30355430.16 EXECUTION VERSION FIRST AMENDED AND RESTATED LOAN AGREEMENT AMONG JUST ENERGY GROUP INC. as Borrower AND COMPUTERSHARE TRUST COMPANY OF CANADA, as Agent AND SAGARD CREDIT PARTNERS, LP and EACH OTHER PERSON from time to time party hereto as...
Exhibit 99.5
30355430.16 EXECUTION VERSION FIRST AMENDED AND RESTATED LOAN AGREEMENT AMONG JUST ENERGY GROUP INC. as Borrower AND COMPUTERSHARE TRUST COMPANY OF CANADA, as Agent AND SAGARD CREDIT PARTNERS, LP and EACH OTHER PERSON from time to time party hereto as a Lender, as Lenders MADE AS OF September 28, 2020
30355430.16 TABLE OF CONTENTS ARTICLE 1 INTERPRETATION.................................................................................................. 2 1.01 Definitions............................................................................................................... 2 1.02 Headings ............................................................................................................... 29 1.03 Number ................................................................................................................. 29 1.04 Accounting Principles ........................................................................................... 29 1.05 Accounting Practices ............................................................................................ 29 1.06 Currency................................................................................................................ 30 1.07 Paramountcy ......................................................................................................... 30 1.08 Non - Business Days ............................................................................................... 30 1.09 Statutory and Material Contract References ......................................................... 30 1.10 Interest Payments and Calculations ...................................................................... 31 1.11 Determination by the Borrower ............................................................................ 32 1.12 Schedules .............................................................................................................. 32 ARTICLE 2 THE LOAN FACILITY........................................................................................... 32 2.01 Loan Facility ......................................................................................................... 32 ARTICLE 3 CONDITIONS PRECEDENT ................................................................................. 33 3 . 01 Conditions Precedent to Effectiveness of this Agreement .................................... 33 3 . 02 Waiver ................................................................................................................... 36 3 . 03 Amendment and Restatement ............................................................................... 36 ARTICLE 4 PAYMENTS OF INTEREST AND FEES .............................................................. 36 4.01 Interest on Advances ............................................................................................. 36 4.02 No Set - Off, Deduction etc. ................................................................................... 37 4.03 Fees ....................................................................................................................... 38 4.04 [Reserved] ............................................................................................................. 39 4.05 Account of Record ................................................................................................ 39 4.06 Notes ..................................................................................................................... 39 4.07 Maximum Rate of Interest .................................................................................... 39 ARTICLE 5 REPAYMENT ......................................................................................................... 40 5 . 01 Mandatory Repayment of Principal at Maturity or on a Change of Control ........ 40 5 . 02 Voluntary Repayments .......................................................................................... 40 ARTICLE 6 PLACE AND APPLICATION OF PAYMENTS ................................................... 41 6.01 Place of Payment of Principal, Interest and Fees.................................................. 41 ARTICLE 7 REPRESENTATIONS AND WARRANTIES........................................................ 41 7.01 Representations and Warranties............................................................................ 41 7 . 02 Survival and Repetition of Representations and Warranties ................................ 48 ARTICLE 8 COVENANTS ......................................................................................................... 49 8.01 Positive Covenants................................................................................................ 49 8.02 Financial Covenants.............................................................................................. 53 8.03 Reporting Requirements ....................................................................................... 54 8.04 Negative Covenants .............................................................................................. 56
30355430.16 - ii - 8.05 Restricted and Unrestricted Subsidiaries .............................................................. 60 ARTICLE 9 DEFAULT ............................................................................................................... 62 9.01 Events of Default .................................................................................................. 62 9.02 Acceleration and Termination of Rights............................................................... 65 9.03 Remedies Cumulative and Waivers ...................................................................... 66 9.04 Termination of Lenders’ Obligations.................................................................... 66 9.05 Perform Obligations.............................................................................................. 66 9.06 Third Parties.......................................................................................................... 66 ARTICLE 10 COSTS, EXPENSES AND INDEMNIFICATION............................................... 66 10.01 Costs and Expenses............................................................................................... 66 10.02 Indemnification by the Borrower.......................................................................... 67 10.03 Specific Environmental Indemnification .............................................................. 68 10.04 Exclusion............................................................................................................... 69 ARTICLE 11 THE AGENT AND THE LENDERS .................................................................... 69 11.01 Appointment ......................................................................................................... 69 11.02 Indemnity from Lenders ....................................................................................... 69 11.03 Exculpation ........................................................................................................... 70 11.04 Reliance on Information ....................................................................................... 70 11.05 Knowledge and Required Action.......................................................................... 70 11.06 Request for Instructions ........................................................................................ 71 11.07 [Reserved] ............................................................................................................. 71 11.08 Resignation and Termination ................................................................................ 71 11.09 Actions by Lenders ............................................................................................... 72 11.10 Provisions for Benefit of Lenders Only ................................................................ 73 11.11 Payments by Agent ............................................................................................... 73 11.12 Direct Payments .................................................................................................... 73 11 . 13 Acknowledgements, Representations and Covenants of Lenders ........................ 74 11 . 14 Rights of Agent ..................................................................................................... 75 11 . 15 Collective Action of the Lenders .......................................................................... 75 11 . 16 Funding by Lenders ; Presumption by Agent ........................................................ 76 11 . 17 Payments by the Borrower ; Presumption by Agent .............................................. 76 11 . 18 Non - Funding Lenders ........................................................................................... 76 11 . 19 Acknowledgement and Consent to Bail - In of Affected Financial Institutions ............................................................................................................. 78 11 . 20 Acknowledgement Regarding Any Supported QFCs . .......................................... 79 11 . 21 Divisions ............................................................................................................... 80 ARTICLE 12 TAXES................................................................................................................... 81 12.01 Taxes ..................................................................................................................... 81 ARTICLE 13 SUCCESSORS AND ASSIGNS AND ADDITIONAL LENDERS..................... 84 13.01 Successors and Assigns......................................................................................... 84 13.02 Assignments .......................................................................................................... 85 13.03 Participations......................................................................................................... 86
30355430.16 - iii - ARTICLE 14 GENERAL ............................................................................................................. 87 14.01 Exchange and Confidentiality of Information ...................................................... 87 14.02 Nature of Obligations under this Agreement ........................................................ 88 14.03 Notice .................................................................................................................... 88 14.04 Governing Law ..................................................................................................... 89 14.05 Judgment Currency ............................................................................................... 89 14.06 Benefit of the Agreement ...................................................................................... 90 14.07 Severability ........................................................................................................... 90 14.08 Whole Agreement ................................................................................................. 90 14.09 Further Assurances................................................................................................ 90 14.10 Waiver of Jury Trial .............................................................................................. 90 14.11 Consent to Jurisdiction.......................................................................................... 91 14.12 Time of the Essence .............................................................................................. 91 14.13 Electronic Execution and Delivery ....................................................................... 91 14.14 Counterparts .......................................................................................................... 91 14.15 [Reserved] ............................................................................................................. 91 14.16 Term of Agreement ............................................................................................... 91 14.17 USA Patriot Act .................................................................................................... 92 14.18 Anti - Money Laundering Legislation .................................................................... 92 14.19 Public Disclosure .................................................................................................. 92 14.20 Force Majeure ....................................................................................................... 93 14.21 Anti - Money Laundering ....................................................................................... 93 14.22 Privacy .................................................................................................................. 93 14.23 Third Party Interests.............................................................................................. 94
30355430.16 FIRST AMENDED AND RESTATED LOAN AGREEMENT THIS FIRST AMENDED AND RESTATED LOAN AGREEMENT is made as of September 28, 2020 AMONG: JUST ENERGY GROUP INC. , a corporation existing under the laws of Canada (hereinafter referred to as the “ Borrower ”) - and - COMPUTERSHARE TRUST COMPANY OF CANADA , in its capacity as administrative agent (hereinafter referred to as the “ Agent ”) - and - SAGARD CREDIT PARTNERS, LP , and each other Person from time to time party to this Agreement as a Lender (hereinafter in such capacities individually referred to as a “ Lender ” and collectively in such capacities referred to as, the “ Lenders ”) WHEREAS the Borrower, the Agent and the Lenders are party to a loan agreement dated as of September 18, 2018 as amended by a limited waiver and amending agreement dated as of March 19, 2019, a limited waiver and second amending agreement dated as of June 25, 2019, a third amending agreement to loan agreement dated as of July 23, 2019, a limited waiver and fourth amending agreement dated as of November 30, 2019, a limited waiver and fifth amending agreement dated as of March 31, 2020 and a sixth amending agreement dated as of August 19, 2020 (collectively, the “ Original Loan Agreement ”); AND WHEREAS , the Corporation is party to a trust deed dated as of January 29, 2014 between the Borrower, U.S. Bank Trustees Limited as trustee and Elavon Financial Services Limited, UK Branch, pursuant to which the Borrower issued US$150 million aggregate principal amount of 6.5% convertible bonds issued due December 31, 2020 (the “ UK Convertible Bonds ”); AND WHEREAS the Borrower and the Lenders entered into a support agreement dated as of July 8, 2020, as supplemented on August 25, 2020 pursuant to a support agreement supplement (collectively, the “ Support Agreement ”), pursuant to which, among other things, they have agreed to amend and restate the Original Loan Agreement pursuant to the terms of this first amended and restated loan agreement; AND WHEREAS pursuant to an order of the Superior Court of Justice of Ontario on September 2, 2020 , (the “ Court Order ”) the court approved the Recapitalization Plan (defined below) with the effect that all obligations outstanding under the UK Convertible Bonds will be extinguished and the holders of the UK Convertible Bonds shall be deemed to be Additional Lenders (defined below) hereunder;
30355430.16 - 2 - AND WHEREAS pursuant to the agency assignment and release agreement dated as of September 28, 2020, National Bank of Canada resigned as the Agent under the Loan Agreement and the other Loan Documents to which it is a party, and Computershare Trust Company of Canada was appointed and designated by the Lenders to act as the Agent under the Loan Agreement and the other Loan Documents; NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the covenants and agreements herein contained the parties hereto agree as follows: ARTICLE 1 I N TE RPR ET A TION 1.01 Definitions In this Agreement unless something in the subject matter or context is inconsistent therewith: “ $15 Million Subordinated Note ” means the $15,000,000 aggregate principal amount (plus any interest or fee in respect of such indebtedness that is paid in kind (and not in cash) of 7% subordinated note of the Borrower maturing September 27, 2026, issued on September 28, 2020 pursuant to the $15 Million Subordinated Note Indenture. “ $15 Million Subordinated Note Indenture ” means the note indenture made as of September 28, 2020 between the Borrower and Computershare Trust Company of Canada, as trustee, as may be supplemented, amended or restated from time to time in accordance with the terms of this Agreement, pursuant to which the $15 Million Subordinated Note is issued. “ Acquisition ” means, with respect to any Person, any purchase or other acquisition, regardless of how accomplished or effected (including any such purchase or other acquisition effected by way of amalgamation, merger, arrangement, business combination or other form of corporate reorganization or by way of purchase, lease or other acquisition arrangements), of (a) any other Person (including any purchase or acquisition of such number of the issued and outstanding securities of, or such portion of an equity interest in, such other Person that such other Person becomes a Subsidiary of the purchaser or of any of its Affiliates) or of all or substantially all of the Property of any other Person, or (b) any division, business, operation or undertaking of any other Person or of all or substantially all of the Property of any division, business, operation or undertaking of any other Person. “ Additional Lenders ” means any Person that is not an existing Lender to the Original Loan Agreement and that have been deemed pursuant to the Court Order to have provided Additional Term Commitments pursuant to Sec tion 2.01(2) and “ Additional Lender ” means any one of the Additional Lenders and includes each of their successors and permitted assigns. “ Additional Term Commitments ” means, in respect of each Additional Lender from time to time, the amount set forth in Schedule A to this Agreement opposite such Additional Lender’s name (which may be amended and distributed to all parties by the Agent from time to time as other persons become Additional Lenders) .
30355430.16 - 3 - “ Additional Term Loans ” has the meaning set for th in 2.01(2). “ Advance ” means each borrowing by the Borrower by way of a term loan under the Loan Facility and any reference relating to the amount of Advances will mean the sum of the principal amount of all outstanding Advances plus any PIK Interest or PIK Fees that has been added to the principal in accordance with Section 4.01 or Section 4.03. “ Affiliate ” has the meaning ascribed thereto in the Business Corporations Act (Ontario) and for greater certainty, with respect to the Borrower includes a Subsidiary of the Borrower. “ Agent ” means Computershare Trust Company of Canada in its capacity as administrative agent for the Lenders, including any successor agent pursuant to Sec tion 11.08 hereof, and as Depository Agent. “ Agent’s Payment Location ” means the office of the Agent that the Agent may from time to time designate by notice to the Borrower and the Lenders. “Aggregate Swap Exposure” means, at any time, the negative net marked to market amount, if any, that would be carried in the accounts of the Borrower on a Modified Consolidated Basis at such time with respect to Xxxxxx (other than Commodity Xxxxxx) as a liability in accordance with GAAP. “ Agreement ” means this first amended and restated loan agreement, the schedules and all amendments made hereto in accordance with the provisions hereof as amended, revised, replaced, supplemented or restated from time to time. “ Alberta Utilities Commission Debt ” means Debt in the aggregate principal amount of approximately $3,900,000 incurred by an Obligor from time to time owing to Her Majesty the Queen in Right of Alberta or Balancing Pool, a corporation established by the Electric Utilities Act (Alberta) or, in each case, any agency thereof, in connection with the utility payment deferral programs established or to be established under the Utility Payment Deferral Program Act (Alberta), including for certainty, any Debt incurred by (i) Just Energy Alberta L.P. pursuant to a loan agreement between Just Energy Alberta L.P. and Her Majesty the Queen in Right of Alberta, as represented by the Associate Minister of Natural Gas and Electricity, (ii) Xxxxxx Energy Canada Corp. pursuant to a loan agreement between Xxxxxx Energy Canada Corp. and Her Majesty the Queen in Right of Alberta, as represented by the Associate Minister of Natural Gas and Electricity, (iii) Just Energy Alberta L.P. pursuant to a funding agreement between Just Energy Alberta L.P. and Balancing Pool, and (iv) Xxxxxx Energy Canada Corp. pursuant to a funding agreement between Xxxxxx Energy Canada Corp. and Balancing Pool. “ Anti - Corruption Laws ” means the Corruption of Foreign Public Officials Act (Canada), the FCPA and all other similar Applicable Law with respect to the prevention of corruption and bribery. “ Applicable Law ” means, in respect of any Person, property, transaction, event or other matter, as applicable, all domestic and foreign laws, rules, statutes, regulations, treaties, orders, judgments and decrees and, to the extent they have the force of law, all official directives, rules, guidelines, orders, policies and other requirements of any Governmental Authority (collectively
30355430.16 - 4 - the “ Law ”) and will also include any interpretation of the Law or any part of the Law by any Person having jurisdiction over it or charged with its administration or interpretation in each case having the force of law relating or applicable to such Person, property, transaction, event or other matter. “ Applicable Order ” means any applicable domestic or foreign order, judgment, award or decree made by any court or Governmental Authority. “ Arm’s Length ” has the meaning specified in the definition of “ Non Arm’s Length ”. “ Assignment Agreement ” has the meaning specified in Sec tion 13.02. “ Associate ” means an “associate” as defined in the Business Corporations Act (Ontario). “Available Supply” means, at any time, the amount of natural gas, electricity or JustGreen Products (whether physical or financial) contracted for by the Obligors under existing Supplier Contracts, less any sales of excess of such commodity already contracted for under existing Supplier Contracts at such time. “ Average Net Senior Debt Utilization to EBITDA Ratio ” means, for any Fiscal Quarter, the ratio of (a) the daily average of (i) the amount of the Senior Debt, less (ii) the aggregate amount of the cash on deposit in the bank accounts of the Obligors and any Cash Equivalents (determined on a Modified Consolidated Basis), each measured at 5:00 p.m. Toronto time on each day in such Fiscal Quarter, and (b) EBITDA in respect of the immediately preceding Four Quarter Period. “ Bail - In Action ” means the exercise of any Write - Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution. “ Bail - In Legislation ” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail - In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings). “ Billed Accounts Receivable ” means all present and future amounts in respect of gas, electricity or JustGreen Products that has been delivered to a Customer pursuant to a Customer Contract, and that have been billed to such Customer and assigned or sold to an LDC pursuant to a Collection Service Agreement. “ Borrower ” means Just Energy Group Inc. and includes its successors and assigns. “ Borrower’s Counsel ” means the firm of Fasken Xxxxxxxxx XxXxxxxx LLP or such other firm or firms of legal counsel as the Borrower may from time to time designate.
30355430.16 - 5 - “ Business ” means the business carried on by the Obligors consisting of (i) the purchase of natural gas, electricity and JustGreen Products under Supplier Contracts, (ii) the marketing and sale of natural gas, electricity and JustGreen Products to Customers under Customer Contracts, (iii) the marketing, sale and lease of home and business solutions, including smart thermostats, energy monitoring and management applications, smart sprinkler controllers and other smart home and business devices, (iv) the management of consumers’ and businesses’ energy consumption, (v) the marketing and sale of solar energy products; (vi) the ownership and operation of green energy generation assets; and (vii) the generating of sales leads of other third party products. “ Business Day ” means a day on which banks are generally open for business in Toronto, Ontario and Montreal, Quebec. “ Canadian Dollars ”, “ Cdn. Dollars ”, “ Cdn.$ ” and “ $ ” mean the lawful money of Canada. “ Canadian Pension Plan ” means any “pension plan” or “plan” that is subject to the funding requirements of the Pension Benefits Act (Ontario) or applicable pension benefits legislation in any other Canadian jurisdiction and is applicable to employees resident in Canada of an Obligor. “ Canadian Welfare Plan ” means any medical, health, hospitalization, insurance or other employee benefit or welfare plan or arrangement applicable to employees resident in Canada of an Obligor, but excluding (a) any Canadian Pension Plans and (b) plans established by statute or administered by a Governmental Authority, including the Canada Pension Plan, the Quebec Pension Plan or plans administered pursuant to federal or provincial health, workers compensation and employment insurance legislation. “Cash Equivalents” means: (a) marketable direct obligations issued by, or unconditionally guaranteed by, the government of Canada or the government of the United States or any agency or instrumentality of either of them, and backed by the full faith and credit of Canada or the United States, as the case may be, in each case maturing within one year from the date of acquisition; (b) demand deposits, term deposits, certificates of deposit or overnight bank deposits having maturities of six months or less from the date of acquisition issued by any commercial bank organized under the laws of Canada or the United States or any state thereof whose long term debt is rated at least A or the equivalent thereof by S&P or at least A2 or the equivalent thereof by Xxxxx’x; and (c) commercial paper of an issuer rated at least A - 1+ or the equivalent thereof by S&P or at least P - 1 or the equivalent thereof by Xxxxx’x or at least R - 1 (High) or the equivalent thereof by DBRS, and in each case maturing within six months from the date of acquisition. “ Cash Security Deposit ” means an amount required to be paid by an Obligor to an LDC pursuant to a Collection Service Agreement following the occurrence of an event of default
30355430.16 - 6 - thereunder, in respect of amounts owing by such Obligor to such LDC pursuant to such Collection Service Agreement. “ CERCLA ” means the Comprehensive Environmental Response Compensation and Liability Act of 1980 , as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. †† 9601 et seq., and any future amendments thereto. “ Change of Control ” means, following the Closing Date, with respect to the Borrower, the occurrence of any of the following: (a) the acquisition by any Person or group of Persons who are associates (as such term is defined in the Securities Act (Ontario)), or who act together in concert for such purpose, of (i) common shares or other voting securities of the Borrower to which are attached more than 50% of the votes that may be cast to elect the directors, or (ii) the ability, through operation of law or otherwise, to elect or cause the election or appointments of a majority of the directors. Where control is exercised de - facto by contract or representation on the board of directors of the Borrower, any change in the foregoing relationship where a reasonable Person would deem control to have been acquired as a result of such change, will constitute a Change of Control; (b) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger, plan of arrangement, amalgamation or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole to any Person or group of Persons acting jointly or in concert for purposes of such transaction; (c) the adoption of a plan relating to the liquidation or dissolution of the Borrower, which is not otherwise permitted under this Agreement or (d) the first day on which a majority of the members of the board of directors of the Borrower are not Continuing Directors. “ Closing Date ” means the date on which all of the conditions precedent set forth in Sec tion 3.01 are satisfied or waived. “ Code ” means the Internal Revenue Code of 1986 of the United States, as amended, and any successor statute thereto. “ Collection Service Agreement ” means a collection service agreement entered into from time to time between an Obligor and a LDC providing for billing and collection services by such LDC on behalf of such Obligor with respect to its Customers, as supplemented, amended or restated from time to time. “ Commitment ” means, in respect of each Lender from time to time, the amount of set forth in Schedule A to this Agreement opposite such Lender’s name (which will be amended and distributed to all parties by the Agent from time to time as other persons become Lenders), which for greater certainty will in each case be reduced by such Lender’s Proportionate Share of the amount of any permanent prepayments or reductions required or made hereunder. “Commodity Xxxxxx” means any agreement for the hedging or fixing of the cost of commodities used in the ordinary course of business so long as such obligations are settled by the payment of money and not by the delivery of such commodities. “ Compliance Certificate ” means the certificate required pursuant to Section 8.03(3) substantially in the form annexed as Schedule I and signed by a senior officer of the Borrower.
30355430.16 - 7 - “ Contingent Obligation ” means, with respect to any Person, calculated without duplication, obligations of such Person in respect of synthetic lease obligations, contingent liabilities in respect of letters of credit, letters of guarantee and similar instruments, capital stock which in accordance with GAAP is not included in shareholders’ equity, net obligations under Xxxxxx, contingent liabilities required to be treated as a liability on a balance sheet of such Person in accordance with GAAP and contingent liabilities under any guarantee, including without limitation, under any guarantee of any of the foregoing, but excluding operating leases and trade payables arising in the ordinary course of business. “ Continuing Directors ” means, as of any date of determination, any member of the board of directors of the Borrower who (a) was a member of the board of directors of the Borrower on the Closing Date (after giving effect to the implementation of the Recapitalization Plan), or (b) was nominated for election or elected to the board of directors of the Borrower with the approval of a majority of the Continuing Directors who were members of the board of directors at the time of such nomination or election. “ Controlled Group ” means all members of a controlled group of corporations or other business entities and all trades or businesses (whether or not incorporated) under common control, which together with the Borrower and any of its subsidiaries, are treated as a single employer under Section 414 of the Code or Section 4001 of ERISA. “ Court Order ” has the meaning provided in the recitals to this Agreement. “ Credit Card Payment Account ” means a bank account maintained by an Obligor into which Customers make credit card payments in respect of exit fees and other payments in respect of the Business and in respect of which a security interest is granted to a merchant services provider. “ Currency Hedge ” means any agreement, whether in the form of a futures or forward contract, swap or otherwise, for the hedging of a currency risk in Canadian Dollars or US Dollars. “Customer Contracts” means contracts entered into from time to time by Obligors with Customers in connection with the Business. “ Customers ” means residential, small to mid - size commercial and small industrial purchasers of products of the Business from an Obligor. “ Debt ” means, with respect to any Person, without duplication, the aggregate of the following amounts, at the date of determination: (a) the principal amount of all indebtedness of such Person for borrowed money, (b) the principal amount of all obligations of such Person for the deferred purchase price of Property or services in excess of 90 days which constitute indebtedness, (c) the principal amount of all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) the principal amount of all obligations of such Person created or arising under any conditional sale or other title retention agreement (other than operating leases) with respect to property acquired by such Person (whether or not the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Lease Obligations of such Person, (f) the undrawn amount of all letters of credit issued on behalf of such Person and the full face amount of all bankers’ acceptances issued by or on behalf of such Person, (g) all obligations of such Person to purchase, redeem, retire, defease
30355430.16 - 8 - or otherwise acquire for value any partnership or shareholder or other equity interests of such Person, (h) all Contingent Obligations of such Person in respect of any of the foregoing items, (i) all Xxxxxx, (j) all Debt referred to in clauses (a) through (i) above secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Encumbrance on property (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Debt, limited to the fair market value of such property, and (k) any other obligation arising under arrangements or agreements that, in substance, constitute indebtedness for borrowed money of such Person. “ Deferred Compensation Plan ” means the deferred compensation plan pursuant to which rights to common shares of the Borrower are issued to directors in lieu of fees payable in cash and are exchangeable into common shares of the Borrower, as supplemented, amended or restated from time to time. “Depository Agent ” has the meaning set forth in Sec tion 2.01(3) 14.01(1). “Depreciation Expense” means, for any period with respect to the Borrower, depreciation, amortization (excluding the amortization of contract initiation costs), depletion and other like reductions to income of the Borrower for such period not involving any outlay of cash, determined, without duplication, on a Modified Consolidated Basis in accordance with GAAP and includes, for greater certainty, amortization of any upfront financing fees. “ Designated Disposition ” means a Disposition by the Borrower or any of its Subsidiaries of (i) any shares or other equity interests in Ecobee Inc., (ii) any shares or other equity interests in a Filter Entity, or (iii) any Property of a Filter Entity. “ Disposition ” means any sale, assignment, transfer, conveyance, permanent user license or other disposition of any nature or kind whatsoever of any Property or of any right, title or interest in or to any Property, and the verb “ Dispose ” will have a correlative meaning . “Distributions” means the payment by a Person: (a) of any dividends or distributions on any equity interests, (b) of any interest, premium or fees owing on any indebtedness, including any indebtedness which is subordinate to the indebtedness owing to the Lenders (including, without limitation, in respect of Existing Intercompany Debt, Future Intercompany Debt, Permitted Unrestricted Subsidiary Debt and the $15 Million Subordinated Note), (c) distributions paid in cash under the Restricted Share Grant Plan or the Deferred Compensation Plan, (d) non - cash distributions of Share Based Compensation, (e) the application of such Person’s assets to the purchase, redemption or other acquisition or retirement of any of its shares, partnership, or trust units, as applicable, (f) permanent repayments (partial or full) of the principal amount of the Alberta Utilities Commission Debt or the $15 Million Subordinated Note, or (g) any other like distributions of funds whatsoever by such Person; for greater certainty the capitalization of interest together with any fees payable hereunder and the addition thereof to the principal amount of the Obligations from time to time shall not constitute a Distribution. “EBITDA” means, for any period for the Borrower determined on a Modified Consolidated Basis, net income for such period: (a) increased by the sum of (without duplication):
30355430.16 - 9 - Total Interest Expense for such period; ( i) ( ii) Income Tax Expense for such period; ( iii) Depreciation Expense for such period (which for greater certainty does not include any amortization of contract initiation costs); ( iv) non - cash losses resulting from the fair value of derivative financial investments for such period; (v) accrued (but not yet actually realized) foreign exchange translation losses; ( vi) losses on the purchase or redemption of securities issued by the Borrower and the Restricted Subsidiaries for such period; ( vii) any other cash or non - cash extraordinary, unusual or non - recurring losses for such period, excluding, for greater certainty, (A) provisions made for litigation and other similar proceedings and (B) losses associated with trading, settlement or balancing of Commodity Xxxxxx; and (viii) Share Based Compensation to the extent settled with shares of the Borrower (i.e. non - cash); (b) decreased by the sum of (without duplication): ( i) non - cash gains resulting from the fair value of derivative financial investments for such period; ( ii) accrued (but not yet actually realized) foreign exchange translation gains; ( iii) gains on the purchase or redemption of securities issued by the Borrower and the Restricted Subsidiaries for such period; ( iv) any reduction in deferred tax recovery for such period; and (v) any other cash or non - cash extraordinary, unusual or non - recurring gains for such period, excluding, for greater certainty, gains associated with trading, settlement or balancing of Commodity Xxxxxx. “ EDC ” means Export Development Canada. “ EDC Indemnity ” means the bonding products declaration and indemnity dated December 30, 2016, provided by each Obligor in favour of EDC. “ EEA ” means the European Economic Area. “EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution
30355430.16 - 10 - described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent. “EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway. “EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution. “ Electricity Service Agreements ” means electricity service agreements entered into between an Obligor and an LDC regarding such Obligor’s electricity Customers. “ Eligible Customer Contracts ” means Customer Contracts for sales entered into in connection with the Business in Canada, the United States or such other jurisdiction as the Majority Lenders consent to in writing . “ Encumbrance ” means, in respect of any Person, any mortgage, debenture, pledge, hypothec, lien, charge, assignment by way of security, hypothecation or security interest granted or permitted by such Person or arising by operation of law, in respect of any of such Person’s Property, or any lease in respect of a Right of Use Asset by such Person as lessee or any other security agreement, trust or arrangement having the effect of security for the payment of any debt, liability or obligation, and “ Encumbrances ”, “ Encumbrancer ”, “ Encumber ” and “ Encumbered ” will have corresponding meanings. “ Equity Xxxxxx ” means any agreement, whether in the form of a futures or forward contract, swap or otherwise for the hedging of the price of shares. “ Equivalent Amount ” means with respect to any two currencies, the amount obtained in one such currency when an amount in the other currency is converted into the first currency using the spot rate of exchange for such conversion as quoted by the Bank of Canada at the close of business on the Business Day that such conversion is to be made (or, if such conversion is to be made before close of business on such Business Day, then at close of business on the immediately preceding Business Day) and, in either case, if no such rate is quoted, the spot rate of exchange quoted for wholesale transactions by Canadian Imperial Bank of Commerce in Toronto, Ontario on the Business Day such conversion is to be made in accordance with its normal practice. “ ERISA ” means the Employee Retirement Income Security Act of 1974 of the United States, together with the regulations thereunder as the same may be amended from time to time. Reference to Sections of ERISA also refer to any successive Sections thereto . “ ERISA Plan ” means an “employee welfare benefit plan” or “employee pension benefit plan” as such terms are defined in Sections 3 ( 1 ) and 3 ( 2 ) of ERISA . “EU Bail - In Legislation Schedule” means the EU Bail - In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
30355430.16 - 11 - “ Event of Default ” means any of the events described in Sec tion 9.01. “ Excluded Taxes ” means in the case of each Lender, the Agent or any other recipient of any payment to be made by or on account of any obligation of the Obligors hereunder (i) Taxes imposed on or measured by its net income (however denominated), net worth, net profits, capital and franchise taxes imposed on it in lieu of net income taxes and branch profits taxes, in each case, (A) by the jurisdiction under the laws of which such Lender or the Agent (as the case may be) is organized or has its principal office or applicable lending office or any political subdivision thereof or (B) that are Other Connection Taxes; (ii) any withholding Taxes imposed on interest payable to or for the account of such Lender or the Agent pursuant to law in effect on the date on which such Lender or the Agent became a Lender or the Agent hereunder (except to the extent such Taxes were not considered Excluded Taxes with respect to such Lender’s or the Agent’s immediate assignor); (iii) Taxes attributable to such Lender’s failure to comply with Sections 12.01(3), 12.01(4) or 12.01(5); (iv) any Canadian withholding Tax imposed on a payment by or on account of any obligation of an Obligor hereunder as a result of: (A) the recipient and the Obligor being Non - Arm’s Length; (B) the recipient being a “specified non - resident shareholder” of the Obligor or being Non - Arm’s Length with a “specified shareholder” of the Obligor (in each case, within the meaning of the Income Tax Act (Canada)), or (C) such payment being a payment of interest that is paid or payable in respect of a debt or other obligation to pay an amount to a person with whom the payer is Non - Arm’s Length, other than in each case where the Non - Arm’s Length, “specified shareholder” or “specified non - resident shareholder” relationship arises in connection with or as a result of a Lender or Agent having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under or received or enforced any rights under any Loan Document; and (v) any United States withholding Taxes imposed under FATCA. “ Existing Intercompany Debt ” means any Debt owing by an Obligor to any other Obligor, in each case in existence on the Closing Date. “ Expiration Date ” means the date that is six months from the Closing Date. “ FATCA ” means 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 regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code, and any agreements (including any intergovernmental agreements or any laws, rules or practices implementing such intergovernmental agreements) implementing the foregoing (including, for greater certainty, Part XVIII of the Income Tax Act (Canada)). “ FCPA ” means the Foreign Corrupt Practices Act, 15 U.S.C. †† 78dd - 1, et seq. “ Financial Assistance ” means, without duplication and with respect to any Person (a) all loans granted by that Person and Contingent Obligations incurred by that Person for the purpose of or having the effect of providing financial assistance to another Person or Persons, including, without limitation, letters of guarantee, letters of credit, legally binding comfort letters or indemnities issued in connection therewith, endorsements of bills of exchange (other than for collection or deposit in the ordinary course of business), obligations to purchase assets regardless
30355430.16 - 12 - of the delivery or non - delivery thereof and obligations to make advances or otherwise provide financial assistance to any other entity, or (b) all acquisitions of any equity interests or investments made by that Person in another Person or Persons, and for greater certainty “ Financial Assistance ” will include any guarantee of any third party lease obligations. “ Fiscal Quarter ” means each three month period of the Borrower’s Fiscal Year ending on June 30, September 30, December 31 and March 31 of each calendar year. “ Fiscal Year ” means the 12 - month fiscal period of the Borrower ending on the last day of ; (i) March or (ii) subject to the requirements of Secti on 8 . 04 ( 12 ) of this Agreement, December, in any calendar year . “ Fitch ” means Fitch Ratings, Inc . and its successors . “ Four Quarter Period ” means as at the last day of any particular Fiscal Quarter, the period of four consecutive Fiscal Quarters which includes such Fiscal Quarter (including the last day thereof) and the immediately preceding three Fiscal Quarters. “ Future Intercompany Debt ” means Debt incurred after the Closing Date by any Obligor and owing to any other Obligor; provided same is subject to the Restricted Subsidiary Subordination Agreement. “ GAAP ” means those accounting principles which are recognized as being generally accepted in Canada and which are in effect from time to time, as published in the Handbook of the Chartered Professional Accountants of Canada, or International Financial Reporting Standards, as the case may be; provided that all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under any Financial Accounting Standard to value any Debt or other liabilities of any Obligor or any Subsidiary of any Obligor at “fair value” as defined in any such Financial Accounting Standard. “ Governmental Authority ” means the government of any nation, province, territory, municipality, state or other political subdivision of any nation, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled (through stock or capital ownership or otherwise) by any of the foregoing. “Gross Margin” means, for any Fiscal Quarter, the net cash receipts, including accruals recorded in accordance with GAAP, (calculated in Canadian dollars) generated by Eligible Customer Contracts by the Borrower and the Restricted Subsidiaries on a Modified Consolidated Basis in such Fiscal Quarter less the cost of goods sold, recorded in accordance with GAAP, in such Fiscal Quarter, as determined as of the last day of such Fiscal Quarter in respect of the immediately preceding Four Quarter Period. “ Guarantee ” means an unconditional and irrevocable guarantee of all of the Obligations of the Borrower under this Agreement in form and substance satisfactory to the Lenders .
