Loan Agreement, effective May 7, 2019, as amended September 13, 2019, between DAVIDsTEA Inc. and Oink Oink Candy Inc

EX-10.1 2 dtea_ex101.htm LOAN AGREEMENT dtea_ex101.htm

EXHIBIT 10.1

FIRST AMENDMENT TO LOAN AGREEMENT entered into in the City of Montreal, Quebec, as of the 13^th day of September, 2019

BETWEEN:	DAVIDSTEA INC., a corporation organized under the laws of Canada, having its head office at 5430 Ferrier Street, Mount-Royal, Québec, H4P 1M2
	(as "Lender")

AND:	OINK OINK CANDY INC., a corporation organized under the laws of Canada, having its head office at 5695 Ferrier Street, Mount-Royal, Québec, H4P 1N1
	(as "Borrower")

AND:	RAINY DAY INVESTMENTS LTD., a corporation organized under the laws of Canada, having its head office at 5695 Ferrier Street, Mount-Royal, Québec, H4P 1N1
	(as "Guarantor")

WHEREAS the Borrower, the Guarantor and the Lender entered into a loan agreement dated as of May 7, 2019 (the “Original Loan Agreement” and the Original Loan Agreement as amended by the terms hereof and as same may be further amended, supplemented or restated, the “Loan Agreement”);

WHEREAS the Borrower, the Guarantor and the Lender wish to amend certain provisions of the Original Loan Agreement as of the date hereof;

NOW THEREFORE, THE PARTIES HAVE AGREED TO THE FOLLOWING:

1.	AMENDMENTS

(a)	Section 1 of the Original Loan Agreement is hereby amended by replacing it in its entirety with the following:

	“The Lender agrees, upon the terms and subject to the conditions of this Agreement, to lend to the Borrower, an amount of up to but not exceeding, in the aggregate CDN$2,000,000 (the "Facility"). The Facility is available on a non-revolving basis such that, the Borrower may not re-borrow the whole or any part of any advance previously repaid. "Loan" means the principal amount outstanding under the Facility at any time.”;

(b)	Section 3 of the Original Loan Agreement is hereby amended by replacing it in its entirety with the following:

AMENDMENT AGREEMENT PAGE 2

	“The Borrower hereby acknowledges that as of September 13, 2019, the full amount of the Facility has been advanced to it and a Loan in the amount of CDN$2,000,000 is outstanding.”;

(c)	Section 7 of the Original Loan Agreement is hereby amended by replacing it in its entirety with the following:

	“Payment in full of principal and interest outstanding pursuant to the Loan shall be due and payable on December 31, 2019 (the "Maturity Date").”;

(d)	Section 11 of the Original Loan Agreement is hereby amended by replacing it in its entirety with the following:

	“Each of the Borrower and the Guarantor represents and warrants to the Lender that:

	11.1.1 it is a corporation duly constituted, validly existing and in good standing with respect to the filing of its returns under the laws of its jurisdiction of constitution;

	11.1.2 it has all requisite power and authority to own its property and to carry on its business;

	11.1.3 it has the power, and it has taken all necessary action, to authorise it to borrow or, as the case maybe, guarantee, under the terms of this Agreement; and

	11.1.4 this Agreement has been duly executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject, as to enforcement of remedies, to any applicable bankruptcy, insolvency or other similar law affecting the enforcement of creditors rights generally and subject to the limitation of the availability of the remedy of specific performance or injunctive relief under any law and affecting the enforcement of creditors rights generally, and subject to the limitation of the availability of the remedy of specific performance or injunctive relief which is subject to the discretion of the court before which any proceeding therefore may be brought.”;

(e)	Section 12.1 of the Original Loan Agreement is hereby amended by replacing it in its entirety with the following:

	“The occurrence of the following events while any principal amount remains outstanding under the Loan shall constitute an event of default (an "Event of Default"):

	12.1.1 should the Borrower or the Guarantor fail to make, upon demand from the Lender, any payment with respect to the Loan; or

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	12.1.2 should (a) an involuntary proceeding be commenced against the Borrower or the Guarantor (i) seeking bankruptcy, liquidation, reorganization, dissolution, winding up, a composition or arrangement with creditors, a readjustment of debts, or other relief with respect to it or its debts under any bankruptcy laws or other customary insolvency actions or (ii) seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its assets, the issuance of a writ of attachment, execution, or similar process, or like relief, and such involuntary proceeding shall remain undismissed and unstayed for a period of 30 days, (b) an order for relief is entered against the Borrower or the Guarantor under the Bankruptcy and Insolvency Act (Canada), the Companies' Creditors Arrangement Act (Canada) or any other present or future federal bankruptcy or insolvency Laws of Canada, (c) filing by the Borrower or the Guarantor of an answer admitting the material allegations of a petition filed against it in any involuntary proceeding commenced against it or the Borrower or the Guarantor stating that it is unable to pay its debts generally when they fall due, or (d) consent by the Borrower or the Guarantor to any relief referred to in this paragraph or to the appointment of or taking possession by any such official in any involuntary proceeding commenced against it or the taking of any steps by the Borrower or the Guarantor to obtain any such relief; or

	12.1.3 should any representation or warranty which has been made by or on behalf of the Borrower or the Guarantor to the Lender in or pursuant to this Agreement prove at any time to be either incorrect or substantially inaccurate with respect to a material aspect.”;

(f)	Section 12.2 of the Original Loan Agreement is hereby amended by replacing it in its entirety with the following:

	“If an Event of Default has occurred and is continuing and in every such event:

	12.2.1 with the exception of an Event of Default specified in subsection 12.1.2, the Lender may declare as being immediately due and payable all of the principal amount then outstanding under the Loan, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower, anything in the Agreement to the contrary notwithstanding and thereupon the Lender may exercise and all of its rights and recourses under this Agreement, any security document executed in connection herewith and all applicable law; and

	12.2.2 upon the occurrence of an Event of Default specified in subsection 12.1.2, such principal referred to in subsection 12.2.1 shall thereupon and concurrently therewith become due and payable, all without any action by the Lender and without presentment, demand, protest or other notice of any kind, all of which are expressly waived by the Borrower, anything in this Agreement to the contrary notwithstanding, and thereupon the Lender may exercise any and all of its rights and recourses under this Agreement, any security document executed in connection herewith and all applicable law.”;

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(g)	Section 12.4 of the Original Loan Agreement is hereby amended by replacing it in its entirety with the following:

	“The Lender may, subject to acting in a commercially reasonable manner, grant extensions of time and other indulgences, take and give securities, accept compositions, grant leases and discharges and otherwise deal with the Borrower as the Lender may see fit, without prejudice to the liability of the Borrower or the Guarantor.”;

(h)	Section 14 of the Original Loan Agreement is hereby amended by replacing it in its entirety with the following:

	“This Agreement shall be binding upon and shall inure to the benefit of the Borrower and the Lender and their respective successors and assigns; provided, however, that (i) neither the Borrower nor the Guarantor may assign its rights and obligations under this Agreement without the express prior written consent of the Lender, and (ii) the Lender may assign, directly or indirectly, any of its rights, duties or obligations hereunder with the express prior written consent of the Borrower, which consent of the Borrower shall not be required at any time when an Event of Default has occurred and is continuing.”.

2.	INTEREST PAYMENT

	The Borrower covenants and agrees that it shall pay, on September 17, 2019, all outstanding interest on the Loan as of August 3^rd, 2019, in the aggregate amount of CDN$12,800.

3.	ORIGINAL LOAN AGREEMENT

	Save as amended hereby, the provisions of the Original Loan Agreement shall continue to bind the parties hereto and remain in full force and effect.

4.	COUNTERPARTS

	This First Amendment to Loan Agreement may be executed in any number of counterparts, each of which when executed and delivered is an original but all of which taken together constitute one and the same instrument.

5.	INTERPRETATION

	This Agreement shall be interpreted in accordance with and governed by the Province of Québec and the laws of Canada applicable therein. In any place in this Agreement where the context requires it, the singular number shall be interpreted as plural and the neuter gender as either masculine or feminine. Les parties aux présentes ont expressément exigé que la présente convention et tous les autres contrats, documents ou avis qui y sont afférents soient rédigés en langue anglaise.

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[Signature page follows]

AMENDMENT AGREEMENT – SIGNATURE PAGE

IN WITNESS HEREOF, each of the parties hereto has executed this Agreement at the place and time first hereinabove indicated.

		OINK OINK CANDY INC.
		as Borrower

	Per:	/s/ Sarah Segal
		Name:
		Title:

		DAVIDSTEA INC.
		as Lender

	Per:	/s/ Frank Zitella
		Name:
		Title:

		RAINY DAY INVESTMENTS LTD.
		as Guarantor

	Per:	/s/ Herschel Segal
		Name:
		Title: