LOAN AGREEMENT
BETWEEN:
BRAZIL POTASH CORP., a corporation existing pursuant to the laws of the Province of Ontario (hereinafter referred to as the “Borrower”)
OF THE FIRST PART
- and –
SENTIENT GLOBAL RESOURCES FUND IV LP, a corporation existing pursuant to the laws of the Cayman Islands (hereinafter referred to as the “Lender”)
OF THE SECOND PART
WHEREAS the Lender has agreed to lend and the Borrower has agreed to borrow US$1,000,000 subject to the terms and conditions contained in this Loan Agreement
(the “Loan”);
NOW THEREFORE in consideration of the mutual promises and covenants hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
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1.
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The Loan
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The Lender hereby agrees to lend to the Borrower, and the Borrower agrees to repay to the Lender on or before the Repayment Date, the principal sum of US$1,000,000 (the “Principal”).
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2.
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Set-up Fee
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The Borrower hereby agrees to pay the Lender a one-time fee of US$200,000 (the “Set-up Fee”) payable on the date the Borrower repays the Principal but, in any event, no later than the Repayment Date.
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3.
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Interest Rates and Fees
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The Principal outstanding at any time, and from time to time, shall bear interest at 30% per annum; provided, however that,
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a.
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the Borrower and the Lender agree that no interest shall accrue or be payable on the Principal for the period from first drawdown until the earlier to occur of: (i) six (6) months
thereafter (the “Initial Term”), and (ii) the occurrence of an Event of Default; and
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b.
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if the Principal has not been repaid prior to the end of the Initial Term, the Borrower shall pay an extension fee of US$50,000 to the Lender to extend the Loan until the earlier to occur
of: (i) the three (3) month anniversary of the end of the Initial Term; and the Repayment Date. No interest shall accrue or be payable on the Principal if the Loan repayment date is extended in accordance with this clause unless an Event of
Default has occurred.
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4.
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Repayment
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The Borrower shall have the right to prepay the Principal, all accrued Interest and the Set-up Fee in full at any time. If the Borrower receives proceeds (net of transaction expenses) from the raising of capital by
way of equity or securities, the Borrower shall prepay to the Lender in an amount equal to such proceeds (or if less, the amount of all Principal outstanding, all accrued Interest outstanding and the Set-up Fee) within 3 business days of receipt. The
Borrower shall repay the Principal, all accrued Interest and the Set-up Fee by no later than July 31, 2020 (the “Repayment Date”), subject to extension upon the mutual agreement of the Lender (in its sole discretion) and Borrower.
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5.
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Use of Proceeds
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The Borrower shall use the proceeds of the Loan solely for working capital and general corporate purposes.
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6.
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Waivers Generally
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No waiver of any right or remedy of the Lender hereunder shall be effective unless in writing and signed by the Lender and any waiver granted by the Lender shall be effective only to the extent and in the circumstances
specified therein. No failure, delay or omission by the Lender to exercise or enforce any rights or remedies under this Agreement or any security collateral hereto shall constitute a waiver thereof or of any other rights or remedies of the Lender.
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7.
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Events of Default
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i.
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ii.
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The Borrower shall fail to make any payment of principal, interest or fees under any other loan agreement that the Borrower has entered into;
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iii.
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The Borrower shall fail to use the proceeds of the Loan in accordance with the requirements set out in Section 3 hereunder;
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iv.
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The Borrower grants any security interest in any of its property other than in accordance with Section 8;
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v.
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The Borrower shall sell or attempt to sell all or substantially all of its assets;
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vii.
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A resolution is passed or a petition filed for the wind-up or liquidation of the Borrower or if the Borrower institutes proceedings under any bankruptcy, insolvency or analogous law or is adjudicated as
bankrupt or insolvent, or consents to (or fails to contest in good faith) the institution of bankruptcy or insolvency proceedings against it or makes (or serves notice of intention to make) any proposal under any bankruptcy, insolvency or
analogous laws, or consents (or fails to contest in good faith) to the filing of any such petition or to the appointment of a receiver of, or of any substantial part of, the property of the Borrower or makes a general assignment for the
benefit of creditors, or makes or agrees to make any bulk sale without complying with the provisions of any applicable bulk sale provision, or admits (in writing or otherwise) its inability to pay its debts generally as they become due, or
ceases or threatens to cease to carry on business as a going concern, or takes corporate action in furtherance of any of the aforesaid purposes; or
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viii.
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In the event of any breach or default by the Borrower of its obligations, undertakings, covenants, representations and warranties pursuant to this Loan Agreement.
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b.
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Upon the occurrence of each and every such Event of Default, the Lender shall provide notice to the Borrower and the Borrower shall have 30 days to cure such Event of Default (other than a failure to pay
amounts due to the Lender in accordance with Section 7(a)(i) above, for which there shall be no cure period). In the event the Event of Default has not been cured within such 30 day period, the Lender may, at its option, by written notice
to the Borrower declare the Principal advanced pursuant to this Loan Agreement outstanding hereunder, together with all other amounts payable hereunder (including any Interest and fees thereon accrued and unpaid), to be due and payable and
the same shall forthwith become immediately due and payable to the Lender, anything therein or herein to the contrary notwithstanding, and the Borrower shall pay forthwith to the Lender the amount of the Principal then outstanding and all
other amounts payable hereunder, from the date of the said declaration until payment is received by the Lender.
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c.
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Should an Event of Default occur, the Lender may, at its option, exercise its rights by any act, proceeding, recourse or procedure authorized or permitted by law and may file its proof and any other documents
necessary or desirable so that the request of the Lender may be considered in any liquidation or other proceeding with respect to the Borrower.
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d.
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No remedy herein conferred upon or reserved to the Lender is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now existing or hereafter to exist by law or by statute.
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e.
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The delay or omission of the Lender to exercise any recourse mentioned above shall not invalidate any such recourse nor be interpreted as a waiver of any default hereunder.
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8.
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Security Undertaking
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This loan is granted on an unsecured basis. The Borrower agrees and covenants not to grant security over any of its assets to any third party other than the Lender unless the Borrower has granted the
same security to the Lender (in form and substance satisfactory to the Lender) to secure the Borrower's obligations hereunder on at least a pari passu basis with such other security, provided however that this provision shall not apply to any
security over the assets of the Borrower granted to Anglo Pacific or any of its affiliates pursuant to a royalty agreement.
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9.
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Representations and Warranties
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The Borrower represents and warrants to the Lender as follows:
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a.
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it is duly organized, validly existing and duly registered or qualified to carry on business in each jurisdiction in which its business or assets are located;
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b.
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the execution, delivery and performance by it of this Agreement have been duly authorized by all necessary actions and do not violate its constating documents or any applicable laws or agreements to which it
is subject or by which it is bound;
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c.
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no event has occurred which constitutes, or which, with notice, lapse of time, or both, would constitute a breach of any covenant or other term or condition of this Agreement; and
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d.
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there is no claim, action, prosecution or other proceeding of any kind pending or threatened against it or any of its assets or properties before any court or administrative agency which relates to any
non-compliance with any laws which, if adversely determined, might have a material adverse effect upon its financial condition or operations or its ability to perform its obligations under this Agreement, and there are no circumstances of
which it is aware which might give rise to any such proceeding which it has not fully disclosed to the Lender.
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10.
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Other Affirmative Covenants
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In addition to all other covenants and obligations contained herein, the Borrower agrees and covenants to perform and do each of the following:
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a.
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use the proceeds of the Loan in accordance with Section 5 hereof, and in a manner consistent with the restrictions set out herein;
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b.
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preserve, renew and keep in full force its corporate existence and its material licenses, permits, approvals, etc. required in respect of its business, properties, assets or any activities or operations
carried out therein;
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c.
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forthwith notify the Lender of the occurrence of any Event of Default, or of any event or circumstance that may constitute an Event of Default; and
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d.
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duly and punctually pay all sums of money due by it under the terms of this Agreement at the times and places and in the manner provided for by this Agreement and duly and punctually perform and observe all
other obligations on its part to be performed or observed hereunder or thereunder at the times and in the manner provided for herein or therein.
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11.
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Assigns, Successors and Governing Law
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This Agreement shall not be assignable by the Borrower without the prior written consent of the Lender. This Agreement shall enure to the benefit of and be binding upon the respective successors of the Borrower and
the Lender and the assigns of the Lender and the permitted assigns of the Borrower. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario.
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12.
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Additional Amounts
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Except as required by applicable law or expressly contemplated herein, all payments of any kind made under this Loan Agreement to the Lender shall be made free and clear and without any present or future deduction,
withholding, charge or levy on account of taxes, without setoff or counterclaim. If any taxes are required by applicable law to be deducted, withheld, charged or levied by the Borrower on any such payment, the Borrower shall pay to the Lender, in
addition to such payment, such additional amounts as are necessary to ensure that the net payment received by the Lender (net of any such taxes, including any taxes required to be deducted, withheld, charged or levied on any such additional amounts)
equals the full payment that the Lender would have received had no such deduction, withholding, charge or levy been required.
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13.
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Interest Act and Criminal Rate of Interest
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Each interest rate which is calculated under this Agreement on any basis other than a full calendar year (the "deemed interest period") is, for the purposes of the Interest Act (Canada), equivalent to a yearly rate calculated by dividing such interest rate by the actual number of days in the deemed interest period, then multiplying such result by the actual number of days in the calendar year
(365 or 366).
In no event shall the aggregate "interest" (as defined in Section 347 (the "Criminal Code Section") of the Criminal Code
(Canada)) payable to the Lender under this Agreement exceed the effective annual rate of interest lawfully permitted under the Criminal Code Section. Further, if any payment, collection or demand pursuant to this Agreement in respect of such
"interest" is determined to be contrary to the provisions of the Criminal Code Section, such payment, collection, or demand shall be deemed to have been made by mutual mistake of the Lender and the Borrower and such "interest" shall be deemed to have
been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law or so result in the receipt by the Lender of interest at a rate not in contravention of the Criminal Code
Section.
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14.
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Expenses; Indemnity
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The Borrower shall pay all reasonable and documented legal fees and disbursements and other out-of-pocket expenses incurred by the Lender in connection with the preparation of this Agreement and
all ancillary documentation, the administration of the Loan, and enforcement of the Lender's rights and remedies under or in connection with this Agreement, and any other documentation or actions contemplated thereby.
The Borrower agrees to indemnify and hold harmless the Lender and each of its directors, officers, employees, attorneys, advisors and affiliates (all such persons and entities being referred to
hereafter as "Indemnified Persons") from and against any and all actions, suits, proceedings (including any investigations or inquiries), claims, losses, damages, liabilities or expenses of any kind or nature
whatsoever (excluding indirect or consequential damages and claims for lost profits) which may be incurred by or asserted against or involve any Indemnified Person as a result of or arising out of or in any way related to or resulting from this
Agreement and, upon demand, to pay and reimburse any Indemnified Person for any legal or other out-of-pocket expenses incurred in connection with investigating, defending or preparing to defend any such action, suit, proceeding (including, without
limitation, any inquiry or investigation) or claim (whether or not any Indemnified Person is a party to any action or proceeding out of which any such expenses arise); provided, however, the Borrower shall not be obligated to indemnify pursuant to
this paragraph any Indemnified Person against any loss, claim, damage, expense or liability to the extent it resulted from the gross negligence or wilful misconduct of such Indemnified Person as finally determined by a court of competent
jurisdiction. The indemnities granted under this Agreement shall survive any termination of the Loan.
Dated as of the 29th day of October, 2019
| SENTIENT EXECUTIVE XX XX LIMITED FOR SENTIENT GLOBAL RESOURCES FUND IV LP | |||
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By: |
/s/ Xxxx Xxxxxxx |
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| Authorized Signing Officer | |||
| BRAZIL POTASH CORP. | |||
| By: |
/s/Xxxxxxx Xxxxxxx |
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| Authorized Signing Officer | |||
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