30355430.16 - 13 - “ Guarantors ” means each of the Restricted Subsidiaries and any other Person that provides a Guarantee in favour of the Agent and “ Guarantor ” means any one of them. “ Hazardous Substance ” means any substance, product, waste, pollutant, material, chemical, contaminant, dangerous goods, constituent or other material listed, regulated, or addressed under any Requirements of Environmental Law, including, without limitation, asbestos, petroleum, polychlorinated biphenyls and any “hazardous substance” as defined by CERCLA and any “hazardous waste” as defined by the Resource Conservation and Recovery Act of the United States. “ Xxxxxx ” means, collectively, Interest Rate Xxxxxx, Currency Xxxxxx, Commodity Xxxxxx and Equity Xxxxxx. “ IFRS 16 ” means the International Financial Reporting Standard 16: Leases. “ Income Tax Expense ” means, with respect to the Borrower, for any period, the aggregate, without duplication, of all Taxes on the income of such Person for such period, whether current or deferred, determined on a Modified Consolidated Basis. “ Information ” has the meaning set forth in Sectio n 14.01(1). “ Insolvency Legislation ” means legislation in any applicable jurisdiction relating to reorganization, arrangement, compromise or re - adjustment of debt, dissolution or winding - up, or any similar legislation, and specifically includes for greater certainty the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding - Up and Restructuring Act (Canada) and the Bankruptcy Code (United States). “ Intellectual Property ” means the intellectual property in patents, patent applications, trade - marks, trade - xxxx applications, trade names, service marks, copyrights, copyright registrations and trade secrets including, without limitation, customer lists and information and business opportunities, industrial designs, technology and other similar intellectual property rights. “ Intercreditor Agreement ” means the sixth amended and restated intercreditor agreement dated as of September 1, 2015 between the Senior Collateral Agent, the Senior Administrative Agent on behalf of the Senior Lenders and the Lender Hedge Providers (as defined in the Senior Credit Agreement), Shell Energy, the Other Commodity Suppliers (as defined therein), Just Energy Ontario L.P., Just Energy (U.S.) Corp., the Restricted Subsidiaries and such other persons as from time to time become party thereto, as amended by the first amending agreement and adhesion agreement dated May 17, 2018. “ Interest Payment Date ” means (i) the last Business Day of March and the last Business Day of September in each Fiscal Year and (ii) the Maturity Date, provided that in the case of (i), any cash payment of interest payable hereunder may be made within two Business Days of such Interest Payment Date until the repayment in full of the Senior Credit Agreement (or the replacement or refinancing thereof). “ Interest Rate ” means a fixed interest rate of [Percentage Redacted] per annum, which shall be increased by (i) [Percentage Redacted] for any accruing and payable PIK Interest on the
30355430.16 - 14 - relevant Interest Payment Date and (ii) 2% upon the occurrence and during the continuance of any Event of Default. “Interest Rate Hedge” means any agreement, whether in the form of a futures or forward contract, swap or otherwise for the hedging of interest on Debt. “ JEBPO ” means JEBPO Services LLP, a limited liability partnership incorporated in India and an indirect Subsidiary of the Borrower. “ JEC ” means Just Energy Corp., an Ontario corporation, formerly known as Ontario Energy Savings Corp. “ JEC Assignment Agreement ” means the Assignment, Assumption, Consent and Release Agreement dated as of August 1, 2005 between JEC, Just Energy Ontario L.P. and Shell Energy. “ Judgment Conversion Date ” has the meaning set forth in Sec tion 14.05(1)(b). “ Judgment Currency ” has the meaning set forth in Section 14.05(1). “JustGreen Products” means environmental derivative products, including carbon offsets, carbon credits, renewable energy certificates or attributes and the equivalents thereof. “ LDC Agreements ” means Collection Service Agreements and Transportation Agreements and the Electricity Service Agreements listed on Schedule E hereto as such agreements are in effect on the Original Closing Date and as from time to time supplemented, amended restated or replaced from time to time and any such agreement entered into with LDCs after the Original Closing Date, whether or not scheduled. “LDCs” means (i) local distribution companies to whom volumes of natural gas are delivered by an Obligor and with whom such Obligor has Transportation Agreements and Collection Service Agreements and (ii) local electricity distribution companies, which deliver electricity to Customers for and on behalf of an Obligor and with whom such Obligor has an Electricity Service Agreement. “ Lease Obligations ” means, as to any Person, the obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) any Right of Use Asset which obligations are required to be recorded on a balance sheet of such Person in accordance with IFRS 16. For the purposes of this Agreement, including all calculations of any Lease Obligations to be made hereunder, any lease which would be accounted for as an operating lease under the International Financial Reporting Standards as in effect on December 31, 2018 shall be, notwithstanding any subsequent change in the International Financial Reporting Standards, deemed to be accounted for as an operating lease under such prior IFRS rules (regardless of whether such lease is entered into or assumed before or after December 31, 2018) and the obligations thereunder shall not be Lease Obligations for the purpose of this Agreement. “ Lender - Related Distress Event ” means, with respect to any Lender or any Person that directly or indirectly controls such Lender (each, a “ Distressed Person ”), (a) a voluntary or involuntary case with respect to such Distressed Person under any Insolvency Legislation or (b) a custodian,
30355430.16 - 15 - conservator, receiver or similar official is appointed for such Distressed Person or any substantial part of such Distressed Person’s assets, or (c) such Distressed Person is subject to a forced liquidation, merger, sale or other change of control supported in whole or in part by guaranties or other support (including, without limitation, the nationalization or assumption of ownership or operating control by the government of Canada, the United States or other Governmental Authority), or (d) such Distressed Person makes a general assignment for the benefit of its creditors or is otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over such Distressed Person or its assets to be, insolvent, bankrupt, or deficient in meeting any capital adequacy or liquidity standard of any such Governmental Authority, or (e) such Distressed Person becomes the subject of a Bail - In Action. “ Lenders ” means Sagard, in its capacity as Lender, and the Persons from time to time designated in Schedule A annexed hereto as a Lender and “ Lender ” means any one of the Lenders and includes each of their successors and permitted assigns. “ Lenders’ Counsel ” means the firm of Torys LLP or such other firm of legal counsel as the Agent may from time to time designate and any and all local agent counsel retained by Torys LLP for and on behalf of the Agent. “ Leverage Ratio Test ” means the Average Net Senior Debt Utilization to EBITDA Ratio at the end of the Fiscal Quarter immediately preceding the Fiscal Quarter in which the applicable Interest Payment Date or Payment Date is due, is less than 1.00:1.00 “ Liquidity Test ” means, on the applicable Interest Payment Date or Payment Date, the consolidated balance of cash and Cash Equivalents of the Obligors (determined on a Modified Consolidated Basis) plus the undrawn amount of the credit facilities available under the Senior Credit Agreement would on a pro forma basis be equal to or greater than Cdn. [Dollar Amount Redacted] , as set out in a certificate of an officer of the Borrower delivered to the Agent on such date. “ Loan Documents ” means (a) this Agreement, the Guarantees and any Notes issued hereunder, (b) the Payment Letter and arrangements letter referred to in Sec tion 4.03 and (c) all present and future agreements delivered by any Obligor to the Agent or the Lenders pursuant to, or in respect of the agreements referred to in clauses (a), (b) and (c) inclusive of this definition, in each case as the same may be supplemented, amended or restated from time to time, and “ Loan Document ” will mean any one of the Loan Documents. “ Loan Facility ” has the meaning set forth in Sect ion 2.01(1) . “ Majority Lenders ” means Sagard and the Specified Lender, as Lenders, plus such other Lenders as may be required to hold at least [Percentage Redacted] of the outstanding Advances under the Loan Facility. “ Material Adverse Effect ” means (a) a material adverse effect on the business, operations, properties, assets, or condition (financial or otherwise) of all Obligors on a consolidated basis; (b) an adverse effect on the legality, validity or enforceability of any of the Loan Documents which could reasonably be considered material having regard to the Loan Documents considered as a whole; (c) a material adverse effect on the right, entitlement or ability of the Obligors as a
30355430.16 - 16 - whole, to pay or perform any of its debts, liabilities or obligations under any of the Loan Documents; or (d) a material adverse effect on the right, entitlement or ability of the Agent or the Lenders to enforce their rights or remedies under any of the Loan Documents, for greater certainty: (i) the restatement of the Borrower’s financial statements for fiscal 2019 and fiscal 2020 documented in Management’s Discussion and Analysis dated July 8, 2020; and (ii) the disclosure in Note 3(b) to the Borrower’s 2020 audited financial statements filed with SEDAR on July 8, 2020, shall not constitute a Material Adverse Effect. “ Material Contracts ” means, collectively, (i) all material LDC Agreements; (ii) all Supplier Contracts, excluding (A) those Supplier Contracts that are immaterial (provided that the supply under Supplier Contracts excluded in this subparagraph (A) does not exceed, in the aggregate, 10% of the total supply under all Supplier Contracts) and (B) Supplier Contracts entered into by an Unrestricted Subsidiary; and (iii) any other agreement entered into by an Obligor which: (a) if not complied with or terminated, could reasonably be expected to have a Material Adverse Effect; or (b) is necessary for the business of an Obligor and not replaceable in the commercial marketplace on commercially reasonable terms. “ Material Licences ” means, collectively, each licence, permit or approval issued by any Governmental Authority, or any applicable stock exchange or securities commission, to any Obligor, the breach or default of which could reasonably be expected to result in a Material Adverse Effect. “ Maturity Date ” means March 31, 2024. “Modified Consolidated Basis” means the consolidated financial position or results of the Borrower and the Restricted Subsidiaries, as determined in accordance with GAAP. “ Non - Arm’s Length ” and similar phrases have the meaning attributed thereto for the purposes of the Income Tax Act (Canada); and “ Arm’s Length ” will have the opposite of such meaning. “ Non - Funding Lender ” means any Lender (i) that has failed to fund any payment or Advances required to be made by it hereunder or to purchase all participations required to be purchased by it hereunder and under the Loan Documents, or (ii) that has given verbal or written notice to the Borrower, the Agent or any Lender or has otherwise publicly announced that it believes that it will be unable to fund advances under credit arrangements to which it is a party, or (iii) with respect to which one or more Lender - Related Distress Events has occurred, or (iv) with respect to which the Agent has knowledge that such Lender has defaulted in fulfilling its obligations (whether as an agent, lender or letter of credit issuer) under one or more other syndicated credit facilities, or (v) with respect to which the Agent has concluded, acting reasonably, and has advised the Lenders in writing that it is of the view that, there is a reasonable chance that such Lender shall become a “Non - Funding Lender” pursuant to any of (i), (ii) or (iii) above and that such Lender has been deemed a “Non - Funding Lender”. “ Note ” has the meaning set forth in Section 4.06.
30355430.16 - 17 - “ Obligations ” means, with respect to any Obligor, all of its present and future indebtedness, liabilities and obligations of any and every kind, nature or description whatsoever (whether direct or indirect, joint or several or joint and several, absolute or contingent, matured or unmatured, in any currency and whether as principal debtor, guarantor, surety or otherwise, including without limitation any interest that accrues thereon after or would accrue thereon but for the commencement of any case, proceeding or other action, whether voluntary or involuntary, relating to the bankruptcy, insolvency or reorganization whether or not allowed or allowable as a claim in any such case, proceeding or other action) to each of the Agent, the Lenders and each of them under, in connection with, relating to or with respect to each of the Loan Documents, and any unpaid balance thereof. “ Obligors ” means, collectively, the Borrower and the Guarantors and each of their respective successors and assigns and “ Obligor ” means any one of them. “ Original Lenders ” means the Lenders party to the Original Credit Agreement on the Original Closing Date and each of their respective permitted successors and assignees. “ OFAC ” means The Office of Foreign Assets Control of the US Department of Treasury. “ Operating Budget ” means (i) the annual operating budget of the Borrower in, consisting of a statement of cash available for distribution and a cash flow forecast and (ii) forecasted calculations in respect of each Fiscal Quarter for the purposes of (A) the financial covenants in Sec tion 8.02 and (B) Section 8.05(4) (and which, for greater certainty, shall be substantially the form attached hereto as Schedule F and shall include in respect of all Unrestricted Subsidiaries of the Borrower only separate select information concerning the RCE’s and Gross Margin (as if such definition applied to Unrestricted Subsidiaries mutatis mutandis ) of such Unrestricted Subsidiaries calculated on an annual basis). “Original Closing Date ” means September 12, 2018. “ Organizational Documents ” means, with respect to any Person, such Person’s articles or other charter documents, by - laws, unanimous shareholder agreement, partnership agreement, joint venture agreement, operating agreement, limited liability company agreement or trust agreement, as applicable, and any and all other similar agreements, documents and instruments relative to such Person, setting forth the manner of election or duties of the directors, officers or managing members of such Person or the designation, amount or relative rights, limitations and preferences of any equity interests of such Person. “ Other Connection Taxes ” means, with respect to any recipient, Taxes imposed as a result of a former or present connection between such recipient and the jurisdiction imposing the 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 Loan Document, or sold or assigned an interest in any Advance or Loan Document). “ Participant ” has the meaning set forth in Sectio n 13.03(1). “ Participant Register ” has the meaning set forth in Section 13.03(3).
30355430.16 - 18 - “ Patriot Act ” has the meaning set forth in Sec tion 7.01(45). “ Payment Date” has the meaning set forth in the Payment Letter as amended by Section 4.03. “ Payment Letter ” means the amended and restated payment letter between the Borrower and the Agent, on behalf of the Original Lenders, dated as of October 30, 2018, as amended, modified, restated or supplemented from time to time. “ PB Plan ” means the Performance Bonus Plan under which employees and sales representatives are awarded securities of the Borrower as bonuses, as amended or replaced from time to time. “ Pending Event of Default ” means an event which, but for the requirement for the giving of notice, lapse of time, or both, or but for the satisfaction of any other condition subsequent to such event, would constitute an “Event of Default”. “ Permitted Asset Dispositions ” means Dispositions by an Obligor of: (a) tangible personal property in the normal course of its Business for fair market value and on customary trade terms; (b) any Property pursuant to a Designated Disposition; (c) tangible personal property other than pursuant to clauses (a), (b) or (d) hereof where the value of all such Property Disposed in any Fiscal Year pursuant to this clause (c) does not exceed in the aggregate [Dollar Amount Redacted] ; (d) tangible or intangible personal property to any other Obligor; (e) Billed Accounts Receivable and Sold Unbilled Accounts Receivable under the Customer Contracts to LDCs in accordance with the LDC Agreements; (f) all of the shares or equity interests in, or all or substantially all of the Property of, EdgePower Inc. (collectively, the “ EdgePower Property ”) so long as the following conditions are satisfied: (i) no Pending Event of Default or Event of Default has occurred and is continuing at the time of such Disposition or will arise as a result of the implementation of any of the transactions contemplated by such Disposition; (ii) the Borrower and the Restricted Subsidiaries shall have received all necessary consents and approvals of any Governmental Authorities and other third parties (including the Priority Suppliers (as defined in the Senior Credit Agreement)) required for the Borrower and the Restricted Subsidiaries to consummate such Disposition and release of the Security over the shares, equity interests and Property of EdgePower Inc.; and (iii) such Disposition will be on Arm’s Length terms, or (g) intangible personal property, other than pursuant to clauses (d) and (e) hereof, in the normal course of its business for fair market value where the value of all such intangible property disposed in any Fiscal Year by all Obligors does not exceed [Dollar Amount Redacted] in the aggregate.
30355430.16 - 19 - “Permitted Debt” means: (a) Debt under this Agreement; (b) (i) Debt under the Senior Credit Agreement in an aggregate principal amount not to exceed the Senior Lender Limitation Amount at any time, (ii) Debt under Xxxxxx, provided that the Aggregate Swap Exposure shall not exceed [Dollar Amount Redacted] at any time, and (iii) Debt under agreements evidencing treasury facilities and cash management products provided by any Senior Lender or an Affiliate of a Senior Lender and permitted under the Senior Credit Agreement; (c) Debt in respect of Purchase Money Security Interests and Lease Obligations in an outstanding amount not to exceed [Dollar Amount Redacted] in the aggregate for all Obligors; (d) Existing Intercompany Debt; (e) Future Intercompany Debt; (f) Permitted Unrestricted Subsidiary Debt; (g) [Reserved]; (h) [Reserved]; ( i) guarantees of any Debt (other than in respect of the $15 Million Subordinated Note) otherwise permitted hereunder; ( j) Debt under (i) Canadian Dollar corporate credit cards of the Obligors provided that the amount of all such Debt at no time exceeds [Dollar Amount Redacted] in the aggregate for all Obligors and (ii) US Dollar corporate credit cards of the Obligors provided that the amount of all such Debt at no time exceeds [Dollar Amount Redacted] in the aggregate for all Obligors; (k) [Reserved] ( l) [Reserved] (m) EDC Indemnity; (n) the $15 Million Subordinated Note, provided that the trustee of the $15 Million Subordinated Note has issued a confirmation in favour of the Agent that the Obligations constitute “Senior Indebtedness” under the $15 Million Subordinated Note Indenture; and (o) Debt consented to in writing by the Majority Lenders from time to time. “Permitted Distributions” means:
30355430.16 - 20 - (a) Distributions from an Obligor (other than the Borrower) to another Obligor; (b) Distributions by way of issuance of common shares or preferred shares of the Borrower to the public (including, for greater certainty, by way of private placement); (c) [Reserved]; (d) [Reserved]; (e) non - cash Distributions of Share Based Compensation; (f) distributions paid in cash under the Restricted Share Grant Plan, the PB Plan or under the Deferred Compensation Plan in an aggregate amount over the term of this Agreement not exceeding [Dollar Amount Redacted] ; and (g) [Reserved]; (h) [Reserved]; ( i) [Reserved]; ( j) Distributions on the account of any Alberta Utilities Commission Debt, provided that each such Distribution shall be made solely with the proceeds of the payments received by the Obligors from their Customers in the Province of Alberta under the applicable Customer Contracts; (k) payments of principal, interest or fees in respect of the Senior Credit Agreement and related xxxxxx and cash management services; and ( l) interest payments that are paid in kind (and not in cash) on the $15 Million Subordinated Note. “ Permitted Encumbrances ” means, with respect to any Person, the following: (a) Encumbrances for Taxes not yet due or for which instalments have been paid based on reasonable estimates pending final assessments, or if due, they are not yet delinquent or the validity of which is being contested diligently and in good faith by appropriate proceedings by that Person for which reasonable reserves under GAAP are maintained; (b) Encumbrances in respect of claims for unpaid wages, vacation pay, worker’s compensation, unemployment insurance premiums, pension plan contributions, employee or non - resident withholding tax source deductions, realty taxes (including utility charges and business taxes which are collectable like realty taxes), unremitted goods and services taxes, provincial sales taxes, customs duties or similar statutory obligations secured by an Encumbrance on any Obligor’s assets, but only if the obligations secured by such Encumbrances are paid before
30355430.16 - 21 - they become delinquent or they are being contested diligently and in good faith by appropriate proceedings by that Person for which reasonable reserves under GAAP are maintained; (c) undetermined or inchoate liens, rights of distress and charges incidental to current operations which relate to obligations not yet due, or if due, they are not yet delinquent or the validity of which is being contested diligently and in good faith by appropriate proceedings by that Person or they do not exceed [Dollar Amount Redacted] in the aggregate; (d) the Encumbrance resulting from the deposit of cash or securities in connection with contracts, tenders or expropriation proceedings, or to secure workmen’s compensation, unemployment insurance, letters of credit, surety or appeal bonds, or costs of litigation when required by law in any case not to exceed [Dollar Amount Redacted] or the Equivalent Amount in US$ in aggregate outstanding at any time, liens and claims incidental to current construction, mechanics’, warehousemen’s, landlords’, carriers’, surety bonds and other similar liens, and public, statutory and other like obligations incurred in the ordinary course of business; (e) the Encumbrance created by a judgment of a court of competent jurisdiction, so long as the same does not result in an Event of Default; (f) Encumbrances on real property which consist of (i) reservations, limitations, provisos and conditions expressed in the original grant from the Crown, (ii) any general qualifications to title imposed under the land registry system in which any real property is situate, (iii) any encroachments, variations in description or by - law infractions which might be revealed by an up - to - date survey of the real property, (iv) any agreement with a municipality with respect to the development of the buildings, fixtures and improvements on the real property, (v) restrictions or restrictive covenants disclosed by registered title, (vi) any easement or right - of - way disclosed by registered title and (vii) any easement for the supply of utilities to the real property; (g) liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of combination of accounts or similar rights in the ordinary course of conducting day - to - day banking business in relation to deposit accounts (including segregated deposit accounts for Customers if required by Applicable Law) or other funds maintained with a financial institution; (h) the Encumbrances created by the security granted to the Senior Collateral Agent pursuant to the Senior Credit Documents; ( i) Purchase Money Security Interests and Encumbrances securing Lease Obligations, provided that the aggregate outstanding amount of Debt secured thereby or arising thereunder does not exceed [Dollar Amount Redacted] or the Equivalent Amount in US$ at any time;
30355430.16 - 22 - any Encumbrance granted by any Obligor to LDCs in respect of Billed Accounts Receivable under the Customer Contracts that have been sold to LDCs and for which LDCs are obligated to pay for following such sale in accordance with Collection Service Agreements as permitted by Section 8.04(1); ( j) (k) any Encumbrance granted by any Obligor to LDCs in respect of Sold Unbilled Accounts Receivable under the Customer Contracts that have been sold to LDCs and for which LDCs are obligated to pay for following such sale in accordance with Collection Service Agreements as permitted by Section 8.04(1); ( l) any Encumbrance granted by any Obligor to LDCs in respect of Unbilled Accounts Receivable in accordance with Collection Service Agreements, provided that the aggregate value of such Unbilled Accounts Receivable Encumbered at any time shall not exceed [Dollar Amount Redacted] ; (m) any Encumbrance granted by any Obligor to LDCs in respect of Cash Security Deposits in accordance with Collection Service Agreements, provided that the aggregate value of such Cash Security Deposits Encumbered at any time shall not exceed [Dollar Amount Redacted] ; (n) any Encumbrance granted by an Obligor to an LDC in respect of natural gas in storage with such LDC if required by such LDC or the tariff applicable to such LDC; provided that the aggregate volume of such natural gas in storage so Encumbered shall not at any time exceed 15% of the aggregate volume of all such natural gas in storage; (o) Encumbrances over Credit Card Payment Accounts to secure obligations of certain Obligors to certain deposit banks pursuant to merchant services agreements; (p) [Reserved] (q) Encumbrances over any and all cash, monies and interest bearing instruments delivered to, deposited with or held by an exchange for natural gas and any rights to payment or performance owing from an exchange for natural gas including, without limitation, accounts payable owed by the exchange to an Obligor to the extent that such proceeds are to be used as security for future transactions and all proceeds of any of the foregoing, provided that the aggregate value of such Encumbrances at any time shall not exceed [Dollar Amount Redacted] ; and (r) such other Encumbrances as agreed to in writing by the Majority Lenders in accordance with this Agreement. “ Permitted Unrestricted Subsidiary Debt ” means Debt owing by the Obligors to Unrestricted Subsidiaries in existence as of the Closing Date in an amount not to exceed [Dollar Amount Redacted] in the aggregate at any time; provided that such Debt is subordinated and postponed to the Obligations pursuant to the terms of a Subordination Agreement.
30355430.16 - 23 - “ Person ” is to be broadly interpreted and will include an individual, a corporation, a limited liability company, an unlimited liability company, a partnership, a trust, an incorporated organization, a joint venture, financial institution, the government of a country or any political subdivision of a country, or an agency or department of any such government, any other Governmental Authority and the executors, administrators or other legal representatives of an individual in such capacity. “ PIK Interest ” and “ PIK Fees ” means any interest or Yield Enhancement Payment payable hereunder or under the Payment Letter, as applicable, that is required to be capitalized pursuant to Sections 4.01 or 4.03 of this Agreement. “ Plan of Arrangement ” means the amended and restated plan of arrangement dated as of September 2, 2020 with respect to the Borrower and 12175592 Canada Inc., court file no. CV - 20 - 00643596 - 00CL. “ Proceedings ” means the proceedings commenced by the Borrower on July 8 , 2020 under section 192 of the Canada Business Corporations Act before the Ontario Superior Court of Justice (Commercial List) in Toronto, Ontario . “ Property ” means, with respect to any Person, all or any portion of its undertaking, property and assets, both real and personal, including, for greater certainty, (i) any share in the capital of a corporation or ownership interest in any other Person and (ii) its interest under all Supplier Contracts, LDC Agreements and related permits. “ Proportionate Share ” means in respect of each Lender from time to time and with respect to the Advances, such Lender’s pro rata share in accordance with the aggregate unpaid amount of the Advances owed to such Lender . “ Purchase Money Security Interest ” means an Encumbrance created or assumed by an Obligor securing Debt incurred to finance the unpaid acquisition price (including any installation costs or costs of construction) of Property provided that (a) such Encumbrance is created substantially concurrently with the acquisition of such Property, (b) such Encumbrance does not at any time encumber any Property other than the Property and the proceeds thereof financed or refinanced (to the extent the principal amount is not increased) by such Debt, (c) the amount of Debt secured thereby is not increased subsequent to such acquisition, and (d) the principal amount of Debt secured by any such Encumbrance at no time exceeds 100% of the original purchase price of such Property at the time it was acquired, installed or constructed and for the purposes of this definition the term “acquisition” will include a lease in respect of a Right of Use Asset and the term “acquire” will have a corresponding meaning. “ RCE ” means a residential customer equivalent which is a unit of measurement to a customer using, as regards natural gas, 2 , 815 m 3 (or 106 GJ’s) of natural gas on an annual basis and, as regards electricity, 10 , 000 kWh of electricity on an annual basis, which represents respectively the approximate amount of gas and electricity used by a typical household . “ Recapitalization Plan ” means the plan of arrangement in respect of the Borrower pursuant to the Canada Business Corporations Act , which plan shall be consistent with the terms of the
30355430.16 - 24 - recapitalization set out in the Support Agreement, and in form and substance satisfactory to the Agent, acting reasonably. “ Receiving Lender ” has the meaning set forth in Sec tion 11.12 . “ Register ” has the meaning set forth in Section 13.02(3). “ Release ” means a “release”, as such term is defined in CERCLA. “Relevant Jurisdiction” means, from time to time, with respect to any Obligor, such Obligor’s jurisdiction of formation, chief executive office, registered office or chief place of business and, for greater certainty, at the Closing Date includes the jurisdictions set forth in Schedule 7 . 01 ( 19 ) . “ Repayment Notice ” means the notice substantially in the form annexed hereto as Schedule C . “ Requirements of Environmental Law ” means all requirements of the common law or of statutes, regulations, by - laws, ordinances, treaties, judgments and decrees, and (to the extent that they have the force of law) rules, policies, guidelines, orders, approvals, notices, permits, directives, and the like, of any federal, territorial, provincial, state, regional, municipal or local judicial, regulatory or administrative agency, board or governmental authority in Canada, the United States and any other jurisdiction in which any Obligor has operations or assets relating to environmental or occupational health and safety matters (as they relate to exposure to a Hazardous Substance) and the assets and undertaking of any Obligor and the intended uses thereof in connection with such matters, including but not limited to, all such requirements relating to : (a) the protection, preservation or remediation of the natural environment (the air, land, surface water or groundwater) ; (b) solid, gaseous or liquid waste generation, handling, treatment, storage, disposal or transportation ; (c) consumer, occupational or public safety and health (as they relate to exposure to a Hazardous Substance) ; and (d) Hazardous Substances or conditions (matters that are prohibited, controlled or otherwise regulated, such as contaminants, pollutants, toxic substances, dangerous goods, wastes, hazardous wastes, liquid industrial wastes, hazardous materials, petroleum and other materials such as urea formaldehyde and polyurethane foam insulation, asbestos or asbestos - containing materials, polychlorinated biphenyls (PCBs) or PCB contaminated fluids or equipment, lead based paint, explosives, radioactive substances, petroleum and associated products, above ground and underground storage tanks or surface impoundments) . “ Requirements of Law ” means, as to any Person, any Applicable Law, or determination of a Governmental Authority having the force of law, in each case applicable to or binding upon such Person or any of its business or Property or to which such Person or any of its business or Property is subject. “ Restricted Share Grant Plan ” means the 2010 restricted share grant plan pursuant to which restricted common shares of the Borrower are granted to senior officers and service providers to the Borrower and to senior officers of the Borrower’s Subsidiaries and Affiliates, as supplemented, amended or restated from time to time. “ Restricted Subsidiary ” means each direct or indirect Subsidiary of the Borrower that has provided a Guarantee and for greater certainty, includes (i) the Obligors, and (ii) any Subsidiary formed or acquired by any Obligor following the Closing Date.
30355430.16 - 25 - “ Restricted Subsidiary Subordination Agreement ” means the subordination and postponement of inter - corporate debt agreement dated as of the Original Closing Date between the Obligors and the Agent, whereby the Obligors subordinate and postpone certain Debt of the Obligors including (i) any Existing Intercompany Debt; and (ii) any Future Intercompany Debt, to the Obligations, as such agreement may be supplemented, amended or restated from time to time. “ Right of Use Asset ” means, with respect to any Person, any asset that is leased by such Person and constituting a right of use asset pursuant to IFRS 16. “ Sagard ” means Sagard Credit Partners, LP and its successors and assigns. “ Sanctioned Person ” means a person named on the list of Specially Designated Nationals maintained by OFAC or otherwise designated under Sanctions Laws. “ Sanctions Event ” has the meaning set forth in Sec tion 7.01(43). “ Sanctions Laws ” means any economic, trade or financial sanctions or trade embargoes imposed, administered or enforced from time to time under laws and executive orders of the Canadian government (including without limitation including under the Special Xxxxxxxx Xxxxxxxx Xxx (Xxxxxx), the United Nations Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada), the Justice for Victims of Corrupt Foreign Officials Act (Xxxxxx Xxxxxxxxx Law) and the Criminal Code (Canada) and, in each case, the regulations promulgated thereunder), the United States government, or any other relevant sanctions authority. “ Senior Administrative Agent ” means National Bank of Canada in its capacity as “Agent” under the Senior Credit Agreement. “ Senior Collateral Agent ” means National Bank of Canada in its capacity as “Collateral Agent” under the Senior Security Documents and the Intercreditor Agreement, or such Person from time to time appointed as collateral agent in accordance with the terms of the Intercreditor Agreement . “ Senior Credit Agreement ” means the ninth amended and restated credit agreement dated as of the date hereof between, among others, Just Energy Ontario L.P. and Just Energy (U.S.) Corp., as borrowers, National Bank of Canada as administrative agent and each person party thereto as a lender, as may be supplemented, modified, amended or restated from time to time. “ Senior Credit Documents ” has the meaning ascribed to the term “Credit Document” in the Senior Credit Agreement. “ Senior Debt ” means Total Debt minus (i) Debt incurred hereunder and (i) the $ 15 Million Subordinated Note, all as determined on a Modified Consolidated Basis in accordance with GAAP . “ Senior Debt to EBITDA Ratio ” means, for any Four Quarter Period, the ratio of Senior Debt as at the last day of the applicable Four Quarter Period to EBITDA in respect of such Four Quarter Period.
30355430.16 - 26 - “Senior Lender Limitation Amount” means [Dollar Amount Redacted] , which amount shall be reduced by the amount of any permanent repayments of principal under the Senior Credit Agreement from time to time, but shall not be less than [Dollar Amount Redacted] . “ Senior Lenders ” means each lender party to the Senior Credit Agreement as a lender from time to time. “ Senior Obligations ” means the “Obligations” as defined in the Senior Credit Agreement. “ Senior Security Documents ” means the documents evidencing the Encumbrances granted by the Obligors in favour of the Senior Collateral Agent from time to time. “ Senior Subordination Agreement ” means the amended and restated subordination agreement dated as of the Closing Date between the Senior Administrative Agent, the Agent, the Borrower and each of the Restricted Subsidiaries, as may be amended, restated, supplemented, modified or replaced from time to time. “ Share Based Compensation ” means compensation paid by the Borrower to the directors, officers, full - time employees and service providers of the Borrower and the Borrower’s Subsidiaries and Affiliates in the form of common shares pursuant to the Share Compensation Plan, the Restricted Share Grant Plan, the PB Plan or the Deferred Compensation Plan. “ Share Compensation Plan ” means the 2020 share compensation plan pursuant to which common shares of the Borrower are granted to directors, officers and full - time employees of and service providers to the Borrower, and its Subsidiaries and Affiliates, as supplemented, amended or restated from time to time. “ Shell Energy ” means Shell Energy North America (Canada) Inc., formerly known as Coral Energy Canada Inc. “ Sold Unbilled Accounts Receivable ” means all present and future amounts that have not yet been billed to a Customer in respect of gas, electricity or JustGreen Products that has been delivered to such Customer pursuant to a Customer Contract and which have been assigned or sold to an LDC concurrently with the delivery of such gas, electricity or JustGreen Products and which are subject to a Collection Service Agreement. “ Specified Canadian Pension Plan ” means any Canadian Pension Plan which contains a “defined benefit provision”, as defined in subsection 147.1(1) of the Income Tax Act (Canada). “ Specified Lender ” mean the entity disclosed by the Borrower to the Agent on the confidential schedule delivered prior to the Closing Date, together with its affiliates (including funds and accounts for which it serves as investment manager or advisor). “ Subsidiary ” means, at any time, as to any Person, any other Person, if at such time the first mentioned Person owns, directly or indirectly, alone or together with one or more of its Affiliates, securities or other ownership interests in such other Person having ordinary voting power to elect a majority of the board of directors or persons performing similar functions for
30355430.16 - 27 - such other Person, and will include any other Person in like relationship to a Subsidiary of such first mentioned Person. “ Supplier Contracts ” means contracts between any Obligor and a supplier of natural gas, electricity or JustGreen Products, including, without limitation, the natural gas sales agreement dated as of October 15, 1998 between JEC and Shell Energy, as amended by amending agreements dated as of September 26, 2001 and January 15, 2004 between Just Energy Ontario L.P. and Shell Energy, and as assigned to Just Energy Ontario L.P. pursuant to the JEC Assignment Agreement, as supplemented, amended or restated from time to time in accordance with the terms of this Agreement. “ Supply Commitments ” means, at any time, the amount of natural gas, electricity or JustGreen Products anticipated to be deliverable by the Obligors to Customers under (i) committed existing Customer Contracts; (ii) supplied but not flowing renewals of expiring Customer Contracts; and (iii) supplied but not flowing new Customer Contracts. “Support Agreement ” has the meaning set forth in the recitals of this Agreement. “ Tax ” or “ Taxes ” means all taxes, charges, fees, levies, imposts and other assessments, including all income, sales, use, goods and services, harmonized sales, value added, capital, capital gains, alternative, net worth, capital, transfer, profits, withholding, payroll, employer health, excise, franchise, real property and personal property taxes, and any other taxes, customs duties, fees, assessments, royalties, duties, deductions, compulsory loans or similar charges in the nature of a tax, including Canada Pension Plan and provincial pension plan contributions, employment insurance payments and workers compensation premiums, together with any instalments, and any interest, fines and penalties, imposed by any Governmental Authority (including federal, state, provincial, municipal and foreign Governmental Authorities) in respect thereof, whether disputed or not. “ Total Debt ” means all Debt of the Borrower but, for the avoidance of doubt, excludes (i) Debt arising under Xxxxxx, (ii) the principal amount outstanding of all Existing Intercompany Debt, Future Intercompany Debt and Permitted Unrestricted Subsidiary Debt, and (iii) Debt arising under the EDC Indemnity and (iv) the Alberta Utilities Commission Debt, all as determined on a Modified Consolidated Basis in accordance with GAAP. “ Total Interest Expense ” of the Borrower means, for any period and on a Modified Consolidated Basis, without duplication, the aggregate amount of interest and other financing charges accrued or actually paid by the Borrower, during such period with respect to Debt including interest, discount and financing fees, commissions, discounts, the interest or time value of money component of costs related to factoring or securitizing receivables or monetizing inventory and other fees and charges payable with respect to letters of credit, letters of guarantee and bankers’ acceptance financing, standby fees and the interest charges with respect to Lease Obligations, all as determined in accordance with GAAP. “ Transportation Agreements ” means, collectively, the transportation agreements entered into between the Obligors and LDCs (or entered into between JEC and LDCs and assigned to Just Energy Ontario L.P. pursuant to the JEC Assignment Agreement) providing for the delivery of
30355430.16 - 28 - gas provided by an Obligor to its Customers and related matters, as supplemented, amended or restated from time to time in accordance with the terms of this Agreement. “ UK Convertible Bonds ” has the meaning set forth in the recitals of this Agreement. “ UK Financial Institution ” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms. “ UK Resolution Authority ” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution. “ Unbilled Accounts Receivable ” means all present and future amounts in respect of gas or electricity or JustGreen Products that have been delivered to a Customer pursuant to a Customer Contract, and that have not yet been billed to such Customer or assigned or sold to an LDC pursuant to a Collection Service Agreement, and which, for greater certainty, remain an asset of an Obligor. “ United States Dollars ”, “ US Dollars ” and “ US$ ” means the lawful money of the United States of America. “ Unrestricted Subsidiaries ” means a direct or indirect Subsidiary of the Borrower that is not a Restricted Subsidiary. “ US Pension Plan ” means a “pension plan”, as such term is defined in Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer plan as defined in Section 4001(a)(3) of ERISA), and to which an Obligor, or any corporation, trade or business that is, along with any other Person, a member of a Controlled Group, may reasonably be expected to have liability, including any liability by reason of having been a substantial employer within the meaning of Section 4063 of ERISA at any time during the preceding five years, or by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA. “ US Welfare Plan ” means a “welfare plan”, as such term is defined in Section 3(1) of ERISA. “ Withholding Agent ” means any Obligor and the Agent. “ Write - Down and Conversion Powers ” means, (a) with respect to any EEA Resolution Authority, the write - down and conversion powers of such EEA Resolution Authority from time to time under the Bail - In Legislation for the applicable EEA Member Country, which write - down and conversion powers are described in the EU Bail - In Legislation Schedule, and (b) with respect to any UK Resolution Authority, any powers of such UK Resolution Authority from time to time under the Bail - In Legislation for the United Kingdom to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is
30355430.16 - 29 - to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail - In Legislation that are related to or ancillary to any of those powers. “ Yield Enhancement Payments ” means all yield enhancement payments and other payments due and payable to the Agent on behalf of the Original Lenders pursuant to the Payment Letter. 2. Headings The division of this Agreement into Articles and Sections and the insertion of headings are for convenience of reference only and will not affect the construction or interpretation of this Agreement. The terms “this Agreement”, “hereof”, “hereunder” and similar expressions refer to this Agreement and not to any particular Article, Section or other portion hereof and include any agreement supplemental hereto. Unless something in the subject matter or context is inconsistent therewith, references herein to Articles and Sections are to Articles and Sections of this Agreement. 3. Number Words importing the singular number only will include the plural and vice versa , words importing the masculine gender will include the feminine and neuter genders and vice versa . 4. Accounting Principles Where the character or amount of any asset or liability or item of revenue or expense is required to be determined, or any consolidation or other accounting computation is required to be made for the purpose of this Agreement or any Loan Document, such determination or calculation will, to the extent applicable and except as otherwise specified herein or as otherwise agreed in writing by the parties, be made in accordance with GAAP. 5. Accounting Practices All calculations for the purposes of determining compliance with the financial ratios and financial covenants contained in this Agreement will be made on a basis consistent with GAAP in existence as at the date hereof applied on a Modified Consolidated Basis in accordance with GAAP. In the event of a change in such GAAP which in any material respect changes or results in a change in the method of calculation of, or has an adverse impact on, financial covenants, standards or terms applicable to an Obligor under any of the Loan Documents as determined by the Lenders, acting reasonably, the Borrower and the Agent (with the approval of the Majority Lenders) will negotiate in good faith to revise (if appropriate) such ratios and covenants to reflect GAAP as then in effect, in which case all calculations thereafter made for the purpose of determining compliance with the financial ratios and financial covenants contained in this Agreement will be made on a basis consistent with GAAP in existence as at the date of such revisions.
30355430.16 - 30 - 6. Currency Unless otherwise specified in this Agreement, all references to dollar amounts (without further description) will mean Canadian Dollars. 7. Paramountcy In the event of a conflict in or between the provisions of this Agreement and the provisions of any of the other Loan Documents then, notwithstanding anything contained in such other Loan Document, the provisions of this Agreement will prevail and the provisions of such other Loan Document will be deemed to be amended to the extent necessary to eliminate such conflict. In particular, if any act or omission of an Obligor is expressly permitted under this Agreement but is expressly prohibited under another Loan Document, such act or omission will be permitted. If any act or omission is expressly prohibited under a Loan Document (other than this Agreement), but this Agreement does not expressly permit such act or omission, or if any act is expressly required to be performed under such Loan Document but this Agreement does not expressly relieve the applicable Obligor from such performance, such circumstance will not constitute a conflict in or between the provisions of this Agreement and the provisions of such Loan Document. 8. Non - Business Days Unless otherwise expressly provided in this Agreement, whenever any payment is stated to be due on a day other than a Business Day, the payment will be made on the immediately following Business Day. In the case of interest or fees payable pursuant to the terms of this Agreement, the extension or contraction of time will be considered in determining the amount of interest and fees. Unless otherwise expressly provided in this Agreement, whenever any action to be taken is stated or scheduled to be required to be taken on, or (except with respect to the calculation of interest or fees) any period of time is stated or scheduled to commence or terminate on, a day other than a Business Day, the action will be taken or the period of time will commence or terminate, as the case may be, on the immediately following Business Day. 9. Statutory and Material Contract References Any reference in this Agreement to any act or statute or regulation (including any regulation of any Governmental Authority), or to any section of or any definition in any act, statute or regulation (including any regulation of any Governmental Authority), will be deemed to be a reference to such act, statute or regulation (including any regulation of any Governmental Authority) or section or definition as amended, supplemented, substituted, replaced or re - enacted from time to time. Any reference in this Agreement to an agreement, indenture, debenture or contract (including without limitation a Material Contract) will be deemed to be a reference to such document as supplemented, amended, restated, replaced or otherwise modified from time to time in accordance with the terms of this Agreement. Notwithstanding the above, references to the Senior Credit Agreement or any of the Senior Credit Documents shall not include any references to any refinancings or replacements thereof (unless such refinancing or replacement thereof is expressly permitted by Sec tion 8.04(26) ).
30355430.16 - 31 - Interest Payments and Calculations 1.10 (1) All interest payments to be made under this Agreement will be paid without allowance or deduction for deemed re - investment or otherwise, both before and after maturity and before and after default and/or judgment, if any, until payment of the amount on which such interest is accruing, and interest will accrue on overdue interest, if any. (2) Unless otherwise stated, wherever in this Agreement reference is made to a rate of interest or rate of fees “per annum” or a similar expression is used, such interest or fees will be calculated on the basis of a calendar year of 360 days and using the nominal rate method of calculation, and will not be calculated using the effective rate method of calculation or on any other basis that gives effect to the principle of deemed re - investment of interest. (3) For the purposes of the Interest Act (Canada) and disclosure under such act, whenever interest to be paid under this Agreement is to be calculated on the basis of a year of 360 days or any other period of time that is less than a calendar year, the yearly rate of interest to which the rate determined pursuant to such calculation is equivalent is the rate so determined multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by 360 or such other period of time, as the case may be. EACH OF THE OBLIGORS CONFIRMS THAT IT FULLY UNDERSTANDS AND IS ABLE TO CALCULATE THE RATE OF INTEREST APPLICABLE TO THE LOAN FACILITY BASED ON THE METHODOLOGY FOR CALCULATING PER ANNUM RATES PROVIDED FOR IN THIS AGREEMENT. The Agent agrees that if requested in writing by the Borrower it will calculate the nominal and effective per annum rate of interest on any Advance outstanding at the time of such request and provide such information to the Borrower promptly following such request; provided that any error in any such calculation, or any failure to provide such information on request, shall not relieve either Borrower or any other Obligor of any of its obligations under this Agreement or any other Loan Document, nor result in any liability to the Agent or any Lender. EACH OBLIGOR HEREBY IRREVOCABLY AGREES NOT TO PLEAD OR ASSERT, WHETHER BY WAY OF DEFENCE OR OTHERWISE, IN ANY PROCEEDING RELATING TO THE CREDIT DOCUMENTS, THAT THE INTEREST PAYABLE UNDER THE LOAN DOCUMENTS AND THE CALCULATION THEREOF HAS NOT BEEN ADEQUATELY DISCLOSED TO THE OBLIGORS, WHETHER PURSUANT TO SECTION 4 OF THE INTEREST ACT (CANADA) OR ANY OTHER APPLICABLE LAW OR LEGAL PRINCIPLE. (4) In calculating interest or fees payable under this Agreement for any period, unless otherwise specifically stated, the first day but not the last day of such period will be included . (5) Notwithstanding anything herein to the contrary, in no event will any interest rate or rates referred to herein (together with other fees payable hereunder which are construed by a court of competent jurisdiction to be interest or in the nature of interest) exceed the maximum interest rate permitted by Applicable Law. If such maximum interest rate would be exceeded by the terms hereof, the rates of interest payable hereunder will be reduced to the extent necessary so that such rates (together with other fees which are construed by a court of competent jurisdiction to be interest or in the nature of interest) equal the maximum interest rate
30355430.16 - 32 - permitted by Applicable Law, and any overpayment of interest received by the Agent or the Lenders theretofore will be applied, forthwith after determination of such overpayment, to pay all then outstanding interest, and thereafter to pay outstanding principal, as if the same were a prepayment of principal and treated accordingly hereunder. 11. Determination by the Borrower All provisions contained herein requiring the Borrower to make a determination or assessment of any event or circumstance or other matter to the best of its knowledge shall be deemed to require the Borrower to make all due inquiries and investigations as may be necessary or prudent in the circumstances before making any such determination or assessment. 12. Schedules The following are the Schedules annexed hereto and incorporated by reference and deemed to be part hereof: Schedule A Schedule B Schedule C Schedule D Schedule E Schedule F Schedule G Schedule H Schedule I Schedule J Schedule K Schedule 4.04 Schedule 4.06 Schedule 7.01(6) Schedule 7.01(16) Schedule 7.01(22) Schedule 7.01(28) Schedule 7.01(36) – Lenders and Advances – [Reserved] – Repayment Notice – Assignment Agreement – List of LDC Agreements – Form of Operating Budget – List of Guarantors as of the Closing Date – Form of Subordination Agreement – Form of Compliance Certificate – [Reserved] – [Intentionally Deleted] – [Reserved] – Form of Note – Taxes – Corporate Structure – Material Contracts and Material Licences – Environmental Reports – Non Arm’s Length Transactions ARTICLE 2 THE LOAN FACILITY 2.01 Loan Facility (1) Subject to the terms and conditions of the Original Loan Agreement, the Lenders established in favour of the Borrower as of the Original Closing Date a non - revolving multi - draw term loan facility (the “ Loan Facility ”). As of the Closing Date, (i) no further Advances under the Loan Facility shall be made by the Lenders or requested by the Borrower and (ii) the aggregate principal amount of the Advances outstanding under the Loan Facility is US$205,899,999.94. As of the Closing Date, the outstanding principal amount of Advances owing to each Lender is as set out in Schedule A hereto. For clarity, such principal amount of
30355430.16 - 33 - Advances in Schedule A hereto includes the principal amount of the Advances in respect of the Additional Term Loans provided for in Sec tion 2.01(2) below. (2) On the Closing Date, subject to the satisfaction of the terms and conditions in this Agreement, (i) each Additional Lender shall be deemed to have made an Advance to the Borrower (an “ Additional Term Loan ”) in an amount equal to its Additional Term Commitment and (ii) each Additional Lender shall become a Lender hereunder with respect to the Additional Term Commitment and the Additional Term Loans made pursuant thereto. Notwithstanding the foregoing, Additional Term Loans have identical terms to any of the loans as provided for in Sec tion 2.01(1) above. (3) The delivery of the Additional Term Loans (and any certificates or other evidence of holdings thereof) to be issued pursuant to this Agreement shall be made in accordance with standing procedures in place with the Agent, and a register of holders of the Additional Term Loans will be maintained by the Agent. Each Additional Lender receiving an Additional Term Loan shall be deemed to be a party to this Agreement as a Lender. In the event that an Additional Lender has not delivered its New Term Loan Lender Information to the Agent prior to the date that is five (5) Business Days prior to the expected Effective Date, such Additional Lender’s Additional Term Loan shall be held by the Agent, acting as depository agent (in such capacity, the “ Depository Agent ”), until such time as the Additional Lender provides its New Term Loan Lender Information. (4) In accordance with Subsection (3) above, until such time that an Additional Lender provides its New Term Loan Lender Information (as defined in the Plan of Arrangement) to the Agent, the Additional Term Loan attributed to such Additional Lender shall be held by the Agent, acting as Depository Agent, on behalf of such Additional Lender; provided that on the Expiration Date, all Additional Term Loans held by the Agent, acting as Depository Agent, shall be deemed to be cancelled and forfeited by the applicable Additional Lender. Upon the earlier of (i) the tendering of all New Term Loan Lender Information by the Additional Lenders, or (ii) the Expiration Date, The Depositary Agent will cease to act as a depository agent and the Depositary Agent shall have no further duties and obligations as Depositary Agent and the obligation of the Borrower to pay Monthly Retainer to the former Depository Agent shall cease. ARTICLE 3 CONDITIONS PRECEDENT 1. Conditions Precedent to Effectiveness of this Agreement The obligations of the Lenders under this Agreement are subject to and conditional upon the following conditions precedent being fulfilled to the satisfaction of the Agent and the Lenders: (1) this Agreement will have been executed and delivered by all parties thereto; (2) a confirmation of guarantee in form and substance satisfactory to the Agent will have been executed and delivered by the Guarantors;
30355430.16 - 34 - (3) the Agent will have received, unless otherwise stated herein, in form and substance satisfactory to the Agent: ( i) evidence of a successful implementation of the Recapitalization Plan in form and substance satisfactory to the Lenders, including a copy of the final order of the Court approving the Recapitalization Plan pursuant to the Proceedings ; ( ii) evidence of a successful completion of an equity offering of common shares of the Borrower for aggregate proceeds of the lesser of (i) $100,000,000 and (ii) US$73,000,000; ( iii) a flow of funds including a sources and uses of funds statement of the Borrower to complete the Recapitalization Plan; ( iv) certified copies of (a) the Senior Credit Agreement and all other agreements, instruments and documents evidencing that the Senior Debt (as defined in the Original Loan Agreement) and the Debt under the UK Convertible Bonds (as defined in the Original Loan Agreement) have been fully refinanced on terms satisfactory to the Lenders, acting reasonably and (b) the $15 Million Subordinated Note Indenture and all other agreements, instruments and documents evidencing the $15 Million Subordinated Note; and (v) subject to Sec tion 2.01(3), all “Know Your Client”, anti - money laundering, anti - terrorism or similar identification information required by the Agent shall have been provided by the Additional Lenders; (4) the Agent will have received certified copies of the Organizational Documents of each Obligor, the resolutions authorizing the execution, delivery and performance of each Obligor’s obligations under the Loan Documents and the transactions contemplated herein, and certificates as to the incumbency of the officers of each Obligor; (5) copies of all agreements which restrict or limit the powers of any Obligor or its directors or officers not otherwise delivered under Subsec tion 3.01(4) , certified by such Obligor to be true, will have been delivered to the Agent; (6) certificates of status or good standing, as applicable, of each Obligor will have been delivered to the Agent; (7) the Agent will have received certified copies of all approvals of any Governmental Authorities or other third parties (including in connection with the Senior Credit Agreement, which shall be in form and substance satisfactory to the Lenders) required for (a) the execution, delivery and performance of each Obligor’s obligations under the Loan Documents and the transactions contemplated therein as of the Closing Date (other than the approvals, clarifications or authorizations of the Governmental Authorities (including, without limitation, the Reserve Bank of India) required under the laws of India for the execution and delivery by JEBPO of the Guarantee and the Loan Documents to which it is a party, and the performance by
30355430.16 - 35 - JEBPO of its obligations thereunder), (b) the implementation of the Recapitalization Plan and (c) the issuance of the $15 Million Subordinated Note, each as of the Closing Date; (8) the Agent, the Senior Administrative Agent and the other parties thereto shall have executed and delivered the Senior Subordination Agreement, in form and substance satisfactory to the Lenders; (9) the Agent will have received a duly executed confirmation from the trustee of the $15 Million Subordinated Note in favour of the Agent that the Obligations constitute “Senior Indebtedness” under the $15 Million Subordinated Note Indenture, in form and substance satisfactory to the Lenders; (10) a currently dated certificate of the Borrower that the representations and warranties set forth in Sec tion 7.01 are true and correct (subject to any materiality thresholds contained therein) as at such time and a Compliance Certificate dated as of the Closing Date demonstrating, among other things, pro forma compliance with the financial covenants set out in Section 8.02 of this Agreement will each have been delivered to the Agent; (11) releases and discharges (or written authorizations to discharge from the applicable Encumbrance holder in form acceptable to the Agent) with respect to all Encumbrances which are not Permitted Encumbrances, if any, will have been delivered to the Agent; (12) no Event of Default or Pending Event of Default has occurred and is continuing on the Closing Date; (13) a currently dated letter of opinion of Borrower’s Counsel along with the opinions of local counsel as required for each Restricted Subsidiary, each in form and substance satisfactory to the Lenders and the Lenders’ Counsel will have been delivered to the Agent and the Lenders as addressees; (14) no Material Adverse Effect shall have occurred since March 31, 2020 ; (15) the Agent and the Lenders will have received, or arrangements satisfactory to the Agent and the Lenders shall have been made to ensure that they will receive, all fees and expenses due under the Loan Documents or as otherwise agreed to with the Borrower pursuant to any fee letters or other agreements between such parties; (16) the Borrower will have paid, or arrangements satisfactory to the Agent and the Lenders shall have been made to ensure that the Borrower will pay, all reasonable out - of - pocket expenses (including all reasonable legal fees and consultant’s fees) incurred by or on behalf of the Agent in connection with this Agreement and the transactions and other documents contemplated by this Agreement; (17) all “Know Your Client”, anti - money laundering, anti - terrorism or similar identification information required by the Agent or any of the Lenders shall have been provided by the Borrower (and the Restricted Subsidiaries, if necessary);
30355430.16 ( 18) - 36 - no “Pending Event of Default” or “Event of Default” under the Senior Credit Agreement has occurred and is continuing (as defined therein); (19) the Agent will have received such additional evidence, documents or undertakings as the Lenders will reasonably request to establish the consummation of the transactions contemplated hereby and be satisfied, acting reasonably, as to the taking of all proceedings in connection herewith in compliance with the conditions set forth in this Agreement, provided that all documents delivered pursuant to this Sec tion 3.01 will be in full force and effect, and in form and substance satisfactory to the Agent and the Lenders, acting reasonably. 2. Waiver The conditions set forth in Sec tion 3.01 are inserted for the sole benefit of the Agent and Lenders and may be waived by the Agent and Lenders in accordance with the terms of Section 11.09, in whole or in part (with or without terms or conditions). 3. Amendment and Restatement On and as of the Closing Date, this Agreement shall amend and restate the Original Loan Agreement in its entirety and the Original Loan Agreement as so amended and restated is hereby ratified and confirmed by the parties hereto. This Agreement is not intended by the parties to, and shall not constitute, a payment, discharge, satisfaction or novation of any obligation of the Borrower to any of the Agent or Lenders, including the whole or any item or part of the Obligations (as defined in the Original Loan Agreement) remaining outstanding and owing to any of the Agent or Lenders until paid in full in accordance with the provisions of this Agreement. The Borrower hereby confirms to and agrees with the Agent that its Obligations (as defined in the Original Loan Agreement) shall continue in full force and effect in accordance with their respective terms (amended and restated, as applicable, by this Agreement). With effect from and as of the Closing Date, each Advance outstanding under the Loan Facility (as each such term is defined in the Original Loan Agreement) immediately before the Closing Date shall continue as a term loan outstanding under the Loan Facility, respectively, under this Agreement. At or before the Closing Date, the Agent (in reliance on the Court order and in consultation with the Lenders) will determine and notify the Borrower and the Lenders of the amounts of all interest, fees and other amounts accrued and payable under the Original Loan Agreement to the Agent and the Lenders (each as defined in the Original Loan Agreement) as at the Closing Date and specify the date each such amount should be paid. The Borrower shall pay such amounts to the Agent on the date so specified. ARTICLE 4 PAYMENTS OF INTEREST AND FEES 4.01 Interest on Advances ( 1 ) From and after the Closing Date until December 31 , 2021 and any time thereafter when Section 4 . 01 ( 2 ) and 4 . 01 ( 3 ) do not apply, the Advances shall accrue interest in US Dollars at a rate per annum equal to the Interest Rate, which interest will be calculated on the principal
30355430.16 - 37 - amount of all Advances outstanding during such period (including for certainty all PIK Interest and PIK Fees added to the principal of the Advances) on the basis of a year of 360 days and such interest shall be capitalized in arrears on each Interest Payment Date and added to the principal amount of the Advances for the period from and including the preceding Interest Payment Date to and including the day preceding such Interest Payment Date until the date that all Obligations are repaid in full to the Lenders. (2) If a Compliance Certificate delivered to the Agent on or after December 31, 2021 confirms that the Leverage Ratio Test has been met, and if the Liquidity Test is met on the applicable Interest Payment Date, then the Borrower shall be required to pay interest on the Advances in US Dollars at a rate per annum equal to the Interest Rate, calculated as set out above and payable in arrears on the next following Interest Payment Date for the period from and including the Interest Payment Date immediately preceding the delivery of such Compliance Certificate to and including the day preceding the Interest Payment Date immediately following the delivery of such Compliance Certificate as follows: (a) With respect to the Interest Payment Date that is March 31, 2022, 50% of the interest accrued and owing on such date shall be paid in cash and 50% shall be capitalized and added to the principal amount of the Advances; (b) With respect to the Interest Payment Date that is September 30, 2022, 50% of the interest accrued and owing on such date shall be paid in cash and 50% shall be capitalized and added to the principal amount of the Advances; (c) With respect to the Interest Payment Date that is March 31, 2023, 100% of the interest accrued and owing on such date shall be paid in cash; and (d) With respect to the Interest Payment Date that is September 30, 2023 and thereafter on each Interest Payment Date, 100% of the interest accrued and owing on such date shall be paid in cash. (3) Upon the repayment in full of the Senior Credit Agreement (or the replacement or refinancing thereof), the Leverage Ratio Test shall be deemed to have been met and be continuing and the Liquidity Test shall be deemed to have been met and all interest payable under this Section 4.01 shall be paid in cash in arrears on each following Interest Payment Date for the period from and including the preceding Interest Payment Date to and including the day preceding the Interest Payment Date until the date that all Obligations are repaid in full to the Lenders and will be calculated on the principal amount of all Advances outstanding during such period (including for certainty all PIK Interest and PIK Fees added to the principal of the Advances) on the basis of a year of 360 days. 4.02 No Set - Off, Deduction etc. All payments (whether interest or otherwise) to be made by the Borrower or any other party to each Lender pursuant to this Agreement are to be made in freely transferable, immediately available funds and without set - off or deduction of any kind whatsoever (whether for deemed re - investment or otherwise) except to the extent required by Applicable Law, and if any such set - off or deduction is so required and is made, the Borrower or other party will, as a
30355430.16 - 38 - separate and independent obligation to each Lender, be obligated to immediately pay to each Lender all such additional amounts as may be required to fully indemnify and save harmless such Lender from such set - off or deduction and will result in the effective receipt by such Lender of all the amounts otherwise payable to it in accordance with the terms of this Agreement. For greater certainty, the Borrower will not be required to make any payment under this Sec tion 4.02 in duplication of any payment required to be made under Section 12.01 or to the extent expressly excluded in Section 12.01 . 3. Fees (1) The Borrower will pay to the Agent for the account of the Original Lenders, as applicable, the Yield Enhancement Payments in the amounts, and on the terms and conditions, set out in the Payment Letter, as amended by this Sec tion 4.03, or as otherwise agreed to in writing from time to time by the Original Lenders and the Borrower. Three weeks prior to any applicable Yield Enhancement Payment or Annual Yield Enhancement Payment, the Original Lenders will confirm to the Agent the amount of the applicable Yield Enhancement Payment or Annual Yield Enhancement Payment and provide the corresponding calculations in support of this amount. (2) Notwithstanding any other provisions of the Payment Letter or any other Loan Document, from and after the Closing Date until December 31, 2021 and any time thereafter when Section 4.03(3) and 4.03(4) do not apply, all Yield Enhancement Payments shall be capitalized in arrears on each Payment Date for the period from and including the preceding Payment Date to and including the day preceding such Payment Date and paid by adding such Yield Enhancement Payments to the outstanding principal amount of the Advances owing to the Original Lenders on a rateable basis in accordance with the terms of the Payment Letter. (3) If a Compliance Certificate delivered to the Agent on or after December 31, 2021 confirms that a Leverage Ratio Test has been met, and the Liquidity Test is met on the applicable Payment Date, the Borrower shall be required to pay the Yield Enhancement Payments to the Agent for the account of the Original Lenders only, on the next following Payment Date for the period from and including the Payment Date immediately preceding the delivery of such Compliance Certificate to and including the day preceding the Payment Date immediately following the delivery of such Compliance Certificate as follows: (a) With respect to the Payment Date that is September 30, 2022, 50% of the Yield Enhancement Payments owing on such date shall be paid in cash and 50% shall be capitalized and added to the outstanding principal amount of the Advances; and (b) With respect to the Payment Date that is September 30, 2023 and thereafter on each following Payment Date, 100% of the Yield Enhancement Payments owing on such date shall be paid in cash. (4) Upon the repayment in full of the Senior Credit Agreement (or the replacement or refinancing thereof), the Leverage Ratio Test shall be deemed to have been met and be continuing and the Liquidity Test shall be deemed to have been met and all Yield Enhancement
30355430.16 - 39 - Payments payable under the Payment Letter shall thereafter be paid in cash in accordance with the terms of the Payment Letter. (5) For greater certainty, the Payment Letter and any other written arrangements between the Agent and the Borrower respecting fees will constitute Loan Documents, will survive the execution of this Agreement and will in all respects remain operative and binding on the Borrower. All references in the Payment Letter to the “Closing Date” shall be deemed to be a reference to the Original Closing Date. All references in the Payment Letter to the “Payment Date” shall be deemed to be a reference to September 30 of each calendar year while Yield Enhancement Payments remain payable thereunder, provided that any cash payment of a Yield Enhancement Payment may be made within two (2) Business Days of such Payment Date until such time as the Senior Credit Agreement is repaid in full (or the replacement or refinancing thereof). All references in the Payment Letter to “Lenders” or “Lender” shall be deemed to be a reference to the Original Lenders or an Original Lender, as the case may be. (6) The Borrower agrees that the Yield Enhancement Payments payable in accordance with Section 4.03(2) on September 30, 2020 shall be grossed up to include the additional days in such period that will have elapse due to the extension of the Payment Date from September 12, 2020 to September 30, 2020. 4. [Reserved] 5. Account of Record The Agent will open and maintain books of account evidencing all Advances and all other amounts owing by the Borrower to the Lenders hereunder. The Agent will enter in the foregoing accounts details of all amounts from time to time owing, paid or repaid by the Borrower hereunder. The information entered in the foregoing accounts will constitute prima facie evidence of the obligations of the Borrower to the Lenders hereunder with respect to all Advances and all other amounts owing by the Borrower to the Lenders hereunder. After a request by the Borrower, the Agent will promptly advise the Borrower of such entries made in the Agent’s books of account. 6. Notes The Borrower agrees that, upon request to the Agent by any Lender, in order to evidence such Lender’s pro rata portion of each Advance, the Borrower will execute and deliver to such lender a promissory note substantially in the form of Schedule 4.06 (each as amended, supplemented, replaced or otherwise modified from time to time, a “ Note ”) in each case with appropriate insertions therein as to payee, date and principal amount, payable to such Lender. Each Note shall be dated the date of the initial Advance and may be updated from time to time to reflect any PIK Interest applicable to such Advance. 7. Maximum Rate of Interest Notwithstanding anything herein or in any of the other Loan Documents to the contrary, in the event that any provision of this Agreement or any other Loan Documents would oblige the Borrower to make any payment of interest or other amount payable to the Agent or the
30355430.16 - 40 - Lenders in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by the Agent or the Lenders of interest at a criminal or prohibited rate (as such terms are construed under the Criminal Code (Canada) or any other Applicable Law), then notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with the same effect as if adjusted at the Closing Date to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law or so result in a receipt by the Agent or the Lenders of interest at a criminal or prohibited rate, such adjustment to be effected to the extent necessary in each case, as follows: (a) by reducing any fees and other amounts which would constitute interest for the purposes of Section 347 of the Criminal Code (Canada) or any other Applicable Law ; and (b) by reducing the amount or rate of interest exigible under Article 4 of this Agreement ; and any amount or rate of interest referred to in this Sec tion 4.07 shall be determined in accordance with generally accepted actuarial practices and principles over the maximum term of this Agreement (or over such shorter term as may be required by Section 347 of the Criminal Code (Canada) or any other Applicable Law) and, in the event of a dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Agent shall be conclusive for the purposes of such determination, absent manifest error. ARTICLE 5 R EP AYM E NT 1. Mandatory Repayment of Principal at Maturity or on a Change of Control Subject to the terms hereof, the Borrower will repay all Obligations in connection with the Loan Facility, including, for certainty, all accrued interest, fees (including Yield Enhancement Payments), and other amounts then unpaid by it (including, in each case below, the Prepayment Fee) in full on the earliest to occur of (a) a Change of Control, (b) the Maturity Date or (c) the date of the acceleration of the Obligations pursuant to Secti on 9.02 of this Agreement; and the Loan Facility will be automatically terminated on the Maturity Date. 2. Voluntary Repayments (1) Subject to the terms hereof, the Borrower may prepay the Advances at any time in a minimum amount of [Dollar Amount Redacted] , subject to the concurrent payment to the Lenders of a prepayment fee of [Percentage Redacted] of such prepayment amount (the “ Prepayment Fee ”), together with all accrued and unpaid interest thereon, provided that the Agent receives a Repayment Notice at least thirty (30) days prior to such prepayment and if such prepayment would result in the aggregate principal amount of the Advances outstanding being less than [Dollar Amount Redacted] , such prepayment shall be required to be increased to the amount that is the then outstanding Advances. Any amounts prepaid or repaid shall not be reborrowed. All amounts prepaid or repaid shall be applied (a) firstly, in reduction of accrued and unpaid interest and all other amounts then
30355430.16 - 41 - outstanding (other than the principal amount of the Obligations), and (b) thereafter, in reduction of the principal amount of the Obligations being prepaid or repaid. ARTICLE 6 PLACE AND APPLICATION OF PAYMENTS 6.01 Place of Payment of Principal, Interest and Fees All payments by the Borrower under any Loan Document, unless otherwise expressly provided in such Loan Document, will be made to the Agent in US Dollars at the Agent’s Payment Location, or at such other location as may be agreed upon by the Agent and the Borrower , for the account of the Lenders entitled to such payment, not later than 10 : 00 (Toronto time) for value on the date when due, and will be made in immediately available funds without set - off or counterclaim . ARTICLE 7 REPRESENTATIONS AND WARRANTIES 1. Representations and Warranties The Borrower represents and warrants to the Agent and to each of the Lenders and acknowledges and confirms that the Agent and each of the Lenders is relying upon such representations and warranties: (1) Existence and Qualification. Each Obligor (i) has been duly incorporated, formed, amalgamated, merged or continued, as the case may be, and is validly subsisting as a corporation, company, limited liability company, partnership or trust, under the laws of its jurisdiction of formation, amalgamation, merger or continuance, as the case may; and (ii) is duly qualified, in good standing and has all required Material Licences to carry on its business in each jurisdiction in which the nature of its business requires qualification to the extent necessary to carry on its business. (2) Power and Authority. Each Obligor has the corporate, trust, company, limited liability company or partnership power and authority, as the case may be, (i) to enter into, and to exercise its rights and perform its obligations under, the Loan Documents to which it is a party and all other instruments and agreements delivered by it pursuant to any of the Loan Documents, and (ii) to own its Property and carry on its business as currently conducted and as currently proposed to be conducted by it. (3) Execution, Delivery, Performance and Enforceability of Documents. The execution, delivery and performance of each of the Loan Documents to which each Obligor is a party, and every other instrument or agreement delivered by an Obligor pursuant to any Loan Document has been duly authorized by all corporate, trust, company or partnership actions required, and each of such documents has been duly executed and delivered. Each Loan Document to which any Obligor is a party constitutes the legal, valid and binding obligations of such Obligor, enforceable against such Obligor in accordance with its terms (except, in any case, as such enforceability may be limited by applied bankruptcy, insolvency, reorganization or
30355430.16 - 42 - other laws of general application limiting creditors’ rights generally and by principles of equity). (4) Loan Documents Comply with Applicable Laws, Organizational Documents and Contractual Obligations. The execution or delivery of, the consummation of the transactions contemplated in, or compliance with the terms, conditions and provisions of any of, the Loan Documents by any Obligor, does not conflict with or will not conflict with, or does not result or will not result in any breach of, or will not constitute a default under or contravention of, (a) any Obligors’ Organizational Document, (b) any Material Contract or Material Licence, or (c) any Requirement of Law other than immaterial breaches. (5) Consent Respecting Loan Documents. Each Obligor has, obtained, made or taken all consents, approvals, authorizations, declarations, registrations, filings, notices and other actions whatsoever required with Governmental Authorities, third parties or otherwise to enable it to execute and deliver each of the Loan Documents to which it is a party and to consummate the transactions contemplated in the Loan Documents, other than the approvals, clarifications or authorizations of the Governmental Authorities (including, without limitation, the Reserve Bank of India) required under the laws of India for the execution and delivery by JEBPO of the Guarantee and the Loan Documents to which it is a party, and the performance by JEBPO of its obligations thereunder. (6) Taxes. Except as set forth on Schedule 7.01(6), each Obligor has paid or made adequate provision for the payment of all Taxes levied on its Property or income which are due and payable, or has accrued such amounts in its financial statements for the payment of such Taxes, except for charges, fees or dues which are not material in amount, which are not delinquent or if delinquent are being contested, and in respect of which non - payment would not individually or in the aggregate have, or be reasonably likely to cause, a Material Adverse Effect, and there is at the date given no material action, suit, proceeding, investigation, audit or claim now pending, or to its knowledge, threatened by any Governmental Authority regarding any Taxes, nor has it or any other Obligor agreed to waive or extend any statute of limitations with respect to the payment or collection of Taxes. (7) Judgments, Etc. At the date given, no Obligor is subject to any judgment, order, writ, injunction, decree or award, or to any restriction, rule or regulation (other than customary or ordinary course restrictions, rules and regulations consistent or similar with those imposed on other Persons engaged in similar businesses) which has not been lifted or stayed or of which enforcement has not been suspended for a period of 15 days or more in an amount (individually or in the aggregate for all Obligors) in excess of the lesser of (a) [Dollar Amount Redacted] and (b) [Percentage Redacted] of EBITDA (calculated on a last twelve months basis). (8) Absence of Litigation. There are no actions, suits or proceedings pending or, to the best of its knowledge and belief, after due inquiry and all reasonable investigation, threatened against or involving any Obligor which would reasonably be expected to have a Material Adverse Effect, other than in respect of which the Agent has been provided notice of pursuant to Sec tion 8.01(11). (9) [Reserved]
- 43 - ( 10) [ Reserved ] ( 11) 30355430.16 [Reserved] (12) Insurance. Each Obligor maintains insurance which is in full force and effect that complies with all material respects of the requirements of this Agreement. (13) [Reserved] (14) Compliance with Laws. No Obligor is in material violation of any material Applicable Law or material Applicable Order, subject to the provisions of Sec tion 7.01(28), in the case of Requirements of Environmental Law. (15) No Event of Default or Pending Event of Default. Neither any Event of Default nor any Pending Event of Default has occurred and is continuing. (16) Corporate Structure. The corporate structure of the Borrower and its Subsidiaries is as set out in Schedule 7.01(16) (as updated pursuant to Section 8.05 from time to time), which Schedule contains: (a) Complete Names. A complete and accurate list of the full and correct name of each Obligor referenced in this Sec tion 7.01(16) (including any French and English forms of name) and the jurisdiction of incorporation or formation of each such Obligor. (b) Designation : A designation of each Subsidiary of the Borrower as either a Restricted Subsidiary or an Unrestricted Subsidiary. ( 17) [Reserved] (18) Obligors. Each Obligor either carries on their Business in Canada, the United States, or India or carries on no business other than being a holding entity. (19) Relevant Jurisdictions. Schedule 7.01(19) (as amended from time to time) identifies, in respect of each Obligor, the Relevant Jurisdictions as at the date given including each Obligor’s jurisdiction of formation and organizational registration number (if any), its full address (including postal code or zip code), chief executive office, registered office and all places of business and, if the same is different, the address at which the books and records of such Obligor are located. (20) [Reserved] (21) [Reserved]
30355430.16 - 44 - ( 22) Material Contracts and Material Licences . (23) To the Borrower’s knowledge, no event has occurred and is continuing which would constitute a breach of or a default under any Material Contract or Material Licence which would reasonably be expected to have a Material Adverse Effect on the Obligors and each Material Contract is binding upon the Obligor party thereto. (24) Financial Year End. Its financial year end is March 31, or following written notice delivered in accordance with Section 8.04(12), December 31. (25) Financial Information. All of the financial statements which have been furnished to the Agent and the Lenders, or any of them, in connection with this Agreement are complete in all material respects and such financial statements fairly present the results of operations and financial position of the of the Borrower and its Restricted Subsidiaries as of the dates referred to therein and have been prepared on a Modified Consolidated Basis, except that, in the case of quarterly financial statements, notes to the statements and audit adjustments required by GAAP are not included. All other financial information (including, without limitation the Operating Budget and the Borrower’s projected summary of anticipated Available Supply and Supply Commitments) provided to the Agent and the Lenders as of the date prepared (a) were based on reasonable assumptions and expectations and represent reasonable good faith estimates and (b) were believed to be achievable. (26) Liabilities. No Obligor has any liabilities, whether accrued, absolute, contingent or otherwise, of any kind or nature whatsoever, except (i) as disclosed in the financial statements most recently delivered under Section 8.03 ; (ii) as incurred after the date of such financial statements and are permitted to be incurred hereunder; (iii) as incurred in the ordinary course of business of an Obligor; provided that, in respect this clause (iii), such liabilities: (x) are not material to the Business, (y) are not required in accordance with GAAP to be disclosed in such Obligor’s financial statements referred to in clause (i) above and (z) are not incurred in violation of this Agreement, and (iv) for liabilities consented to by the Agent on behalf of the Majority Lenders. (27) No Material Adverse Effect. Since the date of the Borrower’s most recent financial statements provided to the Agent, there has been no condition (financial or otherwise), event or change in its business, liabilities, operations, results of operations, assets or prospects which would reasonably be expected to have a Material Adverse Effect nor, to the Borrower’s knowledge, has there been any condition, event or change to the credit rating of Shell Energy or any material LDC which would reasonably be expected to have a Material Adverse Effect. (28) Environmental. (a) No Obligor is subject to any civil or criminal proceeding relating to Requirements of Environmental Laws and is not aware of any investigation or threatened proceeding or investigation, (b) each Obligor has all material permits, licenses, registrations and other authorizations required by the Requirements of Environmental Laws for the operation of its business and the properties which it owns, leases or otherwise occupies, (c) each Obligor currently operates its business and its properties (whether owned, leased or otherwise occupied) in compliance in all material respects with all applicable material Requirements of Environmental Laws, (d) no Hazardous Substances are stored or disposed of
30355430.16 - 45 - by any Obligor or otherwise used by an Obligor in violation of any applicable Requirements of Environmental Laws (including, without limitation, there has been no Release of Hazardous Substances by any Obligor at, on or under any property now or previously owned or leased by the Borrower or any of their Subsidiaries), (e) except as disclosed in the environmental reports identified on Schedule 7.01(28) , to the knowledge of the Borrower (i) all underground storage tanks now or previously located on any real property owned or leased by it have been operated, maintained and decommissioned or closed, as applicable, in compliance with applicable Requirements of Environmental Law; and (ii) no real property or groundwater in, on or under any property now or previously owned or leased by any Obligor is or has been during such Obligor’s ownership or occupation of such property contaminated by any Hazardous Substance except for any contamination that would not reasonably be expected to give rise to material liability under Requirements of Environmental Laws nor, to the best of its knowledge, is any such property named in any list of hazardous waste or contaminated sites maintained under the Requirements of Environmental Law. (29) CERCLA. No portion of any Obligor’s Property has been listed, designated or identified in the National Priorities List or the CERCLA Information System both as published by the United States Environmental Protection Agency, or any similar list of sites published by any federal, state or local authority proposed for requiring clean up or remedial or corrective action under any Requirements of Environmental Laws. (30) Canadian Welfare and Pension Plans. The Borrower has adopted all Canadian Welfare Plans and all Canadian Pension Plans in accordance with Applicable Laws and each such plan has been maintained and is in compliance in all material respects with its terms and such laws including, without limitation, all requirements relating to employee participation, funding, investment of funds, benefits and transactions with the Obligors and persons related to them. As of the Closing Date and at no time preceding the Closing Date has any Obligor maintained, sponsored, administered, contributed to, or participated in a Specified Canadian Pension Plan. With respect to Canadian Pension Plans: (a) no steps have been taken to terminate any Canadian Pension Plan (wholly or in part) which could result in any Obligor being required to make an additional contribution in excess [Dollar Amount Redacted] to the Canadian Pension Plan; (b) no contribution failure in excess of [Dollar Amount Redacted] has occurred with respect to any Canadian Pension Plan sufficient to give rise to a lien or charge under any applicable pension benefits laws of any other jurisdiction; and (c) no condition exists and no event or transaction has occurred with respect to any Canadian Pension Plan which is reasonably likely to result in any Obligor incurring any liability, fine or penalty in excess of [Dollar Amount Redacted] . No Obligor has a contingent liability in excess of [Dollar Amount Redacted] with respect to any post - retirement benefit under a Canadian Welfare Plan. With respect of each Canadian Pension Plan: (a) all contributions (including employee contributions made by authorized payroll deductions or other withholdings) required to be made to the appropriate funding agency in material compliance with all Applicable Laws and the terms of each Canadian Pension Plan have been made in accordance with all Applicable Laws and the terms of each Canadian Pension Plan; and (b) no event has occurred and no conditions exist with respect to any Canadian Pension Plan that has resulted or could reasonably be expected to result in any Canadian Pension Plan being the subject of a requirement to be wound up (wholly or in part) by any applicable regulatory authority, having its registration revoked or refused by any
30355430.16 - 46 - applicable regulatory authority or being required to pay any taxes or penalties under any applicable pension benefits or tax laws. (31) ERISA Plans. (a) Each ERISA Plan of any Obligor carrying on business in the United States has been maintained and is in compliance in all material respects with Applicable Laws including, without limitation, all requirements relating to employee participation, investment of funds, benefits and transactions with the Obligors and persons related to them, (b) with respect to such ERISA Plans: (i) no condition exists and no event or transaction has occurred with respect to any such ERISA Plan that is reasonably likely to result in any Obligor, to the best of its knowledge, incurring any liability, fine or penalty in excess of the US$ Equivalent Amount of [Dollar Amount Redacted] ; and (ii) no Obligor carrying on business in the United States has a contingent liability with respect to any post - retirement benefit under a US Welfare Plan in excess of the US$ Equivalent Amount of [Dollar Amount Redacted] , (c) all contributions (including employee contributions made by authorized payroll deductions or other withholdings) required to be made have been made in accordance with all Applicable Laws and the terms of each ERISA Plan, (d) each of the ERISA Plans that is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has received a favourable determination letter from the IRS, (ii) is or will be the subject of an application for a favourable determination letter, and no circumstances exist that has resulted or could reasonably be expected to result in the revocation or denial of any such determination letter, or (iii) is entitled to rely on an appropriately updated prototype plan document that has received a national office determination letter and has not applied for a favourable determination letter of its own and (e) no Obligor carrying on business in the United States has any US Pension Plans and no multiemployer plans as defined in Section 4001(a)(3) of ERISA are maintained by any Obligor or to their knowledge have been maintained by any member of any Obligor’s Controlled Group. (32) Not an Investment Company. No Obligor is an “investment company” or a company “controlled” by an “investment company” within the meaning of the United States Investment Company Act of 1940 or a “holding company”, or a “subsidiary company” of a “holding company”, or an “affiliate” of a holding company, or of a “subsidiary company” of a “holding company”, within the meaning of the United States Public Utility Holding Company Act of 2005. (33) No Margin Stock. No Obligor is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock. None of the proceeds of any Advance will be used to purchase or carry, or to reduce or retire or refinance any credit incurred to purchase or carry, any margin stock (within the meaning of Regulations U and X of the Board of Governors of the Federal Reserve System of the United States) or to extend credit to others for the purpose of purchasing or carrying any margin stock. (34) Full Disclosure. All information provided or to be provided by or on behalf of any Obligor to the Agent and the Lenders in connection with the Loan Facility (including with respect to the creditworthiness of Shell Energy and the LDCs) was or will be at the time prepared, to its knowledge, true and correct in all material respects and none of the documentation furnished to the Agent and the Lenders by or on behalf of any Obligor, to its knowledge, omitted or will omit as of such time, a material fact necessary to make the statements contained therein not misleading in any material way, and all expressions of
30355430.16 - 47 - expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful inquiry by it at the time made (and, to its knowledge any other Person who furnished such material on behalf of them). (35) Insolvency. From and after the Closing Date, no Obligor, nor any of its predecessors where applicable, (i) has committed any act of bankruptcy; (ii) is insolvent, or has proposed, or given notice of its intention to propose, a compromise or arrangement pursuant to any bankruptcy or insolvency law to its creditors generally; (iii) has any petition for a receiving order in bankruptcy filed against it (unless it has been discharged or dismissed or it is being contested actively and diligently in good faith by appropriate and timely proceedings and is dismissed, vacated or permanently stayed within 15 days of knowledge by such Obligor of its institution), made a voluntary assignment in bankruptcy, taken any proceeding with respect to any compromise or arrangement pursuant to any bankruptcy or insolvency law, taken any proceeding to have itself declared bankrupt or wound - up, taken any proceeding to have a receiver appointed of any part of its assets, or has had any Encumbrancer take possession of any material part of its Property; or (iv) has had an execution or distress claiming payment in excess of [Dollar Amount Redacted] become enforceable or become levied on any of its Property which has not been satisfied. (36) Non - Arm’s Length Transactions. All agreements, arrangements or transactions between any Obligor, on the one hand, and any Associate of, Affiliate of or other Person not dealing at Arm’s Length with such Obligor, on the other hand (other than another Obligor), in existence at the date hereof are set forth on Schedule 7.01(36) or are otherwise permitted pursuant to Section 8.04(20). (37) Solvency. Immediately after the making of each Advance to the Borrower, and after giving effect to the application of the proceeds of such Advances, (i) the fair value of the assets of each Obligor, at a fair valuation, will exceed the debts and liabilities, subordinated, contingent or otherwise, of each Obligor; (ii) the present fair saleable value of the Property of each Obligor will be greater than the amount that will be required to pay the probable liability of each Obligor on its debts and other liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; (iii) each Obligor will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) each Obligor, if required pursuant to Applicable Law, will not have unreasonably small capital with which to conduct the businesses in which it is engaged as such businesses are now conducted and are proposed to be conducted after the date hereof. (38) Debt. No Obligor has any Debt that is not Permitted Debt. (39) [Reserved] (40) Schedules. The information contained in each Schedule attached hereto is as at the date hereof, or at the time a replacement thereof is provided to the Agent or the Lenders pursuant hereto, will be true, correct and complete in all material respects. (41) [Reserved] (42) [Reserved]
30355430.16 - 48 - (43) Sanctions . It is not in violation of, in any material respect, any of the country or list based economic and trade sanctions administered and enforced by OFAC, or any Sanctions Laws. As of the date of this Agreement, no Obligor (i) is a Sanctioned Person or (ii) is a Person designated under Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 or other Sanctions Laws. If a senior officer of any Obligor receives any written notice that any Obligor, any Affiliate or any Subsidiary of any Obligor is named on the then current OFAC SDN List or is otherwise a Sanctioned Person (such occurrence, a “ Sanctions Event ”), such Obligor shall promptly (i) give written notice to the Agent and the Lenders of such Sanctions Event, and (ii) comply in all material respects with all applicable laws with respect to such Sanctions Event (regardless of whether the Sanctioned Person is located within the jurisdiction of the United States of America or Canada), and each Obligor hereby authorizes and consents to the Agent and the Lenders taking any and all steps the Agent, acting on written instructions from the Lenders, or the Lenders, in their sole but reasonable discretion, deem necessary, to avoid violation of, in any material respect, all applicable laws with respect to any such Sanctions Event. (44) Anti - Corruption Laws . No part of the proceeds of the Advances shall be used, directly or, to the Borrower’s knowledge, indirectly : (a) to offer or give anything of value to any official or employee of any foreign government department or agency or instrumentality or government - owned entity, to any foreign political party or party official or political candidate, or to anyone else acting in an official capacity, in order to obtain, retain or direct business, or obtain any improper advantage, in material violation of any Anti - Corruption Law . (45) Anti - Terrorism Laws . To the extent applicable, each Obligor is in compliance, in all material respects, with (i) the U.S. Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 C.F.R. Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, (ii) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (United States), as amended (the “ Patriot Act ”); and (iii) Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) (collectively with clauses (i) and (ii) above, the “ Anti - Terrorism Laws ”). The use of the proceeds of the Advances will not violate, in any material respect, the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R. Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, in any material respect. (46) Reporting Issuer. The Borrower is a reporting issuer, as defined under applicable Canadian securities laws, in all of the provinces and territories of Canada and is not in default in any material respect under any requirement of applicable Canadian or U.S. securities laws. The Borrower is in compliance in all material respects with the rules and regulations of the Toronto Stock Exchange and the New York Stock Exchange. 7.02 Survival and Repetition of Representations and Warranties The representations and warranties set out in Sec tion 7 . 01 will be repeated (i) in each Compliance Certificate delivered pursuant to Xxxxxxx 0 . 00 ( 0 )(x), (xx) as of the date of each request for a new Advance by the Borrower, and (iii) in accordance with Section 8 . 05 in
30355430.16 - 49 - connection with the designation of Restricted Subsidiaries and Unrestricted Subsidiaries; except in any such case to the extent that on or prior to such date the Borrower advises the Agent in writing of the variation in any such representation or warranty as of such date; and provided further that such disclosure will not excuse any breach of covenant or Event of Default arising hereunder other than as a result of the incorrectness of such representation and warranty. ARTICLE 8 C O V E NAN TS 1. Positive Covenants So long as this Agreement is in force and except as otherwise permitted by the prior written consent of the Majority Lenders, the Borrower will and will cause each other Obligor to: (1) Timely Payment. Make due and timely payment of the Obligations required to be paid by it hereunder and under each other Loan Document. (2) Conduct of Business, Maintenance of Existence, Compliance with Laws. (a) engage in business of the same general type as now conducted by it; (b) carry on and conduct its business and operations in a proper, efficient and businesslike manner, in accordance with good business practice; (c) except as otherwise permitted by Sec tion 8.04(2), preserve, renew and keep in full force and effect its existence; (d) take all action necessary to maintain all material registrations, material Intellectual Property, Material Contracts, Material Licenses, material rights, material privileges and franchises necessary or desirable in the normal conduct of its business; and (e) comply in all material respects with all Requirements of Law, including without limitation, Requirements of Environmental Law. (3) Further Assurances. Provide the Agent and the Lenders with such other documents, opinions, consents, acknowledgements and agreements as are reasonably necessary to implement this Agreement, the other Loan Documents and are required by the Agent from time to time. (4) [Reserved] (5) Access to Information. Promptly provide the Agent with all information reasonably requested by the Agent for and on behalf of the Lenders from time to time concerning its financial condition, and during normal business hours and from time to time upon reasonable notice, permit representatives of the Agent, and the Lenders if accompanied by the Agent, to examine and take extracts from its financial books, accounts and records including but not limited to accounts and records stored in computer data banks and computer software systems, and to discuss its financial affairs and its business with its senior officers and (in the presence of such of its representatives as it may designate) its auditors. If an Event of Default or a Pending Event of Default has occurred and is continuing, the Borrower will pay all reasonable expenses incurred by such representatives in order to visit the Borrower’s premises or attend at its and each other Obligor’s principal office, as applicable, for such purposes.
30355430.16 - 50 - (6) Payment Obligations. Pay or discharge, or cause to be paid or discharged (i) before the same become delinquent (A) all Taxes imposed upon it or upon its income or profits or in respect of its business or Property and file all tax returns in respect thereof and (B) all required payments under any of its Debt and (ii) in a timely manner in accordance with prudent business practices (A) all lawful claims for labour, materials and supplies, and (B) all other material obligations the failure of which would reasonably be expected to result in an Event of Default; provided, however that it will not be required to pay or discharge or to cause to be paid or discharged any such amount referred to in clauses (i) and (ii) so long as the validity or amount thereof is being contested in good faith by appropriate proceedings and an adequate reserve in accordance with GAAP and satisfactory to the Agent, acting reasonably, has been established in its books and records. (7) [Reserved]. (8) Insurance. Maintain or cause to be maintained with reputable insurers, coverage against risk of loss or damage to its Property (including public liability and damage to property of third parties), business interruption insurance, fire and extended peril insurance and boiler and machinery insurance of such types as is customary for and would be maintained by a corporation with an established reputation engaged in the same or similar business in similar locations. (9) Notice of Event of Default or Pending Event of Default. Promptly notify the Agent of any Event of Default or Pending Event of Default that would apply to it or to any Obligor of which it becomes aware. (10) Notice of Material Adverse Effect. Promptly notify the Agent of any condition (financial or otherwise), event or change in its or any other Obligor’s business, liabilities, operations, results of operations, assets or prospects which would reasonably be expected to have a Material Adverse Effect. (11) Notice of Litigation. Diligently defend itself and its properties from and against any lawsuits or claims in accordance with prudent business practice and promptly notify the Agent on becoming aware of the occurrence of any litigation, dispute, arbitration, proceeding or other circumstance (including, without limitation, any such dispute with Shell Energy or any LDC) the result of which if determined adversely would be a judgment or award against it (i) in excess of [Dollar Amount Redacted] or (ii) would reasonably be expected to result in a Material Adverse Effect to it, and (A) from time to time provide the Agent with all reasonable information requested by the Agent concerning the status of any such proceeding and (B) provide the Agent semi - annually in March and September of each year, a written update prepared by internal counsel to the Borrower in respect of each such proceeding in excess of [Dollar Amount Redacted] . (12) Other Notices. Promptly, upon having knowledge, give notice to the Agent on behalf of the Lenders of: (a) any violation of any Applicable Law, Material Contract or Material Licence which does or could reasonably be expected to have a Material Adverse Effect; or
30355430.16 - 51 - (b) any termination of or default under a Material Contract or Material Licence; (c) any change in the regulatory framework relating to the energy market which is materially adverse to the Business taken as a whole, or could reasonably be expected to be materially adverse to the Business taken as a whole, with the passage of time; (d) any entering into of a Material Contract or Material Licence, together with a true copy thereof; and (e) any “Pending Event of Default” or “Event of Default” under the Senior Agreement (each as defined in the Senior Credit Agreement). ( 13) [Reserved] ( 14) [Reserved] (15) Environmental Compliance. Operate its business in compliance in all material respects with all applicable material Requirements of Environmental Laws and operate all Property owned, leased or otherwise occupied by it with a view to ensuring that no material obligation, including a clean - up or remedial obligation, will arise in respect of an Obligor under any Requirements of Environmental Law; provided however, that if any such obligation arises, the applicable Obligor will promptly satisfy or contest such obligation at its own cost and expense. It will promptly notify the Agent, to the extent not disclosed as of the date hereof, upon (i) learning of the existence of Hazardous Substance located on, above or below the surface of any land which it owns, leases, operates, occupies or controls (except those being stored, used or otherwise handled in substantial compliance with applicable Requirements of Environmental Law), or contained in the soil or water constituting such land and (ii) the occurrence of any lawfully reportable release, spill, leak, emission, discharge, leaching, dumping or disposal of Hazardous Substances that has occurred on or from such land which, in either case, is likely to result in liability under Requirements of Environmental Law. (16) [Reserved] (17) [Reserved] (18) ERISA Matters. (a) Maintain each ERISA Plan in compliance in all material respects with all applicable Requirements of Law; (b) refrain from adopting, participating in or becoming obligated with respect to any US Pension Plan or multiemployer plan as defined in Section 4001(a)(3) of ERISA without the prior written consent of the Majority Lenders; and (c) promptly notify the Agent on becoming aware of (i) the institution of any steps by any Person to terminate any US Pension Plan, (ii) the failure of any Obligor to make a required contribution to any US Pension Plan if such failure is sufficient
30355430.16 - 52 - to give rise to an Encumbrance under Section 303(k) of ERISA, (iii) the taking of any action with respect to a US Pension Plan which is reasonably likely to result in the requirement that any Obligor furnish a bond or other security to the US Pension Benefit Guaranty Corporation under ERISA or such US Pension Plan, or (iv) the occurrence of any event with respect to any ERISA Plan which is reasonably likely to result in any Obligor incurring any liability, fine or penalty in excess of [Dollar Amount Redacted] , and following notice to the Agent thereof, provide copies of all documentation relating thereto if requested by the Agent. ( 19) Canadian Pension Plans. (a) maintain each Canadian Pension Plan in compliance in all material respects with all applicable Requirements of Law; (b) refrain from adopting, participating in or becoming obligated with respect to any Specified Canadian Pension Plan without the prior written consent of the Majority Lenders; and (c) promptly notify the Agent on becoming aware of (i) the institution of any steps by any Person to terminate any Canadian Pension Plan, (ii) the failure of any Obligor to make a required contribution to any Canadian Pension Plan if such failure is sufficient to give rise to a deemed trust or lien under applicable pension benefits standards laws, or (iii) the occurrence of any event with respect to any Canadian Pension Plan or Canadian Welfare Plan which is reasonably likely to result in any Obligor incurring any liability, fine or penalty in excess of [Dollar Amount Redacted] , and following notice to the Agent thereof, provide copies of all documentation relating thereto if requested by the Agent. (20) Employee Benefit and Welfare Plans. Maintain all employee benefit and Canadian Welfare Plans relating to the Business in compliance in all material respects with all Applicable Laws and ensure that all premiums and payments relating to employee benefits and pensions are paid as due. (21) Additional Information . Upon request, promptly provide the Agent with copies of all “management letters” or other material letters submitted by independent public accountants in connection with audited financial statements described in Sec tion 8.03 raising issues associated with the audit of the Obligors. (22) LDC Agreements. Notify the Agent of any notices received from LDCs in connection with any collections, services, agreements or any Transportation Agreements, requests to increase the billing service amount under any Collection Services Agreements, offsets or material matters under any LDC Agreement, in each case which would reasonably be expected to have a Material Adverse Effect. (23) No Supplier Recourse . Other than in connection with Financial Assistance which is permitted pursuant to Sec tion 8 . 04 ( 5 ) , ensure that no supplier to any Unrestricted Subsidiary has any recourse to any Obligor .
30355430.16 - 53 - ( 24) [Reserved] ( 25) [Reserved] ( 26) [Reserved] (27) Reporting Issuer Status. Maintain the listing of the equity interests of the Borrower on the Toronto Stock Exchange and maintain the status of the Borrower as a reporting issuer under the Canadian securities laws of all of the provinces and territories of Canada in the which it is a reporting issuer as of the date of this Agreement. (28) Proceeds of Disposition re ecobee Inc. or Filter Group . Apply the net proceeds of any Disposition referred to in paragraph (b) of the definition of Permitted Asset Dispositions to either: (i) a reduction of the Priority Supplier Payables (as defined in the Senior Credit Agreement); and/or (ii) a repayment of the Senior Credit Facility in accordance with Article 6 thereof, in each case promptly upon receipt of such proceeds. (29) Board Nominee. In addition to such rights as the Lenders may have in relation to the Borrower’s board of directors under any other agreement or in any other capacity, the Borrower shall ensure that there shall at all times be on its board of directors one nominee of the Majority Lenders unless the Majority Lenders agree otherwise. (30) Alberta Utilities Commission Debt . Promptly upon the entering into of the agreements relating to the Alberta Utilities Commission Debt by the relevant Obligors and the other parties thereto, provide to the Agent certified copies of all such agreements and such other information and documentation with respect to the Alberta Utilities Commission Debt as may be reasonably requested by the Agent. 2. Financial Covenants So long as this Agreement is in force and except as otherwise permitted by the prior written consent of the Majority Lenders: (1) Senior Debt to EBITDA Ratio. The Borrower, on a Modified Consolidated Basis, will ensure that the Senior Debt to EBITDA Ratio determined as at the last day of each Fiscal Quarter is not greater than set forth in table below in respect of the immediately preceding Four Quarter Period. Fiscal Quarter Senior Debt to EBITDA Ratio September 30, 2020 - December 31, 2020 [Redacted] March 31, 2021 - June 30, 2021 [Redacted] September 30, 2021 - December 31, 2021 [Redacted] March 31, 2022 - June 30, 2022 [Redacted] September 30, 2022 - Maturity Date [Redacted]
30355430.16 - 54 - ( 2 ) Minimum EBITDA . The Borrower, on a Modified Consolidated Basis, will maintain a minimum trailing Four Quarter Period EBITDA of [Dollar Amount Redacted] determined as at the last day of each Fiscal Quarter . 3. Reporting Requirements So long as this Agreement is in force and except as otherwise permitted by the prior written consent of the Majority Lenders, the Borrower will: (1) Annual Reports. As soon as available and in any event within 120 days after the end of each Fiscal Year, cause to be prepared and delivered to the Agent the audited consolidated financial statements of the Borrower, including, without limitation, a balance sheet, statement of equity, income statement and cash flow statement, certified by the chief financial officer of the Borrower. (2) Quarterly Reports. (a) As soon as available and in any event within 60 days of the end of each of its first three Fiscal Quarters of each Fiscal Year, cause to be prepared and delivered to the Agent as at the end of such Fiscal Quarter the unaudited interim consolidated financial statements of the Borrower, including, in each case and without limitation, an income statement, balance sheet and cash flow statement, certified by the chief financial officer of the Borrower. (b) As soon as available and in any event within 60 days of the end of each Fiscal Quarter (including the fourth Fiscal Quarter), cause to be prepared and delivered to the Agent as at the end of such Fiscal Quarter the unaudited financial statements of the Borrower prepared on a Modified Consolidated Basis, including, in each case and without limitation, an income statement, balance sheet and cash flow statement, certified by the chief financial officer of the Borrower. (3) Compliance Certificate. Concurrently with the delivery of the financial statements referred to in Sections 8.03(1) and (2) above, provide the Agent with a Compliance Certificate. (4) Operating Budget. As soon as available and in any event not later than June 30 in each year for the next three Fiscal Years, provide to the Agent for the Lenders, the Operating Budget. (5) Supply/Demand Projection. Within 30 days of the end of each Fiscal Quarter, cause to be prepared and delivered to the Agent a supply vs. demand summary in respect of the Obligors’ projected next 12 months and the next 36 months anticipated Available Supply and Supply Commitments for natural gas, electricity and JustGreen Products, separately. (6) Notice of default . Forthwith upon receipt, furnish to the Agent a copy of any notice of default, event of default or non - compliance which is executed by, sent or received by any Obligor in connection with the Senior Credit Agreement or the Intercreditor Agreement.
- 55 - (7) Senior Credit Agreement . Forthwith upon delivery to the Senior Administrative Agent, a copy of the following reporting required to be delivered to the Senior Administrative Agent pursuant to the terms of the Senior Credit Agreement or to the Secured Parties pursuant to the Intercreditor Agreement (which is not otherwise already delivered to the Agent under the terms of this Agreement): Monthly (i) Priority Supplier Payables Certificate delivered pursuant to Section 9.03(10) of the Senior Credit Agreement; (ii) Portfolio Reports – Natural Gas and Electricity delivered pursuant to Section 9.02(4) of the Intercreditor Agreement; (iii) Xxxx To Market Report Electricity delivered pursuant to Section 9.02(4) of the Intercreditor Agreement; Quarterly (i) Borrowing Base Certificate together with Borrowing Base calculation delivered pursuant to Section 9.03(6) of the Senior Credit Agreement; (ii) Hedging Exposure report delivered pursuant to Section 9.03(7) of the Senior Credit Agreement; (iii) Portfolio Reports delivered report delivered pursuant to Section 9.03(9) of the Senior Credit Agreement; and Semi - Annually (i) Borrowing Base Key Assumptions report delivered pursuant to Section 9.03(6) of the Senior Credit Agreement. (8) Risk Management Policy . Promptly notify the Agent of any changes or modifications to the risk management and hedging policy of the Obligors from that in effect on the Original Closing Date and promptly provide a copy of such change or modification. (9) Sufficient Copies to Agent. Ensure that in complying with this Sec tion 8.03 , the Agent is supplied with such quantities of all materials as the Agent may require in order to distribute such materials to each of the Lenders and wherever possible, that electronic copies are sent which the Agent is then authorized to send electronically to the Lenders. (10) Other Information. Deliver to the Agent (i) such other information relating to the conduct of business or financial condition of the Obligors as the Agent on behalf of the Lenders may reasonably request from time to time and (ii) such other materials as agreed to by the Lenders and the Borrower from time to time. 30355430.16
30355430.16 - 56 - 4. Negative Covenants So long as this Agreement is in force and except as otherwise permitted by the prior written consent of the Majority Lenders, the Borrower will not and will ensure that each other Obligor will not : (1) Disposition of Property . Except for Permitted Asset Dispositions, Dispose of, in one transaction or a series of transactions, all or any part of its Property, whether now owned or hereafter acquired . (2) Fundamental Changes. Enter into any corporate transaction (or series of transactions), whether by way of arrangement, reorganization, consolidation, amalgamation, merger or otherwise, whereby all or substantially all of its undertaking and assets would become the property of any other Person or in the case of any amalgamation, the property of the continuing corporation resulting from the amalgamation, except that if at the time of and immediately after giving effect to the corporate transaction, no Event of Default will have occurred and be continuing, it may amalgamate or merge (including by way of a wind - up that is not as a result of an insolvency) with or transfer all or substantially all of its assets to the Borrower, any wholly - owned Subsidiary of the Borrower; provided that it provides the Agent with prior notice of any such transaction and upon any amalgamation or merger (except by way of a wind - up), the resulting company or the entity to whom the assets have been transferred, as applicable, delivers to the Agent a Guarantee and an assumption agreement pursuant to which the amalgamated or merged company or the entity to whom the assets have been transferred, as applicable, confirms its assumption of all of the obligations of the amalgamating or merging companies or the entity which transferred the assets, as applicable, under the Loan Documents and such other certificates and opinions as may be required by the Agent. (3) No Debt. Create, incur, assume or permit any Debt to remain outstanding, other than Permitted Debt provided that the aggregate principal amount of all Permitted Debt described in clauses (b)(i) and (j) of the definition of “Permitted Debt” shall at no time exceed the Senior Lender Limitation Amount. (4) No Repayment or Prepayment of Debt. (a) directly or indirectly voluntarily prepay, defease or in substance defease, purchase, redeem, retire or otherwise acquire the Alberta Utilities Commission Debt or the $15 Million Subordinated Note, in each case, in advance of Debt outstanding under this Agreement, except, in the case of the Alberta Utilities Commission Debt, with the proceeds of the payments received by the Obligors from their Customers in the Province of Alberta under the applicable Customer Contracts; (b) make any amendment or modification to the subordination, ranking, term, granting of security or postponement terms of any indenture, note or other agreement evidencing or governing any Debt or any other term of such agreement which would be adverse to the Lenders (other than with respect to the Senior Credit Documents and then only in accordance with Sec tion 8.04(26) ); and
30355430.16 - 57 - (c) following the occurrence of an Event of Default or a Pending Event of Default which, in either case, is continuing, make any payment in respect of any Debt other than (i) Debt hereunder, (ii) Existing Intercompany Debt or Future Intercompany Debt between Obligors (other than any such payments by the Borrower to another Obligor), (iii) non - cash Permitted Distributions in respect of Debt, (iv) payments in respect of obligations secured by Purchase Money Security Interests and payments in respect of Lease Obligations, (v) payments in respect of the Senior Obligations and (vi) principal repayments of the Alberta Utilities Commission Debt, provided that each such payment shall be made solely with the proceeds of the payments received by the Obligors from their Customers in the Province of Alberta under the applicable Customer Contracts. (5) No Financial Assistance. Give any Financial Assistance to any Person other than: (a) Existing Intercompany Debt; (b) Future Intercompany Debt; (c) guarantees made by the Obligors of Permitted Debt, other than the $15 Million Subordinated Note; (d) Financial Assistance to Restricted Subsidiaries; (e) loans and advances to employees made in accordance with Sectio n 8.04 (9) ; (f) Financial Assistance to Unrestricted Subsidiaries (i) that was provided or advanced prior to July 7, 2020 and certified in a Compliance Certificate prior to such date; and (ii) from and after July 7, 2020, in an amount not to exceed [Dollar Amount Redacted] . Notwithstanding clauses (a) to (f) above, no Financial Assistance shall be given by an Obligor to any Person that is not an Obligor if a Pending Event of Default or an Event of Default has occurred or if the making of any such Financial Assistance would cause a Pending Event of Default or Event of Default to occur. (6) No Imbalance in Commitments. (a) Permit, at any time, the projected amount of Available Supply of natural gas for the next 12 months to (i) exceed 115% of Supply Commitments for natural gas, or (ii) be less than 85% of Supply Commitments for natural gas in the same period; (b) permit, at any time, the projected amount of Available Supply of electricity for the next 12 months to (i) exceed 115% of Supply Commitments for electricity, or (ii) be less than 85% of Supply Commitments for electricity in the same period;
30355430.16 - 58 - (c) permit, at any time, the projected amount of Available Supply of natural gas for the next 36 months to (i) exceed 120% of Supply Commitments for natural gas, or (ii) be less than 80% of Supply Commitments for natural gas in the same period; (d) permit, at any time, the projected amount of Available Supply of electricity for the next 36 months to (i) exceed 120% of Supply Commitments for electricity, or (ii) be less than 80% of Supply Commitments for electricity in the same period; (7) No Distributions. Make or permit any Distributions, other than Permitted Distributions; provided that: no Permitted Distributions (other than in payments in respect of the Senior Obligations) shall be made in cash to any Person that is not an Obligor if a Pending Event of Default or an Event of Default has occurred or if the making of any such cash Distribution would cause a Pending Event of Default or Event of Default to occur. (8) Distribution Restrictions . Other than this Agreement and the Senior Credit Agreement, enter into any agreement that would limit its ability to effect any dividends or distributions . (9) Management Fees. Make or pay any bonus, consulting or management fee or corporate overhead payment or other like payment to any shareholder, director or officer, or any of their Affiliates, except for: (a) salaries, benefits and other employment remuneration (including employee loans) paid in the ordinary course of business and on commercially reasonable terms; and (b) any bonus, consulting or management fee or directors fee or payments to directors and officers of it, provided that any such payments are part of a commercially reasonable compensation package being paid by it for management services rendered. (10) No Encumbrances. Subject to Sec tion 8.04(23), create, incur, assume or permit to exist any Encumbrance upon any of its Property except Permitted Encumbrances. (11) No Acquisitions. Make any Acquisition; provided however that Unrestricted Subsidiaries will be permitted to enter into Acquisitions. (12) No Change to Year End . Make any change to its Fiscal Year, provided that with no less than 60 days prior written notice delivered to the Agent after the most recent March 31 Fiscal Year end, the Borrower may elect to change its Fiscal Year to end on December 31. (13) No Change to Business. Carry on any business other than the Business; except to such extent as would not be material to the Obligors, taken as a whole. (14) [Reserved] (15) [Reserved]
30355430.16 - 59 - (16) Amendments to Organizational Documents . Amend any of its Organizational Documents in a manner that would be prejudicial to the interests of any of the Lenders under the Loan Documents . (17) [Reserved] (18) Material Contracts. Except as provided in Sec tion 8.04(26), amend, vary, alter or waive any material term of any Material Contract if such amendment, variance, alteration or waiver would be adverse to the Lenders in any material respect or allow any circumstances to arise which would allow any Material Contract to lapse or to be terminated during its term if the result could reasonably be expected to have a Material Adverse Effect. (19) [Reserved] (20) Non - Arm’s Length Transactions. Effect any transactions with any Person (other than an Obligor) not dealing at Arm’s Length with the transacting Obligor except for (i) those transactions identified in Schedule 7.01(36) on the Closing Date; (ii) the payment and receipt of Permitted Distributions; (iii) transactions permitted under Section 8.04(5) ; (iv) technical and administrative service agreements on commercially reasonable terms between any of the Borrower or JEC and its Subsidiaries and the provision of the services contemplated thereby; and (v) sales arrangements on commercially reasonable terms between an Obligor and an Unrestricted Subsidiary with respect to the Business. (21) Sale and Leaseback. Enter into any arrangement with any Person providing for the leasing by any Obligor, as lessee, of property which has been or is to be sold or transferred by such Obligor to such Person or to any other Person to whom funds have been or are to be advanced by such Person on the security of such property or the lease obligation of any Obligor. (22) Hedging Contracts. Enter into or permit to be outstanding at any time any Hedge unless such Hedge satisfies the following conditions: (a) if such Hedge is an Interest Rate Hedge, it is designed to protect the Obligors against fluctuations in interest rates; (b) if such Hedge is a Currency Hedge, it is designed to protect the Obligors against fluctuations in currency exchange rates; (c) if such Hedge is an Equity Hedge, it is designed to protect the Obligors against fluctuations in share price; and (d) such Hedge has been entered into by an Obligor bona fide and in good faith in the ordinary course of its business for the purpose of carrying on the same and not for speculative purposes . (23) Customer Contracts. Permit any Encumbrances on Customer Contracts other than Permitted Encumbrances; provided, however, an Obligor may permit Encumbrances on Customer Contracts in favour of suppliers for such Customer Contracts so long as (i) revenue generated on all such Customer Contracts Encumbered in favour of suppliers accounts for no
00000000.16 - 60 - more than 3% of revenue generated by all Customer Contracts; and (ii) gross margin generated by such Customer Contracts Encumbered in favour of suppliers accounts for no more than 3% of gross margin of the Borrower (on a consolidated basis) calculated on a rolling four quarter basis at the end of each Fiscal Quarter. (24) [Reserved] (25) Anti - Money Laundering and Anti - Terrorism Finance Laws; Foreign Corrupt Practices Act; Sanctions Laws; Restricted Person . The Borrower shall not, and shall not permit any Subsidiary to, (a) engage in or conspire to engage in any transaction that violates, in any material respect, any Anti - Terrorism Law, any Anti - Corruption Law or any Sanctions Law, or (b) use any part of the proceeds of the Advances, directly or, to the Borrower’s knowledge, indirectly, for any conduct that would cause the representations and warranties in Sections 7.01(43), 7.01(44) or 7.01(45) to be untrue in any material respect as if made on the date any such conduct occurs. (26) Changes to Senior Credit Documents . The Borrower shall not consent to any waiver, amendment or other change to any Senior Credit Document and shall not refinance or replace the Senior Credit Agreement and the other Senior Credit Documents unless the following conditions are satisfied: (i) the aggregate principal amount available thereunder shall not exceed the Senior Lender Limitation Amount, (ii) the Borrower is at all times in compliance with the requirements of Section 8.05(3), unless otherwise agreed by the Majority Lenders, and (iii) if the Senior Credit Agreement is replaced, (a) the replacement administrative agent on behalf of the replacement lenders shall enter into subordination arrangements with the Agent on behalf of the Lenders on terms no more onerous to Agent and the Lender than those contained in the Senior Subordination Agreement and such agreement shall be in form and substance satisfactory to the Lenders. (27) JEBPO . Notwithstanding any provision in this Agreement or any other Loan Document to the contrary: (a) No Obligor shall: ( i) provide any Financial Assistance to JEBPO, other than in accordance with Sec tion 8.04(5)(f) (and for the purposes of Section 8.04(5), JEBPO shall be deemed to be an Unrestricted Subsidiary); or (ii) complete any Dispositions or any Distributions to JEBPO; and (b) JEBPO shall not own any assets or engage in any business or activity other than in connection with operating a call centre and back office support centre in India in the normal course of its business .
30355430.16 - 61 - 5. Restricted and Unrestricted Subsidiaries So long as this Agreement is in force and except as otherwise permitted by the prior written consent of the Majority Lenders, the Borrower will ensure that: (1) No Subsidiaries. The Borrower has no Subsidiaries, other than Restricted Subsidiaries and Unrestricted Subsidiaries. (2) Status of Subsidiaries. Each Subsidiary of the Borrower: ( i) shall be a corporation, limited partnership, general partnership, trust or limited liability corporation formed under the laws of (A) Canada or a province thereof, (B) a state of the United States of America or the District of Columbia, (C) the United Kingdom, (D) Germany, (E) India, or (F) Hungary; and ( ii) shall (A) if such Subsidiary is a Restricted Subsidiary, be wholly - owned by the Borrower or a Restricted Subsidiary, or (B) if such Subsidiary is an Unrestricted Subsidiary, be owned, wholly or in part (subject to the terms of this Agreement), by the Borrower or another Subsidiary. (3) Guarantee. Upon formation or acquisition or upon becoming a Guarantor under the Senior Credit Documents (including as amended, modified, replaced or refinanced from time to time in accordance with Section 8.04(26)), each Subsidiary will provide to the Agent on behalf of the Lenders a Guarantee of the Obligations, together with such opinions and other documents (including, without limitation, the Restricted Subsidiary Subordination Agreement) as the Agent may reasonably require, all in form and substance acceptable by the Agent. (4) Composition of Borrower and Restricted Subsidiaries. The gross margin of the Borrower and the Restricted Subsidiaries shall at all times comprise of no less than [Percentage Redacted] of the consolidated gross margin of the Borrower and all of its Subsidiaries (excluding Filter Group Inc. and Filter Group USA Inc.). (5) Revocation of Designation as an Unrestricted Subsidiary. From time to time the Borrower may change the designation of a Subsidiary from an Unrestricted Subsidiary to a Restricted Subsidiary; provided that: (a) after giving effect to such designation, all representations and warranties contained in Section 7.01 of this Agreement will be true and correct in all material respects with the same force and effect as if such representations and warranties had been made on and as of the date of such designation; (b) the Borrower is in compliance with all covenants contained herein and no Pending Event of Default or Event of Default shall have occurred and be continuing or will occur as a result of such designation ; (c) the Borrower shall have provided the Agent with a certificate of an officer certifying the foregoing;
30355430.16 - 62 - (d) the Subsidiary will provide to the Agent on behalf of the Lenders a Guarantee, together with such opinions and other documents as the Agent and its counsel may require all in form and substance acceptable by the Lenders and Lenders’ Counsel ; and (e) the Borrower shall have delivered to the Agent a revised Schedule 7.01(16) showing all Restricted Subsidiaries and Unrestricted Subsidiaries of the Borrower following such designation. (6) Hungarian Subsidiary. Notwithstanding anything in this section 8.05, Just Energy (Finance) Hungary Zrt . shall not be required to provide a Guarantee and become a Restricted Subsidiary until such time as its net assets exceed [Dollar Amount Redacted] . Just Energy (Finance) Hungary Zrt. shall not conduct any operating business until such time as it has provided a Guarantee. (7) Release re EdgePower Inc. Upon satisfaction of the conditions set forth in paragraph (f) of the definition of Permitted Asset Disposition contained in Section 1.01: (a) the Lenders hereby direct and authorize the Agent to release and discharge EdgePower Inc. from its obligations under the Guarantee and the other Loan Documents to which it is a party; and (b) the Lenders hereby direct and authorize the Agent to execute such documents and take such actions as the Agent may deem necessary to effect such release, all in form and substance satisfactory to the Agent (at the Borrower’s sole cost and expense). ARTICLE 9 DEFAULT 1. Events of Default The occurrence of any one or more of the following events (each such event being herein referred to as an “ Event of Default ”) will constitute a default under this Agreement: (1) if the Borrower fails to pay any amount of principal of any Advance when due and payable; or (2) if the Borrower fails to pay any interest or fees when due and payable hereunder or under any other Loan Document and such non - payment continues for a period of three Business Days; or (3) if the Borrower fails to pay any Obligation (other than an Obligation for which a failure to pay is specifically dealt with elsewhere in this Sec tion 9.01 ) when due and payable and such non - payment continues for a period of ten Business Days after notice by the Agent; or (4) if the Borrower fails to observe or perform any of the financial covenants in Sec tion 8.02 or any of the negative covenants in Section 8.04 ; or
30355430.16 - 63 - (5) if the Borrower fails to observe or perform any of the positive covenants in Sec tion 8.01 or the reporting covenants in Section 8.03 and the Borrower will fail to remedy such default within the earlier of 30 days from the date (i) the Borrower becomes aware of such default or (ii) the Agent delivers written notice of the default to the Borrower; or (6) if any Obligor neglects to observe or perform any covenant or obligation in this Agreement or any other Loan Document on its part to be observed or performed (other than a covenant or condition whose breach or default in performance is specifically dealt with elsewhere in this Sec tion 9.01 ) and either Borrower fails to remedy such default within the earlier of 30 days from the date (i) such Obligor becomes aware of such default or (ii) the Agent delivers written notice of the default to either Borrower; or (7) if any representation or warranty made by any Obligor in this Agreement, any Loan Document or in any certificate or other document at any time delivered hereunder to the Agent or any Lender will prove to have been incorrect in any material respect on and as of the date thereof and such representation or warranty is not thereafter made true and correct within 30 days of any Obligor becoming aware of its incorrectness; or (8) if any Obligor ceases or threatens to cease to carry on business generally except as permitted by this Agreement, or admits its inability or fails to pay its debts generally; or (9) if any “Event of Default” as defined in the Senior Credit Agreement (as amended, modified, refinanced or replaced) occurs and such Event of Default is not cured or waived within 90 days of the occurrence thereof; or (10) if any Obligor (i) fails to make any payment when such payment is due and payable, to any Person in relation to any Debt (other than Debt for which a failure to pay is specifically dealt with elsewhere in this Sec tion 9.01 ) which, in the aggregate principal amount then outstanding, is in excess of [Dollar Amount Redacted] and such payment is not made within any applicable cure or grace period; or (ii) defaults in the observance or performance of any other agreement or condition in relation to any such Debt which in the aggregate principal amount then outstanding is in excess of [Dollar Amount Redacted] or contained in any instrument or agreement evidencing, securing or relating thereto and such default is not waived or cured within any applicable cure or grace period, or (iii) any other event will occur or condition exist, the effect of which default or other condition is to cause, such Debt to become due prior to its stated maturity date; or (11) if any Obligor denies its obligations under any Loan Document or claims any of the Loan Documents to be invalid or withdrawn in whole or in part; or (12) if any of the Loan Documents or any material provision of any of them becomes unenforceable, unlawful or is changed by virtue of legislation or by a court, statutory board or commission, and the applicable Obligor does not, within ten days of receipt of notice of such Loan Document or material provision becoming unenforceable, unlawful or being changed and being provided with any required new agreement or amendment for execution, replace such Loan Document with a new agreement that is in form and substance satisfactory to the Majority Lenders or amend such Loan Document to the satisfaction of the Majority Lenders; or
30355430.16 - 64 - (13) if a decree or order of a court of competent jurisdiction is entered adjudging an Obligor, a bankrupt or insolvent or approving as properly filed a petition seeking the winding - up of an Obligor under the Companies’ Creditors Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada), the Bankruptcy Code (United States) or the Winding - Up and Restructuring Act (Canada) or any other bankruptcy, insolvency or analogous laws or issuing sequestration or process of execution against any substantial part of the assets of an Obligor or ordering the winding up or liquidation of its affairs; or (14) if any Obligor becomes insolvent, makes any assignment in bankruptcy or makes any other assignment for the benefit of creditors, makes any proposal under the Bankruptcy and Insolvency Act (Canada) or any comparable law, seeks relief under the Companies’ Creditors Arrangement Act (Canada), the Bankruptcy Code (United States), the Winding - Up and Restructuring Act (Canada) or any other bankruptcy, insolvency or analogous law, is adjudged bankrupt, files a petition or proposal to take advantage of any act of insolvency, consents to or acquiesces in the appointment of a trustee, receiver, receiver and manager, interim receiver, custodian, sequestrate or other Person with similar powers of itself or of all or any substantial portion of its assets, or files a petition or otherwise commences any proceeding seeking any reorganization, arrangement, composition or readjustment under any applicable bankruptcy, insolvency, moratorium, reorganization or other similar law affecting creditors’ rights or consents to, or acquiesces in, the filing of such a petition; or (15) if any proceeding or filing will be instituted or made against any Obligor seeking to have an order for relief entered against such Obligor as debtor under, or to adjudicate it bankrupt or insolvent, or seeking liquidation, winding - up, reorganization, arrangement, adjustment or composition under, any law relating to bankruptcy, insolvency, reorganization or relief of debtors (including, without limitation, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Bankruptcy Code (United States) and the Winding - Up and Restructuring Act (Canada)), or seeking appointment of a receiver, trustee, custodian or other similar official for such Obligor or for any substantial part of its properties or assets unless the proceeding or filing is being contested actively and diligently in good faith by appropriate and timely proceedings and is dismissed, vacated or indefinitely stayed within 15 days of knowledge by such Obligor of its institution; or (16) if an Encumbrancer takes possession by appointment of a receiver, receiver and manager, or otherwise of any material portion of the Property of any Obligor; or (17) if a final judgment, execution, writ of seizure and sale, sequestration or decree for the payment of money due will have been obtained or entered against the Obligors in an amount (individually or in the aggregate for all Obligors) in excess of the lesser of (a) [Dollar Amount Redacted] and (b) [Percentage Redacted] of EBITDA (calculated on a last twelve months basis), unless such judgment, execution, writ of seizure and sale, sequestration or decree is and remains vacated, discharged or stayed pending appeal within the applicable appeal period; or (18) [Reserved] (19) [Reserved]
30355430.16 - 65 - ( 20) [Reserved] ( 21) [Reserved] (22) except as permitted hereunder, if proceedings are commenced for the dissolution, liquidation or winding - up of any Obligor, or for the suspension of the operations of any Obligor unless such proceedings are being actively and diligently contested in good faith ; or (23) if any report of the Borrower’s auditors with respect to financial statements provided hereunder contains any qualification which is unacceptable to the Lenders acting reasonably, excluding any objections to the auditor’s report on the 2020 financial statements on the basis of a “going concern” qualification contained therein; or (24) there will have occurred a Material Adverse Effect; or (25) if there is a write - down of the consolidated assets of the Borrower, determined on a consolidated basis, in an amount in excess of [Dollar Amount Redacted] in any Fiscal Year (excluding normal course amortization or depreciation of assets); or (26) if the common shares of the Borrower cease to be listed for trading on the Toronto Stock Exchange (for certainty, not including in connection with a customary trading halt for the dissemination of news) or any order is made by any Governmental Authority in relation to the Borrower, or there is any change of law, or the interpretation or administration thereof, in each case, which in the reasonable opinion of the Agent, operates to prevent or materially restrict the trading of the common shares of the Borrower on the Toronto Stock Exchange, or to prevent or materially restrict the trading on the Toronto Stock Exchange. 9.02 Acceleration and Termination of Rights If any Event of Default occurs and is continuing, all Obligations will, upon demand made by the Agent, at the option of the Agent or upon the request of the Majority Lenders, become immediately due and payable at the rate or rates determined as herein provided, including for certainty the Prepayment Fee, to the date of actual payment thereof, all without notice, presentment, protest, additional demand, notice of dishonour or any other demand or notice whatsoever, all of which are hereby expressly waived by each Obligor; provided, if any Event of Default described in Sec tion 9.01(13) through 9.01(15) with respect to the Borrower occurs, the outstanding principal amount of all Advances and all other Obligations will automatically be and become immediately due and payable (including for certainty the Prepayment Fee). In such event the Lenders, in their discretion, or the Agent, acting on instructions from the Lenders, may exercise any right or recourse and/or proceed by any action, suit, remedy or proceeding against any Obligor authorized or permitted by law for the recovery of all the Obligations of the Borrower to the Lenders and no such remedy for the enforcement of the rights of the Lenders will be exclusive of or dependent on any other remedy but any one or more of such remedies may from time to time be exercised independently or in combination.
30355430.16 - 66 - 3. Remedies Cumulative and Waivers For greater certainty, it is expressly understood and agreed that the respective rights and remedies of the Lenders and the Agent hereunder or under any other Loan Document or instrument executed pursuant to this Agreement are cumulative and are in addition to and not in substitution for any rights or remedies provided by law or by equity; and any single or partial exercise by the Lenders or by the Agent of any right or remedy for a default or breach of any term, covenant, condition or agreement contained in this Agreement or other document or instrument executed pursuant to this Agreement will not be deemed to be a waiver of or to alter, affect or prejudice any other right or remedy or other rights or remedies to which any one or more of the Lenders and the Agent may be lawfully entitled for such default or breach. Any waiver by the Lenders or the Agent of the strict observance, performance or compliance with any term, covenant, condition or other matter contained herein and any indulgence granted, either expressly or by course of conduct, by the Lenders or the Agent will be effective only in the specific instance and for the purpose for which it was given and will be deemed not to be a waiver of any rights and remedies of the Lenders or the Agent under this Agreement or any other Loan Document or instrument executed pursuant to this Agreement as a result of any other default or breach hereunder or thereunder. 4. Termination of Lenders’ Obligations The occurrence of an Event of Default that has not been waived by the Lenders will relieve the Lenders of all obligations to provide any further Advances hereunder. 5. Perform Obligations If an Event of Default has occurred and is continuing and if the Borrower has failed to perform any of its covenants or agreements in the Loan Documents, the Majority Lenders, may, but will be under no obligation to, instruct the Agent on behalf of the Lenders to perform any such covenants or agreements in any manner deemed fit by the Majority Lenders without thereby waiving any rights to enforce the Loan Documents. The reasonable expenses (including any legal costs) paid by the Agent and the Lenders in respect of the foregoing will be an Obligation. 6. Third Parties No Person dealing with the Lenders or any agent of the Lenders will be concerned to inquire whether the powers which the Lenders or the Agent are purporting to exercise have been exercisable. ARTICLE 10 COSTS, EXPENSES AND INDEMNIFICATION 10.01 Costs and Expenses The Borrower will pay promptly upon notice from the Agent all reasonable out - of - pocket costs and expenses of the Agent in connection with preparation, execution and delivery of this Agreement and the other documents to be delivered hereunder and the reasonable out - of -
30355430.16 - 67 - pocket costs of the Agent in the initial syndication of the Loan Facility, whether or not any Advance has been made hereunder, including without limitation, the reasonable fees and out - of - pocket expenses of Lenders’ Counsel and counsel to the Specified Lender with respect thereto and with respect to advising the Agent, or the Lenders as to its or their rights and responsibilities under this Agreement and the other Loan Documents to be delivered hereunder. The Borrower further agrees to pay all reasonable out - of - pocket costs and expenses of the Agent (and, in case of (i), (iv) and (v) below, the Lenders) in connection with (i) the preparation or review of waivers, consents and amendments requested by the Borrower, (ii) questions of interpretation of this Agreement, (iii) the establishment of the validity and enforceability of this Agreement, (iv) the preservation or enforcement of rights of the Agent and the Lenders under this Agreement and other Loan Documents to be delivered hereunder, and (v) the exercise of any right or remedy of any nature or kind contained herein or in any Loan Document, including, without limitation, all reasonable costs and expenses sustained by each Lender or the Agent as a result of any failure by the Borrower to perform or observe any of its obligations hereunder. For greater certainty, the Borrower's obligations under the immediately preceding sentence shall include, without limitation, the obligation to pay the reasonable out - of - pocket costs and expenses of the Agent and the Lenders in respect of any strategic process, proceeding or transaction of the Borrower including, without limitation, with respect to any actual or potential sale, restructuring or recapitalization of the Borrower or its business and in respect of the Agent and the Lenders' review, assessment, participation or other activities relating thereto (which for certainty, includes any such strategic process, proceeding or transaction of the Borrower occurring prior to the Closing Date), including without limitation, the reasonable fees and out - of - pocket expenses of Lenders’ Counsel and counsel to the Specified Lender with respect thereto. 2. Indemnification by the Borrower In addition to any liability of the Borrower to any Lender or the Agent under any other provision hereof, except for liability arising from a Lender’s or the Agent’s own gross negligence or wilful misconduct, the Borrower will indemnify each Lender and the Agent (and each of their directors, officers, employees, affiliates, agents and representatives) and hold each Lender and the Agent (and each of their directors, officers, employees, affiliates, agents and representatives) harmless against any loss or expense incurred by such Lender or the Agent (and each of their directors, officers, employees, affiliates, agents and representatives) as a result of: (1) any failure by the Borrower to fulfil any of its Obligations including, without limitation, any cost or expense incurred by reason of the liquidation or re - employment in whole or in part of deposits or other funds required by any Lender to fund or maintain its Proportionate Share of any Advance as a result of the Borrower’s failure to complete an Advance or to make any payment, repayment or prepayment on the date required hereunder or specified by it in any notice given hereunder; (2) the Borrower’s failure to give any notice required to be given by it to the Agent or Lenders hereunder; (3) the failure of the Borrower to make any other payment when due hereunder;
30355430.16 - 68 - (4) any liability, obligations, loss (other than lost profits) or expense, that may be suffered by or asserted against any of them as a result of the breach by any Obligor in the performance of any of the Loan Documents, or by reason of the Agent or the Lenders agreeing to enter into this Agreement; or (5) in connection with the use of any proceeds of the Loan Facility, or the consummation of any transaction contemplated by this Agreement. Notwithstanding any other provision of this Agreement, and whether such losses or damages are foreseeable or unforeseeable, the Agent shall not be liable under any circumstances whatsoever for any special, indirect, incidental, consequential, exemplary, aggravated or punitive losses or damages of any Person. A certificate of a Lender or the Agent as to the amount of any such loss or expense will be prima facie evidence as to the amount thereof, in the absence of manifest error. The agreements in this Section will survive the termination of this Agreement and repayment of the Obligations. 10.03 Specific Environmental Indemnification The Borrower will defend and indemnify each Lender and the Agent (and each of their directors, officers, employees, affiliates, agents and representatives) and hold each harmless at all times from and against any and all costs, losses, damages, expenses, judgments, suits, claims, awards, fines, sanctions and liabilities whatsoever (including any reasonable out - of - pocket costs or expenses for preparing any necessary environmental assessment report or other such other reports) by a third party against any Lender or the Agent (and each of their directors, officers, employees, affiliates, agents and representatives) or any of them related to or as a result of (i) any release, deposit, discharge, or disposal of any Hazardous Substance in connection with the property or business of the Obligors; and (ii) the remedial actions (if any) taken by the Agent on behalf of the Lenders, in respect of such release, deposit, discharge or disposal; or (iii) a failure by any Obligor or any Unrestricted Subsidiary to comply with Requirements of Environmental Law. The Borrower will have the sole right, at its expense, to control any such legal action or claim and to settle on terms and conditions approved by the Borrower and approved by the party named in such legal action or claim whether it be the Lenders or the Agent, or any of them acting reasonably provided that if, in the opinion of the Lenders or the Agent, or any of them as the case may be, the interests of the Lenders or the Agent or any of them are different from those of the Borrower in connection with such legal action or claim, the Lenders or the Agent or any of them will have the sole right, at the Borrower’s expense, to defend their own interests provided that any settlement of such legal action or claim will be on terms and conditions approved by the Borrower, acting reasonably. If the Borrower does not defend the legal action or claim, the Agent and the Lenders will have the right to do so on their own behalf and on behalf of the Borrower, as the case may be, at the expense of the Borrower. The defence and indemnity obligations contained throughout this Agreement will survive the termination of this Agreement and repayment of the Obligations.
30355430.16 - 69 - 10.04 Exclusion Notwithstanding Sections 10.01, 10.02 and 10.03, the Borrower shall not be obliged to indemnify the Agent, any Lender or any of their respective directors, officers, employees, affiliates, agents and representatives (“ Indemnified Parties ”) for any losses, claims, damages, liabilities or related expenses which are determined by a court of competent jurisdiction by final and non - appealable judgment to have resulted from the gross negligence or wilful misconduct of such Indemnified Parties. ARTICLE 11 THE AGENT AND THE LENDERS 1. Appointment The Lenders hereby appoint the Agent to act as their agent as herein specified and, except as may be specifically provided to the contrary herein, each of the Lenders hereby irrevocably authorizes the Agent, as the agent of such Lender, to enter into on its behalf and thereafter take such action on its behalf under or in connection with the Loan Documents and to exercise such powers thereunder as are delegated to the Agent by the terms thereof and such other powers as are reasonably incidental thereto which it may be necessary for the Agent to exercise in order that the provisions of the Loan Documents are carried out. The Agent may perform any of its duties under the Loan Documents by or through its agents and may delegate its duties to an Affiliate or a Subsidiary. The Borrower will not be concerned to inquire whether the powers which the Agent is purporting to exercise have become exercisable or otherwise as to the propriety or regularity of any other action on the part of the Agent, and accordingly insofar as the Borrower is concerned the Agent will for all purposes hereof be deemed to have authority from the Lenders to exercise the powers and take the actions which are in fact exercised and taken by it. 2. Indemnity from Lenders The Lenders agree, jointly and severally, to indemnify the Agent (to the extent that the Agent is not promptly reimbursed by the Borrower on demand) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any nature or kind whatsoever which may be imposed on, incurred by, or asserted against the Agent in its capacity as agent hereunder which in any way relate to or arise out of the Loan Documents or any action taken or omitted by the Agent under the Loan Documents; provided that no Lender will be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements which result from the Agent’s gross negligence or wilful misconduct. Without limitation and absent gross negligence or wilful misconduct by the Agent, all Lenders agree to reimburse the Agent promptly upon demand for out - of - pocket expenses (including the fees and disbursements of counsel) incurred by the Agent in connection with the preparation of the Loan Documents and the determination or preservation of any rights of the Agent or the Lenders under, or the enforcement of, or legal advice in respect of rights or responsibilities under, the Loan Documents, to the extent that the Agent is not promptly reimbursed for such expenses by the Borrower on demand.
30355430.16 - 70 - Notwithstanding any other provision of this Agreement, and whether such losses or damages are foreseeable or unforeseeable, the Agent shall not be liable under any circumstances whatsoever for any special, indirect, incidental, consequential, exemplary, aggravated or punitive losses or damages of any Person. 3. Exculpation The Agent will have no duties or responsibilities except those expressly set forth in the Loan Documents and no implied covenants or obligations shall be read into the Loan Documents against the Agent. Neither the Agent (in its capacity as Agent and not as a Lender) nor any of its officers, directors, employees or agents will be liable for any action taken or omitted to be taken under or in connection with the Loan Documents, unless such act or omission constitutes gross negligence or wilful misconduct. All rights, privileges, indemnities, benefits and protections given to the Agent under this Agreement shall apply to the performance by the Agent of any of its duties and obligations and the exercise of any of its rights under the Loan Documents. The duties of the Agent will be mechanical and administrative in nature; the Agent will not have by reason of the Loan Documents a fiduciary relationship with any Lender and nothing in the Loan Documents, express or implied, is intended to or will be construed as to impose upon the Agent any obligation except as expressly set forth therein. None of the Lenders will have any duties or responsibilities to any of the other Lenders except as expressly set forth in the Loan Documents. The Agent will not be responsible for any recitals, statements, representations or warranties in any of the Loan Documents or which may be contained in any other document subsequently received by the Agent or the Lenders from or on behalf of any Obligor or for the authorization, execution, effectiveness, genuineness, validity or enforceability of any of the Loan Documents, and will not be required to make any inquiry concerning the performance or observance by any Obligor of any of the terms, provisions or conditions of any of the Loan Documents. Each of the Lenders severally represents and warrants to the Agent that it has made and will continue to make such independent investigation of the financial condition and affairs of the Obligors as such Lender deems appropriate in connection with its entering into of any of the Loan Documents and the making and continuance of any Advance hereunder, that such Lender has and will continue to make its own appraisal of the creditworthiness of the Obligors and that such Lender in connection with such investigation and appraisal has not relied upon any information provided to such Lender by the Agent. 4. Reliance on Information The Agent will be entitled to rely upon any writing, notice, statement, certificate, facsimile, telex or other document or communication believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and, with respect to all legal matters pertaining to the Loan Documents and its duties thereunder, upon the advice of counsel selected by it. 5. Knowledge and Required Action The Agent will not be deemed to have knowledge or notice of the occurrence of any Event of Default or Pending Event of Default (other than the non - payment of any principal, interest or other amount to the extent the same is required to be paid to the Agent for the account
00000000.16 - 71 - of the Lenders) unless the Agent has received notice from a Lender or the Borrower specifying such Event of Default or Pending Event of Default and stating that such notice is given pursuant to this Agreement. In the event that the Agent receives such a notice, it will give prompt notice thereof to the Lenders. The Agent will also give prompt notice to the Lenders of each non - payment of any amount required to be paid to the Agent for the account of the Lenders. The Agent will, subject to Sec tion 11.06 take such action with respect to such Event of Default or Pending Event of Default as will be directed by the Lenders in accordance with this Article 11 provided that, unless and until the Agent will have received such direction the Agent may, but will not be obliged to, take such action, or refrain from taking such action, with respect to such Event of Default or Pending Event of Default as it will deem advisable in the best interest of the Lenders; and provided further that the Agent in any case will not be required to take any such action which it determines to be contrary to the Loan Documents or to any Applicable Law. 6. Request for Instructions Notwithstanding anything contained herein to the contrary, the Agent shall not be required to exercise any discretion or take any action but shall only be required to act or refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Lenders. The Agent may at any time request instructions from the Lenders with respect to any actions or approvals which, by the terms of any of the Loan Documents, the Agent is permitted or required to take or to grant, and the Agent will be absolutely entitled to refrain from taking any such action or to withhold any such approval and will not be under any liability whatsoever as a result thereof until it will have received such instructions from the Lenders. No Lender will have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting under the Loan Documents in accordance with instructions from the Lenders. The Agent will in all cases be fully justified in failing or refusing to take or continue any action under the Loan Documents unless it will have received further assurances to its satisfaction from the Lenders of their indemnification obligations under Sec tion 11 . 02 against any and all liability and expense which may be incurred by it by reason of taking or continuing to take such action, and unless it will be secured in respect thereof as it may deem appropriate . 7. [Reserved] 8. Resignation and Termination If at any time (i) the Agent will deem it advisable, in its sole discretion, it may deliver to each of the Lenders and the Borrower written notification of its resignation insofar as it acts on behalf of the Lenders pursuant to this Article, or (ii) the Agent is in default of any of its obligations hereunder and the Majority Lenders will deem it advisable, in their sole discretion, they may deliver to the Agent and the Borrower written notification of the termination of the Agent’s authority to act on behalf of the Lenders pursuant to this Article, such resignation or termination to be effective upon the date of the appointment by the Lenders of a successor which will assume all of the rights, powers, privileges and duties of the Agent hereunder, which appointment will be promptly made from among the remaining Lenders and written notice thereof will be given to the Borrower concurrently with such appointment. If in the case of resignation by the Agent no appointment of a successor Agent has been made by the Lenders and
30355430.16 - 72 - approved by the Borrower within 30 days, the resigning Agent may make such appointment from among the remaining Lenders on behalf of the Lenders, subject to such Lender agreeing to act as Agent, and will forthwith give notice of such appointment to the Lenders and the Borrower . 11.09 Actions by Lenders (1) Any consent, approval (including without limitation any approval of or authorization for any amendment to any of the Loan Documents), instruction or other expression of the Lenders under any of the Loan Documents may be obtained by an instrument in writing signed in one or more counterparts by the Majority Lenders, or where required by Sec tion 11.09(2) all of the Lenders (which instrument in writing, for greater certainty, may be delivered by facsimile or electronically). (2) Notwithstanding Sec tion 11.09(1) , without the consent of all the Lenders the Agent may not take the following actions: (a) amend, modify, discharge, terminate or waive any of the terms of this Agreement if such amendment, modification, discharge, termination or waiver would increase the amount of the Loan Facility, reduce the fees or interest rates payable with respect to the Loan Facility, extend any date fixed for payment of principal or interest relating to the Loan Facility, extend the repayment dates of the Loan Facility, change the currency of Advances available or the notice periods relating thereto, or change the definition of Majority Lenders; (b) release any Guarantees other than pursuant to the terms hereof; (c) amend this Sec tion 11.09 ; and (d) amend Article 5. (3) An instrument in writing from the Majority Lenders or, where applicable, all of the Lenders as provided for in this Sec tion 11.09 (any such instrument in writing being an “ Approval Instrument ”) will be binding upon all of the Lenders, and the Agent (subject to the provisions for its indemnity contained in this Agreement) will be bound to give effect thereto accordingly. For greater certainty, to the extent so authorized in the Approval Instrument, the Agent will be entitled (but not obligated) to execute and deliver on behalf of the Agent and all of the Lenders, without the requirement for the execution by any other Lender or Lenders, any consents, waivers, documents or instruments (including without limitation any amendment to any of the Loan Documents) necessary or advisable in the opinion of the Agent to give effect to the matters approved by the Majority Lenders or all of the Lenders, as the case may be, in any Approval Instrument; provided that, no Approval Instrument shall amend, modify or otherwise affect the rights or duties of the Agent or the Lenders, as the case may be. (4) Notwithstanding anything to the contrary herein, where the Agent, acting as Depository Agent, is holding outstanding Advances under the Loan Facility for an Additional Lender pursuant to Sec tion 2.01 of this Agreement, such Additional Lender’s interest in the outstanding Advances will be disregarded and not counted towards (i) calculating the unanimous consent of the Lenders and (ii) determining the composition of the Majority
30355430.16 - 73 - Lenders. For further clarity, under no circumstances will the Agent be required to provide consent on behalf of an Additional Lender whose outstanding Advances it holds as Depository Agent. 10. Provisions for Benefit of Lenders Only The provisions of this Article 11 , other than Sections 11.09 and 11.10 and the last sentence of Section 11.01 relating to the rights and obligations of the Lenders and the Agent inter se will be operative as between the Lenders and the Agent only, and the Obligors will not have any rights under or be entitled to rely for any purposes upon such provisions. 11. Payments by Agent (1) For greater certainty, the following provisions will apply to any and all payments made by the Agent to the Lenders hereunder: (a) the Agent will be under no obligation to make any payment (whether in respect of principal, interest, fees or otherwise) to any Lender until an amount in respect of such payment has been received by the Agent from the Borrower; (b) if the Agent receives less than the full amount of any payment of principal, interest, fees or other amount owing by the Borrower under this Agreement, then the Agent will have no obligation to remit to each Lender any amount other than such Lender’s Proportionate Share of that amount which is the amount actually received by the Agent; (c) if any Lender advances more or less than its Proportionate Share of an Advance, such Lender’s entitlement to such payment will be increased or reduced, as the case may be, in proportion to the amount actually advanced by such Lender; (d) the Agent acting reasonably and in good faith will, after consultation with the Lenders in the case of any dispute, determine in all cases the amount of all payments to which each Lender is entitled and such determination will, in the absence of manifest error, be binding and conclusive; (e) upon request, the Agent will deliver a statement detailing any of the payments to the Lenders referred to herein; and (f) all payments by the Agent to a Lender hereunder will be made to such Lender at its address set forth in the signature pages on this Agreement or on the applicable Assignment Agreement unless notice to the contrary is received by the Agent from such Lender. 11.12 Direct Payments The Lenders agree among themselves that, except as otherwise provided for in this Agreement and except as necessary to adjust for Advances that are not in each Lender’s Proportionate Share under the Loan Facility, all sums received by a Lender relating to this
30355430.16 - 74 - Agreement will be shared by each Lender in its Proportionate Share and each Lender undertakes to do all such things as may be reasonably required to give full effect to this Section, including without limitation, the purchase from other Lenders of a portion thereof by the Lender who has received an amount in excess of its Proportionate Share as will be necessary to cause such purchasing Lender to share the excess amount rateably in its Proportionate Share with the other Lenders. If any sum which is so shared is later recovered from the Lenders who originally received it, the Lender will restore its Proportionate Share of such sum to such Lenders, without interest. If any Lender (a “ Receiving Lender ”) will obtain any payment of moneys due under this Agreement as referred to above, the Receiving Lender will forthwith remit such payment to the Agent and, upon receipt, the Agent will distribute such payment in accordance with the provisions hereof. 11.13 Acknowledgements, Representations and Covenants of Lenders (1) It is acknowledged and agreed by each Lender that it has itself been, and will continue to be, solely responsible for making its own independent appraisal of and investigations into the financial condition, creditworthiness, Property, affairs, status and nature of the Obligors. Accordingly, each Lender confirms to the Agent that it has not relied, and will not hereafter rely, on the Agent (a) to check or inquire on its behalf into the adequacy or completeness of any information provided by the Obligors under or in connection with this Agreement or the transactions herein contemplated (whether or not such information has been or is hereafter distributed to such Lender by the Agent) or (b) to assess or keep under review on its behalf the financial condition, creditworthiness, Property, affairs, status or nature of the Obligors. (2) Each Lender represents and warrants that it has the legal capacity to enter into this Agreement pursuant to its charter and any applicable legislation and has not violated its charter, constating documents or any applicable legislation by so doing. (3) Each Lender agrees to indemnify the Agent (to the extent not reimbursed by the Borrower), jointly and severally from and against any and all liabilities and obligations (whether direct or indirect, contingent or otherwise), losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Agent in any way relating to or arising out of the Loan Documents or the transactions therein contemplated, provided that no Lender will be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Agent’s gross negligence or wilful misconduct. Without limiting the generality of the foregoing and absent gross negligence or wilful misconduct by the Agent, each Lender agrees to reimburse the Agent promptly upon demand for any out - of - pocket expenses (including counsel fees) incurred by the Agent in connection with the preservation of any rights of the Agent or the Lenders under, or the enforcement of, or legal advice in respect of rights or responsibilities under this Agreement, to the extent that the Agent is not reimbursed for such expenses by the Borrower. The obligation of the Lenders to indemnify the Agent will survive the termination of this Agreement.
30355430.16 - 75 - (4) Each Lender acknowledges and agrees that its obligation to advance its Proportionate Share of Advances in accordance with the terms of this Agreement is independent and in no way related to the obligation of any other Lender hereunder. (5) Each Lender hereby acknowledges receipt of a copy of this Agreement and acknowledges that it is satisfied with the form and content of such document. (6) Except to the extent recovered by the Agent from the Borrower, promptly following demand therefor, each Lender is responsible jointly and severally to pay, and will pay to the Agent any and all reasonable costs, expenses, claims, losses and liabilities incurred by the Agent in connection with this Agreement except for those incurred by reason of the Agent’s gross negligence or wilful misconduct. (7) Each Lender will respond promptly to each request by the Agent for the consent of such Lender required hereunder. 11.14 Rights of Agent (1) In administering the Loan Facility, the Agent may retain, at the expense of the Lenders if such expenses are not recoverable from the Borrower, such solicitors, counsel, auditors and other experts and agents as the Agent may select, in its sole discretion, acting reasonably and in good faith after consultation with the Lenders. (2) The Agent will be entitled to rely on any communication, instrument or document believed by it to be genuine and correct and to have been signed by the proper individual or individuals, and will be entitled to rely and will be protected in relying as to legal matters upon opinions of independent legal advisors selected by it. The Agent may also assume that any representation made by the Borrower is true and that no Event of Default or Pending Event of Default has occurred unless the officers or employees of the Agent, acting in their capacity as officers or employees responsible for the Borrower’s account, have actual knowledge to the contrary or have received notice to the contrary from any other party to this Agreement. (3) None of the provisions contained in this Agreement shall require the Agent to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified and funded to its satisfaction. 11.15 Collective Action of the Lenders Each of the Lenders hereby acknowledges that to the extent permitted by Applicable Law, the remedies provided under the Loan Documents to the Lenders are for the benefit of the Lenders collectively and acting together and not severally and further acknowledges that its rights hereunder are to be exercised not severally, but by the Agent upon the decision of the Majority Lenders or all of the Lenders as required by this Agreement. Accordingly, notwithstanding any of the provisions contained herein, each of the Lenders hereby covenants and agrees that it will not be entitled to take any action hereunder or thereunder including, without limitation, any declaration of default hereunder or thereunder but that any
30355430.16 - 76 - such action will be taken only by the Agent with the prior written agreement of the Majority Lenders or all of the Lenders, as required. Each of the Lenders hereby further covenants and agrees that upon any such written agreement being given by the Majority Lenders or all of the Lenders, as required, it will co - operate fully with the Agent to the extent requested by the Agent. Notwithstanding the foregoing, in the absence of the instructions from the Lenders and where in the sole opinion of the Agent, acting reasonably and in good faith, the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Lenders take such action on behalf of the Lenders as it deems appropriate or desirable in the interest of the Lenders. 16. Funding by Lenders; Presumption by Agent Unless the Agent shall have received notice from a Lender at least three Business Days prior to the proposed date of any Advance that such Lender will not make available to the Agent such Lender’s share of such Advance, the Agent may assume that such Lender has made such share available on such date in accordance with the provisions of this Agreement concerning funding by Lenders and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Advance available to the Agent then the applicable Lender shall pay to the Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Agent at a rate determined by the Agent in accordance with prevailing banking industry practice on interbank compensation. If such Lender pays such amount to the Agent then such amount shall constitute such Lender’s pro rata share of the Advance. If the Lender does not do so forthwith, the Borrower shall pay to the Agent forthwith on written demand such corresponding amount with interest thereon at the interest rate applicable to the Advance in question. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that has failed to make such payment to the Agent. 17. Payments by the Borrower; Presumption by Agent Unless the Agent shall have received notice from the Borrower at least three Business Days prior to the date on which any payment is due to the Agent for the account of any Lender hereunder that the Borrower will not make such payment, the Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute the amount due to the Lenders. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Agent forthwith on demand the amount so distributed to such Lender 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 the Agent at a rate determined by the Agent in accordance with prevailing banking industry practice on interbank compensation. 18. Non - Funding Lenders (1) Certain Fees . A Non - Funding Lender shall not be entitled to receive any fee to which it may have been entitled for any period during which that Lender is a Non - Funding Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Non - Funding Lender).
30355430.16 - 77 - (2) Liability of the Agent . Neither the Agent nor any of its Affiliates nor any of their respective officers, directors, employees, agents or representatives shall be liable to any Lender (including, without limitation, a Non - Funding Lender) for any action taken or omitted to be taken by it in connection with amounts payable by the Borrower to a Non - Funding Lender and received and deposited by the Agent in a cash collateral account and applied in accordance with the provisions of this Agreement save and except for the gross negligence or wilful misconduct of the Agent as determined by a final non - appealable judgement of a court of competent jurisdiction. (3) Non - Funding Lender Waterfall . The Agent shall be entitled to set off any Non - Funding Lender’s Proportionate Share of all payments received from the Borrower against such Non - Funding Lender’s obligations to fund payments and Advances required to be made by it and to purchase participations required to be purchased by it in each case under this Agreement and the other Loan Documents. The Agent shall be entitled to withhold and deposit in one or more non - interest bearing cash collateral accounts in the name of the Agent all amounts (whether principal, interest, fees or otherwise) received by the Agent and due to a Non - Funding Lender pursuant to this Agreement which amounts shall be used by the Agent (A) first, to reimburse the Agent for any amounts owing to it by the Non - Funding Lender pursuant to any Loan Document, and then to reimburse, (B) second, to repay any Advances made by a Lender in order to fund a shortfall created by a Non - Funding Lender which repayment shall be in the form of an assignment by each such Lender of such Advance to the Non - Funding Lender, (C) third, to cash collateralize all other obligations of such Non - Funding Lender to the Agent owing pursuant to this Agreement in such amount as shall be determined from time to time by the Agent, acting on written instructions from the Lenders, including, without limitation, such Non - Funding Lender’s obligation to pay its Proportionate Share of any indemnification or expense reimbursement amounts not paid by the Borrower, (D) fourth, on written instructions from the Lenders, to fund from time to time the Non - Funding Lender’s Proportionate Share of Advances under the Loan Facility, as applicable, (E) fifth, on written instructions from the Lenders, to be held in an interest bearing deposit account and released pro rata in order to satisfy such Non - Funding Lender’s Proportionate Share of future Advances under the Loan Facility, (F) sixth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Non - Funding Lender as a result of such Non - Funding Lender’s breach of its obligations under this Agreement, (G) seventh, so long as no Pending Event of Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Non - Funding Lender as a result of such Non - Funding Lender’s breach of its obligations under this Agreement; and (H) eighth, to such Non - Funding Lender or as otherwise directed by a court of competent jurisdiction. Any payments, prepayments or other amounts paid or payable to a Non - Funding Lender that are applied (or held) to pay amounts owed by a Non - Funding Lender shall be deemed paid to and redirected by such Non - Funding Lender, and each Lender irrevocably consents hereto. (4) Voting and Consent Rights . For certainty, a Non - Funding Lender shall have no voting or consent rights with respect to matters under this Agreement or other Loan Documents. Accordingly, the aggregate unpaid principal amount of the Advances owing to any Non - Funding Lender shall be disregarded in determining Majority Lenders and all Lenders or all affected Lenders. Notwithstanding the foregoing, should a Non - Funding Lender (A) fund all outstanding
30355430.16 - 78 - Advances that it previously failed to fund and pay all other amounts owing to the Agent, and (B) confirm in writing to the Agent that there is no reasonable likelihood that it will subsequently again become a Non - Funding Lender, then such Lender shall thereafter be entitled to vote and shall have consent rights in the same manner and fashion as if it were not a Non - Funding Lender. (5) Reinstatement of Non - Funding Lender . If the Borrower and the Agent agree in writing that a Lender is no longer a Non - Funding Lender, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Advances of the other Lenders or take such other actions as the Agent may determine to be necessary to cause the Advances to be held pro rata by the Lenders in accordance with the Proportionate Share, whereupon such Lender will cease to be a Non - Funding Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Non - Funding Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from a Non - Funding Lender to a Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Non - Funding Lender. 11.19 Acknowledgement and Consent to Bail - In of Affected Financial Institutions. Notwithstanding anything to the contrary in this Agreement, any other Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write - Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: (a) the application of any Write - Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and (b) the effects of any Bail - in Action on any such liability, including, if applicable: (i) a reduction in full or in part or cancellation of any such liability; ( ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or ( iii) the variation of the terms of such liability in connection with the exercise of the Write - Down and Conversion Powers of the applicable Resolution Authority.
30355430.16 - 79 - 11.20 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any hedging agreement or any other agreement or instrument that is a QFC (such support, “ QFC Credit Support ”, and each such QFC, a “ Supported QFC ”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Xxxx - Xxxxx Xxxx Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “ U.S. Special Resolution Regimes ”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States): (a) In the event a Covered Entity that is party to a Supported QFC (each, a “ Covered Party ”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Non - Funding Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support. (b) As used in this Section, the following terms have the following meanings: ( i) “ BHC Act Affiliate ” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party; ( ii) “ Covered Entity ” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. † 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. † 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. † 382.2(b);
30355430.16 - 80 - ( iii) “ Default Right ” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. †† 252.81, 47.2 or 382.1, as applicable; and ( iv) “ QFC ” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). 11.21 Divisions (1) For all purposes under the Loan Documents, in connection with any Division (or any comparable event under the laws of the applicable jurisdictions): (a) if any asset, right, obligation or liability of any Dividing Person becomes the asset, right, obligation or liability of a Dividing Successor, then it shall be deemed to have been transferred from the Dividing Person to the Dividing Successor, and (b) if any new Dividing Successor comes into existence, such Dividing Successor shall be deemed to have been organized on the first date of its existence by the holders of its equity interests at such time. (2) No Obligor shall effectuate a Division (a) without the prior written consent of the Agent to the Division (including, without limitation, the plan of division) and (b) unless the Division Successor joins to the Loan Documents pursuant to a joinder agreement in form and substance satisfactory to the Agent. (3) For purposes of this Sec tion 11.21 : (a) “ Dividing Person ” is defined in the definition of “Division”; (b) “ Division ” means, in reference to any Person which is an entity (the “ Dividing Person ”), the division of such Person into two (2) or more separate Persons with the Dividing Person either continuing or terminating its existence as part of the division including as contemplated under Section 18 - 217 of the Delaware Limited Liability Act for limited liability companies formed under Delaware law or any analogous action taken pursuant to any Applicable Law (of Delaware or any other jurisdiction) with respect to any corporation, limited liability company, partnership or other entity; and (c) “ Division Successor ” shall mean any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division. A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed a Division Successor upon the occurrence of such Division.
30355430.16 - 81 - ARTICLE 12 TAXES 12.01 Tax es ( 1 ) All payments to be made to the Agent or the Lenders pursuant to the Loan Documents will be made free and clear of, and without reduction for or on account of, any present or future Taxes ; provided, however, if any Taxes are required by Applicable Law to be withheld from any interest or other amount payable to the Agent or any Lender under any Loan Document, 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 a Tax other than an Excluded Tax, the amount so payable by the applicable Obligor to the Agent or such Lender will be increased to the extent necessary to yield to the Agent or such Lender, on a net basis after payment of all Taxes (including all Taxes imposed (other than Excluded Taxes) on any additional amounts payable under this Section), interest or any such other amount payable under such Loan Document at the rate or in the amount specified in such Loan Document . The Obligors will be fully liable and responsible for and will, promptly following receipt of a request from the Agent, pay to the Agent any and all Taxes in the nature of sales, use, excise, value - added, goods and services, harmonized sales, stamp, property and similar Taxes payable under the laws of Canada, any Province of Canada, the United States of America, any State of the United States of America or any other country or jurisdiction with respect to any and all goods and services made available under the Loan Documents to any Obligor by the Agent and the Lenders, or any and all Taxes arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Documents, but not including any Excluded Taxes . Whenever any Taxes are payable by an Obligor pursuant to this section, for the account of the Agent or a Lender, a certified copy of an original official receipt showing payment of such Taxes (or other reasonable documentary evidence of such payment) will be promptly provided by such Obligor to the Agent or such Lender . If an Obligor fails to pay any Taxes (other than Excluded Taxes) in respect of any payment made to the Agent or the Lenders pursuant to the Loan Documents when due or if an Obligor fails to remit to the Agent the required documentary evidence of such payment, the Obligors will indemnify and save harmless the Agent and the Lenders from any incremental Taxes (other than Excluded Taxes), interest, penalties or other reasonable expenses that may become payable by the Agent or by any Lender or to which the Agent or any Lender may be subjected as a result of any such failure . A certificate of the Agent or any Lender as to the amount of any such Taxes (other than Excluded Taxes), interest or penalties and containing reasonable details of the calculation of such Taxes, interest or penalties will be, absent manifest error , prima facie evidence of the amount of such Taxes, interest or penalties, as the case may be . If an Obligor has paid over or remitted an amount on account of Taxes pursuant to the foregoing provision and the amount so paid over or remitted is subsequently refunded to such Lender, in whole or in part, such Lender will remit to the such Obligor, provided there is then no Pending Event of Default or Event of Default and subject to the set off rights of the Lenders, such an amount equal to such refund (but only to the extent of indemnity payments or additional amount paid under this section with respect to the Taxes giving rise to such refund), net of all out - of - pocket expenses (including Taxes) of such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund) . The applicable Obligor, upon request of a Lender, shall repay to such Lender the amount paid over pursuant to the
30355430.16 - 82 - foregoing sentence (plus penalties, interest or other charges imposed by the relevant Governmental Authority) . Notwithstanding anything to the contrary in the preceding two sentences, in no event will a Lender be required to pay any amount to an Obligor pursuant to this section the payment of which would place such Lender in a less favorable net after - Tax position than such Lender 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 . The foregoing three sentences shall not be construed to require any Lender to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the Obligors or any other Person . (2) Notwithstanding anything to the contrary contained herein, neither the Agent nor any Lender shall be entitled to any additional payments or indemnification under Section 12 . 01 ( 1 ) : (A) with respect to withholding Taxes (a) to the extent that the obligation to withhold amounts existed on the date that the Agent or such Lender became a party to this Agreement (except to the extent such Lender is an assignee of any other Lender that was entitled, at the time the assignment of such other Lender became effective, to receive additional amounts or indemnification under Section 12 . 01 ( 1 ) ) or (b) that are directly attributable to the failure by such Lender to deliver the documentation required to be delivered pursuant to Section 12 . 01 ( 3 ), ( 4 ) or ( 5 ) ; or (B) otherwise arising as a direct result of any assignment or participation made by a Lender prior to an Event of Default pursuant to Section 13 . 02 or 13 . 03 . (3) Each Lender that is not a United States person as defined in Section 7701 (a)( 30 ) of the Code and that, at any of the following times, is entitled to an exemption from or reduction in United States withholding tax shall (a) on or prior to the date such Lender becomes a party to this Agreement, (b) on or prior to the date on which any such form or certification expires or becomes obsolete, (c) after the occurrence of any event requiring a change in the most recent form or certification previously delivered by it and (d) from time to time if requested by the Borrower or the Agent, provide the Agent and the Borrower with two completed originals of each of the following, as applicable : (i) Forms W - 8 ECI (claiming exemption for US withholding tax because the income is effectively connected with a U . S . trade or business), W - 8 BEN (through December 31 , 2014 ) or W - 8 BEN - E (claiming exemption from, or a reduction of, U . S . withholding tax under an income tax treaty) or any successor forms, (ii) in the case of such Lender claiming exemption under Sections 871 (h) or 881 (c) of the Code, Form W - 8 BEN (through December 31 , 2014 ) or W - 8 BEN - E (claiming exemption from U . S . withholding tax under the portfolio interest exemption) or any successor form and a certificate in form and substance acceptable to the Agent that such Lender is not (A) a “bank” within the meaning of Section 881 (c)( 3 )(A) of the Code, (B) a “ 10 percent shareholder” of the Borrower within the meaning of Section 881 (c)( 3 )(B) of the Code or (C) a “controlled foreign corporation” described in Section 881 (c)( 3 )(C) of the Code or (iii) any other applicable document prescribed by the US Internal Revenue Service certifying as to the entitlement of such Lender to such exemption form United States withholding tax or reduced rate with respect to all payments to be made to such Lender under the Loan Documents . ( 4 ) Each Lender that is a United States person as defined in Section 7701 (a)( 30 ) of the Code shall (A) on or prior to the date such Lender becomes a party to this Agreement, (B) on or prior to the date on which any such form or certification expires or becomes obsolete, (C) after the occurrence of any event requiring a change in the most recent form or certification previously delivered by it and (D) from time to time if requested by the Borrower or the Agent, provide the
30355430.16 - 83 - Agent and the Borrower with two completed originals of Form W - 9 (certifying that such Lender is entitled to an exemption for U.S. backup withholding tax) or any successor form. (5) If a payment made to a Lender under any Loan Document would be subject to U . S . federal withholding or Canadian 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 the Borrower and the Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the 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 the Borrower or the Agent as may be necessary for the Borrower and the Agent to comply with their obligations under FATCA, 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 clause ( 5 ), “FATCA” shall include any amendments made to FATCA after the date of this Agreement . (6) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Agent, at the time or times reasonably requested by the Borrower or the Agent, such properly completed and executed documentation reasonably requested by the Borrower or the 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 the Borrower or the Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Agent as will enable the Borrower or the Agent to determine whether or not such Lender is subject to the backup withholding or information reporting requirements . 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 the Borrower and the Agent of its legal inability to do so . Notwithstanding anything to the contrary in the preceding three sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 12 . 01 ( 3 ), ( 4 ) and ( 5 ) ) shall not be required if in a Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial positions of such Lender . (7) If an Obligor determines in good faith that a reasonable basis exists for contesting any Taxes for which payment has been made under this Section 12 . 01 , the Agent or relevant Lender, as applicable, shall cooperate with the Obligor in a reasonable challenge of such Taxes if so requested by the Obligor ; provided that (a) such Lender determines in its reasonable discretion that it would not be prejudiced by cooperating in such challenge, (b) the Obligor pays all related expenses of such Lender or the Agent and (c) the Obligor indemnifies such Lender or the Agent for any liabilities or other reasonable costs incurred by such Lender or the Agent, as applicable, in connection with such challenge . The preceding sentence shall not be construed to require the Agent or any Lender to make available its Tax returns (or any other information that it deems confidential) to the Obligors or any other Person .
30355430.16 Article 13 ARTICLE 13 SUCCESSORS AND ASSIGNS AND ADDITIONAL LENDERS 13.01 Successors and Assigns (1) The Loan Documents will be binding upon and enure to the benefit of the Agent, each Lender, the Borrower and their successors and assigns, except that the Borrower, other than as otherwise permitted hereunder, will not assign any rights or obligations with respect to this Agreement or any of the other Loan Documents without the prior written consent of all of the Lenders and none of the Lenders will assign any of their rights and obligations under this Agreement or any of the other Loan Documents except in accordance with this Agreement . (2) Except (a) from one Lender to another Lender, (b) from one Lender to one of its Affiliates or (c) in the case of the Specified Lender, from one Lender that satisfies the definition of the Specified Lender to another Person that is included in the definition of the Specified Lender, none of the rights and obligations of the Lenders or any of the other Loan Documents may be assigned in whole or in part except with the prior written consent of the Borrower, such consent not to be unreasonably withheld . Notwithstanding the foregoing, no consent of the Borrower is required in respect of any assignment by any one or more of the Lenders following the occurrence of a Pending Event of Default or an Event of Default and for so long as it is continuing . Subject to the foregoing, any assignment made by one or more of the Lenders in accordance herewith will be made in accordance with the provisions of Section 13 . 02 and the other terms of this Agreement . The Borrower hereby consents to the disclosure of any Information to any potential Lender or Participant provided that the potential Lender or Participant agrees in writing to keep the Information confidential as required pursuant to Section 14 . 01 hereof and to return such Information if it does not become a Lender or a Participant . (3) Each assignment will be of a uniform, and not a varying, percentage of all rights and obligations of the assignor(s) . Each such assignment will, unless an Event of Default exists, be in a principal amount of not less than the lesser of the entire amount of such Lender’s interest, and [Dollar Amount Redacted] ; provided, however, there will be no minimum assignment amount (i) following the occurrence of an Event of Default and for so long as it is continuing, or (ii) in respect of an assignment from one Lender to any other Lender or to any Affiliate of a Lender, and each Lender will be entitled to hold and assign interests of less than [Dollar Amount Redacted] if the total Advances held by such Lenders and Affiliates of such Lender are equal to or greater than [Dollar Amount Redacted] . The determination of the amount of Advances held by a Lender under this Sec tion 13 . 01 ( 3 ) will be made as of the effective date of the Assignment Agreement relating to any assignment . (4) Notwithstanding any provision in this Agreement to the contrary, each Lender agrees that it will not assign all or any portion of its rights under this Agreement without ten ( 10 ) Business Days prior notice to the Agent and without the prior written consent of the Agent . (5) A participation by a Lender of its interest (or a part thereof) hereunder or a payment by a Participant to a Lender as a result of the participation will not constitute a payment hereunder to the Lender or an Advance to the Borrower .
30355430.16 - 85 - 13.02 Assignments ( 1 ) Subject to Sec tion 13 . 01 and the other terms of this Agreement, the Lenders collectively or individually may assign to one or more assignees all or a portion of their respective rights and obligations under this Agreement ; provided that no such assignment shall be made to (A) the Borrower, any other Obligor, any Obligor’s Affiliates or Subsidiaries, (B) to any Non - Funding Lender or any of its Affiliates or Subsidiaries, or (C) to a natural Person . There will be no restrictions on assignments while an Event of Default exists . The parties to each such assignment will execute (together with the Agent) and deliver an assignment agreement in respect of the Loan Facility substantially in the form of Schedule D to this Agreement (each, an “ Assignment Agreement ”) to the Agent and the Agent will deliver such Assignment Agreement to the Borrower . In addition the Borrower will execute such other documentation as a Lender may reasonably request for the purpose of any assignment or participation . The assignor will pay a processing and recording fee of [Dollar Amount Redacted] to the Agent . After such execution, delivery, acknowledgement and recording in the Register (i) the assignee thereunder will be a party to this Agreement and, to the extent that rights and obligations hereunder have been assigned to it, have the rights and obligations of a Lender hereunder and (ii) the assigning Lender thereunder will, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment Agreement, relinquish its rights and be released from its obligations under this Agreement, other than obligations in respect of which it is then in default, and, in the case of an Assignment Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender will cease to be a party hereto ; provided that such assigning Lender shall continue to be entitled to the benefits of Section 12 . 01 with respect to facts and circumstances occurring prior to the effective date of such assignment . (2) The agreements of an assignee contained in an Assignment Agreement will benefit the assigning Lender thereunder, the other Lenders and the Agent in accordance with the terms of the Assignment Agreement . (3) The Agent will maintain at its address referred to herein a copy of each Assignment Agreement delivered to and acknowledged by it and a register for recording the names and addresses of the Lenders and the outstanding Advances made under the Loan Facility by each Lender from time to time (the “Register”) . The entries in the Register will be conclusive and binding for all purposes, absent manifest error . The Borrower, the Agent and each of the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement, and need not recognize any Person as a Lender unless it is recorded in the Register as a Lender . The Register will be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice . (4) Upon its receipt of an Assignment Agreement executed by an assigning Lender and an assignee and approved by the Borrower (other than while an Event of Default or a Pending Event of Default exists when no such approval will be necessary), the Agent will, if the Assignment Agreement has been completed and is in the required form with such immaterial changes as are acceptable to the Agent : (a) acknowledge the Assignment Agreement;
30355430.16 - 86 - (b) record the information contained therein in the Register; and (c) give prompt notice thereof to the Borrower and the other Lenders, and provide them with an updated version of Schedule A. 13.03 Participations (1) Each Lender may (subject to the provisions of Sec tion 13 . 01 ( 1 ) ) sell participations to one or more banks, financial institutions or other Persons (other than (x) any Borrower, any other Obligor, any Obligor’s Affiliates or Subsidiaries, or (y) to a natural Person) (each, a “ Participant ”) in or to all or a portion of its rights and obligations under this Agreement, but the Participant will not become a Lender and : (a) the Lender’s obligations under this Agreement will remain unchanged; (b) the Lender will remain solely responsible to the other parties hereto for the performance of such obligations ; (c) the Borrower, the Agent and the other Lenders will continue to deal solely and directly with the Lender in connection with the Lender’s rights and obligations under this Agreement ; and (d) no Participant will have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by any Person therefrom . (2) The Borrower agrees that each Participant shall be entitled to the benefits of Section 12.01 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 13.02 . ( 3 ) Each Lender that sells a participation shall, acting solely for this purpose as a non - fiduciary agent of the Borrower, maintain 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 Advances or other obligations under the Loan Documents (the “ Participant Register ”) ; provided that 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 Advances or its other obligations under any Loan 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 5 f . 000 - 0 (x) xx xxx Xxxxxx Xxxxxx Treasury Regulations . The entries in the Participant Register shall be conclusive absent manifest error, and such 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 notwithstanding any notice to the contrary . For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register .
30355430.16 Article 13 ARTICLE 14 GENERAL 14.01 Exchange and Confidentiality of Information ( 1 ) Each of the Lenders and the Agent acknowledges the confidential nature of the financial, operational and other information, reports and data provided and to be provided to them by the Borrower and each other Obligor pursuant to this Agreement (the “ Information ”) and agrees to hold the Information in confidence and will not discuss or disclose or allow access to, or transfer or transmit the Information to any person, provided however that : (a) each of the Lenders and the Agent may disclose all or any part of the Information if such disclosure is required by any applicable law or regulation, or by applicable order, policy or directive having the force of law, to the extent of such requirement, or is required in connection with any actual judicial, administrative or governmental proceeding, including, without limitation, proceedings initiated under or in respect of this Agreement, provided that in any such circumstance the Lenders and the Agent, as soon as reasonably practicable, will advise the Borrower of their obligation to disclose such Information in order to enable the Borrower, if it so chooses, to attempt to ensure that any such disclosure is made on a confidential basis ; (b) each of the Lenders and the Agent may disclose Information to each other, their respective Affiliates and investors and to any permitted assignees or Participants and to their respective counsel, agents, auditors, employees and advisors, provided that the Person to whom the disclosure is made is informed of the confidential nature of such information and instructed to keep such information confidential ; (c) each of the Lenders and the Agent may disclose and discuss the Information with credit officers of any potential permitted assignees for the purposes of assignment pursuant to Section 13 . 02 or any Participant for the purposes of a participation, provided that the Person to whom the disclosure is made is informed of the confidential nature of such information and instructed to keep such information confidential ; (d) each of the Lenders and the Agent may disclose all or any part of the Information on a confidential basis to any direct or indirect contractual counter party or prospective counter party to a swap agreement, credit linked note or similar transaction, or such contractual counter parties’ or prospective counter parties professional advisors, provided that the Person to whom the disclosure is made is informed of the confidential nature of such information and instructed to keep such information confidential ; (e) each of the Lenders and the Agent may disclose all or any part of the Information so as to enable such Lender or the Agent to initiate any lawsuit against any Obligor or to defend any lawsuit commenced by any Obligor in respect of the Loan Documents, the issues of which are directly or indirectly related to the Information,
30355430.16 - 88 - but only to the extent such disclosure is necessary or desirable to the initiation or defence of such lawsuit; (f) each of the Lenders and the Agent may disclose all or any part of the Information on a confidential basis, with the prior written consent of the Borrower, to any insurance or re - insurance company for the purpose of obtaining insurance in respect of the Loan Facility provided that the Person to whom the disclosure is made is informed of the confidential nature of such information and instructed to keep such information confidential ; and (g) each of the Lenders and the Agent may disclose Information to any person with the prior written consent of the Borrower. (2) information: Notwithstanding the foregoing, “ Information ” will not include any such (a) which is or becomes readily available to the public (other than by a breach hereof or by a breach of an obligation of confidentiality imposed on a permitted assignee or Participant or other person referred to in this Section) or which has been made readily available to the public by an Obligor ; (b) which the Agent or any Lender can show was, prior to receipt thereof from an Obligor, lawfully in the Agent’s or the Lender’s possession and not then subject to any obligation on its part to or for the benefit of such Obligor to maintain confidentiality ; or (c) which the Agent or any Lender received from a third party, prior to receipt thereof from an Obligor, which was not, to the knowledge of the Agent or such Lender after due enquiry, subject to a duty of confidentiality to or for the benefit of such Obligor at the time the Information was so received . 14.02 Nature of Obligations under this Agreement (1) The obligations of each Lender and of the Agent under this Agreement are several and not joint and several . The failure of any Lender to carry out its obligations hereunder will not relieve the other Lenders, the Agent or the Borrower of any of their respective obligations hereunder . (2) Neither the Agent nor any Lender will be responsible for the obligations of any other Lender hereunder . 14.03 Notice Any notice or communication to be given under this Agreement (other than telephone notice as specifically provided in this Agreement) may be effectively given by delivering (whether by internationally - recognized overnight courier or personal delivery) the same at the mailing addresses set out on the signature pages of this Agreement (or with respect to any assignee pursuant to Sec tion 13 . 02 , to the mailing address provided by such assignee to the Borrower and
30355430.16 - 89 - the Agent in connection with the applicable transfer or assignment to such assignee) or by electronic communication (including e - mail) to the parties at the facsimile numbers or email addresses set out on the signature pages of this Agreement (or with respect to any assignee pursuant to Sec tion 13 . 02 , to the facsimile number provided by such assignee to the Borrower and the Agent in connection with the applicable transfer or assignment to such assignee) . Any notice sent by electronic communication (including e - mail) will be deemed to have been received on transmission (and receipt of confirmation of transmission) if sent by any party to this Agreement before 4 : 00 p . m . (Toronto time) on a Business Day and, if not, on the next Business Day following transmission . Any party may from time to time notify the other parties, in accordance with the provisions of this Section, of any change of its mailing address, facsimile number or email address which after such notification, until changed by like notice, will be the mailing address, facsimile number or email address, as the case may be, of such party for all purposes of this Agreement . 4. Governing Law This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without prejudice to or limitation of any other rights or remedies available under the laws of any jurisdiction where Property or assets of the Borrower may be found . 5. Judgment Currency (1) If for the purpose of obtaining or enforcing judgment against any Obligor in any court in any jurisdiction, it becomes necessary to convert into any other currency (such other currency being hereinafter in this Sec tion 14 . 05 referred to as the “ Judgment Currency ”) an amount due in Canadian Dollars or United States Dollars under this Agreement, the conversion will be made at the rate of exchange prevailing on the Business Day immediately preceding : (a) the date of actual payment of the amount due, in the case of any proceeding in the courts of the Province of Ontario or in the courts of any other jurisdiction that will give effect to such conversion being made on such date ; or (b) the date on which the judgment is given, in the case of any proceeding in the courts of any other jurisdiction (the date as of which such conversion is made pursuant to this Sec tion 14 . 05 ( 1 )(b) being hereinafter in this Section 14 . 05 referred to as the “ Judgment Conversion Date ”) . ( 2 ) If, in the case of any proceeding in the court of any jurisdiction referred to in Sec tion 14 . 05 ( 1 )(b), there is a change in the rate of exchange prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable Obligor will pay such additional amount (if any, but in any event not a lesser amount) as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the rate of exchange prevailing on the date of payment, will produce the amount of Canadian Dollars or United States Dollars, as the case may be, which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial order at the rate of exchange prevailing on the Judgment Conversion Date .
30355430.16 - 90 - (3) Any amount due from an Obligor under the provisions of Sec tion 14 . 05 ( 2 ) will be due as a separate debt and will not be affected by judgment being obtained for any other amounts due under or in respect of this Agreement . (4) The term “rate of exchange” in this Section 14 . 05 means the spot rate of exchange based on Canadian interbank transactions in Canadian Dollars or United States Dollars, as the case may be, in the Judgment Currency published or quoted by the Bank of Canada at the close of business for the Business Day in question (or, if such conversion is to be made before close of business on such Business Day, then at close of business on the immediately preceding Business Day), or if such rate is not so published or quoted by the Bank of Canada, such term will mean the Equivalent Amount of the Judgment Currency . 6. Benefit of the Agreement This Agreement will enure to the benefit of and be binding upon the Borrower, the Lenders, the Agent and their respective permitted successors and permitted assigns . 7. Severability Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will not invalidate the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction . 8. Whole Agreement From the Closing Date, this Agreement supersedes all prior agreements, undertakings, declarations, commitments, representations, written or oral, in respect thereof . 9. Further Assurances The Borrower, each Lender and the Agent will promptly cure any default by it in the execution and delivery of this Agreement, the Loan Documents or any of the agreements provided for hereunder to which it is a party . The Borrower, at its expense, will promptly execute and deliver to the Agent, upon request by the Agent, all such other and further documents, agreements, opinions, certificates and instruments in compliance with, or accomplishment of the covenants and agreements of the Borrower hereunder or more fully to state the obligations of the Borrower as set forth herein or to make any recording, file any notice or obtain any consent, all as may be reasonably necessary or appropriate in connection therewith . 14.10 Waiver of Jury Trial THE BORROWER HEREBY KNOWINGLY VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY AGENT, ANY LENDER OR ANY OF THE
30355430.16 - 91 - BORROWER . THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER CREDIT DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH OTHER CREDIT DOCUMENT . 14.11 Consent to Jurisdiction (1) The Borrower irrevocably submits to the non - exclusive jurisdiction of the courts of the Province of Ontario and hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such court . The Borrower hereby irrevocably waives, to the fullest extent it may effectively do so, the defence of an inconvenient forum to the maintenance of such action or proceeding . (2) The Borrower hereby irrevocably consents to the service of any and all process in such action or proceeding by the delivery of such process to the Borrower at its address provided in accordance with Sec tion 14 . 03 . 12. Time of the Essence Time will be of the essence of this Agreement. 13. Electronic Execution and Delivery Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic means shall be effective as delivery of an original counterpart of this Agreement . The words “execution”, “signed”, “signature”, and words of like import in this Agreement shall be deemed to include electronic signature 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 . 14. Counterparts This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which taken together will be deemed to constitute one and the same instrument, and it will not be necessary in making proof of this Agreement to produce or account for more than one such counterpart . 15. [Reserved] 16. Term of Agreement This Agreement shall remain in full force and effect until the payment and performance in full of all of the Obligations, other than those Obligations of the Obligors to indemnify the Agent and the Lenders, including, without limitation, the indemnities set forth in
30355430.16 - 92 - Sections 4.02, 11.11 and Article 10 and Article 12, which shall survive and continue to be in full force and effect. 17. USA Patriot Act Each Lender that is subject to the requirements of the Patriot Act hereby notifies the Borrower that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender to identify the Borrower in accordance with the Patriot Act . 18. Anti - Money Laundering Legislation (1) The Borrower acknowledges that, pursuant to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and other applicable anti - money laundering, anti - terrorist financing, government sanction and “know your client” laws (collectively, including any guidelines or orders thereunder, “ AML Legislation ”), the Lenders and the Agent may be required to obtain, verify and record information regarding the Borrower, the Guarantors, their directors, authorized signing officers, direct or indirect shareholders or other Persons in control of the Borrower and the Guarantors, and the transactions contemplated hereby . The Borrower shall promptly provide all such information, including supporting documentation and other evidence, as may be reasonably requested by any Lender or the Agent, or any prospective assignee or participant of a Lender or the Agent, in order to comply with any applicable AML Legislation, whether now or hereafter in existence . (2) Each of the Lenders agrees that the Agent has no obligation to ascertain the identity of the Borrower or the Guarantors or any authorized signatories of the Borrower or a Guarantor on behalf of any Lender, or to confirm the completeness or accuracy of any information it obtains from the Borrower or any Guarantor or any such authorized signatory in doing so . 19. Public Disclosure Each Obligor agrees that neither it nor any of its Affiliates shall now or in the future issue any press release or other public disclosure using the name of any Agent, any Lender or any of their respective Affiliates or referring to this Agreement or any other Loan Document without the prior written consent of such Agent or such Lender, except to the extent that such Obligor or such Affiliate is required to do so under applicable law (in which event such Obligor or such Affiliate shall consult with such Agent or such Lender before issuing such press release or other public disclosure) . Each Obligor hereby authorizes each Agent and each Lender, after consultation with the Borrower, to advertise the closing of the transactions contemplated by this Agreement, and to make appropriate announcements of the financial arrangements entered into among the parties hereto, as such Agent or such Lender shall deem appropriate, including, without limitation, on a home page or similar place for dissemination of information on the Internet or worldwide web, or in announcements commonly known as tombstones, in such trade publications, business journals, newspapers of general circulation and to such selected parties as such Agent or such Lender shall deem appropriate . Notwithstanding any of the foregoing, this Agreement may be filed with the SEDAR or XXXXX in accordance with any Requirements of Law .
30355430.16 - 93 - 20. Force Majeure The Agent shall not be liable to the others, or held in breach of this Agreement, if prevented, hindered, or delayed in the performance or observance of any provision contained herein by reason of act of God, riots, terrorism, acts of war, epidemics, governmental action or judicial order, earthquakes, or any other similar causes (including, but not limited to, mechanical, electronic or communication interruptions, disruptions or failures). Performance times applicable to the Agent under this Agreement shall be extended for a period of time equivalent to the time lost because of any delay that is excusable under this Section. 21. Anti - Money Laundering The Agent shall retain the right not to act and shall not be liable for refusing to act if, due to a lack of information or for any other reason whatsoever, the Agent, in its sole judgment, acting reasonably, determines that such act might cause it to be in noncompliance with any applicable anti - money laundering, anti - terrorist or economic sanctions legislation, regulation or guideline. Further, should the Agent, in its sole judgment, acting reasonably, determine at any time that its acting under the Loan Documents has resulted in its being in non - compliance with any applicable anti - money laundering, anti - terrorist or economic sanctions legislation, regulation or guideline, then it shall have the right to resign on ten days’ prior written notice sent to the Borrower provided that (i) the Agent’s written notice shall describe the circumstances of such non - compliance; and (ii) if such circumstances are rectified to the Agent’s satisfaction within such 10 - day period, then such resignation shall not be effective. 22. Privacy The parties hereto acknowledge that the Agent may, in the course of providing services hereunder, collect or receive financial and other personal information about such parties and/or their representatives, as individuals, or about other individuals related to the subject matter hereof, and use such information for the following purposes: a) to provide the services required under this agreement and other services that may be requested from time to time; b) to help the Agent manage its servicing relationships with such individuals; c) to meet the Agent’s legal and regulatory requirements; and d) if Social Insurance Numbers are collected by the Agent, to perform tax reporting and to assist in verification of an individual’s identity for security purposes. Each party acknowledges and agrees that the Agent may receive, collect, use and disclose personal information provided to it or acquired by it in the course of this agreement for the purposes described above and, generally, in the manner and on the terms described in its Privacy Code, which it shall make available on its website, xxx.xxxxxxxxxxxxx.xxx, or upon request, including revisions thereto. The Agent may transfer personal information to other companies in or outside of Canada that provide data processing and storage or other support in order to
30355430.16 - 94 - facilitate the services it provides. Further, each party hereto agrees that it shall not provide or cause to be provided to the Agent any personal information relating to an individual who is not a party to this agreement unless that party has assured itself that such individual understands and has consented to the aforementioned terms, uses and disclosures. 14.23 Third Party Interests Each party to this Agreement hereby represents to the Agent that any account to be opened by, or interest to be held by the Agent in connection with this Agreement, for or to the credit of such party, either (i) is not intended to be used by or on behalf of any third party; or (ii) is intended to be used by or on behalf of a third party, in which case such party hereto agrees to complete and execute forthwith a declaration in the Agent’s prescribed form as to the particulars of such party. [SIGNATURE PAGES FOLLOW]
[SIGNATURE PAGE TO FIRST AMENDED AND RESTATED LOAN AGREEMENT] IN WITNESS WHEREOF the parties hereto have executed this Agreement. BORROWER: Address: JUST ENERGY GROUP INC. 000 Xxxx Xxxxxx, Xxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxx X0X 0X0 Attention: General Counsel Email: xxxxx@xxxxxxxxxx.xxx
[SIGNATURE PAGE TO FIRST AMENDED AND RESTATED LOAN AGREEMENT] S - 2 AGENT: Address : COMPUTERSHARE TRUST COMPANY OF CANADA, as Agent Attention: Facsimile: Email:
[SIGNATURE PAGE TO FIRST AMENDED AND RESTATED LOAN AGREEMENT] LENDERS: Address : SAGARD CREDIT PARTNERS, LP, by its general partner, Sagard Credit Partners GP, Inc., as a Lender Attention: Email:
[SIGNATURE PAGE TO FIRST AMENDED AND RESTATED LOAN AGREEMENT] - 2 - Address: [Redacted], as a Lender By: Na m e: Title: Attention: By: Email: Na m e: Title: Address: [Redacted], as a Lender By: Na m e: Title: Attention: By: Email: Na m e: Title: Address: [Redacted], as a Lender By: Na m e: Title: Attention: By: Email: Na m e: Title: Address: [Redacted], as a Lender By: Na m e: Title: Attention: By: Email: Na m e: Title:
[SIGNATURE PAGE TO FIRST AMENDED AND RESTATED LOAN AGREEMENT] - 3 -
30400184.6 SCHEDULE A LENDERS AND ADVANCES Lender Advances SAGARD CREDIT PARTNERS, LP [Dollar Amount Redacted] [Name Redacted] [Dollar Amount Redacted] [Name Redacted] [Dollar Amount Redacted] [Name Redacted] [Dollar Amount Redacted] [Name Redacted] [Dollar Amount Redacted] [Name Redacted] [Dollar Amount Redacted] [Name Redacted] [Dollar Amount Redacted] [Name Redacted] [Dollar Amount Redacted] [Name Redacted] [Dollar Amount Redacted] [Name Redacted] [Dollar Amount Redacted] [Name Redacted] [Dollar Amount Redacted] [Name Redacted] [Dollar Amount Redacted] [Name Redacted] [Dollar Amount Redacted] [Name Redacted] [Dollar Amount Redacted] TOTAL ADVANCES US$205,899,999.94
30400184.6 SCHEDULE B INTENTIONALLY DELETED
SCHEDULE C REPAYMENT NOTICE TO: Computershare Trust Company of Canada, as administrative agent (the “ Agent ”) RE: First amended and restated loan agreement dated as of September 28, 2020 (together with all amendments, modifications, supplements, restatements, if any, from time to time thereafter made thereto, the “ Loan Agreement ”) among Just Energy Group Inc., as borrower (the “ Borrower ”), the Agent and each other person party thereto from time to time as lenders (the “ Lenders ”) DATE: [ ] All defined terms set forth, but not otherwise defined, in this notice shall have the respective meanings set forth in the Loan Agreement. The Borrower hereby gives irrevocable notice of its intention to make a voluntary repayment or prepayment of [all/a portion of] the Advances pursuant to Section 5 . 02 of the Loan Agreement as follows : 1. Total amount of repayment or prepayment: US$ 1 2. Prepayment Fee (if applicable): US$ 3. Date of repayment: . 2 [Signature Page Follows] 1 Minimum amount of [Dollar Amount Redacted] , subject to the concurrent payment to the Lender of the Prepayment Fee, together with all accrued and unpaid interest thereon. If such prepayment would result in the aggregate principal amount of the Advances outstanding being less than [Dollar Amount Redacted] , such prepayment shall be required to be increased to the amount that is the then outstanding principal balance of the Advances, together with all accrued and unpaid interest thereon. 2 At least 30 days prior written notice of the repayment 30400184.6
30400184.6 Dated as of the first date written above. JUST ENERGY GROUP INC. By: Authorized Signatory
SCHEDULE D ASSIGNMENT AGREEMENT TO: Computershare Trust Company of Canada, as administrative agent (the “ Agent ”) RE: First amended and restated loan agreement dated as of September 28, 2020 (together with all amendments, modifications, supplements, restatements, if any, from time to time thereafter made thereto, the “ Loan Agreement ”) among Just Energy Group Inc., as borrower (the “ Borrower ”), the Agent and each other person party thereto from time to time as lenders (the “ Lenders ”) DATE: [ ] 1 All defined terms set forth, but not otherwise defined, in this Assignment Agreement shall have the respective meanings set forth in the Loan Agreement, unless the context requires otherwise. 1. [name of new lender] (the “ Assignee ”) acknowledges that its proper officers have received and reviewed a copy of the Loan Documents and further acknowledges the provisions of the Loan Documents. 2. The Assignee desires to [become] [increase its Commitment as] a Lender under the Loan Agreement. [Name of selling Lender] (the “ Assignor ”) has agreed to and does hereby sell, assign and transfer to the Assignee US$ of the Commitment of the Assignor (the “ Transferred Commitment ”) and, accordingly, the Assignee has agreed to execute this Assignment Agreement. 3. The Assignee, by its execution and delivery of this Assignment Agreement, agrees that [from and after the date hereof it will] [it continues to] be a Lender under the Loan Agreement and agrees to be subject to, bound by and to perform all of the terms, conditions and covenants of the Loan Agreement applicable to a Lender [but its obligation to make Advances will be limited to the Transferred Commitment] . 4. The Assignee hereby assumes, without recourse to the Assignor, all liabilities and obligations of the Assignor as Lender under the Loan Agreement to the extent of the Transferred Commitment as provided for herein and the Assignee hereby releases and discharges the Assignor from such obligations and liabilities to the same extent. Nothing herein will release or be deemed to release any claim, demand, action or cause of action which the Borrower may have against the Assignor arising out of or in connection with a breach or default by the Assignor of any provision of the Loan Agreement and the other Loan Documents. 5. The Assignee acknowledges and confirms that it has not relied upon the Assignor or the Agent or any of their respective directors, officers, employees or agents, for, and none of the foregoing have made any representation or warranty whatsoever as to, the due 1 10 Business Days prior notice to be provided to the Agent Error! Unknown document property name. 30400184.6
Error! Unknown document property name. 30400184.6 execution, legality, effectiveness, validity or enforceability of any of the Loan Documents or any other documentation or information delivered by the Assignor or the Agent to the Assignee in connection therewith or for the performance thereof by any party thereto or of the financial condition of the Borrower or any Guarantor. All representations, warranties and conditions express or implied by law or otherwise are hereby excluded. 6. The Assignee represents and warrants that it deals at arm’s length within the meaning of the Income Tax Act (Canada) with the Borrower and that it has itself been, and will continue to be, solely responsible for making its own independent appraisal of, and investigation into, the financial condition, creditworthiness, affairs, status and nature of the Borrower or any Guarantor and has not relied and will not hereafter rely on the Assignor or the Agent or any of their respective directors, officers, employees or agents to appraise or keep under review on its behalf the financial condition, creditworthiness, affairs, status or nature of the Borrower or any Guarantor. [NTD: Following the occurrence and continuance of an Event of Default or of a Pending Event of Default, an Assignee may be a Person that does not deal at arm’s length with the Borrower.] 7. Each of the Assignor and the Assignee represents and warrants to the other, and to the Agent and the Lenders that it has the capacity and power to enter into this Assignment Agreement in accordance with the terms hereof and to perform its obligations arising therefrom, and all actions required to authorize the execution and delivery hereof and the performance of such obligations have been duly taken. 8. This Assignment Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. 9. Notices will be given to the Assignee in the manner provided for in the Loan Agreement as follows: Attention: Telecopier: [specify lending office of the Assignee if different from above] 10. This Assignment Agreement will be binding upon the Assignee and its successors and permitted assigns. 11. This Assignment Agreement may be executed in counterparts (including by way of facsimile or electronic transmission) and all of such counterparts taken together will be deemed to constitute one and the same instrument. [Name of Assignor]
Error! Unknown document property name. 30400184.6 By: Name: Title: The Assignor hereby acknowledges the above Assignment Agreement and agrees that its Commitment is reduced by an amount equal to the Transferred Commitment. [Name of Assignee] By: Name: Title: Just Energy Group Inc. hereby acknowledges the above Assignment Agreement and consent to the Assignee [becoming] [increasing its Commitment as] a Lender under the Loan Agreement to the extent of the Transferred Commitment. JUST ENERGY GROUP INC. By: Authorized Signatory [NTD: Borrower’s consent is not required during the continuance of an Event of Default or a Pending Event of Default.] Computershare Trust Company of Canada, as administrative agent hereby acknowledges the above Assignment Agreement [and receipt of [Dollar Amount Redacted] from the Assignor] and consents to the Assignee [becoming] [increasing its Commitment as] a Lender under the Loan Agreement to the extent of the Transferred Commitment. COMPUTERSHARE TRUST COMPANY OF CANADA, as Administrative Agent By: Name: Title: By: Name: Title:
Error! Unknown document property name. 30400184.6 SCHEDULE E LIST OF LDC AGREEMENTS [REDACTED]
Error! Unknown document property name. 30400184.6 SCHEDULE F FORM OF OPERATING BUDGET [REDACTED]
30400184.6 SCHEDULE G GUARANTORS AS OF THE CLOSING DATE [REDACTED]
30400184.6 Error! Unknown document property name. SCHEDULE H FORM OF SUBORDINATION AGREEMENT - see attached -
30400184.6 SUBORDINATION AND POSTPONEMENT AGREEMENT THIS SUBORDINATION AND POSTPONEMENT AGREEMENT (as amended, modified, supplemented, restated or replaced from time to time, this “ Agreement ”) is made as of [ ], 20[ ] between (A) Computershare Trust Company of Canada (“ CPU ”), as administrative agent (together with any successor(s) thereto in such capacity, the “ Agent ”) for and on behalf of itself and the Lenders (as defined below) under the Loan Agreement (as defined below) or any affiliate of a Lender, (B) [name of Restricted Subsidiary] , as debtor (together with its successors, the “ Debtor ”); and (C) [name of Unrestricted Subsidiary] (together with its successors, the “ Subordinate Lender ”). WHEREAS pursuant to a first amended and restated loan agreement dated as of September 28, 2020 (as such agreement may be amended, restated, supplemented, replaced or otherwise modified from time to time, the “ Loan Agreement ”), among Just Energy Group Inc., as borrower (the “ Borrower ”), the Agent and each of the financial institutions who from time to time become lenders thereunder (collectively, the “ Lenders ”), the Lenders have agreed to extend certain loans to the Borrower; AND WHEREAS the Debtor has entered into a guarantee dated as of September 12, 2018 (as amended, restated, supplemented, replaced or otherwise modified from time to time, the “ Guarantee ”) in favour of Agent pursuant to which the Debtor has guaranteed the obligations of the Borrower to any Lender or any affiliate of a Lender; AND WHEREAS the Subordinate Lender has agreed to unconditionally and irrevocably subordinate and postpone the Subordinate Debt to the indefeasible repayment in full of the Senior Debt pursuant to this Agreement; AND WHEREAS the Subordinate Lender has duly authorized the execution, delivery and performance of this Agreement; NOW THEREFORE for good and valuable consideration, the receipt and sufficiency of which is hereby irrevocably acknowledged, the parties hereto make the following covenants, acknowledgments and agreements. 1. Defined Terms Unless otherwise defined herein or the context otherwise requires, capitalized terms used herein which are not otherwise defined herein shall have the meanings provided in the Loan Agreement . References in this Agreement to any agreement shall be deemed to be a reference to such agreement as amended, restated, supplemented, substituted, replaced or modified from time to time . In this Agreement, unless something in the subject matter or context is inconsistent therewith : “ Agent ” has the meaning ascribed thereto in the recitals ; “ Agreement ” has the meaning ascribed thereto in the recitals ; “ Applicable Law ” means, in respect of any Person, property, transaction, event or other matter, as applicable, all domestic and foreign laws, rules, statutes, regulations, treaties, orders, judgments and decrees and, to the extent they have the force of law, all official directives,
30400184.6 rules, guidelines, orders, policies and other requirements of any Governmental Authority and will also include any interpretation of the Law or any part of the Law by any Person having jurisdiction over it or charged with its administration or interpretation in each case having the force of law relating or applicable to such Person, property, transaction, event or other matter ; “ Borrower ” has the meaning ascribed thereto in the recitals ; “ Debtor ” has the meaning ascribed thereto in the recitals ; “ Governmental Authority ” means the government of any nation, province, territory, municipality, state or other political subdivision of any nation, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled (through stock or capital ownership or otherwise) by any of the foregoing ; “ Guarantee ” has the meaning ascribed thereto in the recitals ; “ Lenders ” has the meaning ascribed thereto in the recitals and “Lender” means any one of them ; “ Person ” means an individual, a partnership, a corporation, a trust, an unincorporated organization, a government or any governmental department or agency or any other entity whatsoever and the heirs, executors, administrators or other legal representatives of an individual ; “ Senior Creditors ” means the Agent and the Lenders ; “ Senior Debt ” has the meaning ascribed to “Obligations” in the Loan Agreement ; “ Subordinate Debt ” means all indebtedness, liabilities and obligations, of any nature or kind, present or future, direct or indirect, absolute or contingent, whether as primary debtor or surety, matured or not and at any time owing by the Debtor to the Subordinate Lender ; and “ Subordinate Lender ” has the meaning ascribed thereto in the recitals . 2. Subordination and Postponement The Subordinate Lender hereby covenants and agrees that all Subordinate Debt is hereby unconditionally and irrevocably deferred, postponed and subordinated in all respects to the prior indefeasible repayment in full by the Debtor of all the Senior Debt . (a) Without limiting the generality of the foregoing, the deferrment, postponement and subordination of the Subordinate Debt contained herein shall be effective notwithstanding : (i) the dates of any advances pursuant to the Loan Agreement;
30400184.6 ( ii) the time or sequence of giving any notice or the making of any demand in respect of the Senior Debt; ( iii) the taking of any collection, enforcement or realization proceedings pursuant to the Subordinate Debt; ( iv) the date of obtaining any judgment or the order of any bankruptcy court or any court administering bankruptcy, insolvency, receivership or similar proceedings as to the entitlement of either the Senior Creditors or the Subordinate Lender to any money or property of the Debtor ; (v) the giving or failing to give any notice, or the sequence of giving any notice to the Debtor; ( vi) the failure to exercise any power or remedy reserved to the Agent or any of the Senior Creditors under the Loan Agreement or any other Loan Document ; and (vii) the rules of priority established under Applicable Law. Repayment of Subordinate Debt Except for payments which are not prohibited by and which are made in accordance with the Loan Agreement, until the Senior Debt has been indefeasibly paid in full and the Loan Agreement has been terminated, no direct or indirect, distribution, payment (including, but not limited to, principal, interest and fees), prepayment or repayment on account of, or other distribution in respect of, the Subordinate Debt shall be made by, or on behalf of, the Debtor or received by, or on behalf of, the Subordinate Lender . 3. 4. Restriction on Enforcement The Subordinate Lender shall not take any steps whatsoever to enforce payment of the Subordinate Debt (including, without limitation, demand for payment, rights of set - off, commencement of bankruptcy proceedings, foreclosure, sale, power of sale, taking of possession, appointing or making application to a court for an order appointing an agent or a receiver or receiver - manager) unless, prior to the taking of any such steps, the Senior Debt has been indefeasibly paid in full . 5. Subordinate Security The Subordinate Lender acknowledges that it has not been granted any security from the Debtor to secure the Subordinate Debt . The Subordinate Lender covenants in favour of the Senior Creditors that during the term of this Agreement it will not take from the Debtor security for the payment of or performance of obligations in respect of the Subordinate Debt . The Debtor covenants in favour of the Senior Creditors that during the term of this Agreement, it will not deliver to the Subordinate Lender any security for the payment of or performance of obligations in respect of the Subordinate Debt . 6. No Objection The Subordinate Lender shall not take, or cause or permit any other Person to take on their behalf, any steps whatsoever whereby the [priority or] validity of any of the Senior Debt or the rights of the Agent or any other Senior Creditor under the Loan
30400184.6 Agreement or any other Loan Document could be delayed, defeated, impaired or diminished. 7. [Reserved.] 8. Liquidation, Dissolution, Bankruptcy, etc. (a) In the event of distribution, division or application, partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part of the assets of the Debtor, or the proceeds thereof, to creditors in connection with the bankruptcy, liquidation or winding - up of the Debtor or in connection with any composition with creditors or scheme of arrangement to which the Debtor is a party, the Senior Creditors shall be entitled to receive (i) payment in full (including interest accruing to the date of receipt of such payment at the applicable rate whether or not allowed as a claim in any such proceeding) of the Senior Debt before the Subordinate Lender is entitled to receive any direct or indirect payment or distribution of any cash or other assets of the Debtor on account of the Subordinate Debt, and (ii) any payment or distribution of any kind or character, whether in cash or other assets, which shall be payable or deliverable upon or with respect to the Subordinate Debt for application in payment of such Senior Debt (to the extent necessary to pay all Senior Debt in full after giving effect to any substantially concurrent payment or distribution to the Senior Creditors in respect of the Senior Debt) . To the extent any payment of Senior Debt (whether by or on behalf of the Subordinate Lender, as enforcement of any right of set - off or otherwise) is declared to be a fraudulent preference or otherwise voidable, set aside or required to be paid to a trustee, receiver or other similar Person under any bankruptcy, insolvency, receivership or similar law, then if such payment is recoverable by, or paid over to, such trustee, receiver or other Person, the Senior Debt or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred . (b) In order to enable the Senior Creditors to enforce their rights hereunder in any of the actions or proceedings described in this Section 8 , the Agent is hereby irrevocably authorized and empowered, in its discretion, to make and present for and on behalf of the Subordinate Lender, such proofs of claims or other motions or pleadings and to demand, receive and collect any and all dividends or other payments or disbursements made thereon in whatever form the same may be paid or issued and to apply the same on account of the Senior Debt . The Subordinate Lender hereby covenants and agrees to exercise any voting right or other privilege that it may have from time to time in any of the actions or proceedings described in this Section 8 in favour of any plan, proposal, compromise, arrangement or similar transaction so as to give effect to : (i) the right of the Senior Creditors to receive payments and distributions otherwise payable or deliverable upon or with respect to the Subordinate Debt so long as any Senior Debt remains outstanding ; or (ii) the obligation of the Subordinate Lender to receive, hold in trust, and pay over to the Senior Creditors certain payments and distributions as contemplated by Section 9 .
30400184.6 (c) In the event of any dissolution, winding up, reorganization, bankruptcy, insolvency, receivership or other similar proceedings relating to the Debtor, all rights of the Subordinate Lender to exercise the voting and other consensual rights pertaining to Subordinate Debt and the securities it owns or holds in the capital of the Debtor of which it would otherwise be entitled to exercise shall, at the option of the Agent, become vested in the Agent, for and on behalf of the Senior Creditors, and the Agent shall thereupon have the right, but not the obligation, to exercise such voting and other consensual rights . For such purpose, the Subordinate Lender hereby irrevocably appoints the Agent or any officer of the Agent as its attorney in fact, with full power and authority in the place and stead of the Subordinate Lender and in the name of the Subordinate Lender or otherwise, from time to time in the Agent’s absolute discretion and to the fullest extent permitted by law, to take any action and to execute any instruments which the Agent may deem reasonably necessary or advisable to accomplish the purposes of this Agreement, and the Subordinate Lender hereby ratifies all such actions that such attorney shall lawfully do or cause to be done by virtue hereof . This power of attorney is a power coupled with an assignment of the Subordinate Lender’s interest in any payments or distributions in respect of the Subordinate Debt and shall be irrevocable . 9. Payments Received by the Subordinate Lender Prior to the indefeasible payment in full of the Senior Debt, if the Subordinate Lender or any Person on its behalf shall receive any payment (other than such payments expressly permitted by Section 3 hereof) from a distribution of assets of the Debtor on account of any Subordinate Debt, then the Subordinate Lender shall, and shall cause such other Person to, receive and hold such payment or distribution in trust for the benefit of the Senior Creditors and promptly pay the same over or deliver to the Agent in precisely the form received by the Subordinate Lender or such other Person on their behalf (except for any necessary endorsement or assignment) and such payment or distribution shall be applied by the Agent to the repayment or payment of the Senior Debt . 10. [Reserved] 11. Representations and Warranties Each of the Subordinate Lenders hereby represents and warrants to the Senior Creditors in respect of itself that: (a) it, or to the extent the Subordinate Lender is a limited partnership, its general partner, or to the extent the Subordinate Lender is a trust, its trustee or administrative agent, has all necessary power and authority to enter into this Agreement ; and (b) this Agreement constitutes a valid and legally binding obligation, enforceable against it in accordance with its terms, subject however, to limitations with respect to enforcement imposed by law in connection with bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally . 12. No Waiver of Subordination Provisions No right of the Agent to enforce the subordination as provided in this Agreement shall at any time in any way be prejudiced or impaired by
30400184.6 any act or failure to act on the part of the Subordinate Lender or by any act or failure to act by the Senior Creditors or any agent of or trustee for the Senior Creditors, or by any non - compliance by the Debtor with any of the agreements or instruments relating to the Subordinate Debt or the Senior Debt, regardless of any knowledge thereof which the Senior Creditors may have or be otherwise charged with . Without limitation of the foregoing, but in no way relieving the Subordinate Lender of its obligations under this Agreement, the Senior Creditors may, at any time and from time to time, without the consent of or notice to the Subordinate Lender and without impairing or releasing the subordination and other benefits provided in this Agreement or the obligations hereunder of the Subordinate Lender to the Senior Creditors, do any one or more of the following : (a) amend, supplement, modify, restate or replace the Loan Agreement or any other Loan Document ; (b) settle or compromise any Senior Debt or any other liability of the Debtor or any liability incurred directly or indirectly in respect thereof, and apply any sums by whomsoever paid and however realized to the Senior Debt in any manner or order ; (c) exercise or delay in or refrain from exercising any right or remedy against the Debtor and elect any remedy and otherwise deal freely with the Debtor ; and (d) change, whether by addition, substitution, renewal, succession, assignment, grant of participation, transfer or otherwise, any of the Senior Creditors (including the Agent) . No loss of or in respect of any of the Senior Debt or otherwise or any carelessness or neglect by the Senior Creditors in asserting their rights or any other thing whatsoever, including without limitation the loss by operation of law of any right of the Senior Creditors against the Debtor, shall in any way impair or release the subordination and other benefits provided by this Agreement . 13 . Waivers of the Subordinate Lender The Subordinate Lender agrees that : (i) the Senior Creditors have made no representations or warranties with respect to the due execution, legality, validity, completeness or enforceability of any agreement or instrument relating to the Loan Agreement or any other Loan Document ; (ii) each Senior Creditor shall be entitled to manage and supervise its loans and other financial accommodations to the Borrower and the Debtor in accordance with Applicable Law and its usual practices, modified from time to time as it deems appropriate under the circumstances, or otherwise, without regard to the existence of any rights that the Subordinate Lender may now or hereafter have in or to any of the assets of the Debtor ; and (iii) each Senior Creditor shall have no liability to the Subordinate Lenders for, and, to the extent permitted by Applicable Law, the Subordinate Lender hereby waives any claims which the Subordinate Lender may now or hereafter have against the Senior Creditors out of, any and all actions which the Senior Creditors take or omit to take (including, without limitation, actions with respect to the occurrence of any default under any agreement or instrument relating to the Senior Debt and actions with respect to the collection of any claims or all or any part of the Senior Debt from any account debtor, guarantor or any other Person) with respect to the Senior Debt
30400184.6 and any agreement or instrument related thereto or with respect to the collection of the Senior Debt or the valuation, use, protection or release of any assets securing payment of the Senior Debt . 14. No Release This Agreement shall remain in full force and effect without regard to, and the obligations of the Subordinate Lender hereunder shall not be released or otherwise affected or impaired by : (a) any exercise or non - exercise by the Senior Creditors of any right, remedy, power or privilege in the Loan Agreement or any other Loan Document ; (b) any waiver, consent, extension, indulgence or other action, inaction or omission by the Senior Creditors under or in respect of this Agreement, the Loan Agreement or any other Loan Document ; (c) any default by any of the Debtor under, any limitation on the liability of the Debtor on the method or terms of payment under, or any irregularity or other defect in, the Loan Agreement or any other Loan Document ; (d) the lack of authority or revocation hereof by any other party; (e) the failure of the Senior Creditors to file or enforce a claim of any kind; (f) any defence based upon an election of remedies by the Senior Creditors which destroys or otherwise impairs the subrogation rights of the Subordinate Lender or the right of the Subordinate Lender to proceed against the Debtor for reimbursement, or both ; (g) any merger, consolidation or amalgamation of any of the Subordinate Lender or the Debtor into or with any other Person ; or (h) any insolvency, bankruptcy, liquidation, reorganization, arrangement, composition, winding - up, dissolution or similar proceeding involving or affecting the Subordinate Lender or the Debtor . 15. No Rights to Debtor Nothing in this Agreement shall create any rights in favour of, or obligations to the Debtor and the covenants and agreements of the Senior Creditors and the Subordinate Lender shall not be enforceable by the Debtor . 16. Further Assurances The parties hereto shall forthwith, and from time to time, execute and deliver all deeds, documents and things which may be necessary or advisable, in the reasonable opinion of the Agent and its counsel, to give full effect to the postponement and subordination of the rights and remedies of the Subordinate Lender in respect to the Subordinate Debt to the rights and remedies of the Senior Creditors in respect to the Senior Debt, all in accordance with the intent of this Agreement . 17. Successors and Assigns
30400184.6 (a) This Agreement is binding upon the Senior Creditors and the Subordinate Lender and its successors and assigns and, subject to subsection 17 (b) below, shall enure to the benefit of the Senior Creditors and the Subordinate Lender, and their respective successors and permitted assigns . (b) The Subordinate Lender shall not be entitled to assign all or any part of its rights and obligations under this Agreement or the Subordinate Debt . 18. Entire Agreement ; Severability This Agreement contains the entire agreement among the parties hereto with respect to the subordination and postponement of obligations of the Subordinate Lender . If any of the provisions of this Agreement shall be held invalid or unenforceable by any court having jurisdiction, this Agreement shall be construed as if not containing those provisions, and the rights and obligations of the parties hereto should be construed and enforced accordingly . If there is any conflict or inconsistency between the provisions of this Agreement and the provisions of the Loan Agreement, the rights and obligations of the parties will be governed by the provisions of the Loan Agreement . 19. Acknowledgement The Subordinate Lender hereby acknowledges receipt of a copy of this Agreement and accepts and further agrees with the Agent to give effect to all of the provisions of this Agreement . 20. Governing Law This Agreement shall be governed and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein . 21. Termination This Agreement shall terminate upon the earlier of: (a) the repayment or payment in full of the Senior Debt; and (b) the written agreement of the Agent and the Subordinate Lender. Subject to Section 8 (a), the Senior Debt shall be considered to be repaid or paid in full when no further amounts are owing to the Senior Creditors and all obligations of the parties under the Loan Agreement and the other Loan Documents have been terminated . 22. Counterparts This Agreement may be executed in any number of counterparts, all of which shall be deemed to be an original and such counterparts taken together shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart . 23. Electronic Execution Delivery of an executed signature page to this Agreement by any party by electronic transmission will be effective as delivery of a manually executed copy of the Agreement by such party . 24. Enurement This Agreement shall be binding upon and enure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement .
30400184.6 [SIGNATURE PAGES FOLLOW]
30400184.6 IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the date first written above. COMPUTERSHARE TRUST COMPANY OF CANADA, as Agent By: Name: Title: By: Name: Title: [NAME OF DEBTOR] By: Name: Title: By: Name: Title: [NAME OF SUBORDINATE LENDER] By: Name: Title: By: Name: Title:
30400184.6 SCHEDULE I FORM OF COMPLIANCE CERTIFICATE - see attached
COMPLIANCE CERTIFICATE TO: Computershare Trust Company of Canada, as administrative agent (the “ Agent ”) AND TO: The Lenders under the Loan Agreement (as defined below) RE: First amended and restated loan agreement dated as of September 28, 2020 (together with all amendments, modifications, supplements, restatements, if any, from time to time thereafter made thereto, the “ Loan Agreement ”) among Just Energy Group Inc., as borrower (the “ Borrower ”), the Agent and each other person party thereto from time to time as lenders (the “ Lenders ”) DATE: [ ] The undersigned, the [insert title of senior officer] of the Borrower, hereby certifies, in that capacity and without personal liability, that: 1. I have read and am familiar with the provisions of the Loan Agreement and have made such examinations and investigations, including a review of the applicable books and records of the Borrower as are necessary to enable me to express an informed opinion as to the matters set out herein and to furnish this Certificate. 2. I have furnished this Certificate with the intent that it may be relied upon by the Agent and the Lenders as a basis for determining compliance by the Borrower with its covenants and obligations under the Loan Agreement and the other Loan Documents as of the date of this Certificate . 3. The representations and warranties contained in Section 7 . 01 of the Loan Agreement are true and correct on the date of this Certificate with reference to facts subsisting on such date, with the same effect as if made on such date except for those representations and warranties which speak to a specific date which shall be true as of such date [except ] . 4. T h is C er ti f i ca te a ppli es t o the F isca l [ Q u a r t er /Y e a r ] e nding . 5. The following constitute the only Guarantors: [List names of Guarantors] , in each case (unless otherwise stated) with respect to the Obligations of the other Guarantors. 6. For purposes of this Compliance Certificate, the consolidated financial statements of the Borrower [most recent date] delivered pursuant to Section 8.03(1) or 8.03(2) of the Loan Agreement, as the case may be: (a) are complete in all material respects and fairly present the results of operations and financial position of the Borrower on a Modified Consolidated Basis as at the date thereof; and
(b) have been prepared in accordance with GAAP consistently applied except that, in the case of quarterly financial statements, notes to the statements and audit adjustments required by GAAP are not included. Since such date, there has been no condition (financial or otherwise), event or change in the business, liabilities, operations, results of operations, assets or prospects of either of the Borrower, or any of the Guarantors which constitutes or has a Material Adverse Effect. 7. As of [insert date] : A. EBITDA Net income: Cdn.$ (a) increase by the sum of (without duplication): ( i) Total Interest Expense; Cdn.$ ( ii) Income Tax Expense; Cdn.$ (iii) Depreciation Expense (which for greater certainty does not include any amortization of contract initiation costs); Cdn.$ (iv) non - cash losses resulting from the fair value of derivative financial investments; Cdn.$ ( v) accrued (but not yet actually realized) foreign exchange translation losses; Cdn.$ (vi) losses on the purchase or redemption of securities issued by any of the Borrower and the Restricted Subsidiaries; Cdn.$ (vii) any other cash or non - cash extraordinary, unusual or non - recurring losses; excluding, for greater certainty, (A) provisions made for litigation and other similar proceedings and (B) losses associated with trading, settlement or balancing of Commodity Xxxxxx; and Cdn.$ (viii) Share Based Compensation to the extent settled with shares of JustEnergy (i.e., non - cash); Cdn.$
in each case to the extent such amounts were deducted in the calculation of net income for such period, (b) decreased by the sum of (without duplication) Cdn.$ ( ii) Cdn.$ ( iii) Cdn.$ ( iv) (i) non - cash gains resulting from the fair value of derivative financial investments; accrued (but not yet actually realized) foreign exchange translation gains; gains on the purchase or redemption of securities issued by any of the Borrower and the Restricted Subsidiaries; any reduction in deferred tax recovery; and (v) any other cash or non - cash extraordinary, unusual or non - recurring gains excluding, for greater certainty, gains associated with trading, settlement or balancing of Commodity Xxxxxx; Cdn.$ Cdn.$ in each case to the extent such amounts were added in the calculation of net income for such period. EBITDA (total) Cdn.$ Senior Debt Cdn.$ 8. The ratio of Average Quarterly Net Senior Debt Utilization to EBITDA determined as at the last day of the immediately preceding Fiscal Quarter is :1. 9. The ratio of Senior Debt to EBITDA determined on a Modified Consolidated Basis as at the last day of each Fiscal Quarter in respect of the immediately preceding Four Quarter Period is : 1 as required pursuant to Section 8 . 02 ( 1 ) of the Loan Agreement . 10. The EBITDA as at the last day of each Fiscal Quarter in respect of the immediately preceding Four Quarter Period is $ as required pursuant to Section 8.02(2) of the Loan Agreement. 11. Intentionally Deleted
12. The projected amount of Available Supply of natural gas, determined as at the end of the last day of each Fiscal Quarter for the next Four Quarter Period, to Supply Commitments for natural gas for the next 12 months, is %, as required pursuant to Sections 8.03(5) and 8.04(6) of the Loan Agreement. [NTD: Available Supply of natural gas to be a minimum of [Percentage Redacted] and a maximum of [Percentage Redacted] of Supply Commitments.] [NTD: The above projection is to be delivered within 30 days of the end of each Fiscal Quarter. The Compliance Certificate is to be delivered within 60 days of the end of each Fiscal Quarter.] 13. The projected amount of Available Supply of electricity, determined as at the end of the last day of each Fiscal Quarter for the next Four Quarter Period, to Supply Commitments for electricity for the next 12 months, is %, as required pursuant to Sections 8.03(5) and 8.04(6) of the Loan Agreement. [NTD: Available Supply of electricity to be a minimum of [Percentage Redacted] and a maximum of [Percentage Redacted] of Supply Commitments.] [NTD: The above projection is to be delivered within 30 days of the end of each Fiscal Quarter. The Compliance Certificate is to be delivered within 60 days of the end of each Fiscal Quarter.] 14. The projected amount of Available Supply of natural gas, determined as at the end of the last day of each Fiscal Quarter for the next Four Quarter Period, to Supply Commitments for natural gas for the next 36 months, is %, as required pursuant to Sections 8.03(5) and 8.04(6) of the Loan Agreement. [NTD: Available Supply of natural gas to be a minimum of [Percentage Redacted] and a maximum of [Percentage Redacted] of Supply Commitments.] [NTD: The above projection is to be delivered within 30 days of the end of each Fiscal Quarter. The Compliance Certificate is to be delivered within 60 days of the end of each Fiscal Quarter.] 15. The projected amount of Available Supply of electricity, determined as at the end of the last day of each Fiscal Quarter for the next Four Quarter Period, to Supply Commitments for electricity for the next 36 months, is %, as required pursuant to Sections 8.03(5) and 8.04(6) of the Loan Agreement. [NTD: Available Supply of electricity to be a minimum of [Percentage Redacted] and a maximum of [Percentage Redacted] of Supply Commitments.] [NTD: The above projection is to be delivered within 30 days of the end of each Fiscal Quarter. The Compliance Certificate is to be delivered within 60 days of the end of each Fiscal Quarter.] 16. (i) Financial Assistance provided by any Obligor to any Unrestricted Subsidiary prior to July 7, 2020 is: US$ , as required pursuant to Section 8.04(5) of the Loan Agreement.
(ii) Financial Assistance provided by any Obligor to any Unrestricted Subsidiary from and after July 7, 2020 in an amount not to exceed the aggregate amount of [Dollar Amount Redacted] , is: US$ , as required pursuant to Section 8.04(5) of the Loan Agreement. 17. Aggregate value of Unbilled Accounts Receivable Encumbered which shall not exceed [Dollar Amount Redacted] at any time is : US $ , as required pursuant to Sections 8 . 04 ( 10 ) and 8 . 04 ( 23 ) of the Loan Agreement . 18. Aggregate value of Cash Security Deposits Encumbered which shall not exceed [Dollar Amount Redacted] at any time is: US$ , as required pursuant to Sections 8.04(10) and 8.04(23) of the Loan Agreement. Attached hereto as Schedule A is a detailed calculation for the information disclosed in each of paragraphs 7, 8, 9, 10 and 16. - Signature Page Follows -
Dated as of the first date written above. JUST ENERGY GROUP INC. By: Authorized Signatory
SCHEDULE J INTENTIONALLY DELETED
SCHEDULE K INTENTIONALLY DELETED
30400184.6 SCHEDULE 4.04 INTENTIONALLY DELETED
30400184.6 SCHEDULE 4.06 FORM OF NOTE - see attached -
30400184.6 N O TE Lender: [ Ɣ ] [ DA T E] FOR VALUE RECEIVED, the undersigned, Just Energy Group Inc . , a corporation existing under the laws of Canada (the “ Borrower ”), hereby promises to pay to the Lender set forth above (the “ Lender ”) the principal amount set forth in Schedule A hereto (as such figure may be updated from time to time in accordance with this Note, the “ Principal Amount ”) or, if less, the aggregate unpaid principal amount of Advances (as defined in the Loan Agreement referred to below) of the Lender to the Borrower (including for certainty, all PIK Interest and PIK Fees (as each term is defined in the Loan Agreement) added to the principal amount of the Advances from time to time), payable at such times and in such amounts as are specified in the Loan Agreement . The Borrower promises to pay interest on the unpaid principal amount of the Advances from the date made until such principal amount is paid in full, payable at such times and at such interest rates as are specified in the Loan Agreement . Presentment, diligence, demand, protest and other notice of any kind are hereby waived by the Borrower . This Note (this “ Note ”) is entitled to the benefits of the first amended and restated loan agreement dated as of September 28 , 2020 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Loan Agreement ”), among the Borrower, Computershare Trust Company of Canada, in its capacity as Administrative Agent (the “ Agent ”), Sagard Credit Partners, LP, and each other Person from time to time party thereto as a Lender . Capitalized terms used herein without definition are used as defined in the Loan Agreement . This Note is a Loan Document, is entitled to the benefits of the Loan Documents and is subject to certain provisions of the Loan Agreement, including without limitation Sections 14 . 04 (Governing Law), 14 . 10 ( Waiver of Jury Trial ) and 14 . 11 ( Consent to Jurisdiction ) thereof . This Note is a registered obligation, transferable only upon notation in the Register, and no assignment hereof shall be effective until recorded therein . The Lender shall record on Schedule A hereto (i) the date and amount of each subsequent increase in the Principal Amount hereof, (ii) the date and amount of each repayment or prepayment of the Principal Amount hereunder and the resulting decrease in such Principal Amount, and (iii) the name of the director or senior officer of the Borrower who authorizes such recordations . Such recordations, in the absence of manifest error, shall be prima facie evidence of such increase in the Principal Amount and such decrease in the Principal Amount as resulted by the repayments or prepayments thereof ; provided that the failure of the Lender to make such recordations shall not affect the obligation of the Borrower to repay the Principal Amount, and accrued and unpaid interest thereon, in accordance with the terms hereof and the terms of the Loan Agreement . [SIGNATURE PAGE FOLLOWS]
30400184.6 IN WITNESS WHEREOF, the Borrower has caused this Note to be executed and delivered by its duly authorized officer as of the day and year and at the place set forth above. JUST ENERGY GROUP INC. By: Name: Title:
30400184.6 SCHEDULE A TO NOTE Initial Principal Amount: $[ ] as of September 28, 2020 Effec tive Date Amount of PIK Interest and PIK Fees (Increase to Principal) Amount of Repayment (Decrease to Principal) New Principal Amount (Unpaid Balance) Authorized Director or Officer of the Borrower S e pt e mb er 28, 2020 - - $[ ] March 31, 2021 S e pt e mb er 30, 2021 March 31, 0000 X x xx x xx er 30, 2022 March 31, 0000 X x xx x xx er 29, 2023 March 29, 2024
30400184.6 SCHEDULE 7.01(6) TAXES [ R E DAC X X X]
30400184.6 SCHEDULE 7.01(16) CORPORATE STRUCTURE [REDACTED]
30400184.6 SCHEDULE 7.01(22) MATERIAL CONTRACTS AND LICENCES [REDACTED]
30400184.6 SCHEDULE 7.01(28) ENVIRONMENTAL REPORTS N il.
30400184.6 SCHEDULE 7.01(36) NON ARM’S LENGTH TRANSACTIONS N il.
30400184.6 SPECIFIED LENDER SCHEDULE *Confidential*
