July 2022

The Interplay Between Control Issues and Loan Covenants in Cannabis

Regardless of the jurisdiction in which it conducts its business, licensed cannabis businesses (“Cannabis Operators”) are constantly grappling with what I’ll refer to as “control issues” while negotiating the documentation of a corporate transaction. Cannabis regulations in most states prohibit people from exercising a certain level of control (i.e., decision-making authority over operations, finances, strategic planning and/or marketing of a Cannabis Operator) without first being approved by the applicable regulatory authority, undergoing background checks, fingerprinting and submitting other application requirements. Conversely, people who contract with Cannabis Operators but are not afforded a material level of control over the Cannabis Operator according to the contract can avoid such rigorous requirements. Control issues arise when some third party (e.g., investor, lender, consultant, management services provider, each a “Contracting Third Party”) contracts with a Cannabis Operator to provide a service to the Cannabis Operator or funding in the form of an equity investment or a loan. For various reasons, Contracting Third Parties do not want to be considered persons with control over a Cannabis Operator or be subject to background checks or other reporting requirements to the applicable regulatory authority. It is the collective duty of counsel to the Cannabis Operator and … Keep reading