agrees that on each Subsequent Funding Date, Borrowers shall receive proceeds of such Loans (other
than 2024 Convertible Note Loans) based on the Future Loan Purchase Ratio for such Subsequent
Funding Date. For the avoidance of doubt, on each such Subsequent Funding Date each Lender shall advance to Borrowers an amount equal
to the Future Loan Purchase Ratio of its ratable share of all Loans (other
than 2024 Convertible Note Loans) requested by Borrowers as of such Subsequent Funding
Date in exchange for Borrowers’ obligations to repay in full the face amount of such Loans, plus interest accrued thereon in accordance
with the terms hereof.
SECTION 2.03. Payment
of Loans; Evidence of Debt.
(a) Borrowers
agree to pay to Administrative Agent, for the benefit of the Lenders, the outstanding principal and interest due on the Loans on the
Tranche Maturity Date applicable to such Loans, or upon such earlier date on which the Obligations are accelerated pursuant to the terms
of this Agreement.
(b) Each
Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of Borrowers to the appropriate
lending office of such Lender resulting from each Loan made by such lending office of such Lender from time to time, including the amounts
of principal and interest payable and paid to such lending office of such Lender from time to time under this Agreement.
(c) Borrowers
agree that from time to time on and after the Closing Date, (i) on the Sixth Amendment Date with respect to the aggregate amount
of Convertible Note Loans to be made pursuant to Section 2.01(f) on May 1, 2023, (ii) on each Subsequent Funding
Date on which Convertible Note Loans are advanced pursuant to Section 2.01(f) or 2.01(g) or,
(iii) on
the Tenth Amendment Date with respect to the aggregate amount of the 2024 Convertible Note Commitments or (iv) otherwise,
upon the request to Administrative Agent by any Lender, at Borrowers’ own expense, Borrowers will execute and deliver to each applicable
Lender a Note evidencing the applicable Loans, and payable to such Lender or registered assigns in a maximum principal amount equal to
such Lender’s applicable Commitment. Notwithstanding the foregoing, in no event shall Borrower be required to execute Notes with
an aggregate principal amount greater than the Aggregate Commitment. Administrative Agent shall maintain the Register pursuant to Section 12.06(b)(iii),
and a subaccount for each Lender, in which Register and subaccounts (taken together) shall be recorded (i) the amount of each Loan
made hereunder, (ii) the amount of any principal or interest due and payable or to become due and payable from Borrowers to each
Lender hereunder and (iii) the amount of any sum received by Administrative Agent from Borrowers and each Lender’s share thereof.
Notwithstanding the foregoing, in no event may any Lender request a Note more than four times in any calendar year pursuant to clause
(ii) above. Each Borrower hereby irrevocably appoints Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Borrower
and in the name of such Borrower or in its own name, subject, in each instance, to any applicable U.S. State Cannabis Law, for the purpose
of carrying out the terms of this Section 2.03(c), to, at Administrative Agent’s sole option, execute any and all Convertible
Notes required to be delivered pursuant to Section 2.03(c)(ii) if Borrower does not comply with such requirement, without
notice to or further assent by such Borrower. Each Borrower hereby ratifies all that said attorneys shall lawfully do or cause to be
done by virtue hereof. All powers, authorizations and agencies contained in this Section 2.03(c) are coupled with an
interest and are irrevocable until this Agreement is terminated.
(d) In
addition to the foregoing, each Borrower hereby irrevocably promises to pay all Obligations, including the outstanding aggregate principal
amount of the Loans and interest and fees with respect to the foregoing, as the same become due and payable hereunder and, in any event,
on the Tranche Maturity Date applicable to such Loans.
SECTION 2.04. Interest.
(a) The
unpaid principal amount of the Loans shall bear interest from the Closing Date or the relevant Subsequent Funding Date, as applicable,
at (i) with respect to the Dispensary Loans, the Dispensary Loan Cash Interest Rate, (ii) with respect to the Convertible Note
Loans, the Convertible Note Cash Interest Rate, or (iii) with
respect to the 2024 Convertible Note Loans, the 2024 Convertible Note Cash Interest Rate, or (iv) with respect
to the other Loans, the Cash Interest Rate, and shall be due and payable in cash monthly on each Payment Date, in arrears, with the first
installment being payable on the last day of the first month following the Closing Date.
(b) The
unpaid principal amount of the Loans shall also bear interest from the Closing Date or the relevant Subsequent Funding Date, as
applicable, at (i) with respect to the Dispensary Loans, the Dispensary Loan PIK Interest Rate, (ii) with respect to the
Convertible Note Loans, the Convertible Note PIK Interest Rate, or (iii) otherwise, the PIK Interest Rate, and shall be due and
payable in kind monthly on each Payment Date, in arrears, with the first installment being payable on March 31, 2021. On each
Payment Date, such paid in kind interest that is accrued and unpaid and that has not been previously added to the principal amount
of the Loans shall be added, and amounts so added shall thereafter be deemed to be a part of the principal amount of the Loans.
Notwithstanding the foregoing, Borrowers may elect, on each Payment Date, to pay the interest accruing at the PIK Interest Rate or
the Dispensary PIK Interest Rate in cash on such Payment Date if no Default or Event of Default has occurred and is continuing;
Borrowers may not make such election with respect to the Convertible Note PIK Interest Rate. Borrowers shall give
Administrative Agent notice of any such election at least three Business Days prior to the applicable Payment Date.
(c) Interest
shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day
on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to
Section 4.03(a), bear interest for one day.
(d) From
and after the occurrence and during the continuance of any Event of Default, upon notice by Administrative Agent or Collateral Agent
to Parent, Borrowers shall pay interest on the principal amount of all Loans and all other unpaid Obligations, to the extent permitted
by Applicable Law, at the Default Rate in order to compensate the Lenders for the increased risk associated with such Event of Default,
which Default Rate shall accrue from the date of such Event of Default (regardless of the date of notice of the imposition of the Default
Rate) until waived in writing and shall be payable on demand and paid (i) with respect to interest accruing at the PIK Interest
Rate, the Dispensary Loan PIK Interest Rate or the Convertible Note PIK Interest Rate, in kind, and (ii) otherwise, in cash.
(e) All
computations of interest hereunder shall be made in accordance with Section 4.05.
SECTION 2.05. Multiple
Borrowers.
(a) It
is the intent of the parties to this Agreement that Borrowers shall be jointly and severally obligated hereunder and under the Notes,
as co-borrowers under this Agreement and as co-makers of the Notes, in respect of the principal of and interest on, and all other amounts
owing in respect of, the Loans and the Notes. Each Borrower hereby (i) jointly and severally and irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers with respect to the payment
and performance of all of the Obligations hereunder, it being the intention of the parties hereto that all such Obligations shall be
the joint and several obligations of each Borrower without preferences or distinction among them and that the obligations of each Borrower
hereunder shall be unconditional irrespective of any circumstance whatsoever that might otherwise constitute a legal or equitable discharge
or defense of a guarantor or surety, and (ii) further agrees that if any such Obligations are not paid in full when due (whether
at stated maturity, as mandatory prepayment or cash collateralization, by acceleration or otherwise), Borrowers will, jointly and severally,
promptly pay the same, without any demand or notice whatsoever. Each Borrower acknowledges and agrees that the delivery of funds to any
Borrower under this Agreement shall constitute valuable consideration and reasonably equivalent value to all Borrowers for the purpose
of binding them and their assets on a joint and several basis for the Obligations hereunder.
(b) Each
Borrower expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which
such Borrower may now or hereafter have against the other Borrowers or any other Person directly or contingently liable for the Obligations
hereunder, or against or with respect to any other Borrowers’ property (including any property which is Collateral for the Obligations),
arising from the existence or performance of this Agreement, until termination of this Agreement and repayment and performance in full
of the Obligations.
SECTION 2.06. Borrower
Representative. Each Borrower, by its execution of this Agreement, irrevocably appoints the Borrower Representative to act on its
behalf as its agent in relation to the Credit Documents and irrevocably authorizes:
(a) The
Borrower Representative, on such Borrower’s behalf, to supply all information concerning itself contemplated by this Agreement
to Agents and Lenders and to give and receive all notices, instructions and other communications, to sign all certificates, to make such
agreements and to effect the relevant amendments, supplements, variations and waivers capable of being given, made or effected by any
Borrower, notwithstanding that they may affect such Borrower, without further reference to or the consent of such Borrower; and
(b) Agents
and Lenders to give any notice, demand or other communication to such Borrower pursuant to the Credit Documents to the Borrower Representative,
and in each case such Borrower shall be bound as though such Borrower itself had given the notices and instructions or executed or made
the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.
Every act, omission, agreement,
undertaking, settlement, waiver, amendment, supplement, variation, notice, instruction or other communication given or made by Borrower
Representative or given to Borrower Representative under any Credit Document on behalf of another Borrower (whether or not known to any
other Borrower and whether occurring before or after such other Borrower became a Borrower under any Credit Document) shall be binding
for all purposes on such Borrower as if such Borrower had expressly agreed, executed, made, given or concurred with it or received the
relevant notice, demand or other communication. In the event of any conflict between any notices or other communications of Borrower
Representative and any other Borrower, those of Borrower Representative shall prevail.
SECTION 2.07. Fees.
All fees to be paid to Administrative Agent or any Lender under or in connection with the Transactions: shall be fully earned by
Administrative Agent and each Lender when due and payable; shall not be subject to rebate, refund or proration under any
circumstances; are and shall be deemed to be for compensation for services; and are not, and shall not be deemed to be, interest or
any other charge for the use, forbearance or detention of money. All amounts chargeable to Borrowers under this
Section 2.07 shall be Obligations secured by the Collateral and shall be payable on demand to Administrative Agent, on behalf
of Administrative Agent and Lenders.
ARTICLE III
Mandatory Reduction of Commitments
SECTION 3.01. Mandatory
Reduction of Commitments. Each Commitment shall be permanently reduced by the amount of each Loan made thereunder on the Closing
Date and on each Subsequent Funding Date thereafter.
ARTICLE IV
Payments
SECTION 4.01. Voluntary
Prepayments.
(a) After
the first anniversary of the Fifth Amendment Date, Borrowers shall have the right to prepay the outstanding remaining balance of the
Loans (other than the Convertible
Note Loans and the 2024 Convertible Note Loans) in full on the following terms and conditions:
(i) Borrowers shall give Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of its intent
to make such prepayment no later than 90 calendar days prior to the date of such prepayment, which notice shall promptly be transmitted
by Administrative Agent to each of the Lenders; and (ii) such prepayment may only be made on the last Business Day of a calendar
month unless Administrative Agent otherwise agrees in its discretion.
(b) The
voluntary prepayment of the Loans hereunder that is made prior to the Tranche Maturity Date applicable thereto (including, for the avoidance
of doubt, any refinancing of the Loans ) shall be accompanied by all accrued interest on the amount prepaid and the Make-Whole Amount
and the payment of all other Obligations.
SECTION 4.02. Mandatory
Prepayments.
(a) Types
of Mandatory Prepayments.
(i) Within
five Business Days of the receipt by any Credit Party or any of its Subsidiaries of any Net Cash Proceeds from the incurrence of any
Indebtedness by any Credit Party or any of its Subsidiaries (other than Indebtedness permitted under Section 9.01), Borrowers
shall prepay the Loans in an amount equal to 100.00% of such Net Cash Proceeds, to be applied as set forth in Section 4.02(c).
Nothing in this Section 4.02(a)(i) shall be construed to permit or waive any Default or Event of Default arising from
any incurrence of Indebtedness not permitted under the terms of this Agreement. Any mandatory prepayment of the Loans made pursuant to
this Section 4.02(a)(i) shall be accompanied by all accrued interest on the amount prepaid, together with the Make-Whole Amount.
(ii) Within
five Business Days of the receipt by any Credit Party or any of its Subsidiaries of any Net Cash Proceeds from any Disposition (other
than, except as otherwise provided in this Section 4.02(a), any Disposition permitted under Section 9.04), Borrowers
shall prepay the Loans in an amount equal to 100.00% of the Net Cash Proceeds from such Disposition, to be applied as set forth in Section 4.02(c).
Nothing in this Section 4.02(a)(ii) shall be construed to permit or waive any Default or Event of Default arising from
any Disposition not permitted under the terms of this Agreement. Any mandatory prepayment of the Loans made pursuant to this Section 4.02(a)(ii) shall
be accompanied by all accrued interest on the amount prepaid, together with the Make-Whole Amount.
(iii) Within
five Business Days of the receipt by any Credit Party or any of its Subsidiaries of any Net Cash Proceeds from any Casualty Event, and
such Casualty Event is because of, directly or indirectly, the occurrence of an Event of Default, Borrowers shall prepay the Loans in
an amount equal to 100.00% of such Net Cash Proceeds, to be applied as set forth in Section 4.02(c). Nothing in this Section 4.02(a)(iii) shall
be construed to permit or waive any Default or Event of Default arising from, directly or indirectly, any Casualty Event. Any mandatory
prepayment of the Loans made pursuant to this Section 4.02(a)(iii) shall be accompanied by all accrued interest on the
amount prepaid, together with the Make-Whole Amount.
(iv) Within
five Business Days of the receipt by any Credit Party or any of its Subsidiaries of any Extraordinary Receipts in connection with the
Verano Litigation, Borrowers shall prepay the Obligations in an amount equal to at least 75.00% of such Extraordinary Receipts, to be
applied as set forth in Section 4.02(c); provided, however, that Administrative Agent may, in its discretion, agree to waive
this requirement or adjust the amount of Extraordinary Receipts to be used to repay the Loans. Nothing in this Section 4.02(a)(iv) shall
be construed to permit or waive any Default or Event of Default arising, directly or indirectly, from any event or circumstance giving
rise to such Extraordinary Receipts.
(v) Within
five Business Days of the receipt by any Credit Party or any of its Subsidiaries of any Employee Retention Credits, Borrowers shall prepay
the Obligations in an amount equal to at least 75.00% of such Extraordinary Receipts, to be applied as set forth in Section 4.02(c);
provided, however, that Administrative Agent may, in its discretion, agree to waive this requirement or adjust the amount of Employee
Retention Credits to be used to repay the Loans. Nothing in this Section 4.02(a)(v) shall be construed to permit or
waive any Default or Event of Default arising, directly or indirectly, from any event or circumstance giving rise to such Extraordinary
Receipts.
(vi) Within
five Business Days of the receipt by any Credit Party or any of its Subsidiaries of any other Extraordinary Receipts, and such Extraordinary
Receipts is because of, directly or indirectly, the occurrence of an Event of Default, Borrowers shall prepay the Obligations in an amount
equal to 100.00% of such Extraordinary Receipts, to be applied as set forth in Section 4.02(c). Nothing in this Section 4.02(a)(vi) shall
be construed to permit or waive any Default or Event of Default arising, directly or indirectly, from any event or circumstance giving
rise to such Extraordinary Receipts. Any mandatory prepayment of the Loans made pursuant to this Section 4.02(a)(vi) shall
be accompanied by all accrued interest on the amount prepaid, together with the Make-Whole Amount.
(vii) Within
five Business Days of the receipt by any Credit Party or any of its Subsidiaries of any Net Cash Proceeds in connection with any New
York Disposition, Borrowers shall prepay the Obligations in an amount equal to at least 75.00% of such Net Cash Proceeds, to be applied
as set forth in Section 4.02(c). Nothing in this Section 4.02(a)(vii) shall be construed to permit or waive
any Default or Event of Default arising, directly or indirectly, from any event or circumstance giving rise to such Net Cash Proceeds.
(viii) Within
five Business Days of the receipt by any Credit Party or any of its Subsidiaries of any Net Cash Proceeds in connection with any Minnesota
Disposition, Borrowers shall prepay the Obligations in an amount equal to 100.00% of such Net Cash Proceeds, to be applied as set forth
in Section 4.02(c). Nothing in this Section 4.02(a)(viii) shall be construed to permit or waive any Default
or Event of Default arising, directly or indirectly, from any event or circumstance giving rise to such Net Cash Proceeds.
(ix) Immediately
upon any acceleration of any of the Loans pursuant to Section 10.02, Borrowers shall repay all of the Loans, unless only
a portion of all of the Loans is so accelerated (in which case the portion so accelerated shall be repaid). Any mandatory repayment of
the Loans made pursuant to this Section 4.02(a)(ix) shall be accompanied by all accrued interest on the amount repaid
and all other Obligations, together with the Make-Whole Amount.
(b) Option
to Decline Prepayment. Notwithstanding anything to the contrary herein, any mandatory prepayment pursuant to Section 4.02(a) (other
than pursuant to Section 4.02(a)(ix)) may be declined in whole or in part by any Lender without prejudice to such Lender’s
rights hereunder to accept or decline any future payments in respect of any mandatory prepayment. If a Lender chooses not to accept payment
in respect of a mandatory prepayment, in whole or in part, the other Lenders that accept such mandatory prepayment shall have the option
to share such proceeds on a pro rata basis (and if declined by all Lenders, such declined proceeds shall be retained by Borrowers). Each
Lender shall have until the Business Day immediately preceding the Business Day on which such prepayment is due in order to decline such
prepayment (and any election by a Lender delivered prior to such Business Day can be rescinded by such Lender at its discretion until
such Business Day). If a Lender chooses not to accept payment in respect of any mandatory prepayment required to be made under Section 4.02(a),
in whole or in part, no Make-Whole Amount shall accrue or be due in respect to the prepayment amount declined by such Lender.
(c) Application
of Payments. With respect to each prepayment of the Loans required by Section 4.02(a), the amounts prepaid shall be applied,
so long as no Application Event shall have occurred and be continuing, first to pay any fees and expenses of Agents and the Lenders under
the Credit Documents until paid in full, second to any accrued and unpaid interest on the Loans until paid in full and thereafter to
the outstanding principal balance of the Loans until the Loans are paid in full; provided, however, that Administrative
Agent and 2024
Convertible Note Lenders may agree to apply the proceeds to be applied to the Obligations pursuant to Section 4.02(a)(iv),
or 4.02(a)(v), 4.02(a)(vii) or 4.02(a)(viii) on a non-ratable basis, as between the 2024
Convertible Note Loans, on one hand, and the other Loans, on the other hand, in their
discretion.
(d) Application
of Collateral Proceeds. Notwithstanding anything to the contrary in Section 4.01 or this Section 4.02, all
proceeds of Collateral received by Collateral Agent or any other Person pursuant to the exercise of remedies against the Collateral,
and all payments received upon and after the acceleration of the maturity of any of the Obligations following the occurrence of an Event
of Default (an “Application Event”) shall be applied as follows (subject to adjustments pursuant to any agreements
entered into among the Lenders):
(i) first,
to pay any costs and expenses of Agents (in their respective capacities as Agents) under the Credit Documents or otherwise, including
any indemnities then due to any Agents (in their respective capacity as Agent) under the Credit Documents, until paid in full,
(ii) second,
to pay any fees then due, or to be paid, to Agents (in their respective capacities as Agents) under the Credit Documents or otherwise
until paid in full,
(iii) third,
ratably to pay any costs, expense reimbursements, fees or premiums of the Lenders and indemnities then due to any of the Lenders under
the Credit Documents until paid in full,
(iv) fourth,
ratably to pay interest due in respect of the outstanding Loans until paid in full,
(v) fifth,
ratably to pay the outstanding principal balance of the Loans in the inverse order of maturity until the Loans are paid in full,
(vi) sixth,
to pay any other Obligations, and
(vii) seventh,
to Borrowers or such other Person entitled thereto under Applicable Law.
SECTION 4.03. Payment
of Obligations; Method and Place of Payment.
(a) The
obligations of each Credit Party hereunder and under each other Credit Document are not subject to counterclaim, set-off, right of rescission,
recoupment or deduction of any kind. Subject to Section 4.03(b), and except as otherwise specifically provided herein, all
payments under any Credit Document shall be made by Borrowers, without counterclaim, set-off, right of rescission, recoupment or deduction
of any kind, to Administrative Agent for the ratable account of the Secured Parties entitled thereto, not later than 5:00 p.m. on
the date when due and shall be made in immediately available funds in Dollars to Administrative Agent. Administrative Agent will thereafter
cause to be distributed on the same day (if payment was actually received by Administrative Agent prior to 5:00 p.m. on such day)
like funds relating to the payment of principal or interest or Fees ratably to the Secured Parties entitled thereto.
(b) For
purposes of computing interest or fees, any payments under this Agreement that are made later than 5:00 p.m., shall be deemed to have
been made on the next succeeding Business Day. Whenever any payment to be made hereunder shall be stated to be due on a day that is not
a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal,
interest shall continue to accrue during such extension at the applicable rate in effect immediately prior to such extension.
(c) Borrowers
shall make each payment under any Credit Document by wire transfer to such deposit account as Administrative Agent shall notify Parent
in writing from time to time within a reasonable time prior to such payment.
(d) Unless
Administrative Agent shall have received notice from Borrowers prior to the date on which any payment is due to Administrative Agent
for the account of the Lenders hereunder that Borrowers will not make such payment, Administrative Agent may assume that Borrowers have
made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the applicable Lenders,
as the case may be, the amount due. With respect to any payment that Administrative Agent makes for the account of the Lenders hereunder
as to which Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following
applies (such payment referred to as the “Rescindable Amount”): (i) Borrowers have not in fact made such
payment; (ii) Administrative Agent has made a payment in excess of the amount so paid by Borrowers (whether or not then owed); or
(iii) Administrative Agent has for any reason otherwise erroneously made such payment, then each applicable Lender severally agrees
to repay to Administrative Agent forthwith on demand the amount so distributed to such Lender, in immediately available funds with interest
thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to Administrative
Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on
interbank compensation.
SECTION 4.04. Taxes.
(a) Any
and all payments by or on account of any obligation of any Credit Party under any Credit Document shall be made without deduction or
withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of
an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then
the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted
or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the
sum payable by the applicable Credit Party shall be increased as necessary so that after such deduction or withholding has been made
(including such deductions and withholdings applicable to additional sums payable under this Section 4.04) the applicable
Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) The
Credit Parties shall timely pay, and shall authorize Administrative Agent to pay in their name, to the relevant Governmental Authority
in accordance with Applicable Law, or at the option of Administrative Agent timely reimburse it for the payment of, any Other Taxes.
As soon as practicable after the date of any payment of Taxes or Other Taxes by any Credit Party, the Credit Parties shall furnish to
Agent, at its address referred to in Section 12.02, the original or a certified copy of a receipt evidencing payment thereof
or other evidence of payment reasonably satisfactory to Administrative Agent.
(c) The
Credit Parties shall jointly and severally indemnify each Recipient, within 10 days after demand therefor, for the full amount of any
Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 4.04)
payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any costs and expenses
arising therefrom or with respect thereto, if and to the extent such Indemnified Taxes were correctly and legally imposed or asserted
by the relevant Governmental Authority.
(d) Each
Lender shall severally indemnify Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable
to such Lender (but only to the extent that any Credit Party has not already indemnified Administrative Agent for such Indemnified Taxes
and without limiting the obligation of the Credit Parties to do so), (ii) any Taxes attributable to such Lender’s failure
to comply with the provisions of Section 12.06(c) relating to the maintenance of a Participant Register and (iii) any
Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Administrative Agent in connection with any Credit
Document, and any costs and expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to
any Lender by Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Administrative Agent to set
off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by Administrative Agent
to the Lender from any other source against any amount due to Administrative Agent under this Section 4.04(d).
(e) As
soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 4.04, such
Credit Party shall deliver to Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Administrative
Agent.
(f) Status
of Lenders.
(i) Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document
shall deliver to Parent and Administrative Agent, at the time or times reasonably requested by Parent or Administrative Agent, such properly
completed and executed documentation reasonably requested by Parent or Administrative Agent as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Parent or Administrative Agent,
shall deliver such other documentation prescribed by Applicable Law or reasonably requested by Parent or Administrative Agent as will
enable Borrowers or Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting
requirements. Notwithstanding any other provision of this Section 4.04(f), a Lender shall not be required to deliver any
form that such Lender is not legally eligible to deliver.
(ii) Without
limiting the generality of the foregoing,
(A) any
Lender that is a U.S. Person shall deliver to Parent and Administrative Agent on or prior to the date on which such Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the reasonable request of Parent or Administrative Agent), executed
copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Parent and Administrative Agent (in such number of copies
as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and
from time to time thereafter upon the reasonable request of Parent or Administrative Agent), whichever of the following is applicable:
(1) in
the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect
to payments of interest under any Credit Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable,
establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such
tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN or IRS Form W-8BEN-E,
as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits”
or “other income” article of such tax treaty;
(2) executed
copies of IRS Form W-8ECI;
(3) in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code,
(x) a certificate to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of
the Code, a “10 percent shareholder” of Parent within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled
foreign corporation” described in Section 881(c)(3)(C) of the Code in customary form consistent with the Model Credit
Agreement Provisions of the Loan Syndications and Trading Association (a “U.S. Tax Compliance Certificate”)
and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or
(4) to
the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS
Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate, IRS Form W-9, or other certification
documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct
or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax
Compliance Certificate on behalf of each such direct and indirect partner;
(C) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Parent and Administrative Agent (in such number of copies
as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and
from time to time thereafter upon the reasonable request of Parent or Administrative Agent), executed copies of any other form prescribed
by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with
such supplementary documentation as may be prescribed by applicable law to permit Borrowers or Administrative Agent to determine the
withholding or deduction required to be made; and
(D) if
a payment made to a Lender under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or
1472(b) of the Code, as applicable), such Lender shall deliver to Parent and Administrative Agent at the time or times prescribed
by law and at such time or times reasonably requested by Parent or Administrative Agent such documentation prescribed by applicable law
(including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by
Parent or Administrative Agent as may be necessary for Borrowers and Administrative Agent to comply with their obligations under FATCA
and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct
and withhold from such payment. Solely for purposes of this Section 4.04(f)(ii)(D), “FATCA” shall include any
amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification
it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly
notify Parent and Administrative Agent in writing of its legal inability to do so.
(g) If
any Recipient determines, in its discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been
indemnified pursuant to this Section 4.04 (including by the payment of additional amounts pursuant to this Section 4.04),
it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 4.04
with respect to the Taxes giving rise to such refund), net of all costs and expenses (including Taxes) of such indemnified party and
without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying
party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 4.04(g) (plus
any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is
required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 4.04(g),
in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 4.04(g) the
payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been
in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the
indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 4.04(g) shall not
be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that
it deems confidential) to the indemnifying party or any other Person.
(h) Each
party’s obligations under this Section 4.04 shall survive the resignation or replacement of Administrative Agent or any assignment
of rights by, or the replacement of, a Lender, and the repayment, satisfaction or discharge of all obligations under any Credit Document.
SECTION 4.05. Computations
of Interest and Fees. All interest and fees shall be computed on the basis of the actual number of days occurring during the period
for which such interest or fee is payable over a year comprised of 365 days. For the purposes of the Interest Act (Canada) or any successor
or similar legislation, whenever any interest or fee under this Agreement is calculated using a rate based on a period other than a calendar
year or similar expression, such interest rate, fee or other amount shall be determined pursuant to such calculation, when expressed
as an annual rate, is equivalent to such rate as determined multiplied by the actual number of days in the calendar year in which the
period for which such interest or fee is payable (or compounded) ends and divided by the number of days comprising such other period.
Each determination by Administrative Agent of an interest rate and Fees hereunder shall be presumptive evidence of the correctness of
such rates and Fees, absent manifest error. Payments due on a day that is not a Business Day shall (except as otherwise required by Administrative
Agent) be made on the immediately preceding Business Day and such reduction of time shall not be included in computing interest and fees
in connection with that payment.
SECTION 4.06. Maximum
Interest.
(a) In
no event whatsoever shall interest and other charges charged hereunder exceed the highest rate permissible under applicable law. In the
event interest and other charges as computed hereunder would otherwise exceed the highest rate permitted under applicable law: (i) the
interest rates hereunder will be reduced to the maximum rate permitted under applicable law; (ii) such excess amount shall be first
applied to any unpaid principal balance owed by Borrowers; and (iii) if the then remaining excess amount is greater than the previously
unpaid principal balance, the applicable Lender shall promptly refund such excess amount to Borrowers and the provisions hereof shall
be deemed amended to provide for such permissible rate.
(b) If
the amount of any interest, premium, fees or other monies or any rate of interest stipulated for, taken, reserved or extracted under
the Credit Documents would otherwise contravene the provisions of Section 347 of the Criminal Code (Canada), Section 8 of the
Interest Act (Canada) or any successor or similar legislation (including any usury law in the U.S.), or would exceed the amounts which
any Lender is legally entitled to charge and receive under any law to which such compensation is subject, then such amount or rate of
interest shall be reduced to such maximum amount as would not contravene such provision; and to the extent that any excess has been charged
or received such Lender shall apply such excess against the outstanding Loans and refund any further excess amount to the applicable
Borrower.
(c) If
any provision of this Agreement or any other Credit Document would obligate Borrowers or a Credit Party to make any payment of
interest or other amount payable to any Lender in an amount or calculated at a rate which would be prohibited by law or would
result in a receipt by any Lender of interest at a criminal rate (as construed under the Criminal Code (Canada)), then
notwithstanding that provision, that amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum
amount or rate of interest, as the case may be, as would not be so prohibited by law or result in a receipt by such Lender of
interest at a criminal rate, the adjustment to be effected, to the extent necessary, as follows:
(i) first,
by reducing the amount or rate of interest required to be paid to such Lender under this Section 4.06; and
(ii) thereafter,
by reducing any fees, commissions, premiums and other amounts required to be paid to such Lender which would constitute interest for
purposes of the Criminal Code (Canada) or other applicable law;
provided
that, notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if any Lender receives
an amount in excess of the maximum permitted by the Criminal Code (Canada) or other Applicable Law, then Borrowers shall be entitled,
by notice in writing to such Lender, to obtain reimbursement from such Lender in an amount equal to the excess, and pending reimbursement,
the amount of the excess shall be deemed to be an amount payable by such Lender to Borrowers and shall be promptly paid to Borrowers.
Any amount or rate of interest
referred to in this Agreement shall be determined in accordance with generally accepted actuarial practices and principles as an effective
annual rate of interest over the term that any Loan remains outstanding on the assumption that any charges, fees or expenses that fall
within the meaning of “interest” (as defined in the Criminal Code (Canada)) shall, if they relate to a specific period
of time, be pro-rated over that period of time and otherwise be pro-rated over the period from the earlier of the date of advance and
the Closing Date to the Tranche Maturity Date applicable thereto, and, in the event of a dispute, a certificate of a Fellow of the Canadian
Institute of Actuaries appointed by Administrative Agent shall be conclusive for the purposes of that determination.
ARTICLE V
Conditions Precedent to Loans
SECTION 5.01. Initial
Delayed Draw Term Loans. The obligation of each Lender to make the Delayed Draw Term Loans on the Third Amendment Initial Funding
Date as provided for hereunder is subject to the fulfillment, to the satisfaction of Agents and each Lender, of each of the following
conditions precedent on or before the Third Amendment Initial Funding Date, unless any such condition is waived in accordance with Section 12.01:
(a) Third
Amendment. Each Borrower shall have affirmed its execution of the Third Amendment and each of the other Credit Documents it executed
on the Third Amendment Effective Date in writing.
(b) Credit
Documents. Administrative Agent shall have received the following documents, duly executed by an Authorized Officer of each applicable
Credit Party and each other relevant party:
(i) amended
and restated Notes reflecting the increase in the Aggregate Commitment pursuant to the Third Amendment;
(ii) an
amendment to each of the Mortgages;
(iii) updated
Schedules to the Credit Agreement, the US Security Agreement and, if there have been any changes thereto since the Closing Date, the
Schedules to the Canadian Security Agreement; and
(iv) a
ratification and confirmation of any other Security Documents if reasonably required by Administrative Agent.
(c) Lien
Searches; UCC and PPSA Filings.
(i) Collateral
Agent shall have received the results of a search of the UCC filings, PPSA registrations and equivalent filings, as applicable, in addition
to tax Lien, judgment Lien, bankruptcy and litigation searches made with respect to each Credit Party, together with copies of the financing
statements, PPSA registrations and other filings (or similar documents) disclosed by such searches, and accompanied by evidence reasonably
satisfactory to Collateral Agent that the Liens indicated in any such financing statement, PPSA registration 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 hereunder.
(ii) Collateral
Agent shall have received evidence, in form and substance reasonably satisfactory to Collateral Agent, that appropriate UCC financing
statements (including fixture filings), PPSA registrations or equivalent filings, as applicable, have been duly filed in such office
or offices as may be necessary or, in the opinion of Collateral Agent, desirable, to perfect Collateral Agent’s Liens in and to
the Collateral and certified searches reflecting the filing of all such financing statements and PPSA registrations.
(d) Legal
Opinions.
(i) Administrative
Agent shall have received an executed legal opinion of DLA Piper LLP (US), counsel to the US Credit Parties, which opinion shall be addressed
to Agents and the other Secured Parties and shall be in form and substance reasonably satisfactory to Administrative Agent.
(ii) Administrative
Agent shall have received an executed legal opinion of DLA Piper (Canada) LLP, counsel to the Canadian Credit Parties, which opinion
shall be addressed to Agents and the other Secured Parties and shall be in form and substance reasonably satisfactory to Administrative
Agent.
(iii) Administrative
Agent shall have received executed legal opinions of such other attorneys of the Credit Parties as reasonably requested by Administrative
Agent, which opinions shall be addressed to Agents and the other Secured Parties and shall be in form and substance reasonably satisfactory
to Administrative Agent.
(e) Officer’s
Certificates. Administrative Agent shall have received a certificate for each Credit Party, dated the Third Amendment Initial Funding
Date, duly executed and delivered by an Authorized Officer of such Credit Party, as to:
(i) resolutions
of each such Person’s board of managers/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, managing member or general partner, as applicable,
authorized to act with respect to each Credit Document to be executed by such Person and a list of all officers and directors of the
Credit Parties;
(iii) each
such Person’s Organization Documents, as amended, modified or supplemented as of Third Amendment Initial Funding Date, certified
by the appropriate officer or official body of the jurisdiction of organization of such Person; and
(iv) each
such Person’s investor rights agreements, voting agreements, registration rights agreements and other stockholders’ agreements,
if any,
which certificates shall provide that each Secured
Party may conclusively rely thereon until it shall have received a further certificate of an Authorized Officer of the applicable Person
canceling or amending the prior certificate of such Person as provided in Section 8.01(l).
(f) Other
Documents and Certificates. Administrative Agent shall have received the following documents and certificates, each of which shall
be dated the Third Amendment Initial Funding Date and duly executed by an Authorized Officer of each applicable Credit Party, in form
and substance reasonably satisfactory to Administrative Agent:
(i) a
certificate of an Authorized Officer of Parent, certifying as to such items as reasonably requested by Collateral Agent, including:
(A) the
receipt of all required approvals and consents of all Governmental Authorities and other third parties, if applicable, with respect to
the consummation of the Transactions and the operation of the Credit Parties’ business, each of which shall be attached thereto
and certified as being true, complete and correct copies thereof,
(B) both
before and after giving effect to the Transactions, including the borrowing of the Loans on the Third Amendment Initial Funding Date,
(1) no Default or Event of Default shall have occurred, (2) no default, event of default or material breach under any Material
Contract by Parent or its Subsidiaries shall have occurred and (3) each such Material Contract remains in full force and effect
and no Credit Party or Subsidiary has received any notice of termination or non-renewal from the other party thereto, and
(C) the
representations and warranties set forth in Article VII are true and correct in all material respects (except that such materiality
qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the
text thereof);
(ii) (A) certificates
of good standing or letter of status (or the local equivalent thereof, if applicable) with respect to each Credit Party, each dated within
a recent date prior to the Third Amendment Initial Funding Date, such certificates to be issued by the appropriate officer or official
body of the jurisdiction of organization of such Credit Party, which certificate shall indicate that such Credit Party is in good standing
in such jurisdiction, and (B) certificates of good standing (or the local equivalent thereof, if applicable) with respect to each
Credit Party, each dated within a recent date prior to the Third Amendment Initial Funding Date, such certificates to be issued by the
appropriate officer of the jurisdictions where such Credit Party is qualified to do business as a foreign entity, which certificate shall
indicate that such Credit Party is in good standing in such jurisdictions; and
(iii) a
disbursement letter detailing the planned distribution of proceeds from the Loans and a funds flow memorandum detailing the sources and
uses of the Transactions.
(g) Solvency.
Administrative Agent shall be reasonably satisfied that the Consolidated Companies, after incurring the Loans, will be Solvent and Administrative
Agent shall have received and shall be reasonably satisfied with a Solvency Certificate of an Authorized Officer of Parent, on behalf
of the Credit Parties, confirming the Consolidated Companies, after giving effect to the Transactions, are Solvent.
(h) Payment
of Outstanding Indebtedness. (i) On the Third Amendment Initial Funding Date, the Credit Parties and each of their respective
Subsidiaries shall have no outstanding Indebtedness other than the Loans hereunder and the Indebtedness (if any) listed on Schedule
7.24 or otherwise permitted by Section 9.01, and Administrative Agent shall have received copies of all documentation
and instruments evidencing the discharge of all Indebtedness paid off in connection with the Transactions and the transactions contemplated
by this Agreement, and (ii) all Liens (other than Permitted Liens) securing payment of any such Indebtedness shall have been released
and Administrative Agent shall have received pay-off letters, all form UCC-3 and PPSA termination statements, all releases or terminations
of intellectual property security agreements and other instruments as may be reasonably requested by Administrative Agent in connection
therewith.
(i) Material
Adverse Effect. Administrative Agent shall have determined that (i) no Material Adverse Effect has occurred since December 31,
2019, and (ii) no Material Adverse Effect shall occur from giving effect to the Transactions.
(j) Fees,
Expenses and Interest. Each of Agents and the Lenders shall have received, for its own respective account, (i) all fees and
expenses due and payable to such Person and (ii) costs and expenses due and payable to such Person pursuant Section 12.05
(including the reasonable fees, disbursements and other charges of counsel).
(k) No
Default, Representations and Warranties and No Injunctions.
(i) No
Default or Event of Default shall have occurred and be continuing.
(ii) All
representations and warranties of the Credit Parties set forth in this Agreement and the other Credit Documents are true and correct
in all material respects (other than such representations and warranties that are already qualified by materiality, Material Adverse
Effect or similar language, in which case such representations and warranties shall be true and correct in all respects) on the Third
Amendment Initial Funding Date.
(iii) No
injunction, writ, restraining order, or other order of any nature restricting or prohibiting, directly or indirectly, the Transactions
shall have been issued and remain in force by any Governmental Authority against any Credit Party, any Agent or any Lender.
(iv) There
shall be no order or injunction or pending litigation that could reasonably be expected to have a Material Adverse Effect on Parent and
its Subsidiaries, taken as a whole, and no pending litigation seeking to prohibit, enjoin or prevent any of the Transactions.
(l) Maryland
Real Property and Massachusetts Real Property. Administrative Agent shall have received, with respect to the Maryland Real Property
and the Massachusetts Real Property, each of the following, in form and substance reasonably satisfactory to Administrative Agent:
(i) evidence
that a counterpart of a Mortgage with respect to such Real Property has been recorded, or that arrangements for recording reasonably
satisfactory to Collateral Agent have been made, in the place necessary, in Collateral Agent’s reasonable judgment, to create a
valid and enforceable first priority Lien in favor of Collateral Agent for the benefit of itself and the other Secured Parties;
(ii) a
title commitment with respect to the Mortgage for such Real Property, if not delivered in connection with such Mortgage, and, with respect
to any existing title policies delivered in connection with such Mortgage, updated title policies reflecting the Delayed Draw Term Loans,
ALTA or other mortgagee’s title insurance policy with respect to such Mortgage or, if such policy is unavailable in the determination
of Agents in their discretion, a title opinion or such other substitute for such title insurance policy as determined by Agents in their
reasonable discretion; provided, however, that Collateral Agent may agree to allow this requirement or any part hereof to be satisfied
post-closing in its discretion.
SECTION 5.02. Loans
Made after Closing Date. Except as set forth in the first proviso of Section 2.01(f), the obligation of each Lender to make
the Loans on each Subsequent Funding Date (other than the Third Amendment Initial Funding Date) as provided for hereunder is subject
to the fulfillment, to the satisfaction of each Agent and each Lender, of each of the following conditions precedent on or before such
Subsequent Funding Date, unless any such condition is waived in accordance with Section 12.01:
(a) Loan
Amounts. The aggregate principal amount of Loans made on each Subsequent Funding Date shall, when aggregated with the original principal
amount of all other Loans funded hereunder (but excluding, for the avoidance of doubt, all PIK Interest that is paid in kind to such
Lender and deemed to be a part of the principal amount of the Loans pursuant to Section 2.04(b)), not be more than the Aggregate
Commitment.
(b) Documents
and Certificates. Administrative Agent shall have received the following documents and certificates, each of which, unless otherwise
expressly indicated below, shall be dated as of the applicable Subsequent Funding Date and duly executed by an Authorized Officer of
each applicable Credit Party, in form and substance reasonably satisfactory to Administrative Agent:
(i) Unless
such advance is being made pursuant to Section 2.01(g), not less than 15 days (or such
shorter amount of time to which Administrative Agent agrees in its discretion) prior to the proposed Subsequent Funding Date for the
Loans available to Borrowers pursuant to Section 2.01(c), 2.01(d) or 2.01(f), a written request for such Loans in the form
provided by Parent to Administrative Agent and setting forth, among other things, (A) unless such Loans are requested pursuant to
Section 2.01(d), the proposed Subsequent Funding Date, and (B) the aggregate principal amount of such requested Loan;
(ii) not
less than 90 days prior to the proposed Subsequent Funding Date for the Loans available to Borrowers pursuant to Section 2.01(g),
a written request for such Loans in the form provided by Parent to Administrative Agent and setting forth, among other things, (A) the
proposed Subsequent Funding Date and (B) the aggregate principal amount of such requested Loan;[reserved];
(iii) a
certificate of an Authorized Officer of Parent, on behalf of Borrowers, certifying as to such items as reasonably requested by Agents,
including:
(A) both
before and after giving effect to the borrowing of such Loans on such Subsequent Funding Date, no Default or Event of Default shall have
occurred and be continuing; and
(B) the
representations and warranties of the Credit Parties set forth in this Agreement and the other Credit Documents are true and correct
in all material respects (other than such representations and warranties that are already qualified by materiality, Material Adverse
Effect or similar language, in which case such representations and warranties shall be true and correct in all respects) on the date
of such request and such Subsequent Funding Date; provided, however, that those representations and warranties expressly referring to
a specific date shall be true and correct in all material respects (other than such representations and warranties that are already qualified
by materiality, Material Adverse Effect or similar language, in which case such representations and warranties shall be true and correct
in all respects) as of such date;.
(C) if
the Loans are being advanced pursuant to Section 2.01(g), evidence that the Credit Parties shall be in compliance with the Financial
Performance Covenants recomputed as of the end of the Applicable Fiscal Period most recently ended for which financial statements have
been delivered pursuant to Section 8.01(a) or 8.01(b) after giving effect to the requested Loan on a pro forma basis;
and
(iv) if
the Loans are being advanced pursuant to Section 2.01(g), a certificate detailing the planned distribution of proceeds from the
Loans and a funds flow memorandum (prepared by Administrative Agent) detailing the sources and uses of such Loan, each of which shall
be acceptable to Administrative Agent.
(c) Solvency.
Administrative Agent shall be reasonably satisfied that the Consolidated Companies, after incurring the Loans, will be Solvent and Administrative
Agent shall have received and shall be reasonably satisfied with a Solvency Certificate of an Authorized Officer of Parent, on behalf
of the Credit Parties, confirming the Consolidated Companies, after giving effect to the incurrence of such Loans, are Solvent.
(d) Material
Adverse Effect. Administrative Agent shall have determined that (i) no Material Adverse Effect has occurred since December 31,
2019, and (ii) no Material Adverse Effect shall occur from giving effect to the Transactions.
(e) Fees,
Expenses and Interest. Each of Agents and the Lenders shall have received, for its own respective account, (i) all fees and
expenses due and payable to such Person hereunder and (ii) the fees, costs and expenses due and payable to such Person pursuant
Section 12.05 (including the reasonable fees, disbursements and other charges of counsel).
(f) No
Default, Representations and Warranties and No Injunctions.
(i) No
Default or Event of Default shall have occurred and be continuing;
(ii) all
representations and warranties made by each Credit Party contained herein or in the other Credit Documents shall be true and correct
in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already
are qualified or modified by materiality in the text thereof), in each case, with the same effect as though such representations and
warranties had been made on and as of the Subsequent Funding Date (except where such representations and warranties expressly relate
to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of
such earlier date (except that such materiality qualifier shall not be applicable to any representations and warranties that already
are qualified or modified by materiality in the text thereof));
(iii) no
injunction, writ, restraining order, or other order of any nature restricting or prohibiting, directly or indirectly, the Transactions
shall have been issued and remain in force by any Governmental Authority against any Credit Party, any Agent or any Lender; and
(iv) there
shall be no order or injunction or pending litigation that could reasonably be expected to have a Material Adverse Effect on Parent and
its Subsidiaries, taken as a whole, and no pending litigation seeking to prohibit, enjoin or prevent the making of such Loan or the use
of the proceeds thereof.
(g) 2024
Convertible Note Loans. if the Loans are being advanced pursuant to Section 2.01(f), Administrative Agent shall have received the
following:
(i) an
executed legal opinion of (i) Troutman Pepper LLP, Delaware, Maryland, Massachusetts and New York counsel to the Credit Parties,
and (ii) Stinson LLP, Minnesota counsel to the Credit Parties, with respect to the Tenth Amendment and related matters, each of
which shall be addressed to Agents and the other Secured Parties and shall be in form and substance reasonably satisfactory to Administrative
Agent;
(ii) with
respect to each Credit Party, an omnibus certificate signed by an Authorized Officer of such Person, including a certificate of incumbency
with respect to each Authorized Officer of such Person executing a Credit Document (or, if a certificate of incumbency has previously
been provided to Administrative Agent with respect to such Authorized Officer and their current office, a certification of such Credit
Party certifying no changes have been made to such Authorized Officer’s election, appointment, qualification or authority), together
with appropriate attachments which shall include the following: (A) its Organizational Documents (or, if Organizational Documents
have previously been provided to Administrative Agent, a certification of such Credit Party certifying no changes have been made to such
Organizational Documents); (B) a true, complete and correct copy of the resolutions of such Person (or its members or managers,
as applicable) authorizing the execution, delivery and performance by such Person of the Credit Documents to which such Person is a party
and authorizing the borrowings under the Credit Agreement; (C) a certificate of good standing from such Person’s jurisdiction
of formation; and (D) if any, copies of all shareholders or share purchase agreements relating to the Equity Interests of such Person
(or, if such agreements have previously been provided to Administrative Agent, a certification of such Credit Party certifying no changes
have been made to such agreements and no new shareholders or share purchase agreements relating to the Equity Interests of such Person
have been executed); and
(iii) a
disbursement letter detailing the planned distribution of proceeds from the 2024 Convertible Note Loans advanced on November 7,
2024, including for the reimbursement of Agents’ and Lenders’ costs and expenses pursuant to Section 12.05 of the Credit
Agreement (including the reasonable fees, disbursements and other charges of counsel).
(g)(h) Lien
Certificates; Real Property Matters. Except as otherwise provided in Section 8.20, if the Loans are being advanced pursuant
to Section 2.01(f) or 2.01(g), Administrative Agent shall have received a
record owner and lien certificate or similar certificate and, if requested by Administrative Agent, date-down endorsements issued in
connection with its title insurance policy, in form and substance satisfactory to Administrative Agent, and, if, necessary, amendments
to the Mortgages, Assignments of Leases and Rents and title insurance policies to reflect any increase in the Aggregate Commitments,
in each case, in form and substance satisfactory to Administrative Agent.
(h)(i) Triggering
Event. No Triggering Event has occurred and is continuing.
ARTICLE VI
Guarantee
SECTION 6.01. Guarantee.
(a) To
induce the Lenders to make the Loans and each other Secured Party to make credit available to or for the benefit of one or more Credit
Parties, each Guarantor hereby, jointly and severally, absolutely, unconditionally and irrevocably, guarantees, as primary obligor and
not merely as surety, the full and punctual payment when due, whether at stated maturity or earlier, by reason of acceleration, mandatory
prepayment or otherwise in accordance with any Credit Document, of all the Obligations of each Borrower and each other Credit Party,
whether existing on the date hereof or hereinafter incurred or created (collectively, the “Guarantor Obligations”).
The Guarantor Obligations shall include interest accruing at the then applicable rate provided herein after the maturity thereof and
interest accruing at the then applicable rate provided herein after the commencement of any Insolvency Event relating to any Borrower
or any other Credit Party, whether or not a claim for post-filing or post-petition interest is allowed or allowable in such proceeding,
whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with this Agreement or any other Credit Document, in each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including all fees and disbursements of counsel and other advisors retained
by, or for the benefit of, Agents or to the other Secured Parties that are required to be paid by Borrowers pursuant to the terms of
any of the foregoing agreements) and all obligations and liabilities of such Guarantor that arise or may arise under or in connection
with this Agreement or any other Credit Document to which such Guarantor is a party, in each case whether on account of guarantee obligations,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including all fees and disbursements of counsel and other
advisors retained by, or for the benefit of, Agents or the other Secured Parties that are required to be paid by such Guarantor pursuant
to the terms of any such Credit Document) whether or not claims for any such amounts are allowed or allowable in any Insolvency Event.
Each Guarantor’s guarantee hereunder constitutes a guarantee of payment and not of collection.
(b) Any
term or provision of this Agreement or any other Credit Document to the contrary notwithstanding, the maximum aggregate amount for which
any Guarantor shall be liable under this guarantee shall not exceed the maximum amount for which such Guarantor can be liable without
rendering the obligations of such Guarantor under this Agreement or any other Credit Document, as it relates to such Guarantor, subject
to avoidance under Applicable Laws relating to fraudulent conveyance or fraudulent transfer (including the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act and Section 548 of the U.S. Bankruptcy Code or any applicable provisions of comparable
Applicable Laws). Any analysis of the provisions of this Article VI for purposes of such Applicable Laws shall take into
account the right of contribution established in Section 6.02 and, for purposes of such analysis, give effect to any discharge
of intercompany debt as a result of any payment made under this Article VI.
(c) Each
Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of such Guarantor hereunder
without impairing this guarantee or affecting the rights and remedies of any Secured Party hereunder.
(d) This
guarantee shall remain in full force and effect until the Termination Date occurs, notwithstanding that from time to time during the
term of this Agreement no Guarantor Obligations may be outstanding.
(e) No
payment made by any Borrower, any Guarantor, any other guarantor or any other Person or received or collected by any Secured Party from
any Borrower, any Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation
or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release
or otherwise affect the liability of any Guarantor hereunder, and each Guarantor shall, notwithstanding any such payment (other than
any payment made by such Guarantor in respect of the Obligations or any payment received or collected from such Guarantor in respect
of the Obligations), remain liable for the Obligations up to the maximum liability of such Guarantor hereunder until the Termination
Date occurs.
SECTION 6.02. Right
of Contribution. Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid more than its proportionate share
of any payment made hereunder, such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor
hereunder which has not paid its proportionate share of such payment. Each Guarantor’s right of contribution shall be subject to
the terms and conditions of Section 6.03. The provisions of this Section 6.02 shall in no respect limit the obligations
and liabilities of any Guarantor to the Secured Parties, and each Guarantor shall remain liable to the Secured Parties for the full amount
guaranteed by such Guarantor hereunder.
SECTION 6.03. No
Subrogation. Notwithstanding any payment made by any Guarantor hereunder or any set-off or application of funds of any Guarantor
by any Secured Party, no Guarantor shall be entitled to be subrogated to any of the rights of any Secured Party against any Borrower
or any other Credit Party or any collateral security or guarantee or right of offset held by any Secured Party for the payment of the
Obligations, nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement from any Borrower or any other Credit
Party in respect of payments made by such Guarantor under this guarantee, in each case, until after the Termination Date occurs. If any
amount shall be paid to any Guarantor on account of such subrogation rights at any time on or prior to the Termination Date, such amount
shall be held by such Guarantor for the benefit of Secured Parties, segregated from other funds of such Guarantor, and shall, forthwith
upon receipt by such Guarantor, be turned over to Collateral Agent in the exact form received by such Guarantor (duly indorsed by such
Guarantor to Collateral Agent, if required), to be applied against the Obligations, whether matured or unmatured, as Collateral Agent
may determine in accordance with Section 4.02(d).
SECTION 6.04. Modification
of the Guarantor Obligations. Each Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights
against any Guarantor and without notice to or further assent by any Guarantor, any demand for payment of any of the Guarantor Obligations
made by any Secured Party may be rescinded by such Secured Party and any of the Guarantor Obligations continued, and the Guarantor Obligations,
or the liability of any other Person upon or for any part thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised,
waived, surrendered, subordinated or released by any Secured Party, and this Agreement and the other Credit Documents, and any other
documents executed and delivered in connection therewith may be amended, amended and restated, supplemented or otherwise modified or
terminated, in whole or in part, as Agents (or Required Lenders or all Lenders, as the case may be) may deem advisable from time to time,
and any collateral security, guarantee or right of offset at any time held by any Secured Party for the payment of the Guarantor Obligations
may be sold, exchanged, waived, surrendered, subordinated or released. No Secured Party shall have any obligation to protect, secure,
perfect or ensure any Lien at any time held by it as security for the Guarantor Obligations or for this Agreement or any other Credit
Document or any property subject thereto.
SECTION 6.05. Guarantee
Absolute and Unconditional. Each Guarantor waives to the fullest extent permitted by Applicable Law any and all notice of the creation,
renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by any Secured Party upon this Agreement or
acceptance of the guarantee contained in this Article VI. The Obligations, and any of them, shall conclusively be deemed
to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Article VI and
all dealings between any Borrower or any other Credit Party, on the one hand, and the Secured Parties, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in reliance upon this Article VI. Each Guarantor, to the fullest
extent permitted by Applicable Law, waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to
or upon any Borrower or any other Credit Party with respect to the Obligations. Each Guarantor waives, to the fullest extent permitted
by law, any right such Guarantor may now have or hereafter acquire to revoke, rescind, terminate or limit (except as expressly provided
herein) the guarantee set forth in this Article VI or any of its obligations hereunder. Each Guarantor understands and agrees,
to the fullest extent permitted by Applicable Law, that the guarantee set forth in this Article VI shall be construed as
a continuing, absolute and unconditional guarantee of payment without regard to (a) the validity, enforceability or avoidability
of this Agreement or any other Credit Document, any of the Guarantor Obligations or any other collateral security therefor or guarantee
or right of offset with respect thereto at any time or from time to time held by any Secured Party, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by any Borrower or
any other Person against any Secured Party, or (c) any other circumstance whatsoever (with or without notice to or knowledge of
any Borrower or any Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of any Borrower
with respect to any Obligations, or of such Guarantor under this guarantee, in bankruptcy or in any other instance. When making any demand
hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no
obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have against any Borrower, any other Guarantor
or any other Person or against any collateral security or guarantee for the Guarantor Obligations or any right of offset with respect
thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments
from any Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise
any such right of offset, or any release of any Borrower, any other Guarantor or any other Person or any such collateral security, guarantee
or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes
hereof, “demand” shall include the commencement and continuance of any legal proceedings.
SECTION 6.06. Reinstatement.
The guarantee set forth in this Article VI shall continue to be effective, or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any of the Guarantor Obligations is rescinded or must otherwise be restored or returned by any
Secured Party, including upon the insolvency, bankruptcy, examinership, dissolution, liquidation or reorganization of any Borrower or
any other Credit Party, or upon or as a result of the appointment of a receiver, examiner, intervenor or conservator of, or trustee or
similar officer for, any Borrower or any other Credit Party or any substantial part of its property, or otherwise, all as though such
payments had not been made.
SECTION 6.07. Payments.
Each Guarantor hereby guarantees that payments hereunder will be paid to Administrative Agent, for the benefit of the Lenders, without
set-off or counterclaim in Dollars in accordance with Section 4.03(c).
SECTION 6.08. Taxes.
Each payment of the Guarantor Obligations will be made by each Guarantor subject to the same provisions as are set forth in Section 4.04.
ARTICLE VII
Representations, Warranties and Agreements
In order to induce the Lenders
to enter into this Agreement and continue the Loans as provided for herein, the Credit Parties make the following representations and
warranties to, and agreements with, the Lenders, all of which shall survive the execution and delivery of this Agreement and the making
of the Loans:
SECTION 7.01. Status.
Each Credit Party (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.
SECTION 7.02. Power
and Authority. Each Credit Party has the corporate or other organizational power and authority to execute, deliver and carry out
the terms and provisions of the 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 the Credit Documents to which it is a party. Each Credit Party has duly
executed and delivered the Credit Documents to which it is a party and such Credit Documents constitute the legal, valid and binding
obligation of such Credit Party enforceable against each Credit Party that is a party thereto 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).
SECTION 7.03. No
Violation. None of (a) the execution, delivery and performance by any Credit Party of the Credit Documents to which it is a
party and compliance with the terms and provisions thereof, (b) the consummation of the Transactions, or (c) the
consummation of the other transactions contemplated hereby or thereby on the relevant dates therefor will (i) contravene any
applicable provision of any material Applicable Law of any Governmental Authority or the policies of the CSE, (ii) 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 any Credit Party (other
than Liens created under the Credit Documents) pursuant to, (A) the terms of any material indenture, loan agreement, lease
agreement, mortgage or deed of trust, or (B) any other Material Contract of any Consolidated Company, in the case of any of
clauses (A) and (B) to which any Credit Party is a party or by which it or any of its property or assets is bound or
(iii) violate any provision of the Organization Documents or Permit of any Credit Party, except with respect to any conflict,
breach or contravention or default (but not creation of Liens) referred to in clause (ii), to the extent that such conflict, breach,
contravention or default could not reasonably be expected to have a Material Adverse Effect.
SECTION 7.04. Litigation,
Labor Controversies, Etc. There is no pending or, to the knowledge of any Credit Party, threatened, litigation, action, proceeding
or labor controversy (including strikes, lockouts or slowdowns against the Credit Parties or any of their respective Subsidiaries pending
or, to the knowledge of any Credit Party, threatened) (a) which could reasonably be expected to have a Material Adverse Effect,
(b) which purports to affect the legality, validity or enforceability of any Credit Document or the Transactions or (c) relating
to any Indebtedness or purported Indebtedness of any Credit Party or any Subsidiary. There is no outstanding judgment rendered by any
court or tribunal against any Credit Party or any Subsidiary. Except as set forth on Schedule 7.04, there are no actions or proceedings
pending, or to the knowledge of any Credit Party threatened, against any Credit Party before any court or administrative agency in which
amounts in dispute exceed $25,000 as of the Closing Date, the Third Amendment Effective Date, the Third Amendment Initial Funding Date,
the Fifth Amendment Date or,
the Sixth Amendment
Date or the Tenth Amendment Date, and no Credit Party has any knowledge or belief or
any pending, threatened or imminent governmental investigations or claims, complaints, actions or prosecutions involving any Credit Party
as of the Closing Date, the Third Amendment Effective Date, the Third Amendment Initial Funding Date, the Fifth Amendment Date or,
the Sixth Amendment Date or
the Tenth Amendment Date.
SECTION 7.05. Use
of Proceeds; Regulations U and X. The proceeds of the Loans are intended to be and shall be used solely for the purposes set forth
in and permitted by Section 8.09. No Credit Party is engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock, and no proceeds of the Loans will be used to purchase or carry margin stock or otherwise for a purpose which violates,
or would be inconsistent with Regulation U or Regulation X.
SECTION 7.06. Approvals,
Consents, Etc. No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority, the
CSE or other Person, and no consent or approval under any contract or instrument (other than (a) 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, (b) the filing of UCC financing statements, PPSA registrations and other equivalent
filings for foreign jurisdictions, and (c) the filings or other actions necessary to perfect Liens under the Credit Documents) is
required for the consummation of the Transactions or the due execution, delivery or performance by any Credit Party of any Credit Document
to which it is a party, or for the due execution, delivery or performance of the Credit Documents, in each case by any of the Credit
Parties party thereto. 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 any of their respective Subsidiaries of their Obligations under the Credit Documents.
SECTION 7.07. Investment
Company Act. No Credit Party is, or will be after giving effect to the Transactions and the transactions contemplated under the Credit
Documents, an “investment company” or a company “controlled” by a Person required to be registered as an “investment
company”, within the meaning of the Investment Company Act of 1940.
SECTION 7.08. Accuracy
of Information.
(a) None
of the factual information and data (taken as a whole) at any time furnished by any Credit Party, any of their respective Subsidiaries
or any of their respective authorized representatives in writing to any Agent or any Lender (including all information contained in the
Credit Documents) for purposes of or in connection with this Agreement or any of the Transactions contains any untrue statement of a
material fact or omits to state any material fact necessary to make such information and data (taken as a whole) not materially misleading,
in each case, at the time such information was provided in light of the circumstances under which such information or data was furnished;
provided that, to the extent any such information was based upon or constitutes a forecast or projection, the Credit Parties represent
only that the Credit Parties acted in good faith and utilized assumptions believed to be reasonable at the time made and due care in
the preparation of such information, it being understood that forecast and projections are subject to uncertainties and contingencies
and no assurance can be given that any forecast or projection will be realized.
(b) All
pro forma financial information provided to Administrative Agent were prepared in good faith based upon assumptions believed by the Credit
Parties to be reasonable at the time made, it being recognized by Administrative Agent and the Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ
from the projected results and such differences may be material.
(c) As
of the Closing Date, the Third Amendment Effective Date, the Third Amendment Initial Funding Date, the Fifth Amendment Date and,
the Sixth Amendment Date
and the Tenth Amendment Date, the information included in the Beneficial Ownership Certification
provided on or prior to the Closing Date to any Lender in connection with this Agreement is true and correct in all respects.
SECTION 7.09. Financial
Condition; Financial Statements. The tax returns and financial statements delivered to Administrative Agent present fairly in all
material respects the financial position and results of operations of Parent and its Subsidiaries at the respective dates of such information
and for the respective periods covered thereby, subject in the case of unaudited financial information, to changes resulting from normal
year-end audit adjustments and to the absence of footnotes. The tax returns, financial statements and all of the balance sheets, all
statements of income and of cash flow and all other financial information furnished pursuant to Section 8.01 have been and
will for all periods following the Closing Date be prepared in accordance with GAAP consistently applied. All of the financial information
to be furnished pursuant to Section 8.01 will present fairly in all material respects the financial position and results
of operations of Parent and its Subsidiaries at the respective dates of such information and for the respective periods covered thereby,
subject in the case of unaudited financial information, to changes resulting from normal year-end audit adjustments and to the absence
of footnotes. None of the Credit Parties or any of their respective Subsidiaries has any Indebtedness or other material obligations or
liabilities, direct or contingent that, either individually or in the aggregate, has had or would reasonably be expected to have, a Material
Adverse Effect.
SECTION 7.10. Tax
Returns and Payments. Each Credit Party and its Subsidiaries has timely filed or caused to be timely filed all material Tax returns
and reports required to have been filed (and all such Tax returns are true, complete and correct in all material respects) and has paid
or caused to be paid all material Taxes required to have been paid by it that are due and payable, except Taxes (or any requirement to
file Tax returns with respect thereto) that are being contested in good faith by appropriate proceedings and for which the Credit Party
or such Subsidiary, as applicable, has set aside on its books adequate reserves in accordance with GAAP. There are no proposed or pending
tax assessments, deficiencies, audits or other proceedings with respect to any material amount of Taxes. None of the Credit Parties nor
any of their Subsidiaries has ever “participated” in a “reportable transaction” within the meaning of Section 1.6011-4
of the Treasury Regulations. None of the Credit Parties nor any of their Subsidiaries is a party to any tax sharing or similar agreement.
No Lien has been filed and no material claim is being asserted, with respect to any such Tax, fee, or other charge.
SECTION 7.11. Benefit
Plans.
(a) A
complete and accurate list of all multiemployer plans, pension plans or other benefit plans established by, maintained by or contributed
to by each Credit Party is set forth on Schedule 7.11.
(b) No
Reportable Event or Prohibited Transaction, as each such term is defined in ERISA, has occurred or is reasonably expected to occur, and
no US Credit Party has failed to meet the minimum funding requirements of ERISA.
(c) No
Credit Party sponsors, contributes to or administers any Canadian Pension Plans. Except as would not reasonably be expected to have a
Material Adverse Effect: (i) all obligations of each Credit Party (including fiduciary, contribution, funding, investment and administration
obligations) required to be performed in connection with any employee benefit plans and any funding agreements therefor under the terms
thereof and applicable statutory and regulatory requirements, have been performed or satisfied in a timely and proper fashion and in
compliance with Applicable Law and the terms of the applicable employee benefit plan; (ii) there have been no improper withdrawals
or applications of the assets of any Credit Party’s employee benefit plans; (iii) there are no outstanding disputes concerning
the assets or liabilities of any Credit Party’s employee benefit plans; and (iv) no Credit Party has a contingent liability
with respect to any post-employment or post-retirement benefits under an employee benefit plans and all post-employment and post-retirement
liabilities, if any, under any employee benefit plans have been properly identified in the financial statements of the Credit Parties.
SECTION 7.12. Subsidiaries.
None of the Credit Parties has any Subsidiaries other than the Subsidiaries listed on Schedule 7.12. Schedule 7.12 sets
forth (a) a list of the Capital Stock issued by each Credit Party and each Subsidiary thereof, and the legal name and jurisdiction
of formation of each Subsidiary if such Subsidiary is not a party to the Security Agreement, (b) the number of shares of each class
of Capital Stock of such Credit Party or such Subsidiary that is outstanding, (c) for Parent, all owners of at least five percent
(5%) of the Parent’s Capital Stock, calculated on an as-converted, issued-and-outstanding basis, (d) for each other Credit
Party and each Subsidiary, the record and beneficial owners of such Capital Stock, (e) the percentage of outstanding shares or units
of each class owned (directly or indirectly) by such owners and (f) whether such Capital Stock is certificated or non-certificated.
No Consolidated Company owns any Capital Stock in Arizona Natural or Red Barn.
SECTION 7.13. Intellectual
Property; Licenses, Etc. Each Credit Party and each of its Subsidiaries owns, or possesses the right to use, all of the trademarks,
service marks, trade names, Internet domain names, copyrights and copyrightable works, patents, inventions, trade secrets, know-how,
proprietary computer software, franchises, intellectual property licenses and other intellectual property rights, including all registrations
and applications to register any of the foregoing and all rights to sue or recover at law or in equity for any past, present or future
infringement, misappropriation, dilution, violation or other impairment thereof (collectively, the “IP Rights”)
that are necessary for the operation of their respective businesses. Except as specifically set forth on Schedule 7.04, the conduct
and operations of the businesses of each Credit Party and each of its Subsidiaries do not infringe, misappropriate, dilute, or otherwise
violate in any material respect any intellectual property owned by any other Person, no other Person has challenged in writing or questioned
any right, title or interest of any Credit Party or any of its Subsidiaries in any IP Rights of such Credit Party or Subsidiary, and
no Credit Party or Subsidiary thereof has received a written challenge from any other Person contesting the use of any IP Rights owned
by such Credit Party or Subsidiary or the validity or enforceability of such IP Rights. Except as specifically set forth on Schedule
7.04, no claim or litigation regarding any of the foregoing is pending or, to the knowledge of such Credit Party threatened. Schedule
7.13 is a complete and accurate list of (i) all IP Rights registered or pending registration with the United States Copyright
Office or the United States Patent and Trademark Office and owned by each Credit Party and each of its Subsidiaries as of the Closing
Date, the Third Amendment Initial Funding Date, the Fifth Amendment Date and,
the Sixth Amendment
Date and the Tenth Amendment Date and (ii) all material license agreements or similar arrangements granting IP Rights
of another Person to any Credit Party or any of its Subsidiaries, other than software license agreement for “off-the-shelf”
or “click-through” agreements. As of the Closing Date, the Third Amendment Initial Funding Date, the Fifth Amendment Date
and,
the Sixth Amendment
Date and the Tenth Amendment Date, none of the IP Rights owned by any Credit Party or any of its Subsidiaries is subject to
any licensing agreement, other than (i) non-exclusive licenses granted to customers in the ordinary business, or (ii) except
as set forth on Schedule 7.13.
SECTION 7.14. Environmental
Warranties.
(a) Except
as set forth in Schedule 7.14:
(i) The
Credit Parties, their Subsidiaries and their respective businesses, operations and Real Property are and have at all times during the
Credit Parties’ or their Subsidiaries’ ownership, lease or operation thereof been in material compliance with, and the Credit
Parties and their Subsidiaries have no material liability under, any applicable Environmental Law.
(ii) The
Credit Parties and their Subsidiaries have obtained all material permits, licenses, certificates or authorizations required under Environmental
Law (collectively, “Environmental Permits”) and necessary for the conduct of their businesses and operations,
and the ownership, operation and use of their Real Property. The Credit Parties and their Subsidiaries are in material compliance with
the terms and conditions of such Environmental Permits, and all such Environmental Permits are valid and in good standing.
(iii) There
has been no Release or threatened Release or any handling, management, generation, treatment, storage or disposal of Hazardous Materials
in, on, at, under, to, or from any Real Property presently or, to the knowledge of any Credit Party, formerly owned, leased or operated
by any of the Credit Parties, their Subsidiaries or their respective predecessors in interest that has resulted in, or is reasonably
expected to result in, material liability or obligations by any of the Credit Parties under Environmental Law or result in a material
Environmental Claim.
(iv) There
is no material Environmental Claim pending or, to the knowledge of the Credit Parties, threatened against any of the Credit Parties or
their Subsidiaries, or relating to the Real Property currently or formerly owned, leased or operated by any of the Credit Parties or
their Subsidiaries or relating to the operations of the Credit Parties or their Subsidiaries, and, to the knowledge of the Credit Parties,
there are no actions, activities, circumstances, conditions, events or incidents that are reasonably likely to form the basis of a material
Environmental Claim.
(v) No
person with an indemnity, contribution or other obligation to any of the Credit Parties or their Subsidiaries relating to compliance
with or liability under Environmental Law is in default with respect to any such indemnity, contribution or other obligation.
(vi) No
Real Property owned, leased or operated by the Credit Parties or their Subsidiaries and, to the knowledge of the Credit Parties, no Real
Property or facility formerly owned, leased or operated by any of the Credit Parties or any of their predecessors in interest is (i) listed
or proposed for listing on the National Priorities List as defined in and promulgated pursuant to CERCLA or (ii) listed on the Comprehensive
Environmental Response, Compensation and Liability Information System promulgated pursuant to CERCLA or (iii) included on any similar
list maintained by any governmental or regulatory authority that indicates that any Credit Party or Subsidiary has or may have an obligation
to undertake investigatory or remediation obligations under applicable Environmental Laws.
(vii) No
Lien has been recorded or, to the knowledge of any Credit Party, threatened under any Environmental Law with respect to any Real Property
of the Credit Parties or their Subsidiaries.
(b) None
of the matters, individually or in the aggregate, disclosed in Schedule 7.14 could reasonably be expected to have a Material Adverse
Effect.
(c) The
Credit Parties and their Subsidiaries have made available to Administrative Agent all material reports, assessments, audits, studies
and investigations in the possession, custody or control of the Credit Parties and their Subsidiaries concerning Environmental Claims
or compliance with or liability or obligation under Environmental Law, including those concerning the condition of the Real Property
or the existence of Hazardous Materials at Real Property or facilities formerly owned, operated, leased or used by any of the Credit
Parties, their Subsidiaries or their predecessors-in-interest.
SECTION 7.15. Ownership
of Properties. Set forth on Schedule 7.15 is a list of all of the Real Property owned or leased by any of the Credit
Parties as of the Closing Date, the Third Amendment Initial Funding Date, the Fifth Amendment Date and,,the
Sixth Amendment Date
and the Tenth Amendment Date, indicating in each case whether the respective
property is owned or leased, the identity of the owner or lessor and the location of the respective property. Each Credit Party owns
(a) in the case of owned Real Property, good and valid fee simple title to such Real Property, (b) in the case of
owned personal property, good and valid title to such personal property, and (c) in the case of leased Real Property or
material leased personal property, valid and enforceable (except as may be limited by bankruptcy, insolvency, examinership,
moratorium, fraudulent conveyance or other laws applicable to creditors’ rights generally and by generally applicable
equitable principles, whether considered in an action at law or in equity) leasehold interests (as the case may be) in such leased
property, in each case, free and clear in each case of all Liens or claims, except for Permitted Liens.
SECTION 7.16. No
Default. None of the Credit Parties or any of their respective Subsidiaries is in default or material breach under or with respect
to, or a party to, any Contractual Obligation that could, either individually or in the aggregate, have a Material Adverse Effect. On
the Closing Date, the Third Amendment Effective Date, the Third Amendment Initial Funding Date, the Fifth Amendment Date and,
the Sixth Amendment
Date and the Tenth Amendment Date, after giving effect to the Transactions, none of the
Credit Parties or any of their respective Subsidiaries is in default under or with respect to any Contractual Obligation in respect of
Indebtedness or purported Indebtedness.
SECTION 7.17. Solvency.
On the Closing Date, the Third Amendment Effective Date, the Third Amendment Initial Funding Date, the Fifth Amendment Date and,
the Sixth Amendment Date, the
Tenth Amendment Date and November 7, 2024, after giving effect to the Transactions
and the other transactions related thereto, the Consolidated Companies are Solvent.
SECTION 7.18. Locations
of Offices, Records and Collateral. The address of the principal place of business and chief executive office of each Credit Party
is, and the books and records of each Credit Party and all of its Chattel Paper (as defined in the UCC) and records of Accounts (as defined
in the UCC) are maintained exclusively in the possession of such Credit Party at, the address of such Credit Party specified in Schedule
7.18 (or, after the Third Amendment Initial Funding Date, at such other address permitted by Section 4.3(a)(i) of the U.S.
Security Agreement). Schedule 7.15 specifies all Real Property of each Credit Party and indicates whether each location specified
therein is leased or owned by such Credit Party. Except as otherwise agreed by Administrative Agent, each leased location of a Credit
Party that is leased from Innovative Industrial Properties, Inc. or an Affiliate thereof shall be subject to a Collateral Access
Agreement to be provided by the landlord of such leased location in favor of Collateral Agent.
SECTION 7.19. Compliance
with Laws and Permits; Authorizations.
(a) Each
Credit Party and each of its Subsidiaries (a) is in material compliance with all Applicable Laws and Permits, including all applicable
U.S. State Cannabis Laws and (b) has all requisite governmental licenses, Permits (including the Regulatory Licenses specified on
Schedule 7.19), authorizations, consents and approvals to operate its business as currently conducted, except in such instances
in which such requirement of Applicable Laws, Permits, government licenses, authorizations or approvals are being contested in good faith
by appropriate proceedings diligently conducted. No Credit Party has received any written notice that is outstanding or unresolved to
the effect that its operations are not in material compliance with any Environmental Law or Permit or are the subject of any investigation
by any Governmental Authority evaluating whether any cleanup or other action is needed to respond to a Release or impose further controls
on any existing discharge of Hazardous Materials to the environment.
(b) No
Credit Party, nor any Subsidiary, nor, to the knowledge of the Credit Parties and their Subsidiaries, any director, officer, employee,
agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by any Person that is (i) currently
the subject or target of any Sanctions, (ii) included on OFAC’s List of Specially Designated Nationals or any similar list
enforced by any other relevant sanctions authority or (iii) located, organized or resident in a Designated Jurisdiction. No Credit
Party is engaged in any Restricted Cannabis Activities.
(c) The
Credit Parties and their Subsidiaries have conducted their business in compliance with Anti-Corruption Laws and have instituted and maintained
policies and procedures designed to promote and achieve compliance with such laws.
SECTION 7.20. No
Material Adverse Effect. Since December 31, 2019, (a) there has been no Material Adverse Effect, and (b) there has
been no circumstance, event or occurrence, and no fact is known to the Credit Parties that could reasonably be expected to result in
a Material Adverse Effect.
SECTION 7.21. Contractual
or other Restrictions. Other than the Credit Documents, as set forth in Schedule 7.21 and to the extent permitted by Section 9.11,
no Credit Party or any of its Subsidiaries is a party to any agreement or arrangement or subject to any Applicable Law that limits its
ability to pay dividends to, or otherwise make Investments in or other payments to any Credit Party, that limits its ability to grant
Liens in favor of Collateral Agent or that otherwise limits its ability to perform the terms of the Credit Documents. Set forth on Schedule
7.21 is a complete and accurate list of all Governmental Authorities regulating the cultivation, processing or sale of cannabis with
which any Credit Party makes any regulatory or administrative filings.
SECTION 7.22. Collective
Bargaining Agreements; Officers. Set forth on Schedule 7.22 is a complete and accurate list of (a) all collective bargaining
or similar agreements between or applicable to any Credit Party or any of its Subsidiaries and any union, labor organization or other
bargaining agent in respect of the employees of any Credit Party or any of its Subsidiaries and (b) all executive officers, directors
and managers, as applicable, of the Credit Parties as of the Third Amendment Initial Funding Date.
SECTION 7.23. Insurance.
The properties of each Credit Party are insured as required by Section 8.03. As of the Closing Date, the Third
Amendment Effective Date, the Third Amendment Initial Funding Date, the Fifth Amendment Date and, the
Sixth Amendment Date
and the Tenth Amendment Date, all premiums with respect thereto that are due and payable have been duly paid and no
Credit Party has received or has knowledge of any notice of violation or cancellation thereof and each Credit Party has complied in
all material respects with the requirements of such policy.
SECTION 7.24. Evidence
of other Indebtedness. Schedule 7.24 is a complete and correct list of each credit agreement, loan agreement, indenture, purchase
agreement, guarantee, letter of credit or other arrangement providing for or otherwise relating to any Indebtedness or any extension
of credit (or commitment for any extension of credit) to, any Credit Party or Subsidiary outstanding on the Closing Date, the Third Amendment
Initial Funding Date, the Fifth Amendment Date and,
the Sixth Amendment
Date and the Tenth Amendment Date which will remain outstanding after the Third Amendment
Initial Funding Date (other than this Agreement and the other Credit Documents), in each case, in excess of $250,000 and the aggregate
principal or face amount outstanding or that may become outstanding under each such arrangement as of the Closing Date, the Third Amendment
Initial Funding Date, the Fifth Amendment Date and,
the Sixth Amendment
Date and the Tenth Amendment Date and the Tenth Amendment Date is correctly described
in Schedule 7.24. The aggregate principal amount of all Indebtedness of (and all commitments for extensions of credit to) the
Credit Parties and their Subsidiaries which is not disclosed on Schedule 7.24 by reason of the disclosure threshold set forth
in the immediately preceding sentence does not exceed $500,000.
SECTION 7.25. Deposit
Accounts and Securities Accounts. Set forth in Schedule 7.25 is a list as of the Closing Date and, on and after the Third
Amendment Initial Funding Date, the Third Amendment Initial Funding Date of all of the deposit accounts and securities accounts of each
Credit Party, including, with respect to each bank or securities intermediary at which such accounts are maintained by such Credit Party
(a) the name and location of such Person and (b) the account numbers of the deposit accounts or securities accounts maintained
with such Person.
SECTION 7.26. Absence
of any Undisclosed Liabilities. There are no material liabilities of any Credit Party of any kind whatsoever, whether accrued, contingent,
absolute, determined, determinable or otherwise, and there is no existing condition, situation or set of circumstances which could reasonably
be expected to result in any such liabilities, other than those liabilities (a) provided for or disclosed in the most recent financial
statements delivered pursuant to Section 8.01 or (b) that would not, individually or in the aggregate, reasonably be
expected to constitute a Material Adverse Effect.
SECTION 7.27. Material
Contracts and Regulatory Matters.
(a) Schedule
7.27, as updated from time to time pursuant to Section 8.01(i)(viii), sets forth all Material Contracts of the Credit Parties.
As of the Closing Date, the Third Amendment Effective Date, the Third Amendment Initial Funding Date, the Fifth Amendment Date and,
the Sixth Amendment
Date and the Tenth Amendment Date, all Material Contracts are in full force and effect
and no defaults currently exist thereunder.
(b) The
relevant Credit Parties hold the applicable Regulatory License required for such Credit Party to conduct its Business. Each Material
Regulatory License is in full force and effect in all material respects and has not been revoked, suspended, cancelled, rescinded, terminated,
modified and has not expired. There are no pending or threatened actions by or before any Governmental Authority to revoke, suspend,
cancel, rescind, terminate or materially adversely modify any Material Regulatory License.
SECTION 7.28. Anti-Terrorism
Laws. No Credit Party or any Subsidiary is in violation of any Law relating to terrorism or money laundering (collectively, “Anti-Terrorism
Laws”), including the Patriot Act and Executive Order No. 13224 on Terrorism Financing, effective September 24,
2001 (the “Executive Order”). No Credit Party, Subsidiary or agent acting or benefiting in any capacity in
connection with the Loans is (a) a Person that is listed in the Annex to, or is otherwise subject to the provisions of, the Executive
Order, (b) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the Annex to, or is otherwise
subject to the provisions of, the Executive Order, (c) a Person with whom any Lender is prohibited from dealing or otherwise engaging
in any transaction by any Anti-Terrorism Law, (d) a Person who commits, threatens or conspires to commit or supports “terrorism”
as defined in the Executive Order, or (e) a Person that is named as a “specially designated national and blocked person”
on the most current list published by the United States Treasury Department Office of Foreign Asset Control at its official website or
any replacement website or other replacement official publication of such list. No Credit Party or Subsidiary or, to the Credit Parties’
knowledge, other agents acting or benefiting in any capacity in connection with the Loans (i) conducts any business or engages in
making or receiving any contribution of funds, goods or services to or for the benefit of any Person described in the preceding sentence,
(ii) deals in, or otherwise engages in any transaction relating to, any property or interests in any property blocked pursuant to
the Executive Order, or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of
evading or avoiding, or attempts to violate, any of the prohibitions set forth in the Anti-Terrorism Laws.
SECTION 7.29. Conduct
of Business. Parent does not engage in any business other than the direct and indirect ownership of the other Borrowers, the organizational
actions required to maintain its existence and ownership of the other Borrowers and the payment and performance of the Obligations; provided,
however, that Parent may enter into an agreement in connection with the confidential arrangement with another Person that has
been disclosed to Administrative Agent as of the Third Amendment Effective Date. Parent does not directly own any assets other than its
ownership of the other Borrowers. Schedule 7.29 sets forth all Sales Tracking Software of the Credit Parties.
SECTION 7.30. Transactions
with Affiliates. Except as set forth on Schedule 9.10, there are no existing or proposed agreements, arrangements,
understandings or transactions between any Credit Party and any of the officers, members, managers, directors, stockholders,
parents, holders of other Capital Stock, employees or Affiliates (other than Subsidiaries that are Credit Parties) of any Credit
Party or any members of their respective immediate families, and none of the foregoing Persons are directly or indirectly indebted
to or have any direct or indirect ownership, partnership, or voting interest in any Affiliate of any Credit Party or any Person with
which any Credit Party has a business relationship or which competes with any Credit Party.
SECTION 7.31. Canadian
Securities Law Matters.
(a) The
outstanding subordinate voting shares in the share capital of Parent are listed and posted for trading on the CSE.
(b) Parent
is a reporting issuer or the equivalent in each Reporting Jurisdiction and is in compliance with the Applicable Securities Legislation
of each Reporting Jurisdiction and the policies of the CSE and is not included in any list of defaulting reporting issuers maintained
by the securities commission of any Reporting Jurisdiction.
(c) There
is no “material change”, as defined in the Applicable Securities Legislation, relating to Parent that has not been fully
disclosed in accordance with the requirements of the Applicable Securities Legislation and the policies of the CSE.
(d) The
issuance of the Warrant Agreements and Warrant Shares, as applicable, will be exempt from the prospectus requirements of the Applicable
Securities Legislation.
ARTICLE VIII
Affirmative Covenants
The Credit Parties hereby
covenant and agree that on the Closing Date and thereafter, until the Loans, together with interest, Fees and all other Obligations incurred
hereunder (other than Unasserted Contingent Obligations) are paid in full in accordance with the terms of this Agreement:
SECTION 8.01. Financial
Information, Reports, Notices and Information. Any notice, financial statement, report or information required to be furnished pursuant
to any clause of this Section 8.01 may be furnished by posting the contents of such notice, or such financial statement,
report or other information, in a report, notice, proxy statement, registration statement, prospectus, release or other statement on
EDGAR, any successor website maintained by the Securities and Exchange Commission or Parent’s website, and any such notice, financial
statement, report or other information shall be deemed furnished on the date Parent notifies Administrative Agent of such posting. Subject
to the foregoing, the Credit Parties will furnish Administrative Agent and each Lender copies of the following notices, financial statements,
reports or information:
(a) Monthly
Financial Statements. As soon as available and in any event within 30 days after the end of each month for each month during calendar
year 2021, and within 20 days after the end of each month thereafter, unaudited (i) consolidated and consolidating balance sheets
of Parent and its Subsidiaries as of the end of such month, (ii) a consolidated statement of cash flow and (iii) consolidated
and consolidating statements of income of Parent and its Subsidiaries for such month, in each case, including in comparative form (both
in Dollar and percentage terms) the figures for the corresponding month in the preceding fiscal year of Parent and in the then-current
Budget for such fiscal year, if applicable, and year-to-date portion of, the immediately preceding fiscal year of Parent.
(b) Annual
Financial Statements. As soon as available and in any event within 120 days after the end of each fiscal year of Parent, copies of
the consolidated and consolidating balance sheets of Parent and its Subsidiaries, the related consolidated and consolidating statements
of income and the related consolidated statement of cash flows of Parent and its Subsidiaries for such fiscal year, setting forth in
comparative form (both in Dollar and percentage terms) the figures for the immediately preceding fiscal year and in the then-current
Budget for such fiscal year, such consolidated statements audited and certified without qualification, or exception as to the scope of
such audit, by an independent public accounting firm reasonably acceptable to Administrative Agent, together with a management discussion
and analysis (with reasonable detail and specificity) of the results of operations for the fiscal periods reported.
(c) Compliance
Certificates. Concurrently with the delivery of the financial information pursuant to Sections 8.01(a) and 8.01(b),
a Compliance Certificate, executed by an Authorized Officer of Parent, (i) certifying that, to the knowledge of Parent, such financial
information presents fairly in all material respects the financial condition, results of operations and cash flows of Parent and its
Subsidiaries in accordance with GAAP at the respective dates of such information and for the respective periods covered thereby, subject
in the case of unaudited financial information, to changes resulting from normal year-end audit adjustments and to the absence of footnotes,
(ii) showing compliance with the Financial Performance Covenants, and stating that no Default or Event of Default is known to the
Parent to have occurred and be continuing (or, if a Default or an Event of Default has occurred, specifying the details of such Default
or Event of Default and the actions taken or to be taken with respect thereto) and containing the applicable certifications set forth
in Section 7.09 with respect thereto, (iii) in the case of each Compliance Certificate delivered concurrently with the
financial information pursuant to clause (a) above, specifying any change in the identity of the Subsidiaries as at the end of such
fiscal year from the Subsidiaries provided to the Lenders on the Closing Date or the most recent fiscal year, as the case may be, and
(iv) in the case of each Compliance Certificate delivered concurrently with the financial information pursuant to clause (a) above,
including (A) updated Schedules 7.15 and 7.25 (if applicable) and (B) a written supplement substantially in
the form of Schedules 1 through 8, as applicable, to the U.S. Security Agreement, in each case, with respect to any additional assets
and property acquired by any Credit Party after the date hereof, all in reasonable detail.
(d) Bank
Account Information. Concurrently with the delivery of the financial information pursuant to Sections 8.01(a) and 8.01(b),
the Credit Parties will provide Administrative Agent with copies of screenshots or copies of redacted (in a manner reasonably satisfactory
to Administrative Agent) account statements for all deposit accounts and securities accounts of the Credit Parties, other than Excluded
Accounts, along with a certification from the Parent’s chief financial officer as to its authenticity of the information set forth
in such copies.
(e) Additional
Information. With reasonable promptness upon request, (i) such other information regarding the condition, properties or operations
(financial or otherwise), changes in ownership of Capital Stock, and business affairs of any Credit Party or any Subsidiary, or compliance
with the terms of this Agreement, as Administrative Agent or any Lender (through Administrative Agent) may reasonably request and (ii) information
and documentation reasonably requested by Administrative Agent or any Lender for purposes of compliance with applicable “know your
customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation.
(f) Cash
Flow Forecast. On the date that no later than 45 days prior to each of the Tranche Maturity Dates, a cash flow forecast as of such
date.
(g) Budget.
No later than 30 days prior to the commencement of each fiscal year of Parent, commencing with fiscal year 2022, the forecasted consolidated
financial projections for Parent and its Subsidiaries for such fiscal year (on a month-by-month basis) (including projected consolidated
income statements, balance sheets and Capital Expenditures on a month-by-month basis as of the end of such fiscal year, the related consolidated
statements of projected cash flow and projected changes in financial position and a description of the underlying assumptions applicable
thereto), in each case, prepared by management of the Credit Parties in good faith based upon assumptions believed by the Credit Parties
to be reasonable at the time made, consistent in scope with the financial statements provided pursuant to Section 8.01(b),
setting forth the principal assumptions on which such projections are based (such projections, collectively, the “Budget”).
(h) Defaults;
Litigation. As soon as possible and in any event within three Business Days after an Authorized Officer of any Credit Party obtains
knowledge thereof, notice from an Authorized Officer of Parent of (i) the occurrence of any event that constitutes a Default (other
than a Default occurring as a result of a Change in Cannabis Law described in clause (a) or (b) of the definition thereof)
or an Event of Default, which notice shall specify the nature thereof, the period of existence thereof and what action the applicable
Credit Parties propose to take with respect thereto, and (ii) (A) the occurrence of any material adverse development with respect
to any litigation, action, proceeding or labor controversy described in Schedule 7.04 or (B) the commencement of any litigation,
action, proceeding or labor controversy of the type and the materiality described in Section 7.04, and to the extent Administrative
Agent requests, copies of all non-privileged documentation related thereto.
(i) Notices.
The Credit Parties shall promptly (and in no event later than 15 days after an Authorized Officer of any Credit Party obtains knowledge
thereof) provide Administrative Agent with the following:
(i) notice
of any pending or threatened (in writing) litigation, action, proceeding or other controversy which purports to affect the legality,
validity or enforceability of any Credit Document, or any document or instrument referred to in Section 9.08, which notice
shall be signed by an Authorized Officer of Parent and shall specify the nature thereof, and what actions the applicable Credit Parties
propose to take with respect thereto, together with copies of all relevant documentation;
(ii) notice
of the commencement of, or any material development in, any litigation, investigation (formal or informal), document request or proceeding
affecting any Credit Party or any Subsidiary thereof, in which (A) the amount of damages claimed is $500,000 or more, (B) injunctive
or similar relief is or may be sought and which, if adversely determined, would reasonably be expected to have a Material Adverse Effect,
(C) the relief sought is or may be an injunction or other stay of the performance of this Agreement or any other Credit Document
or (D) the SEC or any other Governmental Authority is involved;
(iii) notice
of any pending or threatened (in writing) labor dispute, strike, walkout, or union organizing activity with respect to any employees
of a Credit Party;
(iv) notice
of (i) any default or breach by any Credit Party or Subsidiary under any Material Contract or (ii) any early termination of
any Material Contract or the receipt by any Credit Party or Subsidiary of any notice from the other party to any Material Contract of
such party’s intent to terminate such Material Contract early;
(v) notice
of the discharge or withdrawal or resignation by the Credit Parties’ independent accountants;
(vi) copies
of all amendments or other modifications to a Credit Party’s Organization Documents (to the extent permitted hereunder), or by
such Credit Party to any such Person;
(vii) copies
of all significant written final reports submitted to the Credit Parties by its accountants in connection with each annual, interim or
special audit or review of any type of the financial statements or related internal control systems, including any final comment letters
delivered to management and all responses thereto;
(viii) notice
of the entering into of any Material Contract following the Closing Date, which notice shall include an updated Schedule 7.27
and, if such Material Contract is a Material Regulatory License, an updated Schedule 7.19;
(ix) copies
of all material written communications to and from applicable Governmental Authorities, including the Internal Revenue Service, the Environmental
Protection Agency, and any other Governmental Authority regulating cannabis, regarding notice of enforcement proceedings, complaints,
and matters of similar potential import addressed to any Borrower, any other Credit Party or any Subsidiary thereof or relating to any
Material Regulatory License;
(x) copies
of the results of any facility audit by any Governmental Authority to the extent such results are material and negative;
(xi) a
copy of any warning document, letter or notice from any Governmental Authority that would have a material and negative impact on any
Material Regulatory License or the ability of the Credit Parties to conduct all or any material portion of their business;
(xii) notice
of receipt of any rejection or non-renewal of a Material Regulatory License;
(xiii) copies
of any material notices that any Credit Party receives or delivers in connection with any leased real property; and
(xiv) notice
of any default under an agreement evidencing material Indebtedness owed to or from a Credit Party.
(j) Management
Letters. Promptly upon, and in any event within five Business Days after receipt thereof, copies of all final “management letters”
submitted to any Credit Party by the independent public accountants referred to in Section 8.01(b) in connection with
each audit made by such accountants.
(k) Bankruptcy,
Etc. Immediately upon becoming aware thereof, notice (whether involuntary or voluntary) of the bankruptcy, insolvency, examinership,
reorganization of any Credit Party, or the appointment of any trustee, assignee, receiver or similar estate fiduciary in connection with
or anticipation of any such occurrence, or the taking of any step by any Person in furtherance of any such action or occurrence.
(l) Corporate
Information. Promptly upon, and in any event within 15 days after, becoming aware of any additional corporate or limited liability
company information of the type delivered pursuant to Section 5.01(e), or of any material change to such information delivered
on or prior to the Closing Date or pursuant to this Section 8.01 or otherwise under the Credit Documents, a certificate,
certified to the extent of any change from a prior certification, from an Authorized Officer of such Credit Party notifying Administrative
Agent of such information or change and attaching thereto any relevant documentation in connection therewith.
(m) Other
Information. Promptly upon, and in any event within five Business Days after filing, distributing or publishing thereof, Administrative
Agent shall have been notified in writing by Parent of the posting of all regular, periodic and special reports, registration statements
and prospectuses (other than on Form S-8) that Parent shall render to or file with the Securities and Exchange Commission, the National
Association of Securities Dealers, Inc. or any national securities exchange.
SECTION 8.02. Books,
Records and Inspections. Each of the Credit Parties will, and will cause each of their respective Subsidiaries to, maintain proper
books of record and account, in which entries that are full, true and correct in all material respects and are in conformity with GAAP
(subject to normal year-end adjustments pursuant to the audit required under Section 8.01(b)) consistently applied shall
be made of all material financial transactions and matters involving the assets and business of the Credit Parties or such Subsidiary,
as the case may be. Each of the Credit Parties will, and will cause each of their respective Subsidiaries to, permit Administrative Agent
and its representatives and independent contractors authorized by Administrative Agent to visit and inspect any of its properties, to
examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances
and accounts with the chief executive officer, the chief financial officer, the chief operating officer, the chief administrative officer
or general counsel of Parent, all at the expense of the Credit Parties; provided that such visits or inspections shall be at reasonable
times during normal business hours, upon reasonable advance notice to the Credit Parties, but not more often than one time per year (except
that none of the limitations in this proviso shall apply if an Event of Default then exists); and provided, further, that
each such representative or independent contractor shall agree to keep any information obtained pursuant to any of the foregoing actions
confidential as provided in Section 12.16. Any information obtained by Administrative Agent pursuant to this Section 8.02
may be shared with Collateral Agent or any Lender upon the request of such Secured Party, provided such information shall
be subject to Section 12.16.
SECTION 8.03. Maintenance
of Insurance. The Credit Parties will, and will cause each of their respective Subsidiaries to, at all times maintain in full force
and effect, with insurance companies that the Credit Parties believe (in their reasonable business judgment) are financially sound and
reputable at the time the relevant coverage is placed or renewed, insurance in at least such amounts and against at least such risks
(and with such risk retentions) as deemed reasonably necessary or advisable by Borrowers in their reasonable discretion; and will furnish
to Collateral Agent for further delivery to the Lenders, upon written request from Collateral Agent, information presented in reasonable
detail as to the insurance so carried, including (i) endorsements to (A) all “All Risk” policies naming Collateral
Agent, on behalf of the Secured Parties, as lender loss payee and (B) all general liability and other liability policies naming
Collateral Agent, on behalf of the Secured Parties, as additional insured and (ii) legends providing that no cancellation, material
reduction in amount or material change in insurance coverage thereof shall be effective until at least 30 days (10 days with respect
to failure to pay premium) after written notice to Collateral Agent thereof.
SECTION 8.04. Payment
of Taxes. The Credit Parties will timely pay and discharge, and will cause each of their respective Subsidiaries to timely pay and
discharge, all Taxes, assessments and governmental charges or levies imposed upon them or upon their income or profits, or upon any properties
belonging to it, prior to the date on which such Tax, assessment or governmental charge is due, and all lawful claims that, if unpaid,
could reasonably be expected to become a Lien having priority over Collateral Agent’s Liens (other than Permitted Liens) or an
otherwise material Lien upon any properties of the Credit Parties or any of their respective Subsidiaries; provided that none
of the Credit Parties or any of their respective Subsidiaries shall be required to pay any such Tax, assessment, charge, levy or claim
that is being contested in good faith and by proper proceedings that stays execution and as to which such Credit Party has maintained
adequate reserves with respect thereto in accordance with GAAP.
SECTION 8.05. Maintenance
of Existence; Compliance with Laws, Etc. Each Credit Party will, and will cause its Subsidiaries to, (a) preserve and maintain
in full force and effect its organizational existence (except in a transaction permitted by Section 9.03), (b) preserve
and maintain its good standing under the laws of its state or jurisdiction of incorporation, organization or formation, and each state
or other jurisdiction where such Person is qualified, or is required to be so qualified, to do business as a foreign entity, except to
the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect, and (c) comply in all material
respects with all Applicable Laws, rules, regulations and orders, including compliance with safety regulations applicable to any Borrower
or any of its Subsidiaries.
SECTION 8.06. Environmental
Compliance.
(a) Each
Credit Party will, and will cause its Subsidiaries to: (i) comply in all material respects with all Environmental Laws and Environmental
Permits applicable to their business, operations and Real Property; (ii) obtain and maintain in full force and effect all material
Environmental Permits applicable to its business, operations and Real Property; and (iii) conduct all response, investigation, remediation,
cleanup or monitoring activity required by any applicable Environmental Laws, and in accordance with, the requirements of any Governmental
Authority having jurisdiction and applicable Environmental Laws, unless in the case of this clause (iii) such requirement is being
contested in good faith and by proper proceedings and as to which such Credit Party has maintained adequate reserves with respect thereto
in accordance with GAAP.
(b) Each
Credit Party will, and will cause its Subsidiaries to, do or cause to be done all things required by Environmental Laws to prevent any
Release of Hazardous Materials in, on, at, under, to or from any Real Property owned, leased or operated by any of the Credit Parties
or their Subsidiaries except in full compliance with applicable Environmental Laws or an Environmental Permit, and ensure that there
shall be no Hazardous Materials in, on, at, under or from any Real Property owned, leased or operated by any of the Credit Parties or
their Subsidiaries except those that are present, used, stored, handled and managed in material compliance with applicable Environmental
Laws.
(c) Each
Credit Party will, and will cause its Subsidiaries to, undertake all actions, including response, investigation, remediation, cleanup
or monitoring actions, necessary, at the sole cost and expense of the Credit Parties: (i) to address any Release of Hazardous Materials
in, on, at, under, to or from any Real Property owned, leased or operated by any of the Credit Parties or their Subsidiaries as required
pursuant to Environmental Law or the requirements of any governmental or regulatory authority; (ii) to address as may be required
by Environmental Law any environmental conditions relating to any Credit Party, Subsidiary, or their respective business or operations
or to any Real Property of the Credit Parties or their Subsidiaries; (iii) to keep any Real Property by any of the Credit Parties
or their Subsidiaries free and clear of all Liens and other encumbrances pursuant to any Environmental Law; and (iv) to promptly
notify Administrative Agent in writing of: (1) any material Release or threatened Release of Hazardous Materials in, on, at, under,
to, or from any Real Property owned, leased or operated by any of the Credit Parties or their Subsidiaries, except those that are pursuant
to and in compliance with the terms and conditions of an Environmental Permit, (2) any material non-compliance with, or violation
of, any Environmental Law applicable to any Credit Party or Subsidiary, any Credit Party’s or Subsidiary’s business and any
Real Property owned, leased or operated by any of the Credit Parties or their Subsidiaries, (3) any Lien pursuant to Environmental
Law imposed on any Real Property owned, leased or operated by any of the Credit Parties or their Subsidiaries, (4) any response,
investigation, remediation, cleanup or monitoring activity at any Real Property owned, leased or operated by any of the Credit Parties
or their Subsidiaries required to be undertaken pursuant to Environmental Law, and (5) any notice or other communication received
by any Credit Party from any person or governmental or regulatory authority relating to any material Environmental Claim or material
liability or potential liability of any Credit Party or Subsidiary pursuant to any Environmental Law.
(d) If
a Default caused by reason of a breach of Section 7.14 or this Section 8.06 shall have occurred and is not reasonably
curable within 30 days or shall be continuing for more than 30 days without the Credit Parties commencing activities reasonably likely
to cure such Default, the Credit Parties shall, at the written request of Administrative Agent, (i) provide to Administrative Agent
within 45 days after such request, at the expense of the Credit Parties, an environmental assessment report regarding the matters which
are the subject of such Default, including, where appropriate, any soil or groundwater sampling, prepared by a nationally recognized
environmental consulting firm reasonably acceptable to Administrative Agent and in the form and substance reasonably acceptable to Administrative
Agent and evaluating the presence or absence of Hazardous Materials and the estimated cost of any compliance or response action to address
such Default and findings; (ii) promptly undertake all actions required by applicable Environmental Law to address any non-compliance
with or violation of Environmental Law; (iii) promptly undertake all response actions required by Environmental Laws to address
any recognized environmental conditions identified in the environmental assessment report to the reasonable satisfaction of Administrative
Agent; and (iv) permit Administrative Agent and its representatives to have access to all Real Property and all facilities owned,
leased or operated by any of the Credit Parties and their Subsidiaries which are the subject of such Default for the purpose of conducting
such environmental audits and testing as is reasonably necessary, including subsurface sampling of soil and groundwater, the cost for
which shall be payable by the Credit Parties.
SECTION 8.07. Maintenance
of Properties. Each Credit Party will, and will cause its Subsidiaries to, maintain, preserve, protect and keep its properties and
assets in good working order and condition (ordinary wear and tear excepted and subject to casualty, condemnation and dispositions permitted
pursuant to Section 9.04), and make necessary repairs, renewals and replacements thereto and will maintain and renew as necessary
all licenses, Permits (including the Material Regulatory Licenses) and other clearances necessary to use and occupy such properties and
assets, in each case so that the business carried on by such Person may be properly conducted at all times, except where the failure
to do so would not reasonably be expected to have a Material Adverse Effect.
SECTION 8.08. Additional
Credit Parties. Any direct or indirect Subsidiary formed or acquired after the Closing Date (including by division of any existing
limited liability company pursuant to a “plan of division” under the Delaware Limited Liability Company Act), and any Subsidiary
that is no longer an Excluded Subsidiary pursuant to the terms of the definition thereof, shall be subject to the following requirements:
(a) within
15 calendar days of such event, the Credit Parties will cause to be delivered to Administrative Agent each of the following, as applicable,
in each case reasonably acceptable to Administrative Agent and, as applicable, duly executed by the parties thereto: (i) within
15 calendar days of such event, (A) a Credit Agreement Joinder pursuant to which such Subsidiary shall become, as elected by Administrative
Agent and Required Lenders, a Borrower or a Guarantor, together with other Credit Documents requested by Administrative Agent, including
all Security Documents and other documents requested by Administrative Agent to establish and preserve the Lien of Collateral Agent in
all assets of such Subsidiary; (B) UCC financing statements, Documents (as defined in the UCC) and original collateral (including
pledged Capital Stock, other securities and Instruments (as defined in the UCC)) and such other documents and agreements as may be reasonably
requested by Administrative Agent, all as necessary or desirable to establish and maintain a valid, perfected Lien in all assets in which
such Subsidiary has an interest; and (C) current copies of the Organization Documents of such Subsidiary, resolutions of the board,
other governing body thereof, or appropriate committees thereof (and, if required by such Organization Documents or applicable law, of
the shareholders, members or partners) of such Person authorizing the actions and the execution and delivery of documents described in
this Section 8.08, all certified by an appropriate officer as Administrative Agent may elect, and (ii) within 30 calendar
days of such event, an opinion of counsel to such Subsidiary addressed to Administrative Agent and the Lenders, in form and substance
reasonably acceptable to Administrative Agent. The Credit Parties will promptly pledge to Collateral Agent, for the benefit of the Secured
Parties, (x) all the Capital Stock of each Subsidiary held by a Credit Party, and (y) any promissory notes executed after the
Closing Date evidencing Indebtedness owing to any Credit Party in an amount of $250,000 or more for any one promissory note or $500,000
in the aggregate for all such promissory notes, in each case, to the extent not automatically constituting Collateral under the Security
Agreement; and
(b) the
Credit Parties and each Subsidiary shall otherwise comply with Section 8.10.
SECTION 8.09. Use
of Proceeds. The proceeds of the Loans funded on the Closing Date shall be used (ia)
to pay the transaction fees, costs and expenses incurred directly in connection with the Transactions and (iib)
for any lawful Business purpose of any Credit Party, including general working capital purposes, in each case, to the extent consistent
with the terms of the Credit Documents and Applicable Law. The remaining Loans to be funded on the Subsequent Funding Dates (if any)
shall be used for any lawful Business purpose of any Credit Party, including general working capital purposes, in each case, to the extent
consistent with the terms of the Credit Documents and Applicable Law; provided, however, that (xw)
a portion of the Dispensary Loans shall be used to finance the Charm City Acquisition, (xy)
the Delayed Draw Term Loans advanced pursuant to Sections 2.01(c) and 2.01(d) shall be used solely for working
capital and other general corporate purposes and,,
(zy)
the Convertible Note Loans advanced pursuant to Section 2.01(f) or 2.01(g) shall
be used solely (i) on May 1, 2023, to pay the fees, costs and expenses incurred directly in connection with the Transactions
contemplated by the Fifth Amendment, the Sixth Amendment or that are outstanding as of the Fifth Amendment Date or,
the Sixth Amendment
Date or the Tenth Amendment Date, and (ii) for working capital and general corporate purposes, and (z) the 2024 Convertible
Note Loans advanced pursuant to Section 2.01(g) shall be used solely (i) on November 7, 2024, to pay the fees, costs
and expenses incurred directly in connection with the Transactions contemplated by the Tenth Amendment
Date, and (ii) for working capital and general corporate purposes, in each case, to the extent consistent with the terms of the
Credit Documents and Applicable Law.
SECTION 8.10. Further
Assurances.
(a) The
Credit Parties will execute any and all further documents, financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents),
which may be required under any Applicable Law, or which Collateral Agent may reasonably request, in order to grant, preserve, protect
and perfect the validity, enforceability, priority and non-avoidability of the security interests created or intended to be created by
any Credit Document, all at the sole cost and expense of Borrowers.
(b) Subject
to any applicable limitations set forth in any applicable Security Document, if any Credit Party acquires any fee simple interest in
Real Property with a fair market value in excess of, individually or when aggregated with all other unencumbered fee simple interests
in Real Property of the Credit Parties, $2,500,000, Borrowers will notify Collateral Agent and the Lenders thereof promptly (and in any
event within five Business Days) and will cause such assets to be subjected to a Lien securing the applicable Obligations and will take,
and cause the other Credit Parties to take, such actions as shall be necessary or reasonably requested by Collateral Agent to grant or
perfect such Liens consistent with the applicable requirements of the Security Documents, including actions described in Section 8.11,
all at the sole cost and expense of Borrowers; provided that in the case of leasehold interests, no Mortgage shall be required
except to the extent requested by Administrative Agent in its reasonable discretion. Any Mortgage delivered to Collateral Agent in accordance
with the preceding sentence shall be furnished to Collateral Agent within 45 days of the acquisition of such Real Property accompanied
by (i) a policy or policies (or unconditional binding commitment thereof) of title insurance issued by a nationally recognized title
insurance company insuring the Lien of such Mortgage as a valid Lien (with the priority described therein) on the Real Property described
therein, free of any other Liens except as expressly permitted by Section 9.02 and any survey exceptions, together with such
endorsements and reinsurance as Collateral Agent may reasonably request, or, if unavailable in the determination of Agents in their discretion,
a title opinion or such other substitute for such title insurance policy as determined by Agents in their reasonable discretion, (ii) a
current ALTA survey of such Real Property, reasonably satisfactory in form and substance to Collateral Agent and, if any, the title insurance
company issuing the title policies (or unconditional binding commitments thereof) referenced in clause (i) above, which is prepared
by a licensed surveyor reasonably satisfactory to Collateral Agent, (iii) a flood zone determination issued by a national certification
agency to Collateral Agent indicating the flood zone for such Real Property, together with evidence that the mortgagee under such Mortgage
carries flood insurance reasonably satisfactory to Collateral Agent if such Real Property is located in a special flood hazard area,
(iv) a zoning report and environmental site assessment reflecting such Real Property’s compliance with Applicable Law and
(v) if requested by Collateral Agent, an opinion of local counsel to the applicable Credit Party(ies) in form and substance reasonably
satisfactory to Collateral Agent.
(c) Notwithstanding
anything herein to the contrary, if Collateral Agent determines that the cost of creating or perfecting any Lien on any property is excessive
in relation to the practical benefits afforded to the Lenders thereby, then such property may be excluded from the Collateral for all
purposes of the Credit Documents.
SECTION 8.11. Collateral
Access Agreements. The Credit Parties shall obtain a Collateral Access Agreement for any leased location to the extent contemplated
by Section 7.18.
SECTION 8.12. Bank
Accounts.
(a) Subject
to Section 8.17, the Credit Parties shall establish and deliver to Collateral Agent a Control Agreement with respect to each
of their respective securities accounts, deposit accounts and investment property, each of which is set forth on Schedule 7.25,
other than those accounts which are Excluded Accounts. The Credit Parties shall not allow any Collections to be deposited to any accounts
other than those listed on Schedule 7.25 which are subject to a Control Agreement; provided that so long as no Event of Default
has occurred and is continuing, the Credit Parties may establish new deposit accounts, commodities accounts or securities accounts so
long as, prior to or concurrently with the time such account is established: (i) the Credit Parties have delivered to Agents an
amended Schedule 7.25 including such account and (ii) the Credit Parties have delivered to Collateral Agent a Control Agreement
with respect to such account to the extent such account is not an Excluded Account.
(b) Each
Control Agreement shall provide, among other things, that (i) upon notice (a “Notice of Control”) from
Collateral Agent, the bank, securities intermediary or other financial institution party thereto will comply with instructions of Collateral
Agent directing the disposition of funds or other financial assets in the account without further consent by the applicable Credit Party;
provided that Collateral Agent agrees not to issue a Notice of Control unless an Event of Default has occurred and is then continuing,
and (ii) the bank, securities intermediary or other financial institution party thereto has no rights of setoff or recoupment or
any other claim against the account subject thereto, other than for payment of its service fees and other charges directly related to
the administration of such account and for returned checks or other items of payment. In the event Collateral Agent issues a Notice of
Control under any Control Agreement, all Collections or other amounts subject to such Control Agreement shall be transferred as directed
by Collateral Agent and used to pay the Obligations in the manner set forth in Section 4.02(d).
(c) If,
notwithstanding the provisions of this Section 8.12, after the occurrence and during the continuance of an Event of Default,
the Credit Parties receive or otherwise have dominion over or control of any Collections or other amounts, the Credit Parties shall hold
such Collections and amounts in trust for Collateral Agent and shall not commingle such Collections with any other funds of any Credit
Party or other Person or deposit such Collections in any account other than those accounts set forth on Schedule 7.25.
SECTION 8.13. Sanctions;
Anti-Corruption Laws.
(a) No
Credit Party shall (or shall permit any Subsidiary to) directly or indirectly, use any Loan or the proceeds of any Loan, or lend, contribute
or otherwise make available such Loan or the proceeds of any Loan to any Person, to fund any activities of or business with any Person,
or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result
in a violation by any Person (including any Person participating in the transaction, whether as Lender, Agent, Arranger or otherwise)
of Sanctions.
(b) No
Credit Party shall (or shall permit any Subsidiary to) directly or indirectly, use any Loan or the proceeds of any Loan for any purpose
which would breach any Anti-Corruption Law.
(c) Notwithstanding
the foregoing, nothing herein shall require any Credit Party organized under the laws of Canada or a subdivision thereof or any of their
Subsidiaries which are organized or incorporated under the law of Canada or any subdivision thereof (each such party, a “Canadian
Party”), to take action or refrain from taking any action, to the extent such provisions would otherwise contravene, or
require any notification to the Attorney General of Canada under the Foreign Extraterritorial Measures (United States) Order, 1992,
by any such Canadian Party and this Agreement, including Sections 7.19 and Section 8.14 shall be limited and interpreted
accordingly.
SECTION 8.14. Regulatory
Matters. The Credit Parties shall ensure that all Material Regulatory Licenses remain in full force and effect in all material respects.
SECTION 8.15. Annual
Lender Meeting. Borrowers will participate in a meeting of the Lenders not more frequently than once each year, subsequent to the
filing of Parent’s annual report on Form 10-K, to be held via teleconference at a time selected by Administrative Agent and
reasonably acceptable to the Lenders and Parent. The purpose of this meeting shall be to present the Credit Parties’ previous fiscal
years’ financial results.
SECTION 8.16. Canadian
Securities Law Matters. Parent shall (a) maintain the listing and posting for trading of its subordinate voting shares on the
CSE unless such Capital Stock is listed and posting for trading on the New York Stock Exchange or Nasdaq, in which case it shall maintain
such listing and posting on such exchange, (b) maintain its status as a “reporting issuer”, or, if Parent’s Capital
Stock is listed and posting for trading on the New York Stock Exchange or Nasdaq, the equivalent thereof in the United States, and, in
each case not in default (beyond any notice and cure period) of the requirements of the Applicable Securities Legislation in the Reporting
Jurisdictions, and (c) obtain the acceptance of the CSE for the listing and posting of the Warrant Shares if required under the
policies of the CSE unless Parent’s Capital Stock is listed and posting for trading on the New York Stock Exchange or Nasdaq, in
which case it shall obtain the acceptance of such exchange for the listing and posting of the Warrant Shares if required under the policies
of such exchange.
SECTION 8.17. New
York Disposition. On or before July 31, 2025, either (a) Borrowers shall have completed the New York Disposition or (b) Vireo
NY’s operations at the premises located at 256 County Route 117 in Perth, New York shall have generated positive Consolidated EBITDA
for two consecutive months. Parent shall provide updates of the status of the New York Disposition to Administrative Agent, in form and
substance satisfactory to Administrative Agent, from time to time as requested by Administrative Agent.
SECTION 8.18. Triggering
Event. If a Triggering Event has occurred and is continuing, (a) if Agent, Lenders and Borrowers mutually agree that a course
of action exists to change or remove the facts and circumstances that created such Triggering Event, Parent and Vireo Minnesota shall
take all steps reasonably necessary to achieve such course of action within 45 days of the occurrence of such Triggering Event (or such
longer period of time to which Administrative Agent agrees in its discretion), or (b) if Agent, Lenders and Borrowers do not mutually
agree that such a course of action exists within such 45-day period, Parent shall, at Required Lenders’ request (in their sole
discretion), sell, in one transaction or multiple transactions, all of Borrowers’ assets in Minnesota to a non-Affiliate of Borrowers
pursuant to a sale of such assets, a sale of the Capital Stock of Vireo Minnesota or a combination of the foregoing (each such sale,
a “Minnesota Disposition”). If Required Lenders have made such request, Parent shall use commercially reasonable
efforts to consummate the Minnesota Dispositions as soon as possible after the last day of such 45-day period. Parent shall provide updates
of the status of each Minnesota Disposition to Administrative Agent, in form and substance satisfactory to Administrative Agent, from
time to time as requested by Administrative Agent.
SECTION 8.19. Meetings.
(a) Parent
shall hold, in person, by phone or otherwise, regular meetings of its Board of Directors on at least four occasions during each calendar
year, and minutes of such meetings shall be prepared and maintained as a part of the permanent records of Parent.
(b) In
addition to the foregoing, subject to applicable laws, regulations and rules of the CSE and the Organization Documents of
Parent, (i) Parent shall use its best efforts to reduce the size of its Board of Directors from seven members to five members
on or before the date that is four months after the Closing Date and (ii) the appropriate Authorized Officers or members of the
Board of Directors of Parent shall propose that the Board of Directors of Parent be reduced from seven members to five members at
each meeting of the shareholders of Parent until the Board of Directors of Parent is so reduced.
SECTION 8.20. Post-Closing
Matters.
(a) Parent
shall, with respect to resales of (x) any Warrant Shares and (y) any Subordinate Voting Shares of Parent issued or reserved
for issuance in connection with any conversion of the Convertible Note Loans, use commercially reasonable efforts to (i) prepare
and file a registration statement, in form and substance reasonably satisfactory to Administrative Agent (each, a “Registration
Statement”), with respect to such Capital Stock with the SEC within 45 days of the Fifth Amendment Date (or such later
date to which Administrative Agent agrees in its discretion), (ii) cause such Registration Statement to become effective within
135 days after the initial filing date unless the SEC notifies Parent that it does not intend to review such Registration Statement,
in which case Parent shall cause such Registration Statement to become effective within 15 days after receipt of such notification, and
(iii) maintain the effectiveness of such Registration Statement at all times until the earlier of (A) the date on which all
of shares of such Capital Stock shall have been sold and (B) the first date on which all of the holders of such Capital Stock can
sell all of such Capital Stock under Rule 144 under the Securities Act without limitation as to the manner of sale or the amount
of such securities that may be sold and without the requirement for Parent to be in compliance with the current public information required
under Rule 144(c)(1) under the Securities Act (or Rule 144(i)(2) under the Securities Act, if applicable); provided,
however, that use of such Registration Statement may be suspended as provided in the Representation Letters.
(b) Subject
to applicable laws, applicable regulations and applicable rules of the CSE and the Organization Documents of Parent, Kyle Kingsley
shall convert his super-majority equity interests in Parent into Subordinate Voting Shares of Parent on or before July 31, 2023
(or such later date to which Administrative Agent agrees in its discretion).
(c) On
or before June 14, 2023 (or such later date to which Administrative Agent agrees in its discretion), a duly executed Control Agreement
for each of the deposit accounts and securities accounts of the Credit Parties (other than Excluded Accounts and any deposit accounts
maintained at Southwest Capital Bank in New Mexico) for which Collateral Agent has not received a Control Agreement.
(d) Concurrently
with the first issuance of Subordinated Voting Shares of Parent pursuant to any Loan Document, Sangra Moller LLP, counsel to the Parent,
shall deliver an opinion addressed to Agents and the other Secured Parties and shall be in form and substance reasonably satisfactory
to Administrative Agent and covering such matters discussed by Sangra Moller LLP and counsel to Agents on or prior to the Sixth Amendment
Date.
(e) Within
two Business Days following the date of the Ninth Amendment, Sangra Moller LLP, counsel to the Parent, shall deliver an opinion addressed
to Agents and the other Secured Parties that is substantively identical to the opinion of such counsel delivered to Agents and the other
Secured Parties on May 1, 2023.
(f) Parent
shall, with respect to resales of any Subordinate Voting Shares of Parent issued or reserved for issuance as consideration for the transactions
contemplated by the Ninth Amendment, use commercially reasonable efforts to (i) prepare and file a Registration Statement with respect
to such Capital Stock with the SEC on or before September 30December 13,
2024 (or such later date to which Administrative Agent agrees in its discretion), (ii) cause such Registration Statement to become
effective within 135 days after the initial filing date unless the SEC notifies Parent that it does not intend to review such Registration
Statement, in which case Parent shall cause such Registration Statement to become effective within 15 days after receipt of such notification,
and (iii) maintain the effectiveness of such Registration Statement at all times until the earlier of (A) the date on which
all of shares of such Capital Stock shall have been sold and (B) the first date on which all of the holders of such Capital Stock
can sell all of such Capital Stock under Rule 144 under the Securities Act without limitation as to the manner of sale or the amount
of such securities that may be sold and without the requirement for Parent to be in compliance with the current public information required
under Rule 144(c)(1) under the Securities Act (or Rule 144(i)(2) under the Securities Act, if applicable); provided,
however, that use of such Registration Statement may be suspended as provided in the Representation Letters.
(g) Within
five Business Days following the first issuance of Subordinated Voting Shares of Parent as consideration for the transactions contemplated
by the Ninth Amendment, Sangra Moller LLP, counsel to the Parent, shall deliver an opinion addressed to Agents and the other Secured
Parties that is substantively identical to the opinion of such counsel delivered to Agents and the other Secured Parties on July 27,
2023.
(h) Within
two Business Days following the date of the advance of the 2024 Convertible Note Loans (or such later date to which Administrative Agent
agrees in its discretion), Sangra Moller LLP, counsel to the Parent, shall deliver an opinion addressed to Agents and the other Secured
Parties that is substantively identical to the opinion of such counsel delivered to Agents and the other Secured Parties on May 1,
2023.
(i) On
or before November 22, 2024 (or such later date to which Administrative Agent agrees in its discretion), Administrative Agent
shall have received date-down endorsements issued in connection with its title insurance policy, in form and substance satisfactory
to Administrative Agent, and, if, necessary, amendments to the Mortgages, Assignments of Leases and Rents and title insurance
policies to reflect any increase in the Aggregate Commitments, in each case, in form and substance satisfactory to Administrative
Agent
(j) Parent
shall, with respect to resales of any Subordinate Voting Shares of Parent issued or reserved for issuance in connection with any conversion
of the 2024 Convertible Note Loans, use commercially reasonable efforts to (i) prepare and file a Registration Statement with respect
to such Capital Stock with the SEC on or before January 31, 2025 (or such later date to which Administrative Agent agrees in its
discretion), (ii) cause such Registration Statement to become effective within 135 days after the initial filing date unless the
SEC notifies Parent that it does not intend to review such Registration Statement, in which case Parent shall cause such Registration
Statement to become effective within 15 days after receipt of such notification, and (iii) maintain the effectiveness of such Registration
Statement at all times until the earlier of (A) the date on which all of shares of such Capital Stock shall have been sold and (B) the
first date on which all of the holders of such Capital Stock can sell all of such Capital Stock under Rule 144 under the Securities
Act without limitation as to the manner of sale or the amount of such securities that may be sold and without the requirement for Parent
to be in compliance with the current public information required under Rule 144(c)(1) under the Securities Act (or Rule
144(i)(2) under the Securities Act, if applicable); provided, however, that use of such Registration Statement may be suspended
as provided in the Representation Letters.
ARTICLE IX
Negative Covenants
The Credit Parties hereby
covenant and agree that until the Loans, together with interest, Fees and all other Obligations incurred hereunder (other than Unasserted
Contingent Obligations) are paid in full in accordance with the terms of this Agreement:
SECTION 9.01. Limitation
on Indebtedness. Each Credit Party will not, and will not permit any of its Subsidiaries to, directly or indirectly, create, incur,
issue, assume, guarantee, suffer to exist or otherwise become directly or indirectly liable, contingently or otherwise with respect to
any Indebtedness, except for:
(a) Indebtedness
in respect of the Obligations;
(b) Indebtedness
(i) evidencing the deferred purchase price of newly acquired equipment or incurred to finance the acquisition of equipment of such
Credit Party (pursuant to purchase money security arrangements or otherwise, whether owed to the seller or a third party) used in the
ordinary course of business of such Credit Party (provided that such Indebtedness is incurred within 60 days of the acquisition
of such property), or (ii) evidenced by Capitalized Leases into which such Credit Party enters for the acquisition of equipment
used in the ordinary course of business of such Credit Party; provided that the aggregate outstanding principal amount of such Indebtedness
under clauses (i) and (ii) of this clause (b) and clause (n) below shall not exceed $7,500,000 at any time, and provided,
further, that Lenders shall have the right, but not an obligation, to advance all of such Indebtedness on substantially the same terms
and conditions proposed to the applicable Credit Party or Subsidiary by any other Person within seven Business Days of receipt from such
Credit Party or Subsidiary of a copy of the bona fide term sheet or offer of lease for such Indebtedness;
(c) Indebtedness
existing as of the Closing Date or, on and after the Third Amendment Initial Funding Date, the Third Amendment Initial Funding Date which
is identified on Schedule 7.24 and which is not otherwise permitted by this Section 9.01;
(d) Indebtedness
in connection with any sale-leaseback transaction permitted by Section 9.09;
(e) unsecured
Indebtedness (i) incurred in the ordinary course of business of such Credit Party and its Subsidiaries in respect of open accounts
extended by suppliers on normal trade terms in connection with purchases of goods and services which are not overdue for a period of
more than 90 days or, if overdue for more than 90 days, as to which a dispute exists and adequate reserves in conformity with GAAP have
been established on the books of such Credit Party and (ii) in respect of performance, surety or appeal bonds provided in the ordinary
course of business and consistent with past practice, but excluding (in each case) Indebtedness incurred through the borrowing of money
or Contingent Liabilities in respect thereof;
(f) Guarantee
Obligations of any Credit Party in respect of Indebtedness otherwise permitted hereunder of any Credit Party (other than Indebtedness
described in clauses (m) and,
(n) and,
solely as provided therein, clause (r)below);
(g) non-recourse
Indebtedness incurred by any Borrower or any Subsidiary to finance the payment of insurance premiums; provided, however,
that such Indebtedness may be recourse if such Borrower or Subsidiary cannot obtain the applicable insurance premium financing for insurance
that is in compliance with Section 8.03 with commercially reasonable terms on a non-recourse basis;
(h) intercompany
Indebtedness (i) between any Credit Parties, (ii) or by any Credit Party owing to any Subsidiary that is not a Credit Party,
so long as such Indebtedness is evidenced by a note which is pledged to Collateral Agent and is subject to a subordination agreement
(or evidenced by a note which includes subordination terms) in form and substance satisfactory to Collateral Agent, (iii) between
any Subsidiaries that are not Credit Parties, and (iv) by any Subsidiary that is not a Credit Party owing to any Credit Party in
an aggregate amount not to exceed, when combined with the aggregate amount of Investments made pursuant to Section 9.05(d),
$500,000;
(i) the
endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(j) Indebtedness
in respect of netting services, overdraft protection and otherwise in connection with deposit accounts or similar accounts incurred in
the ordinary course of business;
(k) Indebtedness
owed to any Person providing worker’s compensation, health, disability or other employee benefits or property, casualty or liability
insurance to any Borrower or any Subsidiary incurred in connection with such Person providing such benefits or insurance pursuant to
customary reimbursement or indemnification obligations to such Person, in each case, in the ordinary course of business;
(l) Indebtedness
in respect of surety bonds, performance bonds and similar instruments issued in the ordinary course of business in an aggregate amount
not to exceed (i) $10,000,000 in respect of each such surety bond, performance bond and similar instrument or (ii) $25,000,000
in respect of all such surety bonds, performance bonds and similar instruments in the aggregate; and
(m) Indebtedness
relating to Judgments, including appeal bonds, or awards not constituting an Event of Default under Section 10.01(g);
(n) other
Indebtedness incurred by Parent or Vireo Health in an aggregate outstanding amount not to exceed $7,500,000 at any time, so long as (i) unless
such Indebtedness is being incurred to repay the Obligations, no Financial Covenant Event of Default exists and (ii) such Indebtedness
is unsecured; provided that the aggregate outstanding principal amount of such Indebtedness under this clause (n) and clauses
(i) and (ii) of clause (b) above shall not exceed $7,500,000 at any time, and provided, further, that Lenders
shall have the right, but not an obligation, to advance all of such Indebtedness on substantially the same terms and conditions proposed
to the applicable Credit Party or Subsidiary by any other Person within seven Business Days of receipt from such Credit Party or Subsidiary
of a copy of the bona fide term sheet for such Indebtedness;
(o) obligations
under Hedging Agreements permitted under Section 9.12;
(p) the
Indebtedness owed to Charm City Seller pursuant to the Charm City Note, so long as (i) the aggregate principal amount of such Indebtedness
shall not exceed $2,000,000, as such amount is repaid in accordance with its terms, (ii) such Indebtedness is subject to the Charm
City Intercreditor Agreement and (iii) Charm City Intercreditor Agreement is in full force and effect, no
breach thereof (other than by any Agent) has occurred and is continuing and no Event
of Default under Section 10.01(q) shall havehas
occurred and be continuingwith
respect thereto; with respect thereto; and
(q) the
Refinancing Indebtedness, so long as the Refinancing Intercreditor Agreement is in full force and effect, no breach thereof (other than
by any Agent) has occurred and is continuing and no Event of Default under Section 10.01(q) has occurred with respect thereto;
and
(p)(r) (q) the
RefinancingStearns
Bank Indebtedness incurred
pursuant to the Stearns Bank Loan Documents and the Guarantee Obligations of Parent and Vireo Health in respect thereof,
so long as the RefinancingStearns
Bank Intercreditor Agreement is in full force and effect, no breach thereof (other than
by any Agent) has occurred and is continuing and no Event of Default under Section 10.01(q) shall
havehas
occurred and be continuingwith
respect thereto.
SECTION 9.02. Limitation
on Liens. Each Credit Party will not, and will not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume
or suffer to exist any Lien upon any property or assets of any kind (real or personal, tangible or intangible) of any such Person (including
its Capital Stock), whether now owned or hereafter acquired, except for the following (collectively, the “Permitted Liens”):
(a) Liens
securing payment of the Obligations;
(b) Liens
existing as of the Closing Date or, on and after the Third Amendment Initial Funding Date, the Third Amendment Initial Funding Date and
disclosed in Schedule 9.02 securing Indebtedness permitted under Section 9.01(c); provided that no such Lien shall
encumber any additional property and the amount of Indebtedness secured by such Lien shall not be increased or its term extended from
that existing on the Closing Date or the Third Amendment Initial Funding Date, as applicable (as such Indebtedness may be permanently
reduced subsequent to such date) except to the extent permitted by Section 9.01(c);
(c) Liens
securing Indebtedness of the type permitted under Section 9.01(b); provided that (i) such Lien is granted within
60 days after such Indebtedness is incurred, (ii) the Indebtedness secured thereby does not exceed the lesser of the cost and the
fair market value of the equipment at the time of such acquisition and (iii) such Lien encumbers only the assets acquired with the
proceeds of such Indebtedness or the assets leased or purported to be leased under such Capitalized Leases, as the case may be, and the
proceeds thereof;
(d) Liens
arising by operation of law in favor of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course
of business for amounts not yet overdue or being diligently contested in good faith by appropriate proceedings that stay execution of
such Lien and for which adequate reserves in accordance with GAAP shall have been established on its books;
(e) Liens
incurred or deposits made in the ordinary course of business in connection with worker’s compensation, unemployment insurance or
other forms of governmental insurance or benefits, or to secure performance of tenders, statutory obligations, bids, leases or other
similar obligations (other than for borrowed money) entered into in the ordinary course of business or to secure obligations on surety,
appeal or performance bonds;
(f) Judgment
Liens in existence for less than 60 days after the entry thereof, or with respect to which execution has been bonded, stayed or the payment
of which is covered in full by insurance or surety bonds, and which Judgment Liens do not otherwise result in an Event of Default under
Section 10.01(g);
(g) easements,
rights-of-way, zoning restrictions, defects or irregularities in title and other similar encumbrances not, in each case, interfering
in any material respect with the value or use of the property to which such Lien is attached;
(h) Liens
for Taxes, assessments or other governmental charges or levies (excluding any Lien imposed pursuant to the provisions of ERISA or any
Canadian Pension Plan) not yet due and payable, or that are being diligently contested in good faith by appropriate proceedings that
stays execution and for which adequate reserves in accordance with GAAP shall have been established on its books;
(i) Liens
arising in the ordinary course of business by virtue of any contractual, statutory or common law provision relating to banker’s
Liens, rights of set-off or similar rights and remedies covering deposit accounts or securities accounts (including funds or other assets
credited thereto) or other funds maintained with a depository institution or securities intermediary, so long as the applicable provisions
of Section 8.12 have been complied with in respect of such deposit accounts and securities accounts;
(j) any
interest or title of a lessor, licensor or sublessor under any lease, license or sublease (and precautionary UCC filings or PPSA registrations
with respect thereto) entered into by any such Credit Party or Subsidiary in the ordinary course of its business and covering only the
assets so leased, licensed or subleased;
(k) Liens
solely on any cash earnest money deposits made by such Person in connection with any letter of intent or purchase agreement permitted
hereunder;
(l) Liens
of sellers of goods to such Person arising under Article II of the Uniform Commercial Code or similar provisions of Applicable Law
in the ordinary course of business, covering only the goods sold or securing only the unpaid purchase price of such goods and related
expenses to the extent such Indebtedness is permitted hereunder;
(m) Liens
on insurance policies and the proceeds thereof securing the financing of premiums with respect thereto to the extent such financing is
permitted under Section 9.01(g);
(n) Liens
(including the right of set-off) in favor of a bank or other depository institution arising as a matter of law encumbering deposits so
long as the applicable provisions of Section 8.12 have been complied with; and
(o) deposits
to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds, letters
of credit and other obligations of a like nature, in each case in the ordinary course of business;
(p) the
Liens granted to Charm City Seller pursuant to the Charm City Pledge Agreement to secure the Indebtedness under the Charm City Note,
so long as (i) such Liens are subject to the Charm City Intercreditor Agreement and (ii) the Charm City Intercreditor Agreement
is in full force and effect and has not been challenged by Charm City Seller; and
(q) the
Liens granted by Borrowers to secure the Refinancing Indebtedness, so long as (i) such Liens are subject to the Refinancing Intercreditor
Agreement and (ii) the Refinancing Intercreditor Agreement is in full force and effect, no
breach thereof (other than by any Agent) has occurred and is continuing and no Event
of Default under Section 10.01(q) shall havehas
occurred with
respect thereto; and be continuing.
(r) the
Liens granted by Vireo Minnesota, MaryMed and Parent in favor of Stearns Bank N.A. on the assets described in the Stearns Bank Intercreditor
Agreement to secure the Stearns Bank Indebtedness, so long as (i) such Liens are subject to the Stearns Bank Intercreditor Agreement,
(ii) Collateral Agent has a second-priority Lien on all assets on which Stearns Bank N.A. has, pursuant to the Stearns Bank Intercreditor
Agreement, a first-priority Lien, (iii) the Stearns Bank Intercreditor is in full force and effect, (iv) no breach thereof
(other than by any Agent) has occurred and is continuing and (v) no Event of Default under Section 10.01(q) has occurred
with respect thereto.
Notwithstanding anything to the contrary set
forth in this Section 9.02, in no event shall any Credit Party create, incur, assume or suffer to exist any Lien (other than
Liens in favor of Collateral Agent pursuant to the Credit Documents) upon the rights of any Credit Party or Subsidiary under any
Material Contract or any accounts receivable, Collections or proceeds arising thereunder or with respect thereto.
SECTION 9.03. Consolidation,
Merger, Etc. Except for the transactions set forth on Schedule 9.03, each Credit Party will not, and will not permit any of
its Subsidiaries, to liquidate or dissolve, consolidate with, amalgamate with or into, or merge into or with, any other Person; provided
that (a) any Credit Party or Subsidiary of any Credit Party may liquidate or dissolve voluntarily into, and may merge or amalgamate
with and into, any Borrower (so long as such Borrower is the surviving entity), (b) any Guarantor may liquidate or dissolve voluntarily
into, and may merge or amalgamate with and into any other Guarantor organized under the laws of the same jurisdiction, (c) the assets
or Capital Stock of any Credit Party (other than Parent) may be purchased or otherwise acquired by any Borrower, (d) the assets
or Capital Stock of any Guarantor may be purchased or otherwise acquired by any other Credit Party, (e) any Borrower or other Credit
Party with de minimis, or no, assets and operations may be administratively dissolved upon 30 days’ prior notice to Administrative
Agent, so long as such assets are acquired by a Borrower or other Credit Party in connection therewith or are disposed of as permitted
by Section 9.04; (f) any Credit Party may consolidate with, amalgamate with or into, or merge into or with, any other
Person in connection with a transaction permitted by Section 9.05(g), provided that (i) such Credit Party is
the surviving entity and (ii) unless Administrative Agent otherwise agrees in its discretion, such Person was organized under the
laws of (A) the United States of America or one of its states or (B) Canada or one of its provinces.
SECTION 9.04. Permitted
Dispositions. Each Credit Party will not, and will not permit any of its Subsidiaries, to make a Disposition, or enter into any agreement
to make a Disposition, of such Credit Party’s or such Subsidiary’s assets (including accounts receivable and Capital Stock
of Subsidiaries) to any Person in one transaction or a series of related transactions unless such Disposition:
(a) is
in the ordinary course of its business and is of obsolete, surplus or worn-out property or property no longer used in its business, so
long as, unless the Net Cash Proceeds of such Disposition are used to repay the Obligations, no Financial Covenant Event of Default exists
at the time of such Disposition;
(b) is
made as a consequence of any loss, damage, distribution or other casualty or any condemnation or taking of such assets by eminent domain
proceedings, provided that the Net Cash Proceeds thereof are applied in accordance with Section 4.02(a)(iii);
(c) is
for fair market value and the following conditions are met:
(i) (A) the
aggregate amount of Dispositions during any fiscal year shall not exceed $2,500,000, (B) the Disposition is of XAAS Agro, Inc.,
a Puerto Rico corporation, or (C) the Disposition is of the Capital Stock, IP Rights or any other assets of Resurgent;
(ii) immediately
prior to and immediately after giving effect to such Disposition, no Default or Event of Default shall have occurred and be continuing
or would result therefrom;
(iii) excluding
the Disposition of XAAS Agro, Inc., no less than 80.00% of the consideration received for such sale, transfer, lease, contribution
or conveyance is received in cash; and
(iv) unless
the Net Cash Proceeds of such Disposition are used to repay the Obligations, no Financial Covenant Event of Default exists at the time
of such Disposition;
(d) is
a sale of Inventory (as defined in the UCC) in the ordinary course of business;
(e) is
a sale or disposition of equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement equipment,
all in the ordinary course of business;
(f) is
an abandonment, failure to renew, or other disposition in the ordinary course of business of any intellectual property that is not material
to the conduct of the business of any Credit Party or any Subsidiary of such Credit Party;
(g) is
otherwise permitted by Section 9.03, 9.05(d) or 9.05(h);
(h) is
by (i) any Credit Party or Subsidiary thereof to Parent, (ii) any Subsidiary of a Credit Party (other than a Borrower) to any
Credit Party or (iii) any Credit Party (other than a Borrower) to another Credit Party;
(i) consists
of the granting of Permitted Liens;
(j) consists
of a Disposition of cash or Cash Equivalents;
(k) is
a sale or discount of accounts receivable arising in the ordinary course of business in connection with the collection thereof;
(l) consists
of the leasing or licensing (pursuant to leases or licenses entered into in the ordinary course of business) of real or personal property
in the ordinary course of business;
(m) consists
of a disposition of owned Real Property (other than the Maryland Mortgaged Property) to effectuate a sale-leaseback transaction permitted
by Section 9.09;
(n) is
a disposition of owned or leased Real Property to a Governmental Authority that results from a condemnation, provided that the
proceeds thereof are applied in accordance with this Agreement;
(o) as
provided in Section 8.17, the New York Disposition;
(p) as
provided in Section 8.18, the Minnesota Disposition; and
(q) [reserved].
Notwithstanding anything to the contrary set
forth in this Section 9.04, in no event shall any Credit Party sell, transfer, assign or otherwise dispose of (other than
in connection with the grant of a Lien in favor of Collateral Agent pursuant to the Credit Documents) any of its rights under or in respect
of any accounts receivable, Collections or proceeds arising thereunder or with respect thereto other than as permitted under clause (c)(i)(B) above.
SECTION 9.05. Investments.
Each Credit Party will not, and will not permit any of its Subsidiaries to, purchase, make, incur, assume or permit to exist any Investment
in any other Person, including the formation, creation or acquisition of any Subsidiary, except:
(a) Investments
existing on the Closing Date or, on and after the Third Amendment Initial Funding Date, the Third Amendment Initial Funding Date and
identified in Schedule 9.05;
(b) Investments
in cash and Cash Equivalents;
(c) Investments
received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and
suppliers, in each case in the ordinary course of business;
(d) Investments
by way of contributions to capital or purchases of Capital Stock (i) by any Credit Party in any of its Subsidiaries that are Credit
Parties or by any Subsidiary that is not a Credit Party in any Credit Party; provided that such Investment is in compliance with Section 9.01(h) in
the event such Investment constitutes Indebtedness of the party making such Investment, and (ii) by any Credit Party in any Subsidiary
that is not a Credit Party in an aggregate amount at any time not to exceed, when combined with the aggregate principal amount of Indebtedness
incurred pursuant to Section 9.01(h)(iv), $500,000;
(e) Investments
constituting (i) accounts receivable arising, (ii) trade debt granted, or (iii) deposits made in connection with the purchase
price of goods or services, in each case in the ordinary course of business;
(f) any
agreement by any Credit Party to accept a deferred portion of the sales price in connection with any Disposition permitted under Section 9.04;
(g) Permitted
Acquisitions;
(h) intercompany
Indebtedness permitted pursuant to Section 9.01(h), so long as the applicable Persons have complied with the requirements
set forth in such Section;
(i) the
maintenance of deposit accounts in the ordinary course of business so long as the applicable provisions of Section 8.12 have
been complied with in respect of such deposit accounts;
(j) Guarantee
Obligations to the extent permitted by Section 9.01(f);
(k) loans
and advances to officers, directors and employees of any Credit Party for reasonable and customary business-related travel expenses,
entertainment expenses, moving expenses and similar expenses, in each case incurred in the ordinary course of business, in an aggregate
outstanding principal amount at any time not to exceed $500,000;
(l) Investments
consisting of loans made in lieu of Restricted Payments which are otherwise permitted under Section 9.07;
(m) deposits,
prepayments and other credits to suppliers and deposits in connection with lease obligations, taxes, insurance and similar items, in
each case made in the ordinary course of business and securing Contractual Obligations of a Credit Party, in each case to the extent
constituting a Permitted Lien; and
(n) obligations
under Hedging Agreements permitted under Section 9.12.
provided that no Investment otherwise permitted
under clauses (d)(ii), (f), (g) or (k) shall be permitted to be made if, at the time of making any such Investment, any Default
or Event of Default has occurred and is continuing or would result therefrom.
SECTION 9.06. ERISA.
(a) No
Credit Party will (a) fail to meet the minimum funding requirements of ERISA, permit a Reportable Event or Prohibited Transaction,
as each term is defined in ERISA, to occur or (b) withdraw or permit any Subsidiary to withdraw from participation in, permit partial
or complete termination of, or permit the occurrence of any other event with respect to, any present pension, profit sharing and deferred
compensation plan which could reasonably be expected to result in any liability of a Credit Party or any of its Subsidiaries, including
any liability to the Pension Benefit Guaranty Corporation or its successors or any other governmental agency.
(b) No
Credit Party shall (i) terminate a Canadian Pension Plan (in whole or in part) if, as a result of such termination, any Credit Party
may be required to make an additional contribution to such Canadian Pension Plan, or to incur an additional liability or obligation to
such Canadian Pension Plan, (ii) establish, sponsor administer, contribute to or assume any liability, including any contingent
liability, under a defined benefit Canadian Pension Plan or a multi-employer Canadian Pension Plan, (iii) acquire an interest in
any Person if such Person sponsors, maintains or contributes to, or at any time in the six-year period preceding such acquisition has
sponsored, maintained, or contributed to any defined benefit Canadian Pension Plan, and (iv) fail to withhold, make, remit or pay
when due any employee or employer payments, contributions (including “normal cost”, contributions in respect of the provision
or adverse deviations or in respect of any amendment that increases the going concern liabilities, “special payments” and
any other payments in respect of any funding deficiencies or shortfalls) or premiums to or in respect of any Canadian Pension Plan pursuant
to the terms of the particular plan, any applicable collective bargaining agreement or applicable pension benefits legislation in Canada
or any other jurisdiction.
SECTION 9.07. Restricted
Payments. Each Credit Party will not, and will not permit any of its Subsidiaries, to make any Restricted Payment, or make any deposit
for any Restricted Payment, other than:
(a) Restricted
Payments by any Subsidiary of a Credit Party to (i) its direct parent, so long as such parent is a Credit Party or (ii) Parent;
(b) Restricted
Payments by any Credit Party or any its Subsidiaries to pay dividends with respect to its Capital Stock payable solely in additional
shares of such Capital Stock (other than Disqualified Capital Stock);
(c) Parent
may repurchase Capital Stock owned by employees pursuant to a plan for the benefit of employees whose employment with such Person and
its Subsidiaries has been terminated, provided that such Restricted Payments shall not exceed $1,000,000 in any fiscal year, except
and to the extent such payments are funded by proceeds of “key person” life or disability insurance, and provided,
further, that no Event of Default exists at the time of such Restricted Payment or would occur as a result thereof; and
(d) Restricted
Payments by any Credit Party or any of its Subsidiaries to (i) Vireo Health for management fees, or (ii) Resurgent (or any
other Credit Party that is an assignee of Resurgent with respect to Resurgent’s IP Rights) for intellectual property royalty payments.
SECTION 9.08. Payments
and Modification of Certain Agreements. Each Credit Party will not, and will not permit any of its Subsidiaries to:
(a) Except
as expressly permitted by Section 9.07, make any payment on account of
(i) Indebtedness
that has been contractually subordinated in right of payment to the Obligations if such payment is not permitted at such time under the
subordination terms and conditions applicable thereto or
(ii) any
other Restricted Debt if any Default or Event of Default has occurred and is continuing or would result therefrom.
(b) Consent
to any amendment, supplement, waiver or other modification of, or enter into any forbearance from exercising any rights with respect
to the terms or provisions contained in (i) any Organization Documents, in each case, other than any amendment, supplement, waiver,
termination, modification or forbearance (A) that is not materially adverse to the Secured Parties and (B) notice of which
was received by Administrative Agent at least 10 Business Days (or such shorter period as Administrative Agent may permit in its discretion)
prior to its effectiveness, (ii) any document, agreement or instrument evidencing or governing any Indebtedness that has been subordinated
to the Obligations in right of payment or any Liens that have been subordinated in priority to the Liens of Administrative Agent unless
such amendment, supplement, waiver or other modification is permitted under the terms of the subordination agreement applicable thereto,
or (iii) any Material Contract, in each case, other than any amendment, supplement, waiver or modification (A) that is not
materially adverse to the Secured Parties and (B) notice of which was received by Administrative Agent at least 10 Business Days
(or such shorter period as Administrative Agent may permit in its discretion) prior to its effectiveness.
SECTION 9.09. Sale
and Leaseback; Build-to-Suit Lease. Each Credit Party will not, and will not permit any of its Subsidiaries, directly or indirectly,
to engage in any sale-leaseback, build-to-suit lease, synthetic lease or similar transaction after the Closing Date with respect to any
property of any Credit Party or any Subsidiary thereof; provided, however, that a Credit Party may enter into (a) simultaneous
sale and leaseback transactions of any Real Property owned by such Credit Party or any improvement owned by such Credit Party located
on Real Property owned by another Person and (b) any other lease of Real Property that creates Attributable Indebtedness on the
part of any Credit Party, in each case so long as (w) such Real Property is not, or such improvement is not located on, the Maryland
Mortgaged Property, (x) no Maryland Mortgaged Property shall be subject to any Lien as a result of such transaction or lease, (y) no
Default or Event of Default has occurred and is continuing or would result from such transaction or lease, and (z) if such Credit
Party transfers any right, title or interest in any Real Property or improvement in connection with such transaction or lease, such Credit
Party shall receive 100.00% cash consideration in an amount not less than the fair market value of such Real Property or improvement.
SECTION 9.10. Transactions
with Affiliates. Except as set forth on Schedule 9.10, each Credit Party will not, and will not permit any of its Subsidiaries,
to enter into or cause or permit to exist any arrangement, transaction or contract (including for the purchase, lease or exchange of
property or the rendering of services) with any Affiliate (other than arrangements, transactions or contracts solely among the Credit
Parties) except (a) on fair and reasonable terms no less favorable to such Credit Party or such Subsidiary than it could obtain
in an arm’s-length transaction with a Person that is not an Affiliate, (b) any transaction expressly permitted under Section 9.01(f),
9.03, 9.05(d), 9.05(h), 9.05(j), 9.05(k) or 9.07, (c) so long as it has been approved
by Parent’s or its applicable Subsidiary’s Board of Directors in accordance with Applicable Law, (i) customary fees
to, and indemnifications of, non-officer directors of the Credit Parties and their respective Subsidiaries or (ii) the payment of
reasonable and customary compensation for executive officers of the Credit Parties and their respective Subsidiaries in the ordinary
course of business, (c) the payment of reasonable and customary compensation for other officers and employees of the Credit Parties
and their respective Subsidiaries in the ordinary course of business, (d) provision of reasonable and customary indemnification
arrangements and benefit plans for officers and employees of the Credit Parties and their respective Subsidiaries in the ordinary course
of business, and (d) transactions among Subsidiaries that are not Credit Parties in the ordinary course of business.
SECTION 9.11. Restrictive
Agreements, Etc. Each Credit Party will not, and will not permit any of its Subsidiaries, to enter into any agreement (other than
a Credit Document) prohibiting:
(a) other
than the documents evidencing the Refinancing Indebtedness, the creation or assumption of any Lien upon its properties, revenues or assets,
whether now owned or hereafter acquired;
(b) the
ability of such Person to amend or otherwise modify any Credit Document or waive, consent to or otherwise deviate from any provision
under any Credit Document; or
(c) other
than the documents evidencing the Refinancing Indebtedness, the ability of such Person to make any payments, directly or indirectly,
to any Borrower, including by way of dividends, advances, repayments of loans, reimbursements of management and other intercompany charges,
expenses and accruals or other returns on investments.
The foregoing prohibitions shall not apply to
customary restrictions of the type described in clause (a) above (which do not prohibit the Credit Parties from complying with or
performing the terms of this Agreement and the other Credit Documents) which are contained in any agreement, (i) for the creation
or assumption of any Lien on the sublet or assignment of any leasehold interest of any Credit Party or any of its Subsidiaries entered
into in the ordinary course of business, (ii) for the assignment of any contract or licensed intellectual property entered into
by any Credit Party or any of its Subsidiaries in the ordinary course of business or (iii) for the transfer of any asset pending
the close of the sale of such asset pursuant to a Disposition permitted under this Agreement.
SECTION 9.12. Hedging
Agreements. Each Credit Party other than Parent will not, and will not permit any of its Subsidiaries to, enter into any Hedging
Agreement, other than Hedging Agreements entered into in the ordinary course of business to hedge or mitigate risks to which Parent is
exposed in the conduct of their business or the management of their liabilities. Solely for the avoidance of doubt, each of the Credit
Parties acknowledges that a Hedging Agreement entered into for speculative purposes or of a speculative nature (which shall be deemed
to include any Hedging Agreement under which Parent is or may become obliged to make any payment (a) in connection with the purchase
by any third party of any common stock or any Indebtedness or (b) as a result of changes in the market value of any common stock
or any Indebtedness) is not a Hedging Agreement entered into in the ordinary course of business to hedge or mitigate risks.
SECTION 9.13. Changes
in Business and Fiscal Year.
(a) Each
Credit Party will not, and will not permit any of its Subsidiaries to, modify or change its method of accounting (other than (i) as
may be required to conform to GAAP or (ii) to the extent consented to by Administrative Agent (such consent not to be unreasonably
withheld, conditioned or delayed).
(b) No
Credit Party, Affiliate of a Credit Party or any officer of a Credit Party or an Affiliate of a Credit Party, shall (i) engage in
the Business except through a Borrower or another Credit Party or (ii) acquire or obtain any direct or indirect economic interest
in any Person that engages in the Business excepting only the acquisition of equity or debt securities of any other Person that engages
in the Business in an aggregate amount of not more than 1.00% of the issued outstanding equity of such Person.
SECTION 9.14. Financial
Covenants.
(a) Liquidity.
The Credit Parties will not permit Liquidity of the Credit Parties to be less than, at any time, the lesser of (i) 15.00% of the
aggregate amount of the Loans advanced by the Lenders and (ii) $4,000,000, tested on the last Business Day of each calendar month.
(b) Minimum
Consolidated Adjusted EBITDA. Commencing on April 30, 2023, maintain at all times Consolidated Adjusted EBITDA for each Applicable
Fiscal Period of at least the amount set forth below:
Applicable Fiscal Period Ending | |
Amount | |
April 30, 2023, through June 30, 2023 | |
$ | 1,000,000 | |
Applicable
Fiscal Period Ending | |
| Amount | |
July 31, 2023, through September 30, 2023 | |
$ | 1,500,000 | |
October 31, 2023, through December 31, 2023 | |
$ | 2,000,000 | |
January 31, 2024 | |
$ | 2,500,000 | |
February 29, 2024, through May 31, 2024 | |
$ | 3,000,000 | |
June 30, 2024, and the last day of each calendar month thereafter | |
$ | 5,000,000 | |
(c) Consolidated
Fixed Charge Coverage Ratio. Commencing on June 30, 2023, maintain at all times a Consolidated Fixed Charge Coverage Ratio for
each Applicable Fiscal Period of not less than the ratio set forth below:
Applicable Fiscal Period Ending | |
| Ratio | |
June 30, 2023, through December 31, 2023 | |
| 0.50 to 1.00 | |
January 31, 2024, through May 31, 2024 | |
| 1.00 to 1.00 | |
June 30, 2024, and the last day of each calendar month thereafter | |
| 1.50 to 1.00 | |
SECTION 9.15. Operations
of Parent. Parent will not hold any assets or engage in any business other than as set forth in Section 7.29.
ARTICLE X
Events of Default
SECTION 10.01. Listing
of Events of Default. Each of the following events or occurrences described in this Section 10.01 shall constitute an “Event
of Default”:
(a) Non-Payment
of Obligations. (i) Any Borrower shall default in the payment of any principal of any Loan when such amount is due, any interest
on any Loan or (ii) any Credit Party shall default in the payment of any other monetary Obligation and, in each case of this clause
(ii), such default shall continue unremedied for a period of five days.
(b) Breach
of Representations or Warranties. Any representation or warranty by any Credit Party made or deemed to be made in any Credit Document
(including any certificates delivered pursuant to Article V), is or shall be incorrect in any material respect when made or deemed
to have been made.
(c) Non-Performance
of Certain Covenants and Obligations. Any Credit Party shall default in the due performance or observance of any of its obligations
under Section 8.01 (other than Sections 8.01(e) and 8.01(f)), 8.03, 8.04, 8.05 (solely
with respect to such Credit Party’s existence in its jurisdiction of organization), 8.08, 8.09, 8.10, 8.12,
8.13, 8.14, 8.16, 8.17, 8.18, 8.19 or 8.20 or Article IX.
(d) Non-Performance
of Other Covenants and Obligations. Any Credit Party shall default in the due performance or observance of any of its obligations
under Section 2.03(c)(ii), 8.01(e), 8.01(f), 8.02, 8.05 (other than with respect to such Credit
Party’s maintenance of good standing in its jurisdiction of organization), 8.06, 8.07, 8.11, or 8.15,
or any Credit Party shall default in the due performance or observance of its obligations under any covenant applicable to it under any
Security Document, and, in each of the foregoing instances, such default shall continue unremedied for a period of 15 days after such
Credit Party receives notice or otherwise obtains knowledge of the occurrence thereof.
(e) Non-Performance
of Other Covenants and Obligations. Any Credit Party shall default in the due performance and observance of any obligation contained
in any Credit Document executed by it (other than as specified in Sections 10.01(a), 10.01(b), 10.01(c), or 10.01(d)),
and, in each of the foregoing instances, such default shall continue unremedied for a period of 30 days after such Credit Party receives
notice or otherwise obtains knowledge of the occurrence thereof.
(f) Default
on Other Indebtedness. (i) a default shall occur in the payment of any amount when due (subject to any applicable grace,
notice or cure period), whether by acceleration or otherwise, of any principal or stated amount of, or interest or fees on, any
Indebtedness (other than the Obligations) of any Credit Party or Subsidiary of any Credit Party having a principal or stated amount,
individually or in the aggregate, in excess of $2,500,000, or a default shall occur in the performance or observance of any
obligation or condition with respect to any such Indebtedness if the effect of such default is to accelerate the maturity of such
Indebtedness or to permit the holder or holders of such Indebtedness, or any trustee or agent for such holders, to cause or declare
such Indebtedness to become immediately due and payable, if, in each case, such default is not waived by the applicable Person
within 30 days of such default, or (ii) any Indebtedness of any Credit Party or Subsidiary of any Credit Party having a
principal or stated amount, individually or in the aggregate, in excess of $2,500,000 shall otherwise be required to be prepaid,
redeemed, purchased or defeased, or require an offer to purchase or defease such Indebtedness to be made, prior to its expressed
maturity).
(g) Judgments;
Fines. Any Judgment, in an amount (exclusive of any amounts covered by insurance (less any applicable deductible) and as to which
the insurer has acknowledged its responsibility to cover such Judgment), individually or in the aggregate, in excess of the amount that
would result in Borrowers failing to comply with Section 9.14 with respect to any Financial Performance Covenant, recomputed
as of the end of the Applicable Fiscal Period most recently ended for which financial statements have been delivered pursuant to Section 8.01(a) or
8.01(b) after giving effect to such amount as a Judgment on a pro forma basis, shall be rendered against any Credit Party
or any of its Subsidiaries and such Judgment shall not have been vacated or discharged or stayed or bonded pending appeal within 60 days
after the entry thereof or enforcement proceedings shall have been commenced by any creditor upon such Judgment.
(h) Bankruptcy, Insolvency,
Etc. Any Credit Party or any of its Subsidiaries shall:
(i) become
insolvent or generally fail to pay, or admit in writing its inability or unwillingness generally to pay, its debts as they become due;
(ii) apply
for, consent to, or acquiesce in the appointment of a trustee, receiver, sequestrator, examiner or other custodian for any substantial
part of the assets or other property of any such Person, or make a general assignment for the benefit of creditors;
(iii) in
the absence of such application, consent or acquiesce to or permit or suffer to exist, the appointment of a trustee, interim receiver,
receiver, receiver and manager, administrative receiver, custodian, liquidator, provisional liquidator, administrator, sequestrator or
other like official for a substantial part of the property of any thereof, and such trustee, interim receiver, receiver, receiver and
manager, administrative receiver, custodian, liquidator, provisional liquidator, administrator, sequestrator or other like official shall
not be discharged within 60 days; provided that each Credit Party hereby expressly authorizes each Secured Party to appear in any court
conducting any relevant proceeding during such 60-day period to preserve, protect and defend their rights under the Credit Documents;
(iv) permit
or suffer to exist the commencement of any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy
or insolvency law or other Insolvency Legislation or any dissolution, examinership, winding up or liquidation proceeding, in respect
thereof, and, if any such case or proceeding is not commenced by such Person, such case or proceeding shall be consented to or acquiesced
in by such Person, or shall result in the entry of an order for relief or shall remain for 60 days undismissed; provided that each Credit
Party hereby expressly authorizes each Secured Party to appear in any court conducting any such case or proceeding during such 60-day
period to preserve, protect and defend their rights under the Credit Documents; or
(v) take
any action authorizing, or in furtherance of, any of the foregoing.
(i) Impairment
of Security, Etc. Any Credit Document or any Lien granted thereunder shall (except in accordance with its terms), in whole or in
part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of any Credit Party thereto
with respect to Collateral in an aggregate amount in excess of $2,500,000, or any Credit Party or any other Person shall, directly or
indirectly, contest or limit in any manner such effectiveness, validity, binding nature or enforceability. Except as permitted under
any Credit Document, any Lien (subject only to Permitted Liens) securing any Obligation shall, in whole or in part, cease to be a perfected
Lien with respect to Collateral with a value in an aggregate amount in excess of $2,500,000 (other than as a result of voluntary and
intentional discharge of the Lien by Collateral Agent).
(j) Change
of Control. Any Change of Control shall occur.
(k) Restraint
of Operations; Loss of Assets. If any Material Credit Party is enjoined, restrained, or in any way prevented by court order or other
Governmental Authority from continuing to conduct all or any material part of its business affairs or if any material portion of any
Material Credit Party’s assets is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes into the
possession of any third Person and the same is not discharged before the earlier of 60 days after the date it first arises or five days
prior to the date on which such property or asset is subject to forfeiture by such Credit Party.
(l) Inability
to Satisfy Obligations. After receipt of the cash flow forecast required by Section 8.01(f), Administrative Agent or
Required Lenders reasonably determine that Borrowers do not have the cash flow or other permitted funding sources in the amounts and
timeframe necessary to enable Borrowers to satisfy the Obligations as they become due and payable.
(m) Regulatory
Licenses. If any Material Regulatory License with respect to Arizona, Maryland, Minnesota and New York ceases to be valid,
subsisting and in good standing, if any Borrower operating in any of the foregoing States is not permitted to use a Material
Regulatory License in such State or if any Material Regulatory License is withdrawn, cancelled, suspended or adversely amended in a
manner that would reasonably be expected to result in a Material Adverse Effect.
(n) Other
Proceedings. Any Credit Party, or any officer, director or, if such Credit Party is manager-managed, manager thereof (i) shall
have been found guilty of an act of fraud, or (ii) shall have become subject to any adverse, final, non-appealable judgment in any
civil or criminal prosecution, enforcement, asset forfeiture or any other civil or criminal enforcement action or proceeding brought
by any state or local Governmental Authority with respect to any alleged breach of US State Cannabis Law or any local cannabis law; and,
with respect to any of the foregoing circumstances described in this clause (ii), if any of the foregoing can be corrected in the opinion
of such Governmental Authority, such Person fails to take all corrective action required to satisfy, reinstate or otherwise address any
alleged issues within the corrective action period, if any.
(o) Change
in Cannabis Law; Restricted Cannabis Activity. If a Change in Cannabis Law shall occur, or any Credit Party shall engage in any Restricted
Cannabis Activity.
(p) Trading
Suspension. The official quotation of Parent’s subordinated voting shares on the CSE is suspended for a period in excess of
five consecutive trading days or, in the case of a voluntary suspension, 10 consecutive trading days,
(q) Intercreditor
and Subordination Agreements. (i) The Charm City Intercreditor Agreement, the Refinancing Intercreditor Agreement,
the Stearns Bank Intercreditor Agreement or any other subordination or intercreditor agreement
in favor of or with any Agent shall, in whole or in part, terminate, cease to be in full force or effect or cease to be legally valid,
binding and enforceable against any holder of the Indebtedness subject to such Credit Document (other than the Obligations) for any reason
other than a full or partial waiver or release by such Agent and Lenders in accordance with the terms thereof or (ii) any Credit
Party shall disavow or challenge in any action, suit or other proceeding (A) the validity, effectiveness or enforceability of any
such Credit Document, (B) that any such Credit Document exists for the benefit of the Collateral Agent and the Secured Parties or
(C) that all payments of and interest on the Indebtedness subject to any such Credit Document (other than the Obligations) shall
be subject to such Credit Document (to the extent applicable).
SECTION 10.02. Remedies
Upon Event of Default. If any Event of Default under Section 10.01(h) shall occur for any reason, whether voluntary
or involuntary, all of the outstanding principal amount of the Loans and other Obligations shall automatically be due and payable and
any Commitments shall be terminated, in each case, without presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by each Credit Party. If any Event of Default (other than any Event of Default under Section 10.01(h))
shall occur for any reason, whether voluntary or involuntary, and be continuing, Administrative Agent may, and upon the direction of
Required Lenders, Administrative Agent shall, declare all or any portion of the outstanding principal amount of the Loans and other Obligations
to be due and payable and any Commitment shall be terminated, whereupon the full unpaid amount of such Loans and other Obligations that
shall be so declared due and payable shall be and become immediately due and payable, in each case, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly waived by each Credit Party. The Lenders and Collateral Agent shall
have all other rights and remedies available at law or in equity or pursuant to any Credit Documents.
SECTION 10.03. Right
to Cure Certain Covenant Violations. Notwithstanding anything to the contrary contained in Section 10.01(c), if Borrowers
fail to comply with the requirements of any covenant set forth in Section 9.14(b) or Section 9.14(c) (each,
a “Financial Covenant”), then from the end of the calendar month for which such non-compliance occurred until
the 120th calendar day after the date on which financial statements are required to be delivered pursuant to Section 8.1(a) (each
such period, a “Financial Covenant Cure Period”), Parent shall be entitled to endeavor to raise equity on such
terms as Parent’s Board of Directors may approve (so long as such terms are not in violation of any Credit Document) in an amount
that, if added to EBITDA for the relevant testing period, would have been sufficient to cause compliance with such Financial Covenant
for such period (each, a “Financial Covenant Equity Cure”), and provided, that:
(a) Parent
shall not be entitled to exercise the Financial Covenant Equity Cure more than three times prior to the latest Tranche Maturity Date;
(b) Parent
shall notify Administrative Agent of Parent’s intent to exercise the Financial Covenant Equity Cure no later than 10 days after
the end of the relevant month, and the right to such exercise with respect to non-compliance with the applicable Financial Covenant shall
be deemed waived if such notice is not received by such date;
(c) If
Administrative Agent receives a notice from Parent as provided in clause (b) above, interest on the Obligations shall accrue during
the Financial Equity Cure Period as follows: (i) if such Financial Covenant Equity Cure occurs (i) on or before the date 15
days after the commencement of the Financial Covenant Cure Period, at (A) with respect to the Dispensary Loans, the Dispensary Loan
Cash Interest Rate plus the Dispensary Loan PIK Interest Rate, (B) with respect to the Convertible Note Loans, the Convertible
Note Cash Interest Rate plus the Convertible Note PIK Interest Rate, and (C) with
respect to the 2024 Convertible
Note Loans, the 2024 Convertible Note Cash Interest Rate, and (D) with respect to the
other Loans, the Cash Interest Rate plus the PIK Interest Rate, (ii) after the date 15 days after the commencement of the Financial
Covenant Cure Period, but on or before the date 45 days after the commencement of the Financial Covenant Cure Period, at the Default
Rate in order to compensate the Lenders for the increased risk associated with the aforementioned Financial Covenant breach, and (iii) after
the date 45 days after the commencement of the Financial Covenant Cure Period, until the earlier of (A) the date on which such Financial
Covenant Equity Cure occurs and (B) payment in full of the Obligations, at a per annum rate equal to the Default Rate plus
4.00% in order to compensate the Lenders for the increased risk associated with the aforementioned Financial Covenant breach and the
duration of the Financial Covenant Cure Period;
(d) upon
receipt by Administrative Agent of evidence of the consummation of the Financial Covenant Equity Cure (which evidence shall be in form
and substance reasonably satisfactory to Lenders), no Default or Event of Default shall be deemed to exist pursuant to the applicable
Financial Covenant (and any such Default or Event of Default shall be retroactively considered not to have existed or occurred). If the
Financial Covenant Equity Cure is not consummated within the applicable Financial Covenant Cure Period, each such Default or Event of
Default shall be deemed to have occurred on the first day of the applicable Financial Covenant Cure Period; and
(e) the
cash amount received by Borrowers pursuant to exercise of the right to make a Financial Covenant Equity Cure shall be added to EBITDA
for the last fiscal month of the immediately preceding Applicable Fiscal Period solely for purposes of recalculating compliance with
such Financial Covenant for such period and of calculating such Financial Covenant as of the end of the next three following Applicable
Fiscal Periods. No Financial Covenant Equity Cure shall be taken into account for purposes of calculating any Financial Covenant in order
to determine pro forma compliance with such Financial Covenant for purposes of the incurrence of any Indebtedness, or for purposes of
calculating any baskets or compliance with any other covenants or for any other purpose hereunder.
For the avoidance of doubt,
nothing in this Section 10.03 shall prevent any Borrower from receiving capital contributions in an aggregate amount in excess
of the amount sufficient to cause compliance with the applicable Financial Covenant for the relevant testing period; provided
that such excess shall not be added to EBITDA for the purpose of calculating compliance with such Financial Covenant or any other purpose.
ARTICLE XI
Agents
SECTION 11.01. Appointment.
Each Lender (and, if applicable, each other Secured Party) hereby appoints Chicago Atlantic as its Collateral Agent under and for purposes
of each Credit Document, and hereby authorizes Collateral Agent to act on behalf of such Lender (or if applicable, each other Secured
Party) under each Credit Document, and, in the absence of other written instructions from the Lenders pursuant to the terms of the Credit
Documents received from time to time by Collateral Agent, to exercise such powers hereunder and thereunder as are specifically delegated
to or required of Collateral Agent by the terms hereof and thereof, together with such powers as may be incidental thereto. Each Lender
(and, if applicable, each other Secured Party) hereby appoints Chicago Atlantic as its Administrative Agent under and for purposes of
each Credit Document and hereby authorizes Administrative Agent to act on behalf of such Lender (or, if applicable, each other Secured
Party) under each Credit Document and, in the absence of other written instructions from the Lenders pursuant to the terms of the Credit
Documents received from time to time by Administrative Agent, to exercise such powers hereunder and thereunder as are specifically delegated
to or required of Administrative Agent by the terms hereof and thereof, together with such powers as may be incidental thereto. Each
Lender (and, if applicable, each other Secured Party) hereby designates and appoints each Agent as the agent of such Lender. Notwithstanding
any provision to the contrary elsewhere in this Agreement, no Agent shall have any duties or responsibilities, except those expressly
set forth herein, or any fiduciary relationship with any Lender or other Secured Party, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any other Credit Document or otherwise exist against any Agent.
Anything contained in any of the Credit Documents to the contrary notwithstanding, each Credit Party, Administrative Agent, Collateral
Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the
Collateral or to enforce the Security Agreement or any other Security Documents, it being understood and agreed that all powers, rights
and remedies hereunder may be exercised solely by Agents, on behalf of the Secured Parties in accordance with the terms hereof, and all
powers, rights and remedies under the Security Documents may be exercised solely by Agents, and (ii) in the event of a foreclosure
by any of Agents on any of the Collateral pursuant to a public or private sale or other disposition, any Agent or any Lender may be the
purchaser or licensor of any or all of such Collateral at any such sale or other disposition and each Agent, as agent for and representative
of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall
otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations (including Obligations owed
to any other Secured Party) as a credit on account of the purchase price for any Collateral payable by such Agent at such sale or other
disposition.
SECTION 11.02. Delegation
of Duties. Each Agent may execute any of its duties under this Agreement and the other Credit Documents by or through agents or attorneys
in fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. No Agent shall be responsible for
the negligence or misconduct of any agents or attorneys in fact selected by it with reasonable care.
SECTION 11.03. Exculpatory
Provisions. Neither any Agent nor any of their respective officers, directors, employees, agents, attorneys in fact or
Affiliates shall be (a) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection
with this Agreement or any other Credit Document (except to the extent that any of the foregoing are found by a final and
non-appealable decision of a court of competent jurisdiction to have resulted from its or such Person’s own gross negligence,
bad faith or willful misconduct) or (b) responsible in any manner to any of the Lenders or any other Secured Party for any
recitals, statements, representations or warranties made by any Credit Party or any officer thereof contained in this Agreement or
any other Credit Document or in any certificate, report, statement or other document referred to or provided for in, or received by
Agents under or in connection with, this Agreement or any other Credit Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Credit Document or for any failure of any Credit Party or
other Person to perform its obligations hereunder or thereunder. Agents shall not be under any obligation to any Lender to ascertain
or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any
other Credit Document, or to inspect the properties, books or records of any Credit Party.
SECTION 11.04. Reliance
by Agents. Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any instrument, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements
of legal counsel (including counsel to the Credit Parties), independent accountants and other experts selected by such Agent. Agents
may deem and treat the payee of any note as the owner thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with Agents. Each Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Credit Document unless it shall first receive such advice or concurrence of Required Lenders (or, if so specified
by this Agreement, all or other requisite Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action.
Agents shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Credit Documents
in accordance with a request of Required Lenders (or, if so specified by this Agreement, all Lenders), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans and all other Secured
Parties.
SECTION 11.05. Notice
of Default. Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder, except with respect to any Default or Event of Default in the payment of principal, interest and fees required to be paid
to Administrative Agent for the account of the Lenders unless Administrative Agent has received notice from a Lender or a Borrower referring
to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. Collateral
Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless Collateral
Agent has received notice from a Lender or a Borrower referring to this Agreement, describing such Default or Event of Default and stating
that such notice is a “notice of default”. In the event that an Agent receives such a notice, such Agent shall give notice
thereof to the other Agent and the Lenders. Each Agent shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by Required Lenders (or, if so specified by this Agreement, all Lenders or any other instructing group of Lenders
specified by this Agreement); provided that unless and until each Agent shall have received such directions, Agents may (but shall
not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as such Agent
shall deem advisable in the best interests of the Secured Parties.
SECTION 11.06. Non-Reliance
on Agents and other Lenders. Each Lender (and, if applicable, each other Secured Party) expressly acknowledges that neither Agents,
Arranger, nor any of their respective officers, directors, employees, agents, attorneys in fact or Affiliates have made any representations
or warranties to it and that no act by any Agent or Arranger hereafter taken, including any review of the affairs of a Credit Party or
any Affiliate of a Credit Party, shall be deemed to constitute any representation or warranty by any Agent or Arranger to any Lender
or any other Secured Party. Each Lender (and, if applicable, each other Secured Party) represents to Agents and Arranger that it has,
independently and without reliance upon any Agent, Arranger or any other Lender or any other Secured Party, and based on such documents
and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, operations, property,
financial and other condition and creditworthiness of the Credit Parties and their Affiliates and made its own decision to make its Loans
hereunder. Each Lender (and, if applicable, each other Secured Party) also represents that it will, independently and without reliance
upon any Agent, Arranger or any other Lender or any other Secured Party, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Credit Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations,
property, financial and other condition and creditworthiness of the Credit Parties and their Affiliates. Except for notices, reports
and other documents expressly required to be furnished to the Lenders by any Agent or Arranger hereunder, Agents and Arranger shall not
have any duty or responsibility to provide any Lender or any other Secured Party with any credit or other information concerning the
business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Credit Party or any Affiliate
of a Credit Party that may come into the possession of such Agent or any of its officers, directors, employees, agents, attorneys in
fact or Affiliates.
SECTION 11.07. Indemnification.
The Lenders agree to indemnify each Agent in its capacity as such (to the extent not reimbursed by the Credit Parties and without
limiting the obligation of the Credit Parties to do so), ratably according to their respective Total Credit Exposure in effect on
the date on which indemnification is sought under this Section 11.07 (or, if indemnification is sought after the date
upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with such Total
Credit Exposure immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the
payment of the Loans) be imposed on, incurred by or asserted against such Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Credit Documents, or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted by such Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and non-appealable decision of a
court of competent jurisdiction to have resulted from such Agent’s gross negligence, bad faith or willful misconduct. The
agreements in this Section 11.07 shall survive the payment of the Loans and all other amounts payable
hereunder.
SECTION 11.08. Agent
in Its Individual Capacity. Each Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind
of business with any Credit Party as though such Agent were not an Agent. With respect to its Loans made or renewed by it, each Agent
shall have the same rights and powers under this Agreement and the other Credit Documents as any Lender and may exercise the same as
though it were not an Agent, and the terms “Lender”, “Lenders”, “Secured Party” and “Secured
Parties” shall include each Agent in its individual capacity.
SECTION 11.09. Successor
Agents. Either Agent may resign as Agent upon 20 days’ notice to the Lenders, such other Agent and Borrowers. If either Agent
shall resign as such Agent in its applicable capacity under this Agreement and the other Credit Documents, then Required Lenders shall
appoint a successor agent, which successor agent shall, unless an Event of Default shall have occurred and be continuing, be subject
to approval by Parent (which approval shall not be unreasonably withheld, delayed or conditioned), whereupon such successor agent shall
succeed to the rights, powers and duties of such Agent in its applicable capacity, and the term “Administrative Agent” or
“Collateral Agent”, as the case may be, shall mean such successor agent effective upon such appointment and approval, and
the former Agent’s rights, powers and duties as Agent in its applicable capacity shall be terminated, without any other or further
act or deed on the part of such former Agent or any of the parties to this Agreement or any holders of the Loans. If no applicable successor
agent has accepted appointment as such Agent in its applicable capacity by the date that is 20 days following such retiring Agent’s
notice of resignation, such retiring Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall assume
and perform all of the duties of such Agent hereunder until such time, if any, as Required Lenders appoint a successor agent as provided
for above. After any retiring Agent’s resignation as Administrative Agent or Collateral Agent, as applicable, the provisions of
this Article XI shall inure to its benefit as to any actions taken or omitted to be taken by it while it was an Agent under
this Agreement and the other Credit Documents.
SECTION 11.10. Agents
Generally. Except as expressly set forth herein, no Agent shall have any duties or responsibilities hereunder in its capacity as
such. Arranger shall not have any obligations or duties whatsoever in such capacity under this Agreement or any other Credit Document
and shall incur no liability hereunder or thereunder in such capacity, but Arranger and its Related Parties shall have the benefit of
the indemnities provided for hereunder.
SECTION 11.11. Restrictions
on Actions by Secured Parties; Sharing of Payments.
(a) Each
of the Lenders agrees that it shall not, without the express written consent of Collateral Agent, and that it shall, to the extent it
is lawfully entitled to do so, upon the written request of Collateral Agent, set off against the Obligations, any amounts owing by such
Lender to any Credit Party or any of their respective Subsidiaries or any deposit accounts of any Credit Party or any of their respective
Subsidiaries now or hereafter maintained with such Lender. Each of the Lenders further agrees that it shall not, unless specifically
requested to do so in writing by Collateral Agent, take or cause to be taken any action, including, the commencement of any legal or
equitable proceedings to enforce any Credit Document against any Credit Party or to foreclose any Lien on, or otherwise enforce any security
interest in, any of the Collateral.
(b) Subject
to Section 12.08(a), if, at any time or times any Lender shall receive (i) by payment, foreclosure, setoff, or otherwise,
any proceeds of Collateral or any payments with respect to the Obligations, except for any such proceeds or payments received by such
Lender from Agents pursuant to the terms of this Agreement, or (ii) payments from Agents in excess of such Lender’s pro rata
share of all such distributions by Agents, such Lender promptly shall (A) turn the same over to Collateral Agent, in kind, and with
such endorsements as may be required to negotiate the same to Collateral Agent, or in immediately available funds, as applicable, for
the account of all of the Lenders and for application to the Obligations in accordance with the applicable provisions of this Agreement,
or (B) purchase, without recourse or warranty, an undivided interest and participation in the Obligations owed to the other Lenders
so that such excess payment received shall be applied ratably as among the Lenders in accordance with their pro rata shares; provided
that to the extent that such excess payment received by the purchasing party is thereafter recovered from it, those purchases of
participations shall be rescinded in whole or in part, as applicable, and the applicable portion of the purchase price paid therefor
shall be returned to such purchasing party, but without interest except to the extent that such purchasing party is required to pay interest
in connection with the recovery of the excess payment.
(c) The
benefit of the provisions of the Credit Documents directly relating to the Collateral or any Lien granted thereunder shall extend to
and be available to any Secured Party that is not an Agent or a Lender as long as, by accepting such benefits, such Secured Party
agrees, as among Agents and all other Secured Parties, that such Secured Party is bound by (and, if requested by any Agent, shall
confirm such agreement in a writing in form and substance acceptable to the such Agent) this Article XI, including Sections
11.11(a) and (b), and the decisions and actions of Agents and Required Lenders (or, where expressly required by the
terms of this Agreement, a greater proportion of the Lenders) to the same extent a Lender is bound; provided that,
notwithstanding the foregoing, (i) except as set forth specifically herein, each Agent and each Lender shall be entitled to act
in its discretion, without regard to the interest of such Secured Party, regardless of whether any Obligation to such Secured Party
thereafter remains outstanding, is deprived of the benefit of the Collateral, becomes unsecured or is otherwise affected or put in
jeopardy thereby, and without any duty or liability to such Secured Party or any such Obligation and (ii) except as
specifically set forth herein, such Secured Party shall not have any right to be notified of, consent to, direct, require or be
heard with respect to, any action taken or omitted in respect of the Collateral or under any Credit Document.
(d) Without
limitation of any other provision in this Agreement, if at any time Administrative Agent makes a payment hereunder in error to any Lender,
whether or not in respect of an Obligation due and owing by Borrowers at such time, where such payment is a Rescindable Amount, then
in any such event, such Lender receiving a Rescindable Amount severally agrees to repay to Administrative Agent forthwith on demand the
Rescindable Amount received by such Lender in immediately available funds in the currency so received, with interest thereon, for each
day from and including the date such Rescindable Amount is received by it to but excluding the date of payment to Administrative Agent,
at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on
interbank compensation. Each Lender irrevocably waives any and all defenses, including any “discharge for value” (under which
a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) or similar
defense to its obligation to return any Rescindable Amount. Administrative Agent shall inform each Lender promptly upon determining that
any payment made to such Lender comprised, in whole or in part, a Rescindable Amount.
SECTION 11.12. Agency
for Perfection. Collateral Agent hereby appoints each other Secured Party as its agent and as sub-agent for the other Secured Parties
(and each Secured Party hereby accepts such appointment) for the purpose of perfecting all Liens with respect to the Collateral, including
with respect to assets which, in accordance with Article VIII or Article IX, as applicable, of the Uniform Commercial
Code of any applicable state can be perfected only by possession or control. Should any Secured Party obtain possession or control of
any such Collateral, such Secured Party shall notify Collateral Agent thereof, and, promptly upon Collateral Agent’s request therefor
shall deliver possession or control of such Collateral to Collateral Agent and take such other actions as agent or sub-agent in accordance
with Collateral Agent’s instructions to the extent, and only to the extent, so authorized or directed by Collateral Agent.
SECTION 11.13. Enforcement
by Agents. All rights of action under this Agreement, the Notes and the other Credit Documents shall be instituted, maintained, pursued
or enforced by Agents. Any suit or proceeding instituted by any Agent in furtherance of such enforcement shall be brought in such Agent’s
name without the necessity of joining any of the other Lenders. In any event, the recovery of any judgment by any Agent shall be for
the ratable benefit of all Secured Parties, subject to the reimbursement of expenses and costs of such Agent.
SECTION 11.14. Credit
Parties Not Beneficiaries. The provisions of this Article XI are solely for the benefit of Agents and Lenders, may not
be enforced by any Credit Party, and may be modified or waived without the approval or consent of the Credit parties.
SECTION 11.15. Intercreditor
and Subordination Agreements. Lenders hereby (a) authorize each Agent to execute and deliver any intercreditor agreement or
subordination agreement on behalf of Agents and Lenders and to perform its obligations thereunder and (b) agree to be bound by the
provisions of such documents.
ARTICLE XII
Miscellaneous
SECTION 12.01. Amendments
and Waivers. Neither this Agreement nor any other Credit Document, nor any terms hereof or thereof, may be amended, supplemented,
modified or waived except in accordance with the provisions of this Section 12.01. Required Lenders may, or, with the prior
written consent of Required Lenders, Administrative Agent may, from time to time, enter into with the relevant Credit Party or Credit
Parties written amendments, supplements or modifications hereto and to the other Credit Documents for the purpose of adding any provisions
to this Agreement or the other Credit Documents or changing in any manner the rights of the Lenders or the Credit Parties hereunder or
thereunder, waive, on such terms and conditions as Required Lenders or Administrative Agent, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or the other Credit Documents or any Default or Event of Default and its consequences
or consent to any acts or omissions of the Credit Parties hereunder or under any other Credit Document that, but for such consent, would
constitute a Default or Event of Default hereunder or thereunder; provided that no such waiver, amendment, supplement, modification,
consent or waiver shall directly or indirectly:
(a) (i) reduce
or forgive any portion of any Loan or extend the final scheduled maturity date of any Loan or reduce the stated interest rate (provided
that only the consent of Required Lenders shall be necessary to waive any obligation of Borrowers to pay interest at the Default
Rate or amend Section 2.04(d)), or (ii) reduce or forgive any portion or extend the date for the payment, of any interest
or fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates and other
than as a result of a waiver or amendment of any mandatory prepayment of Loans (which shall not constitute an extension, forgiveness
or postponement of any date for payment of principal, interest or fees)), or (iii) amend or modify any provisions of Section 4.02(d) or
any other provision that provides for the pro rata nature of disbursements by or payments to the Lenders, in each case without the written
consent of each Lender directly and adversely affected thereby;
(b) amend,
modify or waive any provision of this Section 12.01 or reduce the percentages specified in the definitions of the term
“Required Lenders” or consent to the assignment or transfer by any Credit Party of its rights and obligations under any
Credit Document to which it is a party (except as permitted pursuant to Section 9.03), in each case without the written
consent of each Lender directly and adversely affected thereby;
(c) increase
the aggregate amount of any Commitment of any Lender without the consent of such Lender;
(d) amend,
modify or waive any provision of Article XI without the written consent of the then-current Collateral Agent and Administrative
Agent; or
(e) release
(i) any Borrower, (ii) all or substantially all Guarantors under Article VI (except as expressly permitted by Article VI),
or (iii) any Liens in favor of Collateral Agent or the Lenders on all or substantially all of the Collateral under the Security
Documents (except as expressly permitted thereby and in Section 12.18), in each case without the prior written consent of
each Lender.
Notwithstanding the foregoing,
no amendment, modification or supplement of this Agreement or any other Credit Document shall be effective without the consent of the
Credit Parties unless otherwise expressly provided in this Agreement or such other Credit Document.
SECTION 12.02. Notices
and Other Communications; Facsimile Copies.
(a) General.
Unless otherwise expressly provided herein, all notices and other communications provided for hereunder or under any other Credit Document
shall be in writing (including by facsimile or other electronic transmission). All such written notices shall be mailed, faxed or delivered
to the applicable address or electronic mail address, and all notices and other communications expressly permitted hereunder to be given
by telephone shall be made to the applicable telephone number, as follows:
(i) if
to the Credit Parties or Agents, via overnight courier to the address and to the electronic mail address specified for such Person on
Schedule 12.02 or to such other address, or electronic mail address as shall be designated by such party in a notice to the other
parties; and
(ii) if
to any Lender, to the address, facsimile number, electronic mail address or, with respect to notices and other communications between
Secured Parties, telephone number specified (A) in Schedule 1.01, (B) after the Closing Date, in its Administrative
Questionnaire or (C) by such Lender in a notice to Parent and Agents.
All such notices and other
communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto
and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if
delivered by mail, five Business Days after deposit in the mails, postage prepaid; and (C) if delivered by electronic mail (which
form of delivery is subject to the provisions of Section 12.02(c)), when delivered if prior to 5:00 p.m. on a Business
Day, and if after 5:00 p.m. on a Business Day, on the next following Business Day. In addition to the foregoing, to be effective,
electronic mail notice must originate from an electronic mail address approved by all parties with at least 10 days’ advance written
notice to allow parties to allow their systems to properly recognize and allow for delivery of such messages.
(b) Effectiveness
of Facsimile Documents and Signatures. Credit Documents may be transmitted or signed by facsimile or other electronic communication.
The effectiveness of any such documents and signatures shall have the same force and effect as manually signed originals and shall be
binding on all Credit Parties, Agents and the Lenders.
(c) Reliance
by Agents and Lenders. Agents and the Lenders shall be entitled to rely and act upon any notices purportedly given by or on behalf
of any Credit Party even if such notices were not made in a manner specified herein, were incomplete or were not preceded or followed
by any other form of notice specified herein. To the extent permitted by Applicable Law, all telephonic communications with either Agent
may be recorded by such Agent, and each of the parties hereto hereby consents to such recording.
SECTION 12.03. No
Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of any Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Credit Documents shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
SECTION 12.04. Survival
of Representations and Warranties. All representations and warranties made hereunder and in the other Credit Documents shall survive
the execution and delivery of this Agreement and the making of the Loans hereunder.
SECTION 12.05. Payment
of Expenses and Taxes; Indemnification. Each Borrower agrees (a) to pay or reimburse each Agent and Arranger for all their
costs and expenses reasonably incurred (but limited, in the case of legal fees and expenses of each Agent and Arrangers, to the
reasonable fees, charges and disbursements of one primary counsel for Agents and Arranger, taken as a whole, and, if deemed
reasonably necessary by Administrative Agent, one local counsel to such Persons, taken as a whole, in any relevant jurisdiction) in
connection with due diligence in respect of the transactions contemplated by this Agreement, the development, preparation and
execution of, and any amendment, supplement, or modification to, this Agreement and the other Credit Documents, including in
connection with an initial syndication, and any other documents prepared in connection herewith or therewith, and the consummation,
monitoring, oversight and administration of the transactions contemplated hereby and thereby, (b) to pay or reimburse each
Lender and each Agent for all their costs and expenses reasonably incurred (but limited, in the case of legal fees and expenses of
each Lender and each Agent, to the reasonable fees, charges and disbursements of (i) a single primary counsel to Agents and
Lenders, taken as a whole, (ii) a single local counsel to Agents and Lenders, taken as a whole, in each appropriate
jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and (iii) in the event of any actual
or potential conflict of interest, one additional counsel for each party subject to such conflict) in connection with the exercise,
enforcement or preservation of any rights under this Agreement, the other Credit Documents and any such other documents, or in
connection with the Loans made hereunder, including all such costs and expenses incurred during any workout, restructuring or
negotiations in respect of such Loans, (c) to pay, indemnify, and hold harmless each Lender and Agents from any and all Other
Taxes, if any, that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent
under or in respect of, this Agreement, the other Credit Documents and any such other documents, (d) to pay or reimburse
Administrative Agent for all reasonable fees, costs and expenses incurred in exercising its rights under Section 8.15 and
(e) to pay, indemnify and hold harmless each Lender, Arranger and Agents and their respective Related Parties from and against
any and all other liabilities, obligations, losses, damages, fines, fees, penalties, actions, judgments, suits, and reasonable
costs, expenses or disbursements of any kind or nature whatsoever, including reasonable fees, disbursements and other charges of
counsel (but limited, in the case of such fees, disbursements and other charges, to the reasonable fees, disbursements and other
charges of (i) one primary counsel to all Indemnitees (taken as a whole), (ii) if deemed reasonably necessary by Agents,
of a single local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple
jurisdictions) for all such Indemnitees (taken as a whole) and (iii) solely in the case of an actual or potential conflict of
interest, one additional counsel to each group of similarly situated affected Indemnitees in each applicable jurisdiction), with
respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Credit Documents and
any such other documents, including any of the foregoing relating to a breach by any Credit Party of any representation or warranty
in any Credit Document or the violation of, noncompliance with or liability under, any Environmental Law or any actual or alleged
presence of Hazardous Materials applicable to the operations of each Credit Party, any of their respective Subsidiaries or any of
their Real Property (all the foregoing in this clause (d), collectively, the “Indemnified Liabilities”); provided
that the Credit Parties shall not have any obligation hereunder to Agents, Arranger or any Lender nor any of their Related Parties
with respect to Indemnified Liabilities arising from the gross negligence or willful misconduct of the party to be indemnified as
determined by a final and non-appealable decision of a court of competent jurisdiction. The agreements in this Section 12.05 shall
survive repayment of the Loans and all other amounts payable hereunder and termination of this Agreement. To the fullest extent
permitted by Applicable Law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any Lender, any
Agent and their respective Related Parties, on any theory of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Credit
Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, the Loans or the use
of the proceeds thereof. None of the Lenders, Agents, Arranger or any of their respective Related Parties shall be liable for any
damages arising from the use by unintended recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Credit
Documents or the transactions contemplated hereby or thereby, except to the extent any such damages arose from the gross negligence
or willful misconduct of such Lender, Agent, Arranger or Related Person as determined by a final and non-appealable decision of a
court of competent jurisdiction.
SECTION 12.06. Successors
and Assigns; Participations and Assignments; Replacement of Lenders.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that (i) except as set forth in Section 9.03, no Credit Party may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written consent of each Agent and each Lender (and any attempted
assignment or transfer by any Credit Party without such consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this Section 12.06. Nothing in this Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby, Participants (to the extent provided in Section 12.06(c)) and, to the extent expressly contemplated hereby, the Related
Parties of each of Agents and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. Notwithstanding
anything to the contrary herein, (x) any Lender shall be permitted to pledge or grant a security interest in all or any portion
of such Lender’s rights hereunder including any Loans (without the consent of, or notice to or any other action by, any other party
hereto) to secure the obligations of such Lender or any of its Affiliates to any Person providing any loan, letter of credit or other
extension of credit to or for the account of such Lender or any of its Affiliates and any agent, trustee or representative of such Person
and (y) Agents shall be permitted to pledge or grant a security interest in all or any portion of their respective rights hereunder
or under the other Credit Documents, including rights to payment (without the consent of, or notice to or any other action by, any other
party hereto), to secure the obligations of such Agent or any of its Affiliates to any Person providing any loan, letter of credit or
other extension of credit to or for the account of such Agent or any of its Affiliates and any agent, trustee or representative of such
Person.
(b) Subject
to the conditions set forth in Section 12.06(b)(ii), any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of its Commitments or the Loans at the time owing to it)
with the prior written consent (which consent, in each case, shall not be unreasonably withheld, conditioned or delayed) of
Administrative Agent; provided that no consent of Administrative Agent shall be required for an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund and the withholding of consent by Administrative Agent to an assignment to any Affiliate
of any Credit Party shall be deemed to be not unreasonable;
(i) Assignments
shall be subject to the following additional conditions:
(A) except
in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount
of the assigning Lender’s Commitments or Loans, the amount of the Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Administrative Agent) shall
not be less than $1,000,000, unless Administrative Agent otherwise consents, which consent, in each case, shall not be unreasonably withheld
or delayed; provided, however, that contemporaneous assignments to a single assignee made by Affiliates or related Approved
Funds and contemporaneous assignments by a single assignor to Affiliates or related Approved Funds shall be aggregated for purposes of
meeting the minimum assignment amount requirement stated above;
(B) each
partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement as to the Loans so assigned; provided that this paragraph shall not be construed to prohibit the assignment
of a proportionate part of all the assigning Lender’s rights and obligations in respect its Loans;
(C) the
parties to each assignment shall execute and deliver to Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500; provided that only one such fee shall be payable in connection with simultaneous assignments to
two or more Approved Funds;
(D) the
assignee, if it shall not be a Lender, shall deliver to Administrative Agent an Administrative Questionnaire; and
(E) unless
consented to by Required Lenders, no assignment may be made to a Credit Party or an Affiliate of a Credit Party.
(ii) Subject
to acceptance and recording thereof pursuant to Section 12.06(b)(iv), from and after the effective date specified in each
Assignment and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall
cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.04, 4.03(b) and 12.05).
Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 12.06
shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance
with Section 12.06(c).
(iii) Administrative
Agent, acting for this purpose on behalf of Borrowers (but not as an agent, fiduciary or for any other purposes), shall maintain a copy
of each Assignment and Acceptance delivered to it and a register in the United States for the recordation of the names and addresses
of the Lenders, and the Commitments of, and principal amount (and stated interest) of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”). Further, the Register shall contain the name and address of
Administrative Agent and the lending office through which each such Person acts under this Agreement. The entries in the Register shall
be conclusive absent manifest error, and the Credit Parties, Agents and the Lenders shall treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register, as in effect at the close of business on the preceding Business Day, shall be available for inspection by any Borrower
and any Lender, including pursuant to e-mail or other electronic means, at any reasonable time and from time to time upon reasonable
prior notice.
(iv) Upon
its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, the assignee’s completed
Administrative Questionnaire (unless the assignee shall already be a Lender hereunder) and any written consent to such assignment required
by Section 12.06(b)(i), Administrative Agent shall accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for purposes of this Agreement unless and until it has been recorded in the
Register as provided in this Section 12.06(b).
(v) In
no event will any Credit Party be obligated to pay or reimburse any costs or expenses incurred by any Agent, Lender or assignee in connection
with this Section 12.06(b).
(c) Any
Lender may, without the consent of Borrowers or Agents, sell participations to one or more banks or other entities (each, a
“Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) Borrowers, Agents and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) no such
Participant may be a Credit Party or an Affiliate of a Credit Party. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and, as between such
Lender, the Credit Parties, Agents and the other Lenders, to approve any amendment, modification, consent or waiver of any provision
of this Agreement or any other Credit Document; provided that, notwithstanding the foregoing, such agreement or instrument
may provide that (x) if such Participant is an Affiliate of such Lender, the Participant may, as between itself and such Lender
(but not as between such Lender, Agents, the Credit Parties and the other Lenders), approve any amendment, modification, consent or
waiver of any provision of this Agreement or any other Credit Document and (y) such Lender will not, without the consent of the
Participant agree to any amendment, modification, consent or waiver described in clause (i) of the first proviso to Section 12.01.
Subject to Section 12.06(c)(ii), each Borrower agrees that each Participant shall be entitled to the benefits of
Section 2.04 and 4.04(a) to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to Section 12.06(b). To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 12.08(a) as though it were a Lender; provided that such Participant agrees to be subject
to Section 12.08(a) as though it were a Lender.
(i) A
Participant shall not be entitled to receive any greater payment under Section 2.04 or 4.04(a) than the applicable
Lender would have been entitled to receive with respect to the participation sold to such Participant, (A) unless the sale of the
participation to such Participant is made with Borrowers’ prior written consent, and (B) except to the extent such entitlement
to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation; provided
that such Change in Law would have been applicable to the Lender from whom the participation was acquired. A Participant that would
be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 4.03(b) that are greater than
the applicable Lender unless Borrowers are notified of the participation sold to such Participant and such Participant agrees, for the
benefit of Borrowers, to comply with Sections 4.04(a) and 4.04(c) as though it were a Lender.
(ii) Each
Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of Borrowers, maintain at one of its
offices in the United States a register on which it enters the name and address of each Participant and the principal amounts (and stated
interest) of each Participant’s interest in the Loans or other obligations under the Credit Documents (the “Participant
Register”). The entries in the Participant Register shall be conclusive absent manifest error, and the Lender shall treat
each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement.
No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant
or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under
any Credit Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter
of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. For
the avoidance of doubt, Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a
Participant Register.
(d) Nothing
herein is intended to prevent, impair, limit or otherwise restrict the ability of a Lender to collaterally assign or pledge all or any
portion of its interests in the Loans and the other rights and benefits under the Credit Documents to an unaffiliated third party lender
of such Lender (each such Person, a “Collateral Assignee”); provided that unless and until Parent receives
notification from a Collateral Assignee of such assignment directing payments to be made to such Collateral Assignee, any payment made
by Borrowers for the benefit of such Lender in accordance with the terms of the Credit Documents shall satisfy Borrowers’ obligations
thereunder to the extent of such payment. Any such Collateral Assignee, upon foreclosure of its security interests in the Loans pursuant
to the terms of such assignment and in accordance with Applicable Law, shall succeed to all the interests of or shall be deemed to be
a Lender, with all the rights and benefits afforded thereby, and such transfer shall not be deemed to be a transfer for purposes of and
otherwise subject to the provisions of this Section 12.06. Notwithstanding the foregoing, Lender shall remain responsible for all
obligations and liabilities arising hereunder or under any other Credit Document, and, except as otherwise expressly set forth in any
applicable pledge or assignment, nothing herein is intended or shall be construed to impose any obligations upon or constitute an assumption
by a Collateral Assignee thereof.
SECTION 12.07. Pledge
of Loans. The Credit Parties hereby acknowledge that the Lenders and their Affiliates may pledge the Loans as collateral security
for loans to the Lenders or their Affiliates. The Credit Parties shall, to the extent commercially reasonable, cooperate with the Lenders
and their Affiliates to effect such pledges at the sole cost and expense of such Lender. Notwithstanding the foregoing, no pledge shall
release the Lender party thereto from any of its obligations hereunder.
SECTION 12.08. Adjustments;
Set-off.
(a) If
any Lender (a “Benefited Lender”) shall at any time receive any payment of all or part of its Loans, or
interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events
or proceedings of the nature referred to in Section 10.01(h), or otherwise), in a greater proportion than any such
payment to or collateral received by any other Lender, if any, in respect of such other Lender’s Loans or interest thereon,
such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of each such other
Lender’s Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders; provided that if all or any portion of such excess payment or benefits is thereafter recovered from
such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. The foregoing provisions of this Section 12.08 shall not apply to payments made and
applied in accordance with the terms of this Agreement and the other Credit Documents.
(b) After
the occurrence and during the continuance of an Event of Default, to the extent consented to by Administrative Agent, in addition to
any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to any Borrower or any
other Credit Party, any such notice being expressly waived by the Credit Parties to the extent permitted by Applicable Law, upon any
amount becoming due and payable by any Credit Party hereunder (whether at the stated maturity, by acceleration or otherwise) to set-off
and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final, but excluding
the Excluded Accounts or deposit accounts that consist of cash collateral subject to Permitted Liens), and any other credits, indebtedness
or claims, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender
or any branch or agency thereof to or for the credit or the account of any Credit Party, as the case may be. Each Lender agrees promptly
to notify Parent and Agents after any such set-off and application made by such Lender; provided that the failure to give such notice
shall not affect the validity of such set-off and application.
SECTION 12.09. Counterparts.
(a) This
Agreement may be executed in any number of counterpart signature pages, and by the different parties on different counterparts, each
of which when executed shall be deemed an original but all such counterparts taken together shall constitute one and the same instrument.
This Agreement will be deemed executed by the parties hereto when each has signed it and delivered its executed signature page to
Administrative Agent by facsimile transmission, electronic transmission or physical delivery. Delivery of an executed counterpart of
a signature page of this Agreement by facsimile or in electronic (e.g., “pdf,” “tif” or DocuSign) format
shall be effective as delivery of a manually executed counterpart of this Agreement. No party hereto shall raise the use of digital imaging,
DocuSign or electronic mail to deliver a signature or the fact that any signature was transmitted or communicated through the use of
a facsimile machine or digital imaging and electronic mail as a defense to the formation of a contract and each such party forever waives
any such defense.
(b) The
words “execution,” “signed,” “signature,” and words of like import in any Credit Document shall be
deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to
the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the Illinois State Electronic Commerce Security Act, any other similar state laws based on the Uniform Electronic Transactions Act, Parts
2 and 3 of the Personal Information Protection and Electronic Documents Act (Canada), the Electronic Commerce Act, 2000
(Ontario), or any other similar federal or provincial laws based on the Uniform Electronic Commerce Act of the Uniform Law Conference
of Canada or its Uniform Electronic Evidence Act, as the case may be.
SECTION 12.10. Severability.
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 12.11. Integration.
This Agreement, the other Credit Documents and the Warrant Agreements represent the agreement of the Credit Parties, Agents and the Lenders
with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by any party hereto
or thereto relative to the subject matter hereof not expressly set forth or referred to herein or in the other Credit Documents.
SECTION 12.12. GOVERNING
LAW. THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS (UNLESS EXPRESSLY PROVIDED OTHERWISE THEREIN) AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW 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.
SECTION 12.13. Submission
to Jurisdiction; Waivers. Each party hereto hereby irrevocably
and unconditionally:
(a) submits,
for itself and its property, to the exclusive jurisdiction of any state court of the state of Illinois sitting in Cook County and of
the United States District Court of the Northern District of Illinois, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to any Credit Document, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be
heard and determined in such Illinois State court or, to the extent permitted by Applicable Laws, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by Applicable Laws. Nothing in this Agreement or any other
Credit Document or otherwise shall affect any right that Administrative Agent, Collateral Agent or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Credit Document against any Credit Party or its properties in
the courts of any jurisdiction in connection with the exercise of any rights under any Security Document or the enforcement of any
judgment;
(b) consents
that any such action or proceeding shall be brought in such courts, and agrees not to plead or claim and waives, to the fullest extent
permitted by Applicable Laws, any objection that it may now or hereafter have to the venue of any such action or proceeding arising out
of or relating to this Agreement or any other Credit Document in any court referred to in Section 12.13(a). Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by Applicable Law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court;
(c) agrees
that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the applicable party at its respective address set forth in Schedule
12.02 or at such other address of which Agents shall have been notified pursuant to Section 12.02. Nothing in this Agreement
or any other Credit Document will affect the right of any party to this Agreement to serve process in any other manner permitted by Applicable
Law;
(d) waives,
to the maximum extent not prohibited by law, all rights of rescission, setoff, counterclaims, and other defenses in connection with the
repayment of the Obligations; and
(e) waives,
to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to
in this Section 12.13 any special, exemplary, punitive or consequential damages.
SECTION 12.14. Acknowledgments.
Each Credit Party hereby acknowledges that:
(a) it
has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Credit Documents;
(b) neither
Agents, Arranger, nor any Lender has any fiduciary relationship with or duty to the Credit Parties arising out of or in connection with
this Agreement or any of the other Credit Documents, and the relationship between any Agent, Arranger and the Lenders, on one hand, and
the Credit Parties, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
(c) no
joint venture is created hereby or by the other Credit Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Credit Parties and the Lenders.
SECTION 12.15. WAIVERS
OF JURY TRIAL. THE CREDIT PARTIES, AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 12.16. Confidentiality.
Each Agent and Lender shall hold all non-public information relating to any Credit Party or any Subsidiary of any Credit Party obtained
pursuant to the requirements of this Agreement or in connection with such Lender’s evaluation of whether to become a Lender hereunder
(“Confidential Information”) confidential in accordance with its customary procedure for handling confidential
information of this nature and (in the case of a Lender that is a bank) in accordance with safe and sound banking practices (it being
understood that each such Agent or Lender that becomes a party to this Agreement after the Closing Date will be informed of the confidential
nature of such information and bound by this Section 12.16); provided that Confidential Information may be disclosed by any
Agent or Lender:
(a) as
required or requested by any governmental or regulatory agency or representative thereof;
(b) if
and to the extent required pursuant to legal or regulatory process;
(c) as
reasonably required in connection with the enforcement of any rights or exercise of any remedies by such Agent or Lender under this Agreement
or any other Credit Document or any action or proceeding relating to this Agreement or any other Credit Document;
(d) to
such Agent’s or Lender’s attorneys, professional advisors, accountants, independent auditors, clients, service providers
or Affiliates; provided that such recipient is bound by an obligation not to disclose such Confidential Information,
(e) in
connection with:
(i) the
establishment of any special purpose funding vehicle with respect to the Loans,
(ii) any
pledge permitted under Section 12.07;
(iii) any
prospective assignment of, or participation in, its rights and obligations pursuant to Section 12.06, to prospective assignees
or Participants, as the case may be (it being understood that each such Persons will be informed of the confidential nature of such information
and instructed to keep such information confidential on the same terms as this Section 12.16); and
(iv) any
actual or proposed credit facility for loans, letters of credit or other extensions of credit to or for the account of such Agent or
Lender or any of its Affiliates, to any Person providing or proposing to provide such loan, letter of credit or other extension of credit
or any agent, trustee or representative of such Person (it being understood that each such Persons will be informed of the confidential
nature of such information and instructed to keep such information confidential on the same terms as this Section 12.16);
or
(f) to
any rating agency;
(g) with
the consent of Parent; or
(h) to
the extent required, or to the extent counsel to Agents or to any Lender reasonably determines is required to be disclosed in connection
with any public filing by Agents or such Lender;
provided
that in the case of clause (e) hereof, the Person to whom Confidential Information is so disclosed is advised of and
has been directed to comply with the provisions of this Section 12.16. The applicable Agent or Lender shall endeavor to provide
prior notice to Parent of any disclosure permitted under clauses (a), (b), (f) or (h) and a reasonable opportunity to obtain
a protective order from the Person to whom Confidential Information is to be provided, in each case, if the circumstances of such disclosure
so allow and only if permitted under Applicable Law; provided, however, that the failure to provide, or endeavor to provide,
any such notice or to provide a reasonable opportunity to obtain a protective order shall not be deemed a default or breach of this Agreement
by any Secured Party.
Notwithstanding the foregoing,
each Agent and each Lender shall have the right to publicize, for general marketing and related promotional purposes, their relationship
to the Credit Parties and the fact that they have extended the Loans to the Credit Parties (the “Promotional Rights”)
with the consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, and, in connection therewith, each
Credit Party hereby grants to each Agent and each Lender a royalty free, non-exclusive limited license to use such Credit Party’s
name and logos, now existing or hereafter acquired, in any literature, advertisements, websites, promotional or other marketing materials
now or hereafter used by such Agent or Lender.
Notwithstanding the foregoing,
no Agent or Lender shall have any obligation to keep information confidential if such information: (i) is or becomes public from
a source other than an Agent or a Lender, or one of an Agent’s or a Lender’s Affiliates, consultants or legal or financial
advisors in breach of this Agreement, (ii) is, was or becomes known on a non-confidential basis to or discovered by an Agent, any
Lender or any of their Affiliates, consultants or legal or financial advisors independently from communications by or on behalf of any
Credit Party, or (iii) is independently developed by an Agent without use of such confidential information, provided that,
the source of such information was not known to be bound by a confidentiality agreement with (or subject to any other contractual, legal
or fiduciary obligation of confidentiality to) the relevant Credit Party.
EACH AGENT AND EACH LENDER
ACKNOWLEDGES THAT CONFIDENTIAL INFORMATION (AS DEFINED IN THIS SECTION 12.16) FURNISHED TO IT PURSUANT TO THIS AGREEMENT
MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING ANY CREDIT PARTY AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES,
AND CONFIRMS THAT IT HAS DEVELOPED COMMERCIALLY REASONABLE COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION
AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL
AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING
WAIVERS AND AMENDMENTS, FURNISHED BY THE CREDIT PARTIES OR ANY AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL
BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE CREDIT PARTIES AND THEIR RELATED PARTIES
OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE CREDIT PARTIES AND AGENTS THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE
QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH
ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
SECTION 12.17. Press
Releases, Etc. Except if and to the extent required by Applicable Law, each Credit Party will not, and will not permit any of its
respective Subsidiaries, directly or indirectly, to publish any press release or other similar public disclosure or announcements (including
any marketing materials) regarding this Agreement, the other Credit Documents, or any of the Transactions, without the consent of Administrative
Agent, which consent shall not be unreasonably withheld.
SECTION 12.18. Releases
of Guarantees and Liens. Notwithstanding anything to the contrary contained herein or in any other Credit Document, Collateral Agent
is hereby irrevocably authorized by each Secured Party (without requirement of notice to or consent of any Secured Party) to take any
action requested by Borrowers having the effect of releasing any Liens on Collateral or guarantee obligations (i) to the extent
necessary to permit consummation of any transaction not prohibited by any Credit Document or that has been consented to in accordance
with Section 12.01 or (ii) under the circumstances described in Section 12.18(b).
(a) At
such time as (i) the Loans and the other Obligations (other than Unasserted Contingent Obligations) shall have been paid in full
and (ii) the Commitments have been terminated, the Collateral shall be released from the Liens created by the Security Documents,
and the Security Documents and all obligations (other than those expressly stated to survive such termination) of Collateral Agent and
each Credit Party under the Security Documents shall terminate, all without delivery of any instrument or performance of any act by any
Person.
(b) Upon
request by Collateral Agent at any time, Required Lenders will confirm in writing Collateral Agent’s authority to release its interest
in particular types or items of property, or to release any guarantee obligations pursuant to this Section 12.18. In each
case as specified in this Section 12.18, Collateral Agent will (and each Lender irrevocably authorizes Collateral Agent
to), at Borrowers’ expense, execute and deliver to the applicable Credit Party such documents as such Credit Party may reasonably
request to evidence the release of such item of Collateral or guarantee obligation from the assignment and security interest granted
under the Security Documents, in each case in accordance with the terms of the Credit Documents and this Section 12.18.
SECTION 12.19. USA
Patriot Act. Each Lender hereby notifies each Credit Party that pursuant to the requirements of the Patriot Act, it is required to
obtain, verify and record information that identifies the Credit Parties, which information includes the name and address of each Credit
Party and other information that will allow such Lender to identify each Credit Party in accordance with the Patriot Act. Each Credit
Party agrees to provide all such information to the Lenders upon request by any Agent at any time, whether with respect to any Person
who is a Credit Party on the Closing Date or who becomes a Credit Party thereafter.
SECTION 12.20. No
Fiduciary Duty. Each Credit Party, on behalf of itself and its Subsidiaries, agrees that in connection with all aspects of the transactions
contemplated hereby and any communications in connection therewith, the Credit Parties, their respective Subsidiaries and Affiliates,
on the one hand, and Agents, Arranger, the Lenders and their respective Affiliates, on the other hand, will have a business relationship
that does not create, by implication or otherwise, any fiduciary duty on the part of Agents, Arranger, the Lenders or their respective
Affiliates, and no such duty will be deemed to have arisen in connection with any such transactions or communications.
SECTION 12.21. Authorized
Officers. The execution of any certificate requirement hereunder by an Authorized Officer shall be considered to have been done solely
in such Authorized Officer’s capacity as an officer of the applicable Credit Party (and not individually). Notwithstanding anything
to the contrary set forth herein, each of the Secured Parties shall (a) be entitled to rely and act on any certificate, notice or
other document delivered by or on behalf of any Person purporting to be an Authorized Officer of a Credit Party unless such Secured Party
shall have received prior written notice to the contrary from Parent and (b) have no duty to inquire as to the actual incumbency
or authority of such Person.
SECTION 12.22. Subordination
of Intercompany Indebtedness. The Credit Parties hereby agree that all present and future Indebtedness of any Credit Party to any
other Credit Party (“Intercompany Indebtedness”) shall be subordinate and junior in right of payment and priority
to the Obligations, and each Credit Party agrees not to make, demand, accept or receive any payment in respect of any present or future
Intercompany Indebtedness, including any payment received through the exercise of any right of setoff, counterclaim or cross claim, or
any collateral therefor, unless and until such time as the Obligations shall have been indefeasibly paid in full; provided that,
so long as no Default or Event of Default shall have occurred and be continuing and no Default or Event of Default shall be caused thereby
and such Indebtedness is expressly permitted hereunder, the Credit Parties may make and receive such payments in respect of Intercompany
Indebtedness as shall be customary in the ordinary course of the Credit Parties’ business. Without in any way limiting the foregoing,
in any Insolvency Event, or any receivership, liquidation, reorganization, dissolution or other similar proceedings relative to any Credit
Party or to its businesses, properties or assets, the Lenders shall be entitled to receive payment in full of all of the Obligations
before any Credit Party shall be entitled to receive any payment in respect of any present or future Intercompany Indebtedness.
SECTION 12.23. Electronic
Communication. Each Credit Party agrees that Administrative Agent may, but shall not be obligated to, make the Communications available
to the Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission
system (the “Platform”). The Platform is provided “as is” and “as available.”
SECTION 12.24. Original
Issue Discount. The Credit Parties, Administrative Agent and the Lenders, as applicable, agree (i) that the Notes are debt for
federal income Tax purposes, (ii) that the Notes and the Warrant Agreements issued to the Lenders constitute a single debt instrument
for purposes of Sections 1271 through 1275 of the Code and the Treasury Regulations thereunder (pursuant to Treasury Regulations Section 1.1275-2(c)),
that such debt instrument is issued with original issue discount (“OID”), and that such debt instrument is
described in Treasury Regulations Section 1.1272-1(c)(2) and therefore is governed by the rules set out in Treasury Regulations
Section 1.1272-1(c), including Section 1.1272-1(c)(5), and is not governed by the rules set out in Treasury Regulations
Section 1.1275-4, (iii) that the Lenders shall have 30 days to review and approve any calculation by the Credit Parties regarding
the amount of OID for any accrual period on the Notes and the Warrant Agreements, as applicable, such approval not to be unreasonably
withheld, (iv) not to file any Tax Return, report or declaration inconsistent with the foregoing, unless otherwise required by Applicable
Law and (v) any such OID shall constitute principal for all purposes under this Agreement.
SECTION 12.25. Tax
Treatment. Borrowers and the Lenders agree that the Loans are indebtedness of Borrowers for U.S. federal income Tax purposes. Each
party to this Agreement agrees not to take any Tax position inconsistent with such Tax characterization and shall not report the transactions
arising under this Agreement in any manner other than the issuance of debt obligations on all applicable Tax returns unless otherwise
required by a final determination within the meaning of Section 1313(a) of the Code (or a similar final determination under
applicable state or local Law).
SECTION 12.26. Trading
of Parent Capital Stock. Each of the Lenders hereby represents and warrants that, as of the Closing Date, such Lender has not sold
any Capital Stock of Parent in the 10 Business Days prior to the Closing Date.
ARTICLE XIII
Additional Covenants and Agreements.
SECTION 13.01. Cannabis
Laws. Agents and the Credit Parties acknowledge that although certain U.S. State Cannabis Laws have legalized the cultivation, distribution,
sale and possession of cannabis and related products, (a) the nature and scope of U.S. Federal Cannabis Laws may result in circumstances
where activities permitted under U.S. State Cannabis Laws may contravene U.S. Federal Cannabis Laws and (b) engagement in Restricted
Cannabis Activities may contravene U.S. Federal Cannabis Laws. Accordingly, for the purpose hereof, each representation, covenant and
other provision hereof relating to compliance with Applicable Law will be subject to the following: (i) engagement in any activity
that is permitted by U.S. State Cannabis Laws but contravenes U.S. Federal Cannabis Laws, and in respect of which the applicable Government
Authorities have agreed, or are bound by Applicable Law (e.g., the proposed Secure and Fair Enforcement (SAFE) Banking Act (H.R. 1595)
and the proposed Clarifying Law Around Insurance of Marijuana (CLAIM) Act (H.R. 4074 and Senate Bill 2201)), to forego or have otherwise
suspended prosecution and enforcement of such U.S. Federal Cannabis Laws will not, in and of itself, be deemed to be non-compliance with
Applicable Law; (ii) engagement in any Restricted Cannabis Activity will be deemed to be non-compliance with Applicable Law; and
(iii) if any Change in Cannabis Law results in the business activities of any Credit Party becoming Restricted Cannabis Activities,
such Change in Cannabis Law will be deemed to have had a Material Adverse Effect. Nothing contained in this Agreement shall require the
Credit Parties to violate any provision of U.S. State Cannabis Laws or attending regulations, as applicable.
[Remainder of page intentionally left blank;
signature pages deleted.]
ANNEX B
SCHEDULE 1.01 TO CREDIT AGREEMENT
SCHEDULE 1.01
Existing Loans Commitments
Lender | |
Aggregate Outstanding
Principal Amount | | |
Pro Rata Portion | |
Chicago Atlantic Lincoln, LLC | |
$ | 21,066,737.62 | | |
| 34.584100 | % |
Chicago Atlantic Credit Company, LLC | |
$ | 15,934,012.93 | | |
| 26.157989 | % |
Chicago Atlantic Credit Opportunity Portfolio, LP | |
$ | 23,913,766.65 | | |
| 39.257911 | % |
TOTAL | |
$ | 60,914,517.20 | | |
| 100.00000 | % |
2024 Convertible Note Commitments
Lender | |
Commitment | | |
Pro Rata Portion | |
Chicago Atlantic Opportunity Finance, LLC | |
$ | 10,000,000.00 | | |
| 100.000000 | % |
TOTAL | |
$ | 10,000,000.00 | | |
| 100.000000 | % |
Notice
Addresses for each Lender on the Ninth Amendment Date:
Chicago Atlantic Lincoln, LLC
Chicago Atlantic Credit Company, LLC
Chicago Atlantic Opportunity Portfolio, LP
Chicago Atlantic Opportunity Finance, LLC
c/o Chicago Atlantic Admin, LLC
420 N Wabash Avenue, Suite 500
Chicago, Illinois 60611
Attention: Loan Department
Email: portfolio@greenivycapital.com and reporting@chicagoatlantic.com
ANNEX C
EXHIBIT F TO CREDIT AGREEMENT
See attached.
UNLESS PERMITTED UNDER SECURITIES LEGISLATION,
THE HOLDER OF THIS 2024 CONVERTIBLE NOTE MUST NOT TRADE THE CAPITAL STOCK OBTAINED HEREUNDER BEFORE MARCH 2, 2025.
THIS 2024 CONVERTIBLE NOTE AND THE CAPITAL STOCK
ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
OR UNDER THE SECURITIES LAWS OF ANY STATE IN THE UNITED STATES. THIS 2024 CONVERTIBLE NOTE AND THE CAPITAL STOCK ISSUABLE UPON THE CONVERSION
HEREOF ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER
THE SECURITIES ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
2024 CONVERTIBLE NOTE
| $$10,000,000.00 | November 1,
2024 |
FOR VALUE RECEIVED, the undersigned
(collectively, “Borrowers”), hereby jointly and severally promise to pay to CHICAGO ATLANTIC OPPORTUNITY FINANCE,
LLC (together with its successors and assigns, “Lender”), at the office of Administrative Agent (as defined
below), the sum of the maximum principal sum of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00) or, if less, the sum of the aggregate
unpaid principal amount of the 2024 Convertible Note Loans made by Lender to Borrowers pursuant to that certain Credit Agreement dated
as of March 25, 2021 (as amended, amended and 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 Borrowers, the other Credit Parties from time to time party thereto, Lender and the other lenders from
time to time party thereto and CHICAGO ATLANTIC ADMIN, LLC, as administrative agent for the lenders (in such capacity, “Administrative
Agent”) and as collateral agent for the Secured Parties, in lawful money of the United States of America in immediately
available funds, and to pay interest from the date hereof on the principal amount thereof from time to time outstanding, in like funds,
at said office, at the rate or rates per annum and payable on such dates as provided in the Credit Agreement.
1. Payment
of Interest. Borrowers hereby, jointly and severally, promise to pay interest, on demand, on any overdue principal and, to the extent
permitted by law, overdue interest from their due dates at a rate or rates provided in the Credit Agreement.
2. Conversion.
(a) At
any time by written notice to Parent, Lender may, in its sole and absolute discretion, elect to convert the outstanding principal amount
of this 2024 Convertible Note (this “Note”) and all accrued but unpaid interest with respect thereto into that
number of shares of Subordinate Voting Shares of Parent determined by dividing the outstanding principal amount plus all accrued but
unpaid interest of this Note on the date of such conversion by a conversion price (the “Conversion Price”)
equal to $0.625. The rights of conversion set forth in this Note and in all other 2024 Convertible Notes shall be exercised in whole,
and not in part, on the same date.
(b) Notwithstanding
anything in this Note to the contrary, any (i) Subordinated Voting Shares, (ii) dividends, (iii) distributions, (iv) shares
or other securities or property in connection with a Capital Reorganization (as defined below) or (v) other amounts or property
(other than any payment of interest due with respect to the 2024 Convertible Note Loans, which shall be paid to Lender), in each case,
to be delivered or paid to Lender pursuant to this Note shall be delivered or paid by Parent to Lender, or to such other Person or Persons
designated by Lender. If such delivery is of Subordinated Voting Shares, such delivery shall be in the form of either, at the option
of Lender or such Person or Persons, a certificate or certificates or direct registration system (DRS) Advice(s) representing such
Subordinate Voting Shares and register such certificate or certificates or DRS Advice(s) in the name of such recipient(s).
(c) If
the conversion of this Note would result in the issuance of a fractional share, Parent shall, in lieu of issuance of any fractional share,
pay Lender, or to such other Person or Persons as designated by Lender, a sum in cash equal to the product resulting from multiplying
the then current fair market value of one Subordinate Voting Share of Parent by such fraction.
3. Adjustment
to Conversion Price and Number of Subordinate Voting Shares of Parent Issuable upon Conversion of this Note. The Conversion Price
and the number of Subordinate Voting Shares of Parent issuable to Lender upon conversion of this Note shall be subject to adjustment
from time to time as follows:
(a) If,
at any time prior to the 2024 Convertible Note Maturity Date, Parent shall:
(i) subdivide,
redivide or change its then outstanding Subordinate Voting Shares into a greater number of Subordinate Voting Shares of Parent;
(ii) consolidate,
reduce or combine its then outstanding Subordinate Voting Shares into a lesser number of Subordinate Voting Shares of Parent; or
(iii) fix
a record date for the issue of, or issue, Subordinate Voting Shares of Parent, or any securities of Parent (other than the Warrant Agreements
issuable pursuant to the Credit Agreement), directly or indirectly, convertible into or exchangeable for Subordinate Voting Shares of
Parent (“Convertible Securities”), to all or substantially all of the holders of Subordinate Voting Shares
of Parent as a stock dividend or other distribution (other than a dividend paid in the ordinary course or Subordinate Voting Shares of
Parent received, at the holder’s option, in lieu of a cash dividend paid in the ordinary course);
(any such event being referred to as a “Subordinate
Voting Share Reorganization”), the Conversion Price shall be adjusted, effective immediately after the effective date or
record date at which holders of Subordinate Voting Shares of Parent are determined for purposes of the Subordinate Voting Share Reorganization,
by multiplying the Conversion Price in effect immediately prior to such effective date or record date, by a fraction of which:
(A) the
numerator shall be the total number of Subordinate Voting Shares of Parent outstanding on such date before giving effect to such Subordinate
Voting Share Reorganization; and
(B) the
denominator shall be the number of Subordinate Voting Shares of Parent outstanding immediately after giving effect to such Subordinate
Voting Share Reorganization (including, in the case of a distribution of Convertible Securities, the number of Subordinate Voting Shares
of Parent that would have been outstanding if such Convertible Securities had been exchanged for or converted into Subordinate Voting
Shares of Parent on such date).
To the extent that any adjustment
in the Conversion Price occurs pursuant to Section 3(a)(iii) as a result of the fixing by Parent of a record date for
the distribution of Convertible Securities, the Conversion Price shall be readjusted after the expiration of any relevant exchange or
conversion right to the number of Subordinate Voting Shares of Parent which would then be in effect based upon the number of Subordinate
Voting Shares of Parent actually issued and remaining issuable after such expiration.
(b) If,
at any time prior to the 2024 Convertible Note Maturity Date, Parent fixes a record date for the issuance of rights, options or warrants
to all or substantially all the holders of Subordinate Voting Shares of Parent pursuant to which those holders are entitled to subscribe
for, purchase or otherwise acquire Subordinate Voting Shares of Parent or Convertible Securities within a period of not more than 45
days from such record date at a price per share (or at a conversion price per share) of less than 95.00% of the Current Market Price
(as defined below) on such record date (any of such issuance being referred to as a “Rights Offering” and the Subordinate
Voting Shares of Parent that may be acquired under the Rights Offering, or upon exchange or conversion of Convertible Securities acquired
under the Rights Offering, being referred to as the “Offered Shares”), the Conversion Price shall be adjusted, effective
immediately after such record date, by multiplying the Conversion Price in effect on such record date by a fraction:
(i) the
numerator of which shall be the sum of:
(A) the
total number of Subordinate Voting Shares of Parent outstanding as of the record date for the Rights Offering; and
(B) a
number equal to the quotient obtained by dividing the aggregate price of the Offered Shares (consisting of the product of either (1) the
number of Offered Shares and the subscription or purchase price for each Offered Share or (2) the maximum number of Offered Shares
for or into which Convertible Securities may be exchanged or converted and the conversion price for each Offered Share) by the Current
Market Price of the Subordinate Voting Shares of Parent on the record date; and
(ii) the
denominator of which shall be the number of Subordinate Voting Shares of Parent which would be outstanding after giving effect to the
Rights Offering (assuming the exercise of all of the rights, options or warrants under the Rights Offering and assuming the exchange
or conversion into Subordinate Voting Shares of Parent of all Convertible Securities issued upon exercise of such rights, options or
warrants, if any).
To the extent that any adjustment
in the Conversion Price occurs pursuant to this Section 3(b) as a result of Parent fixing a record date for a Rights Offering,
the Conversion Price shall be readjusted based on the number of Offered Shares (or Convertible Securities that are convertible into Offered
Shares) actually issued and delivered upon the exercise of the rights, options or warrants, as the case may be, but subject to any other
adjustment required hereunder by reason of any other event arising after such record date. Any Offered Shares owned by or held for the
account of Parent shall be deemed not to be outstanding for the purpose of any computation made pursuant to this Section 3(b).
(c) If,
at any time prior to the 2024 Convertible Note Maturity Date, Parent issues or distributes to all or substantially all the holders of
its outstanding Subordinate Voting Shares of Parent:
(i) shares
of Parent of any class other than Subordinate Voting Shares of Parent;
(ii) rights,
options or warrants (excluding rights, options or warrants subject to Section 3(b));
(iii) evidences
of indebtedness; or
(iv) any
other cash, securities or other property or assets;
and such issuance or distribution does not constitute
a dividend paid in the ordinary course or does not result in an adjustment pursuant to Section 3(a) or 3(b) (any
such event being referred to as a “Special Distribution”), the Conversion Price shall be adjusted, effective
immediately after the record date on which the holders of Subordinate Voting Shares of Parent are determined for purposes of the Special
Distribution, by multiplying the Conversion Price in effect on the record date by a fraction:
(A) the
numerator of which shall be the difference between: (1) the product of the number of Subordinate Voting Shares of Parent outstanding
on the record date and the Current Market Price on such record date, and (2) the aggregate fair market value, as determined by the
Board acting reasonably and in good faith of the shares, rights, options, warrants, evidences of indebtedness or other assets issued
or distributed in the Special Distribution; and
(B) the
denominator of which shall be the product of the number of Subordinate Voting Shares of Parent outstanding on the record date and the
Current Market Price on such record date.
To the extent that any adjustment
in the Conversion Price occurs pursuant to this Section 3(c) as a result of Parent fixing a record date for a Special Distribution,
the Conversion Price shall be readjusted based on the shares, rights, options, warrants, evidences of indebtedness or other assets actually
distributed or the number of Subordinate Voting Shares of Parent or Convertible Securities actually delivered upon the exercise of rights,
options and warrants, as the case may be, but subject to any other adjustment required hereunder by reason of any other event arising
after such record date. Any Subordinate Voting Shares of Parent owned by or held for the account of Parent shall be deemed not to be
outstanding for the purpose of any computation made pursuant to Section 3(c).
(d) If,
at any time prior to the 2024 Convertible Note Maturity Date, any adjustment in the Conversion Price shall occur as a result of the operation
of Sections 3(a), 3(b) and 3(c), then the number of Subordinated Voting Shares of Parent issuable upon conversion
of this Note shall be simultaneously adjusted by multiplying the number of Subordinated Voting Shares of Parent issuable upon conversion
of this Note in effect immediately prior to such adjustment by a fraction which shall be the reciprocal of the fraction employed in the
adjustment of the Conversion Price, in each case, subject to readjustment upon the operation of, and in accordance with, the provisions
of Sections 3(a), 3(b) and 3(c).
(e) If,
at any time prior to the 2024 Convertible Note Maturity Date, there is any:
(i) reclassification
or redesignation of the Subordinate Voting Shares of Parent or a change, exchange or conversion of the Subordinate Voting Shares of Parent
into or for other shares or securities or property or any other capital reorganization (other than a Subordinate Voting Share Reorganization);
(ii) a
consolidation, amalgamation, arrangement or merger of Parent with or into any other Person or a compulsory acquisition under applicable
law following the successful completion of a take-over bid which results in the cancellation, reclassification or redesignation of the
Subordinate Voting Shares of Parent or a change, exchange or conversion of the Subordinate Voting Shares of Parent into or for other
shares or securities or property; or
(iii) the
transfer of all or substantially all the property and assets of Parent, directly or indirectly, to another Person (other than a directly
or indirectly wholly owned subsidiary of Parent),
(any of such events being herein referred to
as “Capital Reorganization”), then, immediately upon the effective time of such Capital Reorganization and
at all times thereafter, Lender shall be entitled to be issued and receive and shall accept for the same aggregate consideration, upon
conversion of this Note, in lieu of the number of Subordinated Voting Shares of Parent to which Lender was theretofore entitled upon
conversion of this Note, the kind and aggregate number of shares or other securities or property of Parent or the Person resulting from
such Capital Reorganization that Lender would have been entitled to be issued and receive upon such Capital Reorganization if, immediately
prior to the effective time thereof, Lender had been the registered holder of the number of Subordinated Voting Shares of Parent to which
Lender was theretofore entitled upon conversion of this Note. If necessary, as a result of any such Capital Reorganization, appropriate
adjustments shall be made in the application of the provisions of this Note with respect to the rights and interests thereafter of Lender
to the end that the provisions set forth in this Note shall thereafter correspondingly be made applicable, as nearly as may be reasonably
possible, with respect to any shares, other securities or property to which Lender be is entitled on the conversion of this Note.
(f) The
following rules and procedures shall be applicable to adjustments made pursuant to this Section 3:
(i) The adjustments provided in this Section 3 shall be cumulative
and such adjustments shall be made successively whenever an event referred to herein shall occur. No adjustment of the Conversion Price
shall be required under Sections 3(a), 3(b) and 3(c) unless such adjustment would result in a change of
at least 1.00% in the Conversion Price then in effect; provided that any adjustments which by reason of this Section 3(f)(i) are
not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(ii) Notwithstanding
anything in this Section 3, no adjustment shall be made under this Section 3 if the issue of Subordinate Voting Shares
of Parent, rights, options, warrants or Convertible Securities is being made pursuant to this Note or any stock option, stock purchase,
restricted share plan or other equity compensation plan in force as at the date of this Note for directors, officers, employees, consultants
or other service providers of Parent or to satisfy existing instruments issued and outstanding as at the date of this Note.
(iii) No
adjustment shall be made under this Section 3 if Lender is entitled to participate in any event described in this Section 3
on the same terms mutatis mutandi as if Lender had converted this Note prior to or on the effective date or record date, as the case
may be, of such event, subject to the prior consent of the CSE or any other stock exchange on which the Subordinate Voting Shares of
Parent are then listed.
(iv) If
Parent, after the date hereof, shall take any action affecting the Subordinate Voting Shares of Parent other than the actions described
in this Section 3 which, in the reasonable opinion of the Board of Directors of Parent (acting in good faith), would materially
affect the rights of Lender, then either or both of the Conversion Price and the number of Subordinated Voting Shares of Parent which
are to be received upon the conversion of this Note shall be adjusted in such manner, if any, and at such time, by action of the members
of the Board of Directors of Parent, in their discretion as they may reasonably determine to be equitable to Lender in such circumstances,
subject to the prior consent of the CSE or any other exchange on which the Subordinate Voting Shares of Parent are then listed; and provided
that no such action shall be taken unless and until Lender has been provided with notice of such proposed action and the consequences
thereof.
(v) If
Parent shall set a record date to determine holders of Subordinate Voting Shares of Parent for the purpose of entitling such holders
to receive any dividend or distribution or any subscription or purchase rights and shall, thereafter and before the distribution to such
holders of any such dividend, distribution or subscription or purchase rights, legally abandon its plan to pay or deliver such dividend,
distribution or subscription or purchase rights, then no adjustment in the Conversion Price or the number of Subordinate Voting Shares
of Parent issuable upon conversion of this Note shall be required by reason of the setting of such record date.
(vi) In
any case in which this Section 3 shall require that an adjustment shall be made effective immediately after a record date
for an event specified herein, Parent may defer, until the occurrence of such event: (A) issuing to Lender, to the extent that this
Note is being converted after such record date and before the occurrence of such event, the additional Subordinate Voting Shares of Parent
or other securities issuable upon such conversion by reason of the adjustment required by such event, and (B) delivering to Lender,
or to such other Person or Persons as designated by Lender, any distribution declared with respect to such additional Subordinate Voting
Shares of Parent or other securities after such conversion date and before such event; provided, however, that, upon request
by Lender, Parent shall deliver to Lender an appropriate instrument evidencing the right of Lender upon the occurrence of the event requiring
the adjustment, to an adjustment in the Conversion Price or the additional Subordinate Voting Shares of Parent or other securities issuable
upon such conversion by reason of the adjustment and to any distributions declared with respect to such additional Subordinate Voting
Shares of Parent or other securities issuable upon conversion of this Note.
(vii) At
least 20 days prior to the earlier of the record date or effective date of any event which requires or might require an adjustment in
any of the rights of Lender under this Note, Parent shall deliver to Lender a certificate specifying the particulars of such event and,
if determinable, the required adjustment and the calculation of such adjustment. If the notice has been provided and the adjustment is
not then determinable, Parent shall promptly, after the adjustment is determinable, deliver to Lender a certificate providing the computation
of the adjustment. Parent hereby covenants and agrees that Parent will not take any action which might deprive Lender of the opportunity
of exercising the right of conversion contained in this Note, during such 20-day period.
(viii) In
the event of any question relating to the adjustments provided for in this Section 3, such question shall be conclusively
determined by a nationally recognized investment banking, accounting or valuation firm jointly selected by the Board of Directors of
Parent and Lender, and they shall have access to all necessary records of Parent and such determination shall be binding upon Parent
and Lender, absent manifest error, with Parent being responsible for all fees and expenses payable to such firm.
(g) For
purposes of this Section 3, “Current Market Price” means, at any date of determination, the average
closing price of the Subordinate Voting Shares of Parent on the CSE (and in such case translated into Dollars using the daily average
exchange rate reported by the Bank of Canada as of such date) for the 10 consecutive trading days immediately prior to such date of determination
or, if the Subordinate Voting Shares of Parent are not listed on the CSE, then on such other stock exchange or over-the-counter market
on which the Subordinate Voting Shares of Parent are then listed; provided that, if there is no market for the Subordinate Voting
Shares of Parent, then the Current Market Price in respect of a Subordinate Voting Share of Parent shall be determined by a nationally
recognized investment banking, accounting or valuation firm jointly selected by the Board of Directors of Parent and Lender, with Parent
being responsible for all fees and expenses payable to such firm.
4. Legends.
Any certificate representing the Subordinate Voting Shares of Parent issued upon the conversion of this Note will bear the following
legend (the “Canadian Legend”):
“UNLESS PERMITTED UNDER SECURITIES
LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE MARCH 2, 2025.
Any certificate representing
the Subordinate Voting Shares of Parent will also bear the following legend (the “U.S. Legend”):
“THE SUBORDINATE VOTING SHARES
REPRESENTED BY THIS CERTIFICATE ARE ISSUED IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”) AND, EXCEPT AS EXPRESSLY PROVIDED HEREIN, HAVE NOT BEEN REGISTERED PURSUANT TO THE
SECURITIES ACT OR OTHER APPLICABLE SECURITIES LAWS. SUBORDINATE VOTING SHARES MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, OR OTHERWISE
DISPOSED EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS
OR (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREUNDER.”
provided
that, at any time subsequent to the date which is four months and one day after the date of this Note, any certificate representing
such Subordinate Voting Shares may be exchanged for a certificate bearing no Canadian Legend but such certificate shall continue to bear
the U.S. Legend until it is removed in accordance with Applicable Securities Legislation. If requested by Lender, Parent shall use commercially
reasonable efforts to (a) cause the removal of the restrictive legends from any such Subordinate Voting Shares being sold under
the Registration Statement or pursuant to Rule 144 under the Securities Act at the time of sale of such Subordinate Voting Shares
and (b) cause its legal counsel to deliver an opinion, if necessary, to the transfer agent in connection with the instruction under
subclause (a) to the effect that the removal of such restrictive legends in such circumstances may be effected under the Securities
Act, in each case upon the receipt of customary representations and other documentation, if any, from Lender as reasonably requested
by the transfer agent or reasonably required under securities laws for the removal of legends and issuance of related opinion letters,
establishing that restrictive legends are no longer required.
5. Maturity.
Unless this Note has been previously converted in accordance with the terms of Section 2(a), the entire outstanding principal
amount and all unpaid accrued interest thereon shall become fully due and payable on the 2024 Convertible Note Maturity Date.
6. Representations,
Warranties and Covenants. With respect to the conversion of this Note, Parent hereby represents, covenants and agrees:
(h) This
Note is, and any 2024 Convertible Note issued in substitution for or in replacement of this Note shall be, upon issuance, duly authorized
and validly issued.
(i) All
Subordinate Voting Shares of Parent issuable upon the conversion of this Note pursuant to the terms hereof shall be, upon issuance, and
Parent shall take all such actions as may be necessary or appropriate in order that such Subordinate Voting Shares of Parent are, validly
issued, fully paid and non-assessable, and free and clear of all taxes, liens and charges.
(j) Parent
shall take all such actions as may be necessary to ensure that all such Subordinate Voting Shares of Parent are issued without violation
by Parent of any applicable law or governmental regulation (including Applicable Securities Legislation) or any rules and policies
of the CSE or such other stock exchange on which the Subordinate Voting Shares of Parent are then listed at the time of conversion of
this Note. Lender shall reasonably cooperate with Parent in connection with any such actions, provided that any failure to do
so shall not be a breach of this Note or permit Parent to not comply with this Note.
(k) Parent
shall use its best efforts to maintain the listing and posting for trading of its Subordinate Voting Shares on the CSE or such other
stock exchange upon which the Subordinate Voting Shares of Parent are then listed at the time of conversion of this Note.
(l) Parent
shall pay all expenses in connection with, and all taxes and other governmental charges that may be imposed with respect to, the issuance
or delivery of Subordinate Voting Shares of Parent upon the conversion of this Note; provided that Parent shall not be required
to pay any tax or governmental charge that may be imposed with respect to any applicable withholding or the issuance or delivery of the
Subordinate Voting Shares of Parent to any Person other than Lender, and no such issuance or delivery shall be made unless and until
the Person requesting such issuance has paid to Parent the amount of any such tax, or has established to the satisfaction of Parent that
such tax has been paid. Lender shall be solely responsible for any taxes or other governmental charges that may be imposed on Lender’s
income in connection with the issuance or delivery of Subordinate Voting Shares of Parent issued and delivered to Lender.
7. Representations
of Lender. In connection with the execution and delivery of this Note, Lender specifically represents, as of the date hereof, to
Parent by acceptance of this Note as follows:
(a) Lender
is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act and
is (a) an “accredited investor” for the purposes of National Instrument 45-106 – Prospectus Exemptions of the
Canadian Securities Regulators, and (b) acquiring the Subordinate Voting Shares as principal and is not resident in British
Columbia for the purposes of BC Instrument 72-305 – Distribution of Securities Outside of British Columbia. Lender is acquiring
this Note and the Subordinate Voting Shares of Parent to be issued upon the conversion hereof for investment for its own account, as
principal, and not with a view towards, or for resale in connection with, the public sale or distribution of this Note or the Subordinate
Voting Shares of Parent, except pursuant to sales registered or exempted under the Securities Act and Applicable Securities Legislation.
(b) Lender
understands and acknowledges that this Note and the Subordinate Voting Shares of Parent to be issued upon the conversion hereof are “restricted
securities” under the federal securities laws inasmuch as they are being acquired from Parent in a transaction not involving a
public offering and that, under such laws and applicable regulations, such securities may be resold without registration under the Securities
Act only in certain limited circumstances. In addition, Lender represents that it is familiar with Rule 144 under the Securities
Act, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act.
(c) Lender
acknowledges that it can bear the economic and financial risk of its investment for an indefinite period and has such knowledge and experience
in financial or business matters that it is capable of evaluating the merits and risks of the investment in this Note and the Subordinate
Voting Shares of Parent. Lender has had an opportunity to ask questions and receive answers from Parent regarding the terms and conditions
of this Note and the business, properties, prospects and financial condition of Parent.
Concurrently with any notice
to Parent given under Section 2(a), Lender shall provide a Representation Letter to Parent.
8. Registration;
Reservation of Subordinate Voting Shares of Parent.
(d) The
Subordinated Voting Shares of Parent acquired pursuant to the conversion described in Section 2 shall be registered as provided
in Section 8.20(j) of the Credit Agreement.
(e) So
long as this Note remains outstanding, Parent shall at all times reserve and keep available out of its authorized but unissued Subordinate
Voting Shares of Parent, solely for the purpose of issuance upon the conversion of this Note, the maximum number of Subordinate Voting
Shares of Parent issuable upon the conversion of this Note in order to enable Parent to meet its obligations hereunder. Parent shall
take all such actions as may be necessary or appropriate in order that Parent may validly and legally issue fully paid and non-assessable
Subordinate Voting Shares of Parent upon the conversion of this Note without violating Parent’s governing documents, any agreements
to which Parent is a party on the date thereof, any requirements of any securities exchange upon which shares of any securities of Parent
may be listed or any applicable laws or regulations. If at any time prior to the 2024 Convertible Note Maturity Date the number and kind
of authorized but unissued shares of the Subordinate Voting Shares of Parent shall not, for any reason, be sufficient to permit conversion
in full of this Note, Parent will promptly take such corporate action as may be reasonably necessary (including seeking stockholder approval,
if required) to increase its authorized but unissued shares to such number of shares as shall be sufficient for such purposes.
9. Notation
of 2024 Convertible Notes. All borrowings evidenced by this Note and all payments and prepayments of the principal hereof and the
date thereof may be endorsed by the holder hereof on the schedule attached hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof, or otherwise recorded by such holder in its internal records; provided,
that the failure of the holder hereof to make such a notation or any error in such notation shall not affect the obligations of Borrowers
to make the payments of principal and interest in accordance with the terms of this Note and the Credit Agreement.
10. Costs
of Collection. Borrowers hereby, jointly and severally, promise to pay all costs of collection, including attorneys’ fees,
should this Note be collected by or through an attorney-at-law or under advice therefrom.
11. Time
is of the Essence. Time is of the essence in this Note.
12. Benefit
of Credit Documents. This Note evidences Lender’s portion of the 2024 Convertible Note Loans under, and is entitled to the
benefits and subject to the terms of, the Credit Agreement, which contains provisions with respect to the acceleration of the maturity
of this Note upon the happening of certain stated events, and provisions for prepayment and repayment. This Note is secured by and is
also entitled to the benefits of the Credit Documents to the extent provided therein and any other agreement or instrument providing
collateral for the Loans, whether now or hereafter in existence, and any filings, instruments, agreements and documents relating thereto
and providing collateral for the Loans.
13. Joint
and Several Liability. The liabilities of Borrowers and of any endorser of this Note are joint and several, provided, however, the
release by any Agent, Lender or any of the other Lenders (as defined in the Credit Agreement) of any one or more such Persons shall not
release any other Person obligated on account of this Note. Each reference in this Note to Borrowers and any endorser is to such Person
individually and also to all such Persons jointly. No Person obligated on account of this Note may seek contribution from any other Person
also obligated unless and until all of the Obligations have been paid in full in cash.
14. Credit
Documents. This Note is issued in connection with, and is entitled to the benefits of, the Credit Agreement which, among other things,
contains provisions for the acceleration of the maturity hereof upon the happening of certain events, for prepayment of the principal
hereof prior to the maturity hereof and for the amendment or waiver of certain provisions of the Credit Agreement, all upon the terms
and conditions therein specified. All notices, requests or other communications required or permitted to be delivered hereunder shall
be delivered as set forth in the Credit Agreement.
15. GOVERNING
LAW. THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF BORROWERS AND LENDER HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW 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.
16. 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.
17. Headings.
The headings of this Note are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
18. Successors
and Assigns. This Note shall be binding upon Borrowers, and each endorser and guarantor hereof, and upon their respective successors
and assigns, and shall inure to the benefit of Lender and its successors, endorsees, and assigns. As a condition of any transfer of this
Note, an ownership interest in this Note or any conversion rights under this Note, the Lender or other holder must either, at the option
of the Lender or such other holder, deliver a legal opinion, or other evidence reasonably satisfactory to Parent, confirming the existence
of an exemption from the registration requirements of the Securities Act and any state securities laws, in each case, applicable to such
transfer.
19. Counterparts.
(a) This
Note may be executed in any number of counterpart signature pages, and by the different parties on different counterparts, each of which
when executed shall be deemed an original but all such counterparts taken together shall constitute one and the same instrument. This
Note will be deemed executed by the parties hereto when each has signed it and delivered its executed signature page to Administrative
Agent by facsimile transmission, electronic transmission or physical delivery. Delivery of an executed counterpart of a signature page of
this Note by facsimile or in electronic (e.g., “pdf,” “tif” or DocuSign) format shall be effective as delivery
of a manually executed counterpart of this Note. No party hereto shall raise the use of digital imaging, DocuSign or electronic mail
to deliver a signature or the fact that any signature was transmitted or communicated through the use of a facsimile machine or digital
imaging and electronic mail as a defense to the formation of a contract and each such party forever waives any such defense.
(b) The
words “execution,” “signed,” “signature,” and words of like import in this Note shall be deemed to
include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity
or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent
and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the Illinois
State Electronic Commerce Security Act, any other similar state laws based on the Uniform Electronic Transactions Act, Parts 2 and 3
of the Personal Information Protection and Electronic Documents Act (Canada), the Electronic Commerce Act, 2000 (Ontario), or any other
similar federal or provincial laws based on the Uniform Electronic Commerce Act of the Uniform Law Conference of Canada or its Uniform
Electronic Evidence Act, as the case may be.
[The remainder of this page is intentionally
left blank.]
IN WITNESS WHEREOF, this
2024 Convertible Note is executed under seal as of the date first set forth above.
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BORROWERS: |
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VIREO GROWTH INC. |
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VIREO HEALTH, INC. |
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VIREO HEALTH OF MINNESOTA, LLC |
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VIREO HEALTH OF NEW YORK LLC |
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MARYMED LLC |
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RESURGENT BIOSCIENCES, INC. |
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VIREO HEALTH OF PUERTO RICO,
LLC |
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VIREO HEALTH DE PUERTO RICO LLC |
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VIREO HEALTH OF NEVADA I, LLC |
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MJ DISTRIBUTING C201, LLC |
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MJ DISTRIBUTING P132, LLC |
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ELEPHANT HEAD FARM, LLC |
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RETAIL MANAGEMENT ASSOCIATES,
LLC |
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VERDANT GROVE, LLC |
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MAYFLOWER BOTANICALS, INC. |
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VIREO HEALTH OF NEW MEXICO, LLC |
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VIREO OF CHARM CITY, LLC |
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EHF CULTIVATION MANAGEMENT LLC |
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By: |
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Name: Amber Shimpa |
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Title: Chief Executive Officer |
2024 Convertible Note
Loan Schedule
Date |
Amount
of Loan |
Amount
of
Principal Paid or
Prepaid |
Balance
of
Principal Unpaid |
Notation
Made By: |
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Exhibit 99.1
Vireo Growth Inc. Announces New $10 Million
Convertible Debt Facility
11/04/2024
MINNEAPOLIS, Nov. 04, 2024 (GLOBE NEWSWIRE) --
Vireo Growth Inc. ("Vireo" or the "Company") (CSE: VREO; OTCQX: VREOF), a cannabis company committed to providing
safe access, quality products and great value to its customers, today announced that it has secured a new convertible debt facility which
provides a financing commitment of up to U.S. $10.0 million in aggregate principal amount of convertible notes (the “Convertible
Notes”). This facility is being funded by the Company’s senior secured lender and its affiliates under the Company’s
existing credit agreement.
Chief Executive Officer Amber Shimpa commented,
“We are pleased to secure this new financing commitment, with a convertible feature priced at a significant premium to market. This
facility gives us additional flexibility to execute our strategy for the year ahead, which incorporates additional capex spending, working
capital needs, and supports general corporate purposes. We appreciate the collaborative nature of our relationship with Chicago Atlantic,
who continues to support our business as we work toward the launch of adult-use sales in Minnesota next year.”
The convertible facility has a term of three years,
with a cash interest rate of 12.0 percent, and such interest shall be paid to Lender in cash on the last business day of each calendar
month. All accrued and unpaid interest shall be payable in full on the Maturity Date or earlier date of prepayment, in each case adjusted
for any period of less than one calendar month, if applicable. The Convertible Notes shall be convertible at any time into Subordinate
Voting Shares of the Company, at the option of Lender, in whole but not in part, in a single transaction, at a conversion price equal
to U.S. $0.625. The Company does not expect to issue any warrants related to this convertible loan facility.
The issuance of Convertible Notes will be considered
a “related party transaction” for the purposes of Multilateral Instrument 61-101 – Protection of Minority Security
Holders in Special Transactions (“MI 61-101”), as the Lender is a “related party” to the Company as defined
in MI 61-101. A material change report respecting the issuance of Convertible Notes will be filed less than 21 days before the expected
closing date of the convertible debt facility as the Company determined to complete the convertible debt facility on an expedited basis.
The issuance of Convertible Notes will be exempt from the formal valuation and minority shareholder approval requirements available under
MI 61-101 pursuant to sections 5.5(a) and 5.7(1)(a) of MI 61-101 on the basis that the fair market value of the Convertible Notes does
not exceed 25% of the market capitalization of the Company.
About Vireo Growth Inc.
Vireo was founded as a pioneer in medical cannabis
in 2014 and we are fueled by an entrepreneurial drive that sustains our ongoing commitment to serve and delight our key stakeholders,
most notably our customers, our employees, our shareholders, our industry collaborators, and the communities in which we live and operate.
We work every day to get better and our team prioritizes 1) empowering and supporting strong local market leaders and 2) strategic, prudent
capital and human resource allocation. For more information, please visit www.vireogrowth.com.
Contact Information
Media Inquiries:
Amanda Hutcheson
Senior Manager, Communications
amandahutcheson@vireogrowth.com
(919) 815-1476
Investor Inquiries:
Joe Duxbury
Interim Chief Financial Officer
investor@vireogrowth.com
(612) 314-8995
Forward-Looking Statement Disclosure
This press release contains “forward-looking
information” within the meaning of applicable United States and Canadian securities legislation. To the extent any forward-looking
information in this press release constitutes “financial outlooks” within the meaning of applicable United States or Canadian
securities laws, this information is being provided as preliminary financial results; the reader is cautioned that this information may
not be appropriate for any other purpose and the reader should not place undue reliance on such financial outlooks. Forward-looking information
contained in this press release may be identified by the use of words such as “should,” “believe,” “estimate,”
“would,” “looking forward,” “may,” “continue,” “expect,” “expected,”
“will,” “likely,” “subject to,” “transformation,” and “pending,” variations
of such words and phrases, or any statements or clauses containing verbs in any future tense. Forward-looking statements in this press
release include statements regarding the Company’s execution on its strategy over the next year. These statements should not be
read as guarantees of future performance or results. Forward-looking information includes both known and unknown risks, uncertainties,
and other factors which may cause the actual results, performance, or achievements of the Company or its subsidiaries to be materially
different from any future results, performance, or achievements expressed or implied by the forward-looking statements or information
contained in this press release. Financial outlooks, as with forward-looking information generally, are, without limitation, based on
the assumptions and subject to various risks as set out herein and in our Annual Report on Form 10-K for the fiscal year ended December
31, 2023 filed with the Securities Exchange Commission. Our actual financial position and results of operations may differ materially
from management’s current expectations. Forward-looking information is based upon a number of estimates and assumptions of management,
believed but not certain to be reasonable, in light of management’s experience and perception of trends, current conditions, and
expected developments, as well as other factors relevant in the circumstances, including assumptions in respect of current and future
market conditions, the current and future regulatory environment, and the availability of licenses, approvals and permits.
Although the Company believes that the expectations
and assumptions on which such forward-looking information is based are reasonable, the reader should not place undue reliance on the
forward-looking information because the Company can give no assurance that they will prove to be correct. Actual results and developments
may differ materially from those contemplated by these statements. Forward-looking information is subject to a variety of risks and uncertainties
that could cause actual events or results to differ materially from those projected in the forward-looking information. Such risks and
uncertainties include, but are not limited to: risks related to the timing and content of adult-use legislation in markets where the
Company currently operates; current and future market conditions, including the market price of the subordinate voting shares of the
Company; risks related to epidemics and pandemics; federal, state, local, and foreign government laws, rules, and regulations, including
federal and state laws and regulations in the United States relating to cannabis operations in the United States and any changes to such
laws or regulations; operational, regulatory and other risks; execution of business strategy; management of growth; difficulties inherent
in forecasting future events; conflicts of interest; risks inherent in an agricultural business; risks inherent in a manufacturing business;
liquidity and the ability of the Company to raise additional financing to continue as a going concern; the Company’s ability to
meet the demand for flower in Minnesota; risk of failure in the lawsuit with Verano and the cost of that litigation; our ability to dispose
of our assets held for sale at an acceptable price or at all; and risk factors set out in the Company's Form 10-K for the year ended
December 31, 2023, which is available on EDGAR with the U.S. Securities and Exchange Commission and filed with the Canadian securities
regulators and available under the Company's profile on SEDAR+ at www.sedar.com.
The statements in this press release are made
as of the date of this release. Except as required by law, we undertake no obligation to update any forward-looking statements or forward-looking
information to reflect events or circumstances after the date of such statements.
Source: Vireo Growth Inc.
Vireo Growth (QX) (USOTC:VREOF)
Gráfica de Acción Histórica
De Nov 2024 a Dic 2024
Vireo Growth (QX) (USOTC:VREOF)
Gráfica de Acción Histórica
De Dic 2023 a Dic 2024