Agreement of Resignation, Appointment and Acceptance, dated as of January 14, 2022, by and among Canopy Growth Corporation, Computershare Trust Company of Canada and Glas Trust Company LLC
Execution Version
Exhibit 4.4
AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE (the “Agreement”), dated as of January 14, 2022 by and among CANOPY GROWTH CORPORATION, a corporation duly organized and existing under the Canada Business Corporations Act, and having its principal office at 1 Hershey Drive, Smiths Falls, Ontario K7A 0A8, (the “Company”), COMPUTERSHARE TRUST COMPANY, N.A., a national association duly organized and existing under the laws of the United States and having a corporate trust office at 6200 South Quebec Street, Greenwood Village, Colorado 80111, Attention: Corporate Trust (“Successor U.S. Trustee”), and GLAS TRUST COMPANY LLC, a limited liability company duly organized and existing under the laws of the State of New Hampshire and having a corporate trust office at 3 Second Street, Suite 206, Jersey City, New Jersey 07311 (“Resigning U.S. Trustee”).
RECITALS:
WHEREAS, there are currently $600,000,000 aggregate principal amount of the Company’s 4.25% Convertible Senior Notes due 2023 (the “Securities”) outstanding under an Indenture, dated as of June 20, 2018, by and between the Company, the Canadian Trustee, and Resigning U.S. Trustee (the “Indenture”); capitalized terms not defined herein shall have the meanings ascribed to them in the Indenture;
WHEREAS, the Company appointed Resigning U.S. Trustee as the U.S. trustee (the “U.S. Trustee”), note registrar (the “Note Registrar”) and paying agent (the “Paying Agent”) under the Indenture;
WHEREAS, Section 7.09 of the Indenture provides that the U.S. Trustee may at any time resign with respect to the Securities by giving written notice of such resignation to the Company and to the Holders, effective upon the acceptance by a successor U.S. Trustee of its appointment as a successor U.S. Trustee;
WHEREAS, Section 7.09 of the Indenture provides that, if the U.S. Trustee shall resign, the Company by a Board Resolution shall promptly appoint a successor U.S. Trustee by instrument, in duplicate, executed by order of the Board of Directors;
WHEREAS, Section 7.10 of the Indenture provides that any successor U.S. Trustee appointed in accordance with the Indenture shall execute, acknowledge and deliver to the Company and to its predecessor U.S. Trustee an instrument accepting such appointment under the Indenture, and thereupon the resignation of the predecessor U.S. Trustee shall become effective and such successor U.S. Trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations of the predecessor U.S. Trustee;
WHEREAS, Resigning U.S. Trustee has given written notice by letter dated November 30, 2021, to the Company that it is resigning as U.S. Trustee, Note Registrar and Paying Agent under the Indenture;
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WHEREAS, the Company desires to appoint Successor U.S. Trustee as successor U.S. Trustee, Note Registrar and Paying Agent to succeed Resigning U.S. Trustee in such capacities under the Indenture; and
WHEREAS, Successor U.S. Trustee is willing to accept such appointment as successor U.S. Trustee, Note Registrar and Paying Agent under the Indenture;
NOW, THEREFORE, the Company, Resigning U.S. Trustee and Successor U.S. Trustee, for and in consideration of the premises and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby consent and agree as follows:
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THE RESIGNING TRUSTEE
1.1Pursuant to Section 7.09 of the Indenture, Resigning U.S. Trustee has by letter dated November 30, 2021, notified the Company that Resigning U.S. Trustee is resigning as U.S. Trustee, Note Registrar and Paying Agent under the Indenture.
1.2Resigning U.S. Trustee hereby represents and warrants to Successor U.S. Trustee that:
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| (a) | The Indenture, and each amendment and supplemental indenture thereto, if any, was validly and lawfully executed and delivered by Resigning U.S. Trustee and is in full force and effect. Except as set forth herein, the Indenture has not been supplemented and remains in full force and effect. |
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| (b) | No covenant or condition contained in the Indenture has been waived by Resigning U.S. Trustee or, to the knowledge of responsible officers of Resigning U.S. Trustee’s corporate trust department, by the Holders of the percentage in aggregate principal amount of the Securities required by the Indenture to affect any such waiver. |
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| (c) | To the knowledge of responsible officers of Resigning U.S. Trustee’s corporate trust department, there is no action, suit or proceeding pending or threatened against Resigning U.S. Trustee before any court or any governmental authority arising out of any act or omission of Resigning U.S. Trustee as U.S. Trustee under the Indenture. |
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| (d) | As of the Effective Date of this Agreement, Resigning U.S. Trustee will hold no moneys or property under the Indenture. |
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| (e) | Pursuant to Section 2.04 of the Indenture, Resigning U.S. Trustee has duly authenticated and delivered $600,000,000 aggregate principal amount of Securities, $600,000,000 of which are outstanding as of the Effective Date and interest has been paid through the most recent date on which interest is required to be paid in accordance with the terms of such Securities. |
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| (f) | The registers in which it has registered and transferred registered Securities accurately reflect the amount of Securities issued and outstanding and the amounts payable thereon. |
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| (g) | Each person who so authenticated the Securities was duly elected, qualified and acting as an officer or authorized signatory of Resigning U.S. Trustee and empowered to authenticate the Securities at the respective times of such authentication and the signature of such person or persons appearing on such Securities is each such person’s genuine signature. |
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| (h) | This Agreement has been duly authorized, executed and delivered on behalf of Resigning U.S. Trustee and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms. |
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| (i) | Without independent investigation, no responsible officer of Resigning U.S. Trustee’s corporate trust department has received notice from the Company or any Holder that a default or Event of Default has occurred and is continuing, and no responsible officer of Resigning U.S. Trustee’s corporate trust department has actual knowledge that a default or Event of Default has occurred and is continuing under the Indenture. |
1.3Resigning U.S. Trustee hereby assigns, transfers, delivers and confirms to Successor U.S. Trustee all right, title and interest of Resigning U.S. Trustee in and to the trust under the Indenture and all the rights, powers, trusts, privileges, immunities, indemnities, duties and obligations of the U.S. Trustee under the Indenture, including, without limitation, all of its rights to, and all of its security interests in and liens upon, the collateral, if any, and all other rights of Resigning U.S. Trustee with respect to the collateral, if any, pursuant to the transaction documents. Resigning U.S. Trustee shall execute and deliver such further instruments and shall do such other things as Successor U.S. Trustee may reasonably require so as to more fully and certainly vest and confirm in Successor U.S. Trustee all the rights, powers, trusts, privileges, immunities, indemnities, duties and obligations hereby assigned, transferred, delivered and confirmed to Successor U.S. Trustee as U.S. Trustee, Note Registrar and Paying Agent.
1.4Resigning U.S. Trustee shall deliver to Successor U.S. Trustee, as of or promptly after the Effective Date all of the documents listed on Exhibit A hereto.
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THE COMPANY
2.1The Company hereby accepts the resignation of Resigning U.S. Trustee as U.S. Trustee, Note Registrar and Paying Agent under the Indenture.
2.2The Company hereby appoints Successor U.S. Trustee as U.S. Trustee, Note Registrar and Paying Agent under the Indenture to succeed to, and hereby vests Successor U.S. Trustee with, all the rights, powers, trusts, privileges, immunities, indemnities, duties and obligations of Resigning U.S. Trustee, Note Registrar and Paying Agent under the Indenture with like effect as if originally named as U.S. Trustee, Note Registrar and Paying Agent in the Indenture.
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2.3Promptly after the Effective Date of this Agreement, the Company shall cause a notice, substantially in the form of Exhibit B annexed hereto, to be sent to each Holder of the Securities in accordance with the provisions of Section 7.10 the Indenture.
2.4The Company hereby represents and warrants to Resigning U.S. Trustee and Successor U.S. Trustee that:
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| (a) | The Company is a corporation duly and validly organized and existing under the Canada Business Corporations Act. |
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| (b) | The Indenture, and each amendment or supplemental indenture thereto, if any, was validly and lawfully executed and delivered by the Company and is in full force and effect and the Securities were validly issued by the Company. Except as set forth herein, the Indenture has not been supplemented and remains in full force and effect. |
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| (c) | The Company has performed or fulfilled prior to the date hereof, and will continue to perform and fulfill after the date hereof, each of its respective covenants, agreements, conditions, obligations and responsibilities under the Indenture. |
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| (d) | No event has occurred and is continuing which is, or after notice or lapse of time would become, an Event of Default under the Indenture. |
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| (e) | No covenant or condition contained in the Indenture has been waived by the Company or, to the best of the Company’s knowledge, by Holders of the percentage in aggregate principal amount of the Securities required to affect any such waiver. |
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| (f) | There is no action, suit or proceeding pending or, to the best of the Company’s knowledge, threatened against the Company before any court or any governmental authority arising out of any act or omission of the Company under the Indenture. |
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| (g) | The Company has, by a resolution which was duly adopted by the Board of Directors of the Company, and which is in full force and effect on the date hereof, authorized certain officers of the Company to: (a) accept Resigning U.S. Trustee’s resignation as U.S. Trustee, Note Registrar and Paying Agent under the Indenture; (b) appoint Successor U.S. Trustee as U.S. Trustee, Note Registrar and Paying Agent under the Indenture; and (c) execute and deliver such agreements, including, without limitation, this Agreement and other instruments as may be necessary or desirable to effectuate the succession of Successor U.S. Trustee as U.S. Trustee, Note Registrar and Paying Agent under the Indenture. Furthermore, this Agreement has been duly authorized, executed and delivered on behalf of the Company and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms. |
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| (h) | The Company has issued $600,000,000 aggregate principal amount of Securities pursuant to the terms of the Indenture, $600,000,000 of which are outstanding as of the Effective Date hereof and interest due on such Securities has been paid through July 15, 2021, the most recent date on which interest is required to be paid in accordance with the terms of such Securities. |
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| (i) | The Company hereby reaffirms its obligations to Successor U.S. Trustee under Section 7.06 of the Indenture. |
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| (j) | The Company acknowledges and reaffirms its obligation set forth in Section 7.06 of the Indenture to (i) pay or reimburse Resigning U.S. Trustee upon its request for all reasonable expenses, disbursements and advances reasonably incurred or made by Resigning U.S. Trustee in accordance with any of the provisions of the Indenture in any capacity thereunder (including the reasonable compensation and the expenses and disbursements of its agents and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by Resigning U.S. Trustee’s gross negligence or willful misconduct and to (ii) indemnify Resigning U.S. Trustee (and its affiliates, officers, directors, agents and employees) for, and to hold Resigning U.S. Trustee (and its affiliates, officers, directors, agents and employees) harmless against any loss, claim, demand, assessment, interest, penalty, action, suit, proceeding, damage, liability, cost or expense, including, without limiting the foregoing, expert, consultant and reasonable counsel fees and disbursements on a solicitor and client basis, incurred without gross negligence or willful misconduct on the part of Resigning U.S. Trustee, its affiliates, officers, directors, agents or employees, or such agent or authenticating agent, as the case may be, and arising out of or in connection with the acceptance or administration of the Indenture or in any other capacity thereunder, including the costs and expenses of defending themselves against any claim of liability in the premises. |
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| (k) | All conditions precedent relating to the appointment of Computershare Trust Company, N.A., as successor U.S. Trustee under the Indenture have been complied with by the Company. |
2.5The Company acknowledges that, in accordance with Section 326 of the USA Patriot Act, Successor U.S. Trustee, in order to help fight the funding of terrorism and prevent money laundering, is required to obtain, verify and record information that identifies each person or legal entity that establishes a relationship or opens an account with Successor U.S. Trustee. The Company agrees that it will provide Successor U.S. Trustee with such information as it may request in order for Successor U.S. Trustee to satisfy the requirements of the USA Patriot Act.
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THE SUCCESSOR TRUSTEE
3.1Successor U.S. Trustee hereby represents and warrants to Resigning U.S. Trustee and to the Company that:
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| (a) | Successor U.S. Trustee is qualified and eligible under Section 7.08 of the Indenture and applicable law to act and serve as U.S. Trustee under the Indenture. |
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| (b) | This Agreement has been duly authorized, executed and delivered on behalf of Successor U.S. Trustee and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms. |
3.2Successor U.S. Trustee hereby accepts its appointment as successor U.S. Trustee, Note Registrar and Paying Agent under the Indenture and accepts the rights, powers, trusts, privileges, immunities, indemnities, duties and obligations of Resigning U.S. Trustee as U.S. Trustee, Note Registrar and Paying Agent under the Indenture, upon the terms and conditions set forth therein, with like effect as if originally named as U.S. Trustee, Note Registrar and Paying Agent under the Indenture.
3.3References in the Indenture to “Corporate Trust Office” or other similar terms shall be deemed to refer to the designated corporate trust office of Successor U.S. Trustee, which is presently located at Greenwood Village, Colorado.
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MISCELLANEOUS
4.1Except as otherwise expressly provided herein or unless the context otherwise requires, all terms used herein which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
4.2This Agreement and the resignation, appointment and acceptance effected hereby shall be effective (the “Effective Date”) as of the close of business on the date hereof, upon the execution and delivery hereof of this Agreement by each of the parties hereto; provided, however, that the resignation of Resigning U.S. Trustee and the appointment of Successor Trustee, as Trustee, Note Registrar and Paying Agent under the Indenture, shall be effective upon the latest of: (a) 10 calendar days after the date hereof; and (b) 10 calendar days after receipt by The Depository Trust Company (“DTC”) of both Resigning U.S. Trustee’s transfer agency change notice and Successor Trustee’s transfer agency change notice.
4.3The parties hereto agree that as of the Effective Date, all references to the U.S. Trustee in the Indenture shall be deemed to refer to Successor U.S. Trustee, and all references to the Paying Agent and Note Registrar under the Indenture shall be deemed to refer to Successor U.S. Trustee, in each such capacity.
4.4This Agreement does not constitute a waiver by any of the parties hereto of any obligation or liability which Resigning U.S. Trustee may have incurred in connection with its
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serving as U.S. Trustee, Paying Agent or Note Registrar under the Indenture or an assumption by Successor U.S. Trustee of any liability of Resigning U.S. Trustee arising out of a breach by Resigning U.S. Trustee prior to its resignation of its duties under the Indenture.
4.5Resigning U.S. Trustee hereby acknowledges payment or provision for payment in full by the Company of compensation for all services rendered by Resigning U.S. Trustee in its capacity as U.S. Trustee, Note Registrar and Paying Agent under Section 7.06 of the Indenture and reimbursement in full by the Company of the expenses, disbursements and advances incurred or made by Resigning U.S. Trustee in its capacity as U.S. Trustee, Note Registrar and Paying Agent in accordance with the provisions of the Indenture. Resigning U.S. Trustee acknowledges that it relinquishes any lien it may have upon all property or funds held or collected by it to secure any amounts due it pursuant to the provisions of Section 6.04 of the Indenture. This Agreement does not constitute a waiver or assignment by Resigning U.S. Trustee of any compensation, reimbursement, expenses or indemnity to which it is or may be entitled pursuant to the Indenture. The Company acknowledges its obligation set forth in Section 7.06 of the Indenture to indemnify Resigning U.S. Trustee for, and to hold Resigning U.S. Trustee harmless against, any loss, liability or expense incurred without gross negligence or willful misconduct on the part of Resigning U.S. Trustee and arising out of or in connection with the acceptance or administration of the trust evidenced by the Indenture (which obligation shall survive the execution hereof).The parties hereto agree to take reasonable action to confirm, evidence and perfect Successor U.S. Trustee’s rights in, or with respect to, the collateral, if any, pursuant to the transaction documents.
4.6This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of laws principles thereof.
4.7This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Agreement as to the parties hereto and may be used in lieu of the original Agreement and signature pages for all purposes.
4.8This Agreement sets forth the entire agreement of the parties with respect to its subject matter, and supersedes and replaces any and all prior contemporaneous warranties, representations or agreements, whether oral or written, with respect to the subject matter of this Agreement other than those contained in this Agreement.
4.9The Company, Resigning U.S. Trustee and Successor U.S. Trustee hereby acknowledge receipt of an executed counterpart of this Agreement and the effectiveness thereof.
4.10Unless otherwise provided herein, all notices, requests and other communications to any party hereunder shall be in writing (including facsimile and electronic transmission in PDF format) and shall be given to such party, addressed to it, as set forth below:
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| If to the Company: | |||
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| Canopy Growth Corporation | ||
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| If to Resigning U.S. Trustee: | |||
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| GLAS Trust Company LLC | ||
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| for Canopy Growth Corporation |
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| If to Successor U.S. Trustee: | |||
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| Computershare Trust Company, N.A. | |
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[Remainder of this Page Intentionally Left Blank;
Signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement of Resignation, Appointment and Acceptance to be duly executed, all as of the day and year first above written.
| CANOPY GROWTH CORPORATION | |
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| By: /s/ Judy Hong |
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| Name: Judy Hong |
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| Title: CFO (Interim) | |
| GLAS TRUST COMPANY LLC, | |
| as Resigning U.S. Trustee | |
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| By: /s/ Lisha John |
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| Name: Lisha John |
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| Title: Vice President | |
| COMPUTERSHARE TRUST COMPANY, N.A., | |
| as Successor U.S. Trustee | |
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| By: /s/ Jerry Urbanek |
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| Name: Jerry Urbanek |
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| Title: Trust Officer | |
Acknowledged and Agreed.
| COMPUTERSHARE TRUST COMPANY OF CANADA, | |
| as Canadian Trustee | |
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| By: /s/ Neil Scott |
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| Name: Neil Scott |
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| Title: Corporate Trust Officer | |
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| By: /s/ Yana Nedyalkova |
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| Name: Yana Nedyalkova |
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| Title: Corporate Trust Officer | |
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EXHIBIT A
Documents to be delivered to Successor U.S. Trustee
| 1. | Executed copy of Indenture and each amendment and supplemental indenture thereto. |
| 2. | File of closing documents from initial issuance. |
| 3. | Collateral, if any, and related documents, if any. |
| 4. | Copies of the most recent of each of the SEC reports delivered by the Company pursuant to Section 4.06(b) of the Indenture, if any. |
| 5. | A copy of the most recent compliance certificate delivered pursuant to Section 4.08 of the Indenture, if any. |
| 6. | Certified list of Holders, including certificate detail and all “stop transfers” and the reason for such “stop transfers” (or, alternatively, if there are a substantial number of registered Holders, the computer tape reflecting the identity of such Holders), if any. |
| 7. | Copies of any official notices sent by the U.S. Trustee to all the Holders of the Securities pursuant to the terms of the Indenture during the past twelve months and a copy of the most recent U.S. Trustee’s annual report to Holders delivered pursuant to Section of the Indenture, if any. |
| 8. | List of any documents which, to the knowledge of Resigning U.S. Trustee, are required to be furnished but have not been furnished to Resigning U.S. Trustee, if any. |
| 9. | Trust account statements (asset & transaction) for the one-year period preceding the date of this Agreement, if any. |
| 10. | All unissued Security inventory and global notes, if any. |
| 11. | Securities debt service records and conversion records, if any. |
| 12. | Filed, stamped copies of all existing financing statements, if any. |
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CUSIP #_______________
EXHIBIT B
CANOPY GROWTH CORPORATION
NOTICE
To the Holders of
4.25% Convertible Senior Notes due 2023
NOTICE IS HEREBY GIVEN, pursuant to Section 7.10 of the Indenture (the “Indenture”), dated as of June 20, 2018, by and between the Company, the Canadian Trustee, and U.S. Trustee (the “Indenture”), that GLAS Trust Company LLC has resigned as U.S. trustee, note registrar and paying agent under the Indenture.
Pursuant to Section 7.10 of the Indenture, Computershare Trust Company, N.A., a national association duly organized and existing under the laws of the United States, has accepted appointment as trustee, note registrar and paying agent under the Indenture. The address of the designated corporate trust office of the successor U.S. Trustee is 6200 South Quebec Street, Greenwood Village, Colorado 80111, Attention: Corporate Trust. GLAS Trust Company LLC’s resignation as trustee, note registrar and paying agent and Computershare Trust Company, N..A.’s appointment as successor trustee, note registrar and paying agent were effective as of the opening of business on January [•], 2022.
| Dated: January [•], 2022 |
| CANOPY GROWTH CORPORATION |
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