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HomeMy WebLinkAboutBy-law 7695/19The Corporation of the City of Pickering By-law No.7695/19 Being a by-Iaw to authorize the execution of an inter -creditor agreement between the Toronto Dominion Bank, the Town of Ajax, the Municipality of, Clarington, the City of Belleville, the Town of Whitby, the City of Pickering and Elexicon Corporation and Elexicon Energy Inc. Whereas the. Council of the Corporation of the City of Pickering deems it necessary to enter into an agreement with Toronto Dominion Bank, the Town of Ajax, the Municipality of Clarington, the City of Belleville, the Town of Whitby, Elexicon Corporation and Elexicon Energy Inc., for the purposes of an. Inter -creditor agreement. Now therefore the Council of the Corporation of the City of Pickering hereby enacts as follows: t That the Mayor and Clerk are hereby authorized to execute the said Agreement in theform attached as Schedule "A". to this By=law: By-law passed this 27th day of May 2019.. Susa► Cassel, City Clerk Internal Schedule "A" AMENDED AND RESTATED INTER -CREDITOR AGREEMENT BETWEEN: THIS AGREEMENT madeas of theday of April, 2019. THE TORONTO -DOMINION BANK, a Canadian chartered bank (herein called the "Senior Creditor") - and THE CORPORATION OF THE MUNICIPALITY ; OF CLARINGTON, a municipal corporation existing under the laws of the Province of Ontario (herein called "Clarington" and - THE CORPORATION OF THE TOWN .OF .AJAX, a municipal corporation existing under the laws of the Province of Ontario (herein called "Ajax") and - THE CORPORATION OF THE CITY OF PICKERING, a municipal corporation existing under the laws . of :the Province, of Ontario (herein called "Pickering") -and- THE CORPORATION OF` THE CITY OF BELLEVILLE, a Municipal corporation existing under the laws of the Province of Ontario (herein called "Belleville") and - THE CORPORATION OF THE TOWN OF WHITBY, a municipal corporation existingunder the laws of the Province of Ontario (herein called "Whitby") 286077.00073/103863988.4 -and ELEXICON CORPORATION, a corporation amalgamated under the laws of the Province of Ontario (herein called "Parent Borrower") - and ELEXICON ENERGY INC., a corporation amalgamated under the laws of the Province of Ontario (herein called "Regulated Borrower") WHEREAS the Obligors and certain of the Creditors are party to an inter - creditor agreement dated December 23, 2009 (as amended prior to the date hereof, the "Existing ICA"), AND WHEREAS the Obligors and the Creditors wish to amend and restate the Existing ICA on the terms and conditions set forth herein; NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the mutual covenants herein contained and other good and valuable consideration, given by each of the parties hereto (the receipt and sufficiency of which are hereby acknowledged by all of the parties hereto), the parties hereto hereby agree with each other as follows: ARTICLE 1 INTERPRETATION 1.1 Definitions. The following defined terms shall for all purposes of this agreement, or , any amendment hereto, have the following respective meanings unless the context otherwise specifies or requires or unless otherwise defined herein: "Business Day" means any day other than a Saturday or Sunday on which banks ,. are generally open forbusiness in Toronto, Ontario. "Credit Agreements" means the Parent Borrower Credit Agreement and the. Regulated Borrower Credit Agreement and "Credit Agreement" means either' of them. "Creditors" means the : Senior Creditor and the Subordinated Creditors and "Creditor" means any of the Creditors. "Default" means any of the events of default specified in any Loan Agreement' entitling a Creditor to demand or accelerate payment of any Obligations. 286077.00073/103863988.4 Internal. "Demand" means any notification by any of the Creditors to either. Obligor of a demand for payment under any Loan. Agreement, "Insolvency Legislation" means the Bankruptcy and Insolvency Act (Canada)," the Companies' Creditors Arrangement.: Act : (Canada), . the Bankruptcy Code (United States) and any similar statute or law in any jurisdiction. "Loan Agreements" means the Senior Loan Agreements and the Subordinated Loan Agreements and "Loan Agreement means any one of the Loan Agreements. "Obligations" means Senior Obligations and the 'Subordinated Obligations. "Obligors" means the Parent Borrower and the Regulated Borrower. "Parent Borrower Credit Agreement" means the credit agreement made as of April : _, 2019 between the Parent Borrower and the Senior. Creditor, as the same may. be amended, modified, supplemented or replaced from time to time. "Regulated Borrower Credit Agreement" means the credit agreement made as of April ;2019 between the Regulated Borrower and the Senior Creditor, as the same may amended, modified, supplemented or replaced from: time to time. "Senior Loan Agreements" means all documents, instruments and agreements evidencing the Senior Obligations, including, without limitation, the. Credit Agreements. "Senior Obligations" means all indebtedness, obligations and liabilities, present or future, direct or indirect, absolute or contingent, matured or not, at any time owing by the Parent. Borrower or Regulated Borrower to the Senior Creditor: or remaining unpaid by the. Parent Borrower or Regulated Borrower to the Senior Creditor under or in connection with the Senior Loan Agreements. "Subordinated Creditors" means Clarington, Ajax, Pickering, Whitby • and Belleville. "Subordinated, Loan. Agreements" means any: agreement entered into from time to time between :either Obligor and any of the Subordinated Creditors evidencing any Subordinated Obligations, including, without limitation, the following: (a) the fifth amended and •restated term promissory note in the principal" amount of $5,966,000 dated April. 1, 2019.and. made 'by. the Regulated Borrower in favour of Clarington; (b) the fifth amended and '.restated 'term promissory note in the principal amount of $5,588,000 dated April 1, 2019 and made by the Regulated Borrower in favour of Belleville; 286077.00073/103863988,4 Internal (c) .. the fifth amended and ` restated term promissory note in . the principal amount of $14,060,000 dated April 1, 2019 and made by the Regulated Borrower in favour of Ajax; (d) the fifth amended and restated term promissory note in the principal amount of $17,974,000 dated April 1, 2019 and made by the Regulated Borrower in favour of Pickering; (e) theseventh amended and restated term promissory note in the principal amount of $2,206,000 dated April 1, 2019 and made by the Parent Borrower in favour. of Belleville; the seventh amended and restated term promissory note in the principal amount of $5,550,000 dated April ' 1, 2019 and made by the Parent Borrower in favour of Ajax; (g) the seventh amended and restated term promissory note in the principal amount of $7,095,000 dated April 1, 2019 and made by the Parent Borrower in favour of Pickering; (h) the seventh _amended and restated term promissory note in theprincipal amount of $2,355,000 dated April 1, 2019 and made by the.. Parent Borrower in favour of Clarington the first amended and restated . term promissory note in, the principal amount of $1,460,300 dated April' 1, 2019 and made by the Regulated Borrower in favour of Whitby; (j). the first amended and restated term promissory note in the principal amount of $5,061.,000- dated April 1, 2019 :and made by the Regulated Borrower in favour of Whitby; (k) the first amended and restated term promissory note in the principal amount of $21,816,642 dated April 1, 2019 and made by the Regulated Borrower in favour of Whitby; (1) the guarantee dated April 1, 2019 made by Elexicon Corporation in favour of Clarington in respect of the Subordinated Loan Agreement referred, to in paragraph (a) of this definition; the guarantee dated April 1, 2019 made by Elexicon Corporation in favour of Belleville in respect of the Subordinated Loan Agreement referred to in. paragraph (b) of this definition; (n) the guarantee dated April 1, 2019 made by Elexicon Corporation in favour of Ajax in respect of the Subordinated Loan Agreement referred to in paragraph (c) of this definition; (i) (m). 286077.00073/103863988.4 Internal - 5 (o) the guarantee dated April 1, 2019 made by Elexicon Corporation in favour. of Pickeringin respect of the Subordinated Loan Agreement referred to in paragraph (d) of this definition; (p) the guarantee dated April 1, 2019 made by Elexicon Corporation in favour of Whitby in respect of the Subordinated Loan Agreement referred to in. paragraph (i) of this definition; (q) the guarantee dated April 1, 2019 made by Elexicon Corporation in favour of Whitby in respect of the. Subordinated Loan Agreement referred to in paragraph (j) of this definition; and (r) the guarantee dated April 1, 2019 made by Elexicon Corporation in favour of Whitby in respect of. the Subordinated Loan Agreement referred to in paragraph (k) of this definition. "Subordinated Obligations means all indebtedness, obligations and liabilities, present or future, direct or indirect, absolute or contingent, matured or not, at any ; time owing by either Obligor to any of the Subordinated -Creditors or remaining unpaid ` by either Obligor to any of the " Subordinated Creditors under or in connection with the Subordinated Loan Agreements. 1.2 Other Usages. References to "this agreement", "the agreement", hereof, herein hereto and like references refer to this Inter -Creditor Agreement and not to any particular Article, Section or other subdivision of this Inter -Creditor Agreement. Any references to "this agreement", "the agreement", hereof, ."herein","hereto" and like references refer to this Inter -Creditor Agreement as amended, supplemented or otherwise modified from time to time in accordance with the terms hereof. 1.3 Plural and Singular. Where the context so requires, words importing the singular number shall include the plural and vice versa; 1.4 Headings. The division of this agreement. into Articles, Sections and the insertion of. headings in this agreement are for convenience of reference only and shall not affect the construction or interpretation of this agreement: 1.5 Applicable Law.' This agreement shall be governed by and construed and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. Any legal action or proceeding with respect to this agreement may be brought in the courts of the Province of Ontario and, by execution and delivery of this agreement, the 'parties' hereby accept for themselves and in respect of their property, generally and unconditionally, the non-exclusive. 286077.00073/103863988.4 Internal jurisdiction of the aforesaid courts. Each party irrevocably consents to the service of process out of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to such party to the address prescribed by Section 6.11, such service to become effective five Business Days after such mailing, Nothing herein shall limit the right of any party to serve process in any manner permitted by law or to commence legal proceedings or otherwise' proceed against any other party in any other jurisdiction. 1.6 Time of the Essence. Time shall in all respects be of the essence of this agreement. 1.7 Paramountcy. In the event of any conflict or inconsistency between the provisions of this agreement and the provisions of any other agreement (including, for certainty, the Subordinated Loan Agreements) which is referred to herein or delivered pursuant hereto, the provisions of this agreement shall prevail and be paramount. 1.8 No Rights Conferred on the Obligors. Nothing in this agreement shall be construed as conferring any rights upon the Obligors or any third party. The terms and conditions hereof are and shall be for the sole and exclusive benefit of the Creditors. ARTICLE 2 CONSENT 2.1 Consent of Creditors. Each Creditor consents to the incurring of the Obligations by the Obligors and waives any Default that the incurring of the Obligations may have constituted under the terms of the Loan Agreements. ARTICLE 3 PRIORITY OF OBLIGATIONS 3.1 Priority of Obligations. Except as otherwise expressly provided in Section 3.3, the Subordinated. Obligations shall be and are hereby postponed and made subordinate in right of payment to the prior payment in full in cash of the Senior Obligations. 3.2 Prohibited Payments to Subordinated Creditors. Except as, otherwise expressly provided in Section 3.3, the Obligors shall not make nor be entitled to make, and the Subordinated Creditors shall not accept and shall not be entitled to accept, any payment or prepayment of principal, interest or other amount under the 286077.00073/103863988.4 Internal Subordinated Loan Agreements; whether inthe form .pf cash, securities or otherwise and whether by way of payment, set off or otherwise. 3.3 Permitted Payments to the Subordinated Creditors. So long as no Bank Default Notice (as defined below) has been sent by the Senior Creditor andcontinues to be effective or no Default would result directly or indirectly from any payment described below, as between the parties hereto, the Obligors shall be permitted to pay the Subordinated Creditors and the : Subordinated Creditors shall be permitted to receive, regularly scheduled payments on account of interest (but not principal) in accordance with the Subordinated Loan Agreements. If a Default occurs anda notice of such Default (a "Bank Default Notice") is sent. by or on behalf of the Bank to the Obligors and the Subordinated Creditors, the payments otherwise permitted under this Section 3.3 shall not be permitted to be made or received from the date of the Bank Default Notice until such time as the Default which is the subject of such Bank Default Notice has, been cured or. waived. 3.4 Certain Covenants of Subordinated Creditors. The Subordinated Creditors shall not and shall not be entitled to without the Senior Creditor's prior written consent: (a) accelerate. the time for payment of anyof the Subordinated Obligations or otherwise enforce or take any action to enforce payment of all or any part of the Subordinated Obligations, whether by way, of set off or otherwise, unless and until all indebtedness of the Obligors to the Senior Creditor under or in connection with . - the Credit Agreements has become immediately due and payable pursuant to the terms thereof; (b) petition either of the Obligors into bankruptcy or initiate any similar proceeding under any 'applicable Insolvency Legislation: (c) amend, alter or otherwise modify the Subordinated Loan Agreements in a manner that may reasonably be expected to adversely impact the Senior Creditor; or (d) hold or obtain any security from the Obligors or any person on their behalf, for payment or performance of the Subordinated Obligations.. 3.5; . Distributions. To the extent not otherwise permitted under the Credit Agreement, the Obligors shall not make nor be entitled to make, and the Subordinated Creditors shall not accept nor be entitled to accept the payment of any dividends or other distribution on or in respect of any shares in the capital of the Obligors. The Obligors shall not . make nor be entitled to make, and the Subordinated. Creditors shall not accept nor be entitled to accept the redemption, "retraction, purchase, retirement or other acquisition, in whole or in part, of any shares in the capital of the Obligors or. 286077.00073/103863988.4 Internal any securities, instruments or contractual rights capable ofbeing converted into, exchanged. or exercised for shares in the capitalof the Obligors,. including, without limitation, options, ,. warrants, conversion or exchange privileges and similar rights: Notwithstanding the foregoing, the Subordinated Creditors shall be, entitled', to convert their interest under the Subordinated Loan Agreements as. provided for therein. 3.6 Effect of Non -Compliance. In the event any prepayments or other payments are made to or received by the Subordinated Creditors in contravention of this agreement, the Subordinated Creditors shall hold such prepayments or payments in trust for the Senior Creditor and shall not commingle such proceeds with any of their own funds and shall forthwith pay suchprepayments or payments to. the Senior Creditor to be applied by the Senior Creditor in reduction of the Senior Obligations: Any action taken or thing done by any Subordinated Creditors in contravention of this agreementshall be null and void and of no effect. ARTICLE 4 REMEDIES 4.1 Remedies. The Obligors and the Subordinated Creditors hereby agree that all covenants, provisions and restrictions contained herein are necessary. and fundamental in order to establish the respective priorities of the Creditors in connection with the `Obligations, and that a breach by any of the Obligors or the Subordinated Creditors of any such covenant, provision or restriction would result in damages to the Senior Creditor that could not adequately be compensated by. monetary award. Accordingly,, it is expressly agreed by the Obligors and the Subordinated Creditors that in addition to all other remedies available to it including, without limitation, any, action for damages, the Senior Creditor shall be entitled..to the immediate remedy of a restraining_ order, interim' injunction, injunction or other form of injunctive or Other relief as May be decreed Or issued by any court of competent jurisdiction to restrain or enjoin the Obligors or the Subordinated Creditors from breaching any such covenant, provision or restriction. 4:2 : Default Notice. Each Creditor 'agrees to give written notice to each other Creditor simultaneously, with or immediately after the delivery to either of the Obligors of any written notice of a Demand or a Default. Failure of a Creditor to give notice as provided in this Section 4:2 shall not affect the priorities established or other agreements provided for herein, nor shall such Creditor- be liablefor failure to give any such notice nor' shall any such failure in any way limit'. or derogate from the obligations of the other Creditors. 286077.00073/103863988.4 Internal ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF THE SUBORDINATED CREDITOR$ 5.1 Representations and Warranties of the Subordinated Creditors Each of the SubordinatedCreditors hereby represents . and warrants to the Senior Creditor as follows and acknowledges and confirms that the Senior Creditor: is relying upon such representations and warranties in extending credit to the Obligors under the .applicable Senior Loan Agreements: (a) each Subordinated Creditor is a municipal corporation duly incorporated and organized and validly subsisting under the. laws of its jurisdiction of incorporation. Each ;Subordinated Creditor has all requisite corporate capacity, power and authority, to enter into, and carry out the transactions contemplated by, this agreement; (b) all necessary action, corporate or otherwise, has been taken to authorize the execution, delivery and performance of this agreement by each Subordinated Creditor and _ each Subordinated Crediton has duly executed and delivered this agreement, This agreement is a legal, valid and binding obligation of the Subordinated Creditor, enforceable . against each Subordinated Creditor by the Senior' Creditor in accordance with its. terms: ARTICLE 6 MISCELLANEOUS 6.1 Consent of the Obligors. Each Obligor, by its execution hereof, hereby agrees to be bound by, and shall act in accordance with, the terms, provisions and intent of this agreement. • 6.2 Information Exchange. Each Creditor agrees to disclose to each other .Creditor upon reasonable request from time to time the aggregate amounts then owing; by the Obligors to it and whether it has any actual knowledge of. any, Default. Each Obligor hereby consents to each Creditor providing the other Creditor with such information, financial or otherwise, regarding the Obligors and the Creditors''' ' -respective .Obligations as may be deemed advisable by the Creditors from time to time. 6.3 Non -Impairment of the Senior Creditors' Rights. No right of the Senior Creditor to enforce its rights hereunder shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Obhgois 01 by any act or failure to act by the Senior Creditor, or by any non-compliance by the Obligors or the Subordinated Creditors with the terms of this .agreement, regardless of any knowledge thereof which the Senior Creditor may have or be otherwise charged with. Without the Subordinated 286077.00073/10386398814 Internal -10- Creditors' consent, the Senior Creditor may extend, renew, : modify, or increase the Senior:. Obligations or amend or waive the terms of the Senior Loan Agreements ` and otherwise deal freely with either Obligor, all without affecting the liabilities and obligations' of the Obligors and the Subordinated Creditors hereunder and without causing or constituting a breach. of or default under any of the Subordinated ,Obligations. Notwithstanding the foregoing, the Senior Creditor agrees to provide the Subordinated Creditors with prior written notice of any such extension, renewal, modification, amendment or increase in the Senior Obligations in accordance with the notice provisions contained in 6.11 hereof provided that the inadvertent failure to provide such notice shall:not resultin any liability of the Senior Creditor to, the Subordinated Creditors... 6.4 Waivers and Amendments. No failure or delay by the Senior Creditorin exercising any right hereunder shall operate as a waiver of such right nor shall any single or partial exercise of any power or right preclude its further exercise or the exercise of any other power or right: Any term, covenant, condition or obligation of this agreement may only be amended with the written consent of all of the parties hereto or compliance therewith may only be waived (either generally or in a particular instance and either retroactively or prospectively) by the Senior Creditor in writing and in any suchevent the failure to observe, perform or discharge any such term, covenant, condition or obligation, so amended or waived (whether such amendment is executed or such consent or waiver is given before or after such failure), shall not be construed as a breach of such term, covenant, condition or obligation. 6.5 Liability of Subordinated Creditors. The Senior Creditor' hereby acknowledges', and agrees that, except as may be expressly provided for herein, the Subordinated Creditors are not and will not be liable in any way for payment or performance of the Senior Obligations: 6.6 `. Severability. Each provision of this agreement is intended to be severable and if any provision is illegal, invalid or unenforceable, such illegality, unenforceability or invalidity shall not affect the validity of this agreement or the remaining provisions. 6.7 Counterparts. This agreement may be executed in any number of counterparts all of which shall be deemedto 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: 6.8 Further Assurances. The parties hereto agree to execute and deliver such further and other documents and perform and cause to be performed such further and other acts and things as maybe necessary= or desirable in order to give full effect to this agreement and every part thereof, No . . party tothis agreement shall take any action whereby the priorities and rankings set out in this agreement might be impaired or defeated. 286077.00073/103863988.4 Internal -11- 6.9 Assignment. This agreement shall enure to the benefit of and shall be binding upon the respective .successors (including, without limitation, any trustee in bankruptcy or liquidator) and permitted assigns of the parties hereto. The Subordinated Creditors shall not assign any of their rights and obligations hereunder or under the Subordinated Loan Agreements. The rights and the obligations of the Senior: Creditor hereunder may be assigned by the Senior Creditor in whole or. in part without the consent of the other parties hereto but only in connection with or as part of an assignment by the. Senior Creditor of its rights under the Credit Agreement. 6.10 Entire Agreement. This agreement contains the entire understanding of the parties with respect to the. priority of the Obligationsand supersedes any prior agreements, undertakings, declarations, representations and understandings, both written and verbal, in respect of the priority of the Obligations.: Thele are•. no restrictions, agreements, promises, warranties, covenants .or undertakings 'relating to the priority of the Obligations other than those set forth in this agreement. 6.11 Notices. Except as otherwise provided herein, all notices and other communications provided for herein shall be in writing and shall be personally delivered to an officer or other. responsible employee of the addressee or sent by telefacsimile, charges prepaid, at or to the. applicable addresses or telefacsimile numbers, as the case may be, set out opposite the relevant party's name below or at or to such other address or addresses, telefacsimile number or numbers as any party hereto may from time to time designate to the other parties in such manner. Any communication which is personally delivered as aforesaid shall be deemed to have been validly and' effectively given on the date of such delivery if such date is a Business Day andsuch delivery was made during normal business hours of the recipient; otherwise, it shall be deemed to have been validly and effectively given on the Business Day next following such date of delivery. Any communication which is transmitted by telefacsimile as aforesaid shall be deemed to have been validly and effectively given on the date of transmission if such date is a Business Day and such transmission was made during normal business hours of the recipient; otherwise, it shall be: deemed to have been validly and effectively given on the Business Day next following such date of transmission. (a) In the case of the Senior Creditor: The Toronto -Dominion Bank South -East Commercial Banking Centre 2 King Street East Oshawa, Ontario L1H 7L3 Attention: Director, Corporate Banking Telefax: (905) 576-9147 286077.00073/103863988.4 Internal -12 (b) In the case of the Obligors: Elexicon Corporation/Elexicon Energy Inc. 55 Taunton Road East Ajax, Ontario L1T 3V3 Attention: Vice -President, Corporate Affairs and Secretary Treasurer Telefax: (905) 619-0210 (c) In the case of Clarington: The Corporation of the Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L1C 3A6 Attention: Mayor Telefax: (905) 623-5717 (d) In the case of Ajax: The Corporation of the Town of Ajax 65 Harwood Avenue South Ajax, Ontario L 1 S 2H9 (e) (f) (g) Attention: Mayor Telefax: (905) 683-1061 In the case of Pickering: The Corporation of the City of Pickering 1 The Esplanade Pickering, Ontario L1V 3P4 Attention: ` Mayor Telefax: (905) 420-9695 In the case of Whitby: Corporation of the Town of Whitby 575 Rossland Rd. E Whitby, ON L1N 2M8 In the case of Belleville: The, Corporation of the City of Belleville 169 Front Street Belleville, Ontario K8N 2Y8 286077.00073/103863988.4 Internal - 13 - Attention: Mayor Telefax: (613) 967-3209 6.12 Termination of Agreement. This agreement shall terminate' and shall be of no further force or effect upon the earlier to occur of: (a) all Senior Obligations being repaid in full and all commitments of the Senior Creditor under the Senior Loan Documents having been terminated; and (b) the written agreement of the Senior Creditor to such effect. 286077.00073/103863988.4 Internal IN WITNESS WHEREOF the parties hereto have executed this agreement. THE TORONTO -DOMINION BANK 286077.00073/103863988.4 Internal By: Name: Title: By: Name: Title: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON By: Name: Title: By: Name: Title: THE CORPORATION OF THE TOWN OF AJAX By: Name: Title: By: Name: Title: 286077.00073/103863988.4 Internal THE CORPORATION OF THE CITY OF PICKERING By: Name: Title: By: Name Title: THE CORPORATION OF THE CITY OF BELLEVILLE By; Bv:. Name: Title: Name: Title: THE CORPORATION OF THE TOWN OF WHITBY y:. Name: Title: By: Name: Title: 286077.00073/103863988.4 Internal ELEXICON CORPORATION By: Name; Title: By:, Name: Title: ELEXICON ENERGY INC: By: Name: Title: By: Name: Title: