UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of May 2022
Commission File Number: 001-35400
JUST
ENERGY GROUP INC.
(Translation of registrant’s name into English)
1000
King Street West, Suite 2630
Toronot, Ontario M5X 1E1
(Addres of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F x From 40-F ¨
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1) ¨
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7) ¨
DOCUMENTS INCLUDED AS PART OF THIS REPORT
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Dated: May 13, 2022
| JUST ENERGY GROUP INC. | ||
| (Registrant) | ||
| By: | /s/ Michael Carter | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
Exhibit 99.1
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT,
R.S.C. 1985, c. C-36, AS AMENDED
IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF
JUST ENERGY GROUP INC., JUST ENERGY CORP., ONTARIO ENERGY COMMODITIES INC., UNIVERSAL ENERGY CORPORATION, JUST ENERGY FINANCE CANADA
ULC, HUDSON ENERGY CANADA CORP., JUST MANAGEMENT CORP., 11929747 CANADA INC., 12175592 CANADA INC., JE SERVICES HOLDCO I INC., JE SERVICES
HOLDCO II INC., 8704104 CANADA INC., JUST ENERGY ADVANCED SOLUTIONS CORP., JUST ENERGY (U.S.) CORP., JUST ENERGY ILLINOIS CORP., JUST
ENERGY INDIANA CORP., JUST ENERGY MASSACHUSETTS CORP., JUST ENERGY NEW YORK CORP., JUST ENERGY TEXAS I CORP., JUST ENERGY, LLC, JUST
ENERGY PENNSYLVANIA CORP., JUST ENERGY MICHIGAN CORP., JUST ENERGY SOLUTIONS INC., HUDSON ENERGY SERVICES LLC, HUDSON ENERGY CORP., INTERACTIVE
ENERGY GROUP LLC, HUDSON PARENT HOLDINGS LLC, DRAG MARKETING LLC, JUST ENERGY ADVANCED SOLUTIONS LLC, FULCRUM RETAIL ENERGY LLC, FULCRUM
RETAIL HOLDINGS LLC, TARA ENERGY, LLC, JUST ENERGY MARKETING CORP., JUST ENERGY CONNECTICUT CORP., JUST ENERGY LIMITED, JUST SOLAR HOLDINGS
CORP. AND JUST ENERGY (FINANCE) HUNGARY ZRT.
APPLICANTS
PLAN OF COMPROMISE AND ARRANGEMENT
pursuant to the Companies’ Creditors Arrangement Act
concerning, affecting and involving the Applicants and the partnerships listed in Schedule “A” hereto.
May 26, 2022
TABLE OF CONTENTS
| Article 1 INTERPRETATION | 2 |
| 1.1 Definitions | 2 |
| 1.2 Certain Rules of Interpretation | 25 |
| 1.3 Date and Time for any Action | 26 |
| 1.4 Successors and Assigns | 27 |
| 1.5 Governing Law | 27 |
| 1.6 Schedules | 27 |
| Article 2 PURPOSE AND EFFECT OF THE PLAN | 27 |
| 2.1 Purpose | 27 |
| 2.2 Persons Affected | 28 |
| 2.3 Persons Not Affected | 28 |
| 2.4 Equity Claimants | 28 |
| 2.5 Treatment of Employment Agreements | 28 |
| 2.6 Management Incentive Plan | 28 |
| Article 3 CLASSIFICATION AND TREATMENT OF CREDITORS AND RELATED MATTERS | 29 |
| 3.1 Claims Procedure | 29 |
| 3.2 Classification of Creditors | 29 |
| 3.3 Meetings | 29 |
| 3.4 Affected Claims of the General Unsecured Creditors | 29 |
| 3.5 Affected Claims of the Secured Creditor Class | 32 |
| 3.6 Treatment of the BP Commodity / ISO Services Claims | 32 |
| 3.7 Treatment of De Minimis Claims | 32 |
| 3.8 Unaffected Claims | 33 |
| 3.9 New Equity Offering | 33 |
| 3.10 Transferred Claims | 35 |
| 3.11 Extinguishment of Claims | 36 |
| 3.12 Guarantees and Similar Covenants | 36 |
| 3.13 Set-Off | 36 |
| Article 4 PLAN IMPLEMENTATION FUND | 36 |
| 4.1 Plan Implementation Fund | 36 |
| 4.2 Administrative Expense Reserve and Other Fees and Expenses | 36 |
| Article 5 DISTRIBUTIONS, PAYMENTS AND TREATMENT OF CLAIMS | 37 |
| 5.1 Distributions Generally | 37 |
| 5.2 Distributions to the General Unsecured Creditors | 37 |
| 5.3 Distributions of the New Shares | 38 |
| 5.4 Distributions, Payments and Settlements of Unaffected Claims | 40 |
| 5.5 Distributions in respect of Transferred Claims | 42 |
| 5.6 Treatment of Undeliverable Distributions | 42 |
| 5.7 Currency | 43 |
| 5.8 Allocation of Payments and Distributions | 43 |
| 5.9 Interest | 43 |
| 5.10 Tax Matters | 43 |
| 5.11 Priority Claims | 43 |
| 5.12 Fractional Interests | 44 |
| 5.13 Calculations | 44 |
| 5.14 Cancellation | 44 |
| 5.15 Modifications to Distribution Mechanics | 44 |
| Article 6 RESTRUCTURING TRANSACTION | 44 |
| 6.1 Corporate Actions | 44 |
| 6.2 Effective Date Transactions | 45 |
| 6.3 Issuances Free and Clear | 45 |
| Article 7 REGULATORY MATTERS | 45 |
| 7.1 Competition Act and Investment Canada Act Approval | 45 |
| 7.2 Antitrust Approvals | 46 |
| 7.3 Regulatory Approvals | 46 |
| 7.4 Transaction Regulatory Approvals | 46 |
| 7.5 Competitively Sensitive Information | 47 |
| 7.6 No Divestitures or Material Operating Restrictions | 47 |
| Article 8 RELEASES | 47 |
| 8.1 Third-Party Releases | 47 |
| 8.2 Debtor Releases | 48 |
| 8.3 Limitation on Insured Claims | 49 |
| 8.4 Injunctions | 49 |
| 8.5 Exculpation | 49 |
| 8.6 Consenting Parties | 50 |
| 8.7 Compromise of Claims under Section 19(2) of the CCAA | 50 |
| Article 9 COURT SANCTION | 51 |
| 9.1 Application for Sanction Order | 51 |
| 9.2 Sanction Order | 51 |
| Article 10 CONDITIONS PRECEDENT AND IMPLEMENTATION | 54 |
| 10.1 Conditions Precedent to Implementation of the Plan | 54 |
| 10.2 Monitor’s Certificate | 56 |
| Article 11 GENERAL | 56 |
| 11.1 Binding Effect | 56 |
| 11.2 Waiver of Defaults | 57 |
| 11.3 Claims Bar Date | 58 |
| 11.4 Preferential Transactions | 58 |
| 11.5 Deeming Provisions | 58 |
| 11.6 Non-Consummation | 58 |
| 11.7 Amendments to the Plan Prior to Approval | 59 |
| 11.8 Amendments to the Plan Following Approval | 59 |
| 11.9 Paramountcy | 59 |
| 11.10 Severability of Plan Provisions | 60 |
| 11.11 The Monitor | 60 |
| 11.12 Different Capacities | 61 |
| 11.13 Authority and Reliance Upon Consent | 61 |
| 11.14 Notices | 62 |
| 11.15 Further Assurances | 63 |
PLAN OF COMPROMISE AND ARRANGEMENT
WHEREAS:
(A) Just Energy Group Inc. (“JEGI”), Just Energy Corp., Ontario Energy Commodities Inc., Universal Energy Corporation, Just Energy Finance Canada ULC, Hudson Energy Canada Corp., Just Management Corp., Just Energy Finance Holding Inc. (“JEFH”), 11929747 Canada Inc., 12175592 Canada Inc., JE Services Holdco I Inc., JE Services Holdco II Inc., 8704104 Canada Inc., Just Energy Advanced Solutions Corp., Just Energy (U.S.) Corp. (“JEUS”), Just Energy Illinois Corp, Just Energy Indiana Corp., Just Energy Massachusetts Corp., Just Energy New York Corp., Just Energy Texas I Corp., Just Energy, LLC, Just Energy Pennsylvania Corp., Just Energy Michigan Corp., Just Energy Solutions Inc., Hudson Energy Services LLC, Hudson Energy Corp., Interactive Energy Group LLC, Hudson Parent Holdings LLC, Drag Marketing LLC, Just Energy Advanced Solutions LLC, Fulcrum Retail Energy LLC, Fulcrum Retail Holdings LLC, Tara Energy, LLC, Just Energy Marketing Corp., Just Energy Connecticut Corp., Just Energy Limited, Just Solar Holdings Corp., and Just Energy (Finance) Hungary Zrt. (collectively, the “Initial Applicants”, and the Initial Applicants other than JEFH, the “Applicants”) are debtor companies under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, as amended (the “CCAA”).
(B) On March 9, 2021 (the “Filing Date”), the Ontario Superior Court of Justice (Commercial List) (the “Court”) issued an Order (as amended and restated on March 17, 2021 and May 26, 2021, and as it may be further amended, restated, varied and/or supplemented from time to time, the “Initial Order”) commencing a proceeding pursuant to the CCAA (the “CCAA Proceeding”) in respect of the Initial Applicants and the partnerships listed on Schedule “A” hereto (collectively, other than JEFH, the “Just Energy Entities”).
(C) On the Filing Date, JEGI, as authorized foreign representative, commenced a recognition proceeding (the “Chapter 15 Proceeding”) on behalf of the Initial Applicants pursuant to Chapter 15, Title 11 of the United States Code (“Chapter 15”), and on April 2, 2021, the United States Bankruptcy Court for the District of Texas (the “U.S. Court”) granted an Order giving full force and effect to the Initial Order in the United States.
(D) On January 22, 2022, JEFH was dissolved pursuant to an Order of the Court in the CCAA Proceeding dated November 10, 2021.
(E) The Applicants hereby propose and present this plan of compromise and arrangement (the “Plan”) under and pursuant to the CCAA and, as applicable, the Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended (the “CBCA”), to, among other things, implement a restructuring of the Just Energy Entities and ensure the continuation of the Just Energy Entities and their business.
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Article 1
INTERPRETATION
| 1.1 | Definitions |
In the Plan, unless otherwise stated or unless the subject matter or context otherwise requires:
“1145 Securities” means New Shares issued in reliance on Section 1145.
“4(a)(2) Securities” has the meaning ascribed thereto in Section 5.3(g).
“Accepted Claim” means any Affected Claim of a Creditor, as finally determined in accordance with the Claims Procedure Order, any other Order of the Court in the CCAA Proceeding or the U.S. Court in the Chapter 15 Proceeding, and/or the Plan.
“Additional Backstop Parties” has the meaning ascribed thereto in the Backstop Commitment Letter and “Additional Backstop Party” means any one of the Additional Backstop Parties.
“Administration Charge” has the meaning ascribed thereto in the Initial Order.
“Administrative Expense Reserve” means the amount of $1,900,000.
“Advance Ruling Certificate” means an advance ruling certificate issued by the Commissioner pursuant to section 102 of the Competition Act with respect to the transactions contemplated by the Plan.
“Adversary Proceeding” means the adversary proceeding commenced on November 12, 2021 by JEGI, Just Energy Texas LP, Fulcrum Retail Energy LLC and Hudson Energy Services LLC against Electric Reliability Council of Texas, Inc. and the Public Utility Commission of Texas.
“Affected Claim” means any Claim other than an Unaffected Claim.
“Affected Creditor” means a holder of an Affected Claim, but only with respect to and to the extent of such Affected Claim.
“Affiliate” of any Person shall mean any Person directly or indirectly controlling, controlled by, or under common control with, such Person; provided, that, for the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. For greater certainty, an Affiliate of a Person shall include such Person’s investment funds and managed accounts and any funds managed or directed by the same investment advisor.
“Antitrust Approval” means any approval, clearance, filing or expiration or termination of a waiting period pursuant to which a transaction would be deemed to be unconditionally approved in relation to the transactions contemplated by the Plan under any Antitrust Law of any country or jurisdiction that the Just Energy Entities and the Plan Sponsor may agree, each acting reasonably, is required, other than the Competition Act Approval.
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“Antitrust Laws” means all Applicable Laws, including any antitrust, competition or trade regulation laws, that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization, restraint of trade or lessening or preventing competition through merger or acquisition.
“Applicable Law” means any law (including any principle of civil law, common law or equity), statute, Order, decree, judgment, rule, regulation, ordinance or other pronouncement having the effect of law, whether in Canada, the United States or any other country, or any domestic or foreign state, county, province, city or other political subdivision of any Governmental Entity.
“Applicants” has the meaning ascribed thereto in the recitals, and “Applicant” means any one of the Applicants.
“Assessments” has the meaning ascribed thereto in the Claims Procedure Order.
“Authorization Order” means the Order of the Court in the CCAA Proceeding that, among other things, approves the Support Agreement and the Backstop Commitment Letter and seals certain portions of the Support Agreement and the Backstop Commitment Letter, which Order may form part of the Meetings Order, as same may be further amended, restated or varied from time to time, and in all such cases such Order shall be in form and substance reasonably acceptable to the Just Energy Entities, the Credit Facility Lenders, Shell and the Plan Sponsor.
“Authorization Recognition Order” means the Order entered by the U.S. Court in the Chapter 15 Proceeding recognizing and enforcing the Authorization Order in the Chapter 15 Proceeding, which Order may form part of the Meetings Recognition Order, as same may be further amended, restated or varied from time to time, and in all such cases such Order shall be in form and substance reasonably acceptable to the Just Energy Entities, the Credit Facility Lenders and the Plan Sponsor.
“Backstop Commitment Fee Shares” means 10% of the total New Common Shares, subject to dilution by the equity issued or issuable pursuant to the MIP, which will be issued to the Initial Backstop Parties and, if applicable, Additional Backstop Parties (or their permitted designees) in each case on the Effective Date pursuant to the Backstop Commitment Letter and the Plan.
“Backstop Commitment Letter” means the backstop commitment letter dated as of May 12, 2022 among New Just Energy Parent and the Backstop Parties, as may be amended, restated, supplemented and/or otherwise modified from time to time in accordance with the terms thereof.
“Backstop Party” has the meaning ascribed thereto in the Backstop Commitment Letter, and “Backstop Parties” means all of them.
“Backstop Party’s Commitments” means the commitments of the Backstop Parties to subscribe for any Backstopped Shares subject to the terms and conditions of the Backstop Commitment Letter.
“Backstopped Shares” means, collectively, the Unsubscribed New Equity and the Defaulted Subscription Shares.
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“Beneficial Subordinated Note Claim Holder” means any beneficial holder of the Subordinated Note Claim as of the Record Date, in such capacity, and “Beneficial Subordinated Note Claim Holders” means all of them.
“Beneficial Term Loan Claim Holder” means any beneficial holder of the Term Loan Claim as of the Term Loan Record Date, in such capacity, and “Beneficial Term Loan Claim Holders” means all of them.
“BIA” means the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended.
“BP Commodity / ISO Services Claim” means all Pre-Filing Claims of BP Canada Energy Group ULC and BP Energy Company, which shall be Accepted Claims for the purposes of this Plan in the aggregate principal amounts of US$229,461,558.59 and $170,652.60, plus all accrued and unpaid interest thereon through to and including the Effective Date.
“BP Commodity/ISO Services Claimholder” means CBHT Energy I LLC, in its capacity as assignee from BP Canada Energy Group ULC and BP Energy Company of the BP Commodity/ISO Services Claim, or such other Person that the BP Commodity/ISO Services Claim may be assigned to in accordance with the terms of the Claims Procedure Order.
“Business Day” means a day, other than a Saturday, Sunday or a statutory holiday, on which banks are generally open for business in Toronto, Ontario and New York, New York.
“Canadian Securities Commissions” means, collectively, the applicable securities commissions or regulatory authorities in each of the provinces and territories of Canada.
“Canadian Securities Laws” means, collectively, and, as the context may require, the applicable securities laws of each of the provinces and territories of Canada, and the respective regulations and rules made under those securities laws together with all applicable published policy statements, instruments, blanket orders, and rulings of the Canadian Securities Commissions and all discretionary orders or rulings, if any, of the Canadian Securities Commissions made in connection with the transactions contemplated by the Plan together with applicable published policy statements of the Canadian Securities Administrators, as the context may require.
“Cash Management Charge” has the meaning ascribed thereto in the Initial Order.
“Cash Management Obligations” has the meaning ascribed thereto in the Initial Order.
“Cash on Hand” means all cash and cash equivalents (including marketable securities and short-term investments) of the Just Energy Entities, excluding amounts posted as collateral immediately prior to the Effective Time.
“Causes of Action” means any action, claim, cross-claim, third-party claim, damage, judgment, cause of action, controversy, demand, right, action, suit, obligation, liability, debt, account, defense, offset, power, privilege, license, lien, indemnity, interest, guaranty, or franchise of any kind or character whatsoever, whether known or unknown, foreseen or unforeseen, existing or hereinafter arising, contingent or non-contingent, liquidated or unliquidated, disputed or undisputed, secured or unsecured, assertable directly or derivatively, matured or unmatured, suspected or unsuspected, in contract or in tort, at law or in equity, or pursuant to any other theory of law or otherwise.
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“CBCA” has the meaning ascribed thereto in the recitals.
“CBCA Arrangement” means the arrangement under section 192 of the CBCA, set out in that certain amended and restated plan of arrangement dated September 2, 2020, which arrangement was approved by a final order of the Court on September 2, 2020, following an application by JEGI and 12175592 Canada Inc.
“CCAA” has the meaning ascribed thereto in the recitals.
“CCAA Charges” means, collectively, the Administration Charge, the FA Charge, the Directors’ Charge, the KERP Charge, the DIP Lenders’ Charge, the Priority Commodity/ISO Charge, the Termination Fee Charge and the Cash Management Charge, each as may be amended by order of the Court, and “CCAA Charge” means any one of the CCAA Charges.
“CCAA Proceeding” has the meaning ascribed thereto in the recitals.
“Chapter 15” has the meaning ascribed thereto in the recitals.
“Chapter 15 Proceeding” has the meaning ascribed thereto in the recitals.
“Claim” or “Claims” means any or all Pre-Filing Claims, Restructuring Period Claims and D&O Claims; provided, however, that in any case “Claim” shall not include any right or claim of any Person that was previously released, barred, estopped, stayed and/or enjoined pursuant to the CBCA Arrangement, but for greater certainty, shall include any Claim arising through subrogation against any Just Energy Entity or any Director or Officer.
“Claims Bar Date” has the meaning ascribed thereto in the Claims Procedure Order.
“Claims Procedure Order” means the Order of the Court dated September 15, 2021 in the CCAA Proceeding establishing a claims procedure in respect of the Just Energy Entities, as same may be further amended, restated or varied from time to time, and in all such cases such Order shall be in form and substance reasonably acceptable to the Just Energy Entities and the Plan Sponsor.
“Claims Procedure Recognition Order” means an Order, which may be part of the Meetings Recognition Order, entered by the U.S. Court, recognizing and enforcing the Claims Procedure Order in the Chapter 15 Proceeding, and in all such cases such Order shall be in form and substance reasonably acceptable to the Just Energy Entities, the Credit Facility Lenders and the Plan Sponsor.
“Class” means any one of the classes of Creditors set out in Section 3.2 for the purpose of considering and voting upon the Plan and receiving distributions hereunder.
“Commissioner” means the Commissioner of Competition appointed under the Competition Act or any person duly authorized to exercise powers of the Commissioner of Competition.
“Commodity Agreement” means a gas supply agreement, electricity supply agreement or other agreement with any of the Just Energy Entities for the physical or financial purchase, sale, trading or hedging of natural gas, electricity or environmental derivative products, or contracts entered into for protection against fluctuations in foreign currency exchange rates, which shall include any master power purchase and sale agreement, base contract for sale and purchase, ISDA master agreement or similar agreement.
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“Commodity Supplier” means any counterparty to a Commodity Agreement.
“Commodity Supplier Claim” means any Pre-Filing Claim, plus any interest thereon to the Effective Date, of any Commodity Supplier that is party to the Intercreditor Agreement in respect of a Commodity Agreement determined as of the Effective Date, after provision for any resettlements that are known by the Just Energy Entities as of the Effective Date, in each case in an amount acceptable to the Just Energy Entities and the applicable Commodity Supplier, with the consent of the Monitor and the Plan Sponsor, each acting reasonably; provided, however, that in any case for the purposes of this Plan “Commodity Supplier Claim” shall not include any BP Commodity / ISO Services Claim.
“Common Shares” means the common shares of JEGI.
“Company Counsel” means Osler, Hoskin & Harcourt LLP, Canadian counsel to the Just Energy Entities, and Kirkland & Ellis LLP, United States counsel to the Just Energy Entities.
“Competition Act” means the Competition Act (Canada), R.S.C., 1985, c. C-34.
“Competition Act Approval” means that: (a) the Commissioner shall have issued an Advance Ruling Certificate under subsection 102(1) of the Competition Act in respect of the transactions contemplated by the Plan; or (b) the applicable waiting period under section 123 of the Competition Act shall have expired or been waived by the Commissioner, or the obligation to submit a notification shall have been waived under paragraph 113(c) of the Competition Act, and the Commissioner shall have issued a No Action Letter.
“Consenting Party” means any Person who (a) is, at the Effective Time, a party to the Support Agreement; or (b) submits a vote in favour of the Plan, and “Consenting Parties” means all of them.
“Contingent Litigation Claims” means, collectively, the Subject Class Action Claims and the Texas Power Interruption Claim.
“Continuing Contract” means a contract, arrangement, or other agreement (oral or written) for which a notice of disclaimer pursuant to section 32 of the CCAA has not been sent by any of the Just Energy Entities.
“Convenience Cash Pool” means the funds taken from the General Unsecured Creditor Cash Pool, prior to any distributions therefrom, to be held by the Monitor in a segregated account, in an amount necessary to satisfy all Convenience Claims in full in accordance with Section 3.4(3).
“Convenience Claim” means (a) any Accepted Claim of a General Unsecured Creditor in an amount that is less than or equal to $1,500; and (b) any Accepted Claim of a General Unsecured Creditor in an amount greater than $1,500, if the relevant General Unsecured Creditor has made a valid Distribution Election for purposes of the Plan in accordance with the Meetings Order; provided, however, that in any case “Convenience Claim” shall not include any Contingent Litigation Claim or any Subordinated Note Claim.
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“Convenience Creditor” means a General Unsecured Creditor that holds a Convenience Claim.
“Court” has the meaning ascribed thereto in the recitals.
“Credit Agreement” means the ninth amended and restated credit agreement dated as of September 28, 2020, by and among Just Energy Ontario L.P. and JEUS, as borrowers, the Credit Facility Agent and the Credit Facility Lenders, as such credit agreement may be amended, restated, supplemented and/or otherwise modified from time to time in accordance with the terms thereof.
“Credit Facility Agent” means National Bank of Canada, in its capacity as administrative agent for the Credit Facility Lenders.
“Credit Facility Claim” means any amounts owing by the Just Energy Entities to the Credit Facility Lenders as of the Effective Date under the Credit Facility Documents, including all principal and all accrued and outstanding fees, costs, interest, or other amounts owing pursuant to the Credit Facility Documents as determined in accordance with the Claims Procedure Order; provided that, the Credit Facility Claim shall not include any Credit Facility LC Claim, Commodity Supplier Claim or Cash Management Obligations.
“Credit Facility Documents” means, collectively, the Credit Agreement and all related documentation, including, all guarantee and security documentation related to the foregoing.
“Credit Facility LC Claim” means any Claim of any Credit Facility Lender relating to any letter of credit issued but undrawn under the Credit Facility Documents immediately prior to the Effective Time.
“Credit Facility Lender Termination Event” has the meaning ascribed thereto in the Support Agreement.
“Credit Facility Lenders” means the lenders party to the Credit Agreement from time to time, in such capacity.
“Credit Facility Remaining Debt” means the principal amount of up to $20,000,000 of the Credit Facility Claim, which may remain outstanding under the New Credit Agreement upon the implementation of the Plan.
“Creditor” means any Person having a Claim, but only with respect to and to the extent of such Claim, including the transferee or assignee of a transferred Claim that is recognized as a Creditor in accordance with the Plan, Claims Procedure Order, or any other Order, as applicable, or a trustee, executor, liquidator, receiver, receiver and manager, or other Person acting on behalf of or through such Person.
“Crown” means Her Majesty in right of Canada or any province or territory of Canada.
“D&O Claim” or “D&O Claims” means any or all Pre-Filing D&O Claims and Restructuring Period D&O Claims.
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“D&O Indemnity Claim” means any existing or future right of any Director or Officer against any of the Just Energy Entities which arose or arises as a result of any D&O Claim for which such Director or Officer is entitled to be indemnified by any of the Just Energy Entities; provided, however, that in any case “D&O Indemnity Claim” shall not include any Excluded D&O Indemnity Claim.
“De Minimis Claims” has the meaning ascribed thereto in Section 3.7.
“Defaulted Subscription Shares” means any New Equity Offering Shares arising from any event where a New Equity Offering Eligible Participant subscribes for any portion of the New Equity Offering Shares and fails to fulfill its subscription obligations by the New Equity Participation Deadline.
“Defaulting Backstop Party” has the meaning ascribed thereto in the Backstop Commitment Letter.
“Definitive Documents” has the meaning ascribed thereto in the Support Agreement.
“Determination Date” has the meaning ascribed thereto in Section 7.1.
“DIP Agent” means Alter Domus (US) LLC, in its capacity as administrative and collateral agent for the DIP Lenders.
“DIP Documents” means, collectively, the DIP Term Sheet and all related documentation, including, without limitation, all guarantee and security documentation, related to the foregoing.
“DIP Lenders” means the lenders under the DIP Term Sheet, in such capacity, and “DIP Lender” means any one of them.
“DIP Lenders’ Charge” has the meaning ascribed thereto in the Initial Order.
“DIP Lenders’ Claim” means the DIP Loan and all other debts, liabilities, and obligations (including, without limitation accrued and outstanding fees, costs, and interest) owing by the Just Energy Entities to the DIP Agent and the DIP Lenders pursuant to the DIP Documents.
“DIP Loan” means the principal and aggregate amount of accrued and unpaid interest outstanding on the Effective Date pursuant to the DIP Documents.
“DIP Term Sheet” means the CCAA Interim Debtor-in-Possession Financing Term Sheet between the Just Energy Entities party thereto, the DIP Agent and the DIP Lenders, dated as of March 9, 2021, as such term sheet may be amended, restated, supplemented and/or otherwise modified from time to time in accordance with the terms thereof.
“Director” means anyone who is or was or may be deemed to be or have been, whether by statute, operation of law or otherwise, a director or de facto director of any of the Just Energy Entities, and “Directors” means all of them.
“Directors’ Charge” has the meaning ascribed thereto in the Initial Order.
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“Disallowed Claim” means any Claim (or any portion thereof) which has been finally disallowed in accordance with the Claims Procedure Order or any other Order of the Court in the CCAA Proceeding or the U.S. Court in the Chapter 15 Proceeding.
“Disputed Claim” means any Claim (or any portion thereof) in respect of which a Proof of Claim has been filed or a Negative Notice Claims Package delivered, in each case, in accordance with the Claims Procedure Order that has not been finally determined to be an Accepted Claim or a Disallowed Claim, in whole or in part, in accordance with the Claims Procedure Order or any other Order of the Court in the CCAA Proceeding or the U.S. Court in the Chapter 15 Proceeding.
“Distribution Date” means the date or dates from time to time on or after the Effective Date, set by the Monitor in its discretion, to make interim and final distributions in respect of the applicable Accepted Claims pursuant to the Plan.
“Distribution Election” means an election: (a) made by a General Unsecured Creditor with an Accepted Claim greater than $1,500 by delivery of a duly completed and executed Distribution Election Notice to the Just Energy Entities and the Monitor by no later than the Distribution Election Deadline electing to receive the Distribution Election Amount in full satisfaction of its Accepted Claim; and (b) deemed to have been made by each General Unsecured Creditor with an Accepted Claim equal to or less than $1,500.
“Distribution Election Amount” means, in respect of any Accepted Claim of a General Unsecured Creditor for which a valid Distribution Election has been made or has been deemed to have been made in accordance with the Plan, the lesser of (a) a cash amount equal to $1,500; and (b) the amount of such Accepted Claim.
“Distribution Election Deadline” has the meaning ascribed thereto in the Meetings Order.
“Distribution Election Notice” means a notice substantially in the form attached to the Meetings Order.
“DTC” has the meaning ascribed thereto in Section 5.3(d).
“Effective Date” means the Business Day on which the Monitor delivers the Monitor’s Certificate pursuant to Section 10.2.
“Effective Time” means 12:01 a.m. on the Effective Date, or such other time on the Effective Date as the Just Energy Entities and the Plan Sponsor may jointly determine (and designate in their written notices to the Monitor contemplated by Section 10.2).
“Employee Priority Claim” means any Claim for (a) accrued and unpaid wages and vacation pay owing to an employee of any of the Just Energy Entities whose employment was terminated between the Filing Date and the Effective Date; and (b) unpaid amounts provided for in section 6(5)(a) of the CCAA.
“Employment Agreements” means, collectively, the employment agreements, the management compensation plans, and indemnification agreements of, or for the benefit of, the Directors, Officers, and employees of any of the Just Energy Entities that, on or prior to the Effective Date, have not resigned, in each case in existence on the effective date of the Support Agreement; provided, however, that solely for purposes of Sections 2.5 and 10.1(t), Employment Agreements shall not include employment agreements, the management compensation plans, and indemnification agreements of, or for the benefit of, the Directors, Officers, and employees of any of the Just Energy Entities that have been terminated or disclaimed without the consent of the Plan Sponsor.
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“Encumbrance” means any charge, mortgage, lien, pledge, claim, restriction, hypothec, adverse interest, security interest or other encumbrance whether created or arising by agreement, statute or otherwise at law, attaching to property, interests or rights and shall be construed in the widest possible terms and principles known under the law applicable to such property, interests or rights and whether or not they constitute specific or floating charges as those terms are understood under the laws of the Province of Ontario.
“Energy Regulator” means any federal or provincial energy regulators, provincial regulators of consumer sales that have authority with respect to energy sales, U.S. municipal, state, federal or other foreign energy regulatory bodies or agencies, local energy transmission and distribution companies, or regional transmission organizations or independent system operators.
“Energy Regulator Claim” means any Claim that may be asserted by any Energy Regulator, excluding any: (i) Claim with respect to the subject matter of the Adversary Proceeding, including any Claim with respect to obligations of the Just Energy Entities underlying the invoices that are the subject of the Adversary Proceeding; and (ii) Claim by any Taxing Authority.
“Equity Claim” means an “equity claim” as defined in section 2(1) of the CCAA in respect of any Just Energy Entity or New Just Energy Parent (excluding any right or claim of the Credit Facility Lenders or the Credit Facility Agent pursuant to the Credit Facility Documents, including any pledge of any Intercompany Interest).
“Equity Claimant” means any Person with an Equity Claim or holding Existing Equity, in such capacity.
“Equity Interest” means an “equity interest” as defined in section 2(1) of the CCAA in respect of any Just Energy Entity or New Just Energy Parent.
“Escrow Agent” means the escrow agent appointed pursuant to the Escrow Agreement.
“Escrow Agreement” has the meaning ascribed thereto in the Backstop Commitment Letter.
“Excluded D&O Indemnity Claim” means any existing or future right of any Director or Officer of any Just Energy Entity as of the Effective Date against any of the Just Energy Entities, which arose or arises as a result of any D&O Claim for which such Director or Officer is entitled to be indemnified by any of the Just Energy Entities and which is (a) a Non-Released D&O Claim; or (b) a Released D&O Claim asserted by a Person other than a Consenting Party.
“Exculpated Party” means any current officer, director, employee, or retained professional (including financial advisors, investment bankers, and legal counsel) of (a) the Just Energy Entities; (b) the Monitor; (c) the DIP Lenders; (d) the Plan Sponsor; (e) the Backstop Parties; (f) the Supporting Parties; (g) the DIP Agent; (h) the Credit Facility Agent; (i) the Term Loan Agent; and (j) the Subordinated Note Trustee, and “Exculpated Parties” means all of them.
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“Existing Common Shareholder” mean any holder of Common Shares immediately prior to the Effective Time, and “Existing Common Shareholders” means all of them.
“Existing Equity” means (a) all Common Shares; (b) all other Equity Interests (excluding any Intercompany Interest), including all options, warrants, rights, or similar instruments, derived from, relating to, or exercisable, convertible, or exchangeable therefor; and (c) all instruments whose value is based upon or determined by reference to any Equity Interest whether or not such instrument is exercisable, convertible, or exchangeable for such an Equity Interest, and, in all such cases, which are issued and outstanding immediately prior to the Effective Time.
“FA Charge” has the meaning ascribed thereto in the Initial Order.
“Filing Date” has the meaning ascribed thereto in the recitals.
“Final Order” means any order or judgment of the Court or the U.S. Court, or any other court of competent jurisdiction, with respect to the subject matter addressed in the CCAA Proceeding or the Chapter 15 Proceeding or the docket of any court of competent jurisdiction, that has not been vacated, set aside, reversed, stayed, modified or amended, and as to which the applicable periods to appeal, or seek certiorari or move for a new trial, reargument, or rehearing has expired and no appeal, leave to appeal, or petition for certiorari or other proceedings for a new trial, reargument, or rehearing has been timely taken or filed, or as to which any appeal has been taken or any petition for certiorari or leave to appeal that has been timely filed has been withdrawn or resolved in a manner acceptable to the Just Energy Entities, the Credit Facility Lenders, Shell and the Plan Sponsor, each acting reasonably, by the highest court to which the order or judgment was appealed or from which leave to appeal or certiorari was sought or the new trial, reargument, or rehearing shall have been denied, resulted in no modification of such order or has otherwise been dismissed with prejudice; provided, however, that the possibility that a motion under Rule 60 of the United States Federal Rules of Civil Procedure, or any analogous rule under the U.S. Bankruptcy Rules, may be filed relating to such order shall not cause such order to not be a Final Order.
“Financial Advisor” means BMO Nesbitt Burns Inc., financial advisor to the Just Energy Entities.
“Fractional Interests” has the meaning ascribed thereto in Section 5.12.
“General Unsecured Creditor” means the holder of a General Unsecured Creditor Claim.
“General Unsecured Creditor Cash Pool” means the amount of $10,000,000 (inclusive of the Convenience Cash Pool).
“General Unsecured Creditor Claim” means any Affected Claim, as determined in accordance with the Claims Procedure Order, which is not a Term Loan Claim, an Equity Claim, a Credit Facility Claim or a BP Commodity / ISO Services Claim, and includes, for certainty, any Convenience Claim or Subordinated Note Claim.
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“Government Priority Claim” means any Claim of any Governmental Entity against any Just Energy Entity in respect of amounts that are outstanding, if any, provided for in section 6(3) of the CCAA.
“Governmental Entity” means any government, regulatory authority (including any Energy Regulator), governmental department, agency, commission, bureau, official, minister, Crown corporation, court, board, tribunal or dispute settlement panel or other law, rule or regulation-making organization or entity: (a) having or purporting to have jurisdiction on behalf of any nation, province, territory or state or any other geographic or political subdivision of any of them; or (b) exercising, or entitled or purporting to exercise any administrative, executive, judicial, legislative, policy, regulatory or taxing authority or power.
“Initial Applicants” has the meaning ascribed thereto in the recitals, and “Initial Applicant” means any one of the Initial Applicants.
“Initial Backstop Parties” has the meaning ascribed thereto in the Backstop Commitment Letter.
“Initial Distribution Date” means a date not more than ten (10) Business Days after the Effective Date or such other date specified in the Sanction Order.
“Initial Distribution Record Date” means the date that is ten (10) Business Days prior to the Initial Distribution Date.
“Initial Order” has the meaning ascribed thereto in the recitals.
“Insurance Policy” means any insurance policy maintained by any of the Just Energy Entities pursuant to which any of the Just Energy Entities or any Director or Officer is insured, and “Insurance Policies” means all of them.
“Insured Claim” means all or that portion of a Claim for which the applicable insurer or a court of competent jurisdiction has confirmed that the applicable Just Energy Entity or Director or Officer is insured under an Insurance Policy, to the extent that such Claim, or portion thereof, is so insured, and “Insured Claims” means all of them.
“Intercompany Claim” means any claim that may be asserted against any of the Just Energy Entities by or on behalf of any of the Just Energy Entities or any of their affiliated companies, partnerships, or other corporate entities, and “Intercompany Claims” means all of them.
“Intercompany Interest” means any Equity Interest held by a Just Energy Entity or New Just Energy Parent in any other Just Energy Entity or New Just Energy Parent, as applicable, and “Intercompany Interests” means all of them.
“Intercreditor Agreement” means the Sixth Amended and Restated Intercreditor Agreement dated as of September 1, 2015 between National Bank of Canada, as collateral agent and agent for itself as agent and the Lenders (as defined therein); Shell; BP Canada Energy Group ULC; BP Canada Energy Marketing Corp.; BP Energy Company; Exelon Generation Company, LLC; Bruce Power L.P.; EDF Trading North America, LLC; Nextera Energy Power Marketing, LLC; Macquarie Bank Limited; Macquarie Energy Canada Ltd.; Macquarie Energy LLC; Morgan Stanley Capital Group Inc.; and each other person identified as an Other Commodity Supplier (as defined therein) from time to time party thereto, and Just Energy Ontario L.P. and JEUS, as Borrowers (as defined therein) and each of the Guarantors (as defined therein) from time to time party thereto, as amended (as may be further amended, restated, supplemented, or otherwise modified from time to time).
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“Investment Canada Act” means the Investment Canada Act (Canada), R.S.C., 1985, c. 28 (1st Supp.).
“Investment Canada Act Approval” means both:
(1) receipt by the Plan Sponsor of a certification letter from the Director of Investments under the Investment Canada Act pursuant to subsection 13(1) of the Investment Canada Act confirming that that the transactions contemplated by the Plan are not reviewable under Part IV of the Investment Canada Act; and
(2) either: (A) no notice is given under subsection 25.2(1) or 25.3(2) of the Investment Canada Act within the prescribed period; or, (B) if notice is given under subsection 25.2(1) or 25.3(2) of the Investment Canada Act, then either (a) the Minister or Ministers under the Investment Canada Act have sent to the Plan Sponsor a notice under paragraph 25.2(4)(a) or 25.3(6)(b) of the Investment Canada Act; or (b) the Governor in Council has issued an order under subsection 25.4(1)(b) of the Investment Canada Act authorizing the transactions contemplated by the Plan.
“ITA” means the Income Tax Act (Canada), R.S.C. 1985, c. 1 (5th Supp.), as amended.
“JEFH” has the meaning ascribed thereto in the recitals.
“JEGI” has the meaning ascribed thereto in the recitals.
“JEUS” has the meaning ascribed thereto in the recitals.
“Just Energy Entities” has the meaning ascribed thereto in the recitals, and “Just Energy Entity” means any one of the Just Energy Entities.
“KERP” means the key employee retention plan approved in the Initial Order and clarified and amended in the Order in the CCAA Proceeding dated September 15, 2021.
“KERP Charge” has the meaning ascribed thereto in the Initial Order.
“Meetings” means, collectively, the meetings of each Class of Affected Creditors held on the Meetings Date and held and called pursuant to the Meetings Order for the purpose of considering and voting on the Plan pursuant to the CCAA, and includes any adjournment, postponement or other rescheduling of such meeting in accordance with the Meetings Order, and “Meeting” means any one of the Meetings.
“Meetings Date” means the date on which the Meetings are held in accordance with the Meetings Order.
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“Meetings Order” means the Order of the Court in the CCAA Proceeding that, among other things, accepts the filing of the Plan, sets the date for the Meeting and approves the materials for the Meetings, as same may be amended, restated or varied from time to time, and in all such cases such Order shall be in form and substance reasonably acceptable to the Just Energy Entities, the Credit Facility Lenders, Shell and the Plan Sponsor.
“Meetings Recognition Order” means the Order entered by the U.S. Court recognizing and enforcing the Meetings Order in the Chapter 15 Proceeding, as same may be amended, restated, varied and/or supplemented from time to time, and in all such cases such Order shall be in form and substance reasonably acceptable to the Just Energy Entities, the Credit Facility Lenders, Shell and the Plan Sponsor.
“MIP” means a new management incentive plan to be effective from and after the Effective Date, the terms of which shall be consistent in all respects with the management incentive plan term sheet attached as Exhibit 4 to the Restructuring Term Sheet.
“Monitor” means FTI Consulting Canada Inc., as Court-appointed monitor of the Just Energy Entities in the CCAA Proceeding and not in its personal capacity.
“Monitor Administration Expenses” has the meaning ascribed thereto in Section 4.2(a).
“Monitor’s Certificate” has the meaning ascribed thereto in Section 10.2.
“Monitor’s Website” means http://cfcanada.fticonsulting.com/justenergy
“Negative Notice Claims Package” has the meaning ascribed thereto in the Claims Procedure Order.
“New Boards” means the board of directors or the equivalent governing body of New Just Energy Parent and JEGI, as applicable, to be appointed on the Effective Date in accordance with the terms of the Support Agreement and the New Corporate Governance Documents and Article 6 of the Plan, which board of directors or the equivalent governing body shall be comprised as specified in the Restructuring Term Sheet.
“New Common Shares” means the common equity interests of New Just Energy Parent, to be designated, which shall be issued by New Just Energy Parent in accordance with the Support Agreement, the Backstop Commitment Letter and the Plan, and in accordance with the steps and sequences set forth in the Restructuring Steps Supplement shall constitute all of the issued and outstanding common equity interests of New Just Energy Parent together with any equity interests outstanding under the MIP.
“New Corporate Governance Documents” means the organizational documents of New Just Energy Parent and a registration rights agreement (if provisions applicable to registration rights are not included in the organizational documents of New Just Energy Parent) with New Just Energy Parent, in each case, on the terms set out in the Restructuring Term Sheet.
“New Credit Agreement” means an amendment and restatement of the Credit Agreement in accordance with the terms attached to the Support Agreement to be entered into by, among others, some or all of the Just Energy Entities and the New Credit Facility Lenders in connection with the New Credit Facility, which may be a new credit agreement, in either case on terms consistent with the term sheet for the New Credit Facility attached to the Restructuring Term Sheet and containing such other terms as agreed by the Just Energy Entities, the Credit Facility Lenders and the Plan Sponsor, each acting reasonably.
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“New Credit Facility” means the first lien revolving credit facility to be made available to some or all of the Just Energy Entities by the New Credit Facility Lenders on the Effective Date pursuant to the New Credit Facility Documents with (a) the Credit Facility Remaining Debt, if any, remaining outstanding as an initial outstanding principal amount under the New Credit Agreement; and (b) the New Credit Facility Letters of Credit issued and outstanding.
“New Credit Facility Documents” means, collectively, (a) the New Credit Agreement; and (b) all related documentation (including all existing or amended and restated guarantee and security documentation related to the foregoing), some or all of which may be new agreements and documentation to the extent agreed by the Just Energy Entities, the Credit Facility Lenders and the Plan Sponsor, each acting reasonably.
“New Credit Facility Lenders” means some or all of the Credit Facility Lenders and/or such other financial institution(s) acceptable to the Just Energy Entities and the Plan Sponsor, each acting reasonably.
“New Credit Facility Letters of Credit” means, collectively, (a) the letters of credit issued by the Credit Facility Lenders pursuant to the Credit Facility Documents that are outstanding and undrawn at the Effective Time; and (b) any new or replacement letters of credit to be issued pursuant to the New Credit Facility Documents, in all cases, as agreed by the Just Energy Entities, the Credit Facility Lenders and the Plan Sponsor, each acting reasonably.
“New Equity Offering” means the offering to New Equity Offering Eligible Participants to subscribe for and receive New Equity Offering Shares at an aggregate purchase price of US$192,550,000, on the terms described in the Backstop Commitment Letter and Support Agreement.
“New Equity Offering Documentation” has the meaning ascribed thereto in the Backstop Commitment Letter.
“New Equity Offering Eligible Participant” means a Person that, on the Term Loan Record Date, is (a) a Backstop Party or a Beneficial Term Loan Claim Holder (or a permitted designee thereof); (b) (i) located or resident in Canada, (ii) located or resident in the United States, or (iii) located or resident outside Canada and the United States and is entitled to participate in the New Equity Offering in accordance with the laws of such jurisdiction without obliging New Just Energy Parent to register or qualify for distribution the New Common Shares or file a prospectus, registration statement or other similar disclosure document, cause New Just Energy Parent to become a reporting issuer, registrant or equivalent entity in any jurisdiction or to make any other material filings that New Just Energy Parent is not already obligated to make; and in the case of (iii) above, such Person, if required by JEGI, demonstrates, and provides evidence reasonably satisfactory to JEGI (which evidence may include an opinion of counsel of recognized standing to the effect of the matters set forth in (iii) above), that it is qualified to participate in the New Equity Offering in accordance with the laws of its jurisdiction of residence; and (c) an “accredited investor” (as defined in Rule 501(a) promulgated under the U.S. Securities Act).
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“New Equity Offering Participation Form” means a participation form, substantially in the form attached at Schedule “I” to the Meetings Order, to be delivered to each Beneficial Term Loan Claim Holder in accordance with the Meetings Order, in order for Beneficial Term Loan Claim Holders to make certain acknowledgments, agreements, and certifications (as applicable to the applicable Beneficial Term Loan Claim Holder) and to participate in the New Equity Offering Rights.
“New Equity Offering Proceeds” means the total amount of Subscription Amounts and Backstop Party’s Commitments received and held by the Escrow Agent as of the Effective Date pursuant to Section 3.9.
“New Equity Offering Rights” means the offering of New Equity Offering Shares to the New Equity Offering Eligible Participants, pursuant to and in accordance with the Backstop Commitment Letter, the New Equity Offering Documentation and the Plan.
“New Equity Offering Shares” means 80% of the total New Common Shares to be issued on the Effective Date pursuant to the New Equity Offering under the Plan, subject to dilution by the equity issued or issuable pursuant to the MIP, to be issued to the Participating Term Loan Claimants pursuant to the Plan and, if applicable, to the Backstop Parties in accordance with the Backstop Commitment Letter and the Plan.
“New Equity Participation Deadline” shall mean 5:00 p.m. on August 23, 2022 or such other date agreed to by the Just Energy Entities and the Plan Sponsor, each acting reasonably.
“New Intercreditor Agreement” means the new intercreditor agreement on the terms set out in the Support Agreement to be entered into by, among others, the Just Energy Entities, the New Credit Facility Lenders (or the Credit Facility Agent on their behalf), and the applicable Commodity Suppliers in accordance with the Support Agreement and the Plan, which may be an amendment and restatement of the Intercreditor Agreement, in either case on terms consistent with the term sheet for the New Intercreditor Agreement attached to the Restructuring Term Sheet and containing such other terms, all as agreed by the Just Energy Entities, the Plan Sponsor and the other parties thereto, each acting reasonably.
“New Just Energy Parent” means the new parent company of the Just Energy Entities, which shall be JEUS or such other corporation, or limited or unlimited liability company organized in the United States as determined by the Just Energy Entities and the Plan Sponsor.
“New Preferred Shares” means preferred equity interest of New Just Energy Parent having such terms as specified in the Restructuring Term Sheet, which shall be issued by New Just Energy Parent in accordance with the Support Agreement, the Plan, and, in accordance with the steps and sequences set forth in the Restructuring Steps Supplement, shall constitute all of the issued and outstanding preferred equity interests of New Just Energy Parent.
“New Shareholder Information Form” means an information form, substantially in the form attached at Schedule “J” to the Meetings Order, to be delivered to each Beneficial Term Loan Claim Holder in accordance with the Meetings Order, in order for Beneficial Term Loan Claim Holders to make certain acknowledgments, agreements, and certifications (as applicable to the applicable Beneficial Term Loan Claim Holder) and to receive Term Loan Claim Shares.
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“New Shares” means, collectively, the New Common Shares and the New Preferred Shares, which immediately following the issuance thereof shall constitute all of the issued and outstanding equity interests of New Just Energy Parent together with any equity interests outstanding under the MIP.
“NI 45-106” means National Instrument 45-106 “Prospectus Exemptions” of the Canadian Securities Commissions.
“No Action Letter” means written confirmation from the Commissioner that the Commissioner does not, at that time, intend to make an application under section 92 of the Competition Act in respect of the transactions contemplated by the Plan.
“Non-Participating Term Loan Claim” means the portion of the Term Loan Claim held by a Non-Participating Term Loan Claim Holder as of the Term Loan Record Date.
“Non-Participating Term Loan Claim Holder” means each Beneficial Term Loan Claim Holder that is not a Backstop Party or a Participating Term Loan Claimant.
“Non-Participating Term Loan Lender Pro Rata Share” means, as at any relevant date of determination, the percentage that a Non-Participating Term Loan Claim Holder’s Non-Participating Term Loan Claim bears to the aggregate of all Non-Participating Term Loan Claims and General Unsecured Creditor Claims that are Accepted Claims and Disputed Claims (for certainty, valued at the amounts asserted by such General Unsecured Creditors).
“Non-Released D&O Claim” means any D&O Claim that is not a Released D&O Claim, and “Non-Released D&O Claims” means all of them.
“Officer” means anyone who is or was or may be deemed to be or have been, whether by statute, operation of law or otherwise, an officer or de facto officer of any of the Just Energy Entities, in such capacity, and “Officers” means all of them.
“Order” means any order of the Court made in the CCAA Proceeding, any order of the U.S. Court made in the Chapter 15 Proceeding, or any order, directive, judgment, decree, injunction, decision, ruling, award or writ of any Governmental Entity.
“Outside Date” has the meaning ascribed thereto in the Support Agreement.
“Participating Term Loan Claimants” means each Beneficial Term Loan Claim Holder that qualifies as a New Equity Offering Eligible Participant (or a permitted designee thereof) and validly submits a duly completed and executed New Equity Offering Participation Form, together with such beneficial holder’s Subscription Amount to be paid by or wire transfer in indefeasible funds, in accordance with the Meetings Order and the New Equity Offering Documentation on or prior to the New Equity Participation Deadline.
“Person” means any individual, firm, corporation, limited or unlimited liability company, general or limited partnership, association, trust (including a real estate investment trust), joint venture, unincorporated organization, governmental unit, body or agency or any instrumentality thereof, Canadian or non-Canadian regulatory body or agency or any instrumentality thereof, or any other entity.
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“Plan” has the meaning ascribed thereto in the recitals.
“Plan Implementation Fund” means an amount equal to the aggregate amount of funds to be delivered or paid or caused to be delivered or paid by the Just Energy Entities to the Monitor pursuant to Section 4.1, to be held in a segregated account and distributed by the Monitor in accordance with the Plan.
“Plan Sponsor” means, collectively, LVS III SPE XV LP, TOCU XVII LLC, HVS XVI LLC, OC II LVS XIV LP and OC III LFE I LP.
“Plan Sponsor Counsel” means Cassels Brock & Blackwell LLP, Canadian counsel to the Plan Sponsor, and Akin Gump Strauss Hauer & Feld LLP, United States counsel to the Plan Sponsor.
“Post-Filing Claim” or “Post-Filing Claims” means any or all indebtedness, liability, or obligation of the Just Energy Entities of any kind that arises during and in respect of the period commencing on the Filing Date and ending on the day immediately preceding the Effective Date in respect of services rendered or supplies provided to the Just Energy Entities during such period or under or in accordance with any Continuing Contract; provided that, for certainty, such amounts are not a Restructuring Period Claim or a Restructuring Period D&O Claim.
“Pre-Filing Claim” or “Pre-Filing Claims” means any or all right or claim of any Person against any of the Just Energy Entities, whether or not asserted, in connection with any indebtedness, liability or obligation of any kind whatsoever of any such Just Energy Entity to such Person, in existence on the Filing Date, whether or not such right or claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, unsecured, perfected, unperfected, present, future, known or unknown, by guarantee, surety or otherwise, and whether or not such right is executory or anticipatory in nature, including any right or claim with respect to any Assessment, or contract, or by reason of any equity interest, right of ownership of or title to property or assets or right to a trust or deemed trust (statutory, express, implied, resulting, constructive or otherwise), and any right or ability of any Person to advance a claim for contribution or indemnity or otherwise against any of the Just Energy Entities with respect to any matter, action, cause or chose in action, whether existing at present or commenced in the future, which right or claim, including in connection with indebtedness, liability or obligation, is based in whole or in part on facts that existed prior to the Filing Date, including for greater certainty any Equity Claim, any claim brought by any proposed or confirmed representative plaintiff on behalf of a class in a class action, and any D&O Indemnity Claim.
“Pre-Filing D&O Claim” or “Pre-Filing D&O Claims” means any or all right or claim of any Person against one or more of the Directors and/or Officers arising based in whole or in part on facts that existed prior to the Filing Date, whether or not such right or claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, unsecured, perfected, unperfected, present, future, known, or unknown, by guarantee, surety or otherwise, and whether or not such right is executory or anticipatory in nature, including any Assessments, any claim brought by any proposed or confirmed representative plaintiff on behalf of a class in a class action, and any right or ability of any Person to advance a claim for contribution, indemnity or otherwise against any of the Directors and/or Officers with respect to any matter, action, cause or chose in action, whether existing at present or arising or commenced in the future, for which any Director or Officer is alleged to be, by statute or otherwise by law or equity, liable to pay in his or her capacity as a Director or Officer.
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“Priority Commodity/ISO Charge” has the meaning ascribed thereto in the Initial Order.
“Pro Rata Share” means, as at any relevant date of determination, the proportionate share of a Person’s holdings of an amount or thing to the total of all Persons’ holdings of such amount or thing and, in the case of,
| (a) | each General Unsecured Creditor, the percentage that such General Unsecured Creditor’s General Unsecured Creditor Claim that is an Accepted Claim, bears to the aggregate of all General Unsecured Creditor Claims that are Accepted Claims and Disputed Claims (for certainty, valued at the amounts asserted by such General Unsecured Creditors); |
| (b) | each Beneficial Term Loan Claim Holder, the percentage that such Beneficial Term Loan Claim Holder’s Term Loan Claim that is an Accepted Claim, bears to the aggregate Term Loan Claim that is an Accepted Claim; |
| (c) | each Beneficial Subordinated Note Claim Holder, the percentage that such Beneficial Subordinated Note Claim Holder’s Subordinated Note Claim that is an Accepted Claim, bears to the aggregate Subordinated Note Claim that is an Accepted Claim; and |
| (d) | each Credit Facility Lender, the percentage that such Credit Facility Lender’s Credit Facility Claim that is an Accepted Claim, bears to the aggregate Credit Facility Claim that is an Accepted Claim. |
“Proof of Assignment” means a notice of transfer of the whole of a Claim executed by a Creditor and the transferee, together with satisfactory evidence of such transfer as may be reasonably required by the Monitor.
“Proof of Claim” has the meaning ascribed thereto in the Claims Procedure Order.
“Record Date” has the meaning ascribed thereto in the Meetings Order.
“Regulatory Approvals” means any material licenses, permits or approvals required from any Governmental Entity or under any Applicable Laws relating to the business and operations of the Just Energy Entities that would be required to be obtained in order to permit JEGI, New Just Energy Parent and the Plan Sponsor to complete the transactions contemplated by the Plan and the Backstop Commitment Letter, including the issuance and acquisition of the New Common Shares, other than the Competition Act Approval, the Antitrust Approval and the Investment Canada Act Approval.
“Released Claim” and “Released Claims” have the meaning ascribed thereto in Section 8.1.
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“Released D&O Claim” means any D&O Claim that is released pursuant to Section 8.1, and “Released D&O Claims” means all of them.
“Released Party” and “Released Parties” have the meaning ascribed thereto in Section 8.1.
“Releasing Party” and “Releasing Parties” means any and all Persons (besides the Just Energy Entities and their respective current and former affiliates), and their current and former affiliates’ current and former members, directors, managers, officers, investment committee members, special committee members, equity holders (regardless of whether such interests are held directly or indirectly), predecessors, successors, assigns, participants, subsidiaries, affiliates, partners, limited partners, general partners, affiliated investment funds or investment vehicles, managed accounts or funds, and each of their respective current and former members, equity holders, officers, directors, managers, principals, members, management companies, advisory board members, investment fund advisors or managers, employees, agents, trustees, investment managers, financial advisors, partners, legal counsel, accountants, investment bankers, consultants, representatives, and other professionals, each in their capacity as such.
“Required Majorities” means, with respect to each Class of Affected Creditors, the affirmative vote of a majority in number of all voting (in person or by proxy) Creditors holding Voting Claims in such Class and representing not less than 66 2/3% in value of the Voting Claims voting (in person or by proxy) in such Class at the applicable Meeting.
“Restructuring Period Claim” or “Restructuring Period Claims” means any or all right or claim of any Person against any of the Just Energy Entities in connection with any indebtedness, liability or obligation of any kind whatsoever owed by any such Just Energy Entity to such Person arising out of the restructuring, disclaimer, resiliation, termination or breach by such Just Energy Entity on or after the Filing Date of any contract, lease or other agreement, whether written or oral, and including any right or claim with respect to any Assessment.
“Restructuring Period D&O Claim” or “Restructuring Period D&O Claims” means any or all right or claim of any Person against one or more of the Directors and/or Officers arising after the Filing Date, whether or not such right or claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, unsecured, perfected, unperfected, present, future, known, or unknown, by guarantee, surety or otherwise, and whether or not such right is executory or anticipatory in nature, including any Assessments and any right or ability of any Person to advance a claim for contribution, indemnity or otherwise against any of the Directors and/or Officers with respect to any matter, action, cause or chose in action, whether existing at present or arising or commenced in the future, for which any Director or Officer is alleged to be, by statute or otherwise by law or equity, liable to pay in his or her capacity as a Director or Officer.
“Restructuring Steps Supplement” has the meaning ascribed thereto in Section 6.2.
“Restructuring Term Sheet” means that certain restructuring term sheet attached at Exhibit “C” to the Support Agreement as may be amended in accordance with the terms of the Support Agreement.
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“Sanction Order” means the Order of the Court in the CCAA Proceeding, which, among other things, sanctions and approves the Plan, as same may be further amended, restated or varied from time to time, and in all such cases such Order shall be in form and substance reasonably acceptable to the Just Energy Entities, the Credit Facility Lenders and the Plan Sponsor.
“Sanction Recognition Order” means the Order entered by the U.S. Court recognizing and enforcing the Sanction Order in the Chapter 15 Proceeding, which shall be in form and substance reasonably acceptable to the Just Energy Entities, the Credit Facility Lenders, Shell and the Plan Sponsor.
“Section 1145” means section 1145 of the U.S. Bankruptcy Code.
“Secured Creditor Class” means the Class comprised of the Credit Facility Lenders in respect of the Credit Facility Claims.
“Secured Creditor Proxy” has the meaning ascribed thereto in the Meetings Order.
“Shell” means, collectively, Shell Energy North America (Canada) Inc., Shell Energy North America (US), L.P., and Shell Trading Risk Management, LLC.
“Specified Equity Class Action Claim” has the meaning ascribed thereto in the Claims Procedure Order.
“Subject Class Action Claims” means, collectively, the Claims in respect of which Proofs of Claim have been filed in accordance with the Claims Procedure Order by (a) Haidar Omarali, representative plaintiff; (b) Fira Donin and Inna Golovan, proposed representative plaintiffs; and (c) Trevor Jordet, proposed representative plaintiff.
“Subject Class Action Plaintiff” means, as applicable, (a) the representative plaintiff in any certified Subject Class Action Claim; or (b) the proposed representative plaintiffs in any uncertified Subject Class Action Claim.
“Subordinated Note” means the subordinated notes issued by JEGI pursuant to the Subordinated Note Indenture.
“Subordinated Note Claim” means the aggregate principal amount of $13,179,000 currently owing by JEGI under the Subordinated Note Documents and pursuant to the Subordinated Notes, plus all accrued and outstanding fees, costs, interest, and other amounts owing pursuant to the Subordinated Note Documents as determined in accordance with the Claims Procedure Order.
“Subordinated Note Documents” means, collectively, the Subordinated Note Indenture and all related documentation.
“Subordinated Note Indenture” means the trust indenture entered into on September 28, 2020 by JEGI and the Subordinated Note Trustee.
“Subordinated Note Trustee” means Computershare Trust Company of Canada, in its capacity as the indenture trustee under the Subordinated Note Indenture.
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“Subordinated Noteholder” means any registered holder of Subordinated Notes, in such capacity, and “Subordinated Noteholders” means all of them.
“Subscription Amount” means (a) in respect of a Beneficial Term Loan Claim Holder, an amount such beneficial holder has agreed to subscribe for New Equity Offering Shares at the Subscription Price; and (b) in respect of a Backstop Party, an amount equal to its Subscription Share Percentage of the New Equity Offering Shares multiplied by the Subscription Price.
“Subscription Price” means US$10 per New Equity Offering Share.
“Subscription Share Percentage” means a Beneficial Term Loan Claim Holder’s Pro Rata Share of the Term Loan Claim as of the Term Loan Record Date.
“Support Agreement” means that certain plan support agreement dated May 12, 2022 between the Just Energy Entities, the Plan Sponsor, the Credit Facility Lenders, Shell, the BP Commodity/ISO Services Claimholder and such other parties who may become bound by such agreement, as may be amended, restated, supplemented and/or otherwise modified from time to time in accordance with the terms thereof.
“Supporting Parties” means the parties that have executed the Support Agreement with the Just Energy Entities other than the Just Energy Entities.
“Tax” or “Taxes” means any and all federal, provincial, state, municipal, local and foreign taxes, assessments, reassessments and other Governmental Entity charges, duties, impositions and liabilities, including, for greater certainty, taxes based upon or measured by reference to income, gross receipts, profits, capital, transfer, land transfer, sales, goods and services, harmonized sales, use, value-added, excise, withholding, business, franchising, property, development, occupancy, employer health, payroll, employment, health, social services, education and social security taxes, all surtaxes, all customs duties and import and export taxes, all licence, franchise and registration fees and all employment insurance, health insurance and federal, provincial, state, municipal, local and foreign government pension plan premiums or contributions, together with all interest, penalties, fines and additions with respect to such amounts.
“Taxing Authorities” means Her Majesty the Queen in right of Canada, Her Majesty the Queen in right of any province or territory of Canada, the Canada Revenue Agency, any similar revenue or taxing authority of Canada and each and every province or territory of Canada and any political subdivision thereof, the United States Internal Revenue Service, any similar revenue or taxing authority of the United States and each and every state and locality of the United States, and any Canadian, United States or other Governmental Entity exercising taxing authority or power, and “Taxing Authority” means any one of the Taxing Authorities.
“Term Loan” means the senior unsecured term loan issued pursuant to the Term Loan Agreement.
“Term Loan Agent” means Computershare Trust Company of Canada, in its capacity as administrative agent under the Term Loan Agreement.
“Term Loan Agreement” means the First Amended and Restated Loan Agreement dated as of September 28, 2020 among JEGI as borrower, Sagard Credit Partners, LP and each other person from time to time party thereto as a lender, and the Term Loan Agent, as may be amended, restated, supplemented and/or otherwise modified from time to time in accordance with the terms thereof.
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“Term Loan Claim” means the aggregate principal amount of US$208,588,899.18 owing by the Just Energy Entities under the Term Loan Agreement and pursuant to the Term Loan, plus all accrued and outstanding pre-filing fees, costs, interest, or other amounts owing pursuant to the Term Loan Agreement as determined in accordance with the Claims Procedure Order.
“Term Loan Claim Holder” means any registered holder of the Term Loan Claim as of the Term Loan Record Date, in such capacity, and “Term Loan Claim Holders” means all of them.
“Term Loan Claim Shares” means 10% of the total New Common Shares, subject to dilution by the equity issued or issuable pursuant to the MIP, to be issued on the Effective Date to the Beneficial Term Loan Claim Holders pursuant to Section 3.4(2).
“Term Loan Record Date” means 5:00 p.m. on May 12, 2022.
“Term Loan Turnover Amount” has the meaning ascribed thereto in Section 3.4(4).
“Termination Fee Charge” has the meaning ascribed thereto in the Authorization Order.
“Texas Power Interruption Claim” means the Claim in respect of which Proofs of Claim have been filed in accordance with the Claims Procedure Order by the Texas Power Interruption Claimants’ Counsel, by and on behalf of claimants whom they represent and who authorized them to do so.
“Texas Power Interruption Claimants’ Counsel” means, collectively, Robins Cloud LLP, Fears Nachawati PLLC, Watts Guerra LLP and Parker Waichman LLP.
“Transaction Regulatory Approvals” means, collectively, and in each case to the extent it has been agreed to in accordance with Article 7 hereof that such approval shall be obtained, the Competition Act Approval, the Antitrust Approvals, the Investment Canada Act Approval and the Regulatory Approvals.
“Turnover Amounts” has the meaning ascribed thereto in Section 3.4(4).
“U.S. Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§ 101–1532, as amended.
“U.S. Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure as promulgated by the United States Supreme Court under section 2075 of title 28 of the United States Code, 28 U.S.C. § 2075, as applicable to the Chapter 15 Proceeding, and the general, local and chambers rules of the U.S. Court, as amended.
“U.S. Court” has the meaning ascribed thereto in the recitals.
“U.S. Exchange Act” means the Securities Exchange Act of 1934, as amended.
“U.S. Securities Act” means the U.S. Securities Act of 1933, as amended.
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“Unaffected Claim” means any:
| (a) | Post-Filing Claim; |
| (b) | Claim secured by a CCAA Charge, including the DIP Lenders’ Claim secured by the DIP Lenders’ Charge and the Cash Management Obligations secured by the Cash Management Charge; |
| (c) | Commodity Supplier Claim; |
| (d) | BP Commodity/ISO Services Claim; |
| (e) | Credit Facility LC Claim; |
| (f) | Government Priority Claim; |
| (g) | Employee Priority Claim; |
| (h) | Energy Regulator Claim; |
| (i) | Specified Equity Class Action Claim, solely to the extent preserved pursuant to the CBCA Arrangement; |
| (j) | Insured Claim; |
| (k) | Intercompany Claim, subject to Section 5.4(f); |
| (l) | Claim finally determined in accordance with the Claims Procedure Order to be a secured or priority claim against any of the Just Energy Entities and entitled to be paid in full in priority to the General Unsecured Creditor Claims and the Term Loan Claim, and which Claim is not and does not become a Disallowed Claim; |
| (m) | Claim for sales, use or other Taxes by a U.S. Taxing Authority whereby the nonpayment of which by any Just Energy Entity could result in a responsible person associated with a Just Energy Entity being held personally liable for such nonpayment; |
| (n) | Excluded D&O Indemnity Claim; |
| (o) | Claim that may be asserted by any of the Just Energy Entities against any Directors and/or Officers; |
| (p) | Claim against Directors that cannot be compromised due to the provisions of section 5.1(2) of the CCAA; or |
| (q) | Claim that cannot be compromised due to the provisions of section 19(2) of the CCAA, except any Claim to which Section 8.7 applies, which shall be Affected Claims for the purposes of the Plan, and for greater certainty, shall include any Unaffected Claim arising through subrogation. |
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“Unaffected Creditor” means a Creditor who has an Unaffected Claim, but only in respect of and to the extent of such Unaffected Claim.
“Undeliverable Distribution” has the meaning ascribed thereto in Section 5.6.
“Unissued New Shares” has the meaning ascribed thereto in Section 5.3(e).
“Unsecured Creditor Class” means the Class comprised of General Unsecured Creditors and Term Loan Claim Holders.
“Unsecured Creditor Proxy” has the meaning ascribed thereto in the Meetings Order.
“Unsubscribed New Equity” means the aggregate number of New Equity Offering Shares, less the aggregate number of New Equity Offering Shares to be issued pursuant to the Subscription Amount submitted to the Just Energy Entities on or before the New Equity Participation Deadline.
“Voting Claim” means the amount of an Affected Claim for which a Proof of Claim has been filed or a Negative Notice Claims Package delivered, which, as of the Record Date or the Term Loan Record Date, as applicable, (a) is an Accepted Claim; or (b) has been accepted or deemed to be accepted solely for voting purposes pursuant to the Claims Procedure Order, the Meetings Order or any other Order of the Court or the U.S. Court; provided that notwithstanding the foregoing, (i) with respect to the Term Loan Claim, (x) the Term Loan Agent shall not have a Voting Claim, and (y) each Term Loan Claim Holder shall have a Voting Claim in the amount equal to its Pro Rata Share of the Term Loan Claim in the amount that is an Accepted Claim, or if not an Accepted Claim by two (2) Business Days before the Meetings Date, in the amount set out in the Negative Notice Claims Package in respect of the Term Loan Claim, (ii) with respect to the Subordinated Note Claim, (x) the Subordinated Noteholder shall have a Voting Claim in the amount equal to the Subordinated Note Claim, and (y) the Beneficial Subordinated Note Claim Holders shall not have a Voting Claim, and (iii) with respect to the Credit Facility Claim, (x) the Credit Facility Agent shall not have a Voting Claim, and (y) each Credit Facility Lender shall have a Voting Claim in the amount equal to its Pro Rata Share of the Credit Facility Claim that is an Accepted Claim.
| 1.2 | Certain Rules of Interpretation |
For the purposes of the Plan:
| (a) | any reference in the Plan to a contract, instrument, release, indenture, or other agreement or document being in a particular form or on particular terms and conditions means that such document shall be substantially in such form or substantially on such terms and conditions; |
| (b) | any reference in the Plan to an Order or an existing document or exhibit filed or to be filed means such Order, document or exhibit as it may have been or may be amended, restated, modified, supplemented or varied from time to time; |
| (c) | unless otherwise specified, all references to currency and to “$” are to Canadian dollars; |
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| (d) | the division of the Plan into “Articles” and “Sections” and the insertion of a Table of Contents are for convenience of reference only and do not affect the construction or interpretation of the Plan, nor are the descriptive headings of “Articles” and “Sections” otherwise intended as complete or accurate descriptions of the content thereof; |
| (e) | any references in the Plan to “Articles”, “Sections”, “Subsections” and “Schedules” are references to Articles, Sections, Subsections and Schedules of or to the Plan; |
| (f) | the use of words in the singular or plural, or with a particular gender, including a definition, shall not limit the scope or exclude the application of any provision of the Plan or a schedule hereto to such Person (or Persons) or circumstances as the context otherwise permits; |
| (g) | the words “includes” and “including” and similar terms of inclusion shall not, unless expressly modified by the words “only” or “solely”, be construed as terms of limitation, but rather shall mean “includes but is not limited to” and “including but not limited to”, so that references to included matters shall be regarded as illustrative without being either characterizing or exhaustive; |
| (h) | unless otherwise specified, all references to time herein and in any document issued pursuant hereto shall mean the prevailing local time in Toronto, Ontario and any reference to an event occurring on a Business Day shall mean prior to 5:00 p.m. on such Business Day; |
| (i) | unless otherwise provided, any reference to a statute or other enactment of parliament or a legislature includes all rules and regulations made thereunder, all amendments to or re-enactments of such statute or regulations in force from time to time, and, if applicable, any statute or regulation that supplements or supersedes such statute or regulation; |
| (j) | references to a specified “Article” or “Section” shall, unless something in the subject matter or context is inconsistent therewith, be construed as references to that specified article or section of the Plan, whereas the terms “the Plan”, “hereof”, “herein”, “hereto”, “hereunder” and similar expressions shall be deemed to refer generally to the Plan and not to any particular “Article”, “Section” or other portion of the Plan and include any documents supplemental hereto; and |
| (k) | the word “or” is not exclusive. |
| 1.3 | Date and Time for any Action |
For the purposes of the Plan:
| (a) | in the event that any date on which any action is required to be taken under the Plan by any Person is not a Business Day, that action shall be required to be taken on the next succeeding day which is a Business Day, and any reference to an event occurring on a Business Day shall mean prior to 5:00 p.m. on such Business Day; and |
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| (b) | unless otherwise specified, time periods within or following which any payment is to be made or act is to be done shall be calculated by excluding the day on which the period commences and including the day on which the period ends and by extending the period to the next succeeding Business Day if the last day of the period is not a Business Day. |
| 1.4 | Successors and Assigns |
The Plan shall be binding upon and shall enure to the benefit of the heirs, administrators, executors, legal personal representatives, receivers, trustees in bankruptcy, successors and assigns of any Person or party directly or directly named or referred to in or subject to the Plan.
| 1.5 | Governing Law |
The Plan shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. All questions as to the interpretation of or application of the Plan and all proceedings taken in connection with the Plan and its provisions shall be subject to the jurisdiction of the Court; provided that, the Chapter 15 Proceeding shall be subject to the jurisdiction of the U.S. Court.
| 1.6 | Schedules |
The following is the Schedule to the Plan, which is incorporated by reference into the Plan and forms a part of it:
| Schedule “A” | Just Energy Partnerships |
Article
2
PURPOSE AND EFFECT OF THE PLAN
| 2.1 | Purpose |
The purpose of the Plan is:
| (a) | to implement a restructuring of the Just Energy Entities; |
| (b) | to provide for a compromise and arrangement of all Affected Claims; |
| (c) | to effect a release and discharge of all Affected Claims and Released Claims; and |
| (d) | to ensure the continuation of the Just Energy Entities and their business, |
in the expectation that the Persons who have a valid economic interest in the Just Energy Entities will derive a greater benefit from the implementation of the Plan than they would derive from a bankruptcy or liquidation of the Just Energy Entities.
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| 2.2 | Persons Affected |
The Plan provides for a full and final release and discharge of the Affected Claims and Released Claims, a settlement of, and consideration for, all Affected Claims that are Accepted Claims and a restructuring of the Just Energy Entities. The Plan will become effective at the Effective Time in accordance with its terms and in the sequence set forth in the Restructuring Steps Supplement and shall be binding on and enure to the benefit of the Just Energy Entities, the Affected Creditors, the Released Parties and all other Persons directly or indirectly named or referred to in or subject to Plan, and each of their respective heirs, executors, administrators, legal representatives, successors, and assigns in accordance with the terms hereof.
| 2.3 | Persons Not Affected |
The Plan does not affect the Unaffected Creditors, subject to the express provisions hereof providing for the payment of certain Unaffected Claims and/or treatment of Insured Claims. Nothing in the Plan shall affect the Just Energy Entities’ rights and defences, both legal and equitable, with respect to any Unaffected Claims, including all rights with respect to legal and equitable defences or entitlements to set-offs or recoupments against such Unaffected Claims.
| 2.4 | Equity Claimants |
On the Effective Date, the Plan will be binding on all Equity Claimants, including the Existing Common Shareholders. Equity Claimants, including the Existing Common Shareholders, shall not receive a distribution or other consideration under the Plan and shall not be entitled to vote on the Plan in respect of their Equity Claims or Existing Equity or attend any of the Meetings. On the Effective Date, in accordance with the steps and sequences set forth in the Restructuring Steps Supplement, all Existing Equity (other than, for certainty, the Common Shares transferred and the Common Shares issued to New Just Energy Parent on the Effective Date in accordance with the steps and sequences set forth in the Restructuring Steps Supplement, the Intercompany Interests and the New Shares) shall be cancelled and extinguished and all Equity Claims shall be fully, finally, irrevocably and forever compromised, released, discharged and barred without any compensation of any kind whatsoever.
| 2.5 | Treatment of Employment Agreements |
Unless otherwise expressly required by the terms of this Plan, provided for by the MIP, or agreed to in writing by and among the Just Energy Entities, the Plan Sponsor, and the applicable employee (or employees) affected by any change or modification, each of the Employment Agreements will not be disclaimed and will remain in place as of, and as a condition to the occurrence of, the Effective Date.
| 2.6 | Management Incentive Plan |
On the Effective Date, the New Board shall adopt the MIP, on terms consistent in all respects with the management incentive plan term sheet, attached as Exhibit 4 to the Restructuring Term Sheet.
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Article 3
CLASSIFICATION AND TREATMENT OF CREDITORS AND RELATED MATTERS
| 3.1 | Claims Procedure |
The procedure for determining the validity and quantum of the Affected Claims and for resolving Disputed Claims for voting and distribution purposes under the Plan shall be governed by the Claims Procedure Order, the Meetings Order, the CCAA, the Plan and any further Order of the Court. For the avoidance of doubt, the Claims Procedure Order will remain in full force and effect from and after the Effective Date.
| 3.2 | Classification of Creditors |
In accordance with the Meetings Order, for the purposes of considering and voting on the Plan and receiving a distribution hereunder, the Affected Creditors will be divided into two (2) separate Classes: (a) the Unsecured Creditor Class; and (b) the Secured Creditor Class.
| 3.3 | Meetings |
The Meetings shall be held in accordance with the Meetings Order and any further Order of the Court in the CCAA Proceeding. The only Persons entitled to attend and vote at the Meetings are those specified in the Meetings Order and any further Order of the Court in the CCAA Proceeding.
| 3.4 | Affected Claims of the General Unsecured Creditors |
| (1) | Voting of the Unsecured Creditor Class |
Pursuant to and in accordance with the Meetings Order, each of the following Creditors shall be entitled to vote on the Plan at the Meeting for the Unsecured Creditor Class as follows:
| (a) | each Term Loan Claim Holder shall be entitled to one (1) vote in the amount equal to its Voting Claim; provided that, in order to vote on the Plan, a Term Loan Claim Holder must deliver an Unsecured Creditor Proxy in accordance with the Meetings Order; |
| (b) | Convenience Creditors shall each be deemed to vote in favour of the Plan in the amount of such Creditor’s Accepted Claim; |
| (c) | General Unsecured Creditors (other than the Subordinated Noteholder) with Voting Claims shall be entitled to one (1) vote in the amount equal to such Creditor’s Voting Claim; provided that, in order to vote on the Plan, a General Unsecured Creditor (other than a Convenience Creditor or a Subordinated Noteholder) must deliver an Unsecured Creditor Proxy in accordance with the Meetings Order; and |
| (i) | with respect to any Subject Class Action Claim, each Subject Class Action Plaintiff with Voting Claims shall be entitled to one (1) vote in an amount equal to its Voting Claim; and |
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| (ii) | with respect to the Texas Power Interruption Claim, each Texas Power Interruption Claimants’ Counsel with Voting Claims shall be entitled to one (1) vote in an amount equal to its Voting Claim; and |
| (d) | the Subordinated Noteholder shall be entitled to one (1) vote in the amount equal to its Voting Claim. |
| (2) | Treatment of the Term Loan Claim |
In accordance with the terms and in the steps and sequences set forth in the Restructuring Steps Supplement, on the Effective Date, in full and final satisfaction of the Term Loan Claim:
| (a) | subject to Section 5.3(e), each Beneficial Term Loan Claim Holder shall be entitled to receive its Pro Rata Share of the Term Loan Claim Shares; |
| (b) | each Beneficial Term Loan Claim Holder that qualifies as a New Equity Offering Eligible Participant shall be entitled to participate in the New Equity Offering Rights based on its Subscription Share Percentage; and |
| (c) | each Non-Participating Term Loan Claim Holder shall be entitled to receive its Non-Participating Term Loan Lender Pro Rata Share of the Turnover Amounts. |
| (3) | Treatment of the General Unsecured Claims |
In accordance with the terms and in the steps and sequences set forth in the Restructuring Steps Supplement, on the Effective Date, in full and final satisfaction of the General Unsecured Creditor Claims:
| (a) | Convenience Creditors: |
| (i) | General Unsecured Creditors with Accepted Claims on the Initial Distribution Record Date equal to or less than $1,500 shall be deemed to have made a Distribution Election and to have elected to and shall receive the Distribution Election Amount in respect of their Accepted Claim from the Convenience Cash Pool on the Initial Distribution Date in accordance with the Plan; and |
| (ii) | General Unsecured Creditors with Accepted Claims on the Initial Distribution Record Date greater than $1,500 that have made a Distribution Election prior to the Distribution Election Deadline shall receive the Distribution Election Amount in respect of their Accepted Claim from the Convenience Cash Pool on the Initial Distribution Date in accordance with the Plan. |
| (b) | Other General Unsecured Creditors |
| (i) | Each General Unsecured Creditor with an Accepted Claim greater than $1,500 that has not made a Distribution Election prior to the Distribution Election Deadline shall receive its Pro Rata Share of the General Unsecured Creditor Cash Pool (after deducting all Distribution Election Amounts payable under the Plan and any amounts paid, payable or reserved under Section 5.2 on a Distribution Date). |
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| (4) | Treatment of the Subordinated Note Claim |
Subject to and in accordance with the provisions of the Subordinated Note Indenture, including sections 5.2 and 5.5 thereof, each Beneficial Subordinated Note Claim Holder shall receive the applicable portion of the General Unsecured Creditor Cash Pool (after deducting all Distribution Election Amounts payable under the Plan) provided for in Section 3.4(3)(b)(i) of the Plan in full satisfaction of its Subordinated Note Claim and each Subordinated Note Claim and all Subordinated Notes shall be fully, finally, and irrevocably and forever compromised, released, discharged, cancelled, extinguished, and barred on the Effective Date. For certainty, the Monitor shall not make any distribution to any Subordinated Noteholder or Beneficial Subordinated Note Claim Holder until all Persons entitled to turnover of any such distribution (any such amounts, the “Turnover Amounts”) pursuant to the terms of the Subordinated Note Indenture have been paid in full. Instead, the Monitor shall distribute: (i) the Non-Participating Term Loan Lender Pro Rata Shares of the Turnover Amounts to the Non-Participating Term Loan Claim Holders (collectively, the “Term Loan Turnover Amount”); and (ii) the Turnover Amounts, less the Term Loan Turnover Amount, to the beneficiaries of the General Unsecured Creditor Cash Pool. For the purposes of this Section, with respect to any Turnover Amounts that would otherwise be required to be paid to Beneficial Term Loan Claim Holders that are not Non-Participating Term Loan Claim Holders, such amounts shall be contributed to the beneficiaries of the General Unsecured Creditor Cash Pool.
| (5) | D&O Claims |
| (a) | All Released D&O Claims shall be fully, finally, and irrevocably compromised, released, discharged, cancelled, extinguished and barred on the Effective Date. All D&O Indemnity Claims shall be treated for all purposes under the Plan as General Unsecured Creditor Claims and shall be fully, finally, and irrevocably compromised, released, discharged, cancelled, extinguished and barred on the Effective Date. |
| (b) | All Non-Released D&O Claims shall not be compromised, released, discharged, cancelled, extinguished and barred on the Effective Date, but shall be irrevocably limited to recovery from any insurance proceeds payable in respect of such Non-Released D&O Claims pursuant to the Insurance Policies, and Persons with such Non-Released D&O Claims shall have no right to, and shall not, make any claim or seek any recoveries other than enforcing such Persons’ rights to be paid from the proceeds of the applicable Insurance Policies by the applicable insurer(s). |
| (c) | Notwithstanding anything to the contrary herein, from and after the Effective Date, any Person may only commence an action for a D&O Claim against a Director or Officer if such Person has first obtained (i) the consent of the Monitor, or (ii) the leave of the Court on notice to the applicable Director or Officer, the Just Energy Entities, the Monitor and any applicable insurer(s), or if the action will be commenced within the United States, if such Person has first obtained an Order of the U.S. Court in the Chapter 15 Proceeding on notice to the applicable Director or Officer, the Just Energy Entities, the Monitor and any applicable insurer(s). |
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| 3.5 | Affected Claims of the Secured Creditor Class |
| (1) | Voting of the Secured Creditor Class |
Pursuant to and in accordance with the Meetings Order, the Secured Creditor Class shall be entitled to vote on the Plan at the Meeting as follows: each Credit Facility Lender shall be entitled to one (1) vote in the amount equal to its Voting Claim; provided that, in order to vote on the Plan, a Credit Facility Lender must deliver a Secured Creditor Proxy in accordance with the Meetings Order.
| (2) | Treatment of the Credit Facility Claim |
In accordance with the terms and in the steps and sequences set forth in the Restructuring Steps Supplement, on the Effective Date, in full and final satisfaction of the Credit Facility Claim,
| (a) | the Just Energy Entities, shall pay, or shall cause to be paid, to the Credit Facility Agent, an amount equal to the Credit Facility Claim less the Credit Facility Remaining Debt, if any, in full in cash in the currency that such Credit Facility Claim was originally denominated in full and final satisfaction of the Credit Facility Claim less the Credit Facility Remaining Debt, if any; and |
| (b) | provided that a Credit Facility Lender Termination Event has not occurred (or if it has occurred, it has been waived by the Credit Facility Lenders in accordance with the Support Agreement) before the Effective Time, the New Credit Facility and the New Credit Facility Documents shall become effective in accordance with their terms, and the Credit Facility Remaining Debt, if any, shall remain outstanding as an initial outstanding principal amount under the New Credit Agreement, upon implementation of the Plan pursuant and subject to the terms of the New Credit Facility Documents. |
| 3.6 | Treatment of the BP Commodity / ISO Services Claims |
In accordance with the terms and in the steps and sequences set forth in the Restructuring Steps Supplement, on the Effective Date, in full and final satisfaction of the BP Commodity / ISO Services Claims, New Just Energy Parent shall issue the New Preferred Shares to the BP Commodity / ISO Services Claimholder. The BP Commodity / ISO Services Claimholder shall not be entitled to vote on the Plan in respect of the BP Commodity / ISO Services Claims.
| 3.7 | Treatment of De Minimis Claims |
Notwithstanding any other provision of this Plan, no holder of an Accepted Claim that is less than $10 (a “De Minimis Claim”) shall be entitled to or receive any distributions pursuant to the Plan in respect of such De Minimis Claim, and all such De Minimis Claims shall be fully, finally, irrevocably and forever compromised, released, discharged, cancelled and barred, and shall be treated as such in the calculation of any Pro Rata Share under this Plan.
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| 3.8 | Unaffected Claims |
Unaffected Claims shall not be compromised under the Plan. No holder of an Unaffected Claim shall: (a) be treated as a Convenience Creditor; (b) be entitled to vote on the Plan or attend at any of the Meetings in respect of such Unaffected Claim; or (c) be entitled to or receive any payments or distributions, or be subject to any compromise or settlement, pursuant to the Plan in respect of such Unaffected Claim, unless specifically provided for under and pursuant to the Plan, including without limitation, pursuant to Section 3.6, Section 5.4(a)(v) and Section 11.3.
| 3.9 | New Equity Offering |
| (a) | Each Beneficial Term Loan Claim Holder that qualifies as a New Equity Offering Eligible Participant shall have the right, but not the obligation, to elect irrevocably to participate in the New Equity Offering and exercise its New Equity Offering Rights to subscribe for and purchase up to its Subscription Share Percentage of New Equity Offering Shares by submitting, in accordance with the New Equity Offering Documentation, a duly completed and executed New Equity Offering Participation Form, together with such Beneficial Term Loan Claim Holder’s Subscription Amount to be paid to the Escrow Agent, by wire transfer in indefeasible funds, in accordance with the Meetings Order and the New Equity Offering Documentation on or prior to the New Equity Participation Deadline. Any New Equity Offering Participation Form received by the Just Energy Entities after the New Equity Participation Deadline or not accompanied by such Beneficial Term Loan Claim Holder’s Subscription Amount will be deemed to be invalid and not effective and shall be disregarded for all purposes of the Plan. |
| (b) | Submission of a validly completed New Equity Offering Participation Form and the applicable Subscription Amount by a Beneficial Term Loan Claim Holder that qualifies as a New Equity Offering Eligible Participant in accordance with the Meetings Order, the New Equity Offering Documentation and this Section 3.9 shall constitute an irrevocable subscription by the applicable Beneficial Term Loan Claim Holder, and a commitment by the applicable Beneficial Term Loan Claim Holder, to participate in the New Equity Offering Rights by purchasing up to its Subscription Share Percentage of the New Equity Offering Shares. |
| (c) | Subject to the terms and conditions of the Backstop Commitment Letter, each Backstop Party shall deliver a completed and executed New Equity Offering Participation Form and fund its Subscription Amount in accordance with the Backstop Commitment Letter. |
| (d) | Additional Backstop Parties shall fund their Backstop Party’s Commitments in accordance with the Backstop Commitment Letter. To the extent an Additional Backstop Party’s Backstop Party Commitments are unused, they will be returned to the Additional Backstop Party in accordance with the Backstop Commitment Letter. |
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| (e) | Within five (5) Business Days following the New Equity Participation Deadline, the Just Energy Entities shall provide written notice to each Initial Backstop Party and the Monitor setting forth the Just Energy Entities’ calculation of: (i) the number of Backstopped Shares, (ii) the New Equity Offering Shares subscribed for and funded by New Equity Offering Eligible Participants in the New Equity Offering, and (iii) such Backstop Party’s Backstop Party’s Commitments. |
| (f) | The Escrow Agent shall promptly return to a Beneficial Term Loan Claim Holder any Subscription Amount received from a Beneficial Term Loan Claim Holder who did not submit a duly completed and executed New Equity Offering Participation Form on or prior to the New Equity Participation Deadline or who does not qualify as a New Equity Offering Eligible Participant, in accordance with this Section 3.9, and the Just Energy Entities shall notify such Beneficial Term Loan Claim Holder of the reason for the return of the Subscription Amount. |
| (g) | Subject to and in accordance with the terms and conditions of the Backstop Commitment Letter, no less than five (5) Business Days prior to the anticipated Effective Date (or such other date as may be agreed by the Just Energy Entities and the Initial Backstop Parties, each acting reasonably), each such Initial Backstop Party (or its assignee under the Backstop Commitment Letter) shall deliver to the Escrow Agent an amount equal to its Backstop Party Commitments in accordance with the Backstop Commitment Letter, and each such Initial Backstop Party (or its assignee under the Backstop Commitment Letter) shall be deemed to have subscribed for the purchase of such allocation of the Backstopped Shares, subject to the terms and conditions of the Backstop Commitment Letter. |
| (h) | Each Initial Backstop Party that is not a Defaulting Backstop Party thereunder, may assume the Defaulting Backstop Party’s Backstop Party Commitments and obligation to subscribe for such Defaulting Backstop Party’s New Equity Offering Shares available under its New Equity Offering Rights, subject to and in accordance with the terms and conditions of the Backstop Commitment Letter. |
| (i) | All Subscription Amounts and Backstop Party’s Commitments received by the Escrow Agent in accordance with this Section 3.9 shall be held by the Escrow Agent, in escrow, and shall be transferred by the Escrow Agent as directed by the Just Energy Entities in accordance with the Plan upon the Effective Date. In the event that the Plan is terminated, withdrawn or revoked in accordance with the terms hereof, the Support Agreement or the Backstop Commitment Letter, or the Backstop Commitment Letter is terminated in accordance with its terms, the Escrow Agent shall forthwith return all Subscription Amounts and Backstop Party’s Commitments received pursuant to this Section 3.9 to the applicable Beneficial Term Loan Claim Holder and Backstop Party. |
| (j) | On the Effective Date, New Just Energy Parent shall issue the Backstop Commitment Fee Shares to the Initial Backstop Parties and Additional Backstop Parties in accordance with the Backstop Commitment Letter. |
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| 3.10 | Transferred Claims |
Any General Unsecured Creditor may transfer the whole of its Claim prior to the Meeting for General Unsecured Creditors in accordance with the Subordinated Note Documents, the Claims Procedure Order and the Meetings Order, as applicable; provided that, the Just Energy Entities and the Monitor shall not be obligated to recognize the transferee of such Claim as a General Unsecured Creditor in respect thereof, including allowing such transferee to vote at the Meeting for General Unsecured Creditors, unless a Proof of Assignment has been received by the Just Energy Entities and the Monitor prior to 5:00 p.m. on the day that is at least ten (10) Business Days prior to the date of the Meeting and such transfer has been acknowledged in writing by the Just Energy Entities and the Monitor. Thereafter such transferee shall, for all purposes in accordance with the Claims Procedure Order, the Meetings Order, the CCAA and the Plan, constitute a General Unsecured Creditor and shall be bound by any notices given or steps taken in respect of such Claim in accordance with the Meetings Order and any further Order of the Court in the CCAA Proceeding.
If a General Unsecured Creditor transfers the whole of its Claim to more than one Person or part of such Claim to another Person after the Filing Date, such transfer shall not create a separate Voting Claim and such Claim shall continue to constitute and be dealt with for the purposes hereof as a single Voting Claim. Notwithstanding such transfer, the Just Energy Entities and the Monitor shall not be bound to recognize or acknowledge any such transfer and shall be entitled to give notices to and otherwise deal with such Claim only as a whole and only to and with the Person last holding such Claim in whole as the General Unsecured Creditor in respect of such Claim; provided that, such General Unsecured Creditor may, by notice in writing to the Just Energy Entities and the Monitor in accordance with and subject to the Meetings Order and given prior to 5:00 p.m. on the day that is at least ten (10) Business Days prior to the date of the Meeting, direct the subsequent dealings in respect of such Claim, but only as a whole, shall be with a specified Person and in such event, such transferee of the Claim and the whole of such Claim shall be bound by any notices given or steps taken in respect of such Claim in accordance with the Meetings Order and any further Order of the Court in the CCAA Proceeding or the U.S. Court in the Chapter 15 Proceeding.
No Beneficial Term Loan Claim Holder shall be entitled to transfer its Pro Rata Share of the Term Loan Claim on or following the Term Loan Record Date; provided that the Just Energy Entities shall have the authority, with the consent of the Monitor and the Plan Sponsor (such consent not to be unreasonably withheld, conditioned or delayed), to permit a transfer of a Beneficial Term Loan Claim Holder’s Pro Rata Share of the Term Loan Claim following the Term Loan Record Date for distribution purposes under the Plan for the sole purpose of a Beneficial Term Loan Claim Holder transferring the whole of its Pro Rata Share of the Term Loan Claim to a single designee in order for such Beneficial Term Loan Claim Holder to transfer such Pro Rata Share of the Term Loan Claim to a party that can receive the Term Loan Claim Shares in accordance with this Plan and Applicable Laws and so long as such transfer will not result in the Just Energy Entities being unable to satisfy the condition precedent set forth in Section 10.1(l).
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| 3.11 | Extinguishment of Claims |
On the Effective Date, in accordance with the terms and in the steps and sequences set forth in the Restructuring Steps Supplement and in accordance with the provisions of the Sanction Order, the treatment of all Affected Claims and all Released Claims, in each case as set forth in the Plan, shall be final and binding on the Just Energy Entities, all Creditors, any Person having a Released Claim and all other Persons named or referred to in or subject to the Plan (and their respective heirs, executors, administrators, legal personal representatives, successors and assigns), and all Affected Claims and all Released Claims shall be fully, finally, irrevocably and forever released, discharged, cancelled and barred except as provided for herein, and the Just Energy Entities and the Released Parties shall thereupon have no further obligation whatsoever in respect of such Affected Claims or the Released Claims, as applicable; provided that, nothing herein releases the Just Energy Entities or any other Person from their obligations to make distributions in the manner and to the extent provided for in the Plan and provided further that, such discharge and release of the Just Energy Entities shall be without prejudice to the right of a Creditor in respect of a Disputed Claim to prove such Disputed Claim in accordance with the Claims Procedure Order so that such Disputed Claim may become an Accepted Claim.
| 3.12 | Guarantees and Similar Covenants |
No Person who has a Claim under any guarantee, surety, indemnity or similar covenant in respect of any Claim that is compromised and released under the Plan or who has any right to claim over in respect of or to be subrogated to the rights of any Person in respect of a Claim that is compromised under the Plan shall be entitled to any greater rights than the Person whose Claim is compromised under the Plan.
| 3.13 | Set-Off |
The law of set-off applies to all Claims.
Article
4
PLAN IMPLEMENTATION FUND
| 4.1 | Plan Implementation Fund |
On or prior to the Effective Date, the Just Energy Entities shall deliver, or cause to be delivered, to the Monitor from (i) the New Equity Offering Proceeds, and/or (ii) Cash on Hand, to the extent necessary, the following amounts which shall be held by the Monitor in a segregated account of the Monitor and shall constitute the Plan Implementation Fund, and shall be used by the Monitor to pay or satisfy, on behalf of the Just Energy Entities:
| (a) | the amount of the Administrative Expense Reserve; and |
| (b) | the amount of the General Unsecured Creditor Cash Pool. |
| 4.2 | Administrative Expense Reserve and Other Fees and Expenses |
| (a) | From and after the Effective Date, the Monitor shall pay from the Administrative Expense Reserve, the reasonable and documented fees and disbursements (plus any applicable Taxes thereon) for any post-Effective Date services incurred by the Monitor, its legal counsel and any other Persons from time to time retained by the Monitor, in connection with administrative and estate matters (collectively, the “Monitor Administration Expenses”). Any unused portion of the Administrative Expense Reserve shall be transferred by the Monitor to New Just Energy Parent. |
| (b) | The Monitor shall have the sole discretion to determine whether the fees and disbursements of the Monitor, its legal counsel and any other Persons from time to time retained by the Monitor should be classified as Monitor Administration Expenses or fees and disbursements incurred under Section 5.2(b). |
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Article
5
DISTRIBUTIONS, PAYMENTS AND TREATMENT OF CLAIMS
| 5.1 | Distributions Generally |
All distributions to be effected pursuant to the Plan shall be made pursuant to this Article 5 and Article 6 and shall occur in the manner set forth herein and therein. Notwithstanding any other provisions of the Plan, an Affected Creditor holding a Disputed Claim shall not be entitled to receive a distribution under the Plan in respect of any portion thereof unless and until such Disputed Claim becomes an Accepted Claim.
| 5.2 | Distributions to the General Unsecured Creditors |
| (a) | General Unsecured Creditors with Accepted Claims shall receive distributions from the General Unsecured Creditor Cash Pool in accordance with Section 3.4(3). |
| (b) | From and after the Effective Date, other than in respect of the Monitor Administration Expenses that are provided for in Section 4.2(a), the Monitor shall pay from the General Unsecured Creditor Cash Pool, the reasonable and documented fees and disbursements (plus any applicable Taxes thereon) incurred by the Just Energy Entities’ legal, financial and other advisors, the Monitor and its legal counsel and any other Persons that may from time to time be retained by the Just Energy Entities or the Monitor, in connection with post-Effective Date matters relating to the Plan and the CCAA Proceeding, including in connection with the implementation of the Plan, the administration of the Plan Implementation Fund, the continued administration of the claims process provided for in the Claims Procedure Order and the resolution of Disputed Claims, and the termination of the CCAA Proceeding and the Chapter 15 Proceeding following the Effective Date. |
| (c) | All cash distributions to be made under the Plan to a General Unsecured Creditor shall be made by the Monitor on behalf of the Just Energy Entities by cheque or by wire transfer and (i) in the case of a cheque, will be sent, via regular mail, to such Creditor to the address specified in the Proof of Claim filed by, or Negative Notice Claims Package delivered to, such Creditor or such other address as the Creditor may from time to time notify the Monitor in writing in accordance with Section 11.14, or (ii) in the case of a wire transfer, shall be sent to an account specified by such Creditor to the Monitor in writing to the satisfaction of the Monitor. |
| (d) | The Monitor may, but shall not be obligated to, make any distribution to the General Unsecured Creditors before (i) all Disputed Claims have been finally resolved for distribution purposes in accordance with the Claims Procedure Order or further Order of the Court in the CCAA Proceeding or the U.S. Court in the Chapter 15 Proceeding; and (ii) all expenses have been incurred and paid pursuant to Section 5.2(b), and in doing so the Monitor may reserve such amount as it considers appropriate from the General Unsecured Creditor Cash Pool. |
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| (e) | Notwithstanding anything else in the Plan, the aggregate of the distributions provided for in Section 3.4(3) and this Section 5.2 shall not exceed the amount of funds in the General Unsecured Creditor Cash Pool. |
| 5.3 | Distributions of the New Shares |
| (a) | All New Shares issued under the Plan shall be deemed to have been issued as fully paid and non-assessable shares of New Just Energy Parent, free and clear of any Encumbrances, except as provided in New Just Energy Parent’s New Corporate Governance Documents and arising under applicable securities laws. |
| (b) | Delivery by New Just Energy Parent of the New Shares issued and distributed under the Plan will be made by book-entry positions in the equity records of New Just Energy Parent in the name of the applicable recipient (or such other Person as such recipient directs in writing) (subject to subsequent determination in the discretion of New Just Energy Parent as to the form in which the New Shares will be issued as may be required to implement any provision of the Plan). |
| (c) | On the Effective Date, New Just Energy Parent shall issue New Shares in accordance with the steps and sequences set forth in the Restructuring Steps Supplement (or reserve New Shares for issuance, as applicable, in accordance with Section 5.3(e)). |
| (d) | Notwithstanding anything to the contrary in the Plan, no Person (including, for the avoidance of doubt and if applicable, the Depository Trust Company (“DTC”)) may require a legal opinion regarding the validity of any transaction contemplated by the Plan, including for the avoidance of doubt, whether the securities to be issued under the Plan are exempt from registration and/or eligible for DTC book entry delivery, settlement and depository services. Any such Person, (including, for the avoidance of doubt and if applicable, DTC), shall be required to accept and conclusively rely upon the Plan and court order related thereto in lieu of any such legal opinion regarding whether the securities to be issued under the Plan are exempt from registration and/or eligible for DTC book entry delivery, settlement, and depository services. |
| (e) | Notwithstanding Section 5.3(c), no Person shall be entitled to the rights associated with the New Shares and all such New Shares shall be reserved for issuance on the books and records of New Just Energy Parent (but, for the avoidance of doubt, not actually issued) until such time as it has delivered a duly executed and completed New Shareholder Information Form to New Just Energy Parent. In the event that such Person fails to deliver a duly executed and completed New Shareholder Information Form in accordance with this Section 5.3(e) on or before the date that is six (6) months following the Effective Date, New Just Energy Parent shall have no further obligation to issue or deliver, and shall have no further obligation to reserve on its books and records, any New Shares otherwise issuable to such Person (such shares, the “Unissued New Shares”) that have not delivered a duly executed and completed New Shareholder Information Form in accordance with this Section 5.3(e) and all such Persons shall cease to have a claim to, or interest of any kind or nature against or in, New Just Energy Parent or the Unissued New Shares. |
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| (f) | The stated capital accounts for the Common Shares and the New Shares and any adjustments thereto resulting from the transactions contemplated by the Plan shall be as determined by the applicable New Board, in accordance with the Restructuring Steps Supplement and Applicable Law, as applicable. |
| (g) | The Just Energy Entities intend that the issuance and distribution, pursuant to the Plan, of all the New Shares, shall qualify for exemption from the prospectus and registration requirements of Canadian Securities Laws on the basis of the exemption provided in section 2.11 of NI 45-106. The Just Energy Entities also intend that the issuance and distribution, pursuant to the Plan, of all the New Shares, other than as set forth in the next sentence, shall be exempt from the registration requirements of the U.S. Securities Act in reliance upon Section 1145 to the maximum extent permitted under Applicable Law. Notwithstanding anything to the contrary herein, the New Equity Offering Shares to be offered and sold in the New Equity Offering and any New Shares to be offered and sold to the Backstop Parties pursuant to their Backstop Party’s Commitments and for which the exemption to registration pursuant to Section 1145 is unavailable are being offered and sold exclusively to the Participating Term Loan Claimants and, if applicable, the Backstop Parties, in reliance on the exemption from registration under the U.S. Securities Act set forth in section 4(a)(2) thereof (such New Equity Offering Shares and New Shares, the “4(a)(2) Securities”). |
| (h) | Pursuant to Section 1145, the offering, issuance, and distribution of the 1145 Securities shall be exempt from, among other things, the registration and prospectus delivery requirements of section 5 of the U.S. Securities Act and any other applicable U.S. federal, state, local or other law requiring registration prior to the offering, issuance, distribution, or sale of the 1145 Securities. Each of the 1145 Securities, (a) will not be “restricted securities” as defined in rule 144(a)(3) under the U.S. Securities Act; and (b) will be freely tradable and transferable in the United States by each recipient thereof that (i) is an entity that is not an “underwriter” as defined in section 1145(b)(1) of the U.S. Bankruptcy Rules, (ii) is not an “affiliate” of New Just Energy Parent as defined in Rule 144(a)(1) under the U.S. Securities Act, (iii) has not been such an “affiliate” within ninety (90) days of the time of the transfer, and (iv) has not acquired such securities from such an “affiliate” within one year of the time of transfer. Notwithstanding the foregoing, the 1145 Securities remain subject to compliance with applicable securities laws and any rules and regulations of the U.S. Securities and Exchange Commission, if any, applicable at the time of any future transfer of such 1145 Securities and subject to any restrictions in the New Corporate Governance Documents. |
| (i) | The 4(a)(2) Securities will be issued without registration under the U.S. Securities Act in reliance upon the exemption set forth in section 4(a)(2) of the U.S. Securities Act, Regulation D and/or Regulation S (and similar registration exemptions applicable outside of the United States). Any New Shares issued in reliance on section 4(a)(2) of the U.S. Securities Act, including in compliance with Rule 506 of Regulation D, and/or Regulation S will be “restricted securities” subject to resale restrictions and may be resold, exchanged, assigned or otherwise transferred only pursuant to registration, or an applicable exemption from registration under the U.S. Securities Act and other Applicable Law, including state securities laws and subject to any restrictions in the New Corporate Governance Documents. |
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| 5.4 | Distributions, Payments and Settlements of Unaffected Claims |
| (a) | Claims Secured by the CCAA Charges |
| (i) | Administration Charge |
In accordance with the steps and sequences set forth in the Restructuring Steps Supplement, on the Effective Date, all outstanding obligations, liabilities, fees, and disbursements secured by the Administration Charge which are evidenced by invoices of the beneficiaries thereof delivered to JEGI as at the Effective Date, shall be fully paid by the Just Energy Entities.
The Monitor Administration Expenses shall continue to be secured by the Administrative Expense Reserve, and the Administration Charge shall be and be deemed to be fully and finally satisfied and discharged from and against any and all assets of the Just Energy Entities and the Plan Implementation Fund.
| (ii) | FA Charge |
In accordance with the steps and sequences set forth in the Restructuring Steps Supplement, on the Effective Date, all outstanding obligations, liabilities, fees, and disbursements secured by the FA Charge, which are evidenced by invoices of the Financial Advisor delivered to JEGI as at the Effective Date, shall be fully paid by the Just Energy Entities. Effective upon the Effective Date, the FA Charge shall be and be deemed to be fully and finally satisfied and discharged from and against any and all assets of the Just Energy Entities and the Plan Implementation Fund.
| (iii) | Directors’ Charge |
On the Effective Date, all Released D&O Claims shall be fully, finally, and irrevocably compromised, released, discharged, cancelled, extinguished, and barred in accordance with Article 8 and the Directors’ Charge shall be and be deemed to be fully and finally satisfied and discharged from and against any and all assets of the Just Energy Entities and the Plan Implementation Fund.
| (iv) | KERP Charge |
On the Effective Date, all amounts owing under the KERP and secured by the KERP Charge as at the Effective Date shall be fully paid by the Just Energy Entities to the beneficiaries thereof. Effective upon the Effective Date, the KERP Charge shall be and be deemed to be fully and finally satisfied and discharged from and against any and all assets of the Just Energy Entities and the Plan Implementation Fund.
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| (v) | DIP Lenders’ Charge |
In accordance with the steps and sequences set forth in the Restructuring Steps Supplement, on the Effective Date, the Just Energy Entities shall pay to the DIP Agent an amount equal to the DIP Lenders’ Claim in full in cash in the currency that such DIP Lenders’ Claim was originally denominated in full and final satisfaction of the DIP Lenders’ Claim. Upon the Effective Date, the DIP Lenders’ Charge shall be and be deemed to be fully and finally satisfied and discharged from and against any and all assets of the Just Energy Entities and the Plan Implementation Fund.
| (vi) | Priority Commodity/ISO Charge |
In accordance with the steps and sequences set forth in the Restructuring Steps Supplement, on the Effective Date, the Priority Commodity/ISO Charge shall be and be deemed to be fully and finally satisfied and discharged from and against any and all assets of the Just Energy Entities and the Plan Implementation Fund.
| (vii) | Cash Management Charge |
In accordance with the steps and sequences set forth in the Restructuring Steps Supplement, on the Effective Date, the Cash Management Charge shall be and be deemed to be fully and finally satisfied and discharged from and against any and all assets of the Just Energy Entities and the Plan Implementation Fund.
| (viii) | Termination Fee Charge |
In accordance with the steps and sequences set forth in the Restructuring Steps Supplement, on the Effective Date, the Termination Fee Charge shall be and be deemed to be fully and finally satisfied and discharged from and against any and all assets of the Just Energy Entities and the Plan Implementation Fund.
| (b) | Commodity Supplier Claims |
In accordance with the steps and sequences set forth in the Restructuring Steps Supplement, on the Effective Date, the Just Energy Entities shall pay to each Commodity Supplier an amount equal to such Commodity Supplier’s Commodity Supplier Claim in full in cash in the currency that such Commodity Supplier Claim was originally denominated in full and final satisfaction of such Commodity Supplier Claim.
| (c) | Government Priority Claims |
On or as soon as reasonably practicable following the Effective Date, the applicable Just Energy Entities shall pay or cause to be paid in full all Government Priority Claims, if any, outstanding as at the Filing Date or related to the period ending on the Filing Date, to the applicable Governmental Entity.
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| (d) | Employee Priority Claims |
On the Effective Date, applicable Just Energy Entities shall pay or cause to be paid in full all Employee Priority Claims due and accrued to the Effective Date, to each holder of an Employee Priority Claim to the full amount of his, her, or their respective Employee Priority Claim.
| (e) | Post-Filing Claims and Energy Regulator Claims in the Ordinary Course |
All Post-Filing Claims and all Energy Regulator Claims outstanding as of the Effective Date, if any, shall be paid by the applicable Just Energy Entity in the ordinary course consistent with past practice, and, for greater certainty, any cash collateral of any of the Just Energy Entities held by any such Person to the Just Energy Entities shall be unaffected by the Plan and shall continue to be held in accordance with existing terms.
| (f) | Intercompany Claims |
On or prior to the Effective Date, Intercompany Claims shall be paid in cash or property, set-off, cancelled, maintained, re-instated, contributed or distributed, or otherwise addressed, in each case, as set forth on the books and records of, and/or in documents executed by, the applicable Just Energy Entity (provided that any such documents executed after the date of the Support Agreement shall be in form and substance satisfactory to the Plan Sponsor, acting reasonably) and in accordance with the terms and in the steps and sequences set forth in the Restructuring Steps Supplement, all of which, in the manner agreed by the Just Energy Entities and the Plan Sponsor, each acting reasonably.
| 5.5 | Distributions in respect of Transferred Claims |
The Just Energy Entities and the Monitor shall not be obligated to deliver any distributions under the Plan to any transferee of the whole of an Affected Claim unless a Proof of Assignment has been delivered to the Monitor no later than the Initial Distribution Record Date or, in the case of a Beneficial Term Loan Claim Holder, the Term Loan Record Date.
| 5.6 | Treatment of Undeliverable Distributions |
If any Creditor entitled to a distribution pursuant to the Plan cannot be located by the Monitor on the applicable Distribution Date, or if any Creditor’s distribution under the Plan is returned as undeliverable (an “Undeliverable Distribution”), no further distributions to such Creditor shall be made unless and until the Monitor is notified by such Creditor of such Creditor’s current address, at which time all such distributions shall be made to such Creditor. If such Creditor cannot be located by the Monitor or if any delivery or distribution to be made pursuant to the Plan is returned as undeliverable, or in the case of any distribution made by cheque, the cheque remains uncashed, for a period of more than six (6) months after the applicable Distribution Date or the date of delivery or mailing of the cheque, whichever is later, the Claim of any Creditor with respect to such undelivered or unclaimed distribution shall be discharged and forever barred, notwithstanding any Applicable Law to the contrary, and any such cash allocable to the undeliverable or unclaimed distribution shall be released and returned by the Monitor to New Just Energy Parent or its designee, free and clear of any claims of such Creditor or any other Creditors and their respective successors and assigns. Nothing contained in the Plan shall require the Just Energy Entities, New Just Energy Parent or the Monitor to attempt to locate any holder of any Undeliverable Distributions.
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| 5.7 | Currency |
Unless specifically provided for in the Plan or the Sanction Order, any payment or distribution provided for in the Plan in respect of any Affected Claim shall be made in the currency denominated in the Proof of Claim or Negative Notice Claims Package, as applicable, relating to such Affected Claim, and if no currency has been denominated in such Proof of Claim or Negative Notice Claims Package, then such Affected Claim shall be deemed to be denominated in Canadian dollars.
| 5.8 | Allocation of Payments and Distributions |
All payments and distributions made pursuant to the Plan shall be allocated first towards the repayment of the principal amount in respect of the applicable Claim and second, if any, towards the repayment of all accrued but unpaid interest in respect of the applicable Claim.
| 5.9 | Interest |
Interest shall not accrue or be paid on any Affected Claim of any of the General Unsecured Creditors or Beneficial Term Loan Claim Holders on or after the Filing Date, and no holder of any such Claim shall be entitled to interest accruing on or after the Filing Date.
| 5.10 | Tax Matters |
All distributions hereunder shall be subject to any withholding and reporting requirements imposed by any Applicable Law or any Taxing Authority and the Just Energy Entities or the applicable agent shall, and shall direct the Monitor, on behalf of the Just Energy Entities or the applicable agent, to, deduct, withhold and remit from any distributions hereunder payable to a Creditor or to any Person on behalf of any Creditor, such amounts, if any, as the Just Energy Entities or the applicable agent determines that it or the Monitor, on behalf of the Just Energy Entities or the applicable agent, is required to deduct and withhold with respect to such payment under the ITA or under Applicable Law. To the extent that amounts are so deducted and withheld, such withheld amounts shall be treated for all purposes as having been paid to the Person in respect of which such deduction and withholding was made, provided that such withheld amounts are actually remitted to the appropriate Taxing Authority.
| 5.11 | Priority Claims |
Any terms or conditions of any Affected Claim of any of the General Unsecured Creditors or Beneficial Term Loan Claim Holders which purport to deal with the ordering of or grant of priority of payments of principal, interest, penalties, or other amounts shall be deemed to be void and ineffective.
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| 5.12 | Fractional Interests |
No fractional interests of New Shares (“Fractional Interests”) will be issued or allocated under the Plan. Any legal, equitable, contractual and any other rights or claims (whether actual or contingent, and whether or not previously asserted) of any Person with respect to any Fractional Interests shall be rounded down to the nearest whole number without compensation therefor.
| 5.13 | Calculations |
All amounts of consideration to be received hereunder will be calculated to the nearest cent ($0.01). All calculations and determinations made by the Monitor and/or the Just Energy Entities and agreed to by the Monitor for the purposes of and in accordance with the Plan, including, without limitation, the allocation of consideration, shall be conclusive, final and binding.
| 5.14 | Cancellation |
On the Effective Date, in accordance with the terms and in the steps and sequences set forth in the Restructuring Steps Supplement, and except as otherwise expressly provided for herein, all debentures, indentures, notes, certificates, agreements, invoices, guarantees, pledges and other instruments evidencing Affected Claims (excluding the Credit Facility Claims) and Existing Equity shall (a) not entitle any holder thereof to any compensation or participation other than as expressly provided for in the Plan; and (b) be cancelled and will be null and void (other than, for certainty, the Common Shares transferred and the Common Shares issued to New Just Energy Parent on the Effective Date in accordance with the steps and sequences set forth in the Restructuring Steps Supplement, the Intercompany Interests and the New Shares).
| 5.15 | Modifications to Distribution Mechanics |
The Just Energy Entities and the Monitor, as applicable, in each case with the consent of the Plan Sponsor, acting reasonably, and in the case of payment or distributions on account of the Credit Facility Claims, with the consent of the Credit Facility Agent, acting reasonably, shall be entitled to make such additions and modifications to the process for making distributions pursuant to the Plan as may be deemed necessary or desirable in order to achieve the proper distribution and allocation of consideration to be distributed pursuant to the Plan, and any such additions or modifications shall not require an amendment to the Plan or any further Order of the Court in the CCAA Proceeding or the U.S. Court in the Chapter 15 Proceeding.
Article
6
RESTRUCTURING TRANSACTION
| 6.1 | Corporate Actions |
The adoption, execution, delivery, implementation and consummation of all matters contemplated under the Plan involving any corporate actions of the Just Energy Entities will occur and be effective as of the Effective Date, and shall be deemed to be authorized and approved under the Plan and by the Court, where applicable, as part of the Sanction Order, in all respects and for all purposes without any requirement of further action by shareholders, partners, Directors or Officers of the Just Energy Entities. All necessary approvals to take actions shall be deemed to have been obtained from the Directors, Officers, shareholders or partners of the Just Energy Entities, as applicable, including the deemed passing by any class of shareholders of any resolution or special resolution and any shareholders’ agreement or agreement between a shareholder and another Person limiting in any way the right to vote shares held by such shareholder or shareholders with respect to any of the steps contemplated by the Plan shall be deemed to have no force or effect.
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| 6.2 | Effective Date Transactions |
The steps and compromises and releases to be effected in the implementation of the Plan shall occur, and be deemed to have occurred in the order and manner to be set out in a supplement to the Plan in accordance with Section 11.7 (the “Restructuring Steps Supplement”), without any further act or formality. The Restructuring Steps Supplement shall be in form and substance acceptable to the Just Energy Entities, the Credit Facility Lenders and the Plan Sponsor, each acting reasonably, provided that in no event will the Restructuring Steps Supplement be materially prejudicial to the interests of any Creditors under the other sections of this Plan.
| 6.3 | Issuances Free and Clear |
Any issuance of any securities or other consideration pursuant to the Plan will be free and clear of any Encumbrances, except as otherwise provided herein.
Article
7
REGULATORY MATTERS
| 7.1 | Competition Act and Investment Canada Act Approval |
New Just Energy Parent and the Plan Sponsor, each acting reasonably, shall work together in good faith to determine, on a date that is not later than ten (10) Business Days following the date of the Backstop Commitment Letter (the “Determination Date”), whether it is necessary or advisable that a filing be made to obtain Competition Act Approval and/or Investment Canada Act Approval in connection with the transactions contemplated by the Plan. In the event that New Just Energy Parent and the Plan Sponsor jointly determine that Competition Act Approval and/or Investment Canada Act Approval is required or should be obtained, as applicable:
| (a) | New Just Energy Parent and the Plan Sponsor shall, as soon as reasonably practicable, and in no event more than ten (10) Business Days after the Determination Date, submit a request to the Commissioner for an Advance Ruling Certificate or, in the alternative, a No Action Letter in respect of the transactions contemplated by the Plan; |
| (b) | New Just Energy Parent and the Plan Sponsor shall submit, at their joint election and within ten (10) Business Days of such mutually agreed election, notification filings in accordance with Part IX of the Competition Act in respect of the transactions contemplated by the Plan; and |
| (c) | the Plan Sponsor shall, as soon as reasonably practicable and in no event more than ten (10) Business Days after the Determination Date, submit the notification for the Investment Canada Act Approval. |
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| 7.2 | Antitrust Approvals |
On a date that is on or prior to the Determination Date, New Just Energy Parent and the Plan Sponsor, each acting reasonably, shall also work together in good faith to determine whether any Antitrust Approvals are required or advisable and if so, shall proceed to make any such filings on an expeditious basis. New Just Energy Parent shall be responsible for the payment of any filing fees required to be paid in connection with any filing made in respect of the Competition Act Approval and the Antitrust Approvals, as applicable.
| 7.3 | Regulatory Approvals |
New Just Energy Parent and the Plan Sponsor shall, from and after the date hereof, work together to determine whether any Regulatory Approvals would be required to be obtained in order to permit JEGI, New Just Energy Parent and Plan Sponsor to perform their obligations hereunder and the issuing, acquisition and holding of the New Common Shares. In the event any such determination is made, New Just Energy Parent and the Plan Sponsor shall use commercially reasonable efforts to apply for and obtain any such Regulatory Approvals in accordance with Section 7.4 as soon as reasonably practicable, except for such Regulatory Approvals that need not be obtained or in full force and effect prior to the implementation of the Plan, which shall be applied for as soon as reasonably practicable after the implementation of the Plan, in each case at the sole cost and expense of New Just Energy Parent.
| 7.4 | Transaction Regulatory Approvals |
New Just Energy Parent and the Plan Sponsor shall use commercially reasonable efforts to apply for and obtain the Transaction Regulatory Approvals and shall co-operate with one another in connection with obtaining such approvals. Without limiting the generality of the foregoing, New Just Energy Parent and the Plan Sponsor shall: (a) give each other reasonable advance notice of all meetings or other oral communications with any Governmental Entity relating to the Transaction Regulatory Approvals, as applicable, and provide as soon as practicable but in any case, if any, within the required time, any additional submissions, information and/or documents requested by any Governmental Entity necessary, proper or advisable to obtain the Transaction Regulatory Approvals; (b) not participate independently in any such meeting or other oral communication regarding the Transaction Regulatory Approvals without first giving the other party (or the other party’s outside counsel) an opportunity to attend and participate in such meeting or other oral communication, unless otherwise required or requested by such Governmental Entity; (c) if any Governmental Entity initiates an oral communication regarding the Transaction Regulatory Approvals as applicable, promptly notify the other party of the substance of such communication; (d) subject to Applicable Laws relating to the exchange of information, provide each other with a reasonable advance opportunity to review and comment upon and consider in good faith the views of the other in connection with all written communications (including any filings, notifications, submissions, analyses, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Just Energy Entity or Plan Sponsor) with a Governmental Entity regarding the Transaction Regulatory Approvals as applicable; and (e) promptly provide each other with copies of all written communications to or from any Governmental Entity relating to the Transaction Regulatory Approvals as applicable.
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| 7.5 | Competitively Sensitive Information |
Each of New Just Energy Parent and the Plan Sponsor may, as advisable and necessary (acting reasonably), designate any competitively sensitive material provided to the other under this Article 7 as “Outside Counsel Only Material”; provided that, the disclosing party also provides a redacted version to the receiving party. Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and, subject to any additional agreements between New Just Energy Parent and Plan Sponsor, will not be disclosed by such outside legal counsel to employees, officers or directors of the recipient unless express written permission is obtained in advance from the source of the materials or its legal counsel.
| 7.6 | No Divestitures or Material Operating Restrictions |
The obligation of New Just Energy Parent and the Plan Sponsor to use its commercially reasonable efforts to obtain the Transaction Regulatory Approvals does not require New Just Energy Parent or the Plan Sponsor (or any Affiliate thereof) to undertake any divestiture of any business or business segment of New Just Energy Parent or the Plan Sponsor (or any Affiliate thereof), to agree to any material operating restrictions related thereto or to incur any material expenditure(s) related therewith, unless agreed to by the Plan Sponsor and New Just Energy Parent. In connection with obtaining the Transaction Regulatory Approvals, no Just Energy Entity shall agree to any of the foregoing items without the prior written consent of the Plan Sponsor.
Article
8
RELEASES
| 8.1 | Third-Party Releases |
On the Effective Date, in accordance with the steps and sequences set forth in the Restructuring Steps Supplement, (a) the Just Energy Entities and their respective current and former employees, contractors, advisors, legal counsel and agents; (b) the Directors and Officers; (c) the Monitor, the Supporting Parties, the Backstop Parties, the DIP Agent, the DIP Lenders, the Plan Sponsor, the Credit Facility Agent, the Term Loan Agent and the Subordinated Note Trustee, and each of their respective present and former affiliates, subsidiaries, directors, officers, members, partners, employees, auditors, advisors, legal counsel and agents (collectively, (a), (b) and (c), in their capacities as such, the “Released Parties” and individually a “Released Party”) shall be released by the Releasing Parties and discharged from any and all demands, claims, actions, Causes of Action, counterclaims, suits, debts, sums of money, accounts, covenants, damages, judgments, orders, including for injunctive relief or specific performance and compliance orders, expenses, executions, Encumbrances and other recoveries on account of any liability, obligation, demand or cause of action of whatever nature, including claims for contribution or indemnity, which any Creditor or other Person may be entitled to assert, whether known or unknown, matured or unmatured, direct, indirect or derivative, foreseen or unforeseen, existing or hereafter arising, based in whole or in part on any act, omission, transaction, duty, responsibility, indebtedness, liability, obligation, dealing or other occurrence existing or taking place on or prior to the Effective Date, or that relates to matters relating to implementation of the Plan, including distributions pursuant to the Plan following the Effective Date, that constitute or are in any way relating to, arising out of or in connection with (i) any Claims (including Equity Claims), any D&O Claims or any D&O Indemnity Claims with respect thereto, (ii) any payments, distributions or share issuances under the Plan, (iii) the business and affairs of the Just Energy Entities whenever or however conducted, (iv) the business and assets of the Just Energy Entities, (v) the administration and/or management of the Just Energy Entities, (vi) the Affected Claims, the Support Agreement, the Backstop Commitment Letter, the Definitive Documents, the Plan, the Existing Equity, the CCAA Proceeding or the Chapter 15 Proceeding, or any document, instrument, matter or transaction involving the Just Energy Entities arising in connection with or pursuant to any of the foregoing, (vii) any contract that has been restructured, terminated, repudiated, disclaimed, or resiliated in accordance with the CCAA, (viii) the liabilities of the Directors and Officers and any alleged fiduciary or other duty, including any and all Claims that may be made against the Directors or Officers where by law such Directors or Officers may be liable in their capacity as Directors or Officers, or (ix) any Claim that has been barred or extinguished by the Claims Procedure Order (subject to the excluded matters in the proviso below, referred to collectively as the “Released Claims” and individually a “Released Claim”), and all Released Claims shall be deemed to be fully, finally, irrevocably and forever waived, discharged, released, cancelled and barred as against the Released Parties, all to the fullest extent permitted by Applicable Law; provided that, nothing therein will waive, discharge, release, cancel or bar (w) any obligations of any of the Released Parties under or in connection with the Plan, the Support Agreement, the Backstop Commitment Letter, the Definitive Documents, the New Credit Facility Documents, the New Intercreditor Agreement, the New Shares, the MIP or the New Corporate Governance Documents, (x) the Just Energy Entities from or in respect of any Unaffected Claim that has not been paid in full under the Plan, (y) subject to Section 8.4, any claim that is not permitted to be released pursuant to section 19(2) of the CCAA, or (z) any Director from any claim that is not permitted to be released pursuant to section 5.1(2) of the CCAA.
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| 8.2 | Debtor Releases |
On the Effective Date, in accordance with the steps and sequences set forth in the Restructuring Steps Supplement, the Released Parties shall be released by each of the Just Energy Entities and their respective current and former affiliates, and discharged from, any and all Released Claims held by the Just Energy Entities as of the Effective Date, and all Released Claims shall be deemed to be fully, finally, irrevocably, and forever waived, discharged, released, cancelled, and barred as against the Released Parties, all to the fullest extent permitted by Applicable Law; provided that, nothing therein will waive, discharge, release, cancel or bar (a) any obligations of any of the Released Parties under or in connection with the Plan, the Support Agreement, the Backstop Commitment Letter, the Definitive Documents, the New Credit Facility Documents, the New Intercreditor Agreement, the New Shares, the MIP or the New Corporate Governance Documents; (b) the Just Energy Entities from or in respect of any Unaffected Claim that has not been paid in full under the Plan; (c) subject to Section 8.7, any claim that is not permitted to be released pursuant to section 19(2) of the CCAA; or (d) any Director from any claim that is not permitted to be released pursuant to section 5.1(2) of the CCAA.
Notwithstanding anything to the contrary in the Plan and the Definitive Documents (and any exhibits thereto), or in the Sanction Order or the Sanction Recognition Order, the releases set forth in this Section 8.2 shall not include, nor limit or modify in any way, any Claim (or any defenses) which any of the Just Energy Entities may hold or be entitled to assert against any Released Party as of the Effective Date relating to any contracts, leases, agreements, licenses, bank accounts or banking relationships, accounts receivable, invoices, or other ordinary course obligations which are remaining in effect following the Effective Date.
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| 8.3 | Limitation on Insured Claims |
Notwithstanding anything to the contrary in this Article 8, Insured Claims shall not be compromised, released, discharged, cancelled or barred by the Plan; provided that, from and after the Effective Date, any Person having an Insured Claim shall be irrevocably limited to recovery in respect of such Insured Claim solely from the proceeds of the applicable Insurance Policies, and Persons with an Insured Claim shall have no right to, and shall not, directly or indirectly, make any claim or seek any recoveries in respect thereof from the Just Energy Entities, any Director or Officer or any other Released Party, other than enforcing such Person’s rights to be paid by the applicable insurer(s) from the proceeds of the applicable Insurance Policies.
| 8.4 | Injunctions |
All Persons are permanently and forever barred, estopped, stayed and enjoined, on and after the Effective Time, with respect to any and all claim or Cause of Action released under this Plan (including, but not limited to the Released Claims), from (a) commencing, conducting or continuing in any manner, directly or indirectly, any action, suits, demands or other proceedings of any nature or kind whatsoever (including, without limitation, any proceeding in a judicial, arbitral, administrative or other forum) against any of the Released Parties or Exculpated Parties; (b) enforcing, levying, attaching, collecting or otherwise recovering or enforcing by any manner or means, directly or indirectly, any judgment, award, decree or order against any of the Released Parties, Exculpated Parties, or their respective property; (c) commencing, conducting, continuing or making in any manner, directly or indirectly, any action, suit, claim, demand or other proceeding of any nature or kind whatsoever (including any proceeding in a judicial, arbitral, administrative or other forum) against any Person who makes a claim or might reasonably be expected to make a claim, in any manner or forum, including by way of contribution or indemnity or other relief, against one or more of the Released Parties or the Exculpated Parties; (d) creating, perfecting, asserting or otherwise enforcing, directly or indirectly, any Encumbrance of any kind against the Released Parties, Exculpated Parties, or their respective property; or (e) taking any actions to interfere with the implementation or consummation of the Plan; and any such proceedings will be deemed to have no further effect against the Just Energy Entities or any of their assets and will be released, discharged or vacated without cost to the Just Energy Entities.
| 8.5 | Exculpation |
Effective as of the Effective Date, to the fullest extent permissible under Applicable Law and without affecting or limiting Section 8.1, and except as otherwise specifically provided in the Plan, no Exculpated Party shall have or incur, and each Exculpated Party is released and exculpated from any Cause of Action against such Exculpated Party for any act or omission in connection with, relating to, or arising out of the CCAA Proceeding, the Chapter 15 Proceeding, the formulation, preparation, dissemination, negotiation, filing, or consummation of the Support Agreement, the Backstop Commitment Letter, the Plan, any Definitive Documents, or the recognition thereof in the United States, or any restructuring transaction, contract, instrument, release, or other agreement or document created or entered into in connection with the Plan, the filing of the CCAA Proceeding or the Chapter 15 Proceeding, the pursuit of approval and/or of consummation of the Plan, the administration and implementation of the Plan, including the issuance of securities pursuant to the Plan, or the distribution of property under the Plan or any other related agreement (including, for the avoidance of doubt, providing any legal opinion requested by any Person or entity regarding any transaction, contract, instrument, document, or other agreement contemplated by the Plan or the reliance by any Exculpated Party on any Orders of the Court or the U.S. Court or in lieu of such legal opinion), except for Causes of Action related to any act or omission that is determined in a Final Order of a court of competent jurisdiction to have constituted actual fraud, willful misconduct, or gross negligence, but in all respects such Exculpated Parties shall be entitled to reasonably rely upon the advice of counsel with respect to their duties and responsibilities pursuant to the Plan.
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The Exculpated Parties have, and upon entry of an order approving the Plan, shall be deemed to have, participated in good faith and in compliance with the Applicable Laws with regard to the solicitation of votes and distribution of consideration pursuant to the Plan and, therefore, are not, and on account of such distributions shall not be, liable at any time for the violation of any Applicable Law, rule, or regulation governing the solicitation of acceptances or rejections of the Plan or such distributions made pursuant to the Plan or for any actions taken in the Chapter 15 Proceeding seeking and obtaining recognition thereof.
| 8.6 | Consenting Parties |
In addition to and without limiting in any way the terms of this Article 8, on the Effective Date, each Consenting Party shall be deemed to have consented and agreed to this Article 8, including the releases, injunctions and exculpation referred to herein.
| 8.7 | Compromise of Claims under Section 19(2) of the CCAA |
On the Effective Date, the following Claims shall be compromised under the Plan, including pursuant to the terms of this Article 8, and shall be deemed to be a Released Claim pursuant to this Article 8:
| (a) | any fine, penalty, restitution order, or other order similar in nature to a fine, penalty, or restitution order, imposed by a court in respect of an offence; |
| (b) | any award of damages by a court in civil proceedings in respect of (i) bodily harm intentionally inflicted, or sexual assault, or (ii) wrongful death resulting from an act referred to in subparagraph (i); |
| (c) | any debt or liability arising out of fraud, embezzlement, misappropriation, or defalcation while acting in a fiduciary capacity or, in Quebec, as a trustee or an administrator of the property of others; |
| (d) | any debt or liability resulting from obtaining property or services by false pretences or fraudulent misrepresentation, other than a debt or liability of the Just Energy Entities that arises from an Equity Claim; or |
| (e) | any debt for interest owed in relation to an amount referred to in any of paragraphs (a) to (d), |
provided that, this Section 8.7 shall only apply to a Person who voted (in person or by proxy) in favour of the Plan.
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Article 9
COURT SANCTION
| 9.1 | Application for Sanction Order |
If the Required Majorities approve the Plan, the Applicants shall apply for the Sanction Order in accordance with the terms of the Support Agreement.
| 9.2 | Sanction Order |
The Just Energy Entities shall seek a Sanction Order that, among other things:
| (a) | declares that (i) the Plan has been approved by the Required Majorities in conformity with the CCAA, (ii) the Just Energy Entities have acted in good faith and been in compliance with the provisions of the CCAA and the Orders of the Court made in this CCAA Proceeding in all respects, (iii) the Court is satisfied that the Just Energy Entities have not done or purported to do anything that is not authorized by the CCAA, and (iv) the Plan and the transactions contemplated by the Plan are fair and reasonable; |
| (b) | declares that as of the Effective Time, the Plan and all associated steps, compromises, transactions, arrangements, releases and reorganizations effected thereby are approved pursuant to section 6 of the CCAA, binding and effective as herein set out upon and with respect to the Just Energy Entities, all Creditors and all other Persons named or referred to in or subject to the Plan; |
| (c) | declares that the steps to be taken and the compromises and releases to be effective on the Effective Date are deemed to occur and be effected in the steps and sequential order set forth in the Restructuring Steps Supplement, beginning at the Effective Time; |
| (d) | declares that the releases effected by the Plan are approved and declared to be binding and effective as of the Effective Date upon the Just Energy Entities, all Creditors, all Persons with Released Claims and all other Persons named or referred to in or subject to the Plan, and shall enure to the benefit of all such Persons; |
| (e) | declares that, subject to performance by the Just Energy Entities of their obligations under the Plan and except as provided in the Plan or the Sanction Order, all obligations, agreements or leases to which any of the Just Energy Entities are a party on the Effective Date, including all Continuing Contracts, shall be and remain in full force and effect, unamended, as at the Effective Date, except as they may have been amended by the parties thereto subsequent to the Filing Date, and no party to any such obligation or agreement shall on or following the Effective Date, accelerate, terminate, refuse to renew, rescind, refuse to perform or otherwise disclaim or resiliate its obligations thereunder, or enforce or exercise (or purport to enforce or exercise) any right (including any right of set-off, option, dilution or other remedy) or remedy under or in respect of any such obligation or agreement, by reason: (i) of any event which occurred prior to, and not continuing after, the Effective Date, or which is or continues to be suspended or waived under the Plan, which would have entitled such party to enforce those rights or remedies, (ii) that the Just Energy Entities have sought or obtained relief or have taken steps as part of the Plan or under the CCAA or Chapter 15, or that the Plan has been implemented by the Just Energy Entities, (iii) of any default or event of default arising as a result of the financial condition or insolvency of the Just Energy Entities, (iv) of any change of control of the Just Energy Entities arising from implementation of the Plan, (v) of the effect upon the Just Energy Entities of the completion of any of the transactions contemplated by the Plan, or (vi) of any compromises, settlements, restructurings, recapitalizations or reorganizations effected pursuant to the Plan; and declares that no Person shall discontinue, fail to honour, alter, interfere with, repudiate, terminate or cease to perform any non-competition agreement or obligation, provided that such agreement shall terminate or expire in accordance with the terms thereof or as otherwise agreed by the Just Energy Entities and the applicable Persons; |
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| (f) | authorizes the establishment of the Plan Implementation Fund with the Monitor and authorizes the Monitor to perform its functions and fulfil its obligations under the Plan and to facilitate the implementation of the Plan on and after the Effective Date, including matters relating to the resolution of Disputed Claims, distributions and payments from the Plan Implementation Fund and the termination of the CCAA Proceeding and the Chapter 15 Proceeding; |
| (g) | subject to the payment of the amounts secured thereby, declares, except for the Administration Charge which shall continue against the Administrative Expense Reserve, all CCAA Charges, shall be terminated, released and discharged effective on the Effective Date; |
| (h) | provides the basis for an exemption from the registration requirements of the U.S. Securities Act in respect of the distribution of the New Shares pursuant to Section 1145 and section 4(a)(2) of the U.S. Securities Act, in each case, as described in Section 5.3(g) to 5.3(i); |
| (i) | declares all Accepted Claims and Disallowed Claims determined in accordance with the Claims Procedure Order are final and binding on the Just Energy Entities and all Creditors and that all Encumbrances of Affected Creditors (other than Encumbrances in respect of Unaffected Claims, the New Credit Facility and the New Intercreditor Agreement), including all security registrations in respect thereof, are discharged and extinguished, and the Just Energy Entities or their counsel shall be authorized and permitted to file discharges and full terminations of all related filings (whether pursuant to personal property security legislation or otherwise) against the Just Energy Entities in any jurisdiction without any further action or consent required whatsoever; |
| (j) | declares any Claims that have been preserved in accordance with the Claims Procedure Order against Directors that cannot be compromised due to the provisions of section 5.1(2) of the CCAA will be limited in recovery to the proceeds of any Insurance Policy; |
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| (k) | declares that, from and after the Effective Date, any Person may only commence an action for a D&O Claim against a Director or Officer if such Person has first obtained (i) the consent of the Monitor, or (ii) the leave of the Court on notice to the applicable Director or Officer, the Just Energy Entities, the Monitor and any applicable insurer(s); |
| (l) | declares the New Credit Facility, the New Credit Facility Documents, the New Intercreditor Agreement, the MIP, and the New Corporate Governance Documents are approved and the applicable Just Energy Entities and New Just Energy Parent shall be authorized and directed to carry out their obligations thereunder; and |
| (m) | declares that each Just Energy Entity shall indemnify any Director, Officer or other Person employed or previously employed by a Just Energy Entity for any amount for which such Person is held personally liable as a result of nonpayment of any Taxes (including, without limitation, sale, use, withholding, unemployment and excise Tax) by a Just Energy Entity, along with any expenses or fees incurred in connection with defending any matter for which any of the foregoing Persons could be entitled to indemnification, notwithstanding any provision of the Plan; provided that: |
| (i) | the terms of indemnification shall be consistent with the indemnification obligations of the Just Energy Entities for Directors and Officers immediately prior to the Filing Date; provided that: (A) Persons employed or previously employed by a Just Energy Entity shall be afforded the benefit of such indemnification obligations notwithstanding that they may not be Directors or Officers; (B) the indemnification obligations shall be indefinite; and (C) all Just Energy Entities shall be subject to the indemnification obligations herein; |
| (ii) | the foregoing indemnification obligations shall not apply in circumstances of fraud, gross negligence or wilful misconduct; and |
| (iii) | notwithstanding subparagraphs (i) and (ii) above, where gross negligence or wilful misconduct are requirements for a beneficiary of these indemnification obligations to be held personally liable as a result of nonpayment of any Taxes by a Just Energy Entity, the Just Energy Entities shall indemnify the applicable Director, Officer or other Person notwithstanding any gross negligence or wilful misconduct, and in such cases there shall be no requirement that the Director, Officer or other Person had reasonable grounds for believing their conduct was lawful. |
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Article
10
CONDITIONS PRECEDENT AND IMPLEMENTATION
| 10.1 | Conditions Precedent to Implementation of the Plan |
The implementation of the Plan shall be conditional upon satisfaction or waiver, where applicable, of the following conditions prior to or at the Effective Date, each of which is for the mutual benefit of the Just Energy Entities, the Credit Facility Lenders and the Plan Sponsor, and subject to the Support Agreement may be waived by the Just Energy Entities, the Credit Facility Lenders and the Plan Sponsor, each acting reasonably (except, in the case of Sections 10.1(a) and (c)(i) below, which may not be waived):
| (a) | the Plan shall have been approved by the Required Majorities in conformity with the CCAA; |
| (b) | the Restructuring Steps Supplement and the treatment of the Intercompany Claims pursuant to the Plan shall have been agreed to by the Just Energy Entities, the Credit Facility Lenders and the Plan Sponsor, each acting reasonably; |
| (c) | (i) the Sanction Order shall have been issued by the Court, (ii) the Sanction Recognition Order shall have been entered by the U.S. Court, and (iii) each of the Sanction Order and the Sanction Recognition Order shall have become a Final Order; |
| (d) | (i) the Authorization Order shall have been issued by the Court, (ii) the Authorization Recognition Order shall have been entered by the U.S. Court, and (iii) each of the Authorization Order and the Authorization Recognition Order shall have become a Final Order; |
| (e) | (i) the Meetings Order shall have been issued by the Court, (ii) the Meetings Recognition Order shall have been entered by the U.S. Court, (iii) the Claims Procedure Recognition Order shall have been entered by the U.S. Court, and (iv) each of the Meetings Order, the Meetings Recognition Order and the Claims Procedure Recognition Order shall have become a Final Order; |
| (f) | the commitments of each of the parties to the Support Agreement (as set out therein) shall have been satisfied in all material respects or waived in accordance with the terms of the Support Agreement; |
| (g) | the conditions to the Backstop Parties’ commitments under the Backstop Commitment Letter (as set out therein) shall have been satisfied or waived in accordance with its terms; |
| (h) | the Just Energy Entities have provided for the payment or satisfaction in full of the DIP Lenders’ Claim, the Commodity Supplier Claims, the Government Priority Claims, the Employee Priority Claims and the amounts secured by the Administration Charge, the FA Charge, the Directors’ Charge and the KERP Charge; |
| (i) | the Monitor shall have received from the Just Energy Entities the funds necessary to establish and shall have established the Plan Implementation Fund; |
| (j) | no proceeding shall have been commenced that could reasonably be expected to result in an injunction or other order to, and no injunction or other order shall have been issued to, enjoin, restrict or prohibit any of the transactions contemplated by the Plan, the Support Agreement or the Backstop Commitment Letter; |
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| (k) | each of the New Credit Facility Documents and the New Intercreditor Agreement, shall be in form and substance consistent with the term sheets for the New Credit Facility and New Intercreditor Agreement appended to the Restructuring Term Sheet and containing such other terms as agreed by the Just Energy Entities, the Plan Sponsor and the parties thereto, each acting reasonably, and shall have become effective in accordance with its terms, subject only to the implementation of the Plan; |
| (l) | JEGI shall satisfy any and all conditions or requirements necessary to cease to be a reporting issuer (or the equivalent) under the U.S. Exchange Act (or any other U.S. securities laws) and JEGI shall cease to be a reporting issuer and no Just Energy Entity shall be deemed to have become a reporting issuer under applicable Canadian Securities Laws and the Common Shares shall have been delisted from the TSX Venture Exchange, in each case, as and from the Effective Time; |
| (m) | the New Boards shall have been appointed in accordance with the terms of the Support Agreement and the New Corporate Governance Documents, and the MIP and the New Corporate Governance Documents shall be in form and substance acceptable to the Just Energy Entities and the Plan Sponsor, each acting reasonably, and shall have become effective, subject only to the implementation of the Plan; |
| (n) | the aggregate amount of the New Equity Offering Proceeds and Cash on Hand shall be equal to or greater than the total amount to be paid, distributed or reserved for or from any source by the Just Energy Entities (or the Monitor on their behalf) in order to implement the Plan in accordance with its terms; |
| (o) | the total amounts to be paid, distributed or reserved in Canadian and US dollars for or from any source by the Just Energy Entities (or the Monitor on their behalf) in order to implement the Plan in accordance with its terms shall not exceed $170,000,000 and US$337,000,000, respectively, plus any accrued and outstanding interest with respect to such amounts; |
| (p) | Shell shall have confirmed, in writing, to the Just Energy Entities and the Plan Sponsor that (i) it will not exercise any termination right under its Continuing Contracts solely as a result of the CCAA Proceeding, the Chapter 15 Proceeding, the Plan or any document, instrument, matter or transaction involving the Just Energy Entities arising in connection with or pursuant to any of the foregoing, and (ii) all existing and any potential future trades will be transacted in accordance with the Continuing Contracts (as may be amended, restated, supplemented and/or replaced by the Just Energy Entities and Shell from time to time following the Effective Date) or new arrangements, in each case, in accordance with the terms thereof and subject to the terms of the New Intercreditor Agreement. The Continuing Contracts with respect to Shell shall not include the Third Amended and Restated Scheduling Coordinator Agreement dated December 1, 2014 between Shell Energy North America (US), L.P., Just Energy New York Corp, JEUS and Just Energy Solutions Inc. (formerly Commerce Energy, Inc.) or any other agreement whereby Shell performs ISO or scheduling services on behalf of any Just Energy Entity whereby a Just Energy Entity has reimbursement obligations to Shell for payments made by Shell on behalf of a Just Energy Entity to an ISO; |
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| (q) | all required Transaction Regulatory Approvals shall have been obtained and shall be in full force and effect, except for such Transaction Regulatory Approvals that need not be obtained or in full force and effect prior to the implementation of the Plan; |
| (r) | all necessary corporate action and proceedings of the Just Energy Entities shall have been taken to approve the Plan and to enable the Just Energy Entities to execute, deliver, and perform their respective obligations under the agreements, documents, and other instruments to be executed and delivered by it pursuant to the Plan; |
| (s) | all agreements, resolutions, documents, and other instruments, which are reasonably necessary to be executed and delivered by the Just Energy Entities, in order to implement the Plan or perform their respective obligations under the Plan or the Sanction Order, shall have been executed and delivered; |
| (t) | the MIP shall have been executed on terms consistent in all respects with the management incentive plan term sheet, attached as Exhibit 4 to the Restructuring Term Sheet; |
| (u) | each of the Employment Agreements shall either (i) not have been disclaimed and remain in place; or (ii) otherwise have been amended as contemplated by the Support Agreement; and |
| (v) | the Effective Date shall have occurred on or prior to the Outside Date. |
| 10.2 | Monitor’s Certificate |
Upon delivery of written notice from each of the Just Energy Entities, the Credit Facility Lenders and the Plan Sponsor of the satisfaction or waiver of the conditions precedent to implementation of the Plan as set out in Section 10.1, the Monitor shall forthwith deliver to the Just Energy Entities, the Credit Facility Lenders and the Plan Sponsor a certificate substantially in the form attached to the Sanction Order stating that the Effective Date has occurred and that the Plan is effective in accordance with its terms and the terms of the Sanction Order (the “Monitor’s Certificate”). As soon as practicable following the Effective Date, the Monitor shall file such certificate with the Court and with the U.S. Court, and shall post a copy of same on the Monitor’s Website.
Article
11
GENERAL
| 11.1 | Binding Effect |
On the Effective Date, or as otherwise provided in the Plan:
| (a) | the Plan will become effective and binding at the Effective Time and the sequence of steps set out in the Restructuring Steps Supplement will be implemented; |
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| (b) | the treatment of Affected Claims under the Plan shall be final and binding for all purposes and shall be binding upon and enure to the benefit of the Just Energy Entities, the Plan Sponsor, all Affected Creditors, any Person having a Released Claim and all other Persons directly or indirectly named or referred to in or subject to the Plan and their respective heirs, executors, administrators and other legal representatives, successors and assigns; |
| (c) | all Affected Claims shall be forever discharged and released, excepting only the distribution thereon in the manner and to the extent provided for in the Plan; |
| (d) | all Released Claims shall be forever discharged, released, enjoined and barred; |
| (e) | each Person named or referred to in or subject to the Plan shall be deemed to have consented and agreed to all of the provisions of the Plan, in its entirety; |
| (f) | each Person named or referred to in, or subject to, the Plan shall be deemed to have executed and delivered to the Just Energy Entities all consents, releases, directions, assignments and waivers, statutory or otherwise, required to implement and carry out the Plan in its entirety; and |
| (g) | each Person named or referred to in, or subject to, the Plan shall be deemed to have received from the Just Energy Entities all statements, notices, declarations and notifications, statutory or otherwise, required to implement and carry out the Plan in its entirety. |
| 11.2 | Waiver of Defaults |
| (a) | From and after the Effective Time, all Persons shall be deemed to have waived any and all defaults of the Just Energy Entities then existing or previously committed by any of the Just Energy Entities, or caused by any of the Just Energy Entities, the commencement of the CCAA Proceeding or the Chapter 15 Proceeding, any matter pertaining to the CCAA Proceeding or Chapter 15 Proceeding, any of the provisions in the Plan or steps or transactions contemplated in the Plan, or any non-compliance with any covenant, warranty, representation, term, provision, condition or obligation, expressed or implied, in any contract, instrument, credit document, indenture, note, lease, guarantee, agreement for sale or other agreement, written or oral, and any and all amendments or supplements thereto, existing between such Person and any of the Just Energy Entities, and any and all notices of default and demands for payment or any step or proceeding taken or commenced in connection therewith shall be deemed to have been rescinded and of no further force or effect; provided that, nothing shall be deemed to excuse the Just Energy Entities from performing their respective obligations under the Plan and the related documents, or be a waiver of defaults by any of the Just Energy Entities under the Plan and the related documents. |
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| (b) | Effective on the Effective Date, any and all agreements that are assigned to New Just Energy Parent shall be and remain in full force and effect, unamended, as at the Effective Date, and no Person shall, following the Effective Date, accelerate, terminate, rescind, refuse to perform or otherwise repudiate its obligations under, or enforce or exercise any right (including any right of set-off, dilution or other remedy) or make any demand against New Just Energy Parent or any Just Energy Entity under or in respect of any such agreement, by reason of: (i) any event that occurred on or prior to the Effective Date that would have entitled any Person thereto to enforce those rights or remedies (including defaults or events of default arising as a result of the insolvency of any of the Just Energy Entities), (ii) the fact that the Just Energy Entities commenced or completed the CCAA Proceeding or the Chapter 15 Proceeding, (iii) the implementation of the Plan, or the completion of any of the steps, transactions or things contemplated by the Plan, or (iv) any compromises, arrangements, transactions, releases, discharges or injunctions effected pursuant to the Plan or any Order. |
| 11.3 | Claims Bar Date |
Nothing in the Plan extends or shall be interpreted as extending or amending the Claims Bar Date or gives or shall be interpreted as giving any rights to any Person in respect of Claims that have been barred or extinguished pursuant to the Claims Procedure Order.
| 11.4 | Preferential Transactions |
Sections 95 to 101 of the BIA and any Applicable Law relating to preferences, settlements, fraudulent conveyances, or transfers at undervalue shall not apply in any respect, including, without limitation, to any dealings prior to the Filing Date, to the Plan, to any payments or distributions made in connection with the restructuring and recapitalization of the Just Energy Entities, whether made before or after the Filing Date, or to any and all transactions contemplated by and to be implemented pursuant to the Plan; provided, however, that the foregoing shall not apply with respect to the subject matter of the Adversary Proceeding.
| 11.5 | Deeming Provisions |
In the Plan, the deeming provisions are not rebuttable and are conclusive and irrevocable.
| 11.6 | Non-Consummation |
Subject to the Support Agreement, the Just Energy Entities reserve the right to revoke or withdraw the Plan at any time prior to the Effective Date. Subject to the Support Agreement, if the Just Energy Entities revoke or withdraw the Plan, or if the Sanction Order is not issued or if the Effective Date does not occur, (a) the Plan shall be null and void in all respects; (b) any settlement or compromise embodied in the Plan or any document or agreement executed pursuant to or in connection with the Plan shall be deemed to be null and void; and (c) nothing contained in the Plan, and no acts taken in preparation for consummation of the Plan, shall (i) constitute or be deemed to constitute a waiver or release of any Claims by or against any of the Just Energy Entities or any other Person, (ii) prejudice in any manner the rights of the Just Energy Entities or any other Person in any further proceedings involving any of the Just Energy Entities, or (iii) constitute an admission of any sort by any of the Just Energy Entities or any other Person.
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| 11.7 | Amendments to the Plan Prior to Approval |
Subject to the terms and conditions of the Support Agreement, the Just Energy Entities reserve the right to vary, modify, amend, or supplement the Plan by way of a supplementary or amended and restated plan or plans of compromise or arrangement or both filed with the Court at any time or from time to time prior to the commencement of the Meetings; provided that, the Just Energy Entities obtain the prior consent of the Plan Sponsor, the Credit Facility Lenders, Shell and the Monitor to any such variation, modification, amendment, or supplement, which consent shall not be unreasonably withheld, conditioned or delayed. Any such supplementary or amended and restated plan or plans of compromise or arrangement or both shall, for all purposes, be deemed to be a part of and incorporated into the Plan. Any such variation, modification, amendment, or supplement shall be posted on the Monitor’s Website and e-mail notice will be provided to the CCAA Proceeding service list. Creditors are advised to check the Monitor’s Website regularly. Creditors who wish to receive written notice of any variation, modification, amendment, or supplement to the Plan should contact the Monitor in the manner set out in Section 11.14 of the Plan. Creditors in attendance at the Meetings will also be advised of any such variation, modification, amendment or supplement to the Plan.
In addition, the Just Energy Entities may propose a variation or modification of, or amendment, or supplement to, the Plan during the Meetings, provided that the Just Energy Entities obtain the prior consent of the Plan Sponsor, the Credit Facility Lenders, Shell and the Monitor to any such variation, modification, amendment, or supplement, which consent shall not be unreasonably withheld, conditioned or delayed, and that notice of such variation, modification, amendment, or supplement is given to all Creditors entitled to vote, present in person or by proxy at the applicable Meeting prior to the vote being taken at such Meeting, in which case any such variation, modification, amendment, or supplement shall, for all purposes, be deemed to be part of and incorporated into the Plan. Any variation, amendment, modification, or supplement at a Meeting will be promptly posted on the Monitor’s Website, served by e-mail to the service list in the CCAA Proceeding and filed with the Court as soon as practicable following the applicable Meeting.
| 11.8 | Amendments to the Plan Following Approval |
After the Meetings (and both prior to and subsequent to obtaining the Sanction Order), the Just Energy Entities may at any time and from time to time vary, amend, modify, or supplement the Plan without the need for obtaining an Order of the Court or providing notice to the Creditors, if the Just Energy Entities, the Plan Sponsor, the Credit Facility Lenders, Shell and the Monitor, each acting reasonably, determine that such variation, amendment, modification, or supplement would not be materially prejudicial to the interests of any Creditors under the Plan or is necessary in order to give effect to the substance of the Plan or the Sanction Order.
| 11.9 | Paramountcy |
From and after the Effective Time on the Effective Date, any conflict between:
| (a) | the Plan or any Final Order of the Court in the CCAA Proceeding or the U.S. Court in the Chapter 15 Proceeding; and |
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| (b) | the covenants, warranties, representations, terms, conditions, provisions or obligations, expressed or implied, of any contract, mortgage, security agreement, indenture, trust indenture, note, loan agreement, commitment letter, agreement for sale, lease or other agreement, written or oral and any and all amendments or supplements thereto existing between any Person and the Just Energy Entities immediately prior to the Effective Date or the notice of articles, articles, bylaws or constating documents of the Just Energy Entities or New Just Energy Parent immediately prior to the Effective Date, |
will be deemed to be governed by the terms, conditions and provisions of the Plan or the applicable Final Order, which shall take precedence and priority; provided that, any settlement agreement executed by the Just Energy Entities and any Person asserting a Claim that was entered into from and after the Filing Date shall be read and interpreted in a manner that assumes such settlement agreement is intended to operate congruously with, and not in conflict with, the Plan.
| 11.10 | Severability of Plan Provisions |
If any term, section or provision of the Plan is held by the Court or the U.S. Court to be invalid, void or unenforceable, the Court or the U.S. Court, as applicable, at the request of the Just Energy Entities and with the consent of the Monitor, the Credit Facility Lenders and the Plan Sponsor, each acting reasonably, shall have the power to either (a) sever such term, section or provision from the balance of the Plan as approved by the Court or the U.S. Court, as applicable, and provide the Just Energy Entities with the option to proceed with the implementation of the balance of the Plan as of and with effect from the Effective Date; or (b) alter and interpret such term, section or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of such term, section or provision held to be invalid, void or unenforceable, and such term, section or provision shall then be applied as altered or interpreted. Notwithstanding any such holding, alteration or interpretation of the Plan, the remainder of the terms, sections and provisions of the Plan shall remain in full force and effect and shall in no way be affected, impaired or invalidated by such holding, alteration or interpretation.
| 11.11 | The Monitor |
| (a) | The Monitor is acting and will continue to act in all respects in its capacity as Monitor in the CCAA Proceeding and not in its personal or corporate capacity. The Monitor will not be responsible or liable whatsoever for any obligations of the Just Energy Entities. The Monitor will have the powers and protections granted to it by the Plan, the CCAA and the Orders made by the Court in the CCAA Proceeding. Both prior to and after the Effective Date, the Just Energy Entities shall provide such assistance as reasonably required by the Monitor in connection with the completion of the Monitor’s duties and obligations under the Plan. |
| (b) | The Monitor shall not incur any liability whatsoever, including in respect of (i) any amount paid, required to be paid or not paid pursuant to the Plan, (ii) any costs or expenses incurred in connection with, in relation to or as a result of any payment made, required to be made or not made, or (iii) any deficiency in the Plan Implementation Fund or any reserves established pursuant to the Plan. Notwithstanding any other provision of the Plan, and without in any way limiting the protections for the Monitor set out in the Orders made by the Court in the CCAA Proceeding or the CCAA, the Monitor shall have no obligation to make any payment contemplated under the Plan, and nothing shall be construed as obligating the Monitor to make any such payment, unless and until the Monitor is in receipt of funds adequate to effect any such payment. |
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| 11.12 | Different Capacities |
Persons who are affected by the Plan may be affected in more than one capacity. Unless expressly provided herein to the contrary, a Person will be entitled to participate hereunder in each such capacity. Any action taken by a Person in one capacity will not affect such Person in any other capacity, unless expressly agreed by the Just Energy Entities and the Plan Sponsor, each acting reasonably, and the Person, in writing, or unless its Claims overlap or are otherwise duplicative.
| 11.13 | Authority and Reliance Upon Consent |
For the purposes of the Plan, where a matter shall have been agreed, waived, consented to or approved by:
| (a) | the Just Energy Entities, or a matter must be satisfactory or acceptable to the Just Energy Entities, any Person shall be entitled to rely on written confirmation from either Company Counsel that the Just Energy Entities has agreed, waived, consented to or approved a particular matter; |
| (b) | the Plan Sponsor, or a matter must be satisfactory or acceptable to the Plan Sponsor, such matter shall be decided by the majority of parties composing the Plan Sponsor, and any Person shall be entitled to rely on written confirmation from either Plan Sponsor Counsel that the Plan Sponsor has agreed, waived, consented to, or approved a particular matter; |
| (c) | the Credit Facility Lenders, or a matter must be satisfactory or acceptable to the Credit Facility Lenders, any person shall be entitled to rely on written confirmation from the Credit Facility Agent or its counsel that the Credit Facility Lenders have agreed, waived, consented to or approved a particular matter; |
| (d) | Shell, or a matter must be satisfactory or acceptable to Shell, any person shall be entitled to rely on written confirmation from Shell or its counsel that Shell has agreed, waived, consented to or approved a particular matter; |
| (e) | the Supporting Parties, or a matter must be satisfactory or acceptable to the Supporting Parties, such matter shall be decided in accordance with the terms of the Support Agreement; and |
| (f) | the Backstop Parties, or a matter must be satisfactory or acceptable to the Backstop Parties, such matter shall be decided in accordance with the terms of the Backstop Commitment Letter, |
provided that any provision that requires an agreement, waiver, consent or approval from a party in respect of a matter will not limit any agreement, waiver, consent or approval required from a Supporting Party pursuant to the Support Agreement in respect of the same subject matter.
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| 11.14 | Notices |
Any notice or other communication to be delivered hereunder must be in writing and reference the Plan and may, subject to as hereinafter provided, be made or given by personal delivery, ordinary mail or by email addressed to the respective parties as follows:
| (a) | if to the any of the Just Energy Entities: |
Just Energy Group Inc.
100 King Street West, Suite 2630
Toronto, ON M5X 1E1
| Attention: | Jonah Davids, General Counsel |
| E-mail: | [Redacted] |
With a copy to (which shall not constitute notice):
Osler, Hoskin & Harcourt LLP
P.O. Box 50, 1 First Canadian Place
Toronto, ON M5X 1B8
| Attention: | Marc Wasserman / Michael De Lellis / Jeremy Dacks |
| Email: | [Redacted] / [Redacted] / [Redacted] |
With a copy to (which shall not constitute notice):
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
| Attention: | Brian Schartz / Mary Kogut Brawley / Neil Herman |
| Email: | [Redacted] / [Redacted] / [Redacted] |
With a copy to (which shall not constitute notice):
FTI Consulting Canada Inc.,
in its capacity as Monitor of the Just Energy Entities
P.O. Box 104, TD South Tower
79 Wellington Street West
Toronto Dominion Centre, Suite 2010
Toronto, ON M5K 1G8
| Attention: | Paul Bishop / Jim Robinson |
| Email: | [Redacted] / [Redacted] |
.
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| (b) | if to the Monitor: |
FTI Consulting Canada Inc.,
in its capacity as Monitor of the Just Energy Entities
P.O. Box 104, TD South Tower
79 Wellington Street West
Toronto Dominion Centre, Suite 2010
Toronto, ON M5K 1G8
| Attention: | Paul Bishop / Jim Robinson |
| Email: | [Redacted] / [Redacted] |
With a copy to (which shall not constitute notice):
Thornton Grout Finnigan LLP
100 Wellington Street West, Suite 200
Toronto, ON M5K 1K7
| Attention: | Robert Thornton / Rebecca Kennedy |
| Email: | [Redacted] / [Redacted] |
| (c) | if to the Plan Sponsor: |
Akin Gump Straus Hauer & Feld LLP
Bank of America Tower, One Bryant Park
New York, NY 10036
| Attention: | David Botter / Sarah Link Schultz |
| Email: | [Redacted] / [Redacted] |
and
Cassels Brock & Blackwell LLP
Scotia Plaza, Suite 2100
40 King Street West
Toronto, ON M5H 3C2
| Attention: | Ryan Jacobs / Jane Dietrich / Joseph Bellissimo |
| Email: | [Redacted] / [Redacted] / [Redacted] |
| (d) | if to a Creditor: |
To the address specified in the Proof of Claim or Negative Notice Claims Package in respect of such Creditor or such other address as the Creditor may from time to time notify the Just Energy Entities and the Monitor in accordance with this Section 11.14,
or to such other address as any party may from time to time notify the others in accordance with this Section 11.14. Any such communication so given or made shall be deemed to have been given or made and to have been received on the day of delivery if delivered, or on the day of sending by means of recorded electronic communication, provided that such day in either event is a Business Day and the communication is so delivered or sent before 5:00 p.m. on such day. Otherwise, such communication shall be deemed to have been given and made and to have been received on the following Business Day.
| 11.15 | Further Assurances |
Each of the Persons directly or indirectly named or referred to in or subject to the Plan will execute and deliver all such documents and instruments and do all such acts and things as may be necessary or desirable to carry out the full intent and meaning of the Plan and to give effect to the transactions contemplated by the Plan.
Schedule A
JUST ENERGY PARTNERSHIPS
| · | JUST ENERGY ONTARIO L.P. |
| · | JUST ENERGY MANITOBA L.P. |
| · | JUST ENERGY (B.C.) LIMITED PARTNERSHIP |
| · | JUST ENERGY QUÉBEC L.P. |
| · | JUST ENERGY TRADING L.P. |
| · | JUST ENERGY ALBERTA L.P. |
| · | JUST GREEN L.P. |
| · | JUST ENERGY PRAIRIES L.P. |
| · | JEBPO SERVICES LLP |
| · | JUST ENERGY TEXAS LP |
Exhibit 99.2
PLAN SUPPORT AGREEMENT
This PLAN SUPPORT AGREEMENT (as amended, supplemented, or otherwise modified from time to time in accordance with the terms hereof, together with all exhibits and schedules attached hereto or incorporated herein, this “Agreement”) dated May 12, 2022 is made among:
| (a) | Just Energy Group Inc. (“Just Energy”), Just Energy Corp., Ontario Energy Commodities Inc., Universal Energy Corporation, Just Energy Finance Canada ULC, Hudson Energy Canada Corp., Just Management Corp., 11929747 Canada Inc., 12175592 Canada Inc., JE Services Holdco I Inc., JE Services Holdco II Inc., 8704104 Canada Inc., Just Energy Advanced Solutions Corp., Just Energy (U.S.) Corp., Just Energy Illinois Corp., Just Energy Indiana Corp., Just Energy Massachusetts Corp., Just Energy New York Corp., Just Energy Texas I Corp., Just Energy, LLC, Just Energy Pennsylvania Corp., Just Energy Michigan Corp., Just Energy Solutions Inc., Hudson Energy Services LLC, Hudson Energy Corp., Interactive Energy Group LLC, Hudson Parent Holdings LLC, Drag Marketing LLC, Just Energy Advanced Solutions LLC, Fulcrum Retail Energy LLC, Fulcrum Retail Holdings LLC, Tara Energy, LLC, Just Energy Marketing Corp., Just Energy Connecticut Corp., Just Energy Limited, Just Solar Holdings Corp., Just Energy (Finance) Hungary Zrt., Just Energy Ontario L.P., Just Energy Manitoba L.P., Just Energy (B.C.) Limited Partnership, Just Energy Québec L.P., Just Energy Trading L.P., Just Energy Alberta L.P., Just Green L.P., Just Energy Prairies L.P., JEBPO Services LLP, and Just Energy Texas LP (collectively, the “Just Energy Entities” or the “Company”); |
| (b) | LVS III SPE XV LP, TOCU XVII LLC, HVS XVI LLC, OC II LVS XIV LP, and OC III LFE I LP (each in its capacity as holder of Term Loan Claims (as defined below) and holder of Claims under the DIP Financing (as defined below), collectively, the “Plan Sponsor”); |
| (c) | Shell Energy North America (Canada) Inc., Shell Energy North America (US), L.P., and Shell Trading Risk Management, LLC (collectively, “Shell”); |
| (d) | CBHT Energy I LLC, in its capacity as the beneficial holder of the Pre-Filing Claims of BP Canada Energy Group ULC and BP Energy Company (“CBHT”); |
| (e) | the undersigned financial institutions as lenders under the Credit Agreement (as defined below), in each case solely in its capacity as a holder of Claims under the Credit Agreement (such lenders in such capacity, the “Supporting Secured CF Lenders”), and National Bank of Canada, as administrative agent under the Credit Agreement (in such capacity, the “Credit Facility Agent”); and |
| (f) | the undersigned holders of, or investment advisors, sub-advisors, or managers of discretionary accounts that hold Claims arising under that certain the First Amended and Restated Loan Agreement, dated as of September 28, 2020, among (i) Just Energy, as borrower, (ii) Computershare Trust Company of Canada, as agent, and (iii) Sagard Credit Partners, LP and the other lenders party thereto (the “Term Loan Claims” and the undersigned holders of Term Loan Claims, excluding the Plan Sponsor, the “Supporting Unsecured Creditors”). |
The Just Energy Entities, the Plan Sponsor, Shell after the PSA Shell Effective Date, CBHT after the PSA CBHT Effective Date, the Supporting Secured CF Lenders after the PSA Secured CF Effective Date, the Supporting Unsecured Creditors after the PSA TL Effective Date, and any other Person (as defined in the Bankruptcy Code (as defined below)) that becomes a party hereto in accordance with the terms hereof are referred to herein collectively, as the “Parties” and individually, as a “Party.” Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in Exhibit A.
RECITALS
WHEREAS, on March 9, 2021 (the “Filing Date”), (a) Just Energy and certain of the Just Energy Entities commenced proceedings (the “CCAA Proceedings”) under the Companies’ Creditors Arrangement Act (as amended, the “CCAA”) in the Ontario Superior Court of Justice (Commercial List) (the “CCAA Court”); and (b) the foreign representative for certain of the Just Energy Entities commenced cases (the “Chapter 15 Cases”) under chapter 15 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Southern District of Texas, Houston Division (the “US Bankruptcy Court”);
WHEREAS, also on March 9, 2021, (a) the CCAA Court entered an order granting certain relief to Just Energy, including, but not limited to, approval of debtor-in-possession financing (the “DIP Financing”) pursuant to that certain CCAA Interim Debtor-in-Possession Financing Term Sheet (as amended from time to time, the “DIP Term Sheet”); and (b) the US Bankruptcy Court entered an order [Docket No. 23] granting certain relief to the Just Energy Entities, including, but not limited to, authorizing the Just Energy Entities to comply with the terms and conditions of the DIP Financing;
WHEREAS, the Parties have engaged in good faith, arm’s-length negotiations regarding a recapitalization and restructuring and certain related transactions concerning the Company, the terms of which shall be established in a plan of compromise and arrangement in the CCAA Proceedings, which shall be in the form attached hereto as Exhibit B (as may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof and this Agreement, the “Plan”), and consistent in all material respects with the restructuring term sheet attached hereto as Exhibit C (as may be amended, restated, supplemented, or otherwise modified from time to time in accordance with this Agreement, the “Restructuring Term Sheet”) (the foregoing, the “Restructuring”);
WHEREAS, contemporaneously with entry into this Agreement, the Company and the Plan Sponsor have entered into the backstop commitment letter attached hereto as Exhibit D (as may be amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms and this Agreement, the “Backstop Commitment Letter”); and
NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
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AGREEMENT
1. PSA Effective Date.
(a) This Agreement shall become effective, and the obligations contained herein shall become binding upon the Company and the Plan Sponsor upon the first date that this Agreement and the Backstop Commitment Letter each has been executed and delivered by (x) the Company and (y) the Plan Sponsor (such date, the “PSA Effective Date”); provided, however, that until the Authorization Order is granted, the Company’s sole obligations under this Agreement are those set forth in Sections 6(a), (b), (c), (d), (g), (h), (i), and (j) and 11, and in the event the Authorization Order is not granted on or before the applicable Milestone, the Company shall have no obligations hereunder.
(b) This Agreement shall become effective, and the obligations contained herein shall become binding on Shell (and the reciprocal obligations will become binding on the Company, the Plan Sponsor, and the other Parties), upon the first date (such date, the “PSA Shell Effective Date”) that this Agreement (x) has met the conditions set forth in Section 1(a) and (y) has been executed and delivered by Shell, the Plan Sponsor, CBHT and the Company. For the avoidance of doubt, Shell shall have no obligations under Sections 5, 6, 7, 8, or 10. In the event that the Authorization Order is not granted on or before the applicable Milestone, Shell shall have no obligations hereunder.
(c) This Agreement shall become effective, and the obligations contained herein shall become binding on CBHT (and the reciprocal obligations will become binding on the Company, the Plan Sponsor, and the other Parties), upon the first date (such date, the “PSA CBHT Effective Date”) that this Agreement (x) has met the conditions set forth in Section 1(a) and (y) has been executed and delivered by CBHT.
(d) This Agreement shall become effective, and the obligations contained herein shall become binding on a Supporting Secured CF Lender (and the reciprocal obligations will become binding on the Company, the Plan Sponsor, and the other Parties), upon the first date (such date, the “PSA Secured CF Effective Date”) that this Agreement (x) has met the conditions set forth in Section 1(a) and (y) has been executed and delivered by such Supporting Secured CF Lender, the Company, the Plan Sponsor, Shell and CBHT. In the event that the Authorization Order is not granted on or before the applicable Milestone (without regard to any extension of such Milestone after the date hereof, unless the Requisite Supporting Secured CF Lenders have consented thereto), the Supporting Secured CF Lenders shall have no obligations hereunder.
(e) This Agreement shall become effective, and the obligations contained herein shall become binding on a Supporting Unsecured Creditor (and the reciprocal obligations will become binding on the Company, the Plan Sponsor, and the other Parties), upon the first date (such date, the “PSA TL Effective Date”) that this Agreement (x) has met the conditions set forth in Section 1(a) and (y) has been executed and delivered by such Supporting Unsecured Creditor.
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2. Exhibits and Schedules Incorporated by Reference. The Restructuring Term Sheet, the Backstop Commitment Letter, and any other exhibits attached to the Restructuring Term Sheet, the Backstop Commitment Letter or hereto (and any schedules to such exhibits) (collectively, the “Exhibits and Schedules”) are expressly incorporated herein and made a part of this Agreement, and all references to this Agreement shall be deemed to include the Restructuring Term Sheet, the Backstop Commitment Letter, and any other Exhibits and Schedules. In the event of any inconsistency between this Agreement (without reference to the Exhibits and Schedules) and the Exhibits and Schedules (excluding the Plan), this Agreement (without reference to the Exhibits and Schedules) shall govern. In the case of a conflict of the provisions contained in the text of this Agreement and the Restructuring Term Sheet, the text of this Agreement shall govern. In the case of a conflict of the provisions contained in the text of this Agreement and the Plan (when sanctioned by the CCAA Court), the terms of the Plan (when sanctioned by the CCAA Court) shall govern.
3. Definitive Documents.
(a) The definitive documents and agreements governing the Restructuring (the “Definitive Documents”) shall consist of: (i) the Restructuring Term Sheet (and all exhibits thereto); (ii) the Plan (and all supplements, including any restructuring steps supplement, and all exhibits thereto); (iii) all solicitation materials in respect of the Plan (the “Solicitation Materials”); (iv) the Authorization Order; (v) the Meetings Order; (vi) the Sanction Order; (vii) the Authorization Recognition Order; (viii) the Meetings Recognition Order; (ix) the Sanction Recognition Order; (x) the corporate governance documents for the reorganized Just Energy Entities, including, but not limited to, any documents concerning preferred or common equity in any of the reorganized Just Energy Entities, which shall be consistent with the governance term sheet attached to the Restructuring Term Sheet; (xi) the New Credit Agreement and any documents related thereto; (xii) the New Intercreditor Agreement; (xiii) the Backstop Commitment Letter and any documents related thereto; (xiv) any new agreements between Shell and any of the Just Energy Entities that are required for the continuation of the provision of products and services by Shell to the applicable Just Energy Entities and any documents related thereto; (xv) such other definitive documentation relating to the Restructuring as is necessary or desirable to consummate the Restructuring and the Plan; and (xvi) solely with respect to the Plan Sponsor, any officer’s employment or consulting agreements, any documents related to the management incentive plan (each of which shall be consistent with the term sheet attached to the Restructuring Term Sheet), and any other key employee retention plan or key employee incentive plan.
(b) The Definitive Documents not executed or in a form attached to this Agreement, remain subject to negotiation and completion. Upon completion, the Definitive Documents and every other document, deed, agreement, filing, notification, letter, or instrument related to the Restructuring shall contain terms, conditions, representations, warranties, and covenants consistent in all material respects with the terms of this Agreement, as they may be modified, amended, or supplemented in accordance with this Agreement, and shall be subject to the approval requirements set forth herein.
(i) Any document that is included within the definition of “Definitive Documents,” including any amendment, supplement, or modification thereof, shall be in form and substance reasonably acceptable to (x) the Just Energy Entities and (y) the Plan Sponsor.
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(ii) If the PSA Shell Effective Date has occurred, then any document that is included within the definition of “Definitive Documents” to which Shell is a signatory shall be in form and substance reasonably acceptable to Shell.
(iii) If the PSA CBHT Effective Date has occurred, then any document that is included within the definition of “Definitive Documents” to which CBHT is a signatory shall be in form and substance reasonably acceptable to CBHT.
(iv) If the PSA Secured CF Effective Date has occurred, then any document that is included within the definition of “Definitive Documents” (other than any officer’s employment or consulting agreement), including any amendment, supplement, or modification thereof, shall be in form and substance reasonably acceptable to the Requisite Supporting Secured CF Lenders; provided, however, that the New Credit Agreement and New Intercreditor Agreement shall also be consistent and comply with the term sheets for each attached as exhibits to the Restructuring Term Sheet.
(v) If the PSA TL Effective Date has occurred, then any document that is included within the definition of “Definitive Documents” to which the Supporting Unsecured Creditors are signatories shall be in form and substance reasonably acceptable to such Supporting Unsecured Creditors that are signatories.
4. Milestones. The Restructuring shall be implemented on the following timeline (each deadline, as may be extended in accordance with this Agreement, a “Milestone”):
(a) In connection with the CCAA Proceedings,
(i) On or before May 26, 2022, the Just Energy Entities shall obtain the Authorization Order and the Meetings Order;
(ii) On or before June 1, 2022, the Just Energy Entities shall cause the service of the Solicitation Materials;
(iii) Meetings of the creditors that are eligible to vote on the Plan shall be held no later than August 2, 2022;
(iv) On or before August 12, 2022, the Just Energy Entities shall obtain the Sanction Order; and
(v) No later than September 30, 2022 (the “Initial Outside Date”), or such later date or dates as may be determined by the Plan Sponsor on written notice to the other Parties (the “Outside Date”), the Effective Date of the Plan shall occur; provided, however, in the event the Initial Outside Date is not extended, the Initial Outside Date shall be the Outside Date; provided, further, to the extent the only condition to the Effective Date of the Plan that remains outstanding is the receipt of regulatory approval(s), the Outside Date shall be automatically extended for another sixty (60) days, and thereafter, the Plan Sponsor shall have the right to further extend the Outside Date in its sole discretion on written notice to the other Parties.
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(b) In connection with the Chapter 15 Cases,
(i) The Just Energy Entities shall obtain the Authorization Recognition Order, the Claims Procedure Recognition Order and the Meetings Recognition Order by no later than June 22, 2022 recognizing the Authorization Order and the Meetings Order;
(ii) Within two (2) business days after the entry of the Sanction Order, the Just Energy Entities shall file a motion for entry of an order recognizing and enforcing the Sanction Order (the “Recognition and Enforcement Motion”);
(iii) The Just Energy Entities shall facilitate the setting of a hearing before the US Bankruptcy Court on the Recognition and Enforcement Motion to be no later than September 9, 2022; provided, however, all documents required to be served in connection with such hearing shall be served by no later than August 16, 2022 and such hearing shall be set at the earliest date agreed to by the US Bankruptcy Court; and
(iv) The Just Energy Entities shall obtain the Sanction Recognition Order by no later than September 15, 2022 granting the Recognition and Enforcement Motion.
The Plan Sponsor may extend a Milestone on written notice to the Just Energy Entities and the other Parties (which may be delivered by email), acting reasonably.
5. Commitments of the Plan Sponsor. Unless inconsistent with the Plan Sponsor’s obligations or rights under the DIP Financing, which obligations and rights shall control in the event of a conflict, and subject to the terms and conditions hereof, the Plan Sponsor shall, from the PSA Effective Date until the occurrence of the PSA Termination Date (as defined below):
(a) vote or cause to be voted all of its Term Loan Claims against the Just Energy Entities to accept the Plan by delivering duly executed and completed ballots accepting the Plan on a timely basis;
(b) support the Restructuring and vote and exercise any powers or rights available to it (including in any board, shareholders’, or creditors’ meeting or in any process requiring voting or approval to which they are legally entitled to participate) in each case in favor of any matter requiring approval to the extent necessary to implement the Restructuring; provided, however, the foregoing shall not require the Plan Sponsor to take or refrain from taking any action that would materially change or impair the terms of the Restructuring or its rights under this Agreement;
(c) use commercially reasonable efforts to cooperate with and assist the Just Energy Entities in obtaining additional support for the Restructuring from the Just Energy Entities’ other stakeholders; provided, however, the foregoing shall not require the Plan Sponsor to take or refrain from taking any action that would materially change or impair the terms of the Restructuring or its rights under this Agreement;
(d) act in good faith and take (and cause its agents, representatives, and employees to take) all actions that are reasonably necessary or appropriate, and all actions required by the CCAA Court and/or the US Bankruptcy Court, to support and achieve sanctioning and consummation of the Plan and consummation of all transactions and implementation steps provided for or contemplated in the Restructuring;
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(e) not object to, delay, impede, or take any other action to interfere with sanctioning, consummation, or implementation of the Plan or the transactions contemplated by the Restructuring, the Plan, or this Agreement;
(f) not directly or indirectly (i) solicit approval or acceptance of, encourage, propose, file, support, participate in the formulation of, or vote for, any restructuring, sale of assets, merger, workout, or plan for the Just Energy Entities other than the Plan, or (ii) otherwise take any action that could reasonably be expected to or would interfere with, delay, impede, or postpone the solicitation of acceptances, sanctioning, consummation, or implementation of the Plan or the transactions contemplated by the Restructuring, the Plan, or this Agreement;
(g) not file any motion, pleading, or other document with the US Bankruptcy Court, the CCAA Court, or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with the Restructuring;
(h) not initiate, or have initiated on its behalf, any litigation or proceeding of any kind with respect to the CCAA Proceedings, the Chapter 15 Cases, this Agreement, or the Restructuring contemplated herein against the Just Energy Entities or the other Parties hereto to the extent such litigation or proceeding is inconsistent with the transactions contemplated by this Agreement, other than to enforce this Agreement or any Definitive Document or as otherwise permitted under this Agreement; provided, however, for the avoidance of doubt, as set forth above in this Section, the foregoing shall not affect the Plan Sponsor’s ability to take any action permitted under the DIP Term Sheet or in connection with the DIP Financing;
(i) not exercise, or direct any other person to exercise, any right or remedy for the enforcement, collection, or recovery of any Claims or interests in the Just Energy Entities; provided, however, for the avoidance of doubt, as set forth above in this Section, the foregoing shall not affect the Plan Sponsor’s ability to take any action permitted under the DIP Term Sheet or in connection with the DIP Financing;
(j) not initiate, or have initiated on its behalf, not object to, delay, impede, or take any other action to interfere with the Just Energy Entities’ ownership and possession of their assets, wherever located, or interfere with the stay imposed by the CCAA Court and the US Bankruptcy Court; provided, however, for the avoidance of doubt, as set forth above in this Section, the foregoing shall not affect the Plan Sponsor’s ability to take any action permitted under the DIP Term Sheet or in connection with the DIP Financing;
(k) not change or withdraw (or cause to be changed or withdrawn) any vote cast pursuant to Section 5(a) above, other than as expressly permitted by this Agreement; and
(l) between the date hereof and the PSA Termination Date, provide prompt written notice to the Just Energy Entities and the other Parties, to the extent known by the Plan Sponsor, of (i) the occurrence, or failure to occur, of any event of which the occurrence or failure to occur would be reasonably likely to cause (A) any representation or warranty of the Plan Sponsor contained in this Agreement to be untrue or inaccurate in any material respect, (B) any covenant of the Plan Sponsor contained in this Agreement not to be satisfied in any material respect, or (C) any condition precedent contained in the Plan or this Agreement not to occur or become impossible to satisfy; or (ii) the receipt of written notice from any third party alleging that the consent of such party is or may be required as a condition precedent to consummation of the transactions contemplated by the Restructuring.
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Notwithstanding the foregoing, nothing in this Agreement shall (i) be construed to prohibit the Plan Sponsor from appearing as a party-in-interest in any matter to be adjudicated in the CCAA Proceedings or the Chapter 15 Cases, so long as, from the PSA Effective Date until the occurrence of the applicable PSA Termination Date, such appearance and the positions advocated in connection therewith are not inconsistent with this Agreement and are not for the purpose of hindering, delaying, or preventing the consummation of the Restructuring; (ii) prevent the Plan Sponsor from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement; (iii) affect, modify, or change in any way any right of the Plan Sponsor under the DIP Term Sheet and any related documents; (iv) except as otherwise expressly provided in this Agreement, be construed to limit the Plan Sponsor’s rights under any applicable credit agreement, including the DIP Term Sheet, other loan document, instrument, and/or applicable law; (v) affect the rights of the Plan Sponsor to consult with the Just Energy Entities, Shell, CBHT, the Supporting Secured CF Lenders, the Credit Facility Agent, the Supporting Unsecured Creditors, or any other creditor or stakeholder of the Just Energy Entities or any other party in interest in the CCAA Proceedings or the Chapter 15 Cases; provided that, without the written consent (which may be delivered via email) of the Just Energy Entities, the Plan Sponsor shall not consult with any party whom the Just Energy Entities have informed the Plan Sponsor has made an Alternative Restructuring Proposal; (vi) impair or waive the rights of the Plan Sponsor to assert or raise any objection permitted under this Agreement in connection with any hearing on sanctioning of the Plan or in the CCAA Court or the US Bankruptcy Court or prevent the Plan Sponsor from enforcing this Agreement against the Just Energy Entities, Shell, CBHT, the Supporting Secured CF Lenders, the Credit Facility Agent, the Supporting Unsecured Creditors; (vii) based on advice of counsel (which may be in-house counsel), prevent the Plan Sponsor from taking any action that is required by applicable law (provided, however, that if the Plan Sponsor proposes to take any action that is otherwise inconsistent with this Agreement in order to comply with applicable law, the Plan Sponsor shall provide advance notice to the extent permissible under applicable law to the other Parties at that time to the extent the provision of notice is practicable under the circumstances); provided, further, that, as of the date hereof, the Plan Sponsor represents and warrants to each other Party that the Plan Sponsor is unaware of any such action; (viii) based on advice of counsel (which may be in-house counsel), require the Plan Sponsor to take any action that is prohibited by applicable law or to waive or forego the benefit of any applicable legal privilege (provided, however, that if the Plan Sponsor proposes to take any action that is otherwise inconsistent with this Agreement in order to comply with applicable law, the Plan Sponsor shall provide advance notice to the extent permissible under applicable law to the other Parties at that time to the extent the provision of notice is practicable under the circumstances); provided, further, that, as of the date hereof, the Plan Sponsor represents and warrants to each other Party that the Plan Sponsor is unaware of any such matter; or (ix) except as otherwise provided in, or envisioned by, this Agreement as of the PSA Effective Date, require the Plan Sponsor to incur any expenses, liabilities, or other obligations, or to agree to any commitments, undertakings, concessions, indemnities, or other arrangements that could result in expenses, liabilities, or other obligations.
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6. Commitments of the Company. Subject to the terms and conditions hereof, and except as the Plan Sponsor may expressly release the Just Energy Entities in writing (which writing may be via email) from any of the following obligations (which release may be withheld, conditioned, or delayed by the Plan Sponsor in its sole discretion) (each such release, a “Section 6 Waiver”):
(a) each of the Just Energy Entities (i) agrees to (x) support and use commercially reasonable efforts to complete the Restructuring as set forth in the Plan and this Agreement; (y) negotiate in good faith and execute and deliver the Definitive Documents and take any and all steps reasonably necessary and appropriate in furtherance of the Restructuring, the Plan, and this Agreement; and (z) take commercially reasonable efforts to complete the Restructuring in accordance with each Milestone set forth in Section 4; and (ii) shall not (x) file any motion, pleading, or Definitive Documents with the CCAA Court, the US Bankruptcy Court, or any other court (including any modifications or amendments thereof) that, in whole or in part, are inconsistent with this Agreement (including the consent rights of the other Parties set forth herein as to the form and substance of such motion, pleading, or Definitive Document) or the Plan; or (y) undertake any action that is inconsistent with, or is intended to frustrate or impede approval, implementation, and/or consummation of the Restructuring described in, this Agreement, the Restructuring Term Sheet, or the Plan;
(b) each of the Just Energy Entities agrees to use commercially reasonable efforts to cure, vacate, reverse, set aside, or have overruled any ruling or order of the CCAA Court, the US Bankruptcy Court, any regulatory authority, or any other court of competent jurisdiction (including any appellate court) enjoining or rendering impossible the substantial consummation of the Restructuring;
(c) each of the Just Energy Entities agrees to provide prompt written notice to the other Parties between the date hereof and the PSA Termination Date of (i) the occurrence, or failure to occur, of any event of which the occurrence or failure to occur would be reasonably likely to cause (x) any representation or warranty of the Just Energy Entities contained in this Agreement to be untrue or inaccurate in any material respect, (y) any covenant of the Just Energy Entities contained in this Agreement not to be satisfied in any material respect, or (z) any condition precedent contained in the Plan or this Agreement not to occur or become impossible to satisfy, (ii) receipt of any written notice from any third party alleging that the consent of such party is or may be required as a condition precedent to consummation of the transactions contemplated by the Restructuring, (iii) receipt of any written notice from any governmental body that is material to the consummation of the transactions contemplated by the Restructuring, and (iv) to the extent involving the Company, any material governmental or third party complaints, litigations, investigations, or hearings (or communications indicating that the same is contemplated or threatened);
(d) the Just Energy Entities agree to take commercially reasonable efforts to ensure that all consents and approvals necessary for the implementation of the Restructuring (including, without limitation, regulatory, court, and other approvals) shall have been obtained to the satisfaction of the Plan Sponsor, the Credit Facility Agent, and the Just Energy Entities, and that all necessary filings and notifications and similar actions shall have been taken to the satisfaction of the Plan Sponsor, the Credit Facility Agent, and the Just Energy Entities, including without limitation all Regulatory Matters set forth in Section 7 of the Backstop Commitment Letter, prior to the Effective Date provided that in no event would a Just Energy Entity be required to dispose of any assets or agree to any behavioral remedies in connection with obtaining regulatory approvals, unless agreed to by the Plan Sponsor, the Requisite Supporting Secured CF Lenders, Shell, and the Company; provided, further that in connection with obtaining the Transaction Regulatory Approvals (as defined in the Backstop Commitment Letter), no Just Energy Entity shall agree to any of the foregoing items without the prior written consent of the Initial Backstop Parties (as defined in the Backstop Commitment Letter);
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(e) Just Energy agrees to apply for and obtain an order from the applicable Canadian Securities Regulatory Authorities which provides that, as and from the Effective Date of the Plan, Just Energy will have ceased to be a reporting issuer under Canadian securities laws and that no Just Energy Entity will become a reporting issuer under Canadian securities laws as a result of the completion of the Restructuring;
(f) the Just Energy Entities shall pay the reasonable and documented fees and expenses of the Supporting Creditors (as defined below) incurred in connection with the Restructuring, including, without limitation, the reasonable and documented fees and expenses of such parties’ legal, financial, and other advisors, as and when they come due after receipt of applicable invoices and in accordance with the arrangements in place as of the date of this Agreement, including, without limitation, as set forth in the DIP Term Sheet, or, with respect to any additional fees and expenses, as otherwise agreed to by the Plan Sponsor;
(g) the Just Energy Entities shall: (i) operate the business of the Just Energy Entities in the ordinary course in a manner that is consistent with this Agreement, and use commercially reasonable efforts to preserve intact the Just Energy Entities’ business organization and relationships with third parties and, subject to (ii) below, its employees (which shall not prohibit the Just Energy Entities from taking actions outside of the ordinary course of business to the extent approved by the CCAA Court and the US Bankruptcy Court, as applicable and with the consent of the Plan Sponsor), (ii) not have disclaimed or terminated any employment or consulting agreement with an officer, director, or member of senior management, other than “for cause,” without the written consent of the Plan Sponsor, (iii) keep the Plan Sponsor, the Supporting Secured CF Lenders, the Credit Facility Agent, and the Supporting Unsecured Creditors informed about the operations of the Just Energy Entities, and (iv) provide each of the other Parties any material information reasonably requested regarding the Just Energy Entities (on a confidential basis) and provide, and direct the Just Energy Entities’ employees, officers, advisors, and other representatives to provide, to the Plan Sponsor’s legal, financial, and other advisors, (x) reasonable access during normal business hours to the Just Energy Entities’ books, records, and facilities (on a confidential basis), and (y) reasonable access to the management and advisors of the Just Energy Entities for the purposes of evaluating the Just Energy Entities’ assets, liabilities, operations, businesses, finances, strategies, prospects, and affairs;
(h) the Just Energy Entities agree (i) to prepare or cause to be prepared the applicable Definitive Documents within the Just Energy Entities’ control (including all relevant motions, applications, orders, and agreements), (ii) to provide draft copies of all documents, including the Definitive Documents within the Just Energy Entities’ control, that the Just Energy Entities intend to file with the CCAA Court or the US Bankruptcy Court, in each case, to counsel to the Plan Sponsor and Credit Facility Agent at least three (3) days before such documents are to be filed with the CCAA Court and/or the US Bankruptcy Court or as soon as practicable thereafter; provided, that each such pleading or document shall be acceptable to the Plan Sponsor, acting reasonably, and consistent with, and shall otherwise contain, the terms and conditions set forth in this Agreement (including the consent rights of any Party, as may be applicable, set forth herein as to the form and substance of such pleading or document), and (iii) without limiting any approval rights set forth herein, consult in good faith with the advisors to the Plan Sponsor and Credit Facility Agent regarding the form and substance and timing of service and filing of any of the foregoing documents in advance of the filing, execution, distribution, or use (as applicable) thereof;
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(i) the Just Energy Entities agree to file timely a formal objection to any motion filed with the CCAA Court or the US Bankruptcy Court, as applicable, seeking an order that would undermine the Restructuring or any relief sought in connection therewith; and
(j) the Just Energy Entities agree to file timely a formal objection to any motion filed with the CCAA Court or the US Bankruptcy Court, as applicable, by any Person seeking the entry of an order (i) lifting the stay of proceedings in the CCAA Proceedings; (ii) terminating the CCAA Proceedings or converting the CCAA Proceedings to proceedings under the Bankruptcy and Insolvency Act (Canada); (iii) directing the appointment of an examiner or a trustee; (iv) converting any of the Chapter 15 Cases to a case under chapter 7 of the Bankruptcy Code; or (v) dismissing any of the Chapter 15 Cases.
7. Commitments of the Supporting Secured CF Lenders. Subject to the terms and conditions hereof, each Supporting Secured CF Lender and the Credit Facility Agent shall (severally, and not jointly and severally), solely as it remains the legal owner of Credit Facility Claims and Credit Facility LC Claims, from the PSA Secured CF Effective Date until the occurrence of the PSA Termination Date (as defined below):
(a) vote or cause to be voted all of its Claims against the Just Energy Entities to accept the Plan by delivering duly executed and completed ballots accepting the Plan on a timely basis;
(b) support the Restructuring and vote and exercise any powers or rights available to it (including in any board, shareholders’, or creditors’ meeting or in any process requiring voting or approval to which they are legally entitled to participate) in each case in favor of any matter requiring approval to the extent necessary to implement the Restructuring; provided, however, the foregoing shall not require the Supporting Secured CF Lenders or the Credit Facility Agent to take or refrain from taking any action that would materially change or impair (i) the terms of the Restructuring, (ii) their rights under this Agreement or (iii) their recovery under the Plan;
(c) use commercially reasonable efforts to cooperate with and assist the Just Energy Entities in obtaining additional support for the Restructuring from the Just Energy Entities’ other stakeholders; provided, however, the foregoing shall not require the Supporting Secured CF Lenders or the Credit Facility Agent to take or refrain from taking any action that would materially change or impair the terms of the Restructuring or their rights under this Agreement;
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(d) act in good faith and take (and cause its agents, representatives, and employees to take) all actions that are reasonably necessary or appropriate, and all actions required by the CCAA Court and/or the US Bankruptcy Court, to support and achieve sanctioning and consummation of the Plan and consummation of all transactions and implementation steps provided for or contemplated in the Restructuring or the Plan;
(e) not object to, delay, impede, or take any other action to interfere with sanctioning, consummation, or implementation of the Plan or the transactions contemplated by the Restructuring, the Plan, or this Agreement;
(f) not directly or indirectly (i) solicit approval or acceptance of, encourage, propose, file, support, participate in the formulation of, or vote for, any restructuring, sale of assets, merger, workout, or plan for the Just Energy Entities other than the Plan, or (ii) otherwise take any action that would interfere with, delay, impede, or postpone the solicitation of acceptances, sanctioning, consummation, or implementation of the Plan or the transactions contemplated by the Plan or this Agreement;
(g) not file any motion, pleading, or other document with the US Bankruptcy Court, the CCAA Court, or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with the Restructuring;
(h) not initiate, or have initiated on its behalf, any litigation or proceeding of any kind with respect to the Chapter 15 Cases, this Agreement, or the Restructuring contemplated herein against the Just Energy Entities or the other Parties hereto other than to enforce this Agreement, that certain accommodation and support agreement dated March 18, 2021 between the Just Energy Entities, the Credit Facility Agent, and the Supporting Secured CF Lenders (the “Accommodation Agreement”), or any Definitive Document or as otherwise permitted under this Agreement;
(i) not exercise, or direct any other person to exercise, any right or remedy for the enforcement, collection, or recovery of any Claims or interests in the Just Energy Entities, other than in accordance with the Accommodation Agreement or in a manner consistent with this Agreement;
(j) not object to, delay, impede, or take any other action to interfere with the Just Energy Entities’ ownership and possession of their assets, wherever located, or interfere with the stay imposed by the CCAA Court and the US Bankruptcy Court, other than in accordance with the Accommodation Agreement;
(k) not change or withdraw (or cause to be changed or withdrawn) any vote cast pursuant to Section 7(a) above, other than as expressly permitted by this Agreement;
(l) participate in the New Credit Facility (subject to the terms and conditions of the New Credit Agreement) and enter into the New Intercreditor Agreement on substantially similar terms as the Intercreditor Agreement but subject to the changes set forth in Exhibit F hereto, subject to the implementation of the Plan resulting in, among other things, the transactions contemplated in the Restructuring Term Sheet; and
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(m) between the date hereof and the PSA Termination Date, provide prompt written notice to the other Parties, to the extent known by such Supporting Secured CF Lender or Credit Facility Agent, as the case may be, of (i) the occurrence, or failure to occur, of any event of which the occurrence or failure to occur would be reasonably likely to cause (A) any representation or warranty of the Supporting Secured CF Lender or Credit Facility Agent (as the case may be) be contained in this Agreement to be untrue or inaccurate in any material respect, (B) any covenant of the Supporting Secured CF Lender or Credit Facility Agent (as the case may be) contained in this Agreement not to be satisfied in any material respect, or (C) any condition precedent contained in the Plan or this Agreement not to occur or become impossible to satisfy; or (ii) the receipt of written notice from any third party alleging that the consent of such party is or may be required as a condition precedent to consummation of the transactions contemplated by the Restructuring.
Notwithstanding the foregoing, nothing in this Agreement shall (i) be construed to prohibit any Supporting Secured CF Lender or the Credit Facility Agent from appearing as a party-in-interest in any matter to be adjudicated in the CCAA Proceedings or the Chapter 15 Cases, so long as until the occurrence of the PSA Termination Date applicable to such Supporting Creditor (as defined below), such appearance and the positions advocated in connection therewith are not inconsistent with this Agreement and are not for the purpose of hindering, delaying, or preventing the consummation of the Restructuring; (ii) prevent any Supporting Secured CF Lender or the Credit Facility Agent from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement; (iii) direct, modify, or change in any way any right of the Supporting Secured CF Lenders and Credit Facility Agent under the Accommodation Agreement and any related documents; (iv) except as otherwise expressly provided in this Agreement, be construed to limit the rights of any Supporting Secured CF Lender or the Credit Facility Agent under any applicable credit agreement, other loan document, instrument, and/or applicable law; (v) affect the rights of any Supporting Secured CF Lender or the Credit Facility Agent to consult with the other Supporting Secured CF Lenders, the Just Energy Entities, the Plan Sponsor, Shell, CBHT, the Supporting Unsecured Creditors, or any other creditor or stakeholder of the Just Energy Entities or any other party in interest in the CCAA Proceedings or the Chapter 15 Cases; provided that, without the written consent (which may be delivered via email) of the Just Energy Entities, the Supporting Secured CF Lenders shall not consult with any party whom the Just Energy Entities have informed the Supporting Secured CF Lenders has made an Alternative Restructuring Proposal; (vi) impair or waive the rights of any Supporting Secured CF Lender or the Credit Facility Agent to assert or raise any objection permitted under this Agreement in connection with any hearing on sanctioning of the Plan or in the CCAA Court or the US Bankruptcy Court or prevent such Supporting Secured CF Lender or the Credit Facility Agent from enforcing this Agreement against the other Parties; (vii) based on advice of counsel (which may be in-house counsel), prevent any Supporting Secured CF Lender or the Credit Facility Agent from taking any action that is required by applicable law (provided, however, that if any Supporting Secured CF Lender or the Credit Facility Agent proposes to take any action that is otherwise inconsistent with this Agreement in order to comply with applicable law, such Supporting Secured CF Lender or the Credit Facility Agent shall provide advance notice to the extent permissible under applicable law to the other Parties to the extent the provision of notice is practicable under the circumstances; provided, further, that, as of the date hereof, each Supporting Secured CF Lender represents and warrants to each other Party that it is unaware of any such action); (viii) based on advice of counsel (which may be in-house counsel), require any Supporting Secured CF Lender or the Credit Facility Agent to take any action that is prohibited by applicable law or to waive or forego the benefit of any applicable legal privilege (provided, however, that if any Supporting Secured CF Lender or the Credit Facility Agent proposes to take any action that is otherwise inconsistent with this Agreement in order to comply with applicable law, such Supporting Secured CF Lender or the Credit Facility Agent, as the case may be, shall provide advance notice to the extent permissible under applicable law to the other Parties to the extent the provision of notice is practicable under the circumstances; provided, further, that, as of the date hereof, such Supporting Secured CF Lender represents and warrants to each other Party that it is unaware of any such matter); or (ix) except as otherwise provided in, or envisioned by, this Agreement as of the PSA Secured CF Effective Date require any Supporting Secured CF Lender or the Credit Facility Agent to incur any expenses, liabilities, or other obligations, or to agree to any commitments, undertakings, concessions, indemnities, or other arrangements that could result in expenses, liabilities, or other obligations (other than customary expenses that may be incurred in connection with the New Credit Facility).
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8. Commitments of the Supporting Unsecured Creditors. Subject to the terms and conditions hereof, each Supporting Unsecured Creditor shall (severally, and not jointly and severally), solely as it remains the legal owner, beneficial owner, and/or investment advisor or manager of or with power and/or authority to bind any Claims against the Just Energy Entities held by it, from the PSA TL Effective Date until the occurrence of the PSA Termination Date (as defined below):
(a) vote or cause to be voted all of its Claims against the Just Energy Entities to accept the Plan by delivering duly executed and completed ballots accepting the Plan on a timely basis;
(b) support the Restructuring and vote and exercise any powers or rights available to it (including in any board, shareholders’, or creditors’ meeting or in any process requiring voting or approval to which they are legally entitled to participate) in each case in favor of any matter requiring approval to the extent necessary to implement the Restructuring; provided, however, the foregoing shall not require the Supporting Unsecured Creditors to take or refrain from taking any action that would materially change or impair the terms of the Restructuring or their rights under this Agreement;
(c) use commercially reasonable efforts to cooperate with and assist the Just Energy Entities in obtaining additional support for the Restructuring from the Just Energy Entities’ other stakeholders; provided, however, the foregoing shall not require the Supporting Unsecured Creditors to take or refrain from taking any action that would materially change or impair the terms of the Restructuring or their rights under this Agreement;
(d) act in good faith and take (and cause its agents, representatives, and employees to take) all actions that are reasonably necessary or appropriate, and all actions required by the CCAA Court and/or the US Bankruptcy Court, to support and achieve sanctioning and consummation of the Plan and consummation of all transactions and implementation steps provided for or contemplated in the Restructuring or the Plan;
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(e) not object to, delay, impede, or take any other action to interfere with sanctioning, consummation, or implementation of the Plan or the transactions contemplated by the Restructuring, the Plan, or this Agreement;
(f) not directly or indirectly (i) solicit approval or acceptance of, encourage, propose, file, support, participate in the formulation of, or vote for, any restructuring, sale of assets, merger, workout, or plan for the Just Energy Entities other than the Plan, or (ii) otherwise take any action that would interfere with, delay, impede, or postpone the solicitation of acceptances, sanctioning, consummation, or implementation of the Plan or the transactions contemplated by the Plan or this Agreement;
(g) not file any motion, pleading, or other document with the US Bankruptcy Court, the CCAA Court, or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with the Restructuring;
(h) not initiate, or have initiated on its behalf, any litigation or proceeding of any kind with respect to the Chapter 15 Cases, this Agreement, or the Restructuring contemplated herein against the Just Energy Entities or the other Parties hereto other than to enforce this Agreement or any Definitive Document or as otherwise permitted under this Agreement;
(i) not exercise, or direct any other person to exercise, any right or remedy for the enforcement, collection, or recovery of any Claims or interests in the Just Energy Entities;
(j) not object to, delay, impede, or take any other action to interfere with the Just Energy Entities’ ownership and possession of their assets, wherever located, or interfere with the stay imposed by the CCAA Court and the US Bankruptcy Court;
(k) not change or withdraw (or cause to be changed or withdrawn) any vote cast pursuant to Section 8(a) above, other than as expressly permitted by this Agreement; and
(l) provide prompt written notice to the other Parties, to the extent known by such Supporting Unsecured Creditor, of (i) the occurrence, or failure to occur, of any event of which the occurrence or failure to occur would be reasonably likely to cause (A) any representation or warranty of the Supporting Unsecured Creditors contained in this Agreement to be untrue or inaccurate in any material respect, (B) any covenant of the Supporting Unsecured Creditors contained in this Agreement not to be satisfied in any material respect, or (C) any condition precedent contained in the Plan or this Agreement not to occur or become impossible to satisfy; or (ii) the receipt of written notice from any third party alleging that the consent of such party is or may be required as a condition precedent to consummation of the transactions contemplated by the Restructuring.
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Notwithstanding the foregoing, nothing in this Agreement shall (i) be construed to prohibit any Supporting Unsecured Creditor from appearing as a party-in-interest in any matter to be adjudicated in the CCAA Proceedings or the Chapter 15 Cases, so long as, from the PSA TL Effective Date until the occurrence of the applicable PSA Termination Date, such appearance and the positions advocated in connection therewith are not inconsistent with this Agreement and are not for the purpose of hindering, delaying, or preventing the consummation of the Restructuring; (ii) prevent any Supporting Unsecured Creditor from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement; (iii) except as otherwise expressly provided in this Agreement, be construed to limit any Supporting Unsecured Creditor’s rights under any applicable credit agreement, other loan document, instrument, and/or applicable law; (iv) affect the rights of any Supporting Unsecured Creditor to consult with other Supporting Unsecured Creditors, the Just Energy Entities, the Plan Sponsor, Shell, CBHT, the Supporting Secured CF Lenders, the Credit Facility Agent or any other creditor or stakeholder of the Just Energy Entities or any other party in interest in the CCAA Proceedings or the Chapter 15 Cases; provided that, without the written consent (which may be delivered via email) of the Just Energy Entities, the Supporting Unsecured Creditors shall not consult with any party whom the Just Energy Entities have informed the Supporting Unsecured Creditors has made an Alternative Restructuring Proposal; (v) impair or waive the rights of any Supporting Unsecured Creditor to assert or raise any objection permitted under this Agreement in connection with any hearing on sanctioning of the Plan or in the CCAA Court or the US Bankruptcy Court or prevent such Supporting Unsecured Creditor from enforcing this Agreement against the other Parties; (vi) based on advice of counsel (which may be in-house counsel), prevent any Supporting Unsecured Creditor from taking any action that is required by applicable law (provided, however, that if any Supporting Unsecured Creditor proposes to take any action that is otherwise inconsistent with this Agreement in order to comply with applicable law, such Supporting Unsecured Creditor shall provide advance notice to the extent permissible under applicable law to the other Parties to the extent the provision of notice is practicable under the circumstances); provided, further, that, as of the date hereof, the Supporting Unsecured Creditors represent and warrant to each other Party that the Supporting Unsecured Creditors are unaware of any such action); (vii) based on advice of counsel (which may be in-house counsel), require any Supporting Unsecured Creditor to take any action that is prohibited by applicable law or to waive or forego the benefit of any applicable legal privilege (provided, however, that if any Supporting Unsecured Creditor proposes to take any action that is otherwise inconsistent with this Agreement in order to comply with applicable law, such Supporting Unsecured Creditor shall provide advance notice to the extent permissible under applicable law to the other Parties to the extent the provision of notice is practicable under the circumstances); provided, further, that, as of the date hereof, the Supporting Unsecured Creditors represent and warrant to each other Party that the Supporting Unsecured Creditors are unaware of any such matter); or (viii) except as otherwise provided in, or envisioned by, this Agreement, require any Supporting Unsecured Creditor to incur any expenses, liabilities, or other obligations, or to agree to any commitments, undertakings, concessions, indemnities, or other arrangements that could result in expenses, liabilities, or other obligations.
9. Commitments of Shell. Subject to the terms and conditions hereof, Shell shall, from the PSA Shell Effective Date until the occurrence of the PSA Termination Date (as defined below):
(a) support the Restructuring and vote and exercise any powers or rights available to it (including in any board, shareholders’, or creditors’ meeting or in any process requiring voting or approval to which they are legally entitled to participate) in each case in favor of any matter requiring approval to the extent necessary to implement the Restructuring; provided, however, the foregoing shall not require Shell to take or refrain from taking any action that would materially change or impair (i) the terms of the Restructuring, (ii) its rights under this Agreement or (iii) its recovery under the Plan;
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(b) act in good faith and take (and cause its agents, representatives, and employees to take) all actions that are reasonably necessary or appropriate, and all actions required by the CCAA Court and/or the US Bankruptcy Court, to support and achieve sanctioning and consummation of the Plan and consummation of all transactions and implementation steps provided for or contemplated in the Restructuring;
(c) not object to, delay, impede, or take any other action to interfere with sanctioning, consummation, or implementation of the Plan or the transactions contemplated by the Plan or this Agreement;
(d) not directly or indirectly (i) solicit approval or acceptance of, encourage, propose, file, support, participate in the formulation of, or vote for, any restructuring, sale of assets, merger, workout, or plan for the Just Energy Entities other than the Plan, or (ii) otherwise take any action that would interfere with, delay, impede, or postpone the solicitation of acceptances, sanctioning, consummation, or implementation of the Plan or the transactions contemplated by the Plan or this Agreement;
(e) not file any motion, pleading, or other document with the US Bankruptcy Court, the CCAA Court, or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with the Restructuring;
(f) not initiate, or have initiated on its behalf, any litigation or proceeding of any kind with respect to the Chapter 15 Cases, this Agreement, or the Restructuring contemplated herein against the Just Energy Entities or the other Parties hereto other than to enforce this Agreement, the Support Agreement dated March 9, 2021 among Shell Energy North America (US), L.P., Shell Energy North America (Canada) Inc., Just Energy Ontario L.P., Just Energy (U.S.) Corp., Just Energy New York Corp., Just Energy Alberta L.P., Fulcrum Retail Holdings LLC, Just Energy Texas LP, Just Energy Solutions Inc., Just Energy Illinois Corp., Just Energy Corp. and Just Green L.P. (the “Shell Commodity Support Agreement”), or any Definitive Document or as otherwise permitted under this Agreement;
(g) not exercise, or direct any other person to exercise, any right or remedy for the enforcement, collection, or recovery of any Claims or Interests in the Just Energy Entities, other than in accordance with the Shell Commodity Support Agreement;
(h) not object to, delay, impede, or take any other action to interfere with the Just Energy Entities’ ownership and possession of their assets, wherever located, or interfere with the stay imposed by the CCAA Court and the US Bankruptcy Court;
(i) between the date hereof and the PSA Termination Date, provide prompt written notice to the other Parties, to the extent known by Shell, of (i) the occurrence, or failure to occur, of any event of which the occurrence or failure to occur would be reasonably likely to cause (A) any representation or warranty of Shell contained in this Agreement to be untrue or inaccurate in any material respect, (B) any covenant of Shell contained in this Agreement not to be satisfied in any material respect, or (C) any condition precedent contained in the Plan or this Agreement not to occur or become impossible to satisfy; or (ii) the receipt of written notice from any third party alleging that the consent of such party is or may be required as a condition precedent to consummation of the transactions contemplated by the Restructuring; and
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(j) effective as of the Effective Date of the Plan, (i) to continue to provide commodity supply in accordance with the existing Shell agreements, as may be amended, restated, supplemented and/or replaced by agreement between Shell and the applicable Just Energy Entity to the appropriate Just Energy Entities or additional Just Energy Entities, and (ii) to enter into the New Intercreditor Agreement on substantially similar terms as the Intercreditor Agreement but subject to the changes set forth in Exhibit F hereto; provided that notwithstanding the foregoing, nothing herein shall obligate Shell to continue providing services under the Third Amended and Restated Scheduling Coordinator Agreement dated December 1, 2014 between Shell Energy North America (US), L.P., Just Energy New York Corp., Just Energy (U.S.) Corp. and Just Energy Solutions Inc. (formerly Commerce Energy, Inc.) or any other agreement whereby Shell performs ISO or scheduling services on behalf of any Just Energy Entity whereby a Just Energy Entity has reimbursement obligations to Shell for payments made by Shell on behalf of a Just Energy Entity to an ISO.
Notwithstanding the foregoing, nothing in this Agreement shall (i) be construed to prohibit Shell from appearing as a party-in-interest in any matter to be adjudicated in the CCAA Proceedings or the Chapter 15 Cases, so long as, from the PSA Shell Effective Date until the occurrence of the applicable PSA Termination Date, such appearance and the positions advocated in connection therewith are not inconsistent with this Agreement and are not for the purpose of hindering, delaying, or preventing the consummation of the Restructuring; (ii) prevent Shell from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement; (iii) direct, modify, or change in any way any right of Shell under the Shell Commodity Support Agreement; (iv) except as otherwise expressly provided in this Agreement, be construed to limit Shell’s rights under any applicable credit agreement, other loan document, instrument, other commercial agreement with a Just Energy Entity, and/or applicable law; (v) affect the rights of Shell to consult with the Just Energy Entities, the Plan Sponsor, CBHT, the Supporting Secured CF Lenders, the Credit Facility Agent, the Supporting Unsecured Creditors, or any other creditor or stakeholder of the Just Energy Entities or any other party in interest in the CCAA Proceedings or the Chapter 15 Cases; provided that, without the written consent (which may be delivered via email) of the Just Energy Entities, Shell shall not consult with any party whom the Just Energy Entities have informed Shell has made an Alternative Restructuring Proposal; (vi) impair or waive the rights of Shell to assert or raise any objection permitted under this Agreement in connection with any hearing on sanctioning of the Plan or in the CCAA Court or the US Bankruptcy Court or prevent Shell from enforcing this Agreement against the other Parties; (vii) based on advice of counsel (which may be in-house counsel), prevent Shell from taking any action that is required by applicable law (provided, however, that if Shell proposes to take any action that is otherwise inconsistent with this Agreement in order to comply with applicable law, Shell shall provide advance notice to the extent permissible under applicable law to the other Parties to the extent the provision of notice is practicable under the circumstances); provided, however, that, as of the date hereof, Shell represents and warrants to each other Party that Shell is unaware of any such action); (viii) based on advice of counsel (which may be in-house counsel), require Shell to take any action that is prohibited by applicable law or to waive or forego the benefit of any applicable legal privilege (provided, however, that if Shell proposes to take any action that is otherwise inconsistent with this Agreement in order to comply with applicable law, Shell shall provide advance notice to the extent permissible under applicable law to the other Parties to the extent the provision of notice is practicable under the circumstances); provided, further, that, as of the date hereof, Shell represents and warrants to each other Party that Shell is unaware of any such matter); or (ix) except as otherwise provided in, or envisioned by, this Agreement as of the PSA Shell Effective Date, require Shell to incur any expenses, liabilities, or other obligations, or to agree to any commitments, undertakings, concessions, indemnities, or other arrangements that could result in expenses, liabilities, or other obligations (other than customary expenses that may be incurred in connection with the New Intercreditor Agreement).
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10. Commitments of CBHT. Subject to the terms and conditions hereof, CBHT shall, from the PSA CBHT Effective Date until the occurrence of the PSA Termination Date (as defined below):
(a) vote or cause to be voted, if applicable, all of its Claims against the Just Energy Entities to accept the Plan by delivering duly executed and completed ballots accepting the Plan on a timely basis;
(b) support the Restructuring and vote, if applicable, and exercise any powers or rights available to it (including in any board, shareholders’, or creditors’ meeting or in any process requiring voting or approval to which they are legally entitled to participate) in each case in favor of any matter requiring approval to the extent necessary to implement the Restructuring; provided, however, the foregoing shall not require CBHT to take or refrain from taking any action that would materially change or impair the terms of the Restructuring or its rights under this Agreement; provided, further, that, for the avoidance of doubt, subject to the terms of this Agreement, CBHT agrees to the terms of the Restructuring regardless of whether or not CBHT is given voting rights under the Meetings Order with respect to the same;
(c) use commercially reasonable efforts to cooperate with and assist the Just Energy Entities in obtaining additional support for the Restructuring from the Just Energy Entities’ other stakeholders; provided, however, the foregoing shall not require CBHT to take or refrain from taking any action that would materially change or impair the terms of the Restructuring or its rights under this Agreement;
(d) act in good faith and take (and cause its agents, representatives, and employees to take) all actions that are reasonably necessary or appropriate, and all actions required by the CCAA Court and/or the US Bankruptcy Court, to support and achieve sanctioning and consummation of the Plan and consummation of all transactions and implementation steps provided for or contemplated in the Restructuring;
(e) not object to, delay, impede, or take any other action to interfere with sanctioning, consummation, or implementation of the Plan or the transactions contemplated by the Plan or this Agreement;
(f) not directly or indirectly (i) solicit approval or acceptance of, encourage, propose, file, support, participate in the formulation of, or vote for, any restructuring, sale of assets, merger, workout, or plan for the Just Energy Entities other than the Plan, or (ii) otherwise take any action that would interfere with, delay, impede, or postpone the solicitation of acceptances, sanctioning, consummation, or implementation of the Plan or the transactions contemplated by the Plan or this Agreement;
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(g) not initiate, or have initiated on its behalf, any litigation or proceeding of any kind with respect to the Chapter 15 Cases, this Agreement, or the Restructuring contemplated herein against the Just Energy Entities or the other Parties hereto other than to enforce this Agreement or any Definitive Document or as otherwise permitted under this Agreement;
(h) not exercise, or direct any other person to exercise, any right or remedy for the enforcement, collection, or recovery of any Claims or interests in the Just Energy Entities;
(i) not object to, delay, impede, or take any other action to interfere with the Just Energy Entities’ ownership and possession of their assets, wherever located, or interfere with the stay imposed by the CCAA Court and the US Bankruptcy Court;
(j) not file any motion, pleading, or other document with the US Bankruptcy Court, the CCAA Court, or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with the Restructuring;
(k) not change or withdraw (or cause to be changed or withdrawn) any vote cast pursuant to Section 9(a) above, other than as expressly permitted by this Agreement;
(l) request that BP Canada Energy Group ULC and/or BP Energy Company promptly turnover to Hudson Energy Services, LLC, any and all applicable proceeds received by BP Canada Energy Group ULC and/or BP Energy Company under Texas House Bill 4492 and shall comply in all respects with the final orders signed on October 13, 2021 by the Public Utility Commission of Texas;
(m) between the date hereof and the PSA Termination Date, provide prompt written notice to the other Parties, to the extent known by CBHT, of (i) the occurrence, or failure to occur, of any event of which the occurrence or failure to occur would be reasonably likely to cause (A) any representation or warranty of CBHT contained in this Agreement to be untrue or inaccurate in any material respect, (B) any covenant of CBHT contained in this Agreement not to be satisfied in any material respect, or (C) any condition precedent contained in the Plan or this Agreement not to occur or become impossible to satisfy; or (ii) the receipt of written notice from any third party alleging that the consent of such party is or may be required as a condition precedent to consummation of the transactions contemplated by the Restructuring.
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Notwithstanding the foregoing, nothing in this Agreement shall (i) be construed to prohibit CBHT from appearing as a party-in-interest in any matter to be adjudicated in the CCAA Proceedings or the Chapter 15 Cases, so long as, from the PSA CBHT Effective Date until the occurrence of the applicable PSA Termination Date, such appearance and the positions advocated in connection therewith are not inconsistent with this Agreement and are not for the purpose of hindering, delaying, or preventing the consummation of the Restructuring; (ii) prevent CBHT from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement; (iii) except as otherwise expressly provided in this Agreement, be construed to limit CBHT’s rights under any applicable credit agreement, other loan document, instrument, and/or applicable law; (iv) affect the rights of CBHT to consult with the Just Energy Entities, the Plan Sponsor, Shell, the Supporting Secured CF Lenders, the Credit Facility Agent, the Supporting Unsecured Creditors or any other creditor or stakeholder of the Just Energy Entities or any other party in interest in the CCAA Proceedings or the Chapter 15 Cases; provided that, without the written consent (which may be delivered via email) of the Just Energy Entities, CBHT shall not consult with any party whom the Just Energy Entities have informed CBHT has made an Alternative Restructuring Proposal; (v) impair or waive the rights of CBHT to assert or raise any objection permitted under this Agreement in connection with any hearing on sanctioning of the Plan or in the CCAA Court or the US Bankruptcy Court or prevent CBHT from enforcing this Agreement against the other Parties; (vi) based on advice of counsel (which may be in-house counsel), prevent CBHT from taking any action that is required by applicable law (provided, however, that if CBHT proposes to take any action that is otherwise inconsistent with this Agreement in order to comply with applicable law, CBHT shall provide advance notice to the extent permissible under applicable law to the other Parties to the extent the provision of notice is practicable under the circumstances); provided, further, that, as of the date hereof CBHT represents and warrants to each other Party that CBHT is unaware of any such action; (vii) based on advice of counsel (which may be in-house counsel), require CBHT to take any action that is prohibited by applicable law or to waive or forego the benefit of any applicable legal privilege (provided, however, that if CBHT proposes to take any action that is otherwise inconsistent with this Agreement in order to comply with applicable law, CBHT shall provide at advance notice to the extent permissible under applicable law to the other Parties to the extent the provision of notice is practicable under the circumstances); provided, further, that, as of the date hereof, CBHT represents and warrants to each other Party that CBHT is unaware of any such matter); or (viii) except as otherwise provided in, or envisioned by, this Agreement as of the PSA CBHT Effective Date, require CBHT to incur any expenses, liabilities, or other obligations, or to agree to any commitments, undertakings, concessions, indemnities, or other arrangements that could result in expenses, liabilities, or other obligations.
11. Additional Provisions Regarding the Just Energy Entities.
(a) Without the prior written consent of the Plan Sponsor, from and after the PSA Effective Date, Just Energy shall not, and shall not cause or allow any of its subsidiaries or affiliates, or its or their directors, officers, employees, investment bankers, attorneys, accountants, consultants, or other advisors or representatives to, directly or indirectly, solicit, initiate, or knowingly take any actions to encourage the submission of any Alternative Restructuring Proposal.
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(b) Except as set forth in Section 11(c), notwithstanding anything to the contrary in this Agreement, each Just Energy Entity and its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives shall have the right to: (i) consider and respond to any Alternative Restructuring Proposals; (ii) provide access to non-public information concerning the Company pursuant to a confidentiality or nondisclosure agreement to any Person or enter into confidentiality agreements or nondisclosure agreements with any Person that has made an Alternative Restructuring Proposal, provided that such confidentiality or nondisclosure agreements entered into after the date of this Agreement do not restrict the Just Energy Entities’ ability to comply with their obligations under this Section 11; (iii) engage in, maintain, or continue discussions or negotiations with respect to Alternative Restructuring Proposals including facilitate the due diligence process in connection with any Alternative Restructuring Proposal consistent with the terms of clause (ii) above; (iv) otherwise cooperate with, assist, or participate in any unsolicited inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; (v) enter into or continue discussions or negotiations with holders of claims against, or interests in, a Just Energy Entity (including any Supporting Creditor), any other party in interest in the CCAA Proceedings or the Chapter 15 Cases, or any other entity regarding the Restructuring or Alternative Restructuring Proposals; and (vi) enter into an agreement with respect to an Alternative Restructuring Proposal if, following receipt of legal and financial advice, and having regard to the approvals that would be required to implement such transaction, the board of directors of Just Energy determines that the terms of such Alternative Restructuring Proposal are more favourable to the Just Energy Entities and their stakeholders than the Restructuring (a “Superior Proposal”). The Just Energy Entities shall provide on a confidential basis to the legal counsel and financial advisors of the Plan Sponsor and the Supporting Secured CF Lenders (A) copies (or if not provided to the Just Energy Entities in writing, a detailed description) of any Alternative Restructuring Proposal no later than one (1) calendar day following receipt thereof by the Just Energy Entities or their advisors and (B) such other information as reasonably requested by the Plan Sponsor’s or the Supporting Secured CF Lenders’ legal counsel and financial advisors or as necessary to keep the Plan Sponsor and the Supporting Secured CF Lenders informed no later than one (1) calendar day after any such request or any material change to the proposed terms of any Alternative Restructuring Proposal as to the terms of any Alternative Restructuring Proposal (including any changes to the proposed terms thereof) and the status and substance of discussions related thereto.
(c) Notwithstanding anything to the contrary in this Agreement, no Just Energy Entity or any of its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives may, from and after the PSA Effective Date, solicit an Alternative Restructuring Proposal and compliance with this Agreement requires that any action taken pursuant to Section 11(b) by any Just Energy Entity or any of its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives shall be taken with respect solely to any Alternative Restructuring Proposal that the Just Energy Entities do not solicit from and after the PSA Effective Date. Actions permitted by Section 11(b) shall not, by themselves, constitute a default under the DIP Financing.
12. Termination.
(a) Plan Sponsor Termination Events. The Plan Sponsor shall have the right, but not the obligation, to terminate this Agreement with respect to the Plan Sponsor upon delivery of written notice to the other Parties at any time after the occurrence of or during the continuation of any of the following events, unless waived in writing on a prospective or retroactive basis by the Plan Sponsor:
(i) upon termination of the Backstop Commitment Letter;
(ii) the failure to meet any of the Milestones in Section 4 (as they may be extended in accordance with Section 4) unless such failure is the result of any act, omission, or delay on the part of the Plan Sponsor;
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(iii) if the CCAA Proceedings are dismissed, terminated, stayed, modified, or converted to a proceeding under the Bankruptcy and Insolvency Act (Canada) or Winding-Up and Restructuring Act (Canada);
(iv) if the US Bankruptcy Court enters an order (a) dismissing any of the Chapter 15 Cases, (b) converting any of the Chapter 15 Cases to a case under chapter 7 of the Bankruptcy Code, or (c) appointing a trustee or an examiner with expanded powers pursuant to Bankruptcy Code section 1104 in any of the Chapter 15 Cases;
(v) if the Just Energy Entities file any motion or any request for relief seeking to (x) dismiss any of the Chapter 15 Cases, (y) convert any of the Chapter 15 Cases to a case under chapter 7 of the Bankruptcy Code, or (z) appoint a trustee or examiner with expanded powers pursuant to Bankruptcy Code section 1104 in any of the Chapter 15 Cases;
(vi) upon the Just Energy Entities’ withdrawal, waiver, amendment, or modification of, or the filing of (or announced intention to file) a pleading seeking to withdraw, waive, amend, or modify any of the Definitive Documents, including motions, notices, exhibits, appendices and orders, that is both not consistent in all material respects with this Agreement and not done with the consent of the Plan Sponsor;
(vii) any condition precedent contained in the Plan becomes incapable of being satisfied;
(viii) the issuance by any governmental authority, including the CCAA Court or the US Bankruptcy Court, any regulatory authority, or any other court of competent jurisdiction, of any ruling or order the effect of which would be materially inconsistent with the purpose or intention of this Agreement, the Restructuring, or the Plan or enjoining or otherwise impeding the substantial consummation of the Restructuring on the terms and conditions set forth in this Agreement, or the Plan; provided, however, that the Plan Sponsor shall not have the right to terminate under this clause if the Just Energy Entities are using commercially reasonable efforts to cure, vacate, reserve, set aside, or have overruled as quickly as possible such ruling or order to obtain relief that would allow consummation of the Restructuring in a manner that (x) does not prevent or diminish in a material way compliance with the terms of this Agreement or the Plan and (y) is acceptable to the Plan Sponsor;
(ix) a material breach by any Just Energy Entity of any representation, warranty, or covenant of such Just Energy Entity set forth in this Agreement that (to the extent curable) remains uncured for a period of ten (10) days after the receipt by the Just Energy Entities of written notice detailing such breach;
(x) the Just Energy Entities file, propose, or otherwise support any plan of liquidation, share or asset sale of all or any material portion of any of the Just Energy Entities’ material assets, or plan other than as contemplated by this Agreement or with the consent of the Plan Sponsor;
(xi) an order is entered by the CCAA Court or the US Bankruptcy Court authorizing any party to proceed against any material asset of any of the Just Energy Entities or any assets that would materially and adversely affect the Just Energy Entities’ ability to operate their business in the ordinary course;
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(xii) a failure by the Just Energy Entities to pay the fees and expenses of the Plan Sponsor or the DIP Lenders, including but not limited to the Plan Sponsor’s or the DIP Lenders’ legal, financial, and any other advisors, as and when due pursuant to the terms of any applicable engagement letters and any applicable orders of the CCAA Court or the US Bankruptcy Court;
(xiii) the entry of an order by any court of competent jurisdiction granting the relief sought in an involuntary proceeding against any entity constituting the Just Energy Entities seeking bankruptcy, winding up, dissolution, liquidation, administration, moratorium, reorganization, or other relief in respect of any entity comprising the Just Energy Entities or the Just Energy Entities’ debts, or of a substantial part of the Just Energy Entities’ assets, under any federal, state, or foreign bankruptcy, insolvency, administrative, receivership, or similar law now or hereafter in effect (provided that such involuntary proceeding is not dismissed within a period of thirty (30) days after the filing thereof);
(xiv) if any of the Just Energy Entities (a) consents to the institution of, or fails to contest in a timely and appropriate manner, any involuntary proceeding or petition described above, (b) applies for or consents to the appointment of a receiver, administrator, administrative receiver, trustee, custodian, sequestrator, conservator, or similar official for the Just Energy Entities or for a substantial part of the Just Energy Entities’ assets, (c) files an answer admitting the material allegations of a petition filed against it in any such proceeding, (d) makes a general assignment or arrangement for the benefit of creditors, or (e) takes any corporate action for the purpose of authorizing any of the foregoing;
(xv) the occurrence of an Event of Default under Sections 25(a), 25(b)(ii) (provided that the failure to deliver any Cash Flow Statement by the date set out in Section 18 of the DIP Term Sheet continues for three (3) Business Days), 25(b)(iii) (solely with respect to Section 35 of the DIP Term Sheet), 25(e) (solely with respect to: (y) the affirmative covenants in clauses (1) and/or (21) on Schedule H of the DIP Term Sheet (and in the case of covenant (21) excluding any Material Contract or Material License terminated (A) with the prior written consent of (I) the Monitor and the Plan Sponsor or (II) the CCAA Court or (B) solely as a result of entering into this Agreement and/or the Backstop Commitment Letter); and/or (z) the negative covenants in Schedule I of the DIP Term Sheet), 25(f), 25(j), 25(k), 25(l), 25(m), and/or 25(p) of the DIP Term Sheet, in each case that has not been cured (if susceptible to cure) or waived by the applicable percentage of the lenders thereunder in accordance with the terms of the DIP Term Sheet, and the obligations under the DIP Term Sheet have been accelerated;
(xvi) upon (a) a filing by any of the Just Energy Entities of any motion, objection, application, or adversary proceeding challenging the validity, enforceability, perfection or priority of, or seeking avoidance, subordination, or characterization of, any portion of the Plan Sponsor’s or any of its affiliates’ claims against any of the Just Energy Entities, and/or the liens securing any such claims or asserting any other claim or cause of action against and/or with respect to any such claims, liens, the Plan Sponsor, or the agent under any of the relevant facilities (or if any Just Energy Entity files a pleading supporting any such motion, application, or adversary proceeding commenced by any third party) or (b) the entry of an order by the CCAA Court or the US Bankruptcy Court (other than with respect to any action commenced by the Just Energy Entities against ERCOT) providing relief adverse to the interests of the Plan Sponsor or any of its affiliates or the agent under any relevant facilities with respect to any of the foregoing claims, causes of action, or proceedings, but excluding preliminary or final relief granting standing to any other party to prosecute such claims, causes of action or proceeding;
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(xvii) if the board of directors, board of managers, or such similar governing body of any Just Energy Entity makes the determination to proceed with, and accept, a definitive Alternative Restructuring Proposal or a definitive Superior Proposal; or
(xviii) any other Party terminates its obligations under this Agreement.
(b) Company Termination Events. The Just Energy Entities may terminate this Agreement, in each case, upon delivery of written notice to the other Parties upon the occurrence of any of the following events:
(i) a material breach by the Plan Sponsor of any representation, warranty, or covenant set forth in this Agreement that (to the extent curable) remains uncured for a period of ten (10) days after the receipt by the Plan Sponsor of written notice detailing such breach;
(ii) the termination of the Backstop Commitment Letter;
(iii) the failure to meet any of the Milestones in Section 4 unless (x) such failure is the result of any act, omission, or delay on the part of the Just Energy Entities or (y) such Milestone is extended in accordance with Section 4;
(iv) the board of directors, board of managers, or such similar governing body of any Just Energy Entity determines, upon the advice of outside legal counsel and financial advisors, that (A) proceeding with the Restructuring would be inconsistent with the exercise of its fiduciary duties or applicable law or (B) in the exercise of its fiduciary duties, to pursue a Superior Proposal in accordance with Section 11;
(v) (A) any condition precedent contained in the Plan that cannot be waived becomes incapable of being satisfied (including, for the avoidance of doubt, if approval by the Required Majorities is not obtained at the Meeting); and (B)(x) any condition precedent contained in the Plan that can be waived by a party other than the Company becomes incapable of being satisfied, and (y) the Company has requested a waiver of such condition precedent and such waiver has been denied;
(vi) the issuance by any governmental authority, including the CCAA Court or the US Bankruptcy Court, any regulatory authority, or any other court of competent jurisdiction, of any final ruling or Final Order enjoining or otherwise impeding the substantial consummation of the Restructuring on the terms and conditions set forth in this Agreement, or the Plan; provided, however, that the Just Energy Entities have made commercially reasonable efforts to cure, vacate, reserve, set aside, or have overruled as quickly as possible such final ruling or Final Order prior to terminating this Agreement; or
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(vii) any other Party terminates its obligations under this Agreement and such termination either (A) renders the Restructuring incapable of consummation or (B) materially changes the overall economic terms of the Restructuring in a manner that is adverse to the Just Energy Entities (which would include Shell failing to confirm, in writing, to the Just Energy Entities and the Plan Sponsor that (x) it will not exercise any termination rights under Continuing Contracts (as defined in the Plan) solely as a result of the Restructuring, and (y) all existing and future trades will be provided for under the Continuing Contracts (as may be amended, restated, supplemented, and/or replaced by the Just Energy Entities and Shell from time to time following the Effective Date) or new arrangements, in each case, in accordance with the terms thereof and subject to the terms of the New Intercreditor Agreement, or the New Credit Agreement not being entered into);
(c) Supporting Secured CF Lender Termination Events. The Requisite Supporting Secured CF Lenders1 shall have the right, but not the obligation, to terminate this Agreement upon delivery of written notice to the other Parties at any time after the occurrence of or during the continuation of any of the following events (each, a “Credit Facility Lender Termination Event”), unless waived in writing on a prospective or retroactive basis by the applicable Requisite Supporting Secured CF Lenders (provided, however, that any such termination shall only be with respect to the applicable Supporting Secured CF Lenders and the Credit Facility Agent, and this Agreement shall remain in full force and effect as to the other Parties hereto at such time, and the term “Parties” shall thereafter exclude the applicable Supporting Secured CF Lenders and the Credit Facility Agent):
(i) upon termination of the Backstop Commitment Letter;
(ii) if the Effective Date of the Plan has not occurred by November 15, 2022 (the “Initial Secured CF Lenders Outside Date”); provided that, if the Effective Date of the Plan will not occur by the Initial Secured CF Lenders Outside Date solely as a result of a failure to satisfy the condition set forth in Section 10.1(q) of the Plan (other than those conditions that by their nature can only be satisfied at the Effective Date, but are capable of being satisfied at such time) then the Initial Secured CF Lenders Outside Date shall automatically be extended until December 31, 2022 upon written notice given on or before the Initial Secured CF Lenders Outside Date (which notice may be by email) to the Credit Facility Agent or its counsel that there is a reasonable expectation that the condition will be satisfied by December 31, 2022, which notice may be from either the Company or the Plan Sponsor (or their respective counsel);
(iii) if the CCAA Proceedings are dismissed, terminated, stayed, modified, or converted to a proceeding under the Bankruptcy and Insolvency Act (Canada) or Winding-Up and Restructuring Act (Canada);
(iv) if the US Bankruptcy Court enters an order (a) dismissing any of the Chapter 15 Cases, (b) converting any of the Chapter 15 Cases to a case under chapter 7 of the Bankruptcy Code, or (c) appointing a trustee or an examiner with expanded powers pursuant to Bankruptcy Code section 1104 in any of the Chapter 15 Cases;
| 1 | The holders of in excess of 66 2/3% of the Credit Facility Claims shall be the “Requisite Supporting Secured CF Lenders.” |
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(v) the Just Energy Entities file any motion or any request for relief seeking to (x) dismiss any of the Chapter 15 Cases, (y) convert any of the Chapter 15 Cases to a case under chapter 7 of the Bankruptcy Code, or (z) appoint a trustee or examiner with expanded powers pursuant to Bankruptcy Code section 1104 in any of the Chapter 15 Cases;
(vi) upon the Just Energy Entities’ withdrawal, waiver, amendment, or modification, or the filing of (or announced intention to file) a pleading seeking to withdraw, waive, amend, or modify any of the Definitive Documents, including motions, notices, exhibits, appendices and orders, that is both not consistent in all material respects with this Agreement and not done with the consent of the Requisite Supporting Secured CF Lenders;
(vii) any condition precedent contained in the Plan or the New Credit Agreement becomes incapable of being satisfied or any condition precedent contained in the Plan is waived without the consent of the Requisite Supporting Secured CF Lenders;
(viii) the issuance by any governmental authority, including the CCAA Court or the US Bankruptcy Court, any regulatory authority, or any other court of competent jurisdiction, of any final ruling or Final Order, the effect of which would be materially inconsistent with the purpose or intention of this Agreement, the Restructuring, or the Plan, or enjoining or otherwise impeding the substantial consummation of the Restructuring on the terms and conditions set forth in this Agreement, or the Plan; provided, however, that the Supporting Secured CF Lenders shall not have the right to terminate under this clause if the Just Energy Entities are using commercially reasonable efforts to cure, vacate, reserve, set aside, or have overruled as quickly as possible such final ruling or Final Order to obtain relief that would allow consummation of the Restructuring in a manner that (x) does not prevent or diminish in a material way compliance with the terms of this Agreement or the Plan and (y) is acceptable to the Requisite Supporting Secured CF Lenders;
(ix) a material breach by any Just Energy Entity of any representation, warranty, or covenant of such Just Energy Entity set forth in this Agreement that (to the extent curable) remains uncured for a period of ten (10) days after the receipt by the Just Energy Entities of written notice detailing such breach;
(x) the Just Energy Entities file, propose, or otherwise support any plan of liquidation, share or asset sale of all or any material portion of any of the Just Energy Entities’ material assets, or plan other than as contemplated by this Agreement (A) that materially and adversely affects the treatment, rights or interests of the Supporting Secured CF Lenders as compared to the treatment, rights or interests of the Supporting Secured CF Lenders hereunder and under the Plan and (B) without the consent of the Requisite Supporting Secured CF Lenders;
(xi) an order is entered by the CCAA Court or the US Bankruptcy Court authorizing any party to proceed against any material asset of any of the Just Energy Entities or any assets that would materially and adversely affect the Just Energy Entities’ ability to operate their business in the ordinary course;
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(xii) a failure by the Just Energy Entities to pay the fees and expenses of the Supporting Secured CF Lenders and Credit Facility Agent, including but not limited to the legal, financial, and any other advisors of the Supporting Secured CF Lenders and Credit Facility Agent, as and when due pursuant to the terms of any applicable engagement letters and any applicable orders of the CCAA Court or the US Bankruptcy Court;
(xiii) the entry of an order by any court of competent jurisdiction granting the relief sought in an involuntary proceeding against any entity constituting the Just Energy Entities seeking bankruptcy, winding up, dissolution, liquidation, administration, moratorium, reorganization, or other relief in respect of any entity comprising the Just Energy Entities or the Just Energy Entities’ debts, or of a substantial part of the Just Energy Entities’ assets, under any federal, state, or foreign bankruptcy, insolvency, administrative, receivership, or similar law now or hereafter in effect (provided that such involuntary proceeding is not dismissed within a period of thirty (30) days after the filing thereof);
(xiv) if any of the Just Energy Entities (a) consents to the institution of, or fails to contest in a timely and appropriate manner, any involuntary proceeding or petition described above, (b) applies for or consents to the appointment of a receiver, administrator, administrative receiver, trustee, custodian, sequestrator, conservator, or similar official for the Just Energy Entities or for a substantial part of the Just Energy Entities’ assets, (c) files an answer admitting the material allegations of a petition filed against it in any such proceeding, (d) makes a general assignment or arrangement for the benefit of creditors, or (e) takes any corporate action for the purpose of authorizing any of the foregoing;
(xv) the obligations of the Company under the DIP Term Sheet are accelerated or the commitments under the DIP Term Sheet are terminated;
(xvi) upon (a) a filing by any of the Just Energy Entities of any motion, objection, application, or adversary proceeding challenging the validity, enforceability, perfection or priority of, or seeking avoidance, subordination, or characterization of, any portion of the Supporting Secured CF Lenders’ or any of their affiliates’ claims against any of the Just Energy Entities, and/or the liens securing any such claims or asserting any other claim or cause of action against and/or with respect to any such claims, liens, the Supporting Secured CF Lenders or the Credit Facility Agent (or if any Just Energy Entity files a pleading supporting any such motion, application, or adversary proceeding commenced by any third party); or (b) the entry of an order by the CCAA Court or the US Bankruptcy Court (other than with respect to any action commenced by the Just Energy Entities against ERCOT) providing relief adverse to the interests of the Supporting Secured CF Lenders or the Credit Facility Agent with respect to any of the foregoing claims, causes of action, or proceedings, but excluding preliminary or final relief granting standing to any other party to prosecute such claims, causes of action or proceeding;
(xvii) if the board of directors, board of managers, or such similar governing body of any Just Energy Entity makes the determination to proceed with, and accept, a definitive Alternative Restructuring Proposal or a definitive Superior Proposal;
(xviii) the Plan Sponsor, Shell or CBHT terminates its obligations under this Agreement; or
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(xix) Just Energy Entities’ failure to obtain the Authorization Order on or before May 26, 2022, hold the meetings of creditors eligible to vote on the Plan on or before August 2, 2022, obtain the Sanction Order on or before August 12, 2022, or obtain the Sanction Recognition Order on or before September 15, 2022 (without regard to any extension after the date hereof, unless the Requisite Supporting Secured CF Lenders have consented thereto); or
(xx) a Section 6 Waiver is given by the Plan Sponsor without the consent of the Requisite Supporting Secured CF Lenders, unless such Section 6 Waiver relates exclusively to an obligation of the Just Energy Entities to the Plan Sponsor and such waiver has no direct or indirect materially adverse effect on the Supporting Secured CF Lenders or the Credit Facility Agent.
(d) Supporting Unsecured Creditor Termination Events. The Requisite Supporting Unsecured Creditors2 shall have the right, but not the obligation, to terminate this Agreement upon delivery of written notice to the other Parties at any time after the occurrence of or during the continuation of any of the following events, unless waived in writing on a prospective or retroactive basis by the applicable Requisite Supporting Unsecured Creditors (provided, however, that any such termination shall only be with respect to the applicable Supporting Unsecured Creditors, and this Agreement shall remain in full force and effect as to the other Parties hereto at such time, and the term “Parties” shall thereafter exclude the applicable Supporting Unsecured Creditors):
(i) if the CCAA Proceedings are dismissed, terminated, stayed, modified, or converted to a proceeding under the Bankruptcy and Insolvency Act (Canada) or Winding-Up and Restructuring Act (Canada);
(ii) if the US Bankruptcy Court enters an order (a) dismissing any of the Chapter 15 Cases, (b) converting any of the Chapter 15 Cases to a case under chapter 7 of the Bankruptcy Code, or (c) appointing a trustee or an examiner with expanded powers pursuant to Bankruptcy Code section 1104 in any of the Chapter 15 Cases;
(iii) the Just Energy Entities file any motion or any request for relief seeking to (x) dismiss any of the Chapter 15 Cases, (y) convert any of the Chapter 15 Cases to a case under chapter 7 of the Bankruptcy Code, or (z) appoint a trustee or examiner with expanded powers pursuant to Bankruptcy Code section 1104 in any of the Chapter 15 Cases;
(iv) the issuance by any governmental authority, including the CCAA Court or the US Bankruptcy Court, any regulatory authority, or any other court of competent jurisdiction, of any final ruling or Final Order enjoining or otherwise impeding the substantial consummation of the Restructuring on the terms and conditions set forth in this Agreement, or the Plan; provided, however, that the Supporting Unsecured Creditors shall not have the right to terminate under this clause if the Just Energy Entities are using commercially reasonable efforts to cure, vacate, reserve, set aside, or have overruled as quickly as possible such final ruling or Final Order to obtain relief that would allow consummation of the Restructuring in a manner that (x) does not prevent or diminish in a material way compliance with the terms of this Agreement or the Plan and (y) is acceptable to the Requisite Supporting Unsecured Creditors;
| 2 | The holders of in excess of 50% of the Term Loan Claims shall be the “Requisite Supporting Unsecured Creditors.” |
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(v) a material breach by any Just Energy Entity of any representation, warranty, or covenant of such Just Energy Entity set forth in this Agreement that (to the extent curable) remains uncured for a period of ten (10) days after the receipt by the Just Energy Entities of written notice detailing such breach;
(vi) the Just Energy Entities file, propose, or otherwise support any plan of liquidation, asset sale of all or any material portion of the Just Energy Entities’ assets, or plan other than as contemplated by this Agreement that (A) materially and adversely affects the treatment or rights of the Supporting Unsecured Creditors as compared to the treatment and rights set forth herein and (B) without the consent of the Requisite Supporting Unsecured Creditors;
(vii) an order is entered by the CCAA Court or the US Bankruptcy Court authorizing any party to proceed against any material asset of any of the Just Energy Entities or any assets that would materially and adversely affect the Just Energy Entities’ ability to operate their business in the ordinary course;
(viii) a failure by the Just Energy Entities to pay the fees and expenses of the Supporting Unsecured Creditors, including but not limited to the Supporting Unsecured Creditors’ legal, financial, and any other advisors, as and when due pursuant to the terms of any applicable engagement letters and any applicable orders of the CCAA Court or the US Bankruptcy Court;
(ix) the entry of an order by any court of competent jurisdiction granting the relief sought in an involuntary proceeding against any entity constituting the Just Energy Entities seeking bankruptcy, winding up, dissolution, liquidation, administration, moratorium, reorganization, or other relief in respect of any entity comprising the Just Energy Entities or the Just Energy Entities’ debts, or of a substantial part of the Just Energy Entities’ assets, under any federal, state, or foreign bankruptcy, insolvency, administrative, receivership, or similar law now or hereafter in effect (provided that such involuntary proceeding is not dismissed within a period of thirty (30) days after the filing thereof);
(x) if any of the Just Energy Entities (a) consents to the institution of, or fails to contest in a timely and appropriate manner, any involuntary proceeding or petition described above, (b) applies for or consents to the appointment of a receiver, administrator, administrative receiver, trustee, custodian, sequestrator, conservator, or similar official for the Just Energy Entities or for a substantial part of the Just Energy Entities’ assets, (c) files an answer admitting the material allegations of a petition filed against it in any such proceeding, (d) makes a general assignment or arrangement for the benefit of creditors, or (e) takes any corporate action for the purpose of authorizing any of the foregoing; or
(e) upon a filing by any of the Just Energy Entities of any motion, objection, application, or adversary proceeding challenging the validity, enforceability, perfection or priority of, or seeking avoidance, subordination, or characterization of, any portion of the Supporting Unsecured Creditors’ or any of its affiliates’ claims against any of the Just Energy Entities, and/or the liens securing any such claims or asserting any other claim or cause of action against and/or with respect to any such claims, liens, the Supporting Unsecured Creditors, or the agent under any of the relevant facilities (or if any Just Energy Entity files a pleading supporting any such motion, application, or adversary proceeding commenced by any third party).
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(f) Shell Termination Events. Shell, in each case, with respect solely to Shell, shall have the right, but not the obligation, to terminate this Agreement upon delivery of written notice to the other Parties at any time after the occurrence of or during the continuation of any of the following events, unless hereafter waived in writing on a prospective or retroactive basis by Shell (provided, however, that any such termination shall only be with respect to Shell, this Agreement shall remain in full force and effect as to the other Parties hereto at such time, and the term “Parties” shall thereafter exclude Shell):
(i) if the CCAA Proceedings are dismissed, terminated, stayed, modified, or converted to a proceeding under the Bankruptcy and Insolvency Act (Canada) or Winding-Up and Restructuring Act (Canada);
(ii) if the US Bankruptcy Court enters an order (a) dismissing any of the Chapter 15 Cases, (b) converting any of the Chapter 15 Cases to a case under chapter 7 of the Bankruptcy Code, or (c) appointing a trustee or an examiner with expanded powers pursuant to Bankruptcy Code section 1104 in any of the Chapter 15 Cases;
(iii) the Just Energy Entities file any motion or any request for relief seeking to (x) dismiss any of the Chapter 15 Cases, (y) convert any of the Chapter 15 Cases to a case under chapter 7 of the Bankruptcy Code, or (z) appoint a trustee or examiner with expanded powers pursuant to Bankruptcy Code section 1104 in any of the Chapter 15 Cases;
(iv) the issuance by any governmental authority, including the CCAA Court or the US Bankruptcy Court, any regulatory authority, or any other court of competent jurisdiction, of any final ruling or Final Order enjoining or otherwise impeding the substantial consummation of the Restructuring on the terms and conditions set forth in this Agreement, or the Plan; provided, however, that Shell shall not have the right to terminate under this clause if the Just Energy Entities are using commercially reasonable efforts to cure, vacate, reserve, set aside, or have overruled as quickly as possible such final ruling or Final Order to obtain relief that would allow consummation of the Restructuring in a manner that (x) does not prevent or diminish in a material way compliance with the terms of this Agreement or the Plan and (y) is acceptable to Shell;
(v) a material breach by any Just Energy Entity of any representation, warranty, or covenant of such Just Energy Entity set forth in this Agreement that (to the extent curable) remains uncured for a period of ten (10) days after the receipt by the Just Energy Entities of written notice detailing such breach;
(vi) the Just Energy Entities file, propose, or otherwise support any plan of liquidation, asset sale of all or any material portion of the Just Energy Entities’ assets, or plan other than as contemplated by this Agreement that (A) materially and adversely affects the treatment or rights of Shell as compared to the treatment and rights set forth herein and (B) without the consent of Shell;
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(vii) an order is entered by the CCAA Court or the US Bankruptcy Court authorizing any party to proceed against any material asset of any of the Just Energy Entities or any assets that would materially and adversely affect the Just Energy Entities’ ability to operate their business in the ordinary course;
(viii) a failure by the Just Energy Entities to pay the fees and expenses of the Shell, including but not limited to Shell’s legal, financial, and any other advisors, as and when due pursuant to the terms of any applicable engagement letters and any applicable orders of the CCAA Court or the US Bankruptcy Court;
(ix) the entry of an order by any court of competent jurisdiction granting the relief sought in an involuntary proceeding against any entity constituting the Just Energy Entities seeking bankruptcy, winding up, dissolution, liquidation, administration, moratorium, reorganization, or other relief in respect of any entity comprising the Just Energy Entities or the Just Energy Entities’ debts, or of a substantial part of the Just Energy Entities’ assets, under any federal, state, or foreign bankruptcy, insolvency, administrative, receivership, or similar law now or hereafter in effect (provided that such involuntary proceeding is not dismissed within a period of thirty (30) days after the filing thereof);
(x) if any of the Just Energy Entities (a) consents to the institution of, or fails to contest in a timely and appropriate manner, any involuntary proceeding or petition described above, (b) applies for or consents to the appointment of a receiver, administrator, administrative receiver, trustee, custodian, sequestrator, conservator, or similar official for the Just Energy Entities or for a substantial part of the Just Energy Entities’ assets, (c) files an answer admitting the material allegations of a petition filed against it in any such proceeding, (d) makes a general assignment or arrangement for the benefit of creditors, or (e) takes any corporate action for the purpose of authorizing any of the foregoing; or
(xi) upon a filing by any of the Just Energy Entities of any motion, objection, application, or adversary proceeding challenging the validity, enforceability, perfection or priority of, or seeking avoidance, subordination, or characterization of, any portion of Shell’s or any of its affiliates’ claims against any of the Just Energy Entities, and/or the liens securing any such claims or asserting any other claim or cause of action against and/or with respect to any such claims, liens, Shell, or the agent under any of the relevant facilities (or if any Just Energy Entity files a pleading supporting any such motion, application, or adversary proceeding commenced by any third party).
(xii) The termination of this Agreement by any Party, other than a Supporting Secured CF Lender;
(xiii) any default by a Just Energy Entity in the payment of any undisputed post-Filing Date invoice owing to Shell when due and payable, provided that such amount remains unpaid for a period of three (3) days after receipt (or deemed receipt under the applicable underlying agreement) by the Just Energy Entities of written notice detailing such default (the “Cure Period”), which Cure Period is for one-time use only and shall only apply in the case of one such default;
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(xiv) the Effective Date of the Plan shall not occur by January 31, 2023 unless further extended by Shell;
(xv) upon termination of the Backstop Commitment Letter;
(xvi) upon the Just Energy Entities’ withdrawal, waiver, amendment, or modification, or the filing of (or announced intention to file) a pleading seeking to withdraw, waive, amend, or modify any of the Definitive Documents, including motions, notices, exhibits, appendices and orders, that is both not consistent in all material respects with this Agreement and not done with the consent of Shell;
(xvii) the obligations of the Company under the DIP Term Sheet are accelerated or the commitments under the DIP Term Sheet are terminated;
(xviii) upon the entry of an order by the CCAA Court or the US Bankruptcy Court (other than with respect to any action commenced by the Just Energy Entities against ERCOT) providing relief adverse to the interests of Shell with respect to any of the foregoing claims, causes of action, or proceedings, but excluding preliminary or final relief granting standing to any other party to prosecute such claims, causes of action or proceeding;
(xix) if the board of directors, board of managers, or such similar governing body of any Just Energy Entity makes the determination to proceed with, and accept, a definitive Alternative Restructuring Proposal or a definitive Superior Proposal;
(xx) the Plan Sponsor or CBHT terminates its obligations under this Agreement; or
(xxi) a Section 6 Waiver is given by the Plan Sponsor without the consent of Shell, unless such Section 6 Waiver relates exclusively to an obligation of the Just Energy Entities to the Plan Sponsor and such waiver has no direct or indirect materially adverse effect on Shell.
(g) CBHT Termination Events. CBHT, in each case, with respect solely to CBHT, shall have the right, but not the obligation, to terminate this Agreement upon delivery of written notice to the other Parties at any time after the occurrence of or during the continuation of any of the following events, unless waived in writing on a prospective or retroactive basis by CBHT (provided, however, that any such termination shall only be with respect to CBHT, this Agreement shall remain in full force and effect as to the other Parties hereto at such time, and the term “Parties” shall thereafter exclude CBHT):
(i) if the CCAA Proceedings are dismissed, terminated, stayed, modified, or converted to a proceeding under the Bankruptcy and Insolvency Act (Canada) or Winding-Up and Restructuring Act (Canada);
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(ii) if the US Bankruptcy Court enters an order (a) dismissing any of the Chapter 15 Cases, (b) converting any of the Chapter 15 Cases to a case under chapter 7 of the Bankruptcy Code, or (c) appointing a trustee or an examiner with expanded powers pursuant to Bankruptcy Code section 1104 in any of the Chapter 15 Cases;
(iii) the Just Energy Entities file any motion or any request for relief seeking to (x) dismiss any of the Chapter 15 Cases, (y) convert any of the Chapter 15 Cases to a case under chapter 7 of the Bankruptcy Code, or (z) appoint a trustee or examiner with expanded powers pursuant to Bankruptcy Code section 1104 in any of the Chapter 15 Cases;
(iv) the issuance by any governmental authority, including the CCAA Court or the US Bankruptcy Court, any regulatory authority, or any other court of competent jurisdiction, of any final ruling or Final Order enjoining or otherwise impeding the substantial consummation of the Restructuring on the terms and conditions set forth in this Agreement, or the Plan; provided, however, that CBHT shall not have the right to terminate under this clause if the Just Energy Entities are using commercially reasonable efforts to cure, vacate, reserve, set aside, or have overruled as quickly as possible such final ruling or Final Order to obtain relief that would allow consummation of the Restructuring in a manner that (x) does not prevent or diminish in a material way compliance with the terms of this Agreement or the Plan and (y) is acceptable to CBHT;
(v) a material breach by any Just Energy Entity of any representation, warranty, or covenant of such Just Energy Entity set forth in this Agreement that (to the extent curable) remains uncured for a period of ten (10) days after the receipt by the Just Energy Entities of written notice detailing such breach;
(vi) the Just Energy Entities file, propose, or otherwise support any plan of liquidation, asset sale of all or any material portion of the Just Energy Entities’ assets, or plan other than as contemplated by this Agreement that (A) materially and adversely affects the treatment or rights of CBHT as compared to the treatment and rights set forth herein and (B) without the consent of CBHT;
(vii) an order is entered by the CCAA Court or the US Bankruptcy Court authorizing any party to proceed against any material asset of any of the Just Energy Entities or any assets that would materially and adversely affect the Just Energy Entities’ ability to operate their business in the ordinary course;
(viii) a failure by the Just Energy Entities to pay the fees and expenses of CBHT, including but not limited to CBHT’s legal, financial, and any other advisors, as and when due pursuant to the terms of any applicable engagement letters and any applicable orders of the CCAA Court or the US Bankruptcy Court;
(ix) the entry of an order by any court of competent jurisdiction granting the relief sought in an involuntary proceeding against any entity constituting the Just Energy Entities seeking bankruptcy, winding up, dissolution, liquidation, administration, moratorium, reorganization, or other relief in respect of any entity comprising the Just Energy Entities or the Just Energy Entities’ debts, or of a substantial part of the Just Energy Entities’ assets, under any federal, state, or foreign bankruptcy, insolvency, administrative, receivership, or similar law now or hereafter in effect (provided that such involuntary proceeding is not dismissed within a period of thirty (30) days after the filing thereof);
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(x) if any of the Just Energy Entities (a) consents to the institution of, or fails to contest in a timely and appropriate manner, any involuntary proceeding or petition described above, (b) applies for or consents to the appointment of a receiver, administrator, administrative receiver, trustee, custodian, sequestrator, conservator, or similar official for the Just Energy Entities or for a substantial part of the Just Energy Entities’ assets, (c) files an answer admitting the material allegations of a petition filed against it in any such proceeding, (d) makes a general assignment or arrangement for the benefit of creditors, or (e) takes any corporate action for the purpose of authorizing any of the foregoing; or
(xi) upon a filing by any of the Just Energy Entities of any motion, objection, application, or adversary proceeding challenging the validity, enforceability, perfection or priority of, or seeking avoidance, subordination, or characterization of, any portion of CBHT’s or any of its affiliates’ claims against any of the Just Energy Entities, and/or the liens securing any such claims or asserting any other claim or cause of action against and/or with respect to any such claims, liens, CBHT, or the agent under any of the relevant facilities (or if any Just Energy Entity files a pleading supporting any such motion, application, or adversary proceeding commenced by any third party).
(h) Mutual Termination/Automatic Termination. This Agreement and the obligations of the Parties hereunder may be terminated by mutual written agreement by the Just Energy Entities and the Plan Sponsor. Notwithstanding anything in this Agreement to the contrary, this Agreement shall terminate automatically in respect of all Parties upon termination by the Company under Section 12(b) or upon the occurrence of the Effective Date of the Plan.
(i) Termination Generally. The earliest date on which termination of this Agreement as to a Party is effective in accordance with this Section 12 or Section 16 shall be referred to, with respect to such Party, as a “PSA Termination Date.” Upon the occurrence of a PSA Termination Date, the applicable Party’s obligations (as set forth herein) under this Agreement shall be terminated effective immediately, and such Parties or Party hereto shall be released from all commitments, undertakings, and agreements hereunder, and any vote in favor of the Plan delivered by such Party or Parties shall not be applicable to, or counted for purposes of, the Plan or any other plan or transaction without the consent of the applicable voting Party or Parties; provided, any claim for breach of this Agreement that occurs prior to such PSA Termination Date shall survive such termination, and all rights and remedies with respect to such claims shall not be prejudiced in any way. For the avoidance of doubt, the automatic stay arising pursuant to Bankruptcy Code section 362 or the stay of proceedings provided for in the Initial Order in the CCAA Proceedings or in other applicable Canadian laws shall be deemed waived or modified for purposes of providing notice or exercising rights hereunder.
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13. Transfers.
(a) Each of the Parties other than the Just Energy Entities (the “Supporting Creditors”), solely with respect to itself (as expressly identified and limited on its signature page to this Agreement or Joinder Agreement (as defined below), as applicable), shall not sell, transfer, assign, pledge, hypothecate, participate, donate, or otherwise encumber or dispose of, directly or indirectly (including through derivatives, options, swaps, pledges, forward sales, or other transactions in which any Person receives the right to own or acquire any current or future interest in) (each, a “Transfer”), or permit a Transfer of, directly or indirectly, in whole or in part, any of its Claims or, in each case, any option thereon or any right or interest therein or any other claims against the Company (including grant any proxies, deposit any Claims into a voting trust, or enter into a voting agreement with respect to any such Claims), unless the transferee thereof either (i) is a Supporting Creditor or (ii) before or contemporaneously with such Transfer, agrees in writing for the benefit of the Parties to become a Party and to be bound by all of the terms of this Agreement applicable to the Supporting Creditor who is a transferor (such Supporting Creditor, the “Transferor”), by executing a joinder agreement substantially in the form attached hereto as Exhibit E (a “Joinder Agreement”), and delivering an executed copy thereof within two (2) business days after such Transfer to (1) Kirkland & Ellis LLP (“K&E”) and Osler Hoskin Harcourt LLP (“Osler”), counsel to the Just Energy Entities, (2) Akin Gump Strauss Hauer & Feld LLP (“Akin”) and Cassels Brock & Blackwell LLP (“Cassels”), and counsel to the Plan Sponsor, and (3) McCarthy Tétrault LLP (“McCarthy”) and Chapman & Cutler LLP (“Chapman”), counsel to the Supporting Secured CF Lenders and the Credit Facility Agent ((1), (2), and (3) the “Transfer Notice Parties”) in which event (x) the transferee shall be deemed to be a Party in the same manner as the Transferor to the extent of such transferred rights and obligations and (y) the Transferor shall be deemed to relinquish its rights (and be released from its obligations) under this Agreement to the extent of such transferred rights and obligations; provided, that, failure to deliver such Joinder Agreement on a timely basis shall not by itself affect the applicable Transferor’s or transferee’s obligations under this Agreement with respect to such Claims or render the Transfer void ab initio with respect to such Claims; provided, that the failure by the Transferor to comply with the procedures set forth in this Section 13(a) with respect to a Transfer to any entity that, as of the date of such Transfer controls, is controlled by, or is under common control with the Transferor shall not, without more, constitute a breach of this Agreement if (i) the transferee provides notice of such Transfer to the Transfer Notice Parties (which may be delivered by email) promptly after such Transfer and (ii) the transferee shall be bound by all terms of this Agreement applicable to the Transferor, and deemed to be the Plan Sponsor, CBHT, Shell, a Supporting Secured CF Lender, or Supporting Unsecured Creditor, as applicable. To the extent that the Tranferor’s Claim or other securities issued by the Company may be loaned (and consequently pledged, hypothecated, encumbered, or rehypothecated by) as part of customary securities lending arrangements (each such arrangement, a “Customary Securities Lending Arrangement”), and such Customary Securities Lending Arrangement does not adversely affect the Transferor’s ability to timely satisfy any of its obligations under this Agreement, such Customary Securities Lending Arrangement shall not be deemed a Transfer hereunder. Each of the Supporting Creditors agrees that any Transfer of any Claims that does not comply with the terms and procedures set forth herein shall be deemed void ab initio, and the Just Energy Entities shall have the right to enforce the voiding of such Transfer. This Agreement shall in no way be construed to preclude any of the Supporting Creditors from acquiring additional Claims against the Just Energy Entities; provided, that, (i) any such additional Claims automatically shall be subject to all of the terms of this Agreement and (ii) such Supporting Creditor agrees (A) that such additional Claims shall be subject to this Agreement (except as expressly provided below), and (B) to notify the Transfer Notice Parties within three (3) business days following such acquisition of the aggregate amount.
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(b) Notwithstanding this Section 13, any Supporting Creditor may Transfer its Claims against the Just Energy Entities to an entity that is acting in its capacity as a Qualified Marketmaker3 without the requirement that such Qualified Marketmaker execute and deliver a Joinder Agreement in respect of such Claims against the Just Energy Entities or be a Supporting Creditor; provided, that such Qualified Marketmaker (i) subsequently Transfers such Claims against the Just Energy Entities to a transferee that is or becomes (by executing and delivering a Joinder Agreement in accordance with this Section 13) a Supporting Creditor at the time of such Transfer within the earlier of (A) ten (10) calendar days of its acquisition of such Claims and (B) if received prior to the deadline to vote on the Plan and such Claims have not yet been and may yet be voted with respect to the Restructuring, at least three (3) calendar days prior to such deadline, and (ii) if such Qualified Marketmaker fails to comply with its obligations in this Section 13, such Qualified Marketmaker shall be required to, and shall be deemed to be without further action, a Supporting Creditor hereunder solely with respect to such Claims and shall be obligated to vote such Claims in favor of the Plan; provided, that the Qualified Marketmaker shall automatically, and without further notice or action, no longer be a Supporting Creditor with respect to such Claims at such time that the transferee of such Claims becomes a Supporting Creditor with respect to such Claims. Any Transfer documentation between a transferring Supporting Creditor and the Qualified Marketmaker shall contain a requirement that the Qualified Marketmaker comply with the foregoing, which covenant will be held by the transferor for the benefit of the Just Energy Entities. To the extent any Supporting Creditor is acting in its capacity as a Qualified Marketmaker, it may Transfer any Claims that it acquires from a holder of such Claims that is not a Supporting Creditor without the requirement that the transferee be or become a Supporting Creditor. Notwithstanding anything to the contrary in this Agreement, the restrictions on Transfer in this Section 13 shall not apply to the grant of any liens or encumbrances on any Claims in favor of a bank or broker-dealer holding custody of such Claims in the ordinary course of business and which lien or encumbrance is released upon the Transfer of such Claims (which Transfer shall comply with the requirements of this Section 13).
14. Definitive Documents; Good Faith Cooperation; Further Assurances.
Each Party hereby covenants and agrees to cooperate with each other in good faith in connection with, and shall exercise commercially reasonable efforts with respect to, the pursuit, approval, implementation, and consummation of the transactions contemplated by this Agreement and the Plan as well as the negotiation, drafting, execution, and delivery of the Definitive Documents. Furthermore, subject to the terms hereof, each of the Parties shall take such action as may be reasonably necessary or reasonably requested by the other Parties to carry out the purposes and intent of this Agreement, and shall refrain from taking any action that would frustrate the purposes and intent of this Agreement subject in each case to the terms and conditions of the applicable agreements.
| 3 | A “Qualified Marketmaker” means an entity that (i) holds itself out to the public or the applicable private markets as standing ready in the ordinary course of business to purchase from customers and sell to customers Claims against the Just Energy Entities (or enter with customers into long and short positions in Claims against the Just Energy Entities), in its capacity as a dealer or market maker in Claims against the Just Energy Entities and (ii) is, in fact, regularly in the business of making a market in claims against issuers or borrowers (including debt securities or other debt). |
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15. Representations and Warranties.
(a) Each of the Parties (severally, and not jointly and severally) and in the case of the Just Energy Entities subject to the issuance of the Authorization Order represents and warrants to each other Party that the following statements are true, correct, and complete as of the date hereof (or, if later, the date that such Party first became or becomes a Party):
(i) it is validly existing and in good standing under the laws of the state or province of its incorporation or organization, and this Agreement is a legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(ii) except as expressly provided in this Agreement or otherwise required by the CCAA or the Bankruptcy Code, no material consent or approval of, or any registration or filing with, any governmental authority or regulatory body is required for it to carry out and perform its obligations under this Agreement and the Plan;
(iii) it has all requisite organizational power and authority to enter into this Agreement and to carry out the transactions contemplated by, and perform its obligations under, this Agreement and the Plan;
(iv) the execution and delivery by it of this Agreement, and the performance of its obligations hereunder, have been duly authorized by all necessary organizational action on its part;
(v) it has been represented by counsel in connection with this Agreement and the transactions contemplated by this Agreement; and
(vi) the execution, delivery, and performance by such Party of this Agreement does not and will not (x) violate any provision of law, rule, or regulation applicable to it or any of its subsidiaries or its charter or bylaws (or other similar governing documents) or those of any of its subsidiaries, (y) except as the Restructuring may constitute a “Change of Control” (as may be defined in the Credit Agreement, the Intercreditor Agreement, the existing supply agreements with Shell, and the Term Loan Agreement) or any equivalent concept under the Credit Agreement, the Intercreditor Agreement, the existing supply agreements with Shell, or the Term Loan Agreement, conflict with, result in a breach of, or constitute (with or without notice or lapse of time or both) a default under any material debt for borrowed money to which it or any of its subsidiaries is a party, or (z) violate any order, writ, injunction, decree, statute, rule, or regulation.
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(b) Each Supporting Unsecured Creditor (severally, and not jointly and severally) represents and warrants to the Just Energy Entities that, as of the date hereof (or as of the date such Supporting Unsecured Creditor becomes a Party hereto), such Supporting Unsecured Creditor (i) is or, after taking into account the settlement of any pending assignments to which such Supporting Unsecured Creditor is a party as of the date of this Agreement, will be the owner of the Claims and interests set forth below its name on the signature page hereto (or below its name on the signature page of a Joinder Agreement for any Supporting Unsecured Creditor that becomes a Party hereto after the date hereof) and/or (ii) has or, after taking into account the settlement of any pending assignments to which such Supporting Unsecured Creditor is a party as of the date of this Agreement, will have, with respect to the beneficial owner(s) of such Claims and interests, (x) sole investment or voting discretion with respect to such Claims, (y) full power and authority to vote on and consent to matters concerning such Claims and interests or to exchange, assign, and Transfer such Claims and interests, and (z) full power and authority to bind or act on the behalf of, such beneficial owner(s) and (iii) is an “accredited investor” as defined in Rule 501(a) under the Securities Act of 1933, as amended. Except for such Claims and interests set forth on its signature page, such Supporting Unsecured Creditor does not own or, with respect to any beneficial owners thereof, have any voting, investment, or other power, with respect to any other Claims or interests against the Just Energy Entities.
(c) Each Supporting Secured CF Lender (severally, and not jointly and severally) represents and warrants to the Just Energy Entities that, as of the date hereof (or as of the date such Supporting Secured CF Lender becomes a Party hereto), such Supporting Secured CF Lender is the beneficial owner of (x) the proportion of all Credit Facility Claims equal to the proportion that its commitments under the Credit Facility Agreement represents of all commitments of the Credit Facility Lenders under the Credit Facility Agreement and (y) the Credit Facility LC Claims in respect of the outstanding letters of credit issued by it pursuant to the Credit Facility Agreement as of such date, subject to the reimbursement and indemnity obligations of the other Credit Facility Lenders or Export Development Canada under the Credit Facility Documents, (the claims described in (x) and (y) being collectively, the “Supporting Secured CF Lender Specified Claims”), (ii) such Supporting Secured CF Lender has (x) sole investment or voting discretion with respect to such Supporting Secured CF Lender Specified Claims, and (y) full power and authority to vote on and consent to matters concerning such Supporting Secured CF Lender Specified Claims or to exchange, assign, and Transfer such Supporting Secured CF Lender Specified Claims, and (iii) is an “accredited investor” as defined in Rule 501(a) under the Securities Act of 1933, as amended.
(d) The Plan Sponsor represents and warrants to the Just Energy Entities that, as of the date hereof, the Plan Sponsor (i) is or, after taking into account the settlement of any pending assignments to which the Plan Sponsor is a party as of the date of this Agreement, will be the owner of the Claims and interests set forth below its name on the signature page hereto and/or (ii) has or, after taking into account the settlement of any pending assignments to which the Plan Sponsor is a party as of the date of this Agreement, will have, with respect to the beneficial owner(s) of such Claims and interests, (x) sole investment or voting discretion with respect to such Claims, (y) full power and authority to vote on and consent to matters concerning such Claims and interests or to exchange, assign, and Transfer such Claims and interests, and (z) full power and authority to bind or act on the behalf of, such beneficial owner(s) and (iii) is an “accredited investor” as defined in Rule 501(a) under the Securities Act of 1933, as amended. Except for such Claims and interests set forth on its signature page, the Plan Sponsor does not own or, with respect to any beneficial owners thereof, have any voting, investment, or other power, with respect to any other Claims or interests against the Just Energy Entities.
39
(e) CBHT represents and warrants to the Just Energy Entities that, as of the date hereof, CBHT (i) is or, after taking into account the settlement of any pending assignments to which the CBHT is a party as of the date of this Agreement, will be the owner of the Claims and interests set forth below its name on the signature page hereto and/or (ii) has or, after taking into account the settlement of any pending assignments to which CBHT is a party as of the date of this Agreement, will have, with respect to the beneficial owner(s) of such Claims and interests, (x) sole investment or voting discretion with respect to such Claims, (y) full power and authority to vote on and consent to matters concerning such Claims and interests or to exchange, assign, and Transfer such Claims and interests, and (z) full power and authority to bind or act on the behalf of, such beneficial owner(s) and (iii) is an “accredited investor” as defined in Rule 501(a) under the Securities Act of 1933, as amended. Except for such Claims and interests set forth on its signature page, CBHT does not own or, with respect to any beneficial owners thereof, have any voting, investment, or other power, with respect to any other Claims or interests against the Just Energy Entities.
(f) The Just Energy Entities represent and warrant that the only ISO Services Obligations (as defined in the Intercreditor Agreement) that were outstanding as of the Filing Date are: (i) Shell Energy ISO Reimbursement Obligations (as defined in the Intercreditor Agreement) in the aggregate amount of approximately USD$3.3 million, calculated on a gross basis (which was netted against approximately USD$11.1 million of an independent systems operator services receivable owed by Shell to the Just Energy Entities); and (ii) the applicable amount of the BP Commodity / ISO Services Claim.
16. Amendments. Except as otherwise expressly set forth herein, this Agreement (including any Exhibits and Schedules) may not be waived, modified, amended, or supplemented except in a writing signed by the Just Energy Entities and the Plan Sponsor; provided, further that any waiver, modification, amendment, or supplement that (w) adversely and disproportionately impacts the treatment or rights of any Supporting Secured CF Lender with respect to its Credit Facility Claims, Credit Facility LC Claims, Commodity Supplier Claims or Cash Management Claims or any Supporting Unsecured Creditor with respect to its Term Loan Claims (as applicable) as compared to the treatment or rights of any other Supporting Secured CF Lender or Supporting Unsecured Creditor, as the case may be, shall require the consent of such adversely and disproportionately impacted Supporting Secured CF Lender or Supporting Unsecured Creditor, (x) adversely impacts the treatment, rights, or interests of Shell, CBHT, the Supporting Secured CF Lenders or the Supporting Unsecured Creditors under or as contemplated by this Agreement (including the Exhibits and Schedules) shall require the consent of any such adversely impacted Party, (y) relates to the Plan, the New Credit Agreement or New Intercreditor Agreement shall require the consent of the Supporting Secured CF Lenders, or (z) except as otherwise provided in, or envisioned by, this Agreement as of the PSA Shell Effective Date, the PSA CBHT Effective Date, the PSA Secured CF Effective Date, or the PSA TL Effective Date, as applicable, requires Shell, CBHT, any Supporting Secured CF Lender, the Credit Facility Agent or any Supporting Unsecured Creditor to incur any expenses, liabilities, or other obligations, or agree to any commitments, undertakings, concessions, indemnities, or other arrangements that could result in expenses, liabilities, or other obligations, shall require the consent of the impacted Party; provided, further that, in the case of either (x), (y), or (z), in the event that any such Supporting Creditor whose consent is required does not consent to such waiver, change, modification, or amendment (a “Non-Supporting Creditor”), this Agreement may be terminated by such Non-Supporting Creditor (as applicable to it) upon written notice to the other Parties, but this Agreement shall continue in full force and effect in respect to all other Supporting Creditors whose consent is not required or whose consent is required and was provided.
40
17. Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to the conflicts of law principles thereof.
(b) Each Party irrevocably agrees that any legal action, suit, or proceeding arising out of or relating to this Agreement brought by any party or its successors or assigns shall be brought and determined in the CCAA Court and each Party hereby irrevocably submits to the exclusive jurisdiction of the CCAA Court and, if the CCAA Court does not have (or abstains from) jurisdiction, Courts of the Province of Ontario, and any appellate court from any thereof, for itself and with respect to its property, generally and unconditionally, with regard to any such proceeding arising out of or relating to this Agreement. Each Party further agrees that notice as provided herein shall constitute sufficient service of process and the Parties further waive any argument that such service is insufficient. Each Party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim, or otherwise, in any proceeding arising out of or relating to this Agreement, (i) any claim that it is not personally subject to the jurisdiction of the CCAA Court as described herein for any reason, (ii) that it or its property is exempt or immune from jurisdiction of such court or from any legal process commenced in such court (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and (iii) that (x) the proceeding in such court is brought in an inconvenient forum, (y) the venue of such proceeding is improper, or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such court.
(c) EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY). EACH PARTY (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
18. Specific Performance/Remedies. The Parties understand and agree that money damages would be an insufficient remedy for any breach of this Agreement by any Party and each non-breaching Party shall be entitled to specific performance and injunctive or other equitable relief (including attorneys’ fees and costs) as a remedy of any such breach, without the necessity of proving the inadequacy of money damages as a remedy. Each Party hereby waives any requirement for the security or posting of any bond in connection with such remedies.
19. Survival. Notwithstanding the termination of this Agreement pursuant to Section 12 hereof, Sections 12(h) and 16-30 shall survive such termination and shall continue in full force and effect in accordance with the terms hereof; provided, that any liability of a Party for failure to comply with the terms of this Agreement shall survive such termination.
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20. Headings. The headings of the sections, paragraphs, and subsections of this Agreement are inserted for convenience only and shall not affect the interpretation hereof or, for any purpose, be deemed a part of this Agreement.
21. Successors and Assigns; Third Parties. This Agreement is intended to bind and inure to the benefit of the Parties and their respective successors, permitted assigns, heirs, executors, administrators, and representatives. There are no third-party beneficiaries under this Agreement and, except as set forth in Section 13, the rights or obligations of any Party under this Agreement may not be assigned, delegated, or transferred to any other Person.
22. Relationship Among Parties. Notwithstanding anything herein to the contrary, the duties and obligations of the Supporting Creditors under this Agreement shall be several, not joint and several. None of the Supporting Creditors shall have any fiduciary duty, any duty of trust or confidence in any form, or other duties or responsibilities to each other, the Just Energy Entities, or any of the Just Energy Entities’ creditors, stockholders, or other stakeholders, and there are no commitments among or between the Supporting Secured CF Lenders, the Supporting Unsecured Creditors, Shell, CBHT, and/or the Plan Sponsor. It is understood and agreed that any Supporting Creditor may trade in any debt or equity securities of the Just Energy Entities without the consent of any other Party, subject to applicable securities laws and the terms of Section 13 of this Agreement. No prior history, pattern, or practice of sharing confidences among or between the Parties shall in any way affect or negate this understanding and agreement. The Parties have no agreement, arrangement, or understanding with respect to acting together for the purpose of acquiring, holding, voting, or disposing of any equity securities of the Just Energy Entities and do not constitute a “group” within the meaning of Rule 13d-5 under the Securities Act of 1933, as amended. The Just Energy Entities understand that each of the Supporting Creditors are engaged in a wide range of financial services and businesses, and, in furtherance of the foregoing, the Just Energy Entities acknowledge and agree that the obligations set forth in this Agreement (including Section 13 hereof) shall only apply to the trading desk(s) and/or business group(s) that principally manage and/or supervise such Supporting Creditor’s investment in and relations with the Just Energy Entities and shall not apply to any other trading desk, business group, or affiliate of such Supporting Creditor so long as they are not acting at the direction or for the benefit of such Supporting Creditor and so long as confidentiality is maintained consistent with any applicable confidentiality agreement.
23. Prior Negotiations; Entire Agreement. This Agreement, including the Exhibits and Schedules (including the Restructuring Term Sheet), constitutes the entire agreement of the Parties, and supersedes all other prior negotiations, with respect to the subject matter hereof and thereof.
24. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same agreement. Execution copies of this Agreement delivered by facsimile or PDF shall be deemed to be an original for the purposes of this paragraph.
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25. Notices. All notices hereunder shall be deemed given if in writing and delivered to the following:
(a) If to the Just Energy Entities, to:
Kirkland & Ellis LLP
Kirkland & Ellis International LLP
609 Main Street
Houston, Texas 77002
Attention: Brian Schartz, P.C.
[Redacted]
and
601 Lexington Avenue
New York, New York 10022
Attention: Neil E. Herman and Allyson B. Smith
[Redacted] ; [Redacted]
and
Osler, Hoskin & Harcourt LLP
P.O. Box 50, 1 First Canadian Place
Toronto, ON M5X 1B8
Attention: Marc Wasserman, Michael De Lellis, and Jeremy Dacks
[Redacted] ; [Redacted] ; [Redacted]
(b) If to the Plan Sponsor or CBHT, to:
Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, New York 10036-6745
Attention: David H. Botter, Abid Qureshi, and Anthony Loring
[Redacted] ; [Redacted] ; [Redacted]
and
2300 N. Field Street, Suite 1800
Dallas, Texas 75201
Attention: Sarah Link Schultz and Rachel Biblo Block
[Redacted] ; [Redacted]
43
and
Cassels Brock & Blackwell LLP
Scotia Plaza, Suite 2100
40 King St. W
Toronto, ON M5H 3C2
Attention: Ryan Jacobs; Jane Dietrich; Joseph Bellissimo
[Redacted] ; [Redacted] ; [Redacted]
(c) If to Shell, to:
Norton Rose Fulbright US LLP
2200 Ross Avenue, Suite 3600
Dallas, Texas 75201-7932
Attention: Ryan Manns
[Redacted]
and
Norton Rose Fulbright Canada LLP
400 3rd Avenue SW, Suite 3700
Calgary, AB T2P 4H2
Attention: Howard Gorman
[Redacted]
(d) If to a Supporting Secured CF Lender, to:
McCarthy Tétrault LLP
66 Wellington Street West
Suite 5300, TD Bank Tower Box 48
Toronto, ON M5K 1E6
Attention: Heather Meredith, James D. Gage, Justin Lapedus, D.J. Lynde
[Redacted] ; [Redacted] ; [Redacted] ; [Redacted]
and
Chapman and Cutler LLP
320 South Canal Street
Chicago, IL 60606
Attention: Stephen Tetro [Redacted]
(e) If to a Supporting Unsecured Creditor, to the address specified in the applicable Joinder Agreement.
Any notice given by delivery, mail, or courier shall be effective when received. Any notice given by electronic mail shall be effective upon confirmation of transmission.
44
26. No Solicitation; Adequate Information. This Agreement is not and shall not be deemed to be a solicitation of votes on the Plan or any plan. The votes of the holders of Claims against the Just Energy Entities will not be solicited until such holders who are entitled to vote on the Plan have received the required Solicitation Materials. In addition, this Agreement does not constitute an offer to issue or sell securities to any Person, or the solicitation of an offer to acquire or buy securities, in any jurisdiction where such offer or solicitation would be unlawful.
27. Severability. If any provision of this Agreement, or the application of any such provision to any Person or circumstance, shall be held invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision hereof and this Agreement shall continue in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.
28. Interpretation; Rules of Construction; Representation by Counsel. When a reference is made in this Agreement to a Section, Exhibit, or Schedule, such reference shall be to a Section, Exhibit, or Schedule, respectively, of or attached to this Agreement unless otherwise indicated. Unless the context of this Agreement otherwise requires, (a) words using the singular or plural number also include the plural or singular number, respectively, (b) the terms “hereof,” “herein,” “hereby,” and derivative or similar words refer to this entire Agreement, (c) the words “include,” “includes,” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation,” and (d) the word “or” shall not be exclusive and shall be read to mean “and/or.” The Parties agree that they have been represented by legal counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any law, regulation, holding, or rule of construction providing that ambiguities in an agreement or other document shall be construed against the party drafting such agreement or document.
29. Reliance and Authority.
(a) Plan Sponsor. Any provision of this Agreement that requires or contemplates the approval, agreement, consent, or waiver of the Plan Sponsor shall be effective if, and only if, such approval, agreement, consent, or waiver is provided in writing and agreed to by the majority of the parties composing the Plan Sponsor, and any Party shall be entitled to rely on written confirmation (including by email) from Akin or Cassels that the Plan Sponsor has approved, agreed, consent to, or waived a particular matter.
(b) Just Energy Entities. With respect to any provision of this Agreement that requires or contemplates the approval, agreement, consent, or waiver of the Just Energy Entities, each Party shall be entitled to rely on written confirmation (including by email) from K&E or Osler that the Just Energy Entities have approved, agreed, consent to, or waived a particular matter.
(c) Supporting Secured CF Lenders. With respect to any provision of this Agreement that requires or contemplates the approval, agreement, consent, or waiver of the Supporting Secured CF Lenders or the Requisite Supporting Secured CF Lenders, each Party shall be entitled to rely on written confirmation (including by email) from McCarthy or Chapman that the Supporting Secured CF Lenders or the Requisite Supporting Secured CF Lenders have approved, agreed, consent to, or waived a particular matter.
45
(d) Supporting Unsecured Creditors. With respect to any provision of this Agreement that requires or contemplates the approval, agreement, consent, or waiver of the Supporting Unsecured Creditors or the Requisite Supporting Unsecured Creditors, each Party shall be entitled to rely on written confirmation (including by email) from counsel to the Supporting Unsecured Creditors that the Supporting Unsecured Creditors or the Requisite Supporting Unsecured Creditors have approved, agreed, consent to, or waived a particular matter.
(e) Shell. With respect to any provision of this Agreement that requires or contemplates the approval, agreement, consent, or waiver of Shell, each Party shall be entitled to rely on written confirmation (including by email) from counsel to Shell that Shell has approved, agreed, consent to, or waived a particular matter.
(f) CBHT. With respect to any provision of this Agreement that requires or contemplates the approval, agreement, consent, or waiver of CBHT, each Party shall be entitled to rely on written confirmation (including by email) from counsel to CBHT that CBHT has approved, agreed, consent to, or waived a particular matter.
30. Settlement Discussions. This Agreement is part of a proposed settlement of matters that could otherwise be the subject of litigation among the Parties. Nothing in this Agreement shall be deemed an admission of any kind. Pursuant to Federal Rule of Evidence 408 and any Canadian law equivalent, any applicable state rules of evidence, and any other applicable law, foreign or domestic, this Agreement, and all negotiations relating thereto shall not be admissible into evidence in any proceeding other than to prove the existence of this Agreement or in a proceeding to enforce the terms of this Agreement.
[Signature pages follow.]
46
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their respective duly authorized officers, solely in their respective capacities as officers of the undersigned and not in any other capacity, as of the date first set forth above.
| COMPANY: | ||
| JUST ENERGY ONTARIO L.P., by its | ||
| general partner, | ||
| JUST ENERGY CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Partnership. | ||
| JUST ENERGY (U.S.) CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
[Signature Page to Plan Support Agreement]
| JUST ENERGY GROUP INC. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
| JUST ENERGY, LLC | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Limited Liability Company. | ||
| JUST ENERGY CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
[Signature Page to Plan Support Agreement]
| ONTARIO ENERGY COMMODITIES INC. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
| JUST ENERGY MANITOBA L.P., by its | ||
| general partner, | ||
| JUST ENERGY CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Partnership. | ||
| JUST ENERGY (B.C.) LIMITED | ||
| PARTNERSHIP, by its general partner, | ||
| JUST ENERGY CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Partnership. | ||
[Signature Page to Plan Support Agreement]
| JUST ENERGY QUÉBEC L.P., by its | ||
| general partner, | ||
| JUST ENERGY CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Partnership. | ||
| JUST ENERGY TRADING L.P., by its | ||
| general partner, | ||
| JUST ENERGY CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Partnership. | ||
| JUST ENERGY ALBERTA L.P., by its | ||
| general partner, | ||
| JUST ENERGY CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Partnership. | ||
[Signature Page to Plan Support Agreement]
| UNIVERSAL ENERGY CORPORATION | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
| JUST ENERGY FINANCE CANADA ULC | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
| HUDSON ENERGY CANADA CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
[Signature Page to Plan Support Agreement]
| JUST GREEN L.P., by its general partner, | ||
| JUST ENERGY CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Partnership. | ||
| JUST ENERGY PRAIRIES L.P., by its | ||
| general partner, | ||
| JUST ENERGY CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Partnership. | ||
| JUST MANAGEMENT CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
[Signature Page to Plan Support Agreement]
| JUST ENERGY ADVANCED SOLUTIONS CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
| JUST ENERGY FINANCE HOLDING INC. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
| 11929747 CANADA INC. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
[Signature Page to Plan Support Agreement]
| 12175592 CANADA INC. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
| JE SERVICES HOLDCO INC. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
| JE SERVICES HOLDCO II INC. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
[Signature Page to Plan Support Agreement]
| 8704104 CANADA INC. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
| JUST ENERGY ILLINOIS CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
| JUST ENERGY INDIANA CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
[Signature Page to Plan Support Agreement]
| JUST ENERGY MASSACHUSETTS CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
| JUST ENERGY NEW YORK CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
| JUST ENERGY TEXAS I CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
[Signature Page to Plan Support Agreement]
| JUST ENERGY TEXAS LP, by its general partner, | ||
| JUST ENERGY, LLC | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Partnership. | ||
| JUST ENERGY PENNSYLVANIA CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
| JUST ENERGY MICHIGAN CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
[Signature Page to Plan Support Agreement]
| JUST ENERGY SOLUTIONS INC. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
| HUDSON ENERGY SERVICES LLC | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Limited Liability Company. | ||
| HUDSON ENERGY CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
[Signature Page to Plan Support Agreement]
| INTERACTIVE ENERGY GROUP LLC | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Limited Liability Company. | ||
| HUDSON PARENT HOLDINGS LLC | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Limited Liability Company. | ||
| DRAG MARKETING LLC | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Limited Liability Company. | ||
[Signature Page to Plan Support Agreement]
| JUST ENERGY ADVANCED SOLUTIONS LLC | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Limited Liability Company. | ||
| FULCRUM RETAIL ENERGY LLC | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Limited Liability Company. | ||
| FULCRUM RETAIL HOLDINGS LLC | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Limited Liability Company. | ||
[Signature Page to Plan Support Agreement]
| TARA ENERGY, LLC | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Limited Liability Company. | ||
| JUST ENERGY MARKETING CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
| JUST ENERGY CONNECTICUT CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
[Signature Page to Plan Support Agreement]
| JUST ENERGY LIMITED | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
| JUST SOLAR HOLDINGS CORP. | ||
| By: | (signed) “Michael Carter” | |
| Name: | Michael Carter | |
| Title: | Chief Financial Officer | |
| By: | (signed) “Jonah Davids” | |
| Name: | Jonah Davids | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
| We have the authority to bind the Corporation. | ||
[Signature Page to Plan Support Agreement]
| JEBPO SERVICES LLP | ||
| By: | (signed) “Scott Fordham” | |
| Name: | Scott Fordham | |
| Title: | Designated Partner | |
| By: | (signed) “Sudheendrah Vasudeva” | |
| Name: | Sudheendrah Vasudeva | |
| Title: | Designated Partner | |
| We have the authority to bind the Partnership. | ||
[Signature Page to Plan Support Agreement]
| JUST ENERGY (FINANCE) | ||
| HUNGARY ZRT. “u.d.” | ||
| By: | (signed) “Zita Tarjányi” | |
| Name: | Zita Tarjányi | |
| Title: | Liquidator | |
| I have the authority to bind the Corporation. | ||
[Signature Page to Plan Support Agreement]
| LVS III SPE XV LP | ||
| By: | [Redacted] | |
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| Address: | [Redacted] | |
| Principal Amount of Credit Facility Claims: $ | [Redacted] |
| Principal Amount of Term Loan Claims: $ | [Redacted] |
| Principal Amount of Other Claims: $ | [Redacted] |
| Interests: | [Redacted] |
[Signature Page to Plan Support Agreement]
| TOCU XVII LLC | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| Address: | [Redacted] | |
| Principal Amount of Credit Facility Claims: $ | [Redacted] |
| Principal Amount of Term Loan Claims: $ | [Redacted] |
| Principal Amount of Other Claims: $ | [Redacted] |
| Interests: | [Redacted] |
[Signature Page to Plan Support Agreement]
| HVS XVI LLC | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| Address: | [Redacted] | |
| Principal Amount of Credit Facility Claims: $ | [Redacted] |
| Principal Amount of Term Loan Claims: $ | [Redacted] |
| Principal Amount of Other Claims: $ | [Redacted] |
| Interests: | [Redacted] |
[Signature Page to Plan Support Agreement]
| OC II LVS XIV LP | ||
| By: | [Redacted] | |
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| Address: | [Redacted] | |
| Principal Amount of Credit Facility Claims: $ | [Redacted] |
| Principal Amount of Term Loan Claims: $ | [Redacted] |
| Principal Amount of Other Claims: $ | [Redacted] |
| Interests: | [Redacted] |
[Signature Page to Plan Support Agreement]
| OC III LFE I LP | ||
| By: | [Redacted] | |
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| Address: | [Redacted] | |
| Principal Amount of Credit Facility Claims: $ | [Redacted] |
| Principal Amount of Term Loan Claims: $ | [Redacted] |
| Principal Amount of Other Claims: $ | [Redacted] |
| Interests: | [Redacted] |
[Signature Page to Plan Support Agreement]
| NATIONAL BANK OF CANADA, | ||
| as Credit Facility Agent | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
[Signature Page to Plan Support Agreement]
| NATIONAL BANK OF CANADA, | ||
| as Supporting Secured CF Lender | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
[Signature Page to Plan Support Agreement]
| CANADIAN IMPERIAL BANK OF COMMERCE, | ||
| as Supporting Secured CF Lender | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
[Signature Page to Plan Support Agreement]
| CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH, | ||
| as Supporting Secured CF Lender | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
[Signature Page to Plan Support Agreement]
| ATB FINANCIAL, | ||
| as Supporting Secured CF Lender | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
[Signature Page to Plan Support Agreement]
| HSBC BANK CANADA, | ||
| as Supporting Secured CF Lender | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
[Signature Page to Plan Support Agreement]
| CANADIAN WESTERN BANK, as | ||
| Supporting Secured CF Lender | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
[Signature Page to Plan Support Agreement]
| JPMORGAN CHASE BANK, N.A., | ||
| as Supporting Secured CF Lender | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
[Signature Page to Plan Support Agreement]
| MORGAN STANLEY SENIOR FUNDING, INC., on behalf of its Special Assets Oversight Team as Supporting CF Secured Lender, and not on behalf of any of its other business units or teams or those of its affiliates | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
[Signature Page to Plan Support Agreement]
| SHELL ENERGY NORTH AMERICA (CANADA) INC. | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| SHELL ENERGY NORTH AMERICA (US) L.P. | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
[Signature Page to Plan Support Agreement]
| CBHT ENERGY I LLC | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| Principal Amount of Credit Facility Claims: $ | [Redacted] |
| Principal Amount of Term Loan Claims: $ | [Redacted] |
| Principal Amount of Other Claims: $ | [Redacted] |
| Interests: | [Redacted] |
[Signature Page to Plan Support Agreement]
Exhibit A
| DEFINED TERMS | |
| “Accepted Claim” | has the meaning given to it in the Plan. |
| “Affected Claim” | has the meaning given to it in the Plan. |
| “Affected Creditor” | has the meaning given to it in the Plan. |
| “Alternative Restructuring Proposal” | means any inquiry, proposal, offer, expression of interest, bid, term sheet, discussion, or agreement with respect to a sale, disposition, new-money investment, restructuring, reorganization, merger, amalgamation, acquisition, consolidation, dissolution, debt investment, equity investment, liquidation, tender offer, recapitalization, plan of reorganization, share exchange, business combination, or similar transaction involving any one or more Just Energy Entity, one or more Just Energy Entity’s material assets, or the debt, equity, or other interests in any one or more Just Energy Entity that is an alternative to or otherwise inconsistent with the Restructuring. |
| “Authorized Authority” | means, in relation to any Person, property, transaction, event, or other matter, as applicable, any: (i) federal, provincial, territorial, state, municipal, or local governmental body (whether administrative, legislative, executive or otherwise), both domestic and foreign; (ii) agency, authority, commission, instrumentality, regulatory body, court, or other entity exercising executive, legislative, judicial, taxing, regulatory, or administrative powers or functions of or pertaining to government, including any Taxing Authority; (iii) court, arbitrator, commission, or body exercising judicial, quasi-judicial, administrative, or similar functions, including the CCAA Court and the US Bankruptcy Court; or (iv) other body or entity created under the authority of or otherwise subject to the jurisdiction of any of the foregoing, including any stock or other securities exchange, in each case having jurisdiction over such Person, property, transaction, event, or other matter. |
| “Authorization Order” | has the meaning given to it in the Plan. |
| DEFINED TERMS | |
| “Authorization Recognition Order” | has the meaning given to it in the Plan. |
| “Backstop Commitment Fee Share” | has the meaning given to it in the Backstop Commitment Letter. |
| “BP Commodity / ISO Services Claim” | has the meaning given to it in the Plan. |
| “Claim” | has the meaning given to it in the Claims Procedure Order. |
| “Claims Procedure Order” | has the meaning given to it in the Plan. |
| “Claims Procedure Recognition Order” | has the meaning given to it in the Plan. |
| “Class” | has the meaning given to it in the Plan. |
| “Commodity Agreement” | has the meaning given to it in the Plan. |
| “Commodity Supplier” | has the meaning given to it in the Plan. |
| “Commodity Supplier Claims” | has the meaning given to it in the Plan. |
| “Common Shares” | has the meaning given to it in the Plan. |
| “Credit Agreement” | has the meaning given to it in the Plan. |
| “Credit Facility Agent” | has the meaning given to it in the Plan. |
2
| DEFINED TERMS | |
| “Credit Facility Claim” | has the meaning given to it in the Plan. |
| “Credit Facility Documents” | has the meaning given to it in the Plan. |
| “Credit Facility LC Claim” | has the meaning given to it in the Plan. |
| “Credit Facility Lenders” | has the meaning given to it in the Plan. |
| “Creditor” | has the meaning given to it in the Plan. |
| “DIP Lenders” | has the meaning given to it in the Plan. |
| “Distribution Election” | has the meaning given to it in the Plan. |
| “Distribution Election Amount” | has the meaning given to it in the Plan. |
| “Distribution Election Deadline” | has the meaning given to such term in the Meetings Order. |
| “Distribution Election Notice” | has the meaning given to it in the Plan. |
| “Effective Date” | has the meaning given to it in the Plan. |
| “Equity Claim” | has the meaning given to it in the Plan. |
3
| DEFINED TERMS | |
| “Existing Shares” | means (i) all Common Shares issued and outstanding immediately prior to the Effective Time and (ii) all options, warrants, rights, or similar instruments derived from, relating to, or exercisable, convertible, or exchangeable therefor, in each case that are issued and outstanding immediately prior to the Effective Time, but, for greater certainty, in each case excluding the New Shares. |
| “Final Order” | has the meaning given to it in the Plan. |
| “General Unsecured Creditor” | has the meaning given to it in the Plan. |
| “General Unsecured Creditor Claim” | has the meaning given to it in the Plan. |
| “Initial Order” | has the meaning given to it in the Plan. |
| “Intercompany Claim” | has the meaning given to it in the Plan. |
| “Intercreditor Agreement” | has the meaning given to it in the Plan. |
| “Meetings” | means the meetings of each Class of Affected Creditors called for the purposes of considering and voting in respect of the Plan, as set out in and held pursuant to the Meetings Order, and includes any postponements or adjournments thereof and which may be held in virtual only format. |
| “Meetings Order” | has the meaning given to it in the Plan. |
| “Meetings Recognition Order” | has the meaning given to it in the Plan. |
| “Monitor” | has the meaning given to it in the Plan. |
4
| DEFINED TERMS | |
| “New Board” | means the board of directors of New Just Energy Parent to be appointed on the Effective Date in accordance with the Plan and the Restructuring Term Sheet. |
| “New Common Shares” | has the meaning given to it in the Plan. |
| “New Corporate Governance Documents” | has the meaning given to it in the Plan. |
| “New Credit Agreement” | has the meaning given to it in the Plan. |
| “New Credit Facility” | has the meaning given to it in the Plan. |
| “New Credit Facility Documents” | has the meaning given to it in the Plan. |
| “New Credit Facility Lenders” | has the meaning given to it in the Plan. |
| “New Credit Facility Letters of Credit” | has the meaning given to it in the Plan. |
| “New Intercreditor Agreement” | has the meaning given to it in the Plan. |
| “New Just Energy Parent” | has the meaning given to it in the Plan. |
| “New Preferred Shares” | has the meaning given to it in the Plan. |
| “New Shares” | has the meaning given to it in the Plan. |
5
| DEFINED TERMS | |
| “Person” | shall be broadly interpreted and includes an individual, partnership, firm, joint venture, venture capital fund, limited liability company, unlimited liability company, association, trust, entity, corporation, unincorporated association, or organization, syndicate, committee, court appointed representative, the government of a country or any political subdivision thereof, or any agency, board, tribunal, commission, bureau, instrumentality, or department of such government or political subdivision, or any other entity, howsoever designated or constituted, including any Taxing Authority, and the trustees, executors, administrators, or other legal representatives of an individual, and for greater certainty includes any Authorized Authority. |
| “Plan Implementation Fund” | has the meaning given to it in the Plan. |
| “Pre-Filing Claims” | has the meaning given to it in the Claims Procedure Order. |
| “Priority Commodity/ISO Obligation” | has the meaning given to it in the Initial Order. |
| “Sanction Order” | has the meaning given to it in the Plan. |
| “Sanction Recognition Order” | has the meaning given to it in the Plan. |
| “Subordinated Note Claim” | has the meaning given to it in the Plan. |
| “Subordinated Note Documents” | means, collectively, the Subordinated Note Indenture and all related documentation. |
| “Subordinated Note Indenture” | has the meaning given to it in the Plan. |
| “Subordinated Notes” | means the subordinated notes issued by Just Energy Group Inc. pursuant to the Subordinated Note Indenture. |
| “Taxing Authority” | has the meaning given to it in the Plan. |
6
| DEFINED TERMS | |
| “Term Loan Agent” | has the meaning given to it in the Plan. |
| “Term Loan Agreement” | has the meaning given to it in the Plan. |
| “Unaffected Claim” | has the meaning given to it in the Plan. |
| “US Bankruptcy Rules” | has the meaning given to it in the Plan. |
7
EXHIBIT B
EXHIBIT C
Restructuring Term Sheet
JUST ENERGY GROUP INC., ET AL.
RESTRUCTURING TERM SHEET
May 12, 2022
This restructuring term sheet (this “Restructuring Term Sheet”) presents the principal terms of a proposed restructuring (the “Restructuring”) and certain related transactions (collectively, the “Restructuring Transactions”) concerning Just Energy Group Inc. (“Just Energy”) and the other entities composing the “Just Energy Entities” (as defined below). The Restructuring will be implemented pursuant to (i) a plan of compromise and arrangement (the “Plan”) containing the terms set forth herein and acceptable to the Just Energy Entities, the Plan Sponsor and the Credit Facility Lenders, each acting reasonably, and in the form attached to the Support Agreement (as defined below) to be (a) sanctioned by the Ontario Superior Court of Justice (Commercial List) in the proceedings commenced by Just Energy and certain of the Just Energy Entities under the Companies’ Creditors Arrangement Act (as amended, the “CCAA”) on March 9, 2021 (the “Filing Date”) and (b) recognized and enforced by the United States Bankruptcy Court for the Southern District of Texas, Houston Division in the cases commenced by the foreign representative for certain of the Just Energy Entities under chapter 15 of title 11 of the United States Code on the Filing Date; (ii) the Plan Support Agreement entered into on the date hereof, by and among the Just Energy Entities, the Plan Sponsor, and the other parties signatory thereto (as amended, supplemented, or otherwise modified from time to time, the “Support Agreement”); and (iii) a backstop commitment letter entered into on the date hereof (as amended, supplemented, or otherwise modified from time to time, the “Backstop Agreement”). Capitalized terms used but not otherwise defined herein will have the meanings ascribed to such terms in the Support Agreement.
THIS RESTRUCTURING TERM SHEET DOES NOT CONSTITUTE (NOR WILL IT BE CONSTRUED AS) AN OFFER WITH RESPECT TO ANY SECURITIES OR A SOLICITATION OF ACCEPTANCES OR REJECTIONS AS TO ANY PLAN, IT BEING UNDERSTOOD THAT SUCH AN OFFER, IF ANY, ONLY WILL BE MADE IN COMPLIANCE WITH APPLICABLE PROVISIONS OF SECURITIES, BANKRUPTCY, AND/OR OTHER APPLICABLE LAWS.
THIS RESTRUCTURING TERM SHEET DOES NOT PURPORT TO SUMMARIZE ALL OF THE TERMS, CONDITIONS, REPRESENTATIONS, WARRANTIES, AND OTHER PROVISIONS WITH RESPECT TO THE TRANSACTIONS DESCRIBED HEREIN, WHICH TRANSACTIONS WILL BE SUBJECT TO THE COMPLETION OF DEFINITIVE DOCUMENTS CONSISTENT WITH THE TERMS SET FORTH HEREIN. THE IMPLEMENTATION OF THE PLAN AND THE CLOSING OF ANY TRANSACTION WILL BE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN SUCH DEFINITIVE DOCUMENTS. EXCEPT AS SET FORTH IN THE SUPPORT AGREEMENT, NO BINDING OBLIGATIONS WILL BE CREATED BY THIS RESTRUCTURING TERM SHEET UNLESS AND UNTIL BINDING DEFINITIVE DOCUMENTS ARE EXECUTED AND DELIVERED BY ALL APPLICABLE PARTIES.
| RESTRUCTURING TERM SHEET1 | |
| Just Energy Entities: | Just Energy, Just Energy Corp., Ontario Energy Commodities Inc., Universal Energy Corporation, Just Energy Finance Canada ULC, Hudson Energy Canada Corp., Just Management Corp., 11929747 Canada Inc., 12175592 Canada Inc., JE Services Holdco I Inc., JE Services Holdco II Inc., 8704104 Canada Inc., Just Energy Advanced Solutions Corp., Just Energy (U.S.) Corp., Just Energy Illinois Corp., Just Energy Indiana Corp., Just Energy Massachusetts Corp., Just Energy New York Corp., Just Energy Texas I Corp., Just Energy, LLC, Just Energy Pennsylvania Corp., Just Energy Michigan Corp., Just Energy Solutions Inc., Hudson Energy Services LLC, Hudson Energy Corp., Interactive Energy Group LLC, Hudson Parent Holdings LLC, Drag Marketing LLC, Just Energy Advanced Solutions LLC, Fulcrum Retail Energy LLC, Fulcrum Retail Holdings LLC, Tara Energy, LLC, Just Energy Marketing Corp., Just Energy Connecticut Corp., Just Energy Limited, Just Solar Holdings Corp., Just Energy (Finance) Hungary Zrt., Just Energy Ontario L.P., Just Energy Manitoba L.P., Just Energy (B.C.) Limited Partnership, Just Energy Québec L.P., Just Energy Trading L.P., Just Energy Alberta L.P., Just Green L.P., Just Energy Prairies L.P., JEBPO Services LLP, and Just Energy Texas LP (collectively, the “Just Energy Entities”) |
| Plan Sponsor: | LVS III SPE XV LP, TOCU XVII LLC, HVS XVI LLC, OC II LVS XIV LP, and OC III LFE I LP (collectively, the “Plan Sponsor”) |
| RESTRUCTURING TRANSACTIONS Overview | |
| The Restructuring: | The Restructuring Transactions shall include, as set forth below, among other things:
· A reorganization of the Just Energy Entities such that upon implementation of the Plan, an entity organized in the United States (“New Just Energy Parent”), which may be an existing Just Energy Entity, including Just Energy (U.S.) Corp. or a newly formed entity (in each case, acceptable to the Plan Sponsor), shall be the ultimate parent of the Just Energy Entities. New Just Energy Parent shall be a private (not-public) company, and as of the Effective Date, no Just Energy Entity shall be a reporting issuer in Canada, and New Just Energy Parent shall be the issuer of the New Preferred Shares and the New Common Shares issued pursuant to the Plan (as described herein);
· Entry into the New Credit Agreement;
· Entry into the New Intercreditor Agreement;
· A rights offering for the issuance of the New Common Shares as described herein, which rights offering shall provide a portion of the cash consideration necessary to implement the Plan (the “New Equity Offering”), and the New Equity Offering shall be backstopped by the Plan Sponsor and other participating beneficial holders of the Term Loan Claim pursuant to the terms of the Backstop Agreement;
· All of the Unaffected Claims against the Just Energy Entities shall be addressed as set forth in the Plan;
· All of the secured and unsecured Affected Claims against the Just Energy Entities shall be compromised and extinguished in exchange for the consideration provided for, and in accordance with the terms set forth in, the Plan; and
· All Existing Shares and Equity Claims (excluding the rights and claims of the Credit Facility Lenders and the Credit Facility Agent pursuant to the Credit Facility Documents) shall be cancelled or acquired for no consideration.
|
| 1 | Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Support Agreement or the Plan, as applicable. |
2
| New Credit Facility: | On the Effective Date, the Credit Facility Lenders, the Credit Facility Agent, and Just Energy Ontario L.P. and Just Energy (U.S.) Corp., as borrowers, will enter into a tenth amended and restated credit agreement (the “New Credit Agreement”), which will amend and restate the existing ninth amended and restated credit agreement on the terms and conditions set forth in Exhibit 1 hereto (the “New Credit Facility Term Sheet”). |
| New Preferred Shares: | On the Effective Date, New Just Energy Parent will issue to the beneficial holder(s) of the BP Commodity/ISO Services Claim a new class of preferred equity on the terms and conditions set forth in Exhibit 2 (the “New Preferred Shares Term Sheet”). |
| New Common Shares and Backstop Agreement: | On the Effective Date, New Just Energy Parent will issue the New Common Shares, in such aggregate number as determined by the Plan Sponsor, on the terms and conditions set forth in the Plan and the Backstop Agreement, which is attached to the Support Agreement as Exhibit D thereto. |
| TREATMENT OF CLAIMS AND INTERESTS | |
| UNAFFECTED / NON-VOTING CLAIMS | |
| DIP Lenders’ Claim: | On the Effective Date, the Just Energy Entities shall pay to the DIP Agent an amount equal to the DIP Lenders’ Claim in full satisfaction of such claim. |
| Commodity Supplier Claims: | On the Effective Date, the Just Energy Entities shall pay each Commodity Supplier an amount equal to such Commodity Supplier’s Commodity Supplier Claim that is an Accepted Claim in full satisfaction of such claims. |
| Intercompany Claims: | On the Effective Date, Intercompany Claims shall be addressed in accordance with the Plan. |
| BP Commodity/ISO Services Claims: | On or as soon as practicable following the Effective Date, New Just Energy Parent shall issue to the beneficial holder(s) of the BP Commodity/ISO Services Claims 100% of the New Preferred Shares in full satisfaction of such claims. |
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| AFFECTED / VOTING CLAIMS | |
| Credit Facility Claims: | On the Effective Date, in full and final satisfaction of the Credit Facility Claim (less the Credit Facility Remaining Debt, if any), the Just Energy Entities shall pay, or shall cause to be paid, to the Credit Facility Agent, an amount equal to the Credit Facility Claim (less the Credit Facility Remaining Debt, if any), in full in cash in the currency that such Credit Facility Claim was originally denominated in full and final satisfaction of the Credit Facility Claim (less the Credit Facility Remaining Debt, if any), but in all cases in accordance with the Plan.
The claims of any Credit Facility Lender relating to any letter of credit issued but undrawn under the Credit Facility Documents immediately prior to the Effective Time (the “Credit Facility LC Claims”) will be treated as unaffected claims, and on the Effective Date, any letters of credit issued by a Credit Facility Lender pursuant to the Credit Agreement shall continue under the New Credit Agreement or be discharged and, if required, replaced with new letters of credit issued under the New Credit Agreement, unless otherwise agreed to by the applicable Credit Facility Lender and the Just Energy Entities, with the consent of the Plan Sponsor.
|
| Unsecured Claims (including the Term Loan Claims, Convenience Claims, General Unsecured Creditor Claims, and Subordinated Note Claims): | Term Loan Claims: On the Effective Date, in full satisfaction of its Term Loan Claims, each beneficial holder of a Term Loan Claim shall receive its Pro Rata Share2 of 10% of the total New Common Shares, subject to dilution by the equity issued or issuable pursuant to the MIP.
Convenience Claims: On or as soon as practicable following the Effective Date, the Monitor, on behalf of the Just Energy Entities, shall pay in full each General Unsecured Creditor (other than beneficial holders of the Term Loan Claim or Subordinated Note Claim) that has an Accepted Claim in an amount equal to or less than CAD $1,500 (a “Convenience Claim”) or who has elected to have its eligible General Unsecured Creditor Claim treated as a Convenience Claim from the Convenience Cash Pool, which is taken from the General Unsecured Creditor Cash Pool (each as defined in the Plan) in full satisfaction of such Accepted Claims.
General Unsecured Creditor Claims: The Monitor, on behalf of the Just Energy Entities, shall pay each General Unsecured Creditor with an Accepted Claim, and who is not deemed or has not elected to have its eligible General Unsecured Creditor Claim treated as a Convenience Claim, its Pro Rata Share3 of the General Unsecured Creditor Cash Pool, after paying all Convenience Claims, in full satisfaction of such Accepted Claims. The Monitor may, but shall not be obligated to, make any distribution to the General Unsecured Creditors before all Disputed Claims have been finally resolved for distribution purposes in accordance with the Claims Procedure Order or further Order of the Court in the CCAA Proceeding or the U.S. Court in the Chapter 15 Proceeding.
The General Unsecured Creditor Cash Pool shall be funded in the aggregate amount of CAD $10 million.
Subordinated Note Claims: Each beneficial holder of a Subordinated Note Claim with an Accepted Claim shall receive its Pro Rata Share4 of the General Unsecured Creditor Cash Pool from the Plan Implementation Fund, in full satisfaction of such Accepted Claim, in each case, subject to the terms of the Subordinated Note Indenture and all related obligations thereunder. For the avoidance of doubt, the Monitor shall not make any distribution to the beneficial holder of a Subordinated Note Claim until all parties entitled to turnover of any such distribution pursuant to the terms of the Subordinated Note Indenture and the Plan have been paid in full. Instead, the Monitor shall distribute such distributions pursuant to and in accordance with the terms set forth in the Plan.
Disputed Claims: Distributions to holders of Disputed Claims that become Accepted Claims following the Effective Date shall be made from time to time by the Monitor from the General Unsecured Creditor Cash Pool in accordance with provisions to be set out in the Plan.
|
| 2 | As used herein with respect to the Term Loan Claims, “Pro Rata Share” means the proportionate share of a Term Loan Lender’s Term Loan Claim that is an Accepted Claim to the total of all Term Loan Claims that are Accepted Claims. |
| 3 | As used herein with respect to the General Unsecured Claims, “Pro Rata Share” means the proportionate share of a General Unsecured Creditor’s General Unsecured Creditor Claim that is an Accepted Claim to the total of all General Unsecured Creditor Claims that are Accepted Claims and Disputed Claims. |
| 4 | As used herein with respect to the Subordinated Note Claims, “Pro Rata Share” means the proportionate share of Subordinated Note Claims held by a holder of such notes to the total amount of all the Subordinated Note Claims. |
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| EQUITY / NON-VOTING | |
| Existing Shares and Equity Claims: | Holders of Equity Claims and/or Existing Shares shall not receive any distribution under the Plan on account of their Existing Shares and/or Equity Claims, which shall be cancelled as of the Effective Date without return of capital or other payment. |
| NEW EQUITY OFFERING | |
| New Equity Offering: | On the Effective Date, in exchange for a new money investment of USD $192,550,000, 80% of the New Common Shares in New Just Energy Parent, subject to dilution by the equity issued or issuable pursuant to the MIP, shall be issued through the New Equity Offering (including the backstop thereof by the applicable Backstop Parties (as defined in the Backstop Agreement) but excluding the Backstop Commitment Fee Shares). Participation in the New Equity Offering shall be open to the beneficial holders of the Term Loan Claims and allocated to such holders on a pro rata basis.
The New Equity Offering will be backstopped by the Plan Sponsor and the other applicable Backstop Parties, pursuant to the terms of the Backstop Agreement.
|
| OTHER PROVISIONS | |
| Administrative Expense Reserve: | The Plan will provide for a CAD $1.9 million administrative expense reserve (the “Administrative Expense Reserve”) funded to the Monitor on the Effective Date to be used by the Monitor to pay the reasonable and documented fees and disbursements for any necessary post-Effective Date services incurred by the Monitor and its advisors. Any unused portion of the Administrative Expense Reserve shall be transferred to New Just Energy Parent. |
| Corporate Governance Generally: | The material terms in respect of the corporate governance of New Just Energy Parent will be as set forth in the Corporate Governance Term Sheet for New Just Energy Parent attached hereto as Exhibit 3 (the “Corporate Governance Term Sheet”). |
| Board of Directors: | As set forth in the Corporate Governance Term Sheet, the New Corporate Governance Documents will provide that the initial board of directors, board of managers, or such similar governing body of New Just Energy Parent will consist of five (5) members selected by the Plan Sponsor. |
| Charter, By-Laws and Organizational Documents: | The New Corporate Governance Documents will include the terms set forth in the Corporate Governance Term Sheet, be in form and substance acceptable to the Plan Sponsor, acting reasonably, and become effective as of the Effective Date. |
| Management Incentive Plan: | The material terms in respect of a post-emergence management incentive plan (the “MIP”) will be as set forth in the management incentive plan term sheet for New Just Energy Parent attached hereto as Exhibit 4. |
| New Intercreditor Agreement: | A seventh amended and restated intercreditor agreement (the “New Intercreditor Agreement”) by, among others, the Just Energy Entities, the Credit Facility Agent, and the applicable Commodity Suppliers, shall be entered into, which New Intercreditor Agreement shall provide for the same relative supplier and lender priorities as contemplated in the existing sixth amended and restated intercreditor agreement subject to modifications set forth in the New Intercreditor Agreement Term Sheet attached hereto as Exhibit 5. |
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| Shell: | Shell Energy North America (Canada) Inc., Shell Energy North America (US), L.P., and Shell Trading Risk Management, LLC (collectively, “Shell”) shall have confirmed, in writing, to the Just Energy Entities and the Plan Sponsor that (i) it will not exercise any termination rights under its Continuing Contracts (as defined in the Plan) solely as a result of the Restructuring, and (ii) all existing and any potential future trades will be transacted in accordance with the Continuing Contracts (as may be amended, restated, supplemented and/or replaced by the Just Energy Entities and Shell from time to time following the Effective Date) or new arrangements, in each case in accordance with the terms thereof and subject to the terms of the New Intercreditor Agreement. The Continuing Contracts with respect to Shell shall not include the Third Amended and Restated Scheduling Coordinator Agreement dated December 1, 2014 between Shell Energy North America (US), L.P., Just Energy New York Corp., Just Energy (U.S.) Corp. and Just Energy Solutions Inc. (formerly Commerce Energy, Inc.) or any other agreement whereby Shell performs ISO or scheduling services on behalf of any Applicant whereby an Applicant has reimbursement obligations to Shell for payments made by Shell on behalf of an Applicant to an ISO. |
| Conditions to Effectiveness of the Plan: | The effectiveness of the Plan will be subject to the satisfaction or waiver of the conditions set forth therein. |
| Releases, Exculpation, Discharge, and Injunction | Releases, exculpation, discharge and injunction provisions shall be as provided for in the Plan and the Support Agreement. |
| Tax Structure: | The Restructuring and the Restructuring Transactions shall be structured in a tax efficient manner as agreed upon by, and acceptable to, the Just Energy Entities and the Plan Sponsor, each acting reasonably.
The specific transaction steps, including the treatment of intercompany claims, to be effected in the implementation of the Plan shall be set out in a supplement to the Plan that shall be in form and substance acceptable to the Just Energy Entities, the Credit Facility Lenders and the Plan Sponsor, each acting reasonably.
|
| Securities Exemptions: | The New Common Shares and the New Preferred Shares will be issued pursuant to applicable securities laws exemptions under U.S. and Canadian law. |
| Definitive Documents: | Each of the Definitive Documents (as defined in the Support Agreement) shall be agreed upon by, and in form and substance acceptable to, each of Just Energy Entities the Plan Sponsor, and the Credit Facility Lenders, each acting reasonably and consistent with the terms in this Term Sheet. |
| Restructuring Timeline: | The Restructuring shall occur on the timeline set forth in the Support Agreement. |
6
EXHIBIT 1
New Credit Facility Term Sheet
NEW CREDIT AGREEMENT
SUMMARY OF TERMS AND CONDITIONS
May 12, 2022
This Summary of Terms and Conditions (this “Summary”) is intended for discussion purposes only and cannot be construed as creating an obligation to advance funds or to reach an agreement on definitive terms and conditions. This Summary does not include descriptions of all of the terms, conditions and other provisions that are to be contained in the definitive documentation relating to the Credit Facilities, including, without limitation, a tenth amended and restated credit agreement (the “Tenth Amended and Restated Credit Agreement”) between the Borrowers, the Agent and the Lenders. This Summary represents an outline of the basis on which the Lenders are prepared to provide their commitment to provide the Credit Facilities subject to each Lender’s receipt of its requisite internal credit and underwriting approvals, satisfactory results of due diligence and documentation in form and substance satisfactory to the Lenders, the Obligors and the Plan Sponsor.
Reference is made to (i) the ninth amended and restated agreement dated as of September 28, 2020 among Just Energy Ontario L.P. and Just Energy (U.S.) Corp, as Borrowers, National Bank of Canada, as Agent, and the Lenders party thereto, as amended, supplemented or otherwise modified from time to time to the date hereof (the “Existing Credit Agreement”), (ii) the sixth amended and restated intercreditor agreement dated as of September 1, 2015 between the Collateral Agent, the Agent, Shell Energy, the Other Commodity Suppliers (as defined therein), the Borrowers, the Restricted Subsidiaries and other Persons from time to time party thereto (as amended, supplemented or otherwise modified from time to time to the date hereof (the “Existing Intercreditor Agreement”), and (iii) the plan support agreement dated as of May 12, 2022 between, among others, the Obligors, LVS III SPE XV LP, TOCU XVII LLC, HVS XVI LLC, OC II LVS XIV LP and OC III LFE I LP, as plan sponsors, and the Lenders party thereto (as amended, supplemented or otherwise modified from time to time to the date hereof (the “Plan Support Agreement”). Capitalized terms used but not otherwise defined herein shall have the meanings given to them in Exhibit A attached hereto or the Existing Credit Agreement, as the case may be.
| Borrowers: | As per the Existing Credit Agreement. |
| New Parent: | Just Energy (U.S.) Corp. (the “New Parent”). |
| Guarantors: | As per the Existing Credit Agreement with the addition of (a) any Subsidiary of the New Parent that directly or indirectly owns the equity interests in the Canadian Borrower on the Effective Date and any other Subsidiary of the New Parent that is not an Unrestricted Subsidiary (collectively, the “New Obligor”), and (b) Filter Group Inc. (“Filter Parent”) and Filter Group USA Inc. (together with Filter Parent, collectively, the “Filter Entities”; the Filter Entities, together with the New Obligor, if any, collectively, the “Additional Guarantors”). For the avoidance of doubt, no Person that directly owns any equity interest in the New Parent shall be required to be a Guarantor or provide Security. |
JUST ENERGY ONTARIO L.P. and
JUST ENERGY (U.S.) CORP.
| Administrative Agent: | National Bank of Canada, as administrative agent (in such capacity, the “Agent”). |
| Lenders: | As per the Existing Credit Agreement. |
| Maximum Facility Amount: | Cdn.$250,000,000 (inclusive of the LC Facility Amount (as defined below)) on the Effective Date (as defined below) as such amount is reduced from time to time pursuant to the “Prepayments and Repayments” described below (the “Maximum Facility Amount”). |
| Credit Facility Remaining Debt: | Pursuant to the Plan, the principal amount of up to Cdn.$20,000,000 of the amounts owed to the Lenders under the Existing Credit Agreement (in addition to the Letters of Credit issued under the Existing Credit Agreement which are outstanding on the Effective Date) may remaining outstanding as an initial outstanding principal amount under the New Credit Agreement upon the implementation of the Plan. |
| Letters of Credit Sublimit under Revolving Facilities: | Remove the existing sublimit of Cdn.$125,000,000 for the Letters of Credit issued under the Revolving Facilities in Section 2.08(3) of the Existing Credit Agreement. |
| LC Facility Amount: | Cdn.$45,000,000 (the “LC Facility Amount”). |
| Borrowing Base: | As per the Existing Credit Agreement. |
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| JUST ENERGY ONTARIO L.P. and JUST ENERGY (U.S.) CORP. |
| Prepayments and Repayments: |
As per the Existing Credit Agreement, subject to the following:
(i) If at any time the aggregate amount of unrestricted cash and Cash Equivalents held by the Obligors exceeds Cdn.$35,000,000, save and except for any amounts which directly relate to and are required to fund pending normal course commodity supplier payments and ISO payments on each Commodity Supplier/ISO Payment Date (as defined below), the Borrowers will repay the Advances outstanding under the Revolving Facilities in an amount equal to such excess. For certainty, (a) any repayment made pursuant to this clause (i) will not permanently reduce the Commitments of the Lenders under the Revolving Facilities or the Maximum Facility Amount; and (b) to the extent there are no Advances outstanding under the Revolving Facilities (other than the Letters of Credit) at such time, the Obligors may maintain aggregate cash and Cash Equivalents in excess of Cdn.$35,000,000 for general corporate purposes.
(ii) The requirement for commitment reductions on asset dispositions contained in Section 6.07 of the Existing Credit Agreement will be revised to provide for mandatory reductions of the Maximum Facility Amount by an amount equal to the net after-tax proceeds of a Disposition of any Property made by an Obligor or Unrestricted Subsidiary on a dollar-for-dollar basis to the extent such proceeds are not used by the Obligors for reinvestment pursuant to one or more Permitted Acquisitions within 180 days of such Disposition; provided that, for greater certainty, any such Disposition made by an Obligor shall be a Permitted Asset Disposition.
(iii) Sections 6.06 and 6.08 will be removed in its entirety.
(iv) The requirement for scheduled mandatory commitment reductions contained in Section 6.09 of the Existing Credit Agreement will be revised to remove in their entirety any scheduled commitment reductions set forth therein and to provide instead for the following mandatory reductions of the Maximum Facility Amount:
(a) On June 30, 2023, the Maximum Facility Amount in effect at such time will be permanently reduced by an amount equal to the sum of (A) the Excess Liquidity Amount as at March 31, 2023 (which, for the avoidance of doubt and notwithstanding anything to the contrary herein, shall include the proceeds of any Equity Cure received by the Obligors during the Fiscal Quarter ended June 30, 2023 (the “Specified Equity Cure”), up to the first Cdn.$45,000,000 (for the avoidance of doubt, the amount of the Specified Equity Cure will not be included in the calculation of the Excess Liquidity Amount for purposes of clause (b) below), and (B) to the extent such Excess Liquidity Amount exceeds Cdn.$90,000,000, 50% of such excess.
(b) On June 30, 2024, the Maximum Facility Amount in effect at such time will be permanently reduced by an amount equal to the sum of (A) the Excess Liquidity Amount as at March 31, 2024 (which, for the avoidance of doubt and notwithstanding anything to the contrary herein, shall include the proceeds of any Equity Cure received by the Obligors during the Fiscal Quarter ended June 30, 2024), up to the Initial 2024 Lender Commitment Reduction Amount, and (B) to the extent such Excess Liquidity Amount exceeds the sum of (I) the Initial 2024 Lender Commitment Reduction Amount, and (II) the Initial 2024 Preferred Equity Payment Amount, 50% of such excess. |
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| JUST ENERGY ONTARIO L.P. and JUST ENERGY (U.S.) CORP. |
(v) For greater certainty, (a) if at any time the aggregate amount of the Letters of Credit outstanding under the Revolving Facilities or the LC Facility1, as the case may be, exceeds the Commitments of the Lenders under the applicable Credit Facility in effect at such time (including as a result of the reductions in the Maximum Facility Amount made in accordance with this Section titled “Prepayments and Repayments”), the Borrower will promptly provide to the Agent, for the benefit of the Lenders or the LC Lender, as applicable, cash collateral in the amount of such excess and the Lenders and the LC Lender will have priority over such cash collateral under the terms of the Seventh Amended and Restated Intercreditor Agreement, and (b) if, subsequent to the provision by the Borrowers of the cash collateral in accordance with the foregoing clause (a), one or more Letters of Credit issued under the Credit Facilities are expired, terminated, reduced or returned to the Lenders or the LC Lender, as applicable, such that the aggregate amount of the Letters of Credit outstanding under the applicable Credit Facility is less than the Commitments of the Lenders under such Credit Facility, the Agent, on behalf of the Lenders and the LC Lender, will promptly release, discharge and return such cash collateral to the Borrowers and, if applicable, the Borrowers shall provide to the Agent such replacement cash collateral as necessary to continue to comply with the foregoing clause (a).
(vi) For greater certainty, unless expressly provided for herein, any reduction of the Maximum Facility Amount made in accordance with this Section titled “Prepayments and Repayments” will permanently reduce the Commitments of the Lenders under the Revolving Facilities and the Commitment of the LC Lender under the LC Facility on a pro rata basis. |
1 NTD: Subject to confirmation that EDC will continue to backstop the LC Facility.
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| JUST ENERGY ONTARIO L.P. and JUST ENERGY (U.S.) CORP. |
| Maturity: | The earlier of (a) 3rd anniversary of the Effective Date and (b) June 15, 2025 (the “Maturity Date”). |
| Purpose: | As per Existing Credit Agreement. |
| Availability: | As per Existing Credit Agreement, subject to replacing LIBO Rate with Term SOFR. Customary benchmark replacement provisions to be included. |
| Restructuring/Commitment Fee: |
A restructuring/commitment fee will be paid in cash in the following manner:
(i) an amount equal to 0.50% of the Maximum Facility Amount in effect on the Effective Date will be due and payable on the Effective Date (the “Initial Commitment Fee”); and
(ii) if the Credit Facilities are not fully repaid in cash by the 2nd anniversary of the Effective Date, an amount equal to 0.75% of the Maximum Facility Amount in effect on the Effective Date will be due and payable on the 2nd anniversary of the Effective Date.
|
| Agency Fee: | As per an agency fee letter to be entered into by the Borrowers and the Agent. |
| Effective Date: | The date upon which the “Conditions Precedent” described below have been satisfied or waived by the Lenders in their sole discretion (the “Effective Date”). |
General Terms and Conditions
Credit, Usage and Stand-by Margins: Pricing grid to be updated as follows:
| ||||
| Level | Senior Debt to EBITDA Ratio |
Prime Rate Margin, US Base Rate Margin and US Prime Rate Margin |
BA Stamping Fee Rate, SOFR Margin and Letter of Credit Fee Rate |
Standby Fee Rate |
| I | > 2.00x | 375.0 bps | 475.0 bps | 118.75 bps |
| II | > 1.50x ≤ 2.00x | 325.0 bps | 425.0 bps | 106.25 bps |
| III | > 1.00x ≤ 1.50x | 300.0 bps | 400.0 bps | 100.00 bps |
| IV | ≤ 1.00x | 275.0 bps | 375.0 bps | 93.75 bps |
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| JUST ENERGY ONTARIO L.P. and JUST ENERGY (U.S.) CORP. |
|
(i) SOFR Margin (to be defined in the Tenth Amended and Restated Credit Agreement) will be subject to the following credit spread adjustments:
(a) 0.11448% (11.448 basis points) for an available tenor of one-month’s duration;
(b) 0.26161% (26.161 basis points) for an available tenor of three-months’ duration; and
(c) 0.42826% (42.826 basis points) for an available tenor of six-months’ duration.
(ii) For greater certainty, all amounts of the Letters of Credit issued under the Credit Facilities will be included in the calculation of Senior Debt to EBITDA Ratio for purposes of determining the Applicable Margins.
(iii) On the Effective Date and until such time as the Borrowers deliver to the Agent a Compliance Certificate concurrently with the delivery of the first set of quarterly financial statements after the Effective Date in accordance with the Tenth Amended and Restated Credit Agreement, the Applicable Margins will remain at Level III as set out in the new pricing grid above.
| |
| Documentation: | Credit Facilities to be documented as an amendment and restatement of the Existing Credit Agreement pursuant to the Tenth Amended and Restated Credit Agreement on terms satisfactory to the Lenders, the Agent, the Collateral Agent, the Obligors and the Plan Sponsor. |
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| JUST ENERGY ONTARIO L.P. and JUST ENERGY (U.S.) CORP. |
| Security: |
As per Existing Credit Agreement, subject to the following, each in form and substance and on terms satisfactory to the Lenders, the Agent and the Collateral Agent, the Obligors and the Plan Sponsor (collectively, the “Additional Security”):
(i) general security agreement, share pledge agreement (as applicable), guarantee and blocked account agreement or deposit account control agreement (as applicable) from each of the Additional Guarantors; provided that, for greater certainty, if the Filter Group Debt has not been repaid in full on or prior to the Effective Date, the Filter Entities will be required to deliver guarantee, general security agreement and blocked account agreement or deposit account control agreement (as applicable) only after the Filter Group Debt has been repaid in full;
(ii) amendment to the securities pledge agreement made as of August 28, 2020 between 8704104 Canada Inc. (“8704104”) and the Collateral Agent pursuant to which 8704104 will pledge the equity interests owned by 8704104 in the capital stock of Filter Group Inc. in favour of the Collateral Agent;
(iii) confirmations of all of the other existing guarantees, security and subordination agreements from Borrowers and Guarantors;
(iv) blocked account agreements or deposit account control agreements, cash collateral agreements and such other agreements as may be required by the Lenders, in each case, in connection with the cash collateral provided from time to time by the Borrowers to the Agent, for the benefit of the Lenders and the LC Lender, in accordance with clause (v) of the Section titled “Prepayments and Repayments” above;
(v) to the extent not previously delivered to the Collateral Agent, delivery of the certificates representing the equity interests pledged to the Collateral Agent pursuant to the Security, together with related stock powers duly endorsed in blank; and
(vi) registration of financing statements or other appropriate filings or notices in respect of the foregoing in all relevant jurisdictions.
|
| Intercreditor Agreement: | An amended and restated intercreditor agreement (the “Seventh Amended and Restated Intercreditor Agreement”) will be entered into by the Obligors, the Collateral Agent, the Agent and the Persons who are commodity suppliers of the Obligors as of the Effective Date (the “Effective Date Commodity Suppliers”) to amend and restate the Existing Intercreditor Agreement on the terms and conditions set forth in the term sheet attached hereto as Exhibit B. |
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| JUST ENERGY ONTARIO L.P. and JUST ENERGY (U.S.) CORP. |
| Conditions Precedent: |
As per the Existing Credit Agreement, subject to the following, each in form and substance and on terms satisfactory to the Lenders, acting reasonably:
(i) negotiation, execution and delivery of definitive credit documents (including the Tenth Amended and Restated Credit Agreement, the Seventh Amended and Restated Intercreditor Agreement and the Additional Security);
(ii) the Plan shall be approved by the requisite majorities of each class of the creditors of JustEnergy and its Subsidiaries;
(iii) JustEnergy shall have received (a) an order of the Ontario Superior Court of Justice (Commercial List) (the “Sanction Order”) which sanctions and approves the Plan, and (b) an order of the United States Bankruptcy Court for the Southern District of Texas, Houston Division (the “Recognition Order”) recognizing and enforcing the Sanction Order in the cases commenced by JustEnergy and certain of its Subsidiaries under Chapter 15 of title 11 of United States Code (the “Chapter 15 Cases”, and together with the CCAA Proceedings, collectively, the “Proceedings”);
(iv) the Sanction Order and the Recognition Order shall have become Final Orders;
(v) successful implementation of the Plan in accordance with its terms;
(vi) the Lenders’ receipt of certified copies of (a) the corporate governance documents for the reorganized Obligors, including, but not limited to, any documents concerning preferred or common equity of the reorganized Obligors, (b) the management incentive plan for the reorganized Obligors, (c) the backstop commitment letter entered into by LVS III SPE XV LP, TOCU XVII LLC, HVS XVI LLC, OC II LVS XIV LP and OC III LFE I LP and New Parent, and (d) to the extent any new agreement is entered into on or prior to the Effective Date between any Obligor and Shell Energy North America (Canada) Inc., Shell Energy North America (US), L.P. and/or Shell Trading Risk Management, LLC (collectively, “Shell”) in connection with the provision of products and services by Shell to one or more Obligors, such agreements; |
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| JUST ENERGY ONTARIO L.P. and JUST ENERGY (U.S.) CORP. |
(vii) the Lenders’ receipt of a sources and uses of funds statement of the New Parent to complete the implementation of the Plan;
(viii) the New Parent maintaining Liquidity in an amount not less than Cdn.$75,000,000 as at the time of its emergence from the Proceedings;
(ix) confirmation from EDC that EDC will continue to provide the EDC Guarantee in respect of each Letter of Credit issued under the LC Facility and the Lenders’ receipt of EDC Documents in respect of the Letters of Credit issued under the Existing Credit Agreement which are outstanding on the Effective Date;
(x) the aggregate principal amount outstanding under the Credit Facilities on the Effective Date (other than the Letters of Credit issued under the Existing Credit Agreement which are outstanding on the Effective Date) shall not exceed Cdn.$20,000,000;
(xi) payment of all applicable fees and expenses due and owing to the Agent and the Lenders (including reasonable and documented fees and expenses of Lenders’ Counsel) on or before the Effective Date in accordance with the Tenth Amended and Restated Credit Agreement (including, without limitation, the Initial Commitment Fee);
(xii) receipt of customary legal opinions from the Obligors’ counsel in form and substance reasonably satisfactory to Lenders’ Counsel, together with supporting officer’s certificates and resolutions; and
(xiii) receipt of all relevant information to complete all know your customer and anti-money laundering due diligence. |
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| JUST ENERGY ONTARIO L.P. and JUST ENERGY (U.S.) CORP. |
| Representations & Warranties: |
As per the Existing Credit Agreement, subject to the following:
(i) adding a new representation and warranty that the equity interests of the New Parent are not subject to any Encumbrance;
(ii) adding a new representation and warranty that the New Parent does not (a) own any intellectual property, permit, quota, retail energy licence or any other material Property other than (i) the equity interests in its Subsidiaries and (ii) any intercompany debt made by the New Parent to another Obligor or (b) own any Customer Contract or otherwise generate material revenue; and
(iii) removing the reporting issuer representation contained in Section 8.01(43) of the Existing Credit Agreement.
For greater certainty, the Borrowers shall provide and deliver an updated set of disclosure schedules to the Existing Credit Agreement.
|
| Reporting Requirements: |
As per the Existing Credit Agreement, subject to the following:
(i) delivery of the first set of quarterly financial statements to be postponed until 90 days (or such longer period as may be approved by the Lenders) after the New Parent has completed a full Fiscal Quarter following the Effective Date;
(ii) Section 9.03(13) of the Existing Credit Agreement will be removed in its entirety; and
(iii) detailed reporting of (a) supplier priority payables and their aging, (b) amounts payable and their aging under the ISO services agreements; and (c) mark-to-market position of contracts entered into with commodity suppliers and under ISO service agreements (to the extent applicable).
|
| Affirmative Covenants: |
As per the Existing Credit Agreement, subject to the following:
(i) delete the covenant to initiate a process for refinancing of the Credit Facilities satisfactory to the Lenders by June 30, 2022 contained in Section 9.01(30) of the Existing Credit Agreement;
(ii) if no Obligor is or continues to be a reporting issuer under the applicable securities laws, delete the public company covenants and related provisions contained in the Existing Credit Agreement; |
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| JUST ENERGY ONTARIO L.P. and JUST ENERGY (U.S.) CORP. |
(iii) align the minimum Supplier Credit Rating covenant contained in Section 9.01(25) of the Existing Credit Agreement with the corresponding covenant under the Seventh Amended and Restated Intercreditor Agreement;
(iv) delete the covenant regarding Alberta Utilities Commission Debt contained in Section 9.01(31) of the Existing Credit Agreement; and
(v) add an affirmative covenant to require the New Parent to use commercially reasonable efforts to assign and transfer all of its material Supplier Contracts and other Material Contracts to one or more other Obligors; provided that the New Parent shall not be required to transfer any material Supplier Contract or other Material Contract to the extent that such transfer would require the New Parent to pay any consent or transfer fee to the applicable counterparty under any material Supplier Contract or other Material Contract.
| |
| Financial Covenants: |
As per the Existing Credit Agreement subject to the following:
(i) revising the maximum consolidated Senior Debt to EBITDA Ratio requirements as follows: |
| Fiscal Quarter Ending | Senior Debt to EBITDA Ratio |
| September 30, 2022 | 2.75:1.00 |
| December 31, 2022 | 2.50:1.00 |
| March 31, 2023 and thereafter until the Maturity Date | 2.25:1.00 |
|
(ii) revising the minimum Four Fiscal Quarter EBITDA requirement under Section 9.02(2) of the Existing Credit Agreement such that EBITDA determined as at the last day of each Fiscal Quarter in respect of the immediately preceding Four Quarter Period is not less than:
(a) $90,000,000 at September 30, 2022; (b) $100,000,000 at December 31, 2022; and (c) $112,500,000 at March 31, 2023 and thereafter until the Maturity Date; |
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| JUST ENERGY ONTARIO L.P. and JUST ENERGY (U.S.) CORP. |
(iii) definition of EBITDA to be agreed between the Borrowers and the Lenders in the definitive documentation;
(iv) EBITDA numbers calculated and reported under the Existing Credit Agreement for any Fiscal Quarter prior to the Effective Date to be used for purposes of determining compliance with the financial covenants for any period including such Fiscal Quarter; and
(v) for greater certainty, all amounts of Letters of Credit issued under the Credit Facilities will be included in the calculation of Senior Debt for purposes of determining the Senior Debt to EBITDA Ratio.
| |
| Equity Cures: | Customary equity cure provisions to be included; provided that, for greater certainty, (i) the cash proceeds from any equity cure (an “Equity Cure”) will be no more than the amount required to cause the Borrowers to be in compliance with the financial covenants; (ii) only one Equity Cure may be exercised in any Fiscal Year; (iii) there will not be Equity Cures in two consecutive Fiscal Quarters; (iv) the aggregate amount of Equity Cures used during the term of the Credit Facilities will not exceed Cdn.$25,000,000; and (v) the amount of each Equity Cure and the use of proceeds therefrom will be disregarded for all purposes under the Loan Documents (including for purposes of calculating financial covenant ratios to determine the Applicable Margins) other than solely to determine compliance with the financial covenants for any relevant covenant test period. |
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| JUST ENERGY ONTARIO L.P. and JUST ENERGY (U.S.) CORP. |
| Negative Covenants |
As per the Existing Credit Agreement, subject to the following:
(i) no share buy-backs or distributions to the holders of the common shares of the New Parent;
(ii) restrict the incurrence of any priority Debt other than the Debt owing to the commodity suppliers, ISOs, utilities and storage providers, environmental trade counterparties and regulatory authorities incurred the ordinary course of business of the Obligors;
(iii) no ability to incur any Subordinated Debt;
(iv) permit Filter Group Debt;
(v) revise clauses (n) and (q) of the definition of “Permitted Encumbrances” as follows to remove the dollar limit on each of them:
“(n) any Encumbrance granted by any Obligor to LDCs in respect of Cash Security Deposits in accordance with Collection Service Agreements”; and
“(q) Encumbrances over any and all cash, monies and interest bearing instruments delivered to, deposited with or held by an exchange for natural gas, ISO, utilities, storage providers, environmental trade counterparties, commodity suppliers that are not party to the Seventh Amended and Restated Intercreditor Agreement and regulatory authorities in the ordinary course of business of the Obligors, subject to permitted use, 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”.
(vi) revise clause (p) of the definition of “Permitted Encumbrances” as follows to include a permitted amount of cash collateral to secure credit card obligations of the Obligors:
“(p) Encumbrances, including cash collateral, in an aggregate amount not to exceed US$500,000, to secure credit card obligations of the Obligors owed to any Person who is not a Lender”. |
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| JUST ENERGY ONTARIO L.P. and JUST ENERGY (U.S.) CORP. |
(vii) permit an Acquisition subject to the following conditions: (a) the purchased assets or entity relate to a business that is substantially similar to the Business; (b) Liquidity shall be equal to or greater than the Liquidity Threshold Amount immediately prior to and after the consummation of such Acquisition; (c) the aggregate consideration paid for such Acquisition shall not exceed Cdn.$3,000,000, (d) the aggregate considerations paid for all such Acquisitions during the term of the Credit Facilities shall not exceed Cdn.$10,000,000, (e) the cash consideration of such Acquisition shall be funded by (I) first, the proceeds from any Permitted Asset Disposition that the Obligors are permitted to use to finance such Acquisition, and (II) second, Excess Liquidity Amount, (f) such Acquisition may not be funded by an incremental equity investment without the prior written consent of the Lenders, (g) if such Acquisition is an Acquisition of a new Subsidiary that would, under the terms of the Existing Credit Agreement, be required to guarantee and provide Security in favour of the Agent and the Collateral Agent, as applicable, concurrently with such Acquisition, such Subsidiary shall become a Restricted Subsidiary and an Obligor for purposes of the Loan Documents and deliver to the Agent and the Collateral Agent, as applicable, all such guarantees and security documents as may be required under the Loan Documents, and (h) no Pending Event of Default or Event of Default immediately prior to or after the consummation of such Acquisition;
(viii) permit the following Distributions:
(a) repayment of Filter Group Debt after the Effective Date;
(b) payment to of a fee for backstopping the Effective Date Equity Offering, which fee shall be paid entirely in common shares of the New Parent;
(c) permit the Preferred Equity ECF Payments, subject to the following conditions: (A) delivery to the Agent of a certificate of an officer of the Borrowers confirming that no Event of Default or Pending Event of Default will have occurred on (I) March 31, 2023 or June 30, 2023 for the 2023 Preferred Equity ECF Payment and (II) March 31, 2024 or June 30, 2024 for the 2024 Preferred Equity ECF Payment; (B) minimum pro forma Liquidity of Cdn.$75,000,000 as at (I) March 31, 2023 and June 30, 2023 for the 2023 Preferred Equity ECF Payment and (II) March 31, 2024 and June 30, 2024 for the 2024 Preferred Equity ECF Payment; and (C) the proceeds of the Credit Facilities will not be used to make such payments; and |
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| JUST ENERGY ONTARIO L.P. and JUST ENERGY (U.S.) CORP. |
(d) permit redemptions of the Class A Preferred Equity using the proceeds received by the New Parent from the issuance of preferred or common equity of the New Parent (the “Preferred Equity Refinancing”); provided that (i) the Preferred Equity Refinancing shall not, whether directly or indirectly, result in a decrease in the Liquidity after giving effect to the Preferred Equity Refinancing (other than on account of reasonable and documented legal and other advisory fees and expenses in an aggregate amount not to exceed $1,000,000), as reasonably determined by the Majority Lenders in good faith in consultation with the Borrowers (for greater certainty, there shall be no cash cost or adverse cash consequences at the time of the Preferred Equity Refinancing or thereafter to the Obligors or expense payable by the Obligors arising from the Preferred Equity Refinancing (other than on account of reasonable and documented legal and other advisory fees and expenses in an aggregate amount not to exceed $1,000,000)), (ii) the terms of such preferred equity shall not be less favourable to the Lenders and the Obligors than the terms of the Class A Preferred Equity, as reasonably determined by the Borrowers in good faith in consultation with the Lenders, and (iii) no Pending Event of Default or Event of Default shall have occurred at the time of such redemptions or arise as result of such redemptions;
(ix) impose 30-day maximum limit on payment of any post-filing commodity trade supplier payable from the date of the relevant invoice;
(x) restrict any Drawdown under the Credit Facilities if, prior to or after such Drawdown, the aggregate amount of cash or Cash Equivalents held by the Obligors would exceed Cdn.$35,000,000; provided that, notwithstanding the foregoing, the Borrowers will be permitted to make a Drawdown under the Revolving Facilities on the date that is one business day prior to each Commodity Supplier/ISO Payment Date (as defined below) for the purpose of making normal course commodity supplier payments and ISO payments (the date on which each such payment is due and payable, a “Commodity Supplier/ISO Payment Date”); |
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| JUST ENERGY ONTARIO L.P. and JUST ENERGY (U.S.) CORP. |
(xi) limit Financial Assistance provided to Unrestricted Subsidiaries and Permitted Unrestricted Subsidiary Debt at any time to a maximum aggregate amount of Cdn.$5,000,000;
(xii) revise the definition of “Permitted Asset Disposition” to permit individual asset sales at or below $3,000,000 and cumulative asset sales of $10,000,000 during the term of the Tenth Amended and Restated Credit Agreement; and
(xiii) add a new negative covenant that the New Parent will not (a) own any intellectual property, permit, quota, retail energy licence or any other material Property other than (i) the equity interests in its Subsidiaries and (ii) any intercompany debt made by the New Parent to another Obligor, or (b) own any Customer Contract or otherwise generate material revenue.
| |
| Events of Default: | As per the Existing Credit Agreement, subject to revising Section 11.01(26) of the Existing Credit Agreement to further exclude the impact of any goodwill impairments.
|
| Change of Control: |
As per the Existing Credit Agreement, subject to the following:
(i) clause (d) of the definition of Change of Control in the Exiting Credit Agreement will be removed in its entirety;
(ii) clause (a)(i) of the definition of Change of Control in the Existing Credit Agreement will be removed in its entirety and replaced with ceasing to own, directly or indirectly, at least 75% common voting equity interests of the New Parent; and
(iii) appropriate adjustments will be made if no Obligor is or continues to be a reporting issuer under the applicable securities laws. |
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| JUST ENERGY ONTARIO L.P. and JUST ENERGY (U.S.) CORP. |
| GAAP: | US GAAP. |
| Assignments & Participations: | As per the Existing Credit Agreement. |
| General Indemnities: | As per the Existing Credit Agreement. |
| Environmental Indemnities: | As per the Existing Credit Agreement. |
| Costs: | As per the Existing Credit Agreement. |
| Increased Costs: | As per the Existing Credit Agreement. |
| Majority Lenders: | As per the Existing Credit Agreement. |
| Governing Law: | As per the Existing Credit Agreement. |
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Exhibit A
Defined Terms
“2023 Lender Shortfall Amount” means an amount, if any, by which (i) the Excess Liquidity Amount as at March 31, 2023 is less than (ii) Cdn.$45,000,000.
“2023 Preferred Equity Shortfall Amount” means an amount, if any, by which (i) the Excess Liquidity Amount as at March 31, 2023 in excess of Cdn.$45,000,000 is less than (ii) Cdn.$45,000,000.
“2023 Preferred Equity ECF Payment” has the meaning given to it in the definition of “Preferred Equity ECF Payments” contained in this Exhibit A.
“2024 Preferred Equity ECF Payment” has the meaning given to it in the definition of “Preferred Equity ECF Payments” contained in this Exhibit A.
“Excess Liquidity Amount” means, at any time, an amount, if any, by which (i) the Liquidity at such time exceeds (ii) the Liquidity Threshold Amount in effect at such time.
“Filter Group Debt” means the senior secured Debt of the Filter Entities existing on the date of this Summary.
“Final Order” has the meaning given to such term in the Plan Support Agreement in effect on the date hereof.
“Initial 2024 Lender Commitment Reduction Amount” means an amount equal to the sum of (i) the 2023 Lender Shortfall Amount, and (ii) Cdn.$35,000,000.
“Initial 2024 Preferred Equity Payment Amount” means an amount by which the Excess Liquidity Amount as at March 31, 2024 exceeds the Initial 2024 Lender Commitment Reduction Amount; provided that such excess shall not exceed the sum of (i) the 2023 Preferred Equity Shortfall Amount and (ii) Cdn.$35,000,000.
“ISO” mean an independent system operator that coordinates, controls and monitors the operation of the electrical power system in a jurisdiction.
“Liquidity” means (i) cash or Cash Equivalents of the New Parent that (a) are subject to the Security, and (b) would not appear “restricted” on the consolidated balance sheet of the New Parent, plus (ii) the undrawn portion of the Credit Facilities; provided that, for the avoidance of doubt, (x) the proceeds received by any Obligor from a Disposition of any Property or issuance of its common equity interests or preferred equity interests (other than in connection with any Equity Cure) will not be included in the calculation of Liquidity, (y) the amount of any cash collateral posted for the benefit of any Obligor will not be included in the calculation of Liquidity, and (z) the proceeds of an Equity Cure received by the Obligors will be included in the calculation of Liquidity; provided further that, Liquidity may be adjusted from time to time by such amount as may be reasonably agreed to between the Borrowers and the Majority Lenders taking into account short term increases in need (which are expected to reverse) for the Obligors to satisfy cash collateral requirements of the ISO in each key market identified by the Obligors (which amounts will be included in calculating Liquidity).
| JUST ENERGY ONTARIO L.P. and JUST ENERGY (U.S.) CORP. |
“Liquidity Threshold Amount” means Cdn.$75,000,000.
“Plan” has the meaning given to such term in the Plan Support Agreement in effect on the date hereof.
“Plan Sponsor” has the meaning given to such term in the Plan Support Agreement in effect on the date hereof.
“Preferred Equity ECF Payments” means, collectively, the following payments to the holders of the Class A Preferred Equity:
| (i) | on June 30, 2023, payment to the holders of the Class A Preferred Equity in an amount equal to the sum of (A) the Excess Liquidity Amount as at March 31, 2023 in excess of Cdn.$45,000,000; provided that such excess shall not exceed Cdn.$45,000,000, and (B) to the extent such Excess Liquidity Amount exceeds Cdn.$90,000,000, 50% of such excess (the “2023 Preferred Equity ECF Payment”); and |
| (ii) | on June 30, 2024, payment to the holders of the Class A Preferred Equity in an amount equal to the sum of (A) the Initial 2024 Preferred Equity Payment Amount and (B) to the extent such Excess Liquidity Amount exceeds the sum of (I) the Initial 2024 Lender Commitment Reduction Amount, and (II) the Initial 2024 Preferred Equity Payment Amount, 50% of such excess (the “2024 Preferred Equity ECF Payment”). |
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Exhibit B
Intercreditor Agreement Term Sheet
(See attached)
EXHIBIT 2
New Preferred Shares Term Sheet
On the Effective Date, New Just Energy Parent will issue a new class of preferred equity on the following terms and conditions and, to the extent applicable, subject to the terms and conditions set out in the New Credit Facility Agreement:
| (a) | Amount: The amount of the BP Commodity / ISO Services Claim (as defined in the Plan) as of the Effective Date, all converted into United States currency, as applicable |
| (b) | Maturity: |
| 1. | Perpetual |
| 2. | Repayment in full upon a change of control transaction |
| 3. | Right to force sale in year six (6) |
| (c) | Dividends: 12.50% accreting yield with dividends as and when declared by the board of directors for the first four (4) years, increasing 1% annually thereafter |
| (d) | Fees: exit fee of 5.00% |
| (e) | ECF Sweep: |
| 1. | The ECF Sweep is as permitted pursuant to the terms of the New Credit Agreement |
EXHIBIT 3
Corporate Governance Term Sheet for New Just Energy Parent
Corporate Governance Term Sheet for
New Just Energy Parent
This term sheet (the “Term Sheet”) presents certain material terms in respect of the corporate governance of New Just Energy Parent (“New Just Energy Parent”) that would be reflected in the corporate governance documents of New Just Energy Parent (including the charter, bylaws, limited liability company agreement or similar documents, as applicable), to be entered into in connection with the consummation of a plan of reorganization (the “Plan”) of Just Energy Group Inc. (“Just Energy”) and its applicable subsidiaries. This Term Sheet is not legally binding or an exhaustive list of all the terms and conditions in respect of the corporate governance of New Just Energy Parent nor does it constitute an offer to sell or buy, nor the solicitation of an offer to sell or buy, any securities of New Just Energy Parent. Any such offer or solicitation shall only be made in compliance with all applicable Laws. Without limiting the generality of the foregoing, this Term Sheet and the undertakings contemplated herein are subject in all respects to the negotiation, execution and delivery of definitive documentation.
This Term Sheet shall be attached to, and incorporated into a Restructuring Term Sheet attached to that certain plan support agreement to be entered into by Just Energy and certain stakeholders of Just Energy (the “PSA”). Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the PSA or the Restructuring Term Sheet to which this term sheet is attached. Unless otherwise set forth herein, to the extent that any provision of this Term Sheet is inconsistent with the PSA, the terms of this Term Sheet with respect to such provision shall control.
This Term Sheet is proffered in the nature of a settlement proposal in furtherance of settlement discussions and is entitled to protection from any use or disclosure to any party or person pursuant to Federal Rule of Evidence 408, Canadian equivalents, and any other rule of similar import.
THIS TERM SHEET IS BEING PROVIDED AS PART OF A PROPOSED COMPREHENSIVE Restructuring Transaction (THE “TRANSACTION”), EACH ELEMENT OF WHICH IS CONSIDERATION FOR THE OTHER ELEMENTS AND AN INTEGRAL ASPECT OF THE PROPOSED RESTRUCTURING OF THE COMPANY. Nothing in this Term Sheet shall constitute or be construed as an admission of any fact or liability, a stipulation or a waiver, AND EACH statement CONTAINED HEREIN IS MADE without prejudice, with a full reservation OF ALL rights, remedies, CLAIMS, or defenses of each of the recipients.
| Corporate Form: | Delaware limited liability company. |
| In connection with the Effective Date, New Just Energy Parent shall adopt customary corporate governance documents, including a limited liability company agreement (the “New Corporate Governance Documents”) in form and substance reasonably acceptable to Just Energy and the Plan Sponsor. |
| General: | New Just Energy Parent will managed by a board of managers (the “Board”), which will be responsible for overseeing the operation and management of New Just Energy Parent’s business. New Just Energy Parent will be managed on a day-to-day basis by its Chief Executive Officer and other senior executive officers which shall be appointed by, and subject to the oversight of, the Board. |
| Board: | The New Corporate Governance Documents will provide that the initial Board will consist of five (5) directors (each a “Director”), each selected by the Plan Sponsor. |
| The initial term for the Directors will be for a period of one (1) year from the Effective Date (the “Initial Term”). Beginning with the first annual meeting of equityholders of New Just Energy Parent, Directors will be elected by the holders of the issued and outstanding New Common Shares (by plurality vote). | |
| A majority of the total number of the Directors then in office shall constitute a quorum, and the affirmative vote of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board. The Board or any committee thereof may act by written consent executed by all of the Directors then in office or all members of such committee, as applicable, in lieu of a meeting. | |
| The Board will have customary committees to be established by the Board. |
| Transfer Restrictions: | In addition to any other restrictions on Transfer (as defined below) of the New Common Shares set forth herein, the New Corporate Governance Documents will restrict any sale, exchange, assignment, pledge, encumbrance, or other transfer (each, a “Transfer”) of New Common Shares that would result in New Just Energy Parent’s obligation to register with the Securities and Exchange Commission or under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). |
| For purposes of this Term Sheet, (i) “Affiliate” means any person who directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified and (ii) “control” means the possession, directly or indirectly, of the power to direct, or to cause the direction of, the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise. |
| Right of First Offer: | The New Corporate Governance Documents will contain a Right of First Offer provision pursuant to which, other than in a transaction to which drag-along or tag-along rights apply, any equityholder wishing to Transfer its New Common Shares (a “Transferring Equityholder”) to a party that is not an Affiliate of such Transferring Equityholder must first offer to Transfer such New Common Shares to those equityholders holding, together with their Affiliates, 5% or more of the outstanding New Common Shares on a fully-diluted basis. Further, in the event of a proposed Transfer pursuant to the Right of First Offer, at the request of the purchasing equityholder, New Just Energy Parent and the Transferring Equityholder will enter into a customary confidentiality agreement and New Just Energy Parent will disclose all material non-public information to such Transferring Equityholder without any cleansing provision. |
| Tag Along Rights: | If a Transferring Equityholder proposes to Transfer to any purchaser, other than to an Affiliate of any Transferring Equityholder, in one or a series of related transactions, New Common Shares representing a majority of the outstanding New Common Shares on a fully-diluted basis, then the Transferring Equityholder will give written notice to New Just Energy Parent prior to the closing of such Transfer and such other equityholders will have the right (but not the obligation) to include in such sale up to all of the New Common Shares held by such other equityholders. If the proposed purchaser elects to purchase less than all of the New Common Shares offered for sale as a result of the other equityholders exercise of their respective tag along rights, the Transferring Equityholder and each equityholder exercising its tag along rights will have the right to include its pro rata portion of New Common Shares to be Transferred to the proposed purchaser on the same terms and conditions as the Transferring Equityholder, including, without limitation, in exchange for a pro rata share of all consideration received by the Transferring Equityholder. |
| Drag Along Rights: | At any time after the Effective Date, if (i) one or more equityholders holding a majority of the outstanding New Common Shares on a fully-diluted basis (the “Selling Equityholders”) propose (a) to sell, in one or a series of related transactions, New Common Shares representing a majority of the outstanding New Common Shares on a fully-diluted basis, to any purchaser, or (b) propose any merger, recapitalization, consolidation or restructuring or any other transaction that would result in a change of control of New Just Energy Parent, in each case, other than to an Affiliate of any Selling Equityholders, or (ii) the Board has approved and seeks to consummate any transaction involving the sale, transfer, lease or other disposition of all or substantially all of New Just Energy Parent’s assets or properties or any merger, recapitalization, consolidation or restructuring or any other transaction that would result in a change of control of New Just Energy Parent other than to or with an Affiliate of New Just Energy Parent, the other equityholders, at the election of the Selling Equityholders or the Board, as applicable, will be required to include the pro rata portion of their New Common Shares in such sale and/or vote their New Common Shares and take any other reasonable actions in furtherance thereof on the same terms and conditions applicable to the Selling Equityholders (if applicable), subject to customary minority equityholder protective provisions. |
| Pre-Emptive Rights: | Until the consummation of an initial public offering (if any) by New Just Energy Parent, if New Just Energy Parent issues any equity or equity-linked securities, except for Excluded Issuances (as defined below), each equityholder, together with its Affiliates, holding at least 1% of the outstanding New Common Shares on a fully-diluted basis that is an accredited investor will have a right to purchase that number of such equity or equity-linked securities on the same terms and conditions as would allow them to maintain their fully-diluted equity interests percentage ownership interests in New Just Energy Parent. In the event that an equityholder does not subscribe for its pro rata share of such equity or equity-linked securities, the other subscribing equityholders may subscribe for such equity or equity-linked securities on a pro rata basis. There will be a customary ‘emergency’ exception to the pre-emptive rights, with a catch up provision. |
| “Excluded Issuances” will mean the issuance of equity or equity-linked securities (i) pursuant to or issued upon the exercise of options granted under any Management Incentive Plan, (ii) in consideration for, or to provide financing for or in connection with, M&A and related transactions, (iii) pursuant to conversion or exchange rights included in equity interests or debt (as applicable) previously issued, (iv) in connection with an equity interests split, division or dividend or similar transaction or reorganization, (v) as equity kickers to financing sources, (vi) in connection with an exchange of equity, debt or debt securities, or (vii) pursuant to other customary or agreed upon excluded transactions. |
| Information Rights: | By the Effective Date, neither New Just Energy Parent nor Just Energy will be a “reporting issuer” under Canadian securities laws. |
New Just Energy Parent will provide or make available to each equityholder, via an electronic data site:
| (i) | As soon as reasonably practicable (and in any event within ninety (90) days) after the end of each fiscal year, audited consolidated financial statements and financial information as of the end of and for such year (including an income statement, balance sheet and statement of cash flows). |
| (ii) | As soon as reasonably practicable (and in any event within forty-five (45) days after the end of each fiscal quarter, quarterly unaudited consolidated financial statements and financial information as of the end of and for such quarter and year-to-date period (including an income statement, balance sheet and statement of cash flows). |
In no event will any financial information required to be furnished pursuant to this Term Sheet be required to include any information required by, or to be prepared or approved in accordance with, or otherwise be subject to, any provision of Section 404 of the Sarbanes-Oxley Act of 2002 or any rules, regulations, or accounting guidance adopted pursuant to that section.
Subject to execution of customary confidentiality agreements (including on a click-through basis), New Just Energy Parent will also make available the information and reports set forth in clauses (i) and (ii) above to bona fide prospective third party transferees identified by an equityholder subject to New Just Energy Parent’s confirmation that such prospective transferee would be eligible to acquire the New Common Shares (and such prospective third party transferee may not share such information).
Corporate Opportunities;
| Fiduciary Duties: | The New Corporate Governance Documents will provide for the renunciation of the Company’s interest in business opportunities that are presented to Directors or equityholders and a disclaimer of fiduciary duties of the Directors and equityholders, in each case, other than such Directors or equityholders that are employees or officers of New Just Energy Parent; provided, that Directors shall be bound by the obligation of good faith and fair dealing. |
| Amendments: | Any amendment, supplement, modification, or waiver to the terms of the New Common Shares or the New Corporate Governance Documents that is disproportionate and materially adverse to one or more equityholder as compared to another equityholder shall require the affirmative consent of such affected equityholder (other than in de minimis respects, and for the avoidance of doubt, without giving effect to any equityhholder’s specific tax position or any other matters personal to an equityholder). |
| Other Terms: | The New Corporate Governance Documents will also provide for other customary terms, including, without limitation, the time, place and manner of calling of regular and special meetings of equityholders and the Board, the titles and duties of officers and the manner of appointment, removal and replacement thereof, and indemnification and exculpation of Directors, officers and other appropriate persons. |
| The New Corporate Governance Documents will provide that Affiliate transactions (other than those (x) that are customary Director and officer indemnification and expense reimbursement or (y) to which pre-emptive rights apply) shall require the approval of a majority of the disinterested members of the Board. |
| Each equityholder, together with its Affiliates, holding at least 5% of the outstanding New Common Shares on a fully-diluted basis, will have customary demand and piggyback registration rights upon an initial public offering with net proceeds of at least a threshold to be determined, and will be subject to customary lock-up provisions and usual and customary exceptions and limitations. |
| Delaware will be the exclusive forum for litigation by holders of the equity interests of New Just Energy Parent. |
EXHIBIT 4
Management Incentive Plan
MANAGEMENT COMPENSATION ARRANGEMENTS1
The following summarizes the principal emergence related management compensation arrangements for Just Energy Group Inc. (the “Company”).
| Overview: |
General. New Just Energy Parent (such entity is referred to as “Issuer”) will adopt a Management Incentive Plan (the “MIP”) in connection with the restructuring contemplated in the Plan Support Agreement and the Restructuring Term Sheet to which this term sheet is attached as an exhibit on the terms and conditions set forth herein on the Emergence Date. Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Plan Support Agreement and Restructuring Term Sheet.
Incentive Equity Pool. Issuer will reserve exclusively for employees of the Company and its subsidiaries and members of the Board of Directors (such reserve, the “MIP Pool”) a pool of shares of common equity (“Common Stock”) of Issuer representing 10% of Issuer’s Common Stock, determined on a fully diluted and fully distributed basis (i.e., assuming conversion of all outstanding convertible securities and full distribution of the MIP Pool).
Emergence Grants. Emergence Grants equal to 50% of the MIP Pool will be granted to management employees upon Emergence in the form of restricted stock units (“RSUs”) and performance stock units (“PSUs”) in accordance with this Term Sheet and the allocations indicated in Exhibit A (“Emergence Grants”). Emergence Grants will be made 40% in the form of RSUs and 60% in the form of PSUs and will have customary dividend equivalent rights.
Future Grants. The Company will make future equity grants as determined by the post-Emergence Board of Directors.
|
| RSUs |
Normal Vesting. Subject to an Executive’s continued employment, the RSU component of Emergence Grants will vest ratably on each of the first four (4) anniversaries of Emergence.
Accelerated Vesting Upon Termination. If an Executive is terminated without “cause” (as defined below) or terminates for “good reason” (as defined below) or due to death or disability, the Executive will be credited with vesting service to the next normal vesting date.
Accelerated Vesting Upon a Change in Control or Public Listing. Upon a Change of Control2 or Public Listing3 of the Company, 100% of an Executive’s unvested RSU component of Emergence Grants will accelerate and vest.
Accelerated Vesting Upon a Sale of Common Shares by the Plan Sponsor. If any affiliated entities of the Plan Sponsor (a “Plan Sponsor Entity”) sell any common equity in an amount that does not trigger a Change of Control at any time that exceeds an aggregate of 20% of the fully diluted outstanding common equity in one or a series of related transactions, an amount, if any, of the Executive’s RSUs shall vest at the closing of the sale by the Plan Sponsor Entity to bring the aggregate percentage of the Executive’s RSUs that have vested to be the same as the same percentage of common shares that have been sold, in aggregate, by the Plan Sponsor Entity.
|
| 1 | To participate in the MIP, each executive listed in Exhibit A will agree to waive their change of control provisions in their respective agreements with respect to and only in relation to the transactions being contemplated by the Plan Support Agreement. |
| 2 | “Change of Control” definition will be a customary incentive plan definition with greater than 50% stock acquisition, merger with greater than 50% ownership change and sale of all/substantially all asset. |
| 3 | Public Listing will be defined to mean an IPO, direct listing, or de-SPAC transaction. |
| PSUs | Vesting. PSUs will be subject to both time and performance vesting. PSUs will time vest on the same basis as RSUs, including upon a Change of Control or Public Listing, or sale of common shares by the Plan Sponsor Entities. PSUs will performance vest in accordance with the following table, with linear interpolation applied for performance between MoM tiers:
|
| MoM | Month 0 to 15 | Month 15 to 36 | Month 36+ | |||
| 1.00x | 0% | 0% | 0% | |||
| 1.25x | 50% | 50% | 33% | |||
| 1.33x | 75% | 63% | 50% | |||
| 1.50x | 100% | 88% | 75% | |||
| 1.75x | 125% | 113% | 100% | |||
| 2.00x | 133% | 125% | 125% | |||
| 2.25x | 133% | 133% | 133% | |||
Determination of MoM. The MoM is determined at the first to occur of a Change of Control or Public Listing by dividing the Per Share Transaction Value4 by the Per Share Emergence Value.5
Certain Terminations. Upon a termination of employment: (i) for any reason (including due to Executive’s disability) other than by the Company for Cause, (ii) by the Executive for Good Reason, or (iii) due to the Executive’s death, the Executive will be credited with vesting service to the next normal vesting date and PSUs that have time vested (the “Contingent PSUs”) shall remain outstanding and eligible to vest upon achievement of the applicable performance conditions until the first anniversary of such termination. Upon a termination for Cause or a material violation of a restrictive covenant to which an Executive has agreed to be subject that is not cured within 30 days of written notice from the Company, all PSUs and RSUs, whether or not vested, shall terminate without consideration.
Distributions. PSUs will be settled within 10 businessdays after vesting. Vested RSUs will be settled upon the first to occur of (i) an Executive’s separation from service (ii) a Change of Control., or (iii) the fifth anniversary of Emergence.
| |
| Joinder to the Stockholders Agreement: | Each Executive will execute a joinder to the limited liability company agreement / stockholders agreement of New Just Energy Parent consistent with the Governance Term Sheet attached to the PSA with Participants having the same rights and obligations as any other equityholder. |
| 4 | The fair market value of a share of common stock based (i) on the per share transaction price in a Change of Control, subject to any holdbacks and other contingent consideration or (ii) the 10-day VWAP immediately following an initial public listing, in each case taking into account any post-Emergence prior dividends and distributions.. |
| 5 | The common equity value of the Company expressed on a per common share basis taking into account outstanding common shares, Emergence Grants and other instruments, if any, convertible into common stock and stock splits, consolidations and other similar events. The final documents will include customary dispute resolutions procedures regarding equity valuations. The Per Share Emergence Value will be determined promptly after the meetings of creditors to approve the Plan has concluded. |
| Taxes: | Participants may satisfy applicable withholdings for taxes and other amounts incurred in connection with settlement either through net share settlement or by voluntarily surrendering a portion of the Award equivalent in value to the amount to be withheld. |
| Severance: |
The executives listed on Exhibit A will be provided cash severance benefits upon a termination (i) for a reason other than “cause”6 or (ii) due to “good reason”6 as follows:
· On or before the first anniversary of Emergence: 1.5 x the Executive’s existing severance payment in their respective employment agreement.
· After the first anniversary of Emergence and before a Change of Control: as per the terms of the Constructive Dismissal or Termination by the Company without Good Cause language in the executive’s respective employment agreement.
· Within 24 months after a post-Emergence Change of Control: as per the terms of the Change of Control language in the executive’s respective employment agreement.
Executives’ employment agreements will be amended to reflect the foregoing effective as of the Effective Date.
|
| Indemnity | On or before Emergence, Issuer shall enter into a new indemnity agreement, with each member of management having substantially similar terms to the existing agreement.7 |
| Final Documentation | The final documentation related to the forgoing matters will not contain any covenants that impose material restrictions, limitations or additional obligations on an Executive that are not set forth herein. |
| 6 | As defined in the Employment Agreement. |
| 7 | Current Indemnity Agreements are provided by Just Energy Group Inc. (“JEGI”) on its and its subsidiaries behalf. As of closing, JEGI will be a subsidiary of New Just Energy Parent and its subsidiaries will only be the Canadian subsidiaries. Accordingly, New Just Energy Parent needs to provide indemnity agreements on its behalf and on behalf of all its subsidiaries. |
Exhibit A
(Redacted.)
EXHIBIT 5
New Intercreditor Agreement Term Sheet
SEVENTH AMENDED
AND RESTATED INTERCREDITOR AGREEMENT
SUMMARY OF TERMS AND CONDITIONS
May 12, 2022
This Summary of Terms and Conditions (this” Summary”) is intended for discussion purposes only and cannot be construed as creating an obligation to reach an agreement on definitive terms and conditions. This Summary does not include descriptions of all of the terms, conditions and other provisions that are to be contained in the definitive documentation relating to the seventh amended and restated intercreditor agreement (the “Intercreditor Agreement”) to be entered into between the Borrowers, the other Obligors, the Collateral Agent, the Agent (for and on behalf of the Lenders) and the Commodity Suppliers party thereto from time to time.
Reference is made to the sixth amended and restated intercreditor agreement dated as of September 1, 2015 (as amended, supplemented or otherwise modified from time to time to the date hereof, the “Existing Intercreditor Agreement”) between National Bank of Canada, as Collateral Agent, National Bank of Canada, as the Agent (for and on behalf of the Lenders), Shell Energy, the Other Commodity Suppliers (as defined therein), the Borrowers, the Restricted Subsidiaries and other Persons from time to time party thereto. Unless the context otherwise requires, capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Existing Intercreditor Agreement.
| Term | Change | Notes |
| Collateral Agent | National Bank of Canada to reflect collateral agency succession which occurred on March 1, 2019 | |
| Commodity Suppliers | Shell Energy North America (Canada) Inc., Shell Energy North America (US), L.P., Shell Trading Risk Management, LLC, BP Canada Energy Group ULC, BP Canada Energy Marketing Corp., BP Energy Company,1 MacQuarie Bank Limited, MacQuarie Energy Canada Ltd. and MacQuarie Energy LLC 2 | Permit the addition of any or all of (i) Mercuria Energy America, LLC and its Affiliates, (ii) Hartree Partners, LP and its Affiliates and (iii) EDF Trading North America, LLC and its Affiliates (the “Agreed Additional Suppliers”), so long as each such Agreed Additional Supplier satisfies the Minimum Credit Criteria (as defined herein).
|
| 1 | At this time it is not known if BP and Macquarie will remain as parties and Suppliers under the Intercreditor Agreement. |
| 2 | Exelon Generation Company, LLC, Nextera Energy Power Marketing LLC and Morgan Stanley Capital Group Inc. may be removed as parties and Suppliers under the Intercreditor Agreement. |
-2-
| Term | Change | Notes | |
| Obligors | All Obligors under the tenth amended and restated credit agreement (the “Tenth ARCA”) to be entered into among the Borrowers, the Agent and the lenders party thereto from time to time, which Obligors shall include Just Energy Group Inc. and all of its North American operating subsidiaries. 3 | ||
| Definitions | - |
Definition of “ISO Services Agreement” to be replaced with the following definition:
“ISO Services Agreement” means an agreement pursuant to which (i) an Obligor has reimbursement obligations to a Senior Creditor for payments made by such Senior Creditor on behalf of such Obligor to an ISO, or (ii) a Senior Creditor agrees to deal directly with an ISO on an Obligor’s behalf to schedule the delivery of electricity, bid into the day-ahead market, purchase in the real-time market, post collateral therefor and pay the purchase price of such electricity and attendant services, in each case regardless of any term of such agreement that states that title to such electricity has been transferred to the applicable Senior Creditor during such transactions. For the avoidance of doubt, net settlement instructions registered with the Alberta Electric System Operator (“AESO”) by agreement with an Obligor relating to the bilateral purchase of power between an Obligor and a Senior Creditor shall not constitute an ISO Services Agreement. |
|
| 3 | Obligors will not include JEAS Holdings LP, Just Ventures GP Corp., Just Ventures L.P., Just Energy Services Limited, Just Holdings L.P., American Home Energy Services Corp., Just Ventures LLC, Momentis U.S. Corp. |
-3-
| Term | Change | Notes | |
| - | Definition of “ISO Services Obligations” to be replaced with the following definition:
“ISO Services Obligations” means the reimbursement obligations of an Obligor to a Senior Creditor under an ISO Services Agreement, including without limitation, the Shell Energy ISO Reimbursement Obligations and the BP ISO Services Obligations. Without limitation to the foregoing, any obligation arising in respect of the supply of electricity or services purchased, arranged or scheduled for or on behalf of an Obligor through an ISO and delivered to the Obligor or its customers pursuant to an ISO Services Agreement shall be an ISO Services Obligation for the purposes of Sections [2.02(e)] and [3.04(e)] of this Agreement, regardless of any provision of the ISO Services Agreement that directly or indirectly provides otherwise (including any term of such agreement that states that title to such electricity has been transferred to the applicable Senior Creditor during such transactions or that the physical or financial purchase or sale of such electricity is to be governed by a separate agreement). Notwithstanding the foregoing, any bilateral purchase of electricity between an Obligor and a Senior Creditor for which net settlement instructions are registered with the AESO by agreement with an Obligor shall not constitute ISO Services Obligations. |
||
-4-
| Term | Change | Notes | |
| - | consolidate separate treatment of Shell Energy versus “Other Commodity Supplier” to include only “Commodity Suppliers” 4 | ||
| - | add Montreal to definition of “Business Day” | ||
| - | update all references to CIBC to NBC to reflect the collateral agency succession which occurred on March 1, 2019 |
||
| - | increase “Deposit Threshold” from US$10MM to align with the “Permitted Encumbrance” limit in respect of Cash under the Tenth ARCA |
||
| - | delete definition of “Energy Management Agreement” and related reference in “Shell Energy Agreement” |
||
| - | delete definition of “Distributable Free Cash Flow” | ||
| 4 | Historical references in the security to these terms to be addressed in a reaffirmation agreement of the security. |
-5-
| Term | Change | Notes | |
| - | delete Exgen and Constellation related defined terms | ||
| - | align definition of “Fiscal Year” with Tenth ARCA definition | ||
| - | align definition of GAAP with Tenth ARCA definition | ||
| - | delete references to “UK Obligors” | ||
| - | delete references to “High Yield Debt” | ||
| - | delete definition of “Modified Consolidated Basis” | ||
| - | align definitions of “Permitted Asset Dispositions” and “Permitted Encumbrances” with Credit Agreement definitions | ||
| - | increase $5MM threshold in definition of “Significant Creditor” to $20MM | ||
| Sections 1.02-1.08 | No Change | ||
| Add a new Section 1.09 | Amounts paid in the 2021-2022 CCAA proceedings and the Chapter 15 proceedings will not constitute “Proceeds of Realization” for purposes of the Intercreditor Agreement. | ||
| Article 2 Collections | No Change aside from consolidation of references to only Commodity Suppliers | ||
-6-
| Term | Change | Notes | |
| Article 3 Security Sharing | - |
Consolidation of references to only Commodity Suppliers
|
|
| - | Provide the Commodity Suppliers with the same priorities given to the commodity suppliers under the Existing Intercreditor Agreement
|
||
| - | If the Tenth ARCA requires mandatory reductions in the commitments thereunder (other than in the case of the termination of the commitments as a result of an Event of Default) 5, and as a result of such commitment reductions (i) the aggregate face amount of the letters of credit then outstanding under the credit facilities exceeds the reduced commitments of the Lenders under such credit facilities (such excess, the “LC Deficiency Amount”), and (ii) as a consequence the Obligors are required to provide cash collateral to the Agent (for the benefit of the Lenders) to secure the obligations of the Obligors relating to such letters of credit in the amount of the LC Deficiency Amount, then the Agent and the Lenders shall have priority in such cash collateral (unless and until such collateral is returned to the Obligors in accordance with the Tenth ARCA) in an amount not to exceed such LC Deficiency Amount. For the avoidance of doubt, the foregoing provision shall apply only for so long as the Tenth ARCA is in effect, and shall not apply to any refinancing of the Tenth ARCA. | ||
| 5 | The Tenth ARCA will have two categories of mandatory commitment reduction: (i) commitment reductions based on excess cash flow, and (ii) commitment reductions using proceeds from asset dispositions. The definitive Intercreditor Agreement will make reference to specific sections of the Tenth ARCA relating to those commitment reduction requirements. |
-7-
| Term | Change | Notes | |
| Article 4 Enforcement and Remedies | No Change aside from consolidation of references to only Commodity Suppliers | ||
| Article 5 Assignment of Agreements | No Change aside from consolidation of references to only Commodity Suppliers | ||
| Article 6 Collateral Agent | - |
Update references from CIBC to NBC, consolidation of references to only Commodity Suppliers and operational changes required by the Collateral Agent and as reasonably agreed by Shell.
|
|
| - | Section 6.04(3) of the Intercreditor Agreement to be aligned with Tenth ARCA. | ||
| Article 7 General Powers | No Change aside from consolidation of references to only Commodity Suppliers | ||
| Article 8 Miscellaneous | No Change aside from (i) consolidation of references to only Commodity Suppliers and (ii) to continue the existing provision in Section 8.13 of the Existing Intercreditor Agreement requiring consent of the Required Secured Creditors in order to admit a new Commodity Supplier (other than the Agreed Additional Suppliers), but Section 8.13 of the Existing Intercreditor Agreement will be modified to state that no more than 6 total Commodity Suppliers will be party to the Intercreditor Agreement (and for purposes of the foregoing a Commodity Supplier and its Affiliates shall be treated as a single Commodity Supplier). | ||
-8-
| Term | Change | Notes | |
| Article 9 Restrictive Covenants, Reporting Covenants and Events of Default |
Substantially the same with the following changes: |
||
| - | Existing restrictive covenants (in Section 9.01) and reporting covenants (in Section 9.02) to be aligned with corresponding covenants in the Tenth ARCA, including changing Section 9.01(6) to be consistent with the Tenth ARCA (prohibition on Distributions). | ||
| - | New covenant in Section 9.01 to provide that Just Energy will only enter into or renew or permit the assignment of Supplier Contracts where, in any case, the supplier thereunder and any new supplier satisfy the following criteria (the “Minimum Credit Criteria”): (i) has a minimum credit rating of (A) BBB- or higher by S&P, (B) Baa3 or higher by Moody’s, (C) BBB- or higher by Fitch, or (D) BBB- or higher by DBRS (the “Minimum Supplier Rating”), (ii) has its obligations backed by a guarantee from a Person with a credit rating meeting the requirements of (i) hereof or by a letter of credit issued by a bank whose long term debt is rated at least “A” by S&P, or (iii) is not rated or does not have its obligations backed by a guarantee or letter of credit as described in (i) or (ii) hereof provided that all such suppliers do not exceed 7.5% of the total supply under all Supplier Contracts. Notwithstanding the foregoing covenant, a Commodity Supplier that has its obligations backed by a letter of credit pursuant to (ii) above, is permitted to have a credit limit of up to USD$15,000,000 of obligations unsupported by a letter of credit (each, an “Unsecured Credit Limit”), so long as all such Unsecured Credit Limits of all Commodity Suppliers does not exceed USD$50,000,000 in the aggregate at any time. | ||
-9-
| Term | Change | Notes | |
| - | The covenant in Section 9.01(25) of the Credit Agreement will have to be amended to be consistent with the language noted-above. | ||
| - | No additional reporting covenants, existing reporting covenants to be aligned with corresponding reporting requirements in the Tenth ARCA. | ||
| Definition by Reference | For purposes of the Intercreditor Agreement, (i) any capitalized terms defined in the Intercreditor Agreement by reference to the Tenth ARCA as of the date of the Intercreditor Agreement shall be subject to Shell’s approval and any other references to the Tenth ARCA that affect Shell shall be subject to Shell’s approval (acting reasonably), and (ii) any capitalized terms defined in the Intercreditor Agreement by reference to the Shell Energy Agreements as of the date of the Intercreditor Agreement shall be subject to the Agent’s approval. | ||
EXHIBIT D
EXHIBIT E
Form of Joinder Agreement
This Joinder Agreement to the Plan Support Agreement, dated as of May 12, 2022 (as amended, supplemented, or otherwise modified from time to time, the “Agreement”), between (i) Just Energy Group Inc., Just Energy Corp., Ontario Energy Commodities Inc., Universal Energy Corporation, Just Energy Finance Canada ULC, Hudson Energy Canada Corp., Just Management Corp., 11929747 Canada Inc., 12175592 Canada Inc., JE Services Holdco I Inc., JE Services Holdco II Inc., 8704104 Canada Inc., Just Energy Advanced Solutions Corp., Just Energy (U.S.) Corp., Just Energy Illinois Corp., Just Energy Indiana Corp., Just Energy Massachusetts Corp., Just Energy New York Corp., Just Energy Texas I Corp., Just Energy, LLC, Just Energy Pennsylvania Corp., Just Energy Michigan Corp., Just Energy Solutions Inc., Hudson Energy Services LLC, Hudson Energy Corp., Interactive Energy Group LLC, Hudson Parent Holdings LLC, Drag Marketing LLC, Just Energy Advanced Solutions LLC, Fulcrum Retail Energy LLC, Fulcrum Retail Holdings LLC, Tara Energy, LLC, Just Energy Marketing Corp., Just Energy Connecticut Corp., Just Energy Limited, Just Solar Holdings Corp., Just Energy (Finance) Hungary Zrt, Just Energy Ontario L.P., Just Energy Manitoba L.P., Just Energy (B.C.) Limited Partnership, Just Energy Québec L.P., Just Energy Trading L.P., Just Energy Alberta L.P., Just Green L.P., Just Energy Prairies L.P., JEBPO Services LLP, and Just Energy Texas LP and (ii) the Plan Sponsor is executed and delivered by ___________________________ (the “Joining Party”) as of ______________, 2022. Each capitalized term used herein but not otherwise defined shall have the meaning set forth in the Agreement.
1. Agreement to Be Bound. The Joining Party hereby agrees to be bound by all of the terms of the Agreement, a copy of which is attached to this Joinder Agreement as Exhibit 1 (as the same has been or may be hereafter amended, restated, or otherwise modified from time to time in accordance with the provisions hereof). The Joining Party shall hereafter be deemed to be a “Supporting Creditor,” and “Party” for all purposes under the Agreement and with respect to any and all Claims held by such Joining Party.
2. Representations and Warranties. With respect to the aggregate principal amount of the Claims set forth below its name on the signature page hereto, the Joining Party hereby makes the representations and warranties of a Supporting Creditor, as applicable, as set forth in Section 15 of the Agreement to each other Party to the Agreement.
3. Governing Law. This Joinder Agreement shall be governed by and construed in accordance with the internal laws of the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to any conflict of law provisions which would require the application of the law of any other jurisdiction.
[Signature page follows.]
| [JOINING PARTY] | ||
| By: | ||
| Name: | ||
| Title: | ||
| Notice Address: | ||
| Principal Amount of Credit Facility Claims: $______________________________ |
| Principal Amount of Term Loan Claims: $____________________________ |
Principal Amount of Other Claims: $____________________________ |
| Interests: ____________________________ |
| Acknowledged: | |
| COMPANY | |
| Name: | |
| Title: |
2
EXHIBIT 1
Plan Support Agreement
EXHIBIT F
Term Sheet for Material Updates to Intercreditor Agreement
SEVENTH AMENDED
AND RESTATED INTERCREDITOR AGREEMENT
SUMMARY OF TERMS AND CONDITIONS
May 12, 2022
This Summary of Terms and Conditions (this” Summary”) is intended for discussion purposes only and cannot be construed as creating an obligation to reach an agreement on definitive terms and conditions. This Summary does not include descriptions of all of the terms, conditions and other provisions that are to be contained in the definitive documentation relating to the seventh amended and restated intercreditor agreement (the “Intercreditor Agreement”) to be entered into between the Borrowers, the other Obligors, the Collateral Agent, the Agent (for and on behalf of the Lenders) and the Commodity Suppliers party thereto from time to time.
Reference is made to the sixth amended and restated intercreditor agreement dated as of September 1, 2015 (as amended, supplemented or otherwise modified from time to time to the date hereof, the “Existing Intercreditor Agreement”) between National Bank of Canada, as Collateral Agent, National Bank of Canada, as the Agent (for and on behalf of the Lenders), Shell Energy, the Other Commodity Suppliers (as defined therein), the Borrowers, the Restricted Subsidiaries and other Persons from time to time party thereto. Unless the context otherwise requires, capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Existing Intercreditor Agreement.
| Term | Change | Notes |
| Collateral Agent | National Bank of Canada to reflect collateral agency succession which occurred on March 1, 2019 | |
| Commodity Suppliers | Shell Energy North America (Canada) Inc., Shell Energy North America (US), L.P., Shell Trading Risk Management, LLC, BP Canada Energy Group ULC, BP Canada Energy Marketing Corp., BP Energy Company,1 MacQuarie Bank Limited, MacQuarie Energy Canada Ltd. and MacQuarie Energy LLC 2 | Permit the addition of any or all of (i) Mercuria Energy America, LLC and its Affiliates, (ii) Hartree Partners, LP and its Affiliates and (iii) EDF Trading North America, LLC and its Affiliates (the “Agreed Additional Suppliers”), so long as each such Agreed Additional Supplier satisfies the Minimum Credit Criteria (as defined herein).
|
| 1 | At this time it is not known if BP and Macquarie will remain as parties and Suppliers under the Intercreditor Agreement. |
| 2 | Exelon Generation Company, LLC, Nextera Energy Power Marketing LLC and Morgan Stanley Capital Group Inc. may be removed as parties and Suppliers under the Intercreditor Agreement. |
-2-
| Term | Change | Notes | |
| Obligors | All Obligors under the tenth amended and restated credit agreement (the “Tenth ARCA”) to be entered into among the Borrowers, the Agent and the lenders party thereto from time to time, which Obligors shall include Just Energy Group Inc. and all of its North American operating subsidiaries. 3 | ||
| Definitions | - |
Definition of “ISO Services Agreement” to be replaced with the following definition:
“ISO Services Agreement” means an agreement pursuant to which (i) an Obligor has reimbursement obligations to a Senior Creditor for payments made by such Senior Creditor on behalf of such Obligor to an ISO, or (ii) a Senior Creditor agrees to deal directly with an ISO on an Obligor’s behalf to schedule the delivery of electricity, bid into the day-ahead market, purchase in the real-time market, post collateral therefor and pay the purchase price of such electricity and attendant services, in each case regardless of any term of such agreement that states that title to such electricity has been transferred to the applicable Senior Creditor during such transactions. For the avoidance of doubt, net settlement instructions registered with the Alberta Electric System Operator (“AESO”) by agreement with an Obligor relating to the bilateral purchase of power between an Obligor and a Senior Creditor shall not constitute an ISO Services Agreement. |
|
| 3 | Obligors will not include JEAS Holdings LP, Just Ventures GP Corp., Just Ventures L.P., Just Energy Services Limited, Just Holdings L.P., American Home Energy Services Corp., Just Ventures LLC, Momentis U.S. Corp. |
-3-
| Term | Change | Notes | |
| - | Definition of “ISO Services Obligations” to be replaced with the following definition:
“ISO Services Obligations” means the reimbursement obligations of an Obligor to a Senior Creditor under an ISO Services Agreement, including without limitation, the Shell Energy ISO Reimbursement Obligations and the BP ISO Services Obligations. Without limitation to the foregoing, any obligation arising in respect of the supply of electricity or services purchased, arranged or scheduled for or on behalf of an Obligor through an ISO and delivered to the Obligor or its customers pursuant to an ISO Services Agreement shall be an ISO Services Obligation for the purposes of Sections [2.02(e)] and [3.04(e)] of this Agreement, regardless of any provision of the ISO Services Agreement that directly or indirectly provides otherwise (including any term of such agreement that states that title to such electricity has been transferred to the applicable Senior Creditor during such transactions or that the physical or financial purchase or sale of such electricity is to be governed by a separate agreement). Notwithstanding the foregoing, any bilateral purchase of electricity between an Obligor and a Senior Creditor for which net settlement instructions are registered with the AESO by agreement with an Obligor shall not constitute ISO Services Obligations. |
||
-4-
| Term | Change | Notes | |
| - | consolidate separate treatment of Shell Energy versus “Other Commodity Supplier” to include only “Commodity Suppliers” 4 | ||
| - | add Montreal to definition of “Business Day” | ||
| - | update all references to CIBC to NBC to reflect the collateral agency succession which occurred on March 1, 2019 |
||
| - | increase “Deposit Threshold” from US$10MM to align with the “Permitted Encumbrance” limit in respect of Cash under the Tenth ARCA |
||
| - | delete definition of “Energy Management Agreement” and related reference in “Shell Energy Agreement” |
||
| - | delete definition of “Distributable Free Cash Flow” | ||
| 4 | Historical references in the security to these terms to be addressed in a reaffirmation agreement of the security. |
-5-
| Term | Change | Notes | |
| - | delete Exgen and Constellation related defined terms | ||
| - | align definition of “Fiscal Year” with Tenth ARCA definition | ||
| - | align definition of GAAP with Tenth ARCA definition | ||
| - | delete references to “UK Obligors” | ||
| - | delete references to “High Yield Debt” | ||
| - | delete definition of “Modified Consolidated Basis” | ||
| - | align definitions of “Permitted Asset Dispositions” and “Permitted Encumbrances” with Credit Agreement definitions | ||
| - | increase $5MM threshold in definition of “Significant Creditor” to $20MM | ||
| Sections 1.02-1.08 | No Change | ||
| Add a new Section 1.09 | Amounts paid in the 2021-2022 CCAA proceedings and the Chapter 15 proceedings will not constitute “Proceeds of Realization” for purposes of the Intercreditor Agreement. | ||
| Article 2 Collections | No Change aside from consolidation of references to only Commodity Suppliers | ||
-6-
| Term | Change | Notes | |
| Article 3 Security Sharing | - |
Consolidation of references to only Commodity Suppliers
|
|
| - | Provide the Commodity Suppliers with the same priorities given to the commodity suppliers under the Existing Intercreditor Agreement
|
||
| - | If the Tenth ARCA requires mandatory reductions in the commitments thereunder (other than in the case of the termination of the commitments as a result of an Event of Default) 5, and as a result of such commitment reductions (i) the aggregate face amount of the letters of credit then outstanding under the credit facilities exceeds the reduced commitments of the Lenders under such credit facilities (such excess, the “LC Deficiency Amount”), and (ii) as a consequence the Obligors are required to provide cash collateral to the Agent (for the benefit of the Lenders) to secure the obligations of the Obligors relating to such letters of credit in the amount of the LC Deficiency Amount, then the Agent and the Lenders shall have priority in such cash collateral (unless and until such collateral is returned to the Obligors in accordance with the Tenth ARCA) in an amount not to exceed such LC Deficiency Amount. For the avoidance of doubt, the foregoing provision shall apply only for so long as the Tenth ARCA is in effect, and shall not apply to any refinancing of the Tenth ARCA. | ||
| 5 | The Tenth ARCA will have two categories of mandatory commitment reduction: (i) commitment reductions based on excess cash flow, and (ii) commitment reductions using proceeds from asset dispositions. The definitive Intercreditor Agreement will make reference to specific sections of the Tenth ARCA relating to those commitment reduction requirements. |
-7-
| Term | Change | Notes | |
| Article 4 Enforcement and Remedies | No Change aside from consolidation of references to only Commodity Suppliers | ||
| Article 5 Assignment of Agreements | No Change aside from consolidation of references to only Commodity Suppliers | ||
| Article 6 Collateral Agent | - |
Update references from CIBC to NBC, consolidation of references to only Commodity Suppliers and operational changes required by the Collateral Agent and as reasonably agreed by Shell.
|
|
| - | Section 6.04(3) of the Intercreditor Agreement to be aligned with Tenth ARCA. | ||
| Article 7 General Powers | No Change aside from consolidation of references to only Commodity Suppliers | ||
| Article 8 Miscellaneous | No Change aside from (i) consolidation of references to only Commodity Suppliers and (ii) to continue the existing provision in Section 8.13 of the Existing Intercreditor Agreement requiring consent of the Required Secured Creditors in order to admit a new Commodity Supplier (other than the Agreed Additional Suppliers), but Section 8.13 of the Existing Intercreditor Agreement will be modified to state that no more than 6 total Commodity Suppliers will be party to the Intercreditor Agreement (and for purposes of the foregoing a Commodity Supplier and its Affiliates shall be treated as a single Commodity Supplier). | ||
-8-
| Term | Change | Notes | |
| Article 9 Restrictive Covenants, Reporting Covenants and Events of Default |
Substantially the same with the following changes: |
||
| - | Existing restrictive covenants (in Section 9.01) and reporting covenants (in Section 9.02) to be aligned with corresponding covenants in the Tenth ARCA, including changing Section 9.01(6) to be consistent with the Tenth ARCA (prohibition on Distributions). | ||
| - | New covenant in Section 9.01 to provide that Just Energy will only enter into or renew or permit the assignment of Supplier Contracts where, in any case, the supplier thereunder and any new supplier satisfy the following criteria (the “Minimum Credit Criteria”): (i) has a minimum credit rating of (A) BBB- or higher by S&P, (B) Baa3 or higher by Moody’s, (C) BBB- or higher by Fitch, or (D) BBB- or higher by DBRS (the “Minimum Supplier Rating”), (ii) has its obligations backed by a guarantee from a Person with a credit rating meeting the requirements of (i) hereof or by a letter of credit issued by a bank whose long term debt is rated at least “A” by S&P, or (iii) is not rated or does not have its obligations backed by a guarantee or letter of credit as described in (i) or (ii) hereof provided that all such suppliers do not exceed 7.5% of the total supply under all Supplier Contracts. Notwithstanding the foregoing covenant, a Commodity Supplier that has its obligations backed by a letter of credit pursuant to (ii) above, is permitted to have a credit limit of up to USD$15,000,000 of obligations unsupported by a letter of credit (each, an “Unsecured Credit Limit”), so long as all such Unsecured Credit Limits of all Commodity Suppliers does not exceed USD$50,000,000 in the aggregate at any time. | ||
-9-
| Term | Change | Notes | |
| - | The covenant in Section 9.01(25) of the Credit Agreement will have to be amended to be consistent with the language noted-above. | ||
| - | No additional reporting covenants, existing reporting covenants to be aligned with corresponding reporting requirements in the Tenth ARCA. | ||
| Definition by Reference | For purposes of the Intercreditor Agreement, (i) any capitalized terms defined in the Intercreditor Agreement by reference to the Tenth ARCA as of the date of the Intercreditor Agreement shall be subject to Shell’s approval and any other references to the Tenth ARCA that affect Shell shall be subject to Shell’s approval (acting reasonably), and (ii) any capitalized terms defined in the Intercreditor Agreement by reference to the Shell Energy Agreements as of the date of the Intercreditor Agreement shall be subject to the Agent’s approval. | ||
Exhibit 99.3
BACKSTOP COMMITMENT LETTER
May 12, 2022
PRIVATE & CONFIDENTIAL
Just Energy (U.S.) Corp.
5251 Westheimer Road, Suite 1000
Houston, Texas 77056
Dear Sirs/Mesdames:
Just Energy (U.S.) Corp. (“Just Energy” or the “Company”) has advised each of the signatories to this backstop commitment letter (together with all schedules hereto, the “Backstop Commitment Letter”) on the date hereof (the “Initial Backstop Parties” and each an “Initial Backstop Party”; and collectively, the Initial Backstop Parties, the Additional Backstop Parties (as defined herein) and the Assignee Backstop Parties (as defined herein), collectively, the “Backstop Parties” and each a “Backstop Party”) that the Company intends to effect a recapitalization and restructuring and related transactions involving the Company and its Affiliates (as defined herein) (collectively, the “Just Energy Entities” and each a “Just Energy Entity”), the terms of which shall be implemented pursuant to a plan of compromise and arrangement under the Companies’ Creditors Arrangement Act (the “CCAA”) (as the same may be amended, restated, supplemented, or otherwise modified and in effect from time to time in accordance with its terms and which shall be in form and substance reasonably acceptable to the Company and the Initial Backstop Parties and in accordance with the terms of the Plan Support Agreement (defined below), the “Plan”), pursuant to which, among other things, New Equity Offering Eligible Participants, including certain Backstop Parties, will have an opportunity to subscribe for and receive common equity of New Just Energy Parent (as defined in the Plan) (the “New Equity Offering Shares”) issuable pursuant to the Plan for aggregate consideration of US$192,550,000 (the “New Equity Offering”), on the terms described herein and in the Plan Support Agreement attached as Schedule “A” to this Backstop Commitment Letter (as the same may be amended and in effect from time to time, the “Plan Support Agreement”), including the restructuring term sheet attached thereto (as the same may be amended and in effect from time to time in accordance with the terms of the Plan Support Agreement, the “Restructuring Term Sheet”).
Just Energy and the Backstop Parties are collectively referred to herein as the “Parties” and each (including each Backstop Party, individually) is a “Party”. All references herein to “Restructuring” shall collectively refer to those transactions contemplated herein, and by the Plan, by the Plan Support Agreement and the Restructuring Term Sheet and in all documents and agreements contemplated by any of the foregoing (collectively, the “Transaction Documents”).
This Backstop Commitment Letter confirms the understanding and agreement among the Parties with respect to the matters addressed herein.
| 1. | Definitions |
In this Backstop Commitment Letter, capitalized terms used but not otherwise defined herein have the meanings ascribed thereto in Schedule “B”.
| 2. | Commitments |
| (a) | Within five (5) Business Days following the date the Authorization Order is granted, the Company shall send, or shall cause to be sent, a notice (the “Additional Backstop Notice”) to each holder of a Term Loan Claim as of the Term Loan Record Date (that is not an Initial Backstop Party). The Additional Backstop Notice will notify such Term Loan Claim holders that they may enter into this Backstop Commitment Letter for an Additional Backstop Commitment Allocation up to their Maximum Backstop Amount, provide wire transfer instructions for the New Equity Offering Escrow Account, and will append an Additional Backstop Party Joinder, the New Equity Offering Participation Form and this Backstop Commitment Letter. All such holders of Term Loan Claims may, subject to compliance with all applicable Securities Laws to the satisfaction of the Company, enter into this Backstop Commitment Letter by executing and delivering an Additional Backstop Party Joinder and New Equity Offering Participation Form to the Company within fifteen (15) Business Days of the date of the Additional Backstop Notice and wiring their New Equity Commitment and Additional Backstop Commitment Allocation to the New Equity Offering Escrow Account within three (3) Business Days of the Company providing it with notice of its Additional Backstop Commitment Allocation (any such Term Loan Claim holder that so executes and delivers an Additional Backstop Party Joinder, New Equity Offering Participation Form and funds its New Equity Commitment and Additional Backstop Commitment Allocation, an “Additional Backstop Party”). |
| (b) | If there are any Additional Backstop Parties, the Initial Backstop Commitment Allocation (and Backstop Commitment Allocation) for the Initial Backstop Parties will be reduced by the aggregate of the Additional Backstop Commitment Allocations, with the Initial Backstop Parties having sole discretion to allocate such reduction amongst the Initial Backstop Parties by providing written notice of the reallocations to the Company (provided that the Company may make such reallocations pro rata based on the Initial Backstop Party’s Initial Backstop Commitment Allocation if such notice is not received from the Initial Backstop Parties within twenty-five (25) Business Days of the date of the Additional Backstop Notice). |
| (c) | Each Backstop Party confirms by this Backstop Commitment Letter its several and not joint commitment to the Company to, pursuant to the Plan and the Plan Support Agreement (without duplication): |
| (i) | subscribe for and receive its New Equity Offering Shares in accordance with the terms of the New Equity Offering and the New Equity Offering Documentation; |
| (ii) | subscribe for and receive its Backstop Commitment Pro Rata Share of the Unsubscribed New Equity (the commitments under this subsection (b), the “Primary Commitments”); |
| (iii) | subscribe for and receive its Backstop Commitment Pro Rata Share of New Equity Offering Shares arising from any event where a New Equity Offering Eligible Participant subscribes for any portion of the New Equity Offering Shares and fails to fulfill its subscription obligations by the New Equity Participation Deadline (the “Defaulted Subscription Shares”, and together with the Unsubscribed New Equity, the “Backstopped Shares”) (the commitments under this subsection (c)(iii), the “Secondary Commitments” and, together with the Primary Commitments, the “Commitments”); and |
| (iv) | to the extent a Backstop Party is an Affiliate of the Plan Sponsor but is not also party to the Plan Support Agreement, such Backstop Party agrees to vote any Claims (as defined in the Plan) it holds in favor of the Plan, |
and, in the case of (i), (ii) and (iii) above, at a price of US$10 per New Common Share (the “Subscription Price”) and in each case upon the terms and subject to the conditions set forth or referred to in this Backstop Commitment Letter and the New Equity Offering Documentation and, in each case, subject to the terms of the Plan and the Plan Support Agreement, including the issuance of all Orders required thereunder.
| (d) | The rights and obligations of each Backstop Party under this Backstop Commitment Letter shall be several and not joint, and no failure by any Backstop Party to comply with any of its obligations under this Backstop Commitment Letter shall impose any additional obligations upon or prejudice the rights of any other Backstop Party; provided that, each such Backstop Party shall only be responsible for its specific Commitments as set out herein, unless otherwise agreed in writing by such Backstop Party. |
| (e) | In the event an Initial Backstop Party fails to fund any of its Commitments or its New Equity Commitment in accordance with this Backstop Commitment Letter and the New Equity Offering Documentation (a “Defaulting Backstop Party”), then each non-Defaulting Initial Backstop Party shall have the right, but not the obligation, within two (2) Business Day after receipt of written notice from the Company to all Initial Backstop Parties of such default, to assume such Defaulting Backstop Party’s Commitments hereunder. If more than one (1) such non-Defaulting Backstop Party elects to assume a Defaulting Backstop Party’s Commitments, the New Common Shares underlying such Commitments shall be allocated among such non-Defaulting Backstop Parties based on their respective Initial Backstop Commitment Pro Rata Shares (calculated without including the Initial Backstop Commitment Allocation of the Defaulting Backstop Party). If any Commitments of an Initial Backstop Party have not been funded in full by the Effective Date, (i) all Commitments and New Equity Commitments made hereunder and under the New Equity Offering Documentation, as applicable, shall be null and void and of no further force and effect, (ii) all amounts held in escrow shall be returned to the New Equity Offering Eligible Participants in accordance with the terms of the Escrow Agreement or other escrow arrangements agreed to by the Company, and (iii) this Backstop Commitment Letter shall automatically terminate. It is further hereby acknowledged and agreed that any Defaulting Backstop Party shall be liable for its breach of the terms contained herein and remain bound by this Backstop Commitment Letter and the Transaction Documents and obligated to perform all of its obligations arising hereunder and thereunder. |
| (f) | Each Backstop Party may, in its sole discretion, designate (x) one (1) or more of its Affiliates to perform its obligations hereunder or assign its rights or obligations under this Backstop Commitment Letter to one or more Affiliates that executes a Assignee Joinder and/or (y) that some or all of the New Common Shares it is entitled to receive pursuant to the Plan and this Backstop Commitment Letter be issued in the name of and delivered to one (1) or more of its Affiliates, subject to compliance with all applicable Securities Laws to the satisfaction of the Company, acting reasonably, and provided that such designation will not relieve such Backstop Party of any of its obligations under this Backstop Commitment Letter and the Transaction Documents. |
| (g) | For the avoidance of doubt, no Backstop Party shall be compelled or required, absent its prior written consent, to purchase the Backstopped Shares and New Equity Offering Shares of any Defaulting Backstop Party that is an Initial Backstop Party or to otherwise increase its Commitments hereunder. |
| 3. | Representations and Warranties of the Parties |
Each of the Parties hereby represents and warrants, severally and not jointly, to each other Party (and acknowledges that each other Party is relying upon such representations and warranties) that, as of the date hereof (subject to the issuance of the Authorization Order, Meetings Order, Sanction Order, Authorization Recognition Order, Meetings Recognition Order and Sanction Recognition Order, as applicable) and as of the Effective Date:
| (a) | this Backstop Commitment Letter has been duly authorized, executed and delivered by it, and, assuming the due authorization, execution and delivery by each of the other Parties hereto, this Backstop Commitment Letter constitutes the legal, valid and binding obligation of it, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability; |
| (b) | it is validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization and has all requisite power and authority to execute and deliver this Backstop Commitment Letter and to perform its obligations hereunder and consummate the Restructuring and the transactions contemplated thereby; |
| (c) | it: (i) is a sophisticated party with sufficient knowledge and experience to evaluate properly the terms and conditions of this Backstop Commitment Letter, (ii) has conducted its own analysis and made its own decision to enter into this Backstop Commitment Letter and has obtained such independent advice in this regard as it deemed appropriate, and (iii) has not relied on such analysis or decision of any Person other than its own independent advisors; |
| (d) | the execution and delivery of this Backstop Commitment Letter by it and the completion by it of its obligations hereunder and the consummation of the transactions contemplated herein do not and will not violate or conflict with any Law applicable to it, or any of its properties or assets, (subject to the receipt of any Transaction Regulatory Approvals) and will not result (with due notice or the passage of time or both) in a violation, conflict or breach of, or constitute a default under, or require any consent to be obtained under its certificate of incorporation, articles, by-laws or other constituent documents; |
| (e) | the execution and delivery of this Backstop Commitment Letter by it, the completion by it of its obligations hereunder and the consummation by it of the transactions contemplated herein, do not and will not require any consent or approval or other action, with or by, any Governmental Entity, other than as contemplated by the Plan, the issuance of the Sanction Order, Sanction Recognition Order and the Transaction Regulatory Approvals; and |
| (f) | there is not, as of the date hereof, pending or, to its knowledge, threatened against it or any of its properties, nor has it received notice in respect of, any claim, potential claim, litigation, action, suit, arbitration, investigation or other proceeding before any Governmental Entity or legislative body that, would prevent it from executing and delivering this Backstop Commitment Letter, performing its obligations hereunder and consummating the transactions and agreements contemplated by this Backstop Commitment Letter. |
| 4. | Representations and Warranties of the Company |
The Company hereby represents and warrants to each Backstop Party (and the Company acknowledges that each Backstop Party is relying upon such representations and warranties) that as of the date hereof subject to the issuance of the Authorization Order, Meetings Order, Sanction Order, Authorization Recognition Order, Meetings Recognition Order and Sanction Recognition Order, as applicable and as of the Effective Date:
| (a) | the authorized capital of New Just Energy Parent as of the Effective Date will consist solely of (i) New Common Shares, and as of the Effective Date the only New Common Shares issued and outstanding shall be as contemplated by the Plan and the Plan Support Agreement (including any management incentive plan, as set forth in the Plan Support Agreement), and (ii) New Preferred Shares, and as of the Effective Date the only New Preferred Shares issued and outstanding shall be as contemplated by the Plan and the Plan Support Agreement. Other than as contemplated in the Plan or the Plan Support Agreement, no person has any agreement or option or any right or privilege capable of becoming an agreement or option for the purchase from New Just Energy Parent of any New Common Shares, New Preferred Shares or other securities of New Just Energy Parent; |
| (b) | the New Common Shares shall be, when issued on the Effective Date pursuant to the terms of this Backstop Commitment Letter, duly authorized, fully paid and non-assessable; |
| (c) | the execution, delivery and performance by the Company of this Backstop Commitment Letter does not and will not: (x) violate any provision of law, rule, or regulation applicable to it or any of its subsidiaries or its charter or bylaws (or other similar governing documents) or those of any of its subsidiaries; (y) conflict with, result in a breach of, or constitute (with or without notice or lapse of time or both) a default under any material agreement to which any Just Energy Entity is a party or any debt for borrowed money to which it or any of its subsidiaries is a party that, in any case, is not remedied, cured or waived pursuant to the Sanction Order and/or the Plan, or (z) violate any Order, statute, rule, or regulation; |
| (d) | as of the time of entering into this Backstop Commitment Letter, no order halting or suspending trading in securities of the Just Energy Entities or prohibiting the issuance and distribution of the New Common Shares has been issued to and is outstanding against any of the Just Energy Entities, and, to the Company’s knowledge, no investigations or proceedings for such purpose are pending or threatened; |
| (e) | the representations and warranties of the Company in the Plan Support Agreement are true and correct; provided that, this representation is made solely to the Initial Backstop Parties who are parties to this Backstop Commitment Letter on the date hereof; |
| (f) | none of the Just Energy Entities, nor any of their respective officers, directors, employees or agents, is a Sanctioned Person; |
| (g) | none of the Just Energy Entities has (i) assets located in, or otherwise directly or, to the Company’s knowledge, indirectly, derives revenues from or engages in, investments, dealings, activities, or transactions in or with, any Sanctioned Country in violation of Sanctions Laws; or (ii) directly or, to the Company’s knowledge, indirectly, derives revenues from or engages in investments, dealings, activities, or transactions with, any Sanctioned Person in violation of Sanctions Laws; |
| (h) | the operations of the Just Energy Entities are and have been at all times conducted in all respects with (i) the U.S. Currency and Foreign Transactions Reporting Act of 1970, the PCMLTFA (as defined below), the Money Laundering Control Act of 1986 (18 U.S.C. §§ 1956-1957), the PATRIOT Act (as defined below), the Bank Secrecy Act (31 U.S.C. §§5311-5332), and any other applicable laws related to money laundering or terrorism financing (“Anti-Money Laundering Laws”), (ii) the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder, and any other applicable laws or regulations concerning or relating to bribery or corruption (“Anti-Corruption Laws”) and (iii) Sanctions Laws; |
| (i) | no action, suit, investigation or legal proceeding by or before any Governmental Entity or any arbitrator involving the Just Energy Entities or any officer, director, employee or agent thereof, or any informal or formal investigation by any Just Energy Entity or its legal or other representatives involving the foregoing, with respect to Anti-Money Laundering Laws, Anti-Corruption Laws or Sanctions Laws is pending, or to the Company’s knowledge, threatened; and |
| (j) | each Just Energy Entity has instituted and maintains policies and procedures designed to ensure compliance by each Just Energy Entity and its directors, officers, employees, and agents with Anti-Corruption Laws, Anti-Money Laundering Laws, and Sanctions Laws. |
| 5. | Representations, Warranties and Covenants of the Backstop Parties |
Each Backstop Party hereby represents, warrants and covenants, severally and not jointly, to the Company (and acknowledges that the Company is relying upon such representations and warranties) that as of the date hereof and as of the Effective Date:
| (a) | in respect of the Initial Backstop Parties, it is the sole beneficial owner of the portion of the Term Loan in the principal amount(s) set forth on Exhibit “A” to its signature page hereto (together with all obligations owing in respect thereof, including accrued and unpaid interest and any other amount entitled to be claimed in respect of thereof), and no other portion of the Term Loan; |
| (b) | in respect of the Additional Backstop Parties, it is the sole beneficial owner of the portion of the Term Loan in the principal amount(s) set forth on Exhibit “A” to its Additional Backstop Party Joinder (together with all obligations owing in respect thereof, including accrued and unpaid interest and any other amount entitled to be claimed in respect of thereof), and no other portion of the Term Loan; |
| (c) | its claims under the Term Loan are free and clear of any lien (statutory, judicial or other), adverse claim, charge, option, right of first refusal, servitude, interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, deed of trust, easement, right of way, encumbrance, charge, restriction on transfer, conditional sale or other title retention agreement, defect in title, or other security interest of any kind whatsoever, that would adversely affect in any way such Backstop Party’s performance of its obligations contained in this Backstop Commitment Letter at the time such obligations are required to be performed and will not be subject to any preemptive rights, subscriptions rights or similar rights; |
| (d) | it is an “accredited investor”, as such term is defined in NI 45-106 and it was not created or used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in NI 45-106 and acknowledges that the New Common Shares will be subject to resale restrictions under applicable Canadian Securities Laws; |
| (e) | it and any Affiliate to which it assigns its rights to receive New Common Shares or directs the delivery of New Common Shares: (i) is an “accredited investor” as defined in Rule 501 of Regulation D under the Securities Act, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the New Common Shares, it is able to bear the economic risk of loss of its entire investment, and it has had access to all information and materials it has requested about the Company in order to make its investment decision, (ii) will be acquiring the New Common Shares pursuant to this Backstop Commitment Letter as principal for its own account and not with a view to distributing, reselling or otherwise disposing of such New Common Shares, (iii) understands that the New Common Shares it acquires pursuant to this Backstop Commitment Letter will be “restricted securities” within the meaning of Rule 144 under the U.S. Securities Act and have not been and will not be registered under the U.S. Securities Act, or the securities laws of any state of the United States and that the sale of New Common Shares contemplated by this Backstop Commitment Letter will be made in reliance on an exemption from such registration requirements, and (iv) if in the future it decides to offer, resell, pledge or otherwise transfer any of the New Common Shares acquired pursuant to this Backstop Commitment Letter, such New Common Shares may be offered, sold, pledged or otherwise transferred only: (A) to the Company, (B) outside the United States in accordance with Rule 903 or 904 of Regulation S, (C) in the United States in accordance with Rule 144 or Rule 144A under the U.S. Securities Act, if available, and in compliance with any applicable state securities laws, or (D) in another transaction that does not require registration under the U.S. Securities Act or any applicable state securities laws of the United States, and that the New Common Shares may bear a restrictive legend to that effect; |
| (f) | it is located and resident in the jurisdiction indicated on its signature page hereto (or the Assignee Joinder or Additional Backstop Party Joinder, as applicable); |
| (g) | if it is domiciled, located, or a resident of a jurisdiction other than Canada or the United States, it is entitled to participate in the New Equity Offering and enter into the Backstop Commitment Letter in accordance with the laws of such jurisdiction without obliging New Just Energy Parent to register or qualify for distribution and/or issuance of the New Common Shares or file or deliver a registration statement, prospectus or other similar disclosure document, cause New Just Energy Parent to become a reporting issuer, registrant or equivalent entity in any jurisdiction or to make any other filings that New Just Energy Parent is not already obligated to make under applicable law in the United States and Canada; and, it agrees that its right to participate in the New Equity Offering and enter into this Backstop Commitment Letter are conditional on demonstrating to the Company, and providing evidence satisfactory to the Company in its sole discretion (which evidence may include an opinion of counsel of recognized standing to the effect of the matters set forth above), that it is qualified to participate in the New Equity Offering and enter into this Backstop Commitment Letter in accordance with the laws of its domicile or jurisdiction of residence; |
| (h) | it has and will have at all relevant times, the financial ability and sufficient funds to perform all of its obligations under this Backstop Commitment Letter, including the ability to acquire the New Common Shares it is required to acquire under this Backstop Commitment Letter, and the availability of such funds will not be subject to the consent, approval or authorization of any Person or the availability of any financing; |
| (i) | neither it nor any of its subsidiaries nor any of their respective directors or officers or, to its knowledge, employees acting on behalf of it or any of its subsidiaries, (i) is a Person identified in any sanctions-related list of designated Persons maintained by the Government of Canada, or (ii) is greater than 50% owned or controlled by any Person described under clause (i) to the extent the owned or controlled Person is itself subject to the restrictions or prohibitions as the Person described in clause (i); and |
| (j) | to its knowledge, the funds representing the aggregate Subscription Price for the New Common Shares purchased by it pursuant to this Backstop Commitment Letter and the aggregate amounts which will be paid by it to the Company hereunder: (i) do not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) (the “PCMLTFA”), and (ii) have not been and will not be derived directly or indirectly from or related to any activity that is deemed criminal under the laws of Canada, the United States of America, or any other jurisdiction, in each case, with respect to each of clause (i) and (ii), in violation thereof. It acknowledges and agrees that the Company may be required by Law to provide disclosure pursuant to the PCMLTFA. The funds representing payment of the amounts to be advanced by it hereunder will not represent proceeds of crime for the purposes of the U.S. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (the “PATRIOT Act”) in violation of the PATRIOT Act, and it acknowledges that the Company may in the future be required by law to disclose its name and other information relating to this Backstop Commitment Letter and the amounts payable by it to the Company hereunder, on a confidential basis, pursuant to the PATRIOT Act. No portion of the funds representing payment of the amounts to be advanced by it hereunder (A) has been or will be, to its knowledge, derived from or related to any activity that is deemed criminal under the laws of the United States of America, or any other jurisdiction, or (B) is being tendered on behalf of a Person or entity who has not been identified to or by it, and it shall promptly notify the Company if it discovers that any of such representations ceases to be true and provide the Company with appropriate information which is reasonably available in connection therewith. |
| 6. | Covenants |
In consideration of each Backstop Party making its Commitments and purchasing its New Equity Offering Shares as set forth in this Backstop Commitment Letter, but subject in all respects to the Plan Support Agreement (including, without limitation, Section 11 and Section 12(b)(iv) thereof), the Company hereby covenants and agrees:
| (a) | to (i) consult with and agree (such agreement not to be unreasonably withheld, conditioned or delayed) with the Initial Backstop Parties with respect to all material steps required in connection with the New Equity Offering, (ii) prepare and, as soon as reasonably possible following the applicable record date(s) for the New Equity Offering, file with the applicable Canadian Securities Commissions the information statement related to the Plan and the New Equity Offering, (iii) permit the Initial Backstop Parties to review and comment on all material drafts of the information statement, which document shall be filed in a form acceptable to the Initial Backstop Parties, acting reasonably, and (iv) permit the Initial Backstop Parties to conduct all diligence activities they may reasonably request from time to time; |
| (b) | to take any and all commercially reasonable and appropriate actions in furtherance of the New Equity Offering, as contemplated under this Backstop Commitment Letter, and not take any action (or inaction) that is materially inconsistent with the terms of this Backstop Commitment Letter; |
| (c) | to negotiate in good faith all New Equity Offering Documentation with the Initial Backstop Parties on terms consistent with this Backstop Commitment Letter; |
| (d) | from the date hereof through the earlier of the Effective Date and termination of this Backstop Commitment Letter, to promptly notify the Initial Backstop Parties, in writing, of receipt of any notice, demand, request or inquiry by any Governmental Entity concerning the New Equity Offering or the transactions contemplated hereby or the issuance by any Governmental Entity of any cease trading or similar Order or ruling relating to any securities of the Just Energy Entities; |
| (e) | to take all action as may be necessary so that the New Equity Offering and the other transactions contemplated in this Backstop Commitment Letter will be effected in accordance with applicable Laws including applicable Canadian Securities Laws and U.S. Securities Laws; |
| (f) | to execute any and all documents and perform (or cause its agents and advisors to perform) any and all commercially reasonable acts required in connection with this Backstop Commitment Letter; |
| (g) | to use commercially reasonable efforts to timely prepare and file all documentation and pursue all steps reasonably necessary to obtain all required regulatory approvals, and material third-party consents and approvals as may be required in connection with the New Equity Offering and the transactions contemplated hereby; and |
| (h) | to promptly notify the Initial Backstop Parties of (i) any event, condition, or development that has resulted in the inaccuracy in a material respect or material breach of any representation or warranty, covenant or agreement contained in this Backstop Commitment Letter, or (ii) any Material Adverse Effect occurring from and after the date hereof. |
| 7. | Regulatory Matters |
| (a) | Just Energy and the Initial Backstop Parties, each acting reasonably, shall work together in good faith to determine, on a date that is not later than ten (10) Business Days following the date of this Backstop Commitment Letter (the “Determination Date”), whether it is necessary or advisable that a filing be made to obtain Competition Act Approval and/or Investment Canada Act Approval in connection with the entering into and performance of transactions contemplated by this Backstop Commitment Letter. In the event that Just Energy and the Initial Backstop Parties jointly determine that Competition Act Approval and/or Investment Canada Act Approval is required or should be obtained, as applicable: |
| (i) | the Parties shall, as soon as reasonably practicable, and in no event more than ten (10) Business Days after the Determination Date, submit a request to the Commissioner for an Advance Ruling Certificate or, in the alternative, a No Action Letter in respect of the transactions contemplated by this Backstop Commitment Letter; |
| (ii) | the Parties shall submit, at the Parties’ joint election and within ten (10) Business Days of such mutually agreed election, notification filings in accordance with Part IX of the Competition Act in respect of the transactions contemplated by this Backstop Commitment Letter; and |
| (iii) | the Initial Backstop Parties shall, as soon as reasonably practicable and in no event more than ten (10) Business Days after the Determination Date, submit the notification for the Investment Canada Act Approval. |
| (b) | On a date that is on or prior to the Determination Date, Just Energy and the Initial Backstop Parties, each acting reasonably, shall also work together in good faith to determine whether any Antitrust Approvals are required or advisable and if so, shall proceed to make any such filings on an expeditious basis. Just Energy shall be responsible for the payment of any filing fees required to be paid in connection with any filing made in respect of the Competition Act Approval and the Antitrust Approvals, as applicable. |
| (c) | Just Energy and the Initial Backstop Parties shall, from and after the date hereof, work together to determine whether any material licenses, permits or approvals required from any Governmental Entity or under any Applicable Laws relating to the business and operations of the Just Energy Entities that would be required to be obtained in order to permit Just Energy, New Just Energy Parent and the Initial Backstop Parties to perform their obligations hereunder and the issuing, acquisition and holding of the New Common Shares, other than the Competition Act Approval and the Investment Canada Act Approval (the “Regulatory Approvals”). In the event any such determination is made, Just Energy and the Initial Backstop Parties shall use commercially reasonable efforts to apply for an obtain any such Regulatory Approvals as soon as reasonably practicable, in accordance with Section 7.7(d), in each case at the sole cost and expense of the Just Energy. |
| (d) | Just Energy and the Initial Backstop Parties shall use commercially reasonable efforts to apply for and obtain the Transaction Regulatory Approvals and shall co-operate with one another in connection with obtaining such approvals. Without limiting the generality of the foregoing, Just Energy and the Initial Backstop Parties shall: (i) give each other reasonable advance notice of all meetings or other oral communications with any Governmental Entity relating to the Transaction Regulatory Approvals, as applicable, and provide as soon as practicable but in any case, if any, within the required time, any additional submissions, information and/or documents requested by any Governmental Entity necessary, proper or advisable to obtain the Transaction Regulatory Approvals; (ii) not participate independently in any such meeting or other oral communication without first giving Just Energy or the Initial Backstop Parties, as applicable (or their outside counsel) an opportunity to attend and participate in such meeting or other oral communication, unless otherwise required or requested by such Governmental Entity; (iii) if any Governmental Entity initiates an oral communication regarding the Transaction Regulatory Approvals as applicable, promptly notify Just Energy or the Initial Backstop Parties, as applicable, of the substance of such communication; (iv) subject to Applicable Laws relating to the exchange of information, provide each other with a reasonable advance opportunity to review and comment upon and consider in good faith the views of the other in connection with all written communications (including any filings, notifications, submissions, analyses, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of a Just Energy or an Initial Backstop Party, as applicable) with a Governmental Entity regarding the Transaction Regulatory Approvals as applicable; and (v) promptly provide each other with copies of all written communications to or from any Governmental Entity relating to the Transaction Regulatory Approvals as applicable. |
| (e) | Each of the Just Energy Entities and the Initial Backstop Parties may, as advisable and necessary, reasonably designate any competitively or commercially sensitive material provided to the other under this Section 7 as “Outside Counsel Only Material”, provided that the disclosing Party also provides a redacted version to the receiving Party. Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and, subject to any additional agreements between the Just Energy Entities and the Initial Backstop Parties, will not be disclosed by such outside legal counsel to employees, officers or directors of the recipient unless express written permission is obtained in advance from the source of the materials or its legal counsel. |
| (f) | The obligation of any Just Energy Entity or an Initial Backstop Party to use its commercially reasonable efforts to obtain the Transaction Regulatory Approvals does not require Just Energy or the Initial Backstop Parties (or any Affiliate thereof) to undertake any divestiture of any business or business segment of Just Energy or the Initial Backstop Parties, to agree to any material operating restrictions related thereto or to incur any material expenditure(s) related therewith, unless agreed to by the Initial Backstop Parties and the Company. In connection with obtaining the Transaction Regulatory Approvals, no Just Energy Entity shall agree to any of the foregoing items without the prior written consent of the Initial Backstop Parties. |
| 8. | Conditions to Backstop Parties’ Commitments |
Notwithstanding anything to the contrary contained in this Backstop Commitment Letter and without limiting any other rights of the Backstop Parties hereunder, each Backstop Party’s obligation to fulfill its Commitments and New Equity Commitments and consummate the transactions contemplated hereby shall be subject to the satisfaction of the following conditions (provided that, for greater certainty, nothing in this Section 8 changes the applicable deadlines under Section 2(a) and Section 10 by which each Additional Backstop Party and Initial Backstop Party, respectively, must fund its New Equity Commitment and Commitments into escrow in accordance with the terms hereof), each of which is for the benefit of the Backstop Parties and may be waived, in whole or in part, by the Initial Backstop Parties (provided that such conditions shall not be enforceable by a Backstop Party if any failure to satisfy such conditions results from a breach of this Backstop Commitment Letter by such Backstop Party):
| (a) | the Company shall have executed this Backstop Commitment Letter and delivered its signature page to each Backstop Party; |
| (b) | (i) the representations and warranties of the Company set forth in this Backstop Commitment Letter (other than the Company Fundamental Representations) shall be true and correct as of the Effective Date, except that representations and warranties given as of another specified date shall be true and correct as of such date, as though then made (without giving effect to any materiality, Material Adverse Effect, or similar qualification in the representations and warranties), except where the failure of such representations and warranties to be so true and correct would not, in the aggregate, have a Material Adverse Effect and (ii) the Company Fundamental Representations shall be true and correct in all respects as of the Effective Date (other than de minimis failures) as though such representations and warranties had been made on and as of the Effective Date; |
| (c) | since the date of this Backstop Commitment Letter, no change, effect, event, occurrence, state of facts or development shall have occurred that resulted in, or would be reasonably expected to result in, a Material Adverse Effect; |
| (d) | the Company shall have complied in all material respects with each covenant and obligation in this Backstop Commitment Letter and the New Equity Offering Documentation; |
| (e) | each of the Company and New Just Energy Parent shall not have issued any New Common shares, New Preferred Shares or other securities of the Company or New Just Energy Parent, or incurred any new debt obligations, except in each case as provided for in the Plan and the Plan Support Agreement; |
| (f) | no proceeding shall have been commenced that could reasonably be expected to result in an injunction or other Order to, or no injunction or other Order shall have been issued to, enjoin, restrict or prohibit any of the transactions contemplated by the Plan, the Support Agreement or this Backstop Commitment Letter; |
| (g) | all required Transaction Regulatory Approvals shall have been obtained and shall be in full force and effect, except for such Transaction Regulatory Approvals that need not be obtained or in full force and effect prior to the implementation of the Plan; |
| (h) | the Company shall have provided the Initial Backstop Parties with: (i) on the Escrow Deadline, a certificate signed by an officer of the Company certifying compliance with the terms of this Section 8 as of the Escrow Deadline (to the extent such conditions are capable of being satisfied on or before the Escrow Deadline), and (ii) on the Effective Date, a certificate signed by an officer of the Company certifying compliance with the terms of this Section 8 as of the Effective Date; |
| (i) | all conditions to effectiveness of the Plan and all conditions set forth in the Plan Support Agreement shall have been satisfied or waived in accordance with the terms thereof, or will be satisfied or waived concurrently with the closing of the transactions contemplated therein and herein, the Plan shall be effective as of the closing of the New Equity Offering and the Effective Date shall have occurred or shall be deemed to occur concurrently with the closing of the transactions contemplated therein and herein; |
| (j) | the New Equity Offering shall have been conducted, in all material respects, in accordance with the Plan Support Agreement and the Plan, and the expiration of the New Equity Offering shall have occurred; |
| (k) | the Plan Support Agreement shall not have been amended, restated, modified, changed, supplemented or altered without obtaining the requisite approvals pursuant to the Plan Support Agreement in writing; and |
| (l) | the Plan Support Agreement shall be in full force and effect as it relates to each of the Company and the Plan Sponsor. |
If the transactions contemplated hereby are consummated, all conditions set forth in this Section 8 which have not been fully satisfied as of the Effective Date shall be deemed to have been waived by the Backstop Parties.
| 9. | Fees |
In consideration of the execution and delivery of this Backstop Commitment Letter:
| (a) | The Company agrees that New Just Energy Parent shall issue and deliver to the Initial Backstop Parties and the Additional Backstop Parties, in the aggregate, New Common Shares representing ten (10) percent of the outstanding New Common Shares on the Effective Date (subject to dilution in accordance with any management incentive plan), which shall constitute the Backstop Commitment Fee Shares and which shall be fully earned upon entry of the Authorization Order, and shall be issuable and deliverable to each Initial Backstop Party and the Additional Backstop Party on the Effective Date; provided that, such Initial Backstop Party and Additional Backstop Party has funded its New Equity Commitment and its Commitments in accordance with the terms hereof. The Backstop Commitment Fee Shares shall be delivered to the Initial Backstop Parties and Additional Backstop Parties in book-entry form by New Just Energy Parent or its transfer agent. The Initial Backstop Parties and the Additional Backstop Parties that have funded their New Equity Commitments and Commitments in accordance with the terms hereof shall each be entitled to their respective Initial Backstop and Additional Backstop Commitment Pro Rata Share (calculated without including the Backstop Commitment Allocation of any Defaulting Backstop Party) of the Backstop Commitment Fee Shares. For the avoidance of doubt, the Backstop Commitment Fee Shares shall not be issuable or deliverable in the event the Just Energy Entities consummate an Alternative Restructuring Proposal (as defined in the Plan Support Agreement). |
| (b) | The Company agrees that a Just Energy Entity organized in the United States (which may be the Company) (the identity of which shall be subject to the approval of the Initial Backstop Parties (not to be unreasonably withheld, conditioned, or delayed)) shall pay to the Initial Backstop Parties and Additional Backstop Parties, in the aggregate, a cash fee in an amount equal to US$15 million (the “Termination Fee”), which shall be, subject to entry of the Authorization Order, (i) fully earned upon entry of the Authorization Order and (ii) payable solely after the Company’s termination of the Plan Support Agreement pursuant to Section 12(b)(iv) thereof or the Plan Sponsor’s termination of the Plan Support Agreement pursuant to Section 12(a)(xvii) thereof, and concurrently with the consummation of an Alternative Restructuring Proposal (as defined in the Plan Support Agreement) after any such termination; provided, however, that the Company shall obtain within the Authorization Order a court-ordered charge in favor of the Initial Backstop Parties in the amount of the Termination Fee to secure the payment of the Termination Fee, which charge shall have the priority given to it pursuant to the Authorization Order. The Initial Backstop Parties and Additional Backstop Parties shall each be entitled to their respective Initial Backstop and Additional Backstop Commitment Pro Rata Share of the Termination Fee. |
The Termination Fee shall be deemed automatically waived by the Initial Backstop Parties and the Additional Backstop Parties upon the consummation of the transactions contemplated by the Backstop Commitment Letter or if the Plan Support Agreement is terminated (other than pursuant to Section 12(b)(iv) or Section 12(a)(xvii) thereof).
| (c) | The Parties hereto and New Just Energy Parent agree to treat, for U.S. federal income tax purposes, the payment of the Backstop Commitment Fee Shares pursuant to this Backstop Commitment Letter as the consideration paid in exchange for the issuance of a put option by the Initial Backstop Parties and the Additional Backstop Parties to New Just Energy Parent with respect to the Backstopped Shares. The Backstop Parties, the Just Energy Entities and New Just Energy Parent shall not take any tax position or tax action inconsistent with such tax treatment and/or tax characterization unless otherwise required by applicable law. |
| 10. | Funding Procedures |
| (a) | As soon as practicable, and in any event within five (5) Business Days following the New Equity Participation Deadline, the Company shall provide written notice to each Initial Backstop Party (or its Assignee Backstop Party) setting forth the Company’s calculation of: (i) the number of Backstopped Shares, (ii) the New Equity Offering Shares subscribed for and funded by New Equity Offering Eligible Participants in the New Equity Offering, (iii) such Backstop Party’s Commitments, and (iv) wire transfer instructions for an escrow account in accordance with the Escrow Agreement or other escrow arrangements to be agreed by the Company and the Initial Backstop Parties, each acting reasonably (the “New Equity Offering Escrow Account”). |
| (b) | By no later than the Escrow Deadline, each Initial Backstop Party (or its Assignee Backstop Party) shall deposit cash in an aggregate amount equal to its New Equity Commitments and Commitments in immediately available funds in the New Equity Offering Escrow Account based on the Subscription Price, in accordance with the terms hereof and the New Equity Offering Documentation. The maximum amount of the New Equity Commitments and Commitments hereunder by the Backstop Parties shall not exceed US$192,550,000, subject to reduction as set forth in this Section 10(b) and Section 2(b). |
| (c) | To the extent Non-Backstop Parties subscribe for New Equity Offering Shares, the Company shall direct the escrow agent under the Escrow Agreement to, as soon as reasonably practicable following the Effective Date, release the amount of the Additional Backstop Commitment Allocations to the Additional Backstop Parties which amounts are not required to be used to acquire any Backstopped Shares. |
| 11. | Expiration of Commitments |
Each Backstop Party hereby agrees to hold its Commitments available for the Company until, and this Backstop Commitment Letter shall (subject to Section 16) terminate on, the earliest of (a) the Effective Date, (b) the termination of this Backstop Commitment Letter in accordance with Section 13 upon the occurrence of any of the events contained Section 13, (c) the termination of this Backstop Commitment Letter pursuant to Section 2, and (d) the Outside Date.
| 12. | Approval, Consent, Waiver, Amendment of or by Backstop Parties |
Except as may be otherwise specifically provided for under this Backstop Commitment Letter, where this Backstop Commitment Letter provides that a matter shall have been approved, agreed to, consented to, waived or amended by the Initial Backstop Parties or the Backstop Parties, or that a matter must be satisfactory or acceptable to the Initial Backstop Parties or the Backstop Parties, such approval, agreement, consent, waiver, amendment, satisfaction, acceptance or other action shall be effective or shall have been obtained or satisfied, as the case may be, for the purposes of this Backstop Commitment Letter, where the Backstop Parties which have subscribed for a majority of the Commitments shall have confirmed their approval, consent, waiver, amendment, satisfaction or acceptance, as the case may be, to the Company. The Company shall be entitled to rely on any such confirmation of approval, agreement, consent, waiver, amendment, satisfaction, acceptance, or other action communicated to the Company by the Initial Backstop Parties, and such communication shall be effective for all purposes of this Backstop Commitment Letter and the terms and conditions hereof. For the avoidance of doubt, this Section 12 shall apply to the Initial Backstop Parties’ right to terminate this Backstop Commitment Letter pursuant to Section 13 hereof. Any amendment to this Section 12, to the definition of the terms “Initial Backstop Party”, “Backstop Party” or “Outside Date” used in this Backstop Commitment Letter, or to the last sentence of Section 2, shall require the prior written consent of each Initial Backstop Party; and provided, further, that any amendment to this Backstop Commitment Letter that would materially and adversely affect any Backstop Party compared to any other Backstop Party shall require the prior written consent of the adversely affected Backstop Party.
| 13. | Termination Events |
| (a) | Consensual Termination. This Backstop Commitment Letter may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Effective Date by mutual written consent of the Company and the Initial Backstop Parties. |
| (b) | Termination of the Plan Support Agreement. This Backstop Commitment Letter may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Effective Date by either Just Energy or the Initial Backstop Parties upon the termination of the Plan Support Agreement as to the Just Energy Entities or the Plan Sponsor for any reason. |
| (c) | Backstop Party Termination. This Backstop Commitment Letter may be terminated by the Initial Backstop Parties by the delivery to the Company of a written notice in accordance with Section 20(n) hereof, upon the occurrence and during the continuation of any material breach of any representation, warranty or covenant of the Company made in this Backstop Commitment Letter such that the conditions set forth in Section 8 would not be satisfied, and such material breach has not been waived in writing by the Initial Backstop Parties or remains uncured within ten (10) Business Days after the receipt by the Company of written notice of such breach; provided, however, that the right to terminate this Backstop Commitment Letter pursuant to this Section 13(c) shall not be available to the Initial Backstop Parties if any Initial Backstop Party is in breach of any of its representations, warranties, covenants, obligations or agreements set forth in this Backstop Commitment Letter. |
| (d) | Company Termination. This Backstop Commitment Letter may be terminated by the Company by the delivery to the Initial Backstop Parties of a written notice in accordance with Section 20(n) hereof, upon the occurrence and during the continuation of any material breach of any representation or warranty of the Backstop Parties made in this Backstop Commitment Letter and such material breach has not been waived in writing by the Company or remains uncured within ten (10) Business Days after the receipt by the Initial Backstop Parties of written notice of such breach; provided, however, that the right to terminate this Backstop Commitment Letter pursuant to this Section 13(d) shall not be available to the Company if the Company is in breach of any of its representations, warranties, covenants, obligations or agreements set forth in this Backstop Commitment Letter. |
| (e) | Effect of Termination. Upon termination of this Backstop Commitment Letter pursuant to this Section 13, this Backstop Commitment Letter shall forthwith become void and there shall be no further obligations or liabilities on the part of the Parties, other than with respect to payment of the Termination Fee pursuant to Section 9(b), to the extent applicable, provided, that (i) the provisions set forth in Section 17, this Section 13(e) and Section 20 shall survive the termination of this Backstop Commitment Letter in accordance with their terms and subject to any Order of the U.S. Bankruptcy Court or the CCAA Court and (ii) nothing in this Section 13 shall relieve any Party from liability for its gross negligence or any willful or intentional breach of this Backstop Commitment Letter. |
| 14. | Public Disclosure |
| (a) | All public announcements made in respect of the Restructuring shall be made solely by the Company, provided that such public announcements shall be in form and substance acceptable to the Initial Backstop Parties and the Company, each acting reasonably. Notwithstanding the foregoing, nothing herein shall prevent a party from making public disclosure in respect of the Restructuring to the extent required by applicable Law. |
| (b) | Subject to the above, each of the Company and the Backstop Parties agree to the existence and factual details of this Backstop Commitment Letter being set out in any public disclosure made by the Company or a Backstop Party, including, without limitation, press releases and court materials, and to the filing of this Backstop Commitment Letter on SEDAR and/or EDGAR and with the CCAA Court in connection with the CCAA Proceedings or the U.S. Bankruptcy Court in the U.S. Bankruptcy Proceedings, provided that the foregoing shall be subject to redactions as may be necessary to protect the commercial interests of the applicable parties. |
| (c) | Except as required by applicable Law, the Company shall not without the prior written consent of the Initial Backstop Parties (not to be unreasonably withheld, conditioned or delayed), specifically name the Initial Backstop Parties in any press release or other public announcement or statement or commentary or make any representation in relation thereto. |
| 15. | Assignment |
Other than as expressly set forth herein including Section 2 hereof, the Parties shall have no right to sell, transfer, negotiate or assign their rights and obligations hereunder and any such sale, transfer, negotiation or assignment shall be void ab initio.
| 16. | Survival |
The provisions of Sections 3, 4, 5, 6(h), 9, 14, 16, 17 and 18 hereof will survive the expiration or termination of the Commitments or this Backstop Commitment Letter (including any extensions) and the consummation of the transactions contemplated hereby; provided that, the provisions of Sections 3, 4, 5, 6(h) and 17 hereof shall only survive such expiration, termination or consummation until the Effective Date; provided further that, the provisions of Sections 6(h) hereof shall only survive with respect to any breach thereof by the Company that is not known by the Initial Backstop Parties as of the date of such consummation.
| 17. | Indemnification |
| (a) | The Company agrees to indemnify and hold harmless each of the Backstop Parties and their respective affiliates and their respective present and former directors, officers, employees, agents and controlling persons (each such person, an “Indemnified Party”) to the extent fully permitted by law from and against any losses, claims, damages and liabilities, joint or several (collectively, the “Damages”), to which such Indemnified Party may become subject (other than taxes of the Backstop Parties) in connection with or otherwise relating to or arising from any claims by a third party against an Indemnified Party in respect of the obligations of the Backstop Parties under this Backstop Commitment Letter; provided that, the foregoing indemnity will not, as to any Indemnified Party, apply to Damages (i) if the applicable Backstop Party in respect of such Indemnified Party has breached any of its representations, warranties, covenants or agreements contained in this Backstop Commitment Letter or (ii) to the extent they are found by a final, non-appealable judgment of a court of competent jurisdiction to arise from the bad faith, willful misconduct or gross negligence of such Indemnified Party (collectively, the “Indemnifiable Events”). |
| (b) | Subject to the proviso in Section 17(a), the Company will reimburse each Indemnified Party for all reasonable and documented (without detailed descriptions of services) fees and expenses (including the reasonable fees and expenses of counsel) (collectively, “Expenses”) as incurred in connection with investigating, preparing, pursuing or defending any threatened or pending claim, action, proceeding or investigation (collectively, the “Proceeding”) arising from an Indemnifiable Event, whether or not such Indemnified Party is a formal party to such Proceeding; provided, that the Company will not be liable to any such Indemnified Party to the extent that any Damages are found in a final non- appealable judgment by a court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of the Indemnified Party seeking indemnification hereunder. |
| (c) | If for any reason other than in accordance with this Backstop Commitment Letter, the foregoing indemnity is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless in respect of an Indemnifiable Event, then the Company will contribute to the amount paid or payable by an Indemnified Party as a result of Damages (including all Expenses incurred) in respect of an Indemnifiable Event in such proportion as is appropriate to reflect the relative benefits to the Company on the one hand, and each Backstop Party and/or any other Indemnified Party on the other hand, in connection with the matters covered by this Backstop Commitment Letter or, if the foregoing allocation is not permitted by applicable Law, not only such relative benefits but also the relative faults of such parties as well as any relevant equitable considerations. Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or omission or any alleged conduct relates to information provided by the Company or other conduct by the Company (or its employees or other agents) on the one hand, or by the Backstop Parties, on the other hand. |
| (d) | The Company agrees not to enter into any waiver, release or settlement of any Proceeding (whether or not any Backstop Party or any other Indemnified Party is a formal party to such Proceeding) in respect of which indemnification may be sought hereunder without the prior written consent of the applicable Backstop Party (which consent will not be unreasonably withheld), unless such waiver, release or settlement (i) includes an unconditional release of such Backstop Party and each Indemnified Party from all liability arising out of such Proceeding and (ii) does not contain any factual or legal admission by or with respect to any Indemnified Party or any adverse statement with respect to the character, professionalism, expertise or reputation of any Indemnified Party or any action or inaction of any Indemnified Party. |
| (e) | The indemnity, reimbursement and contribution obligations of the Company hereunder will be in addition to any liability which the Company may have at common law or otherwise to any Indemnified Party and will be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Company or an Indemnified Party. |
| 18. | Certain Taxes |
The Company will also pay any stamp, transfer, or similar taxes imposed by any Specified Tax Jurisdiction upon the delivery of the Backstopped Shares.
| 19. | [Reserved] |
| 20. | Miscellaneous |
| (a) | The headings in this Backstop Commitment Letter are for reference only and shall not affect the meaning or interpretation of this Backstop Commitment Letter. |
| (b) | Unless the context otherwise requires, words importing the singular shall include the plural and vice versa and words importing any gender shall include all genders. |
| (c) | Unless otherwise specifically indicated, all sums of money referred to in this Backstop Commitment Letter are expressed in U.S. Dollars. |
| (d) | This Backstop Commitment Letter (including the schedules attached hereto), together with the Plan Support Agreement (including the schedules and exhibits attached thereto) constitutes the entire agreement and supersedes all prior agreements and understandings, both oral and written, among the Parties with respect to the subject matter hereof; provided, however, that this Backstop Commitment Letter does not alter or supersede any confidentiality or non-disclosure agreement between the Company and any of the Backstop Parties. |
| (e) | The Company acknowledges and agrees that any waiver or consent that the Backstop Parties may make on or after the date hereof has been made by the Backstop Parties, as the case may be, in reliance upon, and in consideration for, the covenants, agreements, representations and warranties set forth herein. |
| (f) | No Party shall have any responsibility by virtue of this Backstop Commitment Letter for any trading by any other entity. No prior history, pattern, or practice of sharing confidences among or between the Parties shall in any way affect or negate this Backstop Commitment Letter. |
| (g) | The Company acknowledges and each Initial Backstop Party confirms that it has independently participated in the negotiation of the transactions contemplated under this Backstop Commitment Letter with the advice of counsel and advisors. |
| (h) | It is understood and agreed that none of the Backstop Parties has any duty of trust or confidence in any form with any other Party or any creditors or other stakeholders of any Just Energy Entity and, except as expressly provided in this Backstop Commitment Letter, there are no agreements, commitments or undertakings by, among or between any of them with respect to the subject matter hereof. |
| (i) | The agreements, representations and obligations of the Backstop Parties under this Backstop Commitment Letter are, in all respects, several and not joint and several. |
| (j) | Except as explicitly provided for herein, and notwithstanding any termination of this Backstop Commitment Letter, nothing herein is intended to, or does, in any manner waive, limit, impair or restrict the ability of any Backstop Party or the Company to protect and preserve its rights, remedies and interests (including, with respect to the Backstop Parties, their claims against the Just Energy Entities), and each Party fully reserves any and all of its rights. Nothing herein shall be deemed an admission of any kind. |
| (k) | No director, officer or employee of any Just Energy Entity or any of its legal, financial or other advisors shall have any personal liability to any of the Backstop Parties under this Backstop Commitment Letter. No director, officer or employee of any of the Backstop Parties, the Advisors or any of their legal, financial or other advisors shall have any personal liability to any Just Energy Entities under this Backstop Commitment Letter. |
| (l) | This Backstop Commitment Letter may be modified, amended, supplemented, or waived as to any matter by an instrument in writing signed by the Company and the Initial Backstop Parties (as determined in accordance with Section 12 hereof). |
| (m) | Any date, time or period referred to in this Backstop Commitment Letter shall be of the essence except to the extent to which the Parties agree in writing to vary any date, time or period, in which event the varied date, time or period shall be of the essence. |
| (n) | All notices, requests, consents and other communications hereunder to any Party shall be deemed to be sufficient if contained in a written instrument delivered in person or sent by internationally recognized overnight courier or email. All notices required or permitted hereunder shall be deemed effectively given: (i) upon personal delivery to the Party to be notified, (ii) when sent by email if sent during normal business hours of the recipient, and if not, then on the next Business Day of the recipient, or (iii) one (1) Business Day after deposit with an internationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All deliveries required or permitted hereunder shall be deemed effectively made: (A) upon personal delivery to the Party receiving the delivery, (B) one (1) Business Day after deposit with an internationally recognized overnight courier, specifying next day delivery, with written verification of receipt, or (C) upon receipt of delivery in accordance with instructions given by the Party receiving the delivery. Any Party may change the address to which notice should be given to such Party by providing written notice to the other Parties hereto of such change. The address for each of the Company and Initial Backstop Parties shall be as follows: |
| (i) | If to the Company, at: |
Just Energy Group Inc.
100 King Street West, Suite 2630
Toronto, Ontario M5X 1E1
| Attention: | Jonah Davids |
| Email: | [Redacted] |
With a required copy (which shall not be deemed notice) to:
Osler,
Hoskin & Harcourt LLP
100 King Street West, Suite 6200
Toronto, Ontario M5X 1B8
| Attention: | Marc Wasserman and Michael De Lellis |
| Email: | [Redacted] |
| [Redacted] |
and
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attention: Brian Schartz and Neil Herman
| Email: | [Redacted] | |
| [Redacted] |
| (ii) | If to the Initial Backstop Parties, at: |
the address set forth for each Initial Backstop Party on its signature page hereto, with a required copy (which shall not be deemed notice) to:
Cassels Brock & Blackwell LLP
Scotia Plaza, Suite 2100
40 King St. W
Toronto, ON M5H 3C2
Attention: Ryan Jacobs, Jane Dietrich and Joseph Bellissimo
| Email: | [Redacted] | |
| [Redacted] | ||
| [Redacted] |
and
Akin Gump Straus Hauer & Feld LLP
Bank of America Tower, One Bryant Park
New York, NY 10036
Attention: David Botter, Sarah Link Schultz and Zachary Wittenberg
| Email: | [Redacted] | |
| [Redacted] | ||
| [Redacted] |
The address for each of the Additional Backstop Parties will be the address shown in the records of the Computershare Trust Company of Canada, as agent for the Term Loan Claims, unless otherwise updated by an Additional Backstop Party.
| (o) | If any term or other provision of this Backstop Commitment Letter is invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Backstop Commitment Letter shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Company and the Initial Backstop Parties shall negotiate in good faith to modify this Backstop Commitment Letter so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the terms of this Backstop Commitment Letter remain as originally contemplated to the fullest extent possible. |
| (p) | The provisions of this Backstop Commitment Letter shall be binding upon and enure to the benefit of the Parties hereto and their respective successors and permitted assigns; provided that no Party may assign, delegate or otherwise transfer any of its rights, interests or obligations under this Backstop Commitment Letter without the prior written consent of the other Parties hereto, except as set forth and to the extent permitted in Section 2 hereof. |
| (q) | This Backstop Commitment Letter shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to the conflicts of law principles thereof. |
| (r) | Each Party irrevocably agrees that any legal action, suit, or proceeding arising out of or relating to this Backstop Commitment Letter brought by any party or its successors or assigns shall be brought and determined in the CCAA Court and each Party hereby irrevocably submits to the exclusive jurisdiction of the CCAA Court and, if the CCAA Court does not have (or abstains from) jurisdiction, Courts of the Province of Ontario, and any appellate court from any thereof, for itself and with respect to its property, generally and unconditionally, with regard to any such proceeding arising out of or relating to this Backstop Commitment Letter. Each Party further agrees that notice as provided herein shall constitute sufficient service of process and the Parties further waive any argument that such service is insufficient. Each Party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim, or otherwise, in any proceeding arising out of or relating to this Backstop Commitment Letter, (i) any claim that it is not personally subject to the jurisdiction of the CCAA Court as described herein for any reason, (ii) that it or its property is exempt or immune from the jurisdiction of such court or from any legal process commenced in such court (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and (iii) that (x) the proceeding in such court is brought in an inconvenient forum, (y) the venue of such proceeding is improper, or (z) this Backstop Commitment Letter, or the subject matter hereof, may not be enforced in or by such court. |
| (s) | EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS BACKSTOP COMMITMENT LETTER OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY). EACH PARTY (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS BACKSTOP COMMITMENT LETTER BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. ANY PARTY MAY FILE A COPY OF THIS PROVISION WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED FOR AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY, AND THAT ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS BACKSTOP COMMITMENT LETTER OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS BACKSTOP COMMITMENT LETTER SHALL INSTEAD BE TRIED BY A JUDGE OR JUDGES SITTING WITHOUT A JURY. |
| (t) | The Parties understand and agree that money damages would be an insufficient remedy for any breach of this Backstop Commitment Letter by any Party and each non-breaching Party shall be entitled to specific performance and injunctive or other equitable relief (including attorneys’ fees and costs) as a remedy of any such breach, without the necessity of proving the inadequacy of money damages as a remedy. Each Party hereby waives any requirement for the security or posting of any bond in connection with such remedies. Notwithstanding anything to the contrary herein, nothing in this Backstop Commitment Letter shall limit, or be deemed to limit, any of the remedies that the Company has under this Backstop Commitment Letter for breach. |
| (u) | Unless expressly stated herein, this Backstop Commitment Letter shall be solely for the benefit of the Parties, and no other person or entity shall be a third-party beneficiary hereof. |
| (v) | This Backstop Commitment Letter may be executed by electronic means and in one or more counterparts, all of which shall be considered one and the same agreement. |
| (w) | Notwithstanding anything that may be expressed or implied in this Backstop Commitment Letter, and notwithstanding the fact that certain of the Parties may be partnerships or limited liability companies, each Party covenants, agrees and acknowledges that no recourse under this Backstop Commitment Letter or any documents or instruments delivered in connection with this Backstop Commitment Letter shall be had against any Party’s Affiliates, or any of such Party’s Affiliates’, in each case, other than the Parties to this Backstop Commitment Letter and each of their respective successors and permitted assignees based upon, arising out of or relating to this Backstop Commitment Letter, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any Applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any of the Party’s Affiliates, as such, for any obligation or liability of any Party under this Backstop Commitment Letter or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or liabilities or their creation; provided, however, nothing in this Section 20(w) shall relieve or otherwise limit the liability of any Party hereto or any of their respective successors or permitted assigns for any breach or violation of its obligations under this Backstop Commitment Letter or such other documents or instruments. For the avoidance of doubt, none of the Parties will have any recourse, be entitled to commence any proceeding or make any claim under this Backstop Commitment Letter or in connection with the transactions contemplated hereby except against any of the Parties or their respective successors and permitted assigns, as applicable. |
[Remainder of Page Intentionally Left Blank]
| INITIAL BACKSTOP PARTIES: | ||
| LVS III SPE XV LP | ||
| By: | [Redacted] | |
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| Address: | [Redacted] | |
| TOCU XVII LLC | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| Address: | [Redacted] | |
| HVS XVI LLC | ||
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| Address: | [Redacted] | |
| OC II LVS XIV LP | ||
| By: | [Redacted] | |
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| Address: | [Redacted] | |
Signature Page – Backstop Commitment Letter
| OC III LFE I LP | ||
| By: | [Redacted] | |
| By: | [Redacted] | |
| Name: | ||
| Title: | ||
| Address: | [Redacted] | |
Exhibit “A”
| Name of Initial Backstop Party: | [Redacted] |
| Principal Amount of Term Loan | |
| [Redacted] | |
| [Redacted] | |
| [Redacted] | |
| [Redacted] | |
| [Redacted] |
| Acknowledged and agreed: | ||
| JUST ENERGY (U.S.) CORP. | ||
| Per: | (signed) Michael Carter | |
| Name: Michael Carter | ||
| Title: Chief Financial Officer | ||
| Acknowledged and agreed: | ||
| JUST ENERGY (U.S.) CORP. | ||
| Per: | (signed) Jonah Davids | |
| Name: Jonah Davids | ||
| Title: Executive Vice President, General Counsel and Corporate Secretary | ||
[Signature page to Backstop Commitment Letter]
SCHEDULE “A”
SCHEDULE “B”
DEFINITIONS
| Definition | Section or Page Number |
| “Additional Backstop Notice” | Section 2(a) |
| “Additional Backstop Party” | Section 2(a) |
| “Backstop Commitment Letter” | Page 1 (1st paragraph) |
| “Backstop Party” or “Backstop Parties” | Page 1 (1st paragraph) |
| “Backstopped Shares” | Section 2(c) |
| “CCAA” | Page 1 (1st paragraph) |
| “Commitments” | Section 2(c) |
| “Company” | Page 1 (1st paragraph) |
| “Damages” | Section 17(a) |
| “Defaulted Subscription Shares” | Section 2(c) |
| “Defaulting Backstop Party” | Section 2(e) |
| “Determination Date” | Section 7(a) |
| “Expenses” | Section 17(b) |
| “Indemnifiable Events” | Section 17(a) |
| “Indemnified Party” | Section 17(a) |
| “Initial Backstop Party” or “Initial Backstop Parties” | Page 1 (1st paragraph) |
| “Just Energy” | Page 1 (1st paragraph) |
| “Just Energy Entity” or “Just Energy Entities” | Page 1 (1st paragraph) |
| “New Equity Offering” | Page 1 (1st paragraph) |
| “New Equity Offering Escrow Account” | Section 10(b) |
| “New Equity Offering Shares” | Page 1 (1st paragraph) |
| “Party” or “Parties” | Page 1 (2nd paragraph) |
| “PATRIOT Act” | Section 5(j) |
| “PCMLTFA” | Section 5(j) |
| “Plan” | Page 1 (1st paragraph) |
| “Primary Commitments” | Section 2(c) |
| “Proceeding” | Section 17(b) |
| “Regulatory Approval” | Section 7(c) |
| “Restructuring” | Page 1 (2nd paragraph) |
| “Restructuring Term Sheet” | Page 1 (1st paragraph) |
| “Secondary Commitments” | Section 2(c) |
| “Subscription Price” | Section 2(c) |
| “Termination Fee” | Section 9(b) |
| “Transaction Documents” | Page 1 (2nd paragraph) |
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In addition, the following terms used in this Backstop Commitment Letter shall have the following meanings:
| (a) | “Additional Backstop Commitment Allocation” means the Backstop Commitment Allocation as between the Additional Backstop Parties upon the execution of this Backstop Commitment Letter, subject to the Maximum Backstop Amount in respect of each Additional Backstop Party. |
| (b) | “Additional Backstop Party Joinder” means a written joinder to this Backstop Commitment Letter in a form reasonably consistent with the form attached hereto as Schedule “D”. |
| (c) | “Advance Ruling Certificate” means an advance ruling certificate issued by the Commissioner pursuant to section 102 of the Competition Act with respect to the transactions contemplated by this Letter. |
| (d) | “Advisors” means Cassels Brock & Blackwell LLP, Akin Gump Strauss Hauer & Feld, LLP and Houlihan Lokey, Inc. |
| (e) | “Affiliate” of any Person shall mean any Person directly or indirectly controlling, controlled by, or under common control with, such Person; provided, that, for the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. For greater certainty, an Affiliate of a Person shall include such Person’s investment funds and managed accounts and any funds managed or directed by the same investment advisor. |
| (f) | “Antitrust Approvals” means any approval, clearance, filing or expiration or termination of a waiting period pursuant to which a transaction would be deemed to be unconditionally approved in relation to the transactions contemplated hereby under any Antitrust Law of any country or jurisdiction that the Initial Backstop Parties agree, each acting reasonably, is required, other than the Competition Act Approval. |
| (g) | “Antitrust Laws” means all Applicable Laws, including any antitrust, competition or trade regulation Laws, that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization, restraint of trade or lessening or preventing competition through merger or acquisition. |
| (h) | “Applicable Law” means, with respect to any Person, any transnational, domestic or foreign federal, state, provincial or local law (statutory, common law or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, or rule or regulation of any stock exchange or securities commission, or other similar requirement enacted, adopted, promulgated or applied by a Governmental Entity that is binding upon or applicable to such Person or their business or operations, as amended unless expressly specified otherwise. |
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| (i) | “Assignee Backstop Parties” means the Persons that become party to this Backstop Commitment Letter from time to time in accordance with Section 2(f) hereof upon the execution of an Assignee Joinder. |
| (j) | “Assignee Joinder” means a written joinder to this Backstop Commitment Letter in a form reasonably consistent with the form attached hereto as Schedule “E”. |
| (k) | “Authorization Order” has the meaning set forth in the Plan Support Agreement. |
| (l) | “Authorization Recognition Order” has the meaning set forth in the Plan. |
| (m) | “Backstop Commitment Allocation” means, as to any Backstop Party, the backstop purchase commitment, expressed in dollars, of such Backstop Party as set forth on Schedule “C” hereto, as adjusted under Section 2(b) (in respect of the Initial Backstop Parties) or on its signature page to the Additional Backstop Party Joinder (up to the Maximum Backstop Amount for any Additional Backstop Party) or Assignee Joinder, as applicable, as updated from time to time in accordance with the terms hereof. |
| (n) | “Backstop Commitment Fee Shares” has the meaning set forth in the Plan. |
| (o) | “Backstop Commitment Pro Rata Share” means, as to any Backstop Party, the percentage, rounded to the nearest tenth of a percent, obtained by dividing (i) such Backstop Party’s Backstop Commitment Allocation, by (ii) the Non-Backstop Party Amount. |
| (p) | “Business Day” means each day, other than Saturday, Sunday, or a statutory holiday, on which banks are generally open for business in Toronto, Calgary, and New York. |
| (q) | “Canadian Securities Commissions” means, collectively, the applicable securities commissions or regulatory authorities in each of the provinces and territories of Canada, including the TSX-V. |
| (r) | “Canadian Securities Laws” means, collectively, and, as the context may require, the applicable securities laws of each of the provinces and territories of Canada, and the respective regulations and rules made under those securities laws together with all applicable published policy statements, instruments, blanket orders and rulings of the Canadian Securities Commissions and all discretionary orders or rulings, if any, of the Canadian Securities Commissions made in connection with the transactions contemplated by this Backstop Commitment Letter together with applicable published policy statements of the Canadian Securities Administrators, as the context may require. |
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| (s) | “CCAA Court” means the Ontario Superior Court of Justice (Commercial List). |
| (t) | “CCAA Proceedings” means the proceedings commenced in respect of the Just Energy Entities under the CCAA on March 9, 2021 in the CCAA Court bearing Court File No. CV-21-00658423-00CL. |
| (u) | “Commissioner” means the Commissioner of Competition appointed under the Competition Act or any person duly authorized to exercise powers of the Commission of Competition. |
| (v) | “Company Fundamental Representations” means those representations and warranties set forth in Sections 3(a), 3(b) and 4(c). |
| (w) | “Competition Act” means the Competition Act (Canada). |
| (x) | “Competition Act Approval” means that: (i) the Commissioner shall have issued an Advance Ruling Certificate under subsection 102(1) of the Competition Act in respect of the transactions contemplated by this Backstop Commitment Letter, or (ii) the applicable waiting period under section 123 of the Competition Act shall have expired or been waived by the Commissioner, or the obligation to submit a notification shall have been waived under paragraph 113(c) of the Competition Act, and the Commissioner shall have issued a No Action Letter. |
| (y) | “EDGAR” means the Electronic Data Gathering, Analysis, and Retrieval System. |
| (z) | “Effective Date” has the meaning to be set forth in the Plan. |
| (aa) | “Escrow Agreement” means an escrow agreement on customary terms and conditions to be entered into in connection with the New Equity Offering, in form and substance acceptable to the Company and the Initial Backstop Parties, each acting reasonably. |
| (bb) | “Escrow Deadline” means the date prescribed in the notice to be provided by the Company to the Backstop Parties pursuant to Section 10(b) hereof, which date shall be no less than five (5) Business Days prior to the Effective Date (or such other date as may be agreed by the Company and the Initial Backstop Parties, each acting reasonably). |
| (cc) | “GAAP” means generally accepted accounting principles in the United States, including International Accounting Standards and U.S. GAAP. |
| (dd) | “Governmental Entity” means any government, regulatory authority, governmental department, agency, commission, bureau, official, minister, Crown corporation, court, board, tribunal or dispute settlement panel or other law, rule or regulation-making organization or entity: (i) having or purporting to have jurisdiction on behalf of any nation, province, territory or state or any other geographic or political subdivision of any of them, or (ii) exercising, or entitled or purporting to exercise any administrative, executive, judicial, legislative, policy, regulatory or taxing authority or power. |
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| (ee) | “Initial Backstop and Additional Backstop Commitment Pro Rata Share” means, as to any Initial Backstop Party or Additional Backstop Party, the percentage, rounded to the nearest tenth of a percent, obtained by dividing (i) such Initial Backstop Party’s Initial Backstop Commitment Allocation or such Additional Backstop Party’s Additional Backstop Commitment Allocation, by (ii) Non-Backstop Party Amount, provided, however, that if all holders of Term Loan Claims are Party to this Backstop Commitment Letter, “Initial Backstop and Additional Backstop Commitment Pro Rata Share” shall mean “Initial Backstop Party and Additional Backstop Party Pro Rata Share of the Term Loan”. |
| (ff) | “Initial Backstop Commitment Allocation” means the Backstop Commitment Allocation as between the Initial Backstop Parties upon the execution of this Backstop Commitment Letter, as adjusted in accordance with Section 2(b), and which will be no greater in aggregate for all Initial Backstop Parties than the amount equal to US$192,550,000 minus the New Equity Commitments of all Initial Backstop Parties. |
| (gg) | “Initial Backstop Party and Additional Backstop Party Pro Rata Share of the Term Loan” means, as to any Initial Backstop Party or Additional Backstop Party, the percentage, rounded to the nearest tenth of a percent, obtained by dividing (i) the amount such Initial Backstop Party’s or Additional Backstop Party’s Term Loan Claim as of the Term Loan Record Date, by (ii) the aggregate of amount of all Term Loan Claims held by the Initial Backstop Parties and Additional Backstop Parties. |
| (hh) | “Initial Backstop Commitment Pro Rata Share” means, as to any Initial Backstop Party, the percentage, rounded to the nearest tenth of a percent, obtained by dividing (i) such Initial Backstop Party’s Initial Backstop Commitment Allocation, by (ii) US$192,550,000 minus the New Equity Commitments of all Initial Backstop Parties. |
| (ii) | “Investment Canada Act” means the Investment Canada Act (Canada). |
| (jj) | “Investment Canada Act Approval” means both: |
(1) receipt by the Initial Backstop Parties of a certification letter from the Director of Investments under the Investment Canada Act pursuant to subsection 13(1) of the Investment Canada Act confirming that that the transactions contemplated by this Backstop Commitment Letter are not reviewable under Part IV of the Investment Canada Act;
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and
(2) either: (A) no notice is given under subsection 25.2(1) or 25.3(2) of the Investment Canada Act within the prescribed period; or, (B) if notice is given under subsection 25.2(1) or 25.3(2) of the Investment Canada Act, then either (a) the Minister or Ministers under the Investment Canada Act have sent to the Initial Backstop Parties a notice under paragraph 25.2(4)(a) or 25.3(6)(b) of the Investment Canada Act; or (b) the Governor in Council has issued an order under paragraph 25.4(1)(b) of the Investment Canada Act authorizing the transactions contemplated by this Backstop Commitment Letter.
| (kk) | “Law” or “Laws” means any law, statute, order, decree, consent decree, writ, notice, judgment, rule, regulation, ordinance or other pronouncement having the effect of law whether in Canada, the United States or any other country, or any domestic or foreign state, county, province, city or other political subdivision or of any Governmental Entity. |
| (ll) | “Material Adverse Effect” means any change, effect, event, occurrence, state of facts or development that has had a material adverse effect on (i) the business, assets, liabilities, financial conditions or results of operations of the Just Energy Entities, collectively, or (ii) prevents the ability of the Company to perform its obligations under, or to consummate the transactions contemplated by, this Backstop Commitment Letter, taken as a whole; in each case except to the extent that any such change, effect, event, occurrence, state of facts or development is attributable to: (a) general economic or business conditions; (b) Canada, the United States or foreign economies, or financial, banking or securities markets in general, or other general business, banking, financial or economic conditions (including (i) any disruption in any of the foregoing markets, (ii) any change in the currency exchange rates or (iii) any decline or rise in the price of any security, commodity, contract or index); (c) acts of God or other calamities, national or international political or social conditions, including the engagement and/or escalation by the U.S. or Canada in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon the U.S. or Canada or any of their territories, possessions or diplomatic or consular offices or upon any military installation, equipment or personnel of the U.S. or Canada; (d) the identity of any of the Backstop Parties; (e) conditions affecting generally the industry in which the Company or any of its subsidiaries participates; (f) the public announcement of, entry into or pendency of, actions required or contemplated by or performance of obligations under, this Backstop Commitment Letter or the transactions contemplated by this Backstop Commitment Letter, or the identity of the Parties, including any termination of, reduction in or similar adverse impact on relationships, contractual or otherwise, with any customers, suppliers, financing sources, licensors, licensees, distributors, partners, employees or others having relationships with the Company or any of its Subsidiaries; (g) changes in applicable Laws or the interpretation thereof; (h) any change in GAAP or other accounting requirements or principles; (i) national or international political, labor or social conditions; (j) the failure of the Company to meet or achieve the results set forth in any internal projections (but not the underlying facts giving rise to such failure unless such facts are otherwise excluded pursuant to the clauses contained in this definition); or (k) any change resulting from compliance with the terms of, or any actions taken (or not taken) by any Party pursuant to or in accordance with, this Backstop Commitment Letter; provided that the exceptions set forth in clauses (a), (b), (c), (e), (g), (h) or (i) shall not apply to the extent that such event is disproportionately adverse to the Just Energy Entities, taken as a whole, as compared to other companies in the industries in which the Just Energy Entities operate. |
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| (mm) | “Maximum Backstop Amount” means, in respect of an Additional Backstop Party, its Initial Backstop Party and Additional Backstop Party Pro Rata Share of the Term Loan for such Additional Backstop Party multiplied by the Non-Backstop Party Amount. |
| (nn) | “Meetings Order” has the meaning set forth in the Plan Support Agreement. |
| (oo) | “Meetings Recognition Order” has the meaning set forth in the Plan. |
| (pp) | “New Common Shares” has the meaning set forth in the Plan Support Agreement. |
| (qq) | “New Equity Commitments” means, in respect of a Backstop Party, its New Equity Offering Shares multiplied by the Subscription Price. |
| (rr) | “New Equity Offering Documentation” means, collectively, the New Equity Offering Participation Form and other related documentation reasonably required by the Company and the Initial Backstop Parties to be executed, delivered and/or submitted by New Equity Offering Eligible Participants in connection with the subscription by such New Equity Offering Eligible Participants for New Equity Offering Shares under the New Equity Offering, which shall all be in form and substance acceptable to the Company and the Initial Backstop Parties, each acting reasonably. |
| (ss) | “New Equity Offering Eligible Participant” has the meaning to be set forth in the Plan. |
| (tt) | “New Equity Offering Participation Form” has the meaning to be set forth in the Plan. |
| (uu) | “New Equity Offering Shares” has the meaning set forth in the Plan, and in respect of any New Equity Offering Eligible Participant, its pro rata share of the New Equity Offering Shares available to it pursuant to the Plan and the New Equity Offering Documentation. |
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| (vv) | “New Equity Participation Deadline” has the meaning set forth in the Plan; provided for certainty, such date shall be the deadline by which New Equity Offering Eligible Participants must commit to and fund amounts for their New Equity Commitments to the Company (or its agent) as set forth herein and in the New Equity Offering Documentation. |
| (ww) | “New Preferred Shares” has the meaning set forth in the Plan Support Agreement. |
| (xx) | “NI 45-106” means National Instrument 45-106 – Prospectus Exemptions of the Canadian Securities Administrators. |
| (yy) | “No Action Letter” means written confirmation from the Commissioner that the Commissioner does not, at that time, intend to make an application under section 92 of the Competition Act in respect of the transactions contemplated by this Backstop Commitment Letter. |
| (zz) | “Non-Backstop Party” means a holder of the Term Loan Claim that is not an Initial Backstop Party or Additional Backstop Party. |
| (aaa) | “Non-Backstop Party Amount” means the amount equal to (i) the number of New Equity Offering Shares that would be issuable to all Non-Backstop Parties if they acquired all New Equity Offering Shares they are entitled to acquire, multiplied by (ii) the Subscription Price. |
| (bbb) | “Order” means any order, writ, injunction, decree, stipulation, judgment, award, determination, direction, decision or demand of a Governmental Entity. |
| (ccc) | “Outside Date” has the meaning set forth in the Plan Support Agreement. |
| (ddd) | “Person” means an individual, a corporation, a partnership, a limited liability company, a trust, an unincorporated association, a Governmental Entity or any agency, instrumentality or political subdivision of a Governmental Entity, or any other entity or body. |
| (eee) | “Plan Sponsor” means LVS III SPE XV LP, TOCU XVII LLC, HVS XVI LLC, OC II LVS XIV LP and OC III LFE I LP. |
| (fff) | “Plan Support Agreement” means the support agreement dated as of the date of this Backstop Commitment Letter, among the Plan Sponsor, the Company and the other parties thereto. |
| (ggg) | “Sanction Order” has the meaning set forth in the Plan Support Agreement. |
| (hhh) | “Sanction Recognition Order” has the meaning set forth in the Plan. |
| (iii) | “Sanctioned Country” means any country or territory to the extent that such country or territory itself is the subject of any comprehensive Sanctions (currently, Crimea, Cuba, Iran, North Korea, Syria and those portions of the Donetsk People’s Republic or Luhansk People’s Republic regions (and such other regions) of Ukraine over which any Sanctions Law authority imposes comprehensive Sanctions Laws), or any country or territory whose government is the subject of Sanctions Laws (currently, Venezuela) or that is otherwise the subject of broad restrictions under Sanctions Laws (including Afghanistan, Russia and Belarus) |
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| (jjj) | “Sanctioned Person” means (i) any Person identified in any Sanctions Law-related list of designated Persons maintained by the Government of Canada or other Sanctions Laws authorities, (ii) any Person located, incorporated, or resident in a Sanctioned Country, or (iii) any Person directly or indirectly owned or controlled by, or acting for the benefit or on behalf of, a Person described in clause (i) or (ii) to the extent the owned or controlled Person is itself subject to the restrictions or prohibitions as the Person described in clause (i) or (ii). |
| (kkk) | “Sanctions Laws” means economic and financial sanctions Laws administered, enacted or enforced from time to time by the Government of Canada, United States, European Union, United Kingdom, or United Nations Security Council. |
| (lll) | “Securities Laws” means, collectively, Canadian Securities Laws and U.S. Securities Laws. |
| (mmm) | “SEDAR” means the System for Electronic Document Analysis and Retrieval. |
| (nnn) | “Specified Tax Jurisdiction” means the United States and any state or local jurisdiction in the United States. |
| (ooo) | “Term Loan” has the meaning set forth in the Plan. |
| (ppp) | “Term Loan Claim” has the meaning set forth in the Plan Support Agreement. |
| (qqq) | “Term Loan Record Date” has the meaning set forth in the Plan |
| (rrr) | “Transaction Regulatory Approvals” means, collectively, and in each case to the extent it has been agreed to in accordance with Section 7 hereof that such approval shall be obtained, the Competition Act Approval, the Antitrust Approvals, the Investment Canada Act Approval and the Regulatory Approvals. |
| (sss) | “TSX-V” means the TSX Venture Exchange. |
| (ttt) | “U.S. Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§ 101-1532. |
| (uuu) | “U.S. Bankruptcy Court” means the United Stated Bankruptcy Court for the Southern District of Texas. |
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| (vvv) | “U.S. Bankruptcy Proceedings” means the proceedings commenced by Just Energy, as foreign representative for the Just Energy Entities, pursuant to Chapter 15 of the U.S. Bankruptcy Code before the U.S. Bankruptcy Court. |
| (www) | “U.S. Securities Act” means the United States Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder, or any successor statute. |
| (xxx) | “U.S. Securities Commission” means the United States Securities and Exchange Commission. |
| (yyy) | “U.S. Securities Exchange Act” means the United States Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations promulgated thereunder, or any successor statute. |
| (zzz) | “U.S. Securities Laws” means, collectively, the U.S. Securities Act, the U.S. Securities Exchange Act and the rules and regulations of the U.S. Securities Commission, and all applicable U.S. state securities laws. |
| (aaaa) | “Unsubscribed New Equity” means the aggregate number of New Equity Offering Shares, less the aggregate number of New Equity Offering Shares to be issued in accordance with the New Equity Offering Participation Forms submitted to the Company on or before the New Equity Participation Deadline. |
| (bbbb) | “US Dollars” or “US$” means the lawful money of the United States of America. |
SCHEDULE “C”
BACKSTOP COMMITMENT ALLOCATION
| Backstop Party | New Equity Commitment | Backstop Commitment Allocation |
| LVS III SPV XV LP | [Redacted] | [Redacted] |
| OC II LVS XIV LP | [Redacted] | [Redacted] |
| HVS XVI LLC | [Redacted] | [Redacted] |
| TOCU XVII LLC | [Redacted] | [Redacted] |
| OC III LFE I LP | [Redacted] | [Redacted] |
SCHEDULE “D”
FORM OF Additional backstop PARTY JOINDER
This Additional Backstop Party Joinder to the Backstop Commitment Letter (this “Joinder”) is made as of [__], 202[●] (the “Joinder Date”), by and among [__] (the “Joining Backstop Party”), Just Energy Group Inc. (the “Company”) and the Backstop Parties (as defined in the Backstop Commitment Letter (as defined below)) in consideration of the mutual covenants herein contained and benefits to be derived herefrom.
RECITALS:
| A. | Reference is made to a certain Backstop Commitment Letter dated as of May 12, 2022 (as amended, modified, supplemented or restated and in effect from time to time, the “Backstop Commitment Letter”), by and among the Backstop Parties party thereto and the Company. All capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Backstop Commitment Letter; |
| B. | The Joining Backstop Party desires to become a party to, and to be bound by the terms of, the Backstop Commitment Letter. |
| C. | Pursuant to the terms of the Backstop Commitment Letter, in order for the Joining Backstop Party to become party to the Backstop Commitment Letter, the Joining Backstop Party is required to execute this Joinder. |
NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
| 1. | Joinder and Assumption of Obligations. Effective as of the Joinder Date, the Joining Backstop Party hereby acknowledges that it has received and reviewed a copy of the Backstop Commitment Letter, and acknowledges and agrees to: |
(a) join in the execution of, and become a party to, the Backstop Commitment Letter as an Additional Backstop Party thereunder, as indicated with its signature below;
(b) subject to section (c) below, be bound by all agreements of the Backstop Parties under the Backstop Commitment Letter with the same force and effect as if such Joining Backstop Party was a signatory to the Backstop Commitment Letter and was expressly named as an Additional Backstop Party therein; and
(c) assume all rights and interests and perform all applicable duties and obligations of the Backstop Parties under the Backstop Commitment Letter other than those expressed therein to be solely the rights, interests, duties and obligations of the Initial Backstop Parties.
| 2. | Ratification. Except as specifically amended by this Joinder, all of the terms and conditions of the Backstop Commitment Letter shall remain in full force and effect as in effect prior to the date hereof, without releasing any obligors thereon. |
| 3. | Miscellaneous. |
(a) This Joinder may be executed by electronic means and in one or more counterparts, all of which shall be considered one and the same agreement. This Joinder will become effective upon the execution thereof by the Company, the Joining Backstop Party and the Backstop Parties party to the Backstop Commitment Letter as of the Joinder Date.
(b) This Joinder expresses the entire understanding of the parties with respect to the transactions contemplated hereby. No prior negotiations or discussions shall limit, modify, or otherwise affect the provisions hereof.
(c) Any determination that any provision of this Joinder or any application hereof is invalid, illegal or unenforceable in any respect and in any instance shall not affect the validity, legality, or enforceability of such provision in any other instance, or the validity, legality or enforceability of any other provisions of this Joinder.
(d) The Joining Backstop Party represents and warrants that the Joining Backstop Party has consulted with independent legal counsel of its selection in connection with this Joinder and is not relying on any representations or warranties of any other Backstop Party or the Company or their respective counsel in entering into this Joinder. The Joining Backstop Party represents and warrants to each other Backstop Party and the Company that such Joining Backstop Party, together with its Affiliates, holds on the Joinder Date the aggregate principal amount of Term Loans specified on the signature pages hereto.
(e) This Joinder is governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to principles of conflicts of law. Each party to this Joinder submits to the jurisdiction of the courts of competent jurisdiction in the Province of Ontario in respect of any action or proceeding relating to this Joinder. The parties to this Joinder shall not raise any objection to the venue of any proceedings in such court, including the objection that the proceedings have been brought in an inconvenient forum.
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IN WITNESS WHEREOF, each of the undersigned has caused this Joinder to be duly executed and delivered as of the date first set forth above.
| Name of Joining Backstop Party: | ||
| Per: | ||
| Name: | ||
| Title: | ||
| Address: | ||
| New Equity Commitment (representing its pro rata share of the New Equity Offering Shares multiplied by the Subscription Price – calculated as: ((the principal amount of the Term Loan you hold divided by $●) x $192,550,000) | ||
| Backstop Commitment Allocation (in US$, subject to its Maximum Backstop Amount, which will be no greater than $●): | ||
Exhibit “A”
| Name of Joining Backstop Party: |
| Principal Amount of Term Loan | |
SCHEDULE “E”
FORM OF Assignee JOINDER
This Assignee Joinder to the Backstop Commitment Letter (this “Joinder”) is made as of [__], 202[●] (the “Joinder Date”), by and among [__] (the “Joining Backstop Party”), Just Energy Group Inc. (the “Company”) and the Backstop Parties (as defined in the Backstop Commitment Letter (as defined below)) in consideration of the mutual covenants herein contained and benefits to be derived herefrom.
RECITALS:
| A. | Reference is made to a certain Backstop Commitment Letter dated as of [__], 202[●] (as amended, modified, supplemented or restated and in effect from time to time, the “Backstop Commitment Letter”), by and among the Backstop Parties party thereto and the Company. All capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Backstop Commitment Letter; |
| B. | The Joining Backstop Party desires to become a party to, and to be bound by the terms of, the Backstop Commitment Letter. |
| C. | Pursuant to the terms of the Backstop Commitment Letter, in order for the Joining Backstop Party to become party to the Backstop Commitment Letter, the Joining Backstop Party is required to execute this Joinder. |
NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
| 1. | Joinder and Assumption of Obligations. Effective as of the Joinder Date, the Joining Backstop Party hereby acknowledges that it has received and reviewed a copy of the Backstop Commitment Letter, and acknowledges and agrees to: |
(a) join in the execution of, and become a party to, the Backstop Commitment Letter as an Assignee Backstop Party thereunder, as indicated with its signature below;
(b) subject to section (c) below, be bound by all agreements of the Backstop Parties under the Backstop Commitment Letter with the same force and effect as if such Joining Backstop Party was a signatory to the Backstop Commitment Letter and was expressly named as a Backstop Party therein; and
(c) assume all rights and interests and perform all applicable duties and obligations of the Backstop Parties under the Backstop Commitment Letter other than those expressed therein to be solely the rights, interests, duties and obligations of the Initial Backstop Parties.
| 2. | Ratification. Except as specifically amended by this Joinder, all of the terms and conditions of the Backstop Commitment Letter shall remain in full force and effect as in effect prior to the date hereof, without releasing any obligors thereon. |
| 3. | Miscellaneous. |
(a) This Joinder may be executed by electronic means and in one or more counterparts, all of which shall be considered one and the same agreement. This Joinder will become effective upon the execution thereof by the Company, the Joining Backstop Party and the Backstop Parties party to the Backstop Commitment Letter as of the Joinder Date.
(b) This Joinder expresses the entire understanding of the parties with respect to the transactions contemplated hereby. No prior negotiations or discussions shall limit, modify, or otherwise affect the provisions hereof.
(c) Any determination that any provision of this Joinder or any application hereof is invalid, illegal or unenforceable in any respect and in any instance shall not affect the validity, legality, or enforceability of such provision in any other instance, or the validity, legality or enforceability of any other provisions of this Joinder.
(d) The Joining Backstop Party represents and warrants that the Joining Backstop Party has consulted with independent legal counsel of its selection in connection with this Joinder and is not relying on any representations or warranties of any other Backstop Party or the Company or their respective counsel in entering into this Joinder. The Joining Backstop Party represents and warrants to each other Backstop Party and the Company that such Joining Backstop Party, together with its Affiliates, holds on the Joinder Date the aggregate principal amount of Term Loans specified on the signature pages hereto.
(e) This Joinder is governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to principles of conflicts of law. Each party to this Joinder submits to the jurisdiction of the courts of competent jurisdiction in the Province of Ontario in respect of any action or proceeding relating to this Joinder. The parties to this Joinder shall not raise any objection to the venue of any proceedings in such court, including the objection that the proceedings have been brought in an inconvenient forum.
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IN WITNESS WHEREOF, each of the undersigned has caused this Joinder to be duly executed and delivered as of the date first set forth above.
| Name of Joining Backstop Party: | ||
| Per: | ||
| Name: | ||
| Title: | ||
| Address: | ||
| Backstop Commitment Allocation (in US$): | ||
Exhibit “A”
| Name of Joining Backstop Party: |
| Principal Amount of Term Loan | |
| Acknowledged and agreed: | ||
| JUST ENERGY (U.S.) CORP. | ||
| Per: | ||
| Name: | ||
| Title: | ||
| [BACKSTOP PARTIES] | ||
| Per: | ||
| Name: | ||
| Title: | ||