Representations and Warranties of the Issuer. (a) the Issuer is a corporation duly incorporated and validly subsisting under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted; (b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares; (c) the common shares of the Company are duly listed and posted for trading on the Exchange; (d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware; (e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange; (f) the execution, delivery and performance by the Issuer of this Agreement and the transactions herein contemplated: (i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof; (ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound; (g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and (h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated.
Appears in 6 contracts
Sources: Subscription Agreement (Amador Gold Corp), Subscription Agreement (Amador Gold Corp), Subscription Agreement (Amador Gold Corp)
Representations and Warranties of the Issuer. (a) the Issuer is a corporation duly incorporated and validly subsisting under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated.;
Appears in 5 contracts
Sources: Subscription Agreement (Amador Gold Corp), Subscription Agreement (Amador Gold Corp), Subscription Agreement (Amador Gold Corp)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Company, as of the Effective Date, that:
(aA) The Issuer is a duly organized and existing municipal corporation of the State of Kansas.
(B) To the best of the Issuer’s knowledge and belief, when delivered to and paid for by the Company in accordance with the provisions of this Agreement, the Series 2023 Bonds will have been duly authorized, executed, authenticated, issued and delivered; and, the Series 2023 Bonds will constitute valid and binding special limited obligations of the Issuer payable solely and only from the revenues specified in the Indenture and in conformity with, and entitled to the benefit and security of, the Indenture, the Base Lease and the Lease; and, this Agreement, the Series 2023 Bonds, the Indenture, the Base Lease and the Lease and all action taken by the Issuer in connection therewith shall be in conformity with K.S.A. 12-1740 et seq., as amended.
(C) To the best of the Issuer’s knowledge, the execution and delivery of this Agreement, the Series 2023 Bonds, the Base Lease, the Lease and the Indenture and compliance with the provisions thereof, will not conflict with or constitute on the part of the Issuer a violation of, breach of or default under any statute, indenture, mortgage, declaration or deed of trust, note agreement or other agreement or instrument to which the Issuer is a corporation duly incorporated and validly subsisting under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) the Issuer shall do all acts and things necessary to reserve party or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of by which the Issuer is bound, or, to the knowledge of the Issuer, any order, rule or ought to be aware;regulation of any court or governmental agency or body having jurisdiction over the Issuer or any of its activities or properties.
(eD) To the best of the Issuer’s knowledge, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body pending or threatened against or affecting the Issuer, challenging or seeking to enjoin the transactions contemplated by this Agreement, the Indenture, the Base Lease or the Lease, or contesting the validity or enforceability of the Series 2023 Bonds, the Base Lease, the Lease, the Indenture, this Agreement or any agreement or instrument to which the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not party, used or contemplated to be used in material default of any consummation of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;transactions contemplated by this Agreement.
(fE) the execution, delivery and performance Any certificate signed by the Issuer of this Agreement and the transactions herein contemplated:
(i) have any authorized officer or will have been prior to the Closing duly authorized by all necessary corporate action official of the Issuer and delivered to the Company shall be deemed a representation by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, the Company as to the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment truth of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedtherein made.
Appears in 3 contracts
Sources: Bond Purchase Agreement, Bond Purchase Agreement, Bond Purchase Agreement
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Registered Holder as of January 20, 2014, as follows:
(a) the Issuer is a corporation duly incorporated organized, existing and validly subsisting in good standing under the laws of British Columbia its state or province of incorporation and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its the business as currently conducted;which it conducts and proposes to conduct.
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the The execution, delivery and performance of the Securities by the Issuer has been duly approved by the Board of this Agreement Directors of Issuer and all other actions required to authorize and effect the offer and sale of the Securities have been duly taken and approved.
(c) The Securities and the Common Stock issuable upon conversion of the Securities (the "Conversion Shares") have been duly and validly authorized. The Securities and Conversion Shares, when issued and paid for in accordance with the terms hereof, will be fully paid and non-assessable and valid and binding obligations of the Issuer enforceable in accordance with their respective terms.
(d) Issuer will, at all times have authorized and reserved a sufficient number of shares of Common Stock to provide for conversion of the Securities into shares of Common Stock.
(e) Issuer has obtained all licenses, permits and other governmental authorizations necessary to the conduct of its business; such licenses, permits and other governmental authorizations obtained are in full force and effect; and Issuer is in all material respects complying therewith.
(f) Issuer knows of no pending or threatened legal or governmental proceedings to which Issuer is a party which could materially adversely affect the business, property, financial condition or operations of the Issuer.
(g) Issuer is not in violation of or default under, nor will the execution and delivery of the Securities, the issuance of the Common Stock upon conversion of the Securities and the incurrence of the obligations herein and therein set forth and the consummation of the transactions herein or therein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be result in breach or default of its memorandum or articlesa violation of, or articles constitute a default under the certificate of incorporation or by-laws, as the case may be, performance or observance of any resolution of its respective directors material obligations, agreement, covenant or shareholders, condition contained in any trust deedsbond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreements or instrument to which the Issuer is a party or by which it or any of its other agreements properties may be bound or undertakings in violation of any material order, rule, regulation, writ, injunction or decree of any judgementgovernment, decree governmental instrumentality or order to court, domestic or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedforeign.
Appears in 3 contracts
Sources: Convertible Debenture (UHF Inc), Convertible Debenture (UHF Inc), Convertible Debenture (Target Acquisitions I, Inc.)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Company, as of the Effective Date, that:
(aA) The Issuer is a duly organized and existing municipal corporation of the State of Kansas.
(B) To the best of the Issuer’s knowledge and belief, when delivered to and paid for by the Company in accordance with the provisions of this Agreement, the Series 2024 Bonds will have been duly authorized, executed, authenticated, issued and delivered; and, the Series 2024 Bonds will constitute valid and binding special limited obligations of the Issuer payable solely and only from the revenues specified in the Indenture and in conformity with, and entitled to the benefit and security of, the Indenture, the Base Lease and the Lease; and, this Agreement, the Series 2024 Bonds, the Indenture, the Base Lease and the Lease and all action taken by the Issuer in connection therewith shall be in conformity with K.S.A. 12-1740 et seq., as amended.
(C) To the best of the Issuer’s knowledge, the execution and delivery of this Agreement, the Series 2024 Bonds, the Base Lease, the Lease and the Indenture and compliance with the provisions thereof, will not conflict with or constitute on the part of the Issuer a violation of, breach of or default under any statute, indenture, mortgage, declaration or deed of trust, note agreement or other agreement or instrument to which the Issuer is a corporation duly incorporated and validly subsisting under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) the Issuer shall do all acts and things necessary to reserve party or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of by which the Issuer is bound, or, to the knowledge of the Issuer, any order, rule or ought to be aware;regulation of any court or governmental agency or body having jurisdiction over the Issuer or any of its activities or properties.
(eD) To the best of the Issuer’s knowledge, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body pending or threatened against or affecting the Issuer, challenging or seeking to enjoin the transactions contemplated by this Agreement, the Indenture, the Base Lease or the Lease, or contesting the validity or enforceability of the Series 2024 Bonds, the Base Lease, the Lease, the Indenture, this Agreement or any agreement or instrument to which the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not party, used or contemplated to be used in material default of any consummation of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;transactions contemplated by this Agreement.
(fE) the execution, delivery and performance Any certificate signed by the Issuer of this Agreement and the transactions herein contemplated:
(i) have any authorized officer or will have been prior to the Closing duly authorized by all necessary corporate action official of the Issuer and delivered to the Company shall be deemed a representation by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, the Company as to the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment truth of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedtherein made.
Appears in 3 contracts
Sources: Bond Purchase Agreement, Bond Purchase Agreement, Bond Purchase Agreement
Representations and Warranties of the Issuer. The Issuer represents and warrants as follows:
(a) This Agreement and the Obligations have been duly authorized and this Agreement when executed and delivered and the Obligations when issued in accordance with the applicable Instructions, will be valid and binding obligations of the Issuer, enforceable against the Issuer is a corporation duly incorporated in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and validly subsisting under the other laws of British Columbia and has the corporate power and authority general applicability relating to enter into this Agreement and complete the transactions contemplated hereby or affecting creditors’ rights and to own and lease its properties and assets and to conduct its business as currently conductedgeneral equity principles;
(b) This Agreement and the consummation of the transactions herein contemplated will not (i) result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument for money borrowed to which the Issuer shall do all acts and things necessary is a party or by which the Issuer is bound or to reserve which any of the property or set aside sufficient shares in the treasury assets of the Issuer to enable it to issue is subject, or (ii) result in any violation of (x) the provisions of the Articles of Incorporation or the By-Laws of the Issuer or (y) to the Purchaser best knowledge of the Shares Issuer, any statute or any order, rule or regulation of any court or government agency or body having jurisdiction over the Issuer or any of its properties, in any manner which, in the case of clauses (i) and (ii) (y), would have a material adverse effect on the Warrant Sharesbusiness of the Issuer and its subsidiaries taken as a whole;
(c) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over the common shares Issuer or any of its properties is required for the issue and sale of the Company are duly listed Obligations, except such as have been, or will have been obtained prior to the issue and posted for trading on sale of the Exchange;Obligations, and such consents, approvals, authorizations, registrations or qualifications as may be required under “blue sky” or state securities laws or insurance laws in connection with the issue and sale of the Obligations by the Issuer; and
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been Each Obligation issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to under this Agreement will be aware;
(e) the Issuer is a reporting issuer and an exchange issuer exempt from registration under the SECURITIES ACT (B.C.) and is not in material default Securities Act of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder1933, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance as amended. Each Instruction by the Issuer of to issue Obligations under this Agreement shall be deemed a representation and warranty by the transactions Issuer as of the date thereof that the representations and warranties herein contemplated:
(i) have or will have been prior are true and correct as if made on and as of such date, except to the Closing duly authorized by all necessary corporate action of the Issuer extent that such representations and by all necessary action of the shareholders thereof;
(ii) do not contravenewarranties specifically refer to a different date, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the which case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares they shall be duly issued true and outstanding correct as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedsuch date.
Appears in 2 contracts
Sources: Issuing and Paying Agent Agreement (Danaher Corp /De/), Issuing and Paying Agent Agreement (Danaher Corp /De/)
Representations and Warranties of the Issuer. By accepting this offer, the Issuer represents and warrants to the Subscriber that, as of the Closing Date:
(a) the Issuer is a corporation has been duly incorporated and is validly subsisting and in good standing under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedjurisdiction of incorporation, continuation or amalgamation;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company Issuer are duly listed and posted for trading on the Exchangea recognized stock exchange or quotation system;
(dc) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities the Securities has been issued and remains outstanding against the Issuer and, to the Issuer or its directorsbest of the Issuer’s knowledge, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awarehave been threatened;
(ed) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the consummation of the transactions contemplated herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action on the part of the Issuer and and, subject to acceptance by all necessary action the Issuer, this Agreement constitutes a valid obligation of the shareholders thereof;
(ii) do not contraveneIssuer legally binding upon it and enforceable in accordance with its terms subject to such limitations and prohibitions in applicable laws relating to bankruptcy, conflict with insolvency, liquidation, moratorium, reorganization, arrangement or cause the Issuer to be in breach or default of its memorandum or articles, or articles or bywinding-up and other laws, as rules and regulations of general application affecting the case may berights, or powers, privileges, remedies and interests of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessablecreditors generally; and
(he) except as qualified by the disclosure in all prospectuses, filing statements sale and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner issuance of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure RecordSecurities, and the properties are in good standing under the applicable laws delivery of the jurisdictions in which they are situatedcertificates representing them, will have been approved by all requisite corporate action on or before the Closing Date and, upon issue and delivery at the closing, the Securities will be validly issued.
Appears in 2 contracts
Sources: Subscription Agreement (Cronus Equity Capital Group LLC), Subscription Agreement (Cronus Equity Capital Group LLC)
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Collateral Manager that:
(a) the Issuer is a corporation (i) has been duly incorporated as an exempted company and is validly subsisting existing under the laws of British Columbia and the Cayman Islands; (ii) has the corporate full power and authority to enter into own the Issuer’s assets and the securities proposed to be owned by the Issuer and included among the Collateral and to transact the business for which the Issuer was incorporated; (iii) is duly qualified under the laws of each jurisdiction where the Issuer’s ownership or lease of property or the conduct of the Issuer’s business requires or the performance of the Issuer’s obligations under this Agreement and complete the transactions contemplated hereby Indenture would require such qualification, except for failures to be so qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Issuer or the ability of the Issuer to perform its obligations under, or on the validity or enforceability of, this Agreement and the Indenture; and (iv) has full power and authority to own execute, deliver and lease its properties perform the Issuer’s obligations hereunder and assets and to conduct its business as currently conductedthereunder;
(b) this Agreement and the Indenture have been duly authorized, executed and delivered by the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of constitute legal, valid and binding agreements enforceable against the Issuer in accordance with their terms except that the enforceability thereof may be subject to enable it (i) bankruptcy, insolvency, reorganization, winding-up, moratorium, receivership, conservatorship or other similar laws now or hereafter in effect relating to issue to the Purchaser the Shares creditors’ rights and the Warrant Shares(ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(c) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other Person is required for the common shares performance by the Issuer of its duties hereunder or under the Indenture, except those that may be required under state securities or “blue sky” laws or the applicable laws of any jurisdiction outside of the Company are United States, and such as have been duly listed and posted for trading on the Exchangemade or obtained;
(d) no order ceasing neither the execution, delivery and performance of this Agreement or suspending trading in securities of the Indenture nor the performance by the Issuer nor prohibiting of its duties hereunder or under the sale Indenture (i) conflicts with or will violate or result in a default under the Issuer’s Governing Documents or any material contract or agreement to which the Issuer is a party or by which it or its assets may be bound, or any law, decree, order, rule, or regulation applicable to the Issuer of such securities has been issued to any court or regulatory, administrative or governmental agency, body or authority or arbitrator having jurisdiction over the Issuer or its directorsproperties, officers or promoters (other than as contemplated or against permitted by the Indenture) will result in a lien on any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the property of the Issuer is and (ii) would have a material adverse effect upon the ability of the Issuer to perform its duties under this Agreement or ought to be awarethe Indenture;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is its Affiliates are not in material default violation of any federal, state or Cayman Islands laws or regulations, and there is no charge, investigation, action, suit or proceeding before or by any court or regulatory agency pending or, to the best knowledge of the requirements Issuer, threatened that, in any case, would have a material adverse effect upon the ability of the SECURITIES ACT (B.C.) Issuer to perform its duties under this Agreement or the Rules thereunder, or of any rule or requirement of the ExchangeIndenture;
(f) the execution, delivery and performance by Issuer is not an “investment company” under the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is boundInvestment Company Act;
(g) at the Closing, upon payment assets of the purchase price, Issuer do not and will not at any time constitute the Shares shall be duly issued and outstanding as fully paid and non-assessable, assets of any plan subject to the Warrants shall be duly granted and enforceable against the Company, upon exercise fiduciary responsibility provisions of ERISA or of any plan subject to Section 4975 of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessableCode; and
(h) except as qualified by the disclosure in all prospectusesIssuer has received, filing statements and press releases filed with the Commissions at or the Exchange or the Offering Memorandumprior to entering into this Agreement, if any, (the "Disclosure Record"), the Company is the beneficial owner a current copy of the propertiesCollateral Manager’s Form ADV, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated.Part 2A.
Appears in 2 contracts
Sources: Collateral Management Agreement (TPG RE Finance Trust, Inc.), Collateral Management Agreement (TPG RE Finance Trust, Inc.)
Representations and Warranties of the Issuer. The Issuer and Holdings represent and warrant to, and agree with, the Initial Purchasers that:
(a) A preliminary offering circular dated May 23, 2001 and an offering circular dated the Issuer date of this Agreement relating to the Offered Securities to be purchased by the Initial Purchasers have been prepared by the Issuer. Such preliminary offering circular (the "Preliminary Offering Circular") and offering circular (the "Offering Circular") are hereinafter collectively referred to as the "Offering Document". On the date of this Agreement, the Offering Document does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements or omissions from the Offering Document based upon written information furnished to the Company by any Initial Purchaser through CSFBC specifically for use therein, it being understood and agreed that the only such information is a corporation that described in Section 7(b) hereof.
(b) Each of the Issuer, Holdings and the Company has been duly incorporated and validly subsisting is an existing corporation in good standing under the laws of British Columbia and has the jurisdiction of its incorporation, with corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares described in the treasury Offering Document, and each of the Issuer Issuer, Holdings and the Company is duly qualified to enable it to issue do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except to the Purchaser extent that the Shares failure to be so qualified or to be in good standing would not have a material adverse effect on the business, financial condition or results of operation of the Company and the Warrant Shares;its subsidiaries, taken as a whole (a "Material Adverse Effect").
(c) the common shares Each subsidiary of the Company are has been duly listed incorporated and posted is an existing corporation, limited liability company or limited partnership, as the case may be, in good standing (if applicable) under the laws of the jurisdiction of its incorporation or organization, with corporate power and authority to own its properties and conduct its business as described in the Offering Document, and each subsidiary of the Company is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, in good standing (if applicable) in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except to the extent that the failure to be so qualified or to be in good standing would not have a Material Adverse Effect; all of the issued and outstanding capital stock, ownership interests, or partnership interests, as the case may be, of each subsidiary of the Company has been, and immediately following the Merger will be, duly authorized and validly issued and, in the case of capital stock, is fully paid and nonassessable; and except as disclosed in the Offering Document and for trading on pledges in favor of Credit Suisse First Boston, New York branch, as collateral agent under the Exchange;Credit Agreement, the capital stock, ownership interests, or partnership interests, as the case may be, of the Company and each subsidiary owned by the Company, directly or through subsidiaries, will be owned free from liens, encumbrances and defects immediately following the Merger and the other Transactions.
(d) no order ceasing or suspending trading On the Closing Date, the Indenture will be duly authorized by the Issuer and Holdings, and the Supplemental Indenture will be duly authorized by the Company and the Subsidiary Guarantors upon consummation of the Merger; on the Closing Date, the Offered Securities will be duly authorized by the Issuer and Holdings, and the Subsidiary Guaranties will be duly authorized by the Subsidiary Guarantors upon consummation of the Merger; and when the Offered Securities are delivered and paid for pursuant to this Agreement and the Indenture on the Closing Date (as defined below), assuming due authorization, execution and delivery of the Indenture by the Trustee, the Indenture will have been duly executed and delivered by the Issuer and Holdings, such Offered Securities will have been duly executed, authenticated, issued and delivered by the Issuer and Holdings (assuming authentication by the Trustee in securities accordance with the provisions of the Indenture) and will conform in all material respects to the description thereof contained in the Offering Document and the Indenture and such Offered Securities will constitute valid and legally binding obligations of the Issuer nor prohibiting and Holdings and, upon execution of the sale of such securities has been issued Supplemental Indenture, the Company and the Subsidiary Guarantors, enforceable in accordance with their terms and entitled to the Issuer benefits of the Indenture or its directorsthe Supplemental Indenture, officers as the case may be (assuming that the Indenture and the Supplemental Indenture are valid and legally binding obligations of the Trustee), subject to (i) the effects of bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or promoters similar laws of general applicability relating to or against any other companies that have common directorsaffecting creditors' rights, officers (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or promoters in equity) and no investigations or proceedings for such purposes are pending or threatened (iii) an implied covenant of which the Issuer is or ought to be aware;good faith and fair dealing.
(e) On the Closing Date, the Exchange Securities will have been duly authorized by the Issuer and Holdings, and upon consummation of the Merger, the Exchange Securities will be duly authorized by the Company and the Subsidiary Guarantors. When the Exchange Securities are issued, executed and authenticated in accordance with the terms of the Exchange Offer and the Indenture, the Exchange Securities (assuming authentication by the Trustee in accordance with the provisions of the Indenture) will be entitled to the benefits of the Indenture and will be the valid and binding obligations of the Company, Holdings and the Subsidiary Guarantors, enforceable against the Company, Holdings and the Subsidiary Guarantors in accordance with their terms (assuming that the Indenture and the Supplemental Indenture are valid and legally binding obligations of the Trustee), subject to (i) the effects of bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability affecting creditors' rights and (ii) general principles of equity (regardless of whether enforceability is considered in a reporting issuer and an exchange issuer under proceeding at law or in equity).
(f) On the SECURITIES ACT (B.C.) and is not Closing Date, the Indenture will conform in all material default of any of respects to the requirements of the SECURITIES ACT Trust Indenture Act of 1939, as amended (B.C.the "TIA" or the "Trust Indenture Act"), and the rules and regulations of the Securities and Exchange Commission (the "Commission") applicable to an indenture which is qualified thereunder.
(g) Except as disclosed in the Offering Document, there are no contracts, agreements or understandings between the Issuer, Holdings or the Company and any person that would give rise to a valid claim against the Issuer, Holdings, the Company or any Initial Purchaser for a brokerage commission, finder's fee or other like payment in connection with the Offered Securities.
(h) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement, the Registration Rights Agreement dated the date hereof, between the Issuer, Holdings and the Initial Purchasers (the "Registration Rights Agreement"), or any other Transaction Document, in each case, in connection with the consummation of the transactions contemplated therein, except as may be required under the Securities Act, the TIA and the rules and regulations of the Commission thereunder with respect to the Exchange Offer Registration Statement or the Shelf Registration Statement (each as defined in the Registration Rights Agreement) or the Rules thereundertransactions contemplated by the Registration Rights Agreement, or of any rule state or requirement foreign securities laws or by the regulations of the Exchange;National Association of Securities Dealers, Inc.
(fi) Assuming the accuracy of the representations of the other parties thereto and the performance by those parties of their agreements therein, the execution, delivery and performance by each of the Issuer of this Agreement Issuer, Holdings, the Company and the transactions herein contemplated:
subsidiaries of the Company (to the extent a party thereto) of each of the Transaction Documents and their compliance with the terms and provisions thereof and the consummation of the Transactions will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, that has jurisdiction over the Issuer, Holdings, the Company, or any of the Company's subsidiaries or any of their properties, (ii) the Transaction Documents or any agreement or instrument to which the Issuer, Holdings, the Company or any of the Company's subsidiaries is a party or by which the Issuer, Holdings, the Company or any of the Company's subsidiaries is bound or to which any of the properties of the Issuer, Holdings, the Company or the Company's subsidiaries is subject or (iii) the charter, by-laws or similar governing documents of the Issuer, Holdings, the Company or any of the Company's subsidiaries, except, with respect to clauses (i) and (ii), where such breach, violation or default would not have a Material Adverse Effect or would not have a material adverse effect on the business, financial condition or results of operation of the Issuer or Holdings or the Company or its subsidiaries, taken as a whole; the Issuer has full corporate power and authority to authorize, issue and sell the Notes as contemplated by this Agreement.
(j) None of the Issuer, Holdings, the Company or any of the subsidiaries of the Company is in breach or violation of any of the terms and provisions of, or in default under, (i) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, that has jurisdiction over the Issuer, Holdings, the Company, or any of the Company's subsidiaries or any of their properties, (ii) any agreement or instrument to which the Issuer, Holdings, the Company or any of the Company's subsidiaries is a party or by which the Issuer, Holdings, the Company or any of the Company's subsidiaries is bound or to which any of the properties of the Issuer, Holdings, the Company or the Company's subsidiaries is subject or (iii) the charter, by-laws or similar governing document of the Issuer, Holdings, the Company or any of the Company's subsidiaries, except with respect to clauses (i) and (ii) for any breaches, violations or defaults that would not have a Material Adverse Effect or would not have a material adverse effect on the business, financial condition or results of operation of the Issuer or Holdings or the Company or its subsidiaries, taken as a whole.
(k) This Agreement has been duly authorized, executed and delivered by the Issuer and Holdings. Each of the other Operative Documents has been, or as of the Closing Date will have been, duly authorized, executed and delivered by the Issuer and Holdings (to the extent a party thereto), and immediately upon consummation of the Merger will be duly authorized, executed and delivered by each of Holdings, the Company and the Subsidiary Guarantors (to the extent a party thereto). All of the Transaction Agreements have been or will have been prior be as of or on the Merger closing date, duly authorized, executed and delivered by each of Holdings, the Company and the Company's subsidiaries (to the Closing duly authorized by extent a party thereto). Each Transaction Document conforms or will conform in all necessary corporate action material respects to the descriptions thereof contained in the Offering Document and each Operative Document (other than this Agreement) is or will constitute valid and legally binding obligations of the Issuer and Holdings (to the extent a party thereto) and each Transaction Agreement constitutes or will constitute valid and legally binding obligations of Holdings, the Company and each Subsidiary Guarantor (to the extent a party thereto), enforceable in accordance with its respective terms, except that any rights to indemnity and contribution may be limited by all necessary action federal and state securities laws and public policy considerations and subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of the shareholders thereof;
general applicability relating to or affecting creditors' rights, (ii) do not contravenegeneral principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and (iii) an implied covenant of good faith and fair dealing.
(l) Except as disclosed in the Offering Document, conflict the Company and its subsidiaries have, or following consummation of the Merger will have, good and marketable title to all real properties and all other properties and assets owned by them that are material to the Company and its subsidiaries taken as a whole, in each case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or cause the Issuer proposed to be made thereof by them; and except as disclosed in breach the Offering Document, the Company and its subsidiaries hold any leased real or default personal property that is material to the Company and its subsidiaries taken as a whole under valid and enforceable leases with no exceptions that would materially interfere with the use made or proposed to be made thereof by them.
(m) The Company and its subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them and have not received any notice of its memorandum proceedings relating to the revocation or articles, or articles or by-laws, as the case may be, or modification of any resolution of its respective directors such certificate, authority or shareholderspermit that, any trust deeds, debenture, loan agreements if determined adversely to the Company or any of its other agreements subsidiaries, would individually or undertakings in the aggregate have a Material Adverse Effect.
(n) No labor dispute with the employees of the Company or any judgementsubsidiary exists or, decree to the knowledge of the Issuer or Holdings, is imminent that would reasonably be expected to have a Material Adverse Effect.
(o) The Company and its subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, "intellectual property rights") necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
(p) Except as disclosed in the Offering Document, neither the Company nor any of its subsidiaries is in violation of any statute, rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or by which it release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, "environmental laws"), owns or operates any real property contaminated with any substance that is a party subject to any environmental laws, is liable for any off-site disposal or contamination pursuant to any environmental laws, or is bound;subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would individually or in the aggregate have a Material Adverse Effect; and neither the Issuer nor Holdings is aware of any pending investigation which might lead to such a claim.
(gq) at Except as disclosed in the ClosingOffering Document, upon payment of there are no pending actions, suits or proceedings against or affecting the purchase priceIssuer, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against Holdings or the Company, upon exercise any of the Warrants and payment Company's subsidiaries or any of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
their respective properties that (hi) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), determined adversely to the Company is the beneficial owner or any of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated.its subsidiaries
Appears in 2 contracts
Sources: Purchase Agreement (Blum Capital Partners Lp), Purchase Agreement (Wirta Raymond E)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Investor that the representations and warranties given in this Clause 6 shall be true and correct as of the First Closing Date and shall be deemed to have been repeated as at each Closing Date and Conversion Date:
(ai) the Issuer is a corporation duly incorporated and validly subsisting under the laws of British Columbia and it has the corporate full power and authority to enter into this Agreement and complete to perform all the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedobligations resulting therefrom;
(bii) the signature of this Agreement and the performance of the obligations arising therefrom are not in violation of any provision of its By-Laws or of any previous contractual commitments with other parties;
(iii) the entry into and performance by the Issuer shall do all acts of its obligations under this Agreement does not and things necessary will not conflict with or cause a default under any finance agreement or instrument binding entered into by the Issuer;
(iv) it has been in existence for more than two (2) years, in connection with which the Board of Directors has diligently prepared annual accounts which were certified without reservation by its statutory and accounting auditors – save the remarks made in respect of the financial statements relating to reserve or set aside sufficient shares in the treasury years 2020 and 2021 resulting from the publicly available information – and regularly approved by the Shareholders’ Meeting;
(v) its capital is fully paid for the amount of EUR 2,818,361.38;
(vi) the financial statements of the Issuer to enable it to issue to give a true and fair view of the Purchaser financial position and results of the Shares and the Warrant SharesIssuer;
(cvii) any information concerning the common shares of Issuer, the Company are duly listed Shareholders’ Meeting and posted for trading on the ExchangeBoard Meetings set forth in this Agreement is true in all material respects;
(dviii) it has substantially complied with (a) all applicable legal and regulatory requirements and (b) specific authorisation given by the Issuer’s Shareholders’ Meeting, both (a) et (b) in respect of the issuance and the offering, as the case may be, of the Notes and the Warrants, and for the admission to trading on Euronext Milan of the Shares which may be issued upon the conversion of the Notes and/or the exercise of the Warrants;
(ix) no order ceasing inside information within the meaning of Article 7 of the Regulation n° 596/2014 of the European Parliament and of the Council of April 16, 2014, has been disclosed by the Issuer to the Investor and/or any Note or suspending trading in securities Warrant holder as the case may be;
(x) neither the issue of the Notes, the Warrants or the Shares upon conversion of the Notes and/or exercise of the Warrants will be subject to any pre-emptive or similar rights;
(xi) except for any necessary approvals from the Board of Directors or the Shareholders’ Meeting for the issuance or delivery of the Shares needed to serve the conversion of the Notes and the exercise of the Warrants and from Borsa Italiana and CONSOB for the listing of the Shares on Euronext Milan upon conversion of the Notes and/or exercise of the Warrants, neither the Issuer nor prohibiting the sale of such securities has been issued any Subsidiary is required to the Issuer obtain any consent, waiver, authorization or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunderorder of, or of make any rule filing or requirement of the Exchange;
(f) registration with, any court or other governmental or regulatory authority or other person in connection with the execution, delivery and performance by the Issuer of this Agreement Agreement, the issue of any Notes, Warrants or Shares and as of the transactions herein contemplated:date hereof any necessary consent and approval has been obtained and is in full force and effect;
(xii) there is no court-ordered insolvency procedures (including any action, suit, notice of violation, proceeding or investigation) pending which (i) have relates to or will have been challenges the legality, validity or enforceability of this Agreement or (ii) could, individually or in the aggregate, be reasonably expected to impair materially the ability of the Issuer to perform fully on a timely basis its obligations under this Agreement;
(xiii) all of the information provided to the Investor by the Issuer and its Subsidiaries prior to the Closing duly authorized by date of this Agreement was accurate, complete and up-to-date in all necessary material respects on the date on which it was provided or, if applicable, on the date to which it relates and does not mislead the Investor on any significant point, due to an omission, the occurrence of new facts or as a result of information communicated or not disclosed;
(xiv) the publicly available corporate action documents of the Issuer are substantially accurate, complete and by all necessary action of up-to-date on the shareholders thereofdate on which they were submitted;
(iixv) do not contraveneno judicial, conflict with arbitral or cause the Issuer to be in breach administrative proceedings have been brought against it or default against one of its memorandum or articlesSubsidiaries before a court, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements an arbitration tribunal or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase priceauthority, the Shares shall be duly issued and outstanding as fully paid and non-assessableoutcome of which, the Warrants shall be duly granted and enforceable against the Companyif unfavourable, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessablewould individually constitute a Material Adverse Change; and
(hxvi) except as qualified by the disclosure in all prospectusesNotes and the Warrants shall constitute direct, filing statements unconditional, unsecured and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner unsubordinated obligations of the propertiesIssuer and, business at all times so long as any Notes or Warrants or any substitute of a Note or a Warrant is outstanding, will rank equally between themselves and assets (subject to such exceptions as are from time to time mandatory under Italian law) equally and rateably (pari passu) with all other present or the interests in the properties, business or assets referred to in the Disclosure Record, future unsecured and the properties are in good standing under the applicable laws unsubordinated debt securities of the jurisdictions in which they are situatedIssuer.
Appears in 2 contracts
Sources: Agreement for the Issuance of and Subscription to Notes Convertible Into New Shares With Share Subscription Warrants Attached, Agreement for the Issuance of and Subscription to Notes Convertible Into New Shares With Share Subscription Warrants Attached
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Portfolio Manager as follows:
(a) the The Issuer has been duly formed and is validly existing as a corporation duly incorporated and validly subsisting limited liability company under the laws of British Columbia and the State of Delaware, has the corporate full limited liability company power and authority to enter into this Agreement own its assets and complete the transactions contemplated hereby obligations proposed to be owned by it and included in the Assets and to own transact the business in which it is presently engaged and is duly qualified under the laws of each jurisdiction where its ownership or lease its properties and assets and to of property or the conduct of its business as currently conducted;requires, or the performance of its obligations under this Agreement, the Indenture, the Securities Account Control Agreement, any Hedge Agreement, the Collateral Administration Agreement, the Loan Sale Agreement, the Master Participation Agreement or the Notes (collectively, the “Issuer Documents”) would require, such qualification, except for failures to be so qualified, authorized or licensed that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Issuer.
(b) The Issuer has the Issuer shall do all acts necessary limited liability company power and things necessary authority to reserve or set aside sufficient shares in the treasury execute and deliver each of the Issuer Documents, and to enable it perform all of its obligations required thereunder, and has taken all necessary action to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities authorize each of the Issuer nor prohibiting Documents on the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters terms and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer conditions hereof and an exchange issuer under the SECURITIES ACT (B.C.) thereof and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance of each of the Issuer Documents and the performance of all obligations imposed upon it hereunder and thereunder.
(c) This Agreement has been executed and delivered by a duly authorized officer of the Issuer, and this Agreement constitutes the legally valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, subject, as to enforcement, to (i) the effect of bankruptcy, insolvency, reorganization, moratorium, winding up or similar laws affecting generally the enforcement of creditors’ rights, as such laws would apply in the event of any bankruptcy, receivership, insolvency, winding up or similar event applicable to the Issuer and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(d) No consent of any other Person, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority, other than those that may be required under state securities or “blue sky” laws and those that have been or shall be obtained in connection with the Indenture and the issuance of the Notes, is required by the Issuer in connection with the Issuer Documents or the execution, delivery, performance, validity or enforceability of the Issuer Documents or the obligations imposed upon the Issuer hereunder or thereunder.
(e) The Issuer is not in violation of any applicable federal or state securities law or regulation promulgated thereunder, and there is no charge, investigation, action, suit or proceeding before or by any court pending or, to the best knowledge of the Issuer, threatened in writing that, if determined adversely to the Issuer, would have a material adverse effect upon the performance by the Issuer of its duties hereunder, or on the validity or enforceability of, this Agreement and the transactions herein contemplated:Agreement.
(if) have or will have been prior to the Closing duly authorized by all necessary corporate action The execution, delivery and performance of the Issuer Documents, and by all necessary action of the shareholders thereof;
(ii) documents and instruments required thereunder do not contraveneviolate any provision of any existing law or regulation binding on the Issuer, conflict with or cause any order, judgment, award or decree of any court, arbitrator or governmental authority binding on the Issuer, or the Governing Instruments of, or any securities issued by, the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors mortgage, indenture, lease, contract or shareholdersother agreement, any trust deeds, debenture, loan agreements instrument or undertaking to which the Issuer is a party or by which the Issuer or any of its assets may be bound, the violation of which would have a material adverse effect on the business, operations, assets or financial condition of the Issuer or the performance by the Issuer of its duties under this Agreement, and do not result in or require the creation or imposition of any lien on any of its property, assets or revenues pursuant to the provisions of any such mortgage, indenture, lease, contract or other agreements agreement, instrument or undertakings undertaking (other than the lien of the Indenture).
(g) The Issuer is not in violation of its Governing Instruments, or in breach or violation of, or in default under, the Indenture or any judgement, decree contract or order agreement to or by which it is a party to or is by which it or any of its assets may be bound;
(g) at , or any applicable statute or any rule, regulation or order of any court, government agency or body having jurisdiction over the ClosingIssuer or its properties, upon payment except for any breach, violation or default that would not have a material adverse effect on the validity or enforceability of the purchase pricethis Agreement, the Shares shall be duly issued and outstanding as fully paid and non-assessableCollateral Administration Agreement or the Indenture, or the performance by the Issuer of its duties under this Agreement, the Warrants shall be duly granted Collateral Administration Agreement and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; andIndenture.
(h) except The Issuer is not required to be registered as qualified an “investment company” under the Investment Company Act.
(i) There is no charge, investigation, action, suit or proceeding before or by any court pending or, to the best knowledge of the Issuer, threatened that, if determined adversely to the Issuer, would have a material adverse effect upon the performance by the disclosure Issuer of its duties under, or on the validity or enforceability of, this Agreement, the Collateral Administration Agreement or the provisions of the Indenture applicable to the Issuer thereunder.
(j) The information contained in the final offering circular pertaining to the Notes (the “Offering Circular”) is true and correct in all prospectusesmaterial respects, filing and does not omit to state any material fact necessary in order to make the statements and press releases filed with therein, in light of the Commissions or the Exchange or the Offering Memorandumcircumstances under which they were made, if anynot misleading; provided, (the "Disclosure Record")that, the Company is Issuer makes no representation or warranty with respect to the beneficial owner of the properties, business and assets or the interests in the properties, business or assets information referred to in the Disclosure Record, and the properties are in good standing under the applicable laws Section 4(h) of the jurisdictions in which they are situatedthis Agreement.
Appears in 2 contracts
Sources: Portfolio Management Agreement, Portfolio Management Agreement (Bain Capital Specialty Finance, Inc.)
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Auction Agent that:
(a) the Issuer is duly organized and is validly existing as a corporation duly incorporated and validly subsisting under the laws of British Columbia the State of Utah, and has the corporate full power to execute and authority to enter into deliver this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedAgreement;
(b) this Agreement has been duly and validly authorized, executed and delivered by the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in constitutes the treasury legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to enable it bankruptcy, insolvency, reorganization and other laws of general applicability relating to issue or affecting creditors’ rights and to the Purchaser the Shares and the Warrant Sharesgeneral equitable principles;
(c) the common shares execution and delivery of this Agreement do not and will not conflict with, violate, or result in a breach of the Company are duly listed and posted for trading on terms, conditions or provisions of, or constitute a default under, the Exchange;
(d) no Issuer’s Organizational Documents, any order ceasing or suspending trading in securities decree of any court or public authority having jurisdiction over the Issuer nor prohibiting the sale of such securities has been issued Issuer, or any mortgage, indenture, contract, agreement or undertaking to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to party or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(hd) except as qualified by of the disclosure date hereof, as of the Applicable Time (as defined below), at all times during the period that begins at the Applicable Time and ends at the Closing Date, and as of the Closing Date, as applicable, none of the Prospectus Supplement, any Preliminary Pricing Supplement or Pricing Supplement, or the Statutory Prospectus (as defined below), all considered together to the extent then in all prospectusesexistence, filing included or will include any untrue statement of a material fact or omitted or will omit to state a material tact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and press releases filed warranty shall not apply to any statements or omissions made in reliance upon and in conformity with the Commissions or information concerning the Exchange or Auction Agent furnished in writing to the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests Issuer expressly for use therein. As used in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated.this subsection:
Appears in 2 contracts
Sources: Auction Agent Agreement, Auction Agent Agreement (Zions Bancorporation /Ut/)
Representations and Warranties of the Issuer. (a) The Issuer represents and warrants to the Company and its Selling Group Members that:
2.1 The Issuer is a corporation duly incorporated organized and is validly subsisting under existing in the laws state of British Columbia and incorporation or formation referenced on the Deal Sheet, has the corporate all requisite power and authority to enter into this Agreement Agreement, and complete the transactions contemplated hereby has all requisite power and to own and lease its properties and assets and authority to conduct its business as currently conducted;business.
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares 2.2 No defaults exist in the treasury due performance or observance of the Issuer any material obligation, term, covenant, or condition of any agreement or instrument to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is a party or ought by which it is bound.
2.3 Subject to Section 3.4, the Offering Materials do not include, nor will they include at any time during the term, any untrue statement of a material fact nor do they nor will they omit to state a material fact required to be aware;
(e) stated therein or necessary to make the Issuer is a reporting issuer statements therein not misleading. The Company shall be entitled to rely upon the accuracy and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any completeness of the requirements information set forth in the Offering Materials, and shall have no obligation, nor shall it have any responsibility, to independently verify the accuracy or completeness of such information other than information relating to the SECURITIES ACT (B.C.) Company and its affiliates.
2.4 The Issuer has obtained all necessary approvals, consents, licenses and registrations from any governmental entity or any other person or entity necessary to perform its obligations hereunder and shall maintain all such approvals, consents and registrations in full force and effect during the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer term of this Agreement and the transactions performance of such obligations will not, in any material respect, contravene or result in a breach of any provision of its certificate of incorporation, by-laws or other organizational document or any agreement, instrument, order, law or regulation binding upon it.
2.5 All Offering Materials provided by the Issuer to the Company comply in all material respects with all requirements of applicable law.
2.6 The Issuer has complied and will comply in all material respects with all applicable federal and state securities laws in connection with the offering of the securities. In connection with the offer and sale of securities pursuant to this Agreement, the Issuer has not published, distributed, issued, posted or otherwise used or employed and shall not publish, distribute, issue, post or otherwise use or employ any form of general solicitation or advertising within the meaning of Rule 502 under the Securities Act (as defined herein) (“General Solicitation”) other than with the express prior written consent of ARKap and in compliance with Rule 506 under the Securities Act.
2.7 At the time of the issuance of an Offering, the Issuer will have authorized and issued the securities. Upon payment, the securities will be fully paid, nonassessable, and will conform to the description contained in the Offering Materials.
2.8 The Issuer is not required, and upon the issuance and sale of the securities as herein contemplated:contemplated and the application of the net proceeds therefrom, or upon any other activities of the Issuer, will not be required to register as an “investment company” under the Investment Company Act of 1940, as amended.
2.9 As of the Effective Date and at the time of any Offering (each, an “Applicable Date”), none of the Issuer, any of its predecessors, any director, executive officer, other officer of the Issuer participating in the Issuer’s private offering or any beneficial owner of 20% or more of the Issuer’s outstanding voting equity securities, calculated on the basis of voting power, any promoter (as that term is defined in Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), but specifically excluding the Company, any Selling Group Member and/or any of their respective affiliates, directors, officers or representatives) connected with the Issuer in any capacity at the time of sale, nor the Company’s manager/general partner(s) or any director, executive officer or other officer of the manager or general partner(s), as applicable, participating in the Offering (each, an “Issuer Covered Person” and, together, “Issuer Covered Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to 506(d)(1)(viii) under the Securities Act (a “Disqualifying Event”), except for a Disqualifying Event covered by Rule 506(d)(2) or Rule 506(d)(3) under the Securities Act. The Issuer has exercised reasonable care to determine: (i) have or will have been prior the identity of each person that is an Issuer Covered Person and (ii) whether any Issuer Covered Person is subject to a Disqualifying Event. The Issuer has complied, to the Closing duly authorized by all necessary corporate action extent applicable, with its disclosure obligations under Rule 506(e) under the Securities Act, and has furnished to the Company a copy of any disclosures provided thereunder.
2.10 With respect to each Issuer Covered Person, the Issuer has established procedures reasonably designed to ensure that the Issuer receives notice from each such Issuer Covered Person of: (i) any Disqualifying Event relating to that Issuer Covered Person and (ii) any event that would, with the passage of time, become a Disqualifying Event relating to that Issuer Covered Person, in each case, occurring up to and including, the last date on which securities are offered in the Offering.
2.11 The Issuer is qualified to do business and is in good standing in every jurisdiction in which the conduct of its business requires such qualification, except where the failure to do so would not result in a material adverse effect on the condition, financial or otherwise, results of operations or cash flows of the Issuer and by all necessary action taken as a whole (an “Issuer Material Adverse Effect”).
2.12 To the knowledge of the shareholders thereof;
Issuer, there is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Issuer, threatened against or affecting the Issuer (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the issuance of the securities or the consummation of the transactions contemplated by this Agreement, or (iii) which could reasonably be expected to result in an Issuer Material Adverse Effect.
2.13 Neither the Issuer nor any of its subsidiaries is in violation of its certificate of formation, limited liability company agreement and other organizational and operating documents. The execution and delivery of this Agreement, the issuance, sale and delivery of the securities, and the performance of this Agreement, do not contraveneand will not, in any material respect, conflict with or cause violate the Issuer to be terms of or constitute or result in a breach of or default under or result in a breach of its memorandum or articlesany of the terms and provisions of, or articles or by-laws, as constitute a default under: (i) the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements Issuer’s or any of its subsidiaries’ certificate of formation, limited liability company agreement or limited partnership agreement, as applicable, or other agreements organizational documents; (ii) any indenture, mortgage, deed of trust, voting trust agreement, note, lease or undertakings other agreement or instrument to which the Issuer or any judgement, decree or order to subsidiary is a party or by which it is a party to the Issuer, any of its subsidiaries or any of its or their properties is bound;
; (giii) at any law, rule or regulation applicable to the Closing, upon payment of Issuer promulgated under the purchase priceSecurities Act, the Shares shall be duly issued and outstanding Securities Exchange Act of 1934, as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, amended (the "Disclosure Record"“Exchange Act”), the Company rules of FINRA, or any state securities law of any state in which the Issuer or any of its subsidiaries is, or is required to be, qualified to transact business or as may be required by subsequent events which may occur; or (iv) any writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the beneficial owner Issuer, any of its subsidiaries or any of its or their properties, except to the extent that any conflict with, violation of, breach of or default under (i) through (iv) above have not and would not reasonably be expected to result in an Issuer Material Adverse Effect.
2.14 The representations and warranties made in this Section 2 are made as of the propertiesdate of this Agreement and will be continuing representations and warranties throughout the Term. In the event that any of these representations or warranties becomes untrue or is incorrect, business and assets or the interests Issuer will immediately notify ARKap in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws writing of the jurisdictions in fact which they are situatedmakes the representation or warranty untrue or incorrect.
Appears in 2 contracts
Sources: Managing Broker Dealer Agreement (CaliberCos Inc.), Managing Broker Dealer Agreement (CaliberCos Inc.)
Representations and Warranties of the Issuer. (a) the The Issuer is a corporation duly incorporated hereby represents and validly subsisting under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue warrants to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the transactions herein contemplatedInitial Forbearing Holders that:
(i) have or will have been prior to The Issuer and each Guarantor is duly organized, validly existing and in good standing under the Closing duly authorized by all necessary corporate action laws of the Issuer jurisdiction of its organization and by has all necessary action of the shareholders thereofrequisite power and authority to own and operate its properties, to carry on its business as now conducted and to enter into and, as applicable, perform its obligations hereunder;
(ii) This Agreement has been duly and validly authorized by the Issuer and each Guarantor, has been duly executed and delivered by the Issuer and each Guarantor and, assuming due authorization, execution and delivery by each of the Initial Forbearing Holders or any counterparty other than the Issuer and the Guarantors, is a valid and binding obligation of the Issuer and each Guarantor, enforceable against the Issuer and each Guarantor in accordance with its terms, subject as to enforceability to general principles of equity and to bankruptcy, insolvency, moratorium and other similar laws affecting the enforcement of creditors’ rights generally;
(iii) The execution and delivery by the Issuer and each Guarantor of this Agreement do not contraveneand will not, with or without the giving of notice or the lapse of time, or both: (A) result in any violation of any terms of the organizational documents of the Issuer and each Guarantor; (B) conflict with or cause result in a breach by the Issuer to be in and each Guarantor of or a breach of any of the terms or default of its memorandum or articlesprovisions of, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholdersconstitute a default under, any indenture, mortgage, deed of trust deeds, debenture, loan agreements or other agreement or instrument to which the Issuer and each Guarantor is a party or by which the Issuer or any Guarantor or any of its other agreements properties or undertakings assets is bound or affected; or (C) violate or contravene any applicable law, rule or regulation or any judgementdecree, decree judgment or order to of any court or by which it is a party to governmental body having jurisdiction over the Issuer or is bound;
(g) at the Closing, upon payment any Guarantor or any of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessabletheir properties or assets; and
(hiv) except as qualified by Other than the disclosure in all prospectusesAnticipated Defaults, filing statements no “Default” or “Event of Default” has occurred and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing continuing under the applicable laws of the jurisdictions in which they are situatedIndenture.
Appears in 2 contracts
Sources: Forbearance Agreement (Petroquest Energy Inc), Forbearance Agreement (Petroquest Energy Inc)
Representations and Warranties of the Issuer. (a) Each Issuer hereby represents and warrants to each of the other parties hereto and for the benefit of the Indenture Trustee, on behalf of the Noteholders as of the related Series Closing Date on or after the date on which such Issuer becomes a party to this Agreement:
(i) Such Issuer is a corporation limited liability company duly incorporated organized, validly existing, and validly subsisting in good standing under the laws of British Columbia the State of Delaware and is in compliance with the laws of each state (within the United States of America) in which any applicable Property is located to the extent necessary to its performance under this Agreement;
(ii) The execution and delivery of this Agreement by such Issuer, and the performance and compliance with the terms of this Agreement by such Issuer, do not violate its organizational documents or constitute an event that, with notice or lapse of time, or both, would constitute a default under, or result in the breach of, any material agreement or other instrument to which it is a party or by which it is bound;
(iii) Such Issuer has the corporate limited liability company power and authority to enter into this Agreement and complete the consummate all transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunderperformed by it contemplated by this Agreement, or of any rule or requirement of the Exchange;
(f) has duly authorized the execution, delivery and performance by the Issuer it of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing any applicable Joinder Agreement, and has duly authorized by all necessary corporate action of the Issuer executed and by all necessary action of the shareholders thereofdelivered this Agreement and any applicable Joinder Agreement;
(iiiv) do not contraveneThis Agreement, conflict assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, receivership, moratorium and other similar laws affecting the enforcement of creditors’ rights generally and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is boundat law;
(gv) at Such Issuer is not in violation of, and its execution and delivery of, this Agreement or any applicable Joinder Agreement and its performance and compliance with the Closingterms of this Agreement will not constitute a violation of, upon payment any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation is likely to affect materially and adversely either the ability of such Issuer to perform its obligations under this Agreement or the financial condition of such Issuer;
(vi) No litigation is pending or, to such Issuer’s knowledge, threatened against such Issuer that is reasonably likely to be determined adversely to such Issuer and, if determined adversely to such Issuer, would prohibit such Issuer from entering into this Agreement or that, in such Issuer’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of such Issuer to perform its obligations under this Agreement or the financial condition of such Issuer;
(vii) No consent, approval, authorization or order under any court or governmental agency or body is required for the execution, delivery and performance by such Issuer of, or the compliance by such Issuer with, this Agreement or the consummation of the purchase pricetransactions of such Issuer contemplated by this Agreement, except for any consent, approval, authorization or order that has been obtained or that if not obtained would not have a material and adverse effect on the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise ability of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessablesuch Issuer to perform its obligations hereunder; and
(hviii) except To such Issuer’s knowledge, each of the Properties owned by such Issuer is a commercial property. The representations and warranties of each Issuer set forth in this Section 2.02 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons to whom and for whose benefit they were made for so long as qualified such Issuer remains in existence. Upon discovery by any party hereto of any breach of any of the disclosure in all prospectuses, filing statements foregoing representations and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record")warranties, the Company is party discovering such breach shall give prompt written notice to the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedother parties.
Appears in 2 contracts
Sources: Property Management and Servicing Agreement (American Finance Trust, Inc), Property Management and Servicing Agreement (American Finance Trust, Inc)
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Collateral Manager that:
(a) the Issuer is a corporation an exempted company duly incorporated incorporated, validly existing and validly subsisting in good standing under the laws of British Columbia and the Cayman Islands, has the corporate full power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to transact the business in which it is presently engaged and is duly qualified under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business as currently conductedrequires, or the performance of its obligations under this Agreement would require, such qualification, except for failures to be so qualified, authorized or licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Issuer;
(b) the Issuer shall do has full power and authority to execute, deliver and perform this Agreement and all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable obligations imposed upon it to issue to the Purchaser the Shares and the Warrant Shareshereunder;
(c) this Agreement has been duly authorized, executed and delivered by it and, when executed and delivered by CBRERM, constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms except that the common shares enforceability thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of the Company are duly listed and posted for trading on the Exchangeequity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) no consent, approval, authorization or order ceasing of or suspending trading in securities of declaration or filing with any government, governmental instrumentality or court or other Person is required for the performance by the Issuer nor prohibiting the sale of its duties hereunder, except such securities has as have been issued to the Issuer duly made or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awareobtained;
(e) neither the execution and delivery of this Agreement nor the fulfillment of the terms hereof conflicts with or results in a material breach or violation of any of the material terms or provisions of or constitutes a material default under (i) the Issuer’s Memorandum and Articles of Association and organizational documents, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Issuer is a reporting issuer and an exchange issuer under party or is bound, (iii) any statute applicable to the SECURITIES ACT Issuer, or (B.C.iv) and is not in material default any law, decree, order, rule or regulation applicable to the Issuer of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Issuer or its properties, which would have a material adverse effect upon the performance by the Issuer of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;its duties under this Agreement; and
(f) the executionIssuer is not in violation of any U.S. federal or state securities law or regulation promulgated thereunder and there is no charge, delivery and investigation, action, suit or proceeding before or by any court or regulatory agency pending or, to the best knowledge of the Issuer, threatened that would have a material adverse effect upon the performance by the Issuer of its duties under this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedAgreement.
Appears in 2 contracts
Sources: Collateral Management Agreement, Collateral Management Agreement (CBRE Realty Finance Inc)
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Collateral Manager that:
(a) the Issuer is a corporation an exempted company duly incorporated incorporated, validly existing and validly subsisting in good standing under the laws of British Columbia and the Cayman Islands, has the corporate full power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to transact the business in which it is presently engaged and is duly qualified under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business as currently conductedrequires, or the performance of its obligations under this Agreement would require, such qualification, except for failures to be so qualified, authorized or licensed which would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Issuer;
(b) the Issuer shall do has full power and authority to execute, deliver and perform this Agreement and all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable obligations imposed upon it to issue to the Purchaser the Shares and the Warrant Shareshereunder;
(c) this Agreement has been duly authorized, executed and delivered by it and, when executed and delivered by CBRERM, constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms except that the common shares enforceability thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of the Company are duly listed and posted for trading on the Exchangeequity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) no consent, approval, authorization or order ceasing of or suspending trading in securities of declaration or filing with any government, governmental instrumentality or court or other Person is required for the performance by the Issuer nor prohibiting the sale of its duties hereunder, except such securities has as have been issued to the Issuer duly made or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awareobtained;
(e) neither the execution and delivery of this Agreement nor the fulfillment of the terms hereof conflicts with or results in a material breach or violation of any of the material terms or provisions of or constitutes a material default under (i) the Issuer’s memorandum and articles of association and organizational documents, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other material agreement, obligation, condition, covenant or instrument to which the Issuer is a reporting issuer and an exchange issuer under party or is bound, (iii) any statute applicable to the SECURITIES ACT Issuer, or (B.C.iv) and is not in material default any law, decree, order, rule or regulation applicable to the Issuer of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having or asserting jurisdiction over the Issuer or its properties, which would have a material adverse effect upon the performance by the Issuer of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;its duties under this Agreement; and
(f) the executionIssuer is not in violation of any U.S. federal or state securities law or regulation promulgated thereunder and there is no charge, delivery and investigation, action, suit or proceeding before or by any court or regulatory agency pending or, to the best knowledge of the Issuer, threatened that would have a material adverse effect upon the performance by the Issuer of its duties under this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedAgreement.
Appears in 2 contracts
Sources: Collateral Management Agreement, Collateral Management Agreement (CBRE Realty Finance Inc)
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Auction Agent that:
(a) the Issuer is duly organized and is validly existing as a corporation duly incorporated and validly subsisting under the laws of British Columbia the State of Utah, and has the corporate full power to execute and authority to enter into deliver this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedAgreement;
(b) this Agreement has been duly and validly authorized, executed and delivered by the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in constitutes the treasury legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to enable it bankruptcy, insolvency, reorganization and other laws of general applicability relating to issue or affecting creditors’ rights and to the Purchaser the Shares and the Warrant Sharesgeneral equitable principles;
(c) the common shares execution and delivery of this Agreement do not and will not conflict with, violate, or result in a breach of the Company are duly listed and posted for trading on terms, conditions or provisions of, or constitute a default under, the Exchange;
(d) no Issuer’s Organizational Documents, any order ceasing or suspending trading in securities decree of any court or public authority having jurisdiction over the Issuer nor prohibiting the sale of such securities has been issued Issuer, or any mortgage, indenture, contract, agreement or undertaking to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to party or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(hd) except as qualified by of the disclosure Applicable Time (as defined below), at all times during the period that begins at the Applicable Time and ends as of the Closing Date, and as of the Closing Date, as applicable, none of the Prospectus Supplement, any Preliminary Pricing Supplement or Pricing Supplement, or the Statutory Prospectus (as defined below), all considered together to the extent then in all prospectusesexistence, filing included or will include any untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and press releases filed warranty shall not apply to any statements or omissions made in reliance upon and in conformity with the Commissions or information concerning the Exchange or Auction Agent furnished in writing to the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests Issuer expressly for use therein. As used in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated.this subsection:
Appears in 2 contracts
Sources: Auction Agent Agreement (Zions Bancorporation /Ut/), Auction Agent Agreement (Zions Bancorporation /Ut/)
Representations and Warranties of the Issuer. 8.1 The Issuer hereby represents and warrants to the Subscriber (which representations and warranties will survive the Closing) that:
(a) the Issuer is a corporation duly incorporated and validly subsisting under the laws of British Columbia and has its jurisdiction of incorporation, licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease character of its properties owned or leased or the nature of the activities conducted by it make such licensing, registration or qualification necessary and assets and to conduct shall carry on its business as currently conductedin the ordinary course and in compliance in all material respects with all applicable laws, rules and regulations of each such jurisdiction;
(b) on the Closing Date, the Issuer shall do will have taken all acts corporate steps and things proceedings necessary to reserve or set aside sufficient shares in approve the treasury of the Issuer to enable it to issue to the Purchaser the Shares transactions contemplated under this Subscription Agreement, including its execution and the Warrant Sharesdelivery;
(c) the common shares Issuer has not received notice from any applicable regulatory authority that it is in default of any Securities Laws material to the Company are duly listed and posted for trading on the ExchangeSubscriber;
(d) no order ceasing or suspending trading at the time of closing on the Closing Date, the Common Shares will be duly and validly created, authorized and issued; will be validly issued as fully paid as non-assessable Common Shares in securities the capital of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awareIssuer;
(e) the issuance and sale of the Common Shares by the Issuer does not and will not constitute a breach of or default under the constating documents of the Issuer or any law, regulation, order or ruling applicable to the Issuer or any agreement, contract or indenture to which the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to party or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(hf) except as qualified this Subscription Agreement, when signed by the disclosure in all prospectusesCorporation, filing statements constitutes a binding and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner enforceable obligation of the propertiesCorporation, business and assets or the interests enforceable in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedaccordance with its terms.
Appears in 2 contracts
Sources: Private Placement Subscription Agreement (McEwen Mining Inc.), Private Placement Subscription Agreement (McEwen Mining Inc.)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Company, as of the Effective Date, that:
(aA) The Issuer is a duly organized and existing municipal corporation of the State of Kansas.
(B) To the best of the Issuer’s knowledge and belief, when delivered to and paid for by the Company in accordance with the provisions of this Agreement, the Series 2021 Bonds will have been duly authorized, executed, authenticated, issued and delivered; and, the Series 2021 Bonds will constitute valid and binding special limited obligations of the Issuer payable solely and only from the revenues specified in the Indenture and in conformity with, and entitled to the benefit and security of, the Indenture, the Base Lease and the Lease; and, this Agreement, the Series 2021 Bonds, the Indenture, the Base Lease and the Lease and all action taken by the Issuer in connection therewith shall be in conformity with K.S.A. 12-1740 et seq., as amended.
(C) To the best of the Issuer’s knowledge, the execution and delivery of this Agreement, the Series 2021 Bonds, the Base Lease, the Lease and the Indenture and compliance with the provisions thereof, will not conflict with or constitute on the part of the Issuer a violation of, breach of or default under any statute, indenture, mortgage, declaration or deed of trust, note agreement or other agreement or instrument to which the Issuer is a corporation duly incorporated and validly subsisting under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) the Issuer shall do all acts and things necessary to reserve party or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of by which the Issuer is bound, or, to the knowledge of the Issuer, any order, rule or ought to be aware;regulation of any court or governmental agency or body having jurisdiction over the Issuer or any of its activities or properties.
(eD) To the best of the Issuer’s knowledge, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body pending or threatened against or affecting the Issuer, challenging or seeking to enjoin the transactions contemplated by this Agreement, the Indenture, the Base Lease or the Lease, or contesting the validity or enforceability of the Series 2021 Bonds, the Base Lease, the Lease, the Indenture, this Agreement or any agreement or instrument to which the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not party, used or contemplated to be used in material default of any consummation of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;transactions contemplated by this Agreement.
(fE) the execution, delivery and performance Any certificate signed by the Issuer of this Agreement and the transactions herein contemplated:
(i) have any authorized officer or will have been prior to the Closing duly authorized by all necessary corporate action official of the Issuer and delivered to the Company shall be deemed a representation by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, the Company as to the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment truth of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedtherein made.
Appears in 2 contracts
Representations and Warranties of the Issuer. 4.1 The Issuer represents, warrants and covenants that, as of the date given above and at the Closing:
(a) the Issuer is a valid and subsisting corporation duly incorporated and validly subsisting in good standing under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedColumbia;
(b) the Issuer shall do all acts is duly registered and things necessary licensed to reserve or set aside sufficient shares carry on business in the treasury jurisdictions in which it carries on business or owns property where required under the laws of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Sharesthat jurisdiction;
(c) this Subscription Agreement has been or will be by the common shares Closing, duly authorized by all necessary corporate action on the part of the Company are duly Issuer, and the Issuer has or will have by the Closing full corporate power and authority to undertake the Offering;
(d) the Common Shares of the Issuer are, and will continue to be as of the Closing Date, listed and posted for trading on the Exchange;
(de) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or has requested extensions thereof, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith;
(f) the Issuer has complied, or will comply, with all applicable corporate and securities laws and regulations in connection with the offer, sale and issuance of the Purchased Securities;
(g) no order ceasing or suspending trading in the securities of the Issuer nor or prohibiting the sale of such its securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and to the best of the Issuer’s knowledge no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awarethreatened;
(eh) the Issuer is a “reporting issuer issuer” in the provinces of British Columbia and an exchange issuer under the SECURITIES ACT (B.C.) Alberta and is not in material default included on the list of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance defaulting reporting issuers maintained by the Issuer of this Agreement and the transactions herein contemplated:Commissions;
(i) have or will have been prior to upon their issuance on the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase priceDate, the Shares shall will be duly validly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise assessable common shares of the Warrants Issuer.
4.2 Survival of representations and payment warranties The representations and warranties contained in this Section will survive the Closing for a period of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedtwo years.
Appears in 1 contract
Representations and Warranties of the Issuer. (a) The Issuer represents and warrants to the Subscriber that:
3.1.1 The Issuer is a corporation duly incorporated and validly subsisting under the laws of British Columbia and has the corporate power and authority to enter into this Subscription Agreement and complete the transactions contemplated hereby to perform all of its obligations hereunder. The execution and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury delivery of the Issuer to enable it to issue to the Purchaser the Shares this Subscription Agreement and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance consummation by the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have hereunder has been prior to the Closing duly authorized by all necessary corporate action on the part of the Issuer Issuer, and by all necessary action of the shareholders thereof;
(ii) do not contraveneCommon Shares and/or Preferred Shares, conflict with or cause the Issuer to if and when issued, will be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise assessable shares of the Warrants Issuer.
3.1.2 Neither the execution, delivery and payment performance of this Subscription Agreement, nor the completion of the exercise price thereforetransactions contemplated hereby, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
will constitute or result in a violation or breach of or a default under (h) except as qualified by the disclosure in all prospectusesor an event which, filing statements and press releases filed with the Commissions notice or the Exchange lapse of time or the Offering Memorandumboth, if any, (the "Disclosure Record"would constitute a violation or breach of or a default under), or require the Company is the beneficial owner further authorization, approval or consent of any person under, any constating documents or governing policies of the propertiesIssuer or any laws applicable to the Issuer.
3.1.3 The Issuer’s public filings, business as found on ▇▇▇.▇▇▇▇▇.▇▇▇, are current and assets or the interests in the properties, business or assets referred up to in the Disclosure Recorddate, and the properties are information and statements contained therein was true, correct and complete in good standing under all material respects at the applicable laws date of such information or statement and did not contain any misrepresentation as of the jurisdictions date of such information or statement that has not since been corrected or rectified.
3.1.4 There are no undisclosed material events or information in respect to the business of the Issuer or the Issuer itself that has not been publicly disclosed or disclosed to the Subscriber pursuant to a confidentiality agreement.
3.1.5 To the knowledge of the Issuer, there are no current or threatened claims or lawsuits or regulatory actions , nor are there any circumstances that may lead to a material claim or regulatory action.
3.1.6 All due diligence material that has been supplied to the Subscriber have been true and complete, and the Issuer has not failed to provide any information or materials that might reasonably impact on the Subscriber’s investment decision.
3.1.7 The Issuer’s outstanding secured loans consist solely of a Government of Canada HASCAP loan, and except for the foregoing no other loans will rank in priority of security to the Convertible Debenture and Debenture.
3.1.8 The authorized share capital of the Issuer consists of an unlimited number of common shares and an unlimited number of preferred shares, of which they 77,653,870 common shares and no preferred shares are situatedissued and outstanding.
3.1.9 The only outstanding rights to acquire the Issuer’s common shares consist of options granted pursuant to the Issuer’s incentive stock option plan to purchase 2,696,370 common shares, restricted stock units granted pursuant to the Issuer’s restricted stock units plan entitling holders to be awarded in the aggregate 296,668 common shares and deferred stock units granted pursuant to the Issuer’s deferred stock units plan entitling holder to be awarded in the aggregate 37,354 common shares.
3.1.10 The Issuer is not subject to an agreement with any third party granting rights to nominate directors to the Issuer’s board or rights to participate in future financings of the Issuer’s securities. The representations and warranties made in this Agreement shall survive the execution and delivery of this Agreement for the period from the date of this Agreement until the earlier of: (i) the date the Convertible Debenture is paid in full; and (ii) the date the Convertible Debenture is converted into Common Shares or Preferred Shares.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Trustee and the Noteholders as set forth below. The Trustee shall rely on such representations and warranties in accepting the Service Purchasers Contracts and the other Collateral in trust and authenticating the Notes. Such representations and warranties are made as of the Closing Date or such other date specifically referenced therein.
(a) The Issuer owns the Issuer is a corporation duly incorporated Collateral free and validly subsisting under clear of all security interests, liens and encumbrances whatsoever, except for the laws of British Columbia and has security interest granted to the corporate power and authority Trustee pursuant to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedIndenture;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue Except as to the Purchaser Trustee, each party to the Shares Transaction Documents has all necessary power, authority and the Warrant Shareslegal right to execute and deliver and perform its obligations under each Transaction Document to which it is a party, and each such Transaction Document has been duly authorized, executed and delivered, by each party thereto, and each constitutes a legal, valid and binding instrument and obligation of such party, enforceable in accordance with its terms;
(c) With respect to each party thereto other than the common shares Trustee, neither (A) the execution and delivery of the Company are duly listed Transaction Documents, including the issuance of the Note, nor (B) the consummation of the transactions herein or therein contemplated nor the fulfillment of, or compliance with, the terms and posted for trading on provisions hereof, of any other Transaction Document, including the ExchangeNote, will (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under (a) its certificate of incorporation or bylaws, or its certificate of formation or limited liability company operating agreement, as applicable, or (b) any indenture, loan agreement, mortgage, deed of trust, or other agreement or instrument to which it is a party or by which it is bound, (ii) result in the creation or imposition of any adverse claim upon any of its properties pursuant to the terms of any such indenture, loan agreement, mortgage, deed of trust, or other agreement or instrument, other than the Transaction Documents, or (iii) violate any law or any order, rule, or regulation applicable to it of any court or of any state or foreign regulatory body, administrative agency, or other governmental instrumentality having jurisdiction over it or any of its properties;
(d) no order ceasing or suspending trading in securities Each of the Issuer nor prohibiting Issuer, the sale Originator and the Servicer/Service Provider is a corporation duly organized, and validly existing and in good standing under the laws of such securities has been issued to its state of incorporation, with its chief executive office and principal place of business located at the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awareaddress set forth in Section 1.05 hereof;
(e) Each of the Issuer Backup Service Provider and the Service Purchasers is a reporting issuer corporation duly organized, and an exchange issuer validly existing and in good standing under the SECURITIES ACT (B.C.) laws of its incorporation with its chief executive office and is not principal place of business located at the address set forth in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the ExchangeSection 1.05 hereof;
(f) Each transfer of assets to the execution, delivery Issuer pursuant to the Transfer and performance Servicing Agreement constituted a valid transfer and sale of such assets. The purchase price paid by the Issuer to the Originator as "Seller" under the Transfer and Servicing Agreement equals the "fair market value" of this Agreement the assets transferred thereunder;
(g) The Trustee (on behalf of the Noteholders) will have, upon the giving of value and the transactions herein contemplated:filing of Financing Statements against the Issuer and the Originator in the Filing Locations, a duly perfected first priority security interest in all of the Collateral, and the Issuer has delivered to the Trustee the executed original counterpart of the Service Purchasers Consent and the MGS Agreement identified as "SECURED PARTY'S ORIGINAL";
(h) the copies of the Service Purchasers Contracts and each other Transaction Document delivered by the Issuer to the Trustee on or prior to the Closing Date, are true and correct copies of such documents, each of which is in full force and effect and has not been amended, modified or terminated in any respect (except by written agreement delivered to the Trustee);
(i) have there is no payment under the MGS Agreement or will have been prior the Service Purchasers Consent that is now past due pursuant to the Closing duly authorized by all necessary corporate action terms of the Issuer MGS Agreement or the Service Purchasers Consent, nor have there been any payments made in advance on account of any payment due under the MGS Agreement or the Service Purchasers Consent, and by all necessary action to the best of the shareholders thereofIssuer's knowledge, neither of the Service Purchasers nor the Originator is in default under any of its obligations under the MGS Agreement or the Service Purchasers Consent;
(iij) do the Service Purchasers have not contravenenotified the Service Provider, conflict with Lucent or cause Nortel, directly or indirectly, that (a) the Issuer to be in breach Service Provider, Lucent or default of its memorandum or articles, or articles or by-lawsNortel, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or is in default under any of its other agreements or undertakings or obligations under any judgement, decree or order Contract to or by which it is a party party, or (b) any item of Equipment is not functioning properly or (c) the Service Purchasers intend not to pay any amount which is due or is boundwhich will become due, or will not satisfy any obligation required to be performed by it, under the MGS Agreement or the Service Purchasers Consent;
(gk) at there are no setoffs, counterclaims, or defenses on the Closing, upon payment part of the purchase priceService Purchasers to pay any of the Service Purchasers Payment Agreement due under the MGS Agreement or the Service Purchasers Consent;
(l) the Minimum Payments plus all amounts required to be deposited as Note Reserve Deposit Amounts shall be sufficient to pay the Priority Payments, as such amounts shall come due;
(m) there is no litigation or governmental proceeding pending or threatened by the Originator or against either the Originator or the Issuer or any Collateral which litigation or governmental proceeding could have a material adverse effect upon the Collateral or the Issuer or the Issuer's ability to perform its obligations hereunder;
(n) simultaneously with the closing, the Shares shall be duly issued and outstanding Issuer, as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise assignee of the Warrants Servicer/Service Provider, is obligated to and payment shall pay to the Service Purchasers the entire remaining purchase price of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessableEquipment; and
(ho) except to perfect the security interests of the Trustee in all items of Collateral as qualified to which a security interest can be perfected by the disclosure filing of Uniform Commercial Code Financing Statements or assignments, the Issuer shall cause (1) within two Business Days after the Closing Date, UCC Financing Statements to be delivered for filing in all prospectusesjurisdictions (x) where the Equipment is located and (y) where all other Collateral is deemed to be located and (2) within thirty (30) Business Days after the Closing Date, UCC assignments to be delivered for filing statements in all jurisdictions where UCC- 1 file numbers are not available on the Closing Date. All representations and press releases filed warranties set forth in this Section 4.01 to the effect that any agreement is a legal, valid and binding instrument enforceable in accordance with its terms are subject, as to the Commissions enforceability of remedies, to limitations imposed by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner enforcement of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedcreditors' rights generally.
Appears in 1 contract
Sources: Indenture (KMC Telecom Holdings Inc)
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Underwriter and the Company that:
(a) the The Issuer is a corporation duly incorporated component unit of the Business Finance Authority of the State of New Hampshire, which is a body corporate and validly subsisting politic created under the laws of British Columbia Act, and has is vested with the corporate power rights and authority powers granted pursuant to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;Act.
(b) The Issuer has the power (i) to enter into and perform its obligations under this Bond Purchase Agreement, the Indenture and the Loan Agreement (collectively, the “Issuer Documents”) and the transactions contemplated thereby, (ii) to secure the Bonds as provided in the Issuer shall do all acts Documents, and things necessary (iii) to reserve or set aside sufficient shares in the treasury loan a portion of the Issuer to enable it to issue proceeds of the Bonds to the Purchaser Company so that it may undertake the Shares and refinancing of the Warrant Shares;Prior Bonds, which is authorized under the Act, such loan being in furtherance of the purposes for which the Issuer was organized. The Issuer has taken or will take all action required by the Act in connection therewith.
(c) The Issuer has duly authorized the common shares execution and delivery of the Company are duly listed Issuer Documents and posted for trading on the Exchange;Limited Offering Memorandum and has taken or will take all action necessary or appropriate to carry out the issuance, sale and delivery of the Bonds to the Underwriter.
(d) To the knowledge of the Issuer, the Issuer is not in default in the payment of the principal of, premium, if any, or interest on any of its other indebtedness for borrowed money and is not in default under any instrument under or subject to which any indebtedness for borrowed money has been incurred that would adversely affect the Issuer’s power or authority to issue the Bonds, to execute and deliver the Issuer Documents and to perform the obligations thereunder, and no order ceasing event has occurred and is continuing under the provisions of any such instrument that with the lapse of time or suspending trading the giving of notice, or both, would constitute an event of default thereunder; provided, however, that this representation does not include a default with respect to other financings in securities which the Issuer has acted as “conduit” issuer for other public or private entities not affiliated with the Company, wherein a default by such public or private entity would not have a material effect on the credit of the Issuer nor prohibiting or of the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;Company.
(e) The execution and delivery of the Issuer is a reporting issuer Documents and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and its obligations thereunder are within the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action powers of the Issuer and by all necessary action will not conflict with or constitute a breach or result in a violation of (i) the shareholders thereof;
Act, (ii) do not contraveneany federal or New Hampshire constitutional or statutory provision, conflict with or cause the Issuer to be in breach or default of its memorandum or articles(iii) any current order, or articles or by-lawsrule, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgementregulation, decree or order ordinance of any court, government or governmental authority having jurisdiction over the Issuer or its property or (iv) to the best of its knowledge, any agreement or other instrument to which the Issuer is a party or by which it is a party to or is bound;.
(f) The Issuer by resolution has approved the distribution of the Preliminary Limited Offering Memorandum and the distribution of the Limited Offering Memorandum in connection with the offer and sale of the Bonds.
(g) at All authorizations, consents, approvals, findings and certificates of governmental bodies or agencies required to be obtained by the Closing, upon payment Issuer in connection with (i) the execution and delivery by the Issuer of the purchase price, Issuer Documents and the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise issuance of the Warrants Bonds, and payment (ii) the performance by the Issuer of its obligations under the Issuer Documents and the Bonds have been obtained and are in full force and effect; provided, however, that no representation is made with respect to (i) compliance with any applicable Blue Sky or securities laws of any state or (ii) consents, filings, approvals, etc., required in connection with the tax-exempt status of the exercise price therefore, interest on the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; andBonds.
(h) except as qualified There is no litigation, inquiry or investigation of any kind before or by any judicial court or governmental agency pending or, to the disclosure in all prospectusesknowledge of the Issuer, filing statements threatened against the Issuer with respect to (i) its organization or existence, (ii) its authority to execute and press releases filed with deliver the Commissions Issuer Documents or the Exchange Bonds or perform its obligations thereunder, (iii) the validity or enforceability of the Bonds or any of the Issuer Documents, (iv) the title of the officers executing the Issuer Documents or the Bonds, or (v) any authority or proceedings relating to the Issuer of such officers to execute and deliver the Issuer Documents or the Bonds on behalf of the Issuer, and no such authority or proceedings have been repealed, revoked, rescinded or amended; provided, however, the foregoing does not include any litigation or administrative proceeding that may have been filed against, but not served on, the Issuer, and of which it has no knowledge.
(i) As of the date of the Limited Offering Memorandum, if anyas of the date of this Bond Purchase Agreement and as of the Closing Date, the information contained under the caption “THE ISSUER” relating to the Issuer and under the caption “LITIGATION – The Issuer”, relating to the Issuer, did not, does not and will not contain any untrue statement of a material fact and does not omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The Issuer approves of the use and distribution of the Limited Offering Memorandum by the Underwriter and the Remarketing Agent in connection with the initial sale and remarketing of the Bonds.
(j) Any certificate signed by an authorized officer of the Issuer delivered to the Underwriter shall be deemed a representation and warranty by the Issuer to the Underwriter as to the statements made therein
(k) When authenticated by the Trustee and delivered to and paid for by the Underwriter in accordance with the terms of the Indenture and this Bond Purchase Agreement, the Bonds will (i) have been duly authorized, executed and issued, (the "Disclosure Record")ii) constitute legal, the Company is the beneficial owner valid and binding limited obligations of the propertiesIssuer enforceable in accordance with their terms except as limited by bankruptcy, business insolvency, reorganization, moratorium, fraudulent conveyance and assets or the interests in the properties, business or assets referred to in the Disclosure Recordother similar laws and usual equity principles, and (iii) be secured by the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedIndenture.
Appears in 1 contract
Representations and Warranties of the Issuer. (a) The Issuer hereby represents and warrants to the Placement Agent that:
2.1 The Issuer has been duly organized and is validly existing as a corporation duly incorporated and validly subsisting in good standing under the laws of British Columbia and the State of Nevada, has the corporate all requisite power and authority to enter into this Agreement and complete the transactions contemplated hereby has all requisite power and to own and lease its properties and assets and authority to conduct its business as currently conducted;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares described in the treasury Offering Circular.
2.2 This Agreement, when executed by the Issuer, will have been duly authorized and will be a valid and binding agreement of the Issuer Issuer, enforceable in accordance with its terms.
2.3 No defaults exist in the due performance or observance of any material obligation, term, covenant or condition of any agreement or instrument to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is a party or ought by which it is bound.
2.4 Subject to Section 3.3, the Offering Circular does not include nor will it include, through the Offering Termination Date, any untrue statement of a material fact nor does it or will it omit to state a material fact required to be aware;stated therein or necessary to make the statements therein not misleading.
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default 2.5 No consent, approval, authorization or other order of any of governmental authority is required in connection with the requirements of the SECURITIES ACT (B.C.) execution or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement or the issuance and sale by the transactions herein contemplatedIssuer of the Securities, except such as may be required under the Securities Act or applicable state securities laws.
2.6 At the time of the issuance of the Securities, the Securities will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Offering Circular.
2.7 As of the Effective Date and at the time of any sale of the Securities (collectively, the “Applicable Date”), that none of the Issuer, its members, executive officers, directors, general partners, managing members or officers participating in the Offering or persons who own 20% or more of the Issuer:
2.7.1 Has been convicted, within 10 years of any Applicable Date of any felony or misdemeanor that was:
(a) In connection with the purchase or sale of any security;
(b) Involving the making of any false filing with the Securities and Exchange Commission (the “SEC”); or
(c) Arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor of purchasers of securities.
2.7.2 Is subject to any order, judgment or decree of any court of competent jurisdiction, entered within 5 years before any Applicable Date, that, as of such Applicable Date, restrains or enjoins such person from engaging or continuing in any conduct or practice:
(a) In connection with the purchase or sale of any security;
(b) Involving the making of any false filing with the SEC; or
(c) Arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor of purchasers of securities.
2.7.3 Is subject to a final order of a state securities commission (or an agency or officer of a state performing like functions), a state authority that supervises or examines banks, savings associations or credit unions, a state insurance commission (or an agency or officer of a state performing like functions), an appropriate federal banking agency, the U.S. Commodity Futures Trading Commission or the National Credit Union Administration that:
(a) As of any Applicable Date, bars the person from:
(i) have Association with an entity regulated by such commission, authority, agency or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereofofficer;
(ii) do not contraveneEngaging in the business of securities, conflict with insurance or cause banking; or
(iii) Engaging in savings association or credit union activities; or
(b) Constitutes a final order based on a violation of any law or regulation that prohibits fraudulent, manipulative or deceptive conduct entered within 10 years before any Applicable Date.
2.7.4 Is subject to an order of the Issuer SEC pursuant to be in breach sections 15(b) or default 15B(c) of its memorandum the Securities Exchange Act of 1934 (the “Exchange Act”) or articles, section 203(e) or articles or by-laws(f) of the Investment Advisers Act of 1940 (the “Investment Advisers Act”) that, as the case may be, or of any resolution of its respective directors Applicable Date:
(a) Suspends or shareholdersrevokes such person’s registration as a broker, any trust deedsdealer, debenture, loan agreements municipal securities dealer or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is boundinvestment advisor;
(gb) at Places limitations on the Closingactivities, upon payment functions or operations of such person; or
(c) Bars such person from being associated with any entity or from participating in the offering of any p▇▇▇▇ stock.
2.7.5 Is subject to any order of the purchase priceSEC entered within 5 years before any Applicable Date, that, as of such Applicable Date, orders the Shares shall be duly issued person to cease and outstanding as fully paid and nondesist from committing or causing a violation or future violation of:
(a) Any scienter-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise based anti-fraud provisions of the Warrants and payment federal securities laws including, without limitation, section 17(a)(1) of the exercise price thereforeSecurities Act, section 10(b) of the Warrant Shares shall be duly issued Exchange Act and outstanding as fully paid 17 CFR 240.10b-5, section 15(c)(1) of the Exchange Act and non-assessablesection 206(1) of the Investment Advisers Act, or any other rule or regulation thereunder; andor
(hb) except Section 5 of the Securities Act.
2.7.6 Is suspended or expelled from membership in, or suspended or barred from association with, a member of a registered national securities exchange or a registered national or affiliated securities association for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade.
2.7.7 Has filed (as qualified by the disclosure in all prospectusesa registrant or issuer), filing statements and press releases or was or was named as an underwriter in, any registration statement or Regulation A offering statement filed with the Commissions SEC that, within 5 years of any Applicable Date, was the subject of a refusal order, stop order or order suspending the Exchange Regulation A exemption or, is, as of any Applicable Date, the subject of an investigation or proceeding to determine whether a stop order or suspension order should be issued.
2.7.8 Is subject to a United States Postal Service false representation order entered within 5 years before any Applicable Date, or is, as of any Applicable Date, subject to a temporary restraining order or preliminary injunction with respect to conduct alleged by the United States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations.
2.7.9 The Issuer agrees to immediately notify the Placement Agent if there is a violation or potential violation of the representations set forth in this Section 2.7 during the Offering Memorandum, if any, (Period.
2.8 The representations and warranties made in this Section 2 are made as of the "Disclosure Record")date hereof and shall be continuing representations and warranties throughout the Offering Period. In the event that any of these representations or warranties becomes untrue or is incorrect, the Company is Issuer will immediately notify the beneficial owner Placement Agent in writing of the properties, business and assets fact which makes the representation or the interests in the properties, business warranty untrue or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedincorrect.
Appears in 1 contract
Sources: Placement Agent Agreement (Alternative Ballistics Corp)
Representations and Warranties of the Issuer. The Issuer hereby makes the following representations and warranties to the Buyer:
(a) the The Issuer is a corporation duly incorporated organized, validly existing and validly subsisting in good standing under the laws of British Columbia and the State of Nevada.
(b) The Issuer has the corporate requisite power and authority to enter into this Agreement and complete to consummate the transactions contemplated hereby and otherwise to own and lease carry out its properties and assets and to conduct its business as currently conducted;
(b) the obligations hereunder. The Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default violation of any of the requirements provisions of the SECURITIES ACT (B.C.) its certificate of incorporation or the Rules thereunderby-laws. No consent, approval or agreement of any rule individual or requirement of entity is required to be obtained by the Exchange;
(f) Issuer in connection with the execution, delivery execution and performance by the Issuer of this Agreement or the execution and performance by the Issuer of any agreements, instruments or other obligations entered into in connection with this Agreement.
(c) There are currently 6,485,000 common shares outstanding. There are no preferred shares outstanding. There are no options, warrants, agreements or other rights or instruments entitling any person to acquire to acquire shares from the Issuer.
(d) There shall be no residual liens, lawsuits or judgments outstanding against the Company and the Issuer. There are no issues outstanding with the SEC, the IRS, the NASD or any other government agency or SRO and that there are no subsidiaries, no existing employment agreements or stock option or warrant agreements, and no other contracts, obligations or leases.
(e) In conjunction with the Closing, all existing officers of the Issuer shall resign. Additionally, all Directors shall resign, except ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, who shall immediately appoint at least one new director to be designated by the Buyer. She shall tender his resignation that will be held no more than 30 days or until all necessary merger filings are completed.
(f) At the Closing the Issuer shall have a $0/ $0 balance sheet.
(g) The Issuer has complied with, is not in violation of, and has not received any notices of violation with respect to, any federal, state, local or foreign Law, judgment, decree, injunction or order, applicable to it, the conduct of its business, or the ownership or operation of its business. References in this Agreement to “Laws” shall refer to any laws, rules or regulations of any federal, state or local government or any governmental or quasi-governmental agency, bureau, commission, instrumentality or judicial body (including, without limitation, any federal or state securities law, regulation, rule or administrative order).
(h) There is no private or governmental action, suit, proceeding, claim, arbitration or investigation pending before any agency, court or tribunal, foreign or domestic, or, to the Issuer’s knowledge, threatened against the Issuer or any of its properties or any of its officers or directors (in their capacities as such). To the Issuer’s knowledge, there is no judgment, decree or order against the Issuer that could prevent, enjoin, alter or delay any of the transactions herein contemplated:contemplated by this Agreement.
(i) have There are no material claims, actions, suits, proceedings, inquiries, labor disputes or will have been prior investigations (whether or not purportedly on behalf of the Issuer) pending or, to the Closing duly authorized by all necessary corporate action of Issuer’s knowledge, threatened against the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements assets, at law or undertakings or any judgement, decree or order to in equity or by which it is a party or before any governmental entity or in arbitration or mediation. No bankruptcy, receivership or debtor relief proceedings are pending or, to or is bound;
(g) at the ClosingIssuer’s knowledge, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable threatened against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedIssuer.
Appears in 1 contract
Sources: Securities Purchase Agreement (Willowtree Advisor, Inc.)
Representations and Warranties of the Issuer. The Issuer represents and warrants as of each Closing Date and as of each Addition Date, or as of such other date specified in such representation and warranty, that:
(a) the The Issuer is a corporation limited liability company duly incorporated formed, validly existing and validly subsisting in good standing under the laws of British Columbia the State of Delaware and has the corporate power full limited liability company power, authority, and authority to enter into this Agreement and complete the transactions contemplated hereby and legal right to own and lease its properties and assets and to conduct its business as currently such properties are presently owned and as such business is presently conducted;, and to execute, deliver and perform its obligations under this Agreement and the related PPA Supplement. The Issuer is duly qualified to do business and is in good standing as a foreign entity, and has obtained all necessary licenses and approvals in each jurisdiction necessary to carry on its business as presently conducted and to perform its obligations under this Agreement.
(b) The execution, delivery and performance by the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of each of the Issuer Facility Documents to enable which it to issue to the Purchaser the Shares is a party and the Warrant Shares;consummation by the Issuer of the transactions provided for in this Agreement, the related PPA Supplement and each other Facility Document to which it is a party have been duly authorized by the Issuer by all necessary limited liability company action.
(c) This Agreement, the common shares related PPA Supplement and each other Facility Document to which it is a party constitutes the legal, valid and binding obligation of the Company are duly listed and posted for trading on the Exchange;Issuer, enforceable against it in accordance with its respective terms, except as such enforceability may be subject to or limited by Debtor Relief Laws or by general principles of equity (whether considered in a suit at law or in equity).
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the The execution, delivery and performance by the Issuer of this Agreement Agreement, the related PPA Supplement and the transactions herein contemplated:
(i) have or will have been prior each other Facility Document to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party and the consummation by the Issuer of the transactions contemplated hereby and thereby do not contravene (i) the Issuer's limited liability company agreement, (ii) any law, rule or regulation applicable to the Issuer, (iii) any contractual restriction contained in any material indenture, loan or credit agreement, lease, mortgage, deed of trust, security agreement, bond, note, or other material agreement or instrument binding on the Issuer or (iv) any order, writ, judgment, award, injunction or decree binding on or affecting the Issuer or its properties (except where such contravention would not have a Material Adverse Effect with respect to the Issuer or its properties), and do not result in (except as provided in the Facility Documents) or require the creation of any Lien upon or with respect to any of its properties; and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. To the extent that this representation is bound;being made with respect to Title I of ERISA or Section 4975 of the Code, it is made subject to the assumption that none of the assets being used to purchase the Pool Loans and Pool Assets constitute assets of any Benefit Plan or Plan with respect to which the Issuer is a party in interest or disqualified person.
(e) There are no proceedings or investigations pending, or to the best knowledge of the Issuer threatened, against the Issuer before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (A) asserting the invalidity of this Agreement, the related PPA Supplement or any other Facility Document to which it is a party, (B) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, the related PPA Supplement or any other Facility Document to which it is a party, (C) seeking any determination or ruling that would adversely affect the validity or enforceability of this Agreement, the related PPA Supplement or any other Facility Document to which it is a party or (D) seeking any determination or ruling that would, if adversely determined, be reasonably likely to have a Material Adverse Effect with respect to the Issuer.
(f) All approvals, authorizations, consents or orders of any court or governmental agency or body required in connection with the execution and delivery by the Issuer of this Agreement, the related PPA Supplement or any other Facility Document to which it is a party, the consummation by it of the transactions contemplated hereby or thereby and the performance by it of, and the compliance by it with, the terms hereof or thereof, have been obtained, except where the failure to do so would not have a Material Adverse Effect with respect to the Issuer.
(g) at The Issuer (A) is not insolvent (as such term is defined in the ClosingBankruptcy Code), upon payment of (B) is able to pay its debts as they become due and (C) does not have unreasonably small capital for the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; andbusiness in which it is engaged or for any business or transaction in which it is about to engage.
(h) except The Issuer has observed the applicable legal requirements on its part for the recognition of the Issuer as qualified by a legal entity separate and apart from each of the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record")Seller, the Company is the beneficial owner Seller Subsidiaries and any of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedtheir respective Affiliates.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Investor that the representations and warranties given in this Clause 5 shall be true and correct as of the Issuance Date and shall be deemed to have been repeated as at each date of Request, Note Warrant Exercise Date, Closing Date and Conversion Date:
(ai) the Issuer is a corporation duly incorporated and validly subsisting under the laws of British Columbia and it has the corporate full power and authority to enter into this Agreement and complete to perform all the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedobligations resulting therefrom;
(bii) the signature of this Agreement and the performance of the obligations arising therefrom are not in violation of any provision of its By-Laws or of any previous contractual commitments with other parties;
(iii) the entry into and performance by the Issuer shall do all acts of its obligations under this Agreement does not and things necessary to reserve will not conflict with or set aside sufficient shares cause a default under any finance agreement or instrument binding entered into by the Issuer;
(iv) it has been in existence for more than two (2) years, in connection with which it has prepared balance sheets which were certified by its statutory auditors (“Commissaires aux Comptes”) and regularly approved by its shareholders at their ordinary general meetings;
(v) its capital is fully paid up as of the treasury Issuance Date;
(vi) the information concerning the Issuer, the 2016 Shareholders’ Meeting and the Board Meeting of the Issuer to enable it to issue to set forth in the Purchaser the Shares and the Warrant Sharesrecitals hereto is true in all material respects;
(cvii) it has complied with (a) all applicable legal and regulatory requirements and (b) specific authorization given by the common shares 2016 Shareholders’ Meeting, both (a) and (b) in respect of the Company are duly listed issuance of the Note Warrants, the Notes and posted the Warrants, and for the admission to trading on Alternext of the ExchangeShares which may be issued upon the conversion of the Notes and/or the exercise of the Warrants;
(dviii) no order ceasing inside information (“information privilégiée”) within the meaning of Article 7 of the Regulation n° 596/2014 of the European Parliament and of the Council of April 16, 2014, has been disclosed by the Issuer to the Investor and/or any Note or suspending trading in securities Warrant holder as the case may be;
(ix) neither the issue of the Note Warrants, the Notes, the Warrants or the Shares upon conversion of the Notes and/or exercise of the Warrants will be subject to any pre-emptive (droit préférentiel de souscription) or similar rights;
(x) except for any necessary approvals from Alternext for the listing of the Shares upon conversion of the Notes and/or exercise of the Warrants, neither the Issuer nor prohibiting the sale of such securities has been issued any Subsidiary is required to the Issuer obtain any consent, waiver, authorization or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunderorder of, or of make any rule filing or requirement of the Exchange;
(f) registration with, any court or other governmental or regulatory authority or other person in connection with the execution, delivery and performance by the Issuer of this Agreement Agreement, the issue of any Note Warrants, the Notes, the Warrants or Shares. As of the Issuance Date, any necessary consents and the transactions herein contemplated:approvals have been obtained and shall be in full force and effect;
(xi) there is no court-ordered insolvency procedures (including any action, suit, notice of violation, proceeding or investigation) pending which (i) have relates to or will have been challenges the legality, validity or enforceability of this Agreement or (ii) could, individually or in the aggregate, be reasonably expected to impair materially the ability of the Issuer to perform fully on a timely basis its obligations under this Agreement;
(xii) all of the information provided to the Investor by the Issuer and its Subsidiaries prior to the Closing duly authorized by date of this Agreement was accurate, complete and up-to-date in all necessary of its significant aspects on the date on which it was provided or, if applicable, on the date to which it relates;
(xiii) the publicly available corporate action documents of the Issuer (statuts, Extraits K-Bis and by all necessary action of Certificat de non-faillite) are accurate, complete and up-to-date on the shareholders thereofdate on which they were submitted;
(iixiv) do not contraveneno judicial, conflict with arbitral or cause the Issuer to be in breach administrative proceedings have been brought against it or default against one of its memorandum or articlesSubsidiaries before a court, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements an arbitration tribunal or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase priceauthority, the Shares shall be duly issued and outstanding as fully paid and non-assessableoutcome of which, the Warrants shall be duly granted and enforceable against the Companyif it were unfavorable, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessablewould individually constitute a Material Adverse Change; and
(hxv) except as qualified by the disclosure in all prospectusesNotes shall constitute direct, filing statements unconditional, unsecured and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner unsubordinated obligations of the propertiesIssuer and, business at all times so long as any Note or any substitute of a Note is outstanding, will rank equally between themselves and assets (subject to such exceptions as are from time to time mandatory under French law) equally and rateably (pari passu) with all other present or the interests in the properties, business or assets referred to in the Disclosure Record, future unsecured and the properties are in good standing under the applicable laws unsubordinated debt securities of the jurisdictions in which they are situatedIssuer.
Appears in 1 contract
Sources: Agreement for the Issuance of and Subscription to Warrants (Biophytis SA)
Representations and Warranties of the Issuer. 3.1 The Issuer represents and warrants that:
(a) the Issuer is a corporation and its subsidiaries, if any, other than its Mexican subsidiary, are valid and subsisting companies duly incorporated and validly subsisting in good standing under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedjurisdictions in which they are incorporated, continued or amalgamated;
(b) all agreements by which the Issuer shall do holds an interest in a property, business or asset are in good standing according to their terms, and the properties, other than the Mexican properties, are in good standing under the applicable laws of the jurisdictions in which they are situated;
(c) the Issuer has complied fully or will comply fully with all acts applicable corporate and things securities laws and regulations in connection with the offer, sale and issuance of the Securities;
(d) the issuance and sale of the Securities by the Issuer does not and will not conflict with and does not and will not result in a breach of any of the terms, conditions or provisions of its constating documents or any agreement or instrument to which the Issuer is a party;
(e) this Subscription Agreement has been duly authorized by all necessary corporate action on the part of the Issuer and constitutes a valid obligation of the Issuer legally binding upon it and enforceable in accordance with its terms;
(f) the Issuer and its subsidiaries are duly registered or licensed to carry on business in the jurisdictions in which they carry on business or own property or assets;
(g) the Issuer will reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant SharesSecurities;
(ch) the common shares Issuer is a “reporting issuer” in British Columbia and Alberta and is not in default of any requirements of the Company are duly listed and posted for trading on the ExchangeApplicable Legislation;
(di) no order ceasing or suspending trading in the securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or the promoters or against any other companies that have common directorsand, officers or promoters and to the best of the knowledge of the Issuer, no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awarethreatened;
(ej) the Issuer is a reporting issuer Shares and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunderWarrant Shares will, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closingtime of such issue, upon payment of the purchase price, the Shares shall be duly issued and outstanding as allotted, validly issued, fully paid and non-assessableassessable and will be free of all liens, charges and encumbrances other than the restrictions against trading set out in Section 7 of the Terms herein;
(k) the Issuer will apply to, and use commercially reasonable efforts to obtain the listing of the Shares and Warrant Shares issued and issuable under the Private Placement on, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessableExchange; and
(hl) except as qualified by there shall not be any consents, approvals, authorizations, orders or agreements of any stock exchanges, securities commissions or similar authorities, governmental agencies or regulators, courts or any other persons which may be required for the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner issuance of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, Securities and the properties are delivery of certificates representing the Securities to the Purchaser, not obtained and not in good standing under effect on the applicable laws date of delivery of such certificates.
3.2 The representations and warranties of the jurisdictions Issuer in which they are situatedthis section will survive the Closing of the private placement.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Collateral Manager as follows:
(ai) the The Issuer is a corporation limited liability company duly incorporated organized, validly existing and validly subsisting in good standing under the laws of British Columbia the State of Delaware, has full power and authority to own its assets and the securities proposed to be owned by it and included in the Assets and to transact the business in which it is presently engaged and is duly qualified under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business requires, or the performance of its obligations under this Agreement, the Indenture, the other Transaction Documents or the Notes would require such qualification, except for failures to be so qualified, authorized or licensed that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Issuer.
(ii) The Issuer has the full corporate power and authority to enter into execute and deliver this Agreement and complete Agreement, the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) Indenture, the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares other Transaction Documents and the Warrant Shares;
(c) Notes and perform all obligations required hereunder and thereunder and has taken all necessary action to authorize this Agreement, the common shares of Indenture, the Company are duly listed other Transaction Documents and posted for trading the Notes on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters terms and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer conditions hereof and an exchange issuer under the SECURITIES ACT (B.C.) thereof and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance of this Agreement, the Indenture, the other Transaction Documents and the Notes and the performance of all obligations imposed upon it hereunder and thereunder. No consent of any other person including, without limitation, stockholders and creditors of the Issuer, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority, other than those that may be required under state securities or “blue sky” laws and those that have been or shall be obtained in connection with this Agreement, the Indenture, the other Transaction Documents or the issuance of the Notes, is required by the Issuer in connection with this Agreement, the Indenture, the other Transaction Documents or the Notes or the execution, delivery, performance, validity or enforceability of this Agreement, the Indenture, the other Transaction Documents or the Notes or the obligations imposed upon it hereunder or thereunder. This Agreement, the Indenture, the other Transaction Documents and the Notes constitute, and each instrument or document required hereunder or thereunder, when executed and delivered hereunder or thereunder, shall constitute, the legally valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, subject, as to enforcement, to (A) the effect of bankruptcy, insolvency or similar laws affecting generally the enforcement of creditors’ rights, as such laws would apply in the event of any bankruptcy, receivership, insolvency or similar event applicable to the Issuer and (B) general equitable principles (whether enforceability of such principles is considered in a proceeding at law or in equity).
(iii) The execution, delivery and performance of this Agreement and the transactions herein contemplated:
documents and instruments required hereunder will not (ix) have violate (A) any provision of any existing law or will have been prior regulation binding on the Issuer, (B) any order, judgment, award or decree of any court, arbitrator or governmental authority binding on the Issuer, (C) the organizational documents of, or any securities issued by, the Issuer, (D) of any mortgage, indenture, lease, contract or other agreement, instrument or undertaking to the Closing duly authorized by all necessary corporate action of which the Issuer and is a party or by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause which the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its assets is or may be bound, the violation of which would have, in the case of any of (A) through (D) above, a material adverse effect on the business, operations, assets or financial condition of the Issuer, and (y) result in or require the creation or imposition of any lien on any of its property, assets or revenues pursuant to the provisions of any such mortgage, indenture, lease, contract or other agreements agreement, instrument or undertakings undertaking (other than the lien of the Indenture).
(iv) The Issuer is not an “investment company” which is required to be registered under the 1940 Act.
(v) The Issuer is not in violation of its organizational documents or in breach or violation of or in default under the Indenture, the other Transaction Documents or any judgement, decree contract or order agreement to or by which it is a party to or is by which it or any of its assets may be bound;, or any applicable statute or any rule, regulation or order of any court, government agency or body having jurisdiction over the Issuer or its properties, the breach or violation of which or default under which would have a material adverse effect on the validity or enforceability of this Agreement or the Indenture or the performance by the Issuer of its duties hereunder or thereunder.
(gvi) The Issuer is a “qualified client” as such term is defined under the Advisers Act.
(vii) There is not pending or, to the Issuer’s knowledge, threatened against it or any of its Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official or any arbitrator that is likely to affect the Closinglegality, upon payment validity or enforceability against it of this Agreement or its ability to perform its obligations under this Agreement.
(viii) True and complete copies of the purchase price, Transaction Documents executed on the Shares shall be duly issued Closing Date and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise governing instruments of the Warrants Issuer have been made available to the Collateral Manager or its counsel (and payment the Issuer agrees to deliver a true and complete copy of each amendment to the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets documents referred to in this clause (ix) to the Disclosure RecordCollateral Manager as promptly as practicable after its adoption or execution).
(ix) The Offering Circular, and the properties are in good standing under the applicable laws as of the jurisdictions date thereof (including as of the date of any supplement thereto) and as of the Closing Date, does not contain any untrue statement of a material fact and does not omit to state any material fact necessary in order to make the statements therein, in light of the circumstances in which they are situatedwere made, not misleading. The preceding sentence does not apply to the Collateral Manager Information.
Appears in 1 contract
Sources: Collateral Management Agreement (MSD Investment Corp.)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Purchaser as follows:
(a) the The Issuer is a corporation duly incorporated organized and validly subsisting existing under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedMexico;
(b) In accordance with the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in Issuer's stock registry book, the treasury Sellers are the owners of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) The Shares are validly issued, fully-paid and non-assessable and free and clear of any and all Liens and there are no outstanding options, warrants or rights to purchase or acquire (including rights of first refusal and preemptive rights), or agreements relating to, the common shares of the Company are duly listed and posted for trading on the ExchangeShares;
(d) no order ceasing or suspending trading in securities of The Issuer has the Issuer nor prohibiting the sale of such securities has been issued necessary power and authority to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters execute and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awaredeliver this Agreement;
(e) The execution and delivery of this Agreement, the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any performance of the requirements Issuer's obligations hereunder, and the consummation of the SECURITIES ACT (B.C.) or the Rules thereundertransactions contemplated hereby, or of any rule or requirement have been duly authorized by all requisite corporate action of the ExchangeIssuer;
(f) the execution, delivery and performance by the Issuer of The person executing this Agreement and on the transactions herein contemplated:
(i) have Issuer's behalf, has sufficient authority to do so, authority which has not been revoked or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is boundotherwise modified;
(g) at No governmental or other approval, authorization or filing is required in connection with the Closingentering into this Agreement, upon payment the sale of the purchase price, Shares as herein contemplated or the holding of the Shares shall be duly issued by the Purchaser;
(h) All material approvals and outstanding filings, of any nature, necessary for the Issuer to engage in the business in which it engages have been obtained and are in full force and effect;
(i) The Issuer has no material liabilities (including contingent liabilities) that may, as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants date hereof, affect the Issuer, its business or its financial condition;
(j) The Issuer (1) has filed or, within the time and payment in the manner prescribed by law, will file all tax returns, reports or other documents required to be filed with any governmental authority in connection with the determination, assessment or collection of any tax, including, without limiting the generality of the exercise price thereforeforegoing, the Warrant Shares shall all net income, gross income, payroll, withholding, unemployment insurance, social security, sales, use, value added, real and personal property, stamp, transfer, ad valorem and other taxes or charges of any kind whatsoever, and (2) has timely paid all taxes that are shown to be duly issued due and outstanding as fully paid and non-assessablepayable on such tax returns or has established reserves that are adequate therefor; and
(hk) except as qualified by No material deficiencies, assessments or audit adjustments have been proposed, assessed or asserted in writing against the disclosure in all prospectuses, filing statements and press releases filed Issuer with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred regard to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedany taxes.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby makes the following representations and warranties for the benefit of the Trustee and Holders of the Notes, on which the Seller relies in entering into this Agreement with the Issuer and on which the Holders of the Notes rely in purchasing the Notes; such representations and warranties speak as of each Series Closing Date unless otherwise indicated, but shall survive any subsequent transfer, assignment, contribution or conveyance of the Purchased Assets:
(a) The Issuer has been duly organized and is validly existing in good standing as a corporation under the laws of the State of Delaware, with power and authority to own its properties, perform its obligations under the Transaction Documents and to transact the business in which it is now engaged or in which it proposes to engage; the Issuer is duly qualified to do business and is in good standing in each State in which the nature of its business requires it to be so qualified, except where failure to so qualify would not have a material adverse effect on the ability of the Issuer to perform its obligations under the Transaction Documents.
(b) The transfer to and receipt by the Issuer of the Seller's interest in the Receivables and a security interest in the Contracts and related Credits pursuant to this Agreement and the consummation of the transactions contemplated herein and in the Transaction Documents will not conflict with or result in breach of any of the terms or provisions of, or constitute (with or without notice, lapse of time or both) a default under the Certificate of Incorporation or the By-laws of the Issuer or any material indenture, agreement, mortgage, deed of trust or other instrument to which the Issuer is a corporation duly incorporated and validly subsisting under party or by which it is bound, or result in the laws creation or imposition of British Columbia and has any lien, charge or encumbrance (except for the corporate power and authority to enter into lien created by this Agreement and complete the transactions contemplated hereby and to own and lease its properties and Indenture) upon any of the property or assets and to conduct its business as currently conducted;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue pursuant to the Purchaser terms of, such indenture, mortgage, deed of trust, or other agreement or instrument to which the Shares Issuer is a party or by which it is bound or to which any of the property or assets of the Issuer is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or the By-laws of the Issuer or any statute or any order, rule or regulation of any court or regulatory authority or other governmental agency or body having jurisdiction over the Issuer or any of its properties; and no consent, approval, authorization, order, registration or qualification of or with or other action of any court or any such regulatory authority or other governmental agency or body is required for the Warrant Shares;acquisition of the Purchased Assets hereunder.
(c) The Transaction Documents have been duly authorized, executed and delivered by the common shares Issuer by all necessary action and constitute valid and legally binding obligations of the Company are duly listed Issuer enforceable against the Issuer in accordance with their terms, subject as to enforcement to bankruptcy, insolvency, reorganization and posted for trading on the Exchange;other similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity regardless of whether enforcement is sought in a court of equity or law.
(d) There are no order ceasing proceedings or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued investigations to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is a party pending or, to the knowledge of the Issuer, threatened, before any court, regulatory body, administrative agency or ought other tribunal or governmental instrumentality (a) asserting the invalidity of this Agreement, (b) seeking to be aware;
(e) prevent the Issuer is a reporting issuer and an exchange issuer under issuance of the SECURITIES ACT (B.C.) and is not in material default Notes or the consummation of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereundertransactions contemplated by this Agreement, or of (c) seeking any rule determination or requirement of ruling that would materially and adversely affect the Exchange;
(f) the execution, delivery and performance by the Issuer of its obligations under, or the validity or enforceability of, this Agreement and the transactions herein contemplated:Agreement.
(ie) All approvals, authorizations, consents, orders or other actions of any Person or of any court, governmental agency or body or official, required in connection with the execution and delivery of this Agreement, have been or will have been be taken or obtained on or prior to the related Series Closing duly authorized by all necessary corporate action Date.
(f) The Issuer Address is the principal place of business and chief executive office of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedIssuer.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Trendwest Resorts Inc)
Representations and Warranties of the Issuer. 3.1 The Issuer warrants and represents that:
(a) the Issuer is a corporation and its material subsidiaries, if any, are valid and subsisting corporations duly incorporated and validly subsisting in good standing under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedjurisdictions in which they are incorporated, continued or amalgamated;
(b) the Issuer shall do all acts and things necessary its material subsidiaries, if any, are duly registered and licensed to reserve carry on business or set aside sufficient shares own property in the treasury jurisdictions in which they carry on business or own property where so required by the laws of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Sharesthat jurisdiction;
(c) the Issuer is authorized to issue unlimited common shares of the Company are duly listed which 84,396,206 were issued as fully paid and posted for trading on the Exchangenon-assessable as of September 15, 2005;
(d) the Issuer will reserve or set aside sufficient common shares in its treasury to issue the Shares, and Warrant Shares,
(e) the issue and sale of the Securities by the Issuer does not and will not conflict with, and does not and will not result in a breach of, any of the terms of its incorporating documents or any agreement or instrument to which the Issuer is a party;
(f) neither the Issuer or its subsidiaries, if any, is a party to any actions, suits or proceedings which could materially affect its business or financial condition, and no such actions, suits or proceedings are contemplated or have been threatened;
(g) there are no judgments against the Issuer or any of its subsidiaries, if any, which are unsatisfied, nor are there any consent decrees or injunctions to which the Issuer or any of its subsidiaries, if any, is subject;
(h) this Agreement has been duly authorized by all necessary corporate action on the part of the Issuer
(i) the common shares of the Issuer are listed for trading on the Exchange and no order ceasing ceasing, halting or suspending trading in securities of the Issuer nor or prohibiting the sale of such securities has been issued to and is outstanding against the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awarethreatened;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated.
Appears in 1 contract
Sources: Private Placement Subscription Agreement (Polymet Mining Corp)
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Initial Purchaser that as of the date hereof and as of the Closing Date:
(a) (A) At 3:00 p.m. on October 31, 2013, the time of the first contract of sale by the Initial Purchaser for any notes (the “Time of Sale”) and as of its date, each Additional Disclosure Documents and the Preliminary Offering Memorandum did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (B) the Offering Memorandum, as of its date and as of the Closing Date, will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from the Initial Purchaser Information (as defined in Section 13).
(b) The statements in the Offering Memorandum under the captions “Description of the Management Agreement,” “Description of the Contribution and Sale Agreement,” “Description of the Series 2013-2 Notes and the Series 2013-2 Supplement”, “Description of the Indenture” and “Description of the Transition Agent Agreement,” insofar as they purport to constitute a summary of the principal terms of the Notes and the Series 2013-2 Transaction Documents conform in all material respects to the terms of the Notes and the Series 2013-2 Transaction Documents.
(c) The Issuer is a corporation limited liability company duly incorporated organized, validly existing and validly subsisting in good standing under the laws of British Columbia and Delaware. The Issuer is duly qualified to do business in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not reasonably be expected to have a material adverse effect upon the Issuer or the ability of the Issuer to perform any of its obligations under any Series 2013-2 Transaction Document to which it is a party.
(d) The Issuer has the corporate all necessary limited liability company power and authority to enter into this Agreement execute and complete deliver the transactions contemplated hereby Class A and to own Class B Notes. Each Class A and lease its properties Class B Note has been duly and assets and to conduct its business as currently conducted;
(b) validly authorized by the Issuer and, from and after the date on which such Class A or Class B Note, as the case may be, is executed by the Issuer and authenticated by the Indenture Trustee in accordance with the terms of the Indenture and the Series 2013-2 Supplement and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, shall do all acts be validly issued and things necessary to reserve or set aside sufficient shares in the treasury outstanding and shall constitute a valid and legally binding obligation of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of enforceable against the Issuer nor prohibiting in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the sale enforcement of such securities has been issued to the Issuer creditors’ rights generally and by general principles of equity, regardless of whether enforceability is considered in a proceeding in equity or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;at law.
(e) The Issuer has all necessary limited liability company power and authority to execute and deliver this Agreement and the other Series 2013-2 Transaction Documents to which it is a party; and the Issuer is a reporting issuer and an exchange issuer will continue to be authorized to perform its obligations under the SECURITIES ACT (B.C.) Indenture, this Agreement and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the other Series 2013-2 Transaction Documents. The execution, delivery and performance by the Issuer of this Agreement and the other Series 2013-2 Transaction Documents to which it is a party and the transactions herein contemplated:
(i) have thereunder do not require any consent or will approval of any Governmental Authority, stockholder or any other Person, other than any such consents or approvals that have been obtained on or prior to the 2013-2 Closing Date or which the failure to obtain would not reasonably be expected to result in a Material Adverse Change.
(f) This Agreement is, and each Series 2013-2 Transaction Document to which the Issuer is a party, when duly authorized executed and delivered by all necessary corporate action each of the parties thereto, will be, the legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other similar laws of general application affecting the enforcement of creditors’ rights or by general principles of equity limiting the availability of equitable remedies.
(g) This Agreement has been duly and validly executed and delivered by the Issuer.
(h) The execution, delivery and performance of this Agreement and each of the other Series 2013-2 Transaction Documents by the Issuer and by all necessary action the execution, delivery and payment of the shareholders thereof;
Notes by the Issuer will not: (iia) do not contravene any provision of the Issuer’s certificate of formation or limited liability company agreement; or (b) assuming the accuracy of the representations and warranties of the other parties (other than the TAL Persons) hereto or thereto and the performance by those parties of their agreements and obligations herein or therein, contravene, conflict with or cause violate any Applicable Law or regulation, or any order, writ, judgment, injunction, decree, determination or award of any Governmental Authority having jurisdiction over the Issuer; or (c) violate or result in the breach of, or constitute a default under the Indenture, the other Series 2013-2 Transaction Documents or the Transaction Documents, executed in connection with Series 2013-1, any other indenture or other loan or credit agreement, or other agreement or instrument to which the Issuer to is a party or by which the Issuer, or its property and assets may be bound or affected; except for, in the cases of clauses (a), (b) or (c) above, any such contravention, conflict, violation, breach or default of its memorandum that would not, individually or articlesin the aggregate, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order reasonably be expected to or by which it is result in a party to or is bound;Material Adverse Change.
(gi) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding Except as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure disclosed in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, there is no action, suit, proceeding or investigation pending or, to the best knowledge of the Issuer, threatened against it before any court, regulatory body, arbitrator, administrative agency or other tribunal or governmental instrumentality (i) that asserts the invalidity of this Agreement or any other Series 2013-2 Transaction Document, or (ii) if anydetermined adversely to the Issuer would individually or in the aggregate is reasonably expected to result in a Material Adverse Change.
(j) The Issuer does not own any “margin security”, as that term is defined in Regulation U of the Federal Reserve Board. None of the proceeds to the Issuer of the Notes will be used, directly or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring any Indebtedness which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any of the loans under the Series 2013-2 Supplement to be considered a “purpose credit” within the meaning of Regulations T, U and X. The Issuer will not take or permit any agent acting on its behalf to take any action which might cause the Notes or any document or instrument delivered by the Issuer pursuant to the Series 2013-2 Supplement to violate any regulation of the Federal Reserve Board.
(k) The Issuer is not an “investment company,” or an “affiliated person” of, or a “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company Act. The issuance of the Notes hereunder and the application of the proceeds thereof by the Issuer and the performance of the transactions contemplated by the Indenture, the Series 2013-2 Supplement and the other Series 2013-2 Transaction Documents will not violate any provision of the Investment Company Act, or any rule, regulation or order issued by the Commission thereunder.
(l) None of the Issuer, any of its Affiliates or any Person acting on its or their behalf has engaged in any directed selling efforts (as that term is defined in Regulation S) with respect to any Notes (provided that no representation is made as to the actions of the Initial Purchaser or any Person acting on its behalf). The Issuer, its Affiliates and any Person acting on its or their behalf (provided that no representation is made as to the actions of the Initial Purchaser or any Person acting on its behalf) have complied with the offering restrictions and the requirements of Regulation S in connection with any offering of Notes outside the United States. There is no “substantial U.S. market interest” as defined in Rule 902(j) of Regulation S in the Issuer’s debt securities.
(m) Assuming the representations and warranties of the Initial Purchaser in Section 9 are true and assuming the compliance by the Initial Purchaser with its covenants and agreements set forth herein, it is not necessary to register any of the Notes under the Act or to qualify the Indenture under the Trust Indenture Act of 1939, as amended, in connection with the initial sale of the Notes to the Initial Purchaser in the manner contemplated by this Agreement or for the initial resale of the Notes by the Initial Purchaser in the manner contemplated by this Agreement.
(n) On the date hereof and the Closing Date, (i) each of the "Disclosure Record"representations and warranties of the Issuer that is set forth in this Agreement, the Indenture or the other Series 2013-2 Transaction Documents is and shall be true and correct in all material respects (except to the extent that such representations or warranties specifically relate to an earlier date), and (ii) the Company Issuer is not and shall not be in breach, in any material respect, of any covenant or agreement set forth in this Agreement, the beneficial owner Indenture or any other Series 2013-2 Transaction Document.
(o) No Event of Default or Early Amortization Event has occurred and is continuing. No event or condition that with notice or the passage of time (or both) could reasonably be expected to constitute an Event of Default or Early Amortization Event has occurred or is continuing.
(p) The Notes meet the eligibility requirements of Rule 144A(d)(3) of the propertiesAct.
(q) Neither the Issuer nor any of its Affiliates has purchased, business or is purchasing, any of the Series 2013-2 Notes other than the Class B Notes.
(r) The Issuer has not engaged in any form of general solicitation or general advertising in connection with the offer or sale of the Notes (as those terms are used in Regulation D under the Act). None of the Issuer, any of its Affiliates or their respective agents or representatives, have offered the Notes for sale to investors.
(s) As of the Closing Date, the representations and warranties made by the Issuer in the Transaction Documents or made by the Issuer in any certificate delivered pursuant to the Transaction Documents are true and correct in all material respects unless such representation or warranty relates solely to an earlier date in which case such information shall be true and correct on such earlier date.
(t) Except for the Initial Purchaser, neither the Issuer nor the Manager has employed or retained a broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Issuer nor the Manager is under any obligation to pay any broker’s fee or commission in connection with such sale.
(u) The Issuer agrees that it and each of its Affiliates will not offer or sell the Notes in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Act, including, but not limited to (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. The Issuer agrees, with respect to resales made in reliance on Rule 144A of any of the Notes, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the effect that the resale of such Notes has been made in reliance upon the exemption from the registration requirements of the Securities Act provided by Rule 144A.
(v) Except as disclosed in the Offering Memorandum, the Issuer has good and marketable title to all real properties and all other properties and assets owned by it, free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by it; and except as disclosed in the Offering Memorandum, the Issuer holds any leased real or personal property held by it under valid and enforceable leases with no exceptions that would materially interfere with the use made or to be made thereof by it.
(w) The Issuer possesses all material certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by it and has not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Issuer, would result in a Material Adverse Change.
(x) Except as disclosed in the Offering Memorandum, the Issuer is not in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “environmental laws”), nor owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would result in a Material Adverse Change; and the Issuer is not aware of any pending investigation which might lead to such a claim.
(y) Any taxes, fees and other governmental charges that would be incurred by reason of the execution and delivery of this Agreement, the Indenture or any other Series 2013-2 Transaction Document or the interests execution, delivery and sale of the Notes and that would be due and payable as of the Closing Date have been or will be paid prior to the Closing Date.
(z) None of the Issuer or, to the knowledge of the Issuer, any director, officer, agent or employee acting on behalf of the Issuer has violated or is in violation of any provision of the propertiesForeign Corrupt Practices Act of 1977.
(aa) The operations of the Issuer are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, business as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or assets referred similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer, threatened.
(bb) None of the Issuer or, to the knowledge of the Issuer, any director, officer, agent or employee acting on behalf of the Issuer is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Issuer will not directly or indirectly use the proceeds of the offering of the Notes hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(cc) The operations of the Issuer are and have been conducted at all times in material compliance with the Disclosure RecordUSA Patriot Act of 2001, as amended, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated.rules and regulations
Appears in 1 contract
Sources: Note Purchase Agreement (TAL International Group, Inc.)
Representations and Warranties of the Issuer. 7.1 The Issuer represents and warrants to the Subscriber that, as of the date of this Subscription Agreement and at Closing hereunder:
(a) the Issuer is a corporation and its subsidiaries are valid and subsisting corporations duly incorporated and validly subsisting in good standing under the laws of British Columbia the jurisdictions in which they were incorporated, continued or amalgamated and the Issuer is a "foreign private issuer" as defined in section 230.405 of Regulation C promulgated under the U.S. Securities Act and shall use its reasonable efforts to remain a foreign private issuer during the period in which the Preferred Shares may be converted and the Warrants may be exercised and the Issuer has complied, or will comply, with all applicable corporate and securities laws and regulations in connection with the corporate power offer, sale and authority to enter into this Agreement issuance of the Securities, and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business in connection therewith has not engaged in any "directed selling efforts," as currently conductedsuch term is defined in Regulation S, or any "general solicitation or general advertising" as described in Regulation D;
(b) no offering memorandum has been or will be provided to the Subscriber;
(c) the financial statements contained in the Public Record accurately reflect the financial position of the Issuer shall as at their respective dates, and no adverse material changes in the financial position of the Issuer have taken place since the date of the Issuer's last financial statements contained in the Public Record, except as disclosed in the Public Record;
(d) the Company has filed a current annual information form (the "Current AIF") in respect of its fiscal year ended November 30, 2003;
(e) the Issuer has filed all documents that it is required to file pursuant to Applicable Securities Laws and all of the documents so filed as part of the Public Record comply with the requirements of the Applicable Securities Laws and contain no untrue statement of a material fact and do all acts and things not omit to state a material fact that is required to be stated or that is necessary to prevent a statement that is made from being false or misleading in the circumstances in which it was made;
(f) there has not been any adverse material change in the Company from that disclosed in the Public Record;
(g) the Company has not filed any confidential material change reports;
(h) since the date of the most recent financial statements contained in the Public Record, the Company has not incurred, assumed or suffered any liability (absolute, accrued, contingent or otherwise) or entered into any transaction which is or may be material to the Company and is not in the ordinary course of business, except as contemplated by this Subscription Agreement or as disclosed in the Public Record;
(i) the creation, issuance and sale of the Units and the Securities of which the Units are comprised by the Issuer does not and will not conflict with and does not and will not result in a breach of any of the terms, conditions or provisions of its constating documents or any agreement or instrument to which the Issuer is a party;
(j) the Securities will, at the time of issue, be duly allotted, validly issued, fully paid and non-assessable and will be free of all liens, charges and encumbrances and the Issuer will reserve or set aside sufficient shares Common Shares in the treasury of the Issuer to enable it to issue to the Purchaser the Common Shares and Warrant Shares on the Warrant Sharesconversion of the Preferred Shares and exercise of the Warrants;
(ck) this Subscription Agreement, when accepted by the common shares Issuer, will have been duly authorized by all necessary corporate action on the part of the Company are duly listed Issuer and, subject to acceptance by the Issuer, will constitute a valid obligation of the Issuer legally binding upon the Issuer and posted for trading on the Exchangeenforceable in accordance with its terms;
(dl) the Issuer is an electronic filer under National Instrument 13-101 - System for Electronic Document Analysis and Retrieval (SEDAR);
(m) no order ceasing or suspending trading in the securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directorsand, officers or promoters and to the best of the Issuer's knowledge, no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awarethreatened;
(en) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action capital of the Issuer consists of 300,000,000 shares divided into 100,000,000 Common shares without par value, 100,000,000 Class A Preferred shares without par value, of which 10,000,000 shares are designated Class A Preference Series A Convertible shares, and by all necessary action 100,000,000 Class B Preference shares with a par value of $50.00 per share, of which 10,000,000 are designated Class B Series 1 Preference shares and of which 10,000,000 are designated Class B Series 2 Preference Shares. A total of 27,488,074 of the shareholders thereof;
(ii) do not contraveneCommon Shares, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment 30,262 of the purchase price, the Class A Preference Series A Convertible shares and 57,711 Class B Series 1 Preference Shares shall be duly are issued and outstanding as fully paid and non-assessable;
(o) other than as disclosed in the Public Record, the Warrants shall be duly granted and enforceable against Issuer has no material investments in any other company or business organization;
(p) except as set out in the CompanyPublic Record or herein, upon exercise no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option for the issue or allotment of any unissued Common Shares or any other security convertible or exchangeable for any such Common Shares or to require the Issuer to purchase, redeem or otherwise acquire any of the Warrants issued or outstanding Common Shares;
(q) the Preferred Shares will have the rights and payment of will be subject to the exercise price therefore, the Warrant Shares shall be duly issued and outstanding restrictions substantially as fully paid and non-assessableset forth in Schedule "C" attached hereto; and
(hr) except as qualified the Subscriber will rely on the representations and warranties made herein or otherwise provided by the disclosure Issuer to the Subscriber in all prospectuses, filing statements completing the sale and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner issue of the properties, business and assets or Units to the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedSubscriber.
Appears in 1 contract
Sources: Subscription Agreement (Offshore Systems International LTD)
Representations and Warranties of the Issuer. (a) The Issuer represents, warrants, covenants, undertakes and agrees with the Issuer is Lead Manager, as of the date hereof and on each day hereon, on a corporation continuous basis, up to the listing and trading of Rights Equity Shares and the completion of all SEBI compliances in connection with the Issue, that:
9.1 It and all its Subsidiaries are duly incorporated and validly subsisting existing under the applicable laws of British Columbia and no steps have been taken for their winding up, liquidation or receivership, under Applicable Law. The Issuer has the corporate full power and authority to enter into (i) execute, deliver and perform under this Agreement Agreement, (ii) execute, deliver and complete perform under the Engagement Letter, (iii) undertake and consummate the Issue, and issue the Equity Shares and there are no restrictions or authorizations required under Applicable Law or the Company’s constitutional documents, any agreement or instrument binding on the Company, on issuance of the Equity Shares pursuant to the Issue, and (iv) consummate the other transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the transactions herein contemplated:
Letter of Offer (i) have or will “Transactions”); and all necessary actions have been prior duly taken by it to authorise the Closing duly authorized by all necessary corporate action of the Issuer execution, delivery, performance, making and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-lawsconsummation, as the case may be, of the Issue and the Transactions. Each of the Issuer and its Subsidiaries has full power and capacity to conduct its business and is lawfully qualified to do business in those jurisdictions in which it conducts business, to the extent so required. Each of the Issuer and its Subsidiaries has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Issue Documents. Except as disclosed in this Agreement, the Company does not have any subsidiary, joint venture or associate;
9.2 The Promoter and members of the Promoter Group of the Company have confirmed to subscribe, to the full extent of their Rights Entitlements and have also confirmed that they shall not renounce their Rights Entitlements (except to the extent of renunciation by any of them in favour of any resolution other Promoter or member of its respective directors or shareholdersthe Promoter Group). Further, any trust deedsthe Promoters and Promoter Group reserve the right to apply for, debentureand subscribe to, loan agreements or any of its other agreements or undertakings or any judgementadditional Rights Equity Shares, decree or order subject to or by which it is a party to or is boundcompliance with the minimum public shareholding requirements, as prescribed under Applicable Law;
(g) at the Closing, upon payment 9.3 The terms of the purchase priceRights Equity Shares to be issued in the Issue are not in violation of, and will not be in violation of Applicable Law including the provisions of the Companies Act, the foreign investment regulations in India, FEMA and the rules and regulations thereunder;
9.4 The Company is in compliance with fast track eligibility conditions prescribed under Part IX of Chapter III of the SEBI ICDR Regulations read with the SEBI Rights Issue Relaxation Circulars granting relaxations from certain provisions of the SEBI ICDR Regulations (except as specified under Part I of Annexure B in relation to Regulation 99(f) of the SEBI ICDR Regulations, for which exemption has been granted by SEBI by way of the letter dated October 21, 2020), in respect of the Issue, and is eligible to undertake the Issue under Applicable law and specifically Part B of Schedule VI of the SEBI ICDR Regulations and circulars issued by SEBI from time to time. The Company has available for issue and authority to issue and allot, free from pre-emptive rights, sufficient authorised capital to enable the Rights Equity Shares shall to be issued and delivered pursuant to the terms of this Agreement;
9.5 The terms of the Equity Shares are not in violation of Applicable Law including the provisions of the Companies Act, the foreign investment regulations in India, FEMA and the rules and regulations thereunder;
9.6 The execution of each of the Issue Documents and all documents related thereto, has been duly authorised by all necessary corporate actions, and this Agreement, the Letter of Offer and all documents related thereto have been or will be duly issued executed and outstanding as fully paid delivered, and non-assessableeach is, or will be upon execution, a legal, valid and binding obligation of the Warrants shall be duly granted and Issuer enforceable against the Issuer in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganisation, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and (ii) general principles of equity;
9.7 The performance by the Company of its obligations under, this Agreement and the Issue Documents shall not conflict with, result in a breach or violation of, or imposition of any pre-emptive right, lien, mortgage, charge, pledge, security interest, defects, claim, trust or any other encumbrance or transfer restriction, both present and future (“Encumbrances”) on any property or assets of the Company, upon exercise its Subsidiaries, contravene any provision of Applicable Law or the constitutional documents of the Warrants and payment Company or any agreement or other instrument binding on the Company’s Subsidiaries or to which any of the exercise price thereforeassets or properties of the Company and its Subsidiaries, are subject, and no consent, approval, authorization or order of, or qualification with, any Governmental Authority is required for the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified performance by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions Company of its obligations under this Agreement or the Exchange or the Offering Memorandum, if any, Issue Documents.
9.8 Neither (the "Disclosure Record"), a) the Company is the beneficial owner of the propertiesand its Promoters, business Promoter Group, Subsidiaries, Directors and assets or the interests in the propertiesAffiliates, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated.nor
Appears in 1 contract
Sources: Issue Agreement
Representations and Warranties of the Issuer. 3.1 The Issuer represents, warrants and covenants that, as of the date given above and at the Closing:
(a) the Issuer is a valid and subsisting corporation duly incorporated and validly subsisting in good standing under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedColumbia;
(b) the Issuer shall do all acts is duly registered and things necessary licensed to reserve or set aside sufficient shares carry on business in the treasury jurisdictions in which it carries on business or owns property where required under the laws of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Sharesthat jurisdiction;
(c) this Subscription Agreement has been or will be by the common shares Closing, duly authorized by all necessary corporate action on the part of the Company are duly Issuer, and the Issuer has or will have by the Closing full corporate power and authority to undertake the Offering;
(d) the Common Shares of the Issuer are, and will continue to be as of the Closing Date, listed and posted for trading on the Exchange;
(de) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or has requested extensions thereof, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith;
(f) the Issuer has complied, or will comply, with all applicable corporate and securities laws and regulations in connection with the offer, sale and issuance of the Purchased Securities;
(g) no order ceasing or suspending trading in the securities of the Issuer nor or prohibiting the sale of such its securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and to the best of the Issuer’s knowledge no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awarethreatened;
(eh) the Issuer is a “reporting issuer issuer” in the provinces of British Columbia and an exchange issuer under the SECURITIES ACT (B.C.) Alberta and is not in material default included on the list of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance defaulting reporting issuers maintained by the Issuer of this Agreement and the transactions herein contemplated:Commissions;
(i) have or will have been prior to at the Closing time of Closing, the Convertible Debentures shall be duly authorized for issuance by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;Issuer; and
(iij) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase pricetheir issuance, the Shares shall will be duly validly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise assessable common shares of the Warrants Issuer.
3.2 Survival of representations and payment warranties The representations, warranties and covenants contained in this Section will survive the Closing for a period of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedtwo years.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Portfolio Manager as follows:
(a) the The Issuer has been duly formed and registered and is validly existing as a corporation duly private company incorporated and validly subsisting with limited liability company under the laws of British Columbia and Jersey, has the full corporate power and authority to enter into this Agreement own its assets and complete the transactions contemplated hereby obligations proposed to be owned by it and included in the Assets and to own transact the business in which it is presently engaged and is duly qualified under the laws of each jurisdiction where its ownership or lease its properties and assets and to of property or the conduct of its business as currently conducted;requires, or the performance of its obligations under this Agreement, the Indenture, the Securities Account Control Agreement, any Hedge Agreement, the Collateral Administration Agreement, the Loan Sale Agreement, the Master Participation Agreement, the Administration Agreement or the Notes (collectively, the “Issuer Documents”) would require, such qualification, except for failures to be so qualified, authorized or licensed that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Issuer.
(b) The Issuer has the Issuer shall do all acts necessary corporate power and things necessary authority to reserve or set aside sufficient shares in the treasury execute and deliver each of the Issuer Documents, and to enable it perform all of its obligations required thereunder, and has taken all necessary action to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities authorize each of the Issuer nor prohibiting Documents on the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters terms and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer conditions hereof and an exchange issuer under the SECURITIES ACT (B.C.) thereof and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance of each of the Issuer Documents and the performance of all obligations imposed upon it hereunder and thereunder.
(c) This Agreement has been executed and delivered by a duly authorized officer of the Issuer, and this Agreement constitutes the legally valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, subject, as to enforcement, to (i) the effect of bankruptcy, insolvency, reorganization, moratorium, winding up or similar laws affecting generally the enforcement of creditors’ rights, as such laws would apply in the event of any bankruptcy, receivership, insolvency, winding up or similar event applicable to the Issuer and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(d) No consent of any other Person, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority, other than those that may be required under state securities or “blue sky” laws and those that have been or shall be obtained in connection with the Indenture and the issuance of the Notes, is required by the Issuer in connection with the Issuer Documents or the execution, delivery, performance, validity or enforceability of the Issuer Documents or the obligations imposed upon the Issuer hereunder or thereunder.
(e) The Issuer is not in violation of any applicable federal or state securities law or regulation promulgated thereunder, and there is no charge, investigation, action, suit or proceeding before or by any court pending or, to the best knowledge of the Issuer, threatened in writing that, if determined adversely to the Issuer, would have a material adverse effect upon the performance by the Issuer of its duties hereunder, or on the validity or enforceability of, this Agreement and the transactions herein contemplated:Agreement.
(if) have or will have been prior to the Closing duly authorized by all necessary corporate action The execution, delivery and performance of the Issuer Documents, and by all necessary action of the shareholders thereof;
(ii) documents and instruments required thereunder do not contraveneviolate any provision of any existing law or regulation binding on the Issuer, conflict with or cause any order, judgment, award or decree of any court, arbitrator or governmental authority binding on the Issuer, or the Governing Instruments of, or any securities issued by, the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors mortgage, indenture, lease, contract or shareholdersother agreement, any trust deeds, debenture, loan agreements instrument or undertaking to which the Issuer is a party or by which the Issuer or any of its assets may be bound, the violation of which would have a material adverse effect on the business, operations, assets or financial condition of the Issuer or the performance by the Issuer of its duties under this Agreement, and do not result in or require the creation or imposition of any lien on any of its property, assets or revenues pursuant to the provisions of any such mortgage, indenture, lease, contract or other agreements agreement, instrument or undertakings undertaking (other than the lien of the Indenture).
(g) The Issuer is not in violation of its Governing Instruments, or in breach or violation of, or in default under, the Indenture or any judgement, decree contract or order agreement to or by which it is a party to or is by which it or any of its assets may be bound;
(g) at , or any applicable statute or any rule, regulation or order of any court, government agency or body having jurisdiction over the ClosingIssuer or its properties, upon payment except for any breach, violation or default that would not have a material adverse effect on the validity or enforceability of the purchase pricethis Agreement, the Shares shall be duly issued and outstanding as fully paid and non-assessableCollateral Administration Agreement or the Indenture, or the performance by the Issuer of its duties under this Agreement, the Warrants shall be duly granted and enforceable against Collateral Administration Agreement or the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; andIndenture.
(h) except The Issuer is not required to be registered as qualified an “investment company” under the Investment Company Act.
(i) There is no charge, investigation, action, suit or proceeding before or by any court pending or, to the best knowledge of the Issuer, threatened that, if determined adversely to the Issuer, would have a material adverse effect upon the performance by the disclosure Issuer of its duties under, or on the validity or enforceability of, this Agreement, the Collateral Administration Agreement or the provisions of the Indenture applicable to the Issuer thereunder.
(j) The information contained in the final offering circular, dated June 30, 2025, pertaining to the Notes (the “Offering Circular”) is true and correct in all prospectusesmaterial respects, filing and does not omit to state any material fact necessary in order to make the statements and press releases filed with therein, in light of the Commissions or the Exchange or the Offering Memorandumcircumstances under which they were made, if anynot misleading; provided, (the "Disclosure Record")that, the Company is Issuer makes no representation or warranty with respect to the beneficial owner of the properties, business and assets or the interests in the properties, business or assets information referred to in the Disclosure Record, and the properties are in good standing under the applicable laws Section 4(h) of the jurisdictions in which they are situatedthis Agreement.
Appears in 1 contract
Sources: Portfolio Management Agreement (Bain Capital Specialty Finance, Inc.)
Representations and Warranties of the Issuer. The Issuer hereby makes the following representations and warranties for the benefit of the Trustee and Holders of the Notes, on which the Contributor relies in entering into this Agreement with the Issuer and on which the Holders of the Notes rely in purchasing the Notes; such representations and warranties speak as of the Closing Date and the Subsequent Transfer Date unless otherwise indicated, but shall survive any subsequent transfer, assignment, contribution or conveyance of the Lease Assets or any part thereof:
(a) the The Issuer has been duly organized and is validly existing in good standing as a corporation duly incorporated and validly subsisting under the laws of British Columbia and has the State of Minnesota, with corporate power and authority to enter into this Agreement and complete own its properties, perform its obligations under the transactions contemplated hereby Transaction Documents and to own transact the business in which it is now engaged or in which it proposes to engage; the Issuer is duly qualified to do business and lease its properties and assets and to conduct is in good standing in each state in which the nature of its business as currently conducted;requires it to be so qualified, except where failure to so qualify would not have a material adverse effect on the ability of the Issuer to perform its obligations under the Transaction Documents.
(b) The transfer to and receipt by the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares of the Contributor's interest in the treasury Lease Contracts, the Lease Receivables and the related Equipment pursuant to this Agreement and the consummation of the transactions contemplated herein and in the Transaction Documents will not conflict with or result in breach of any of the terms or provisions of, or constitute (with or without notice, lapse of time or both) a default under the Articles of Incorporation or Bylaws of the Issuer or any material indenture, agreement, mortgage, deed of trust or other instrument to enable which the Issuer is a party or by which it to issue is bound, or result in the creation or imposition of any lien, charge or encumbrance (except for the lien created by the Indenture) upon any of the property or assets of the Issuer pursuant to the Purchaser terms of, such indenture, mortgage, deed of trust, or other agreement or instrument to which the Shares Issuer is a party or by which it is bound or to which any of the property or assets of the Issuer is subject, nor will such action result in any violation of the provisions of the Articles of Incorporation or Bylaws of the Issuer or any statute or any order, rule or regulation of any court or regulatory authority or other governmental agency or body having jurisdiction over the Issuer or any of its properties; and no consent, approval, authorization, order, registration or qualification of or with or other action of any court, regulatory authority or other governmental agency or body is required for the Warrant Shares;acquisition of the Lease Assets hereunder.
(c) The Transaction Documents to which the common shares Issuer is a party have been duly authorized, executed and delivered by the Issuer by all necessary corporate action and constitute valid and legally binding obligations of the Company are duly listed Issuer enforceable against the Issuer in accordance with their terms, subject as to enforcement to bankruptcy, insolvency, reorganization and posted for trading on the Exchange;other similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity regardless of whether enforcement is sought in a court of equity or law.
(d) There are no order ceasing proceedings or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued investigations to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is a party pending or, to the knowledge of the Issuer, threatened, before any court, regulatory body, administrative agency or ought other tribunal or governmental instrumentality (a) asserting the invalidity of this Agreement, (b) seeking to be aware;
(e) prevent the Issuer is a reporting issuer and an exchange issuer under issuance of the SECURITIES ACT (B.C.) and is not in material default Notes or the consummation of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereundertransactions contemplated by this Agreement, or of (c) seeking any rule determination or requirement of ruling that would materially and adversely affect the Exchange;
(f) the execution, delivery and performance by the Issuer of its obligations under, or the validity or enforceability of, this Agreement and the transactions herein contemplated:Agreement.
(ie) All approvals, authorizations, consents, orders or other actions of any Person or of any court, governmental agency or body or official, required in connection with the execution and delivery of this Agreement, have been or will have been be taken or obtained on or prior to the Closing duly authorized by all necessary corporate action Date.
(f) The Issuer Address is the principal place of business and chief executive office of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedIssuer.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents and warrants to, and agrees with, the Initial Purchasers that:
(a) The Final Offering Circular, as of its date, contains all the information that, if requested by a prospective purchaser, would be required to be provided pursuant to Rule 144A(d)(4) under the Securities Act (the "Additional Issuer Information"). The Preliminary Offering Circular and the Final Offering Circular, as of their respective dates, do not and, as of the Closing Date, will not contain any untrue statement of a material fact or omit to state any material fact or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Preliminary Offering Circular or the Final Offering Circular based upon written information furnished to the Issuer by any Initial Purchaser specifically for use therein.
(b) The Issuer has been duly organized and is a corporation duly incorporated validly existing and validly subsisting is in good standing under the laws of British Columbia and has the corporate France, with full power and authority (corporate and other), to enter into this Agreement own, lease and complete operate its properties, to execute, deliver and perform the transactions contemplated hereby and High Yield Closing Date Agreements to own and lease its properties and assets which it is a party, to issue the Notes, and to conduct its business as currently conducted;
(b) described in the Offering Circular; and the Issuer shall is duly qualified to do business as a foreign corporation in good standing in all acts other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be in such good standing, to have such power and things necessary authority or to reserve be so qualified, either individually or set aside sufficient shares in the treasury aggregate, would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;its subsidiaries, taken as a whole (a "Material Adverse Effect").
(c) The entities listed on Schedule III hereto (each, together with FIMAF and Legrand, a "Material Subsidiary," and each, together with FIMAF and Legrand, the common shares "Material Subsidiaries") are the only Material Subsidiaries (as defined in the Senior Credit Facility Agreement (as defined below)), direct or indirect, of Legrand, as of the Company are date hereof. Each Material Subsidiary has been duly listed organized and posted is validly existing, and is in good standing under the laws of the jurisdiction of its organization, with full power and authority (corporate and other) to own, lease and operate its properties, and to conduct its business as described in the Offering Circular, except where the failure to be so qualified, to be in good standing or to have such power and authority would not reasonably be expected to have a Material Adverse Effect; each Material Subsidiary is duly qualified to do business and is in good standing under the laws of all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be in such good standing or to have such power and authority would not reasonably be expected to have a Material Adverse Effect; the authorized and issued share capital of each Material Subsidiary has been duly authorized and validly issued, is fully paid (other than directors' qualifying shares), and is not subject to any pre-emptive or similar right and is legally owned by Legrand, directly or through subsidiaries, free from any security interest, charge, claim, lien, encumbrance or adverse interest of any nature (each a "Lien"), except for trading on Liens pursuant to or permitted by the Exchange;Senior Finance Documents and except as disclosed in the Offering Circular.
(d) no order ceasing or suspending trading in securities Except for approval of a copy of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) Offering Circular or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-lawsListing Particulars, as the case may be, by the Luxembourg Stock Exchange, no licenses, permits, certificates, consents, exemptions, franchises, authorizations, orders, concessions or other approvals are required to be made with or obtained from any governmental agency or body or any court (each an "Authorization" and, collectively, the "Authorizations") in the United States or any member of the European Union for the consummation of the transactions provided for by this Agreement, the High Yield Closing Date Agreements, the offering and the sale by the Initial Purchasers of the Initial Notes in accordance with the terms of this Agreement or the distribution of the Offering Circular in accordance with the provisions of this Agreement, except (i) as have been obtained or made, (ii) as may be required to comply with the provisions of the Registration Rights Agreement, (iii) as may be required under state securities laws or "blue sky" laws or (iv) where the failure to make or obtain such Authorization would not reasonably be expected to materially adversely affect the consummation of the transactions provided for by such agreements.
(e) The intercreditor deed, dated July 26, 2002, among Lumina Parent SARL, Lumina Participation SARL, the Issuer, FIMAF, Lumina Financing 1, the Original Lenders listed therein, and each of the other parties and agents party to the Senior Credit Facility Agreement and the Mezzanine Credit Facility Agreement (as defined therein), as amended and restated on December 5, 2002 (such agreement, as amended, and supplemented) (the "Intercreditor Deed") was duly authorized, executed and delivered by each member of the Issuer Group party thereto and constitutes the valid and legally binding obligation of such party or parties, enforceable in accordance with its terms, subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles (whether considered in proceedings in equity or at law), and (ii) any rights to indemnity or contribution thereunder being limited by public policy considerations.
(f) The Indenture has been duly authorized by the Issuer and, as of the Closing Date, will have been duly executed and delivered by the Issuer and will, when duly executed and delivered (assuming the due authorization, execution and delivery thereof by the Trustee), constitute valid and legally binding obligations of the Issuer, enforceable in accordance with its terms, subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles (whether considered in proceedings in equity or at law) and (ii) any rights to indemnity or contribution thereunder being limited by public policy considerations.
(g) The Initial Notes have been duly authorized by the Issuer, and, as of the Closing Date, will have been duly executed and delivered by the Issuer and, when duly executed, issued and delivered by the Issuer, authenticated in accordance with the terms of the Indenture and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture, and will constitute valid and legally binding obligations of the Issuer, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles (whether considered in proceedings in equity or at law).
(h) The Assignment Agreement has been duly authorized by the Issuer and, as of the Closing Date, will be duly executed and delivered by the Issuer and will, when duly executed and delivered (assuming the due authorization, execution and delivery by the Trustee), constitute valid and legally binding, assignment by the Issuer of its rights under the Original Euro Funding Loan and the other rights described therein, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles (whether considered in proceedings in equity or at law).
(i) The Paying Agency Agreement has been duly authorized by the Issuer and, when duly executed and delivered by the Issuer (assuming the due authorization, execution and delivery thereof by each other party thereto), will constitute the valid and legally binding obligation of the Issuer, enforceable in accordance with its terms, subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles (whether considered in proceedings in equity or at law) and (ii) any rights to indemnity or contribution thereunder being limited by public policy considerations.
(j) The Registration Rights Agreement has been duly authorized by the Issuer, when duly executed and delivered by the Issuer (assuming the due authorization, execution and delivery thereof by the Initial Purchasers), will constitute valid and legally binding obligations of the Issuer, enforceable in accordance with its terms, subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles (whether considered in proceedings in equity or at law) and (ii) any rights to indemnity or contribution thereunder being limited by public policy considerations.
(k) The Exchange Notes have been duly authorized, and when the Exchange Notes are duly issued, executed, delivered and authenticated in accordance with the terms of the Indenture, will be entitled to the benefits of the Indenture and will constitute valid and legally binding obligations of the Issuer, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles (whether considered in proceedings in equity or at law).
(l) The Priority Deed will have been duly authorized as of the Closing Date by the Issuer, Lumina Parent Sàrl, Lumina Participation Sàrl, FIMAF, New Sub 1 and Lumina Financing 1 Sàrl, and, as of the Closing Date, will have been duly executed and delivered (assuming the due authorization, execution and delivery of and by the Trustee), constitute valid and legally binding obligations of the Issuer, enforceable in accordance with its terms, subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles (whether considered in proceedings in equity or at law) and (ii) any rights to indemnity or contribution thereunder being limited by public policy considerations.
(m) Each of the High Yield Closing Date Agreements to which any member of the Issuer Group, New Sub 1 or Lumina Financing 1 is a party (other than the Indenture, the Initial Notes, the Assignment Agreement, the Paying Agency Agreement, the Registration Rights Agreement, the Priority Deed, the Intercreditor Deed and the Exchange Notes as to which no representation is given in this clause (m)) has been duly authorized or will be authorized as of the Closing Date by each such party, will, as of the Closing Date, be duly executed and delivered by each member of the Issuer Group party thereto, and, when duly executed and delivered by such party or parties (assuming the due authorization, execution and delivery thereof by each party thereto that is not a member of the Issuer Group), will constitute the valid and legally binding obligation of each member of the Issuer Group party thereto, enforceable in accordance with its terms, subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, and (ii) any rights to indemnity or contribution thereunder being limited by public policy considerations.
(n) The Indenture and the Notes, the Paying Agency Agreement, the Registration Rights Agreement, the Assignment Agreement, the Intercreditor Deed, the Subordinated Shareholder PIK Loan, the Original Euro Funding Loan, the Priority Deed, and the senior facility agreement among Lumina Financing 1 and FIMAF, as initial borrowers, the companies listed therein as additional borrowers, CSFB, ▇▇▇▇▇▇ Brothers and The Royal Bank of Scotland plc ("RBS") as joint lead arrangers, the financial institutions listed therein as lenders and RBS as facility agent pursuant to which the lenders thereunder agreed to make available credit facilities of up to €2,222,000,000 (such agreement, as amended and supplemented, the "Senior Credit Facility Agreement" and, together with the senior funding bonds issued by FIMAF and subscribed by Lumina Financing 1 pursuant to a subscription agreement dated December 5, 2002 (the "Senior Funding Bonds") and related security and guarantee agreements and ancillary documents, the "Senior Finance Documents"), will conform in all material respects to the respective descriptions thereof in the Final Offering Circular.
(o) This Agreement has been duly authorized, executed and delivered by the Issuer.
(p) The execution, delivery and performance of this Agreement, the Indenture, the Notes, the Registration Rights Agreement, the Paying Agency Agreement, the Priority Deed, the Subordinated Intercompany Funding Loan, the Assignment Agreement, the Delegation Agreement 1, the Delegation Agreement 2 and the Subordinated Shareholder PIK Loan, the issuance and sale of the Initial Notes and the consummation of the transactions contemplated hereby and thereby will not (i) result in a breach or violation of any resolution of its respective directors the terms and provisions of, or shareholdersconstitute a default under, any trust deedsstatute, debenturecode, loan agreements or any of its other agreements or undertakings or any judgementjudgment, rule, regulation, decree or order of any regulatory authority or governmental agency or body or court, having jurisdiction over the Issuer or any Material Subsidiary or any of their respective properties or assets, (ii) conflict with or constitute a breach or violation of any of the terms or provisions of, or default under, the Intercreditor Deed, the Senior Finance Documents or any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Issuer or any Material Subsidiary is a party or by which it the Issuer or any Material Subsidiary is bound or to which any of the properties or assets of the Issuer or any such Material Subsidiary is subject, (iii) conflict with the "statuts" (by-laws) or memorandum and articles of association (or similar charter document, as applicable) of the Issuer or any Material Subsidiary or (iv) result in the termination, suspension or revocation of any Authorization of the Issuer or any Material Subsidiary or result in any other impairment of the rights of the holder of any such Authorization, except, in the case of clauses (i), (ii) and (iv), as would not reasonably be expected to have a party to or is bound;Material Adverse Effect.
(gi) at The net proceeds received by the Closing, upon payment Issuer from the sale of the purchase priceInitial Notes and thereafter lent to FIMAF pursuant to the Subordinated Intercompany Funding Loan, will be sufficient, together with available and unrestricted cash of FIMAF, to enable FIMAF to pay and prepay in cash in full on the Shares shall be duly issued Closing Date all sums advanced to it or owed by it under the Cash Discharged Mezzanine Funding Bonds (including the aggregate principal amount thereof and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise all accrued but unpaid interest thereon).
(r) Each member of the Warrants Issuer Group possesses all Authorizations from, made all filings with and payment given all notices to, all governmental agencies, regulatory authorities or self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable environmental laws (as defined below), as are necessary to own, lease, license and operate its respective properties and to conduct its respective businesses as described in the Offering Circular, except where the failure to so possess would not reasonably be expected to have a Material Adverse Effect and, to the knowledge of the exercise price thereforeIssuer, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated.no event has occu
Appears in 1 contract
Sources: Purchase Agreement (Fimep Sa)
Representations and Warranties of the Issuer. (a) The Issuer hereby represents and warrants to the Investor that the representations and warranties given in this Clause 5.1 shall be true and correct in all material respects as of the the date of this Agreement and shall be deemed to have been repeated, subject to any disclosure made to the public by the Issuer is a corporation duly incorporated from the Issuance Date until the expiry of the Commitment Period, on each date of Request and validly subsisting under the laws of British Columbia and on each Closing Date:
i. it has the corporate full power and authority to enter into this Agreement and complete to perform all the transactions contemplated hereby and obligations resulting therefrom subject to own and lease its properties and assets and to conduct its business as currently conducted;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury approval of another shareholders' general meeting of the Issuer that may have to enable be used in order to continue the financing program; ii. as of their respective date, the signature of this Agreement and the performance of the obligations arising therefrom are not in violation of any provision of its By-Laws or of any previous contractual commitments with other parties except where such failure would not reasonably be expected, individually or in the aggregate, to materially affect its ability to perform its obligations, undertakings and commitments hereunder after the Issuance Date;
iii. the entry into and performance by the Issuer of its obligations under this Agreement does not and will not conflict with or cause a default under any finance agreement entered into by the Issuer except where such failure would not reasonably be expected, individually or in the aggregate, to materially affect its ability to perform its obligations, undertakings and commitments hereunder;
iv. its capital is fully paid up as of the Issuance Date;
v. it has complied with all applicable legal and regulatory requirements to issue be complied by it on such date in respect of the issuance of the Note Warrants, the Notes, the Warrants, and for the admission to the Purchaser trading on Euronext Paris of the Shares which may be issued upon the conversion of the Notes and/or the exercise of the Warrants other as specified in paragraph (vii) below, except where such failure would not reasonably be expected, individually or in the aggregate, to materially affect its ability to perform its obligations, undertakings and the Warrant Sharescommitments hereunder;
(c) vi. neither the common shares issue of the Company are duly listed and posted for trading on Note Warrants, the ExchangeNotes, the Warrants or the Shares upon conversion of the Notes and/or exercise of the Warrants will be subject to any pre-emptive (droit préférentiel de souscription) or similar rights;
(d) no order ceasing or suspending trading in securities vii. except with respect to any necessary approvals from Euronext for the listing of the Shares upon conversion of the Notes and/or exercise of the Warrants, neither the Issuer nor prohibiting the sale of such securities has been issued any Subsidiary is required to the Issuer obtain any consent, waiver, authorization or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunderorder of, or of make any rule filing or requirement of the Exchange;
(f) registration with, any court or other governmental or regulatory authority or other person in connection with the execution, delivery and performance by the Issuer of this Agreement Agreement, the issue of any Note Warrants, the Notes, the Warrants or Shares. As of the Issuance Date, any necessary consents and the transactions herein contemplated:approvals shall have been obtained and shall be in full force and effect;
viii. there is no court-ordered insolvency procedures (including any action, suit, notice of violation, proceeding or investigation) pending which (i) have relates to or will have been prior challenges the legality, validity or enforceability of this Agreement or (ii) could, individually or in the aggregate, be reasonably expected to impair materially the Closing duly authorized by all necessary corporate action ability of the Issuer and by all necessary action to perform fully on a timely basis its obligations under this Agreement;
ix. the main publicly available corporate documents of the shareholders thereofIssuer (statuts, Extraits K-Bis and Certificat de non-faillite) are accurate, complete and up-to-date on the date on which they were submitted;
x. neither the Issuer nor any of its Subsidiaries is or has been involved in any governmental, legal or arbitration proceedings (iiincluding any such proceedings which are pending or threatened of which the Issuer is aware), during a period covering at least the previous twelve (12) do not contravenemonths which may have, conflict with or cause have had in the recent past, significant material adverse effects on the financial position of the Issuer or on the ability of the Issuer to be in breach perform its material obligations under this Agreement or default of its memorandum or articlesthe Notes, or articles or by-laws, as that are otherwise material in the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment context of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise issuance of the Warrants and payment of Notes other than as disclosed in the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessableInformation Documents; and
(h) except as qualified by the disclosure xi. once issued and subscribed for in all prospectuses, filing statements and press releases filed accordance with the Commissions or terms of the Exchange or the Offering Memorandum, if any, (the "Disclosure Record")Agreement, the Company is the beneficial owner Notes will constitute direct, unconditional, unsecured and unsubordinated obligations of the propertiesIssuer and, business at all times so long as any Note is outstanding, will rank equally between themselves and assets (subject to such exceptions as are from time to time mandatory under French law) equally and rateably (pari passu) with all other present or the interests in the properties, business or assets referred to in the Disclosure Record, future unsecured and the properties are in good standing under the applicable laws unsubordinated debt securities of the jurisdictions in which they are situatedIssuer, from time to time outstanding.
Appears in 1 contract
Sources: Agreement for the Issuance of and Subscription to Warrants (Erytech Pharma S.A.)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Purchasers as of the date hereof and as of the Closing Date as follows:
(a) This Agreement has been duly authorized, executed and delivered by the Issuer and is a corporation duly incorporated legal, valid and validly subsisting under binding obligation of the Issuer, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and general principles of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;equity.
(b) The New Securities have been duly authorized by the Issuer shall do all acts and, when delivered to the Purchasers in accordance with the terms of this Agreement, will be valid and things necessary to reserve or set aside sufficient shares in the treasury binding obligations of the Issuer Issuer, enforceable in accordance with their terms, subject to enable it to issue applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and general principles of equity, and will be entitled to the Purchaser benefits of the Shares and the Warrant Shares;New Notes.
(c) the common shares of the Company are duly listed The execution and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of delivery by the Issuer nor prohibiting of, and the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of its obligations under, this Agreement and the New Notes will not contravene (i) any agreement or other instrument binding upon the Issuer or any of its Subsidiaries, (ii) any provision of applicable law, (iii) any provision of the certificate of incorporation or by-laws of the Issuer, or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any of its Subsidiaries, except as to clause (i), (ii) or (iv) above, where such contravention, individually or in the aggregate, would not have, and could not reasonably be expected to have, a material adverse effect on (A) the financial condition, business, results of operations, liabilities, management or prospects of the Issuer or any of its Subsidiaries taken as a whole, (B) the validity or enforceability of this Agreement or the New Notes, or (C) the rights or remedies of the Purchasers hereunder or under the New Notes (a "Material Adverse Effect"). No consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Issuer of its obligations under this Agreement and the New Notes, except (x) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the New Securities, and (y) in each case, where the failure to obtain any such consent, approval, authorization, order or qualification would not have, and could not reasonably be expected to have, a Material Adverse Effect.
(d) There are no legal or governmental actions, suits or proceedings pending or, to the best of the Issuer's knowledge, threatened against or affecting the Issuer or any of its Subsidiaries, which has as the subject thereof any property owned or leased by the Issuer or such Subsidiary, where in each such case there is a reasonable possibility that such action, suit or proceeding might be determined adversely to the Issuer or such Subsidiary and any such action, suit or proceeding, if so determined adversely, would adversely affect the consummation of the transactions herein contemplated:contemplated by this Agreement or the New Notes.
(e) The Issuer will use the proceeds received from the issuance of the New Securities to refinance the Existing Notes.
(f) Neither the Issuer nor any of its Subsidiaries is, and after giving effect to the offering and sale of the New Securities and the application of the proceeds thereof, will be, required to register as an "investment company" as such term is defined in the Investment Company Act of 1940, as amended; and the New Securities satisfy the requirements set forth in Rule 144A(d)(3) under the Securities Act.
(g) Neither the Issuer nor any affiliate (as defined in Rule 501(b) of Regulation D under the Securities Act, an "Affiliate") of the Issuer has directly, or through any agent, (i) sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act) which is or will be integrated with the sale of the New Securities in a manner that would require the registration under the Securities Act of the New Securities or (ii) engaged in any form of general solicitation or general advertising in connection with the offering of the New Securities (as those terms are used in Regulation D under the Securities Act), or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(h) Assuming that the representations and warranties of the Purchasers in Section 5 are true, correct and complete, it is not necessary in connection with the offer, sale and delivery of the New Securities to the Purchasers in the manner contemplated by this Agreement to register the New Securities under the Securities Act or to qualify the New Notes under the Trust Indenture Act of 1939, as amended.
(i) have or will have been prior to No event is outstanding which constitutes (or, with the Closing duly authorized by all necessary corporate action giving of the Issuer and by all necessary action notice, lapse of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articlestime, or articles or by-laws, as the case may be, or fulfillment of any resolution other applicable condition (other than the mere occurrence of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"such event), the Company is the beneficial owner will constitute) a Default or an Event of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedDefault.
Appears in 1 contract
Sources: Exchange Agreement (Worldspan L P)
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Collateral Manager that:
(a) the Issuer is a corporation (i) has been duly incorporated and registered as an exempted company and is validly subsisting existing under the laws of British Columbia and the Cayman Islands; (ii) has the corporate full power and authority to enter into own the Issuer’s assets and the securities proposed to be owned by the Issuer and included among the Collateral and to transact the business for which the Issuer was incorporated; (iii) is duly qualified under the laws of each jurisdiction where the Issuer’s ownership or lease of property or the conduct of the Issuer’s business requires or the performance of the Issuer’s obligations under this Agreement and complete the transactions contemplated hereby Indenture would require such qualification, except for failures to be so qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Issuer or the ability of the Issuer to perform its obligations under, or on the validity or enforceability of, this Agreement and the Indenture; and (iv) has full power and authority to own execute, deliver and lease its properties perform the Issuer’s obligations hereunder and assets and to conduct its business as currently conductedthereunder;
(b) this Agreement and the Indenture have been duly authorized, executed and delivered by the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of constitute legal, valid and binding agreements enforceable against the Issuer in accordance with their terms except that the enforceability thereof may be subject to enable it (i) bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws now or hereafter in effect relating to issue to the Purchaser the Shares creditors’ rights and the Warrant Shares(ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(c) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other Person is required for the common shares performance by the Issuer of its duties hereunder or under the Indenture, except those that may be required under state securities or “blue sky” laws or the applicable laws of any jurisdiction outside of the Company are United States, and such as have been duly listed and posted for trading on the Exchangemade or obtained;
(d) no order ceasing neither the execution, delivery and performance of this Agreement or suspending trading in securities of the Indenture nor the performance by the Issuer nor prohibiting of its duties hereunder or under the sale Indenture (i) conflicts with or will violate or result in a default under the Issuer’s Governing Documents or any material contract or agreement to which the Issuer is a party or by which it or its assets may be bound, or any law, decree, order, rule, or regulation applicable to the Issuer of such securities has been issued to any court or regulatory, administrative or governmental agency, body or authority or arbitrator having jurisdiction over the Issuer or its directorsproperties, officers or promoters (other than as contemplated or against permitted by the Indenture) will result in a lien on any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the property of the Issuer is and (ii) would have a material adverse effect upon the ability of the Issuer to perform its duties under this Agreement or ought to be awarethe Indenture;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is its Affiliates are not in material default violation of any federal, state or Cayman Islands laws or regulations, and there is no charge, investigation, action, suit or proceeding before or by any court or regulatory agency pending or, to the best knowledge of the requirements Issuer, threatened that, in any case, would have a material adverse effect upon the ability of the SECURITIES ACT (B.C.) Issuer to perform its duties under this Agreement or the Rules thereunder, or of any rule or requirement of the ExchangeIndenture;
(f) the execution, delivery and performance by Issuer is not an “investment company” under the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;Investment Company Act; and
(g) at the Closing, upon payment assets of the purchase price, Issuer do not and will not at any time constitute the Shares shall be duly issued and outstanding as fully paid and non-assessable, assets of any plan subject to the Warrants shall be duly granted and enforceable against the Company, upon exercise fiduciary responsibility provisions of ERISA or of any plan subject to Section 4975 of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedCode.
Appears in 1 contract
Sources: Collateral Management Agreement (LoanCore Realty Trust, Inc.)
Representations and Warranties of the Issuer. In order to induce the Seller to enter into this Agreement, the Issuer hereby represents and warrants for the benefit of the Seller as of the date hereof that:
(a) the Issuer is a corporation limited liability company duly incorporated formed, validly existing, and validly subsisting under in good standing in the laws State of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedDelaware;
(b) the Issuer shall do all acts has the power and things necessary authority to reserve or set aside sufficient shares in the treasury of the Issuer own its property and to enable it to issue to the Purchaser the Shares and the Warrant Sharescarry on its business as now conducted;
(c) the common shares Issuer has the power to execute, deliver and perform this Agreement, and neither the execution and delivery by the Issuer of this Agreement, nor the consummation by the Issuer of the Company are duly listed and posted for trading transactions herein contemplated, nor the compliance by the Issuer with the provisions hereof, will (i) conflict with or result in a breach of, or constitute a default under, any of the provisions of the organizational documents of the Issuer or any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the ExchangeIssuer or any of its properties, or any indenture, mortgage, contract or other instrument to which the Issuer is a party or by which the Issuer is bound, or (ii) result in the creation or imposition of any lien, charge or encumbrance upon the Issuer’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware[reserved];
(e) assuming the Issuer is due authorization, execution and delivery of this Agreement by the other party to this Agreement, this Agreement constitutes a reporting issuer legal, valid and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any binding obligation of the requirements Issuer, enforceable against it in accordance with its terms (except as enforcement thereof may be limited by bankruptcy, receivership, conservatorship, reorganization, insolvency, moratorium or other laws affecting the enforcement of the SECURITIES ACT (B.C.) creditors’ rights generally and by general equitable principles regardless of whether enforcement is considered in a proceeding in equity or the Rules thereunder, or of any rule or requirement of the Exchangeat law);
(f) the execution, delivery and performance by there are no legal or governmental proceedings pending to which the Issuer is a party or of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action which any property of the Issuer and by all necessary action is the subject which, if determined adversely to the Issuer, would reasonably be expected to materially adversely affect the consummation of the shareholders thereoftransactions contemplated herein, and to the Issuer’s knowledge, no such proceedings are threatened by governmental authorities or by others;
(iig) do not contravene, conflict with or cause the Issuer to be in breach is not, nor with the giving of notice or default lapse of its memorandum time or articles, or articles or by-laws, as the case may both would be, in violation of or in default under any indenture, mortgage, deed of any resolution of its respective directors or shareholders, any trust deeds, debenturetrust, loan agreements agreement or other agreement or instrument to which the Issuer is a party or by which the Issuer or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or properties is bound;
(gh) at no consent, approval, authorization, order, license, registration or qualification of or with any such court or governmental agency or body is required for the Closing, upon payment consummation by the Issuer of the purchase pricetransactions contemplated by this Agreement, other than any consent, approval, authorization, order, license, registration or qualification that has been obtained or made or the Shares shall failure of which to obtain would not individually or in the aggregate reasonably be duly issued and outstanding as fully paid and non-assessable, expected to have a material adverse effect on the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessabletransactions contemplated herein; and
(hi) except as qualified by the disclosure Issuer has not dealt with any broker, investment banker, agent or other person that may be entitled to any commission or compensation in all prospectuses, filing statements and press releases filed connection with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner consummation of any of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedtransactions contemplated hereby.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Purchaser, and acknowledges that the Purchaser is relying on these representations and warranties in entering into this Agreement, that:
(a) the Issuer is a corporation valid and subsisting company, duly incorporated and validly subsisting in good standing under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedjurisdiction in which it was incorporated, continued or amalgamated;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer in British Columbia and an exchange issuer under Alberta, and the SECURITIES ACT (B.C.) and Issuer is not not, to the best of its knowledge, in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or Applicable Securities Laws of any rule or requirement of the Exchangethose jurisdictions;
(fc) the execution, delivery and performance by Issuer’s subsidiaries (the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum“Subsidiaries”), if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business are valid and assets or the interests in the properties, business or assets referred to in the Disclosure Record, subsisting companies and the properties are in good standing under the applicable laws of the jurisdictions in which they were incorporated;
(d) the common shares of the Issuer are situatedlisted and posted for trading on the Exchange and, to the best of its knowledge, the Issuer is not in material default of any of the listing requirements of the Exchange;
(e) upon their issuance, the Units will be validly issued and outstanding fully paid and non-assessable common shares of the Issuer registered as directed by the Purchaser, free and clear of all trade restrictions (except as may be imposed by operation of the Applicable Securities Laws) and all liens, charges or encumbrances of any kind whatsoever;
(f) the Issuer and its Subsidiaries, if any, hold all licences and permits that are required for carrying on their business in the manner in which such business has been carried on and the Issuer and its Subsidiaries, if any, have the corporate power and capacity to own the assets owned by them and to carry on the business carried on by them and they are duly qualified to carry on business in all jurisdictions in which they carry on business;
(g) the Issuer’s financial statements contain no untrue statement of a material fact as at the date thereof, nor do they omit to state a material fact which, at the date thereof, was required to have been stated or was necessary to prevent a statement that was made from being false or misleading in the circumstances in which it was made;
(h) to the best of its knowledge, and except as publicly disclosed, there are no material actions, suits, judgments, investigations or proceedings of any kind whatsoever outstanding, pending or threatened against or affecting the Issuer or its Subsidiaries, if any, at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau or agency of any kind whatsoever and, to the best of the Issuer’s knowledge, there is no basis therefor;
(i) the Issuer has good and sufficient right and authority to enter into this Agreement and complete its transactions contemplated under this Agreement on the terms and conditions set forth herein; and
(j) to the best of its knowledge, the execution and delivery of this Agreement, the performance of its obligations under this Agreement and the completion of its transactions contemplated under this Agreement will not conflict with, or result in the breach of or the acceleration of any indebtedness under, or constitute default under, the constating documents of the Issuer or any indenture, mortgage, agreement, lease, licence or other instrument of any kind whatsoever to which the Issuer is a party or by which it is bound, or any judgment or order of any kind whatsoever of any Court or administrative body of any kind whatsoever by which it is bound.
Appears in 1 contract
Sources: Unit Subscription Agreement
Representations and Warranties of the Issuer. The Issuer hereby makes the following representations and warranties for the benefit of the Trustee and Holders of the Notes, on which the Sellers rely in entering into this Agreement with the Issuer and on which the Holders of the Notes rely in purchasing the Notes; such representations and warranties speak as of the Closing Date unless otherwise indicated, but shall survive any subsequent transfer, assignment, contribution or conveyance of the Assets or any part thereof:
(a) the The Issuer has been duly organized and is validly existing in good standing as a corporation duly incorporated and validly subsisting under the laws of British Columbia and has the State of Delaware, with corporate power and authority to enter into this Agreement and complete own its properties, perform its obligations under the transactions contemplated hereby Transaction Documents and to own transact the business in which it is now engaged or in which it proposes to engage; the Issuer is duly qualified to do business and lease its properties and assets and to conduct is in good standing in each State in which the nature of its business as currently conducted;requires it to be so qualified, except where failure to so qualify would not have a material adverse effect on the ability of the Issuer to perform its obligations under the Transaction Documents.
(b) The transfer to and receipt by the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares of the Sellers' interest in the treasury Loan Documents, the Receivables and the Related Security pursuant to this Agreement and the consummation of the transactions contemplated herein and in the Transaction Documents will not conflict with or result in breach of any of the terms or provisions of, or constitute (with or without notice, lapse of time or both) a default under the certificate of incorporation or by-laws of the Issuer or any material indenture, agreement, mortgage, deed of trust or other instrument to enable which the Issuer is a party or by which it to issue is bound, or result in the creation or imposition of any lien, charge or encumbrance (except for the lien created by the Indenture) upon any of the property or assets of the Issuer pursuant to the Purchaser terms of, such indenture, mortgage, deed of trust, or other agreement or instrument to which the Shares Issuer is a party or by which it is bound or to which any of the property or assets of the Issuer is subject, nor will such action result in any violation of the provisions of the certificate of incorporation or by-laws of the Issuer or any statute or any order, rule or regulation of any court or regulatory authority or other governmental agency or body having jurisdiction over the Issuer or any of its properties; and no consent, approval, authorization, order, registration or qualification of or with or other action of any court or any such regulatory authority or other governmental agency or body is required for the Warrant Shares;acquisition of the Assets hereunder.
(c) The Transaction Documents to which the common shares Issuer is a party have been duly authorized, executed and delivered by the Issuer by all necessary corporate action and constitute valid and legally binding obligations of the Company are duly listed Issuer enforceable against the Issuer in accordance with their terms, subject as to enforcement to bankruptcy, insolvency, reorganization and posted for trading on the Exchange;other similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity regardless of whether enforcement is sought in a court of equity or law.
(d) There are no order ceasing proceedings or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued investigations to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is a party pending or, to the knowledge of the Issuer, threatened, before any court, regulatory body, administrative agency or ought other tribunal or governmental instrumentality (a) asserting the invalidity of this Agreement, (b) seeking to be aware;
(e) prevent the Issuer is a reporting issuer and an exchange issuer under issuance of the SECURITIES ACT (B.C.) and is not in material default Notes or the consummation of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereundertransactions contemplated by this Agreement, or of (c) seeking any rule determination or requirement of ruling that would materially and adversely affect the Exchange;
(f) the execution, delivery and performance by the Issuer of its obligations under, or the validity or enforceability of, this Agreement and the transactions herein contemplated:Agreement.
(ie) All approvals, authorizations, consents, orders or other actions of any Person or of any court, governmental agency or body or official, required in connection with the execution and delivery of this Agreement, have been or will have been be taken or obtained on or prior to the Closing duly authorized by all necessary corporate action Date.
(f) The Issuer Address is the principal place of business and chief executive office of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedIssuer.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Trendwest Resorts Inc)
Representations and Warranties of the Issuer. 8.1 The Issuer represents and warrants to the Purchaser as of the date hereof and as of each applicable Closing Date that:
(a) the Issuer is a corporation duly incorporated organized, existing and validly subsisting in good standing under the laws of British Columbia the State of Nevada and has the corporate power and authority to enter into this Agreement conduct the business which it conducts and complete the transactions contemplated hereby and proposes to own and lease its properties and assets and to conduct its business as currently conductedconduct;
(b) the Issuer's execution, delivery, performance of this Agreement, the Securities and any other agreement executed and delivered by the Issuer shall do all acts pursuant to this Agreement or in connection herewith (collectively, the "Transaction Documents") have been duly authorized, executed and things delivered by the Issuer and are valid and binding agreement enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity. The Issuer has full corporate power and authority necessary to reserve or set aside sufficient shares in enter into and deliver the treasury of the Issuer Transaction Documents and to enable it to issue to the Purchaser the Shares and the Warrant Sharesperform its obligations thereunder;
(c) no consent, approval, authorization or order of any court, governmental agency or body or arbitrator having jurisdiction over the common shares Issuer, or any other Person is required for the execution by the Issuer of the Company are duly listed Transaction Documents and posted for trading on compliance and performance by the ExchangeIssuer of its obligations under the Transaction Documents including, without limitation, the issuance and sale of the Securities;
(d) no order ceasing except as disclosed in the Issuer Public Information, the Issuer is not in default of any material term, covenant or suspending trading condition under or in securities respect of any judgment, order, agreement or instrument to which it is a party or to which it or any of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer property or its directorsassets thereof are or may be subject, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations event has occurred and is continuing, and no circumstance exists which has not been waived, which constitutes a default in respect of any commitment, agreement, document or proceedings for such purposes are pending or threatened of other instrument to which the Issuer is a party or ought by which it is otherwise bound entitling any other party thereto to be awareaccelerate the maturity of any amount owing thereunder or which could have a material adverse effect upon the condition (financial or otherwise), property, assets, operations or business of the Issuer;
(e) the Issuer is a reporting issuer Securities have been duly authorized and, when issued in accordance with the terms of this Agreement and an exchange issuer the Securities, as applicable, and upon payment of the agreed upon consideration therefore:
(i) will be, free and clear of any security interests, liens, claims or other encumbrances, subject to restrictions upon transfer under the SECURITIES ACT 1933 Act and any applicable state securities laws;
(B.C.ii) and is will not have been issued or sold in material default violation of any preemptive or other similar rights of the requirements holders of any securities of the SECURITIES ACT Issuer; and
(B.C.iii) or assuming the Rules thereunder, or of any rule or requirement representations and warrants of the ExchangePurchaser pursuant to this Agreement are true and correct, will not result in a violation of Section 5 under the 1933 Act. The Issuer will use its reasonable commercial efforts to reserve from its duly authorized capital stock the common shares issuable pursuant to the Debentures in order to issue the Shares;
(f) the executionIssuer has not engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the 1933 Act) in connection with the offer or sale of the Secu▇▇▇▇▇▇;
(g) During the two (2) years prior to the date hereof, delivery the Issuer has filed annual, quarterly and performance current reports pursuant to US securities laws and has filed all reports required to be filed by it under such US securities laws (all of the foregoing filed prior to the date hereof or prior to the Closing Date, and all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the "SEC Documents"). As of their respective dates, such reports complied in all material respects with the requirements under US securities laws except to the extent that the Issuer filed amendments to such reports in which event the SEC Documents, as amended, complied in all material aspects with the requirements under US securities laws and the rules and regulations of the SEC promulgated thereunder. None of the SEC Documents at the time they were filed with the SEC contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(h) there is no action, suit or legal proceeding ("Action") which adversely affects or challenges the legality, validity or enforceability of any of the Loan Documents or the Securities. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Issuer under US securities laws;
(i) the Issuer is not, and is not an affiliate of, and immediately following the Closing Date will not have become, and "investment company" within the meaning of this Agreement and the transactions herein contemplatedInvestment Company Act of 1940, as amended;
(j) Neither the Issuer, nor to the knowledge of the Issuer, any agent or other Person acting on behalf of the Issuer, has, directly or indirectly:
(i) have used any funds, or will have been prior to use any proceeds from the Closing duly authorized by all necessary corporate action sale of the Issuer and by all necessary action of the shareholders thereofDebentures, for any unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity;
(ii) do not contravenemade any unlawful payment to foreign or domestic government officials or employees or to any foreign political parties or campaigns from corporate funds;
(iii) failed to disclose fully any contribution made by the Issuer (or made by any Person acting on their behalf of which the Issuer is aware) which is in violation of law; or
(iv) has violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, conflict as amended, and the rules and regulations thereunder;
(k) The operation of the Issuer are and have been conducted at all times in compliance with the money laundering statutes of applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations, guidelines, issued, administered or enforced by any applicable governmental agency (collectively, the "Money Laundering Laws") and no action, suit, or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer with respect to the Money Laundering Laws is pending, or the best knowledge of the Issuer, threatened;
(l) None of the Issuer, any of their affiliates and any Person acting in their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would require registration of any of the 1933 Act, whether through integration with prior offerings or otherwise, or cause this offering of the Securities to require approval of the shareholders of the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as for the case may be, or purposes of any resolution applicable shareholder approval provisions, including, without limitation, under the rules and regulations of its respective directors any exchange or shareholders, any trust deeds, debenture, loan agreements or automated quotation system on which any of the securities of the Issuer are listed, designated or quoted;
(m) the Issuer is not in violation of any term of or in default under any certificate of designations of any outstanding series of common or preferred stock of the Issuer, its other agreements Articles of Incorporation or undertakings Bylaws or their organizational charter or certificate of incorporation or bylaws, respectively. The Issuer is not in violation of any judgementjudgment, decree or order or any statute, ordinance, rule or regulation applicable to the Issuer, and the Issuer will not conduct its business in violation of any of the foregoing, except for possible violations which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Issuer possesses all certificates, authorizations and permits issued by which it the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, except where the failure to possess such certificates, authorizations or permits would not have, individually or in the aggregate, a Material Adverse Effect, and the Issuer has not received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit.
(n) the Issuer understands and acknowledges that the number of Shares issuable upon conversion of the Debentures will increase in certain circumstances. The Issuer further acknowledges that its obligation to issue Shares upon conversion of the Debentures in accordance with this Agreement and the Debentures is a party to or is boundabsolute and unconditional regardless of the dilutive effect that such issuance may have on the ownership interests of other shareholders of the Issuer;
(go) at the Closing, upon payment Issuer has leasehold title to all real property and good and marketable title to all personal property owned by them which is material to the business of the purchase priceIssuer, free and clear of all liens, encumbrances and defects except such as do not materially affect the Shares shall value of such property and do not interfere with the use made and proposed to be duly issued made of such property by the Issuer. Any real property and outstanding as fully paid and non-assessablefacilities held under lease by the Issuer are held by them under valid, the Warrants shall be duly granted subsisting and enforceable against leases with such exceptions as are not material and do not interfere with the Company, upon exercise use made and proposed to be made of such property and buildings by the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessableIssuer; and
(hp) except the Issuer:
(i) is in compliance with any and all Environmental Laws (as qualified by hereinafter defined);
(ii) has received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and
(iii) is in compliance with all terms and conditions of any such permit, license or approval where, in each of the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if anyforegoing clauses (i), (the "Disclosure Record"ii) and (iii), the Company is the beneficial owner of the propertiesfailure to so comply could be reasonably expected to have, business and assets individually or the interests in the propertiesaggregate, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situateda Material Adverse Effect.
Appears in 1 contract
Sources: Private Placement Subscription Agreement (Independence Energy Corp.)
Representations and Warranties of the Issuer. (a) the Issuer is a corporation duly incorporated and validly subsisting under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and;
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated;
(i) all expenditures renounced by the Issuer to the Purchaser pursuant to this Agreement will be Canadian Exploration Expense;
(j) the Shares will, at the time of issue, be Qualified Shares and flow-through shares, as defined in section 66.(15) of the INCOME TAX ACT;
(k) on the date provided as the effective date in each renunciation of Canadian Exploration Expense pursuant to this Agreement, the Issuer will have cumulative Canadian Exploration Expense, within the meaning of section 66.1(6) of the INCOME TAX ACT, in an amount sufficient to make the renunciation to the Purchaser valid;
(l) in respect of each renunciation made by the Issuer pursuant to this Agreement, the Issuer will file all Prescribed Forms and other documents necessary to ensure valid and effective renunciation with the Minister of Finance on or before the last day of the month after the month in which the renunciation is made or, where the renunciation is made pursuant to subsection 66(12.66) of the INCOME TAX ACT to be effective as at December 31 of a particular year, on or before March 31 of a subsequent year, and concurrently deliver to the Purchaser a copy of form T101 and copies 2 and 3 of form T101 Supplementary and any other documents so filed;
(m) the Issuer will comply with the provisions of the INCOME TAX ACT relating to the filing of this Agreement and any Offering Memorandum delivered to the Purchaser in connection therewith;
(n) the Issuer, and any Related Corporation which incurs Qualified Expenditures, is and will at all material times remain a "principal-business corporation" as that expression is defined in section 66(15) of the INCOME TAX ACT;
(o) if any Qualified Expenditures are to be incurred by a Related Corporation:
(i) the consideration to be given to the Issuer by such Related Corporation will be shares of the Related Corporation that are flow-through shares and the renunciation of Canadian Exploration Expense to the Issuer in respect of such Qualified Expenditures; and
(ii) the Related Corporation will, on or before the date upon which any renunciation of Canadian Exploration Expense is made by the Issuer pursuant to this Agreement in respect of the Qualified Expenditures so incurred by the Related Corporation, renounce to the Issuer pursuant to subsection 66(12.6) of the INCOME TAX ACT in Prescribed Form, with effective date on or before the effective date of the renunciation so made by the Issuer, Canadian Exploration Expense in an amount not less than the amount so renounced by the Issuer not subject to any reduction under subsection 66(12.73) of the INCOME TAX ACT; and
(p) the Issuer will not, other than as required by this Agreement, renounce any Canadian Exploration Expense or otherwise do anything that will reduce its cumulative Canadian Exploration Expense until it has renounced to the Purchaser the full amount of Qualified Expenditures required to be so renounced pursuant to this Agreement.
Appears in 1 contract
Representations and Warranties of the Issuer. 3.1 Except as set forth in the Disclosure Schedules attached hereto (collectively, the “Disclosure Schedules”), which Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section of the Disclosure Schedules, the Issuer hereby represents and warrants to the Investor that the following are true and complete as of the date of this Agreement, the Closing (or, if made as of a specified date, as of such date) and will be true and complete as of the Closing Date as though made on the Closing Date:
(a) the Subsidiary set out in the Disclosure Schedule is the sole direct and indirect Subsidiary of the Issuer. Except as disclosed in the Disclosure Schedule, the Issuer is a corporation owns, directly or indirectly, all of the capital stock or other equity interests of the Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital stock of the Subsidiary are validly issued and are fully paid and non-assessable;
(b) the Issuer and the Subsidiary are each duly incorporated or otherwise organized, validly existing and validly subsisting in good standing under the laws of British Columbia the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Issuer nor the Subsidiary is in violation nor default of any of the provisions of its respective organizational or charter documents. The Issuer and the Subsidiary are each duly qualified to conduct business and are each in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by each makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Issuer and the Subsidiary, taken as a whole, or (iii) a material adverse effect on the Issuer’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Action has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification;
(c) the Issuer has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and complete each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of each of this Agreement and the other Transaction Documents by the Issuer and the consummation by it of the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) thereby have been duly authorized by all necessary action on the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury part of the Issuer and no further action is required by the Issuer, the Board of Directors or the Issuer’s stockholders in connection herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction Document to enable which it to issue is a party has been (or upon delivery will have been) duly executed by the Issuer and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the Purchaser the Shares availability of specific performance, injunctive relief or other equitable remedies and the Warrant Shares;
(ciii) the common shares of the Company are duly listed insofar as indemnification and posted for trading on the Exchangecontribution provisions may be limited by applicable law;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the other Transaction Documents to which it is a party, the issuance and sale of the Shares and the consummation by it of the transactions herein contemplated:contemplated hereby and thereby do not and will not: (i) conflict with or violate any provision of the Issuer’s or the Subsidiary’s organizational or charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Issuer or the Subsidiary, require any consent, approval or notice under, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Issuer or the Subsidiary debt or otherwise), commitment, agreement, obligation, understanding, arrangement or restriction of any kind to which the Issuer or the Subsidiary is a party or by which any property or asset of the Issuer or the Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Issuer or the Subsidiary is subject, or by which any property or asset of the Issuer or the Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect;
(e) the Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection with the execution, delivery and performance by the Issuer of the Transaction Documents, other than: (i) a press release, Material Change Report and corresponding Form 6-K to announce the Closing in accordance with Applicable Legislation and the Exchange Act, (ii) the notice and/or application(s) to the Exchange for the issuance and sale of the Shares and the listing of the Shares for trading thereon in the time and manner required thereby and (iii) the filing of a Form 45-106F1 with the British Columbia Securities Commission within 10 days of the Closing Date (collectively, the “Required Approvals”);
(f) the Shares are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Issuer other than restrictions on transfer as set out under the heading “Terms”. The Issuer has reserved from its duly authorized capital stock the number of Shares issuable pursuant to this Agreement;
(g) The number of issued and outstanding Shares as at the date hereof is as set forth on the Disclosure Schedule, which also includes the number of Shares owned beneficially, and of record, by Affiliates of the Issuer as of the date hereof. Except as set forth in the Disclosure Schedule, the Issuer has not issued any securities since its most recent annual MD&A and interim financial statements filed on June 28, 2011. Except as disclosed herein, no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the Offering except for applicable finder’s fees payable as disclosed herein. Except as a result of the Offering and as set forth in the Public Record or the Disclosure Schedule, there are no outstanding options, warrants, rights to subscribe to, calls or commitments whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire any Shares, or contracts, commitments, understandings or arrangements by which the Issuer or the Subsidiary is or may become bound to issue additional Shares or Share Equivalents. Except for the payment of a finder’s fee as contemplated herein, the issuance and sale of the Shares will not obligate the Issuer to issue Shares or other securities to any Person (other than the Investor) and will not result in a right of any holder of Issuer securities to adjust the exercise, conversion, exchange or reset price under any of such securities. All of the outstanding Shares are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all Applicable Legislation, and none of such outstanding Shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Shares. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Shares to which the Issuer is a party or, to the knowledge of the Issuer, between or among any of the Issuer’s stockholders;
(h) the Issuer has filed all reports, schedules, forms, statements and other documents required to be filed by the Applicable Legislation for the two years preceding the date hereof and have filed such reports on a timely basis. As of their respective dates, the reports complied in all material respects with the requirements of the Applicable Legislation and none of the reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading . The financial statements of the Issuer included in the reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Applicable Legislation with respect thereto as in effect at the time of filing and fairly present in all material respects the financial position of the Issuer on a consolidated basis as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments;
(i) have the Issuer is not aware of any legislation, or proposed legislation published by a legislative body, which it anticipates will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereofMaterial Adverse Effect;
(iij) do not contravenethe Shares are listed and posted for trading on the Exchange and no order ceasing or suspending trading of the Shares has been issued and no proceedings for such purpose are pending or, conflict with or cause to the Issuer to be in breach or default best of its memorandum or articlesthe Issuer’s knowledge, information and belief, threatened;
(k) there is no claim, action, suit, inquiry, notice of violation, proceeding, arbitration, appeal, criminal prosecution, audit, injunction, preliminary injunction, or articles investigation pending or, to the knowledge of the Issuer, threatened against or by-lawsaffecting the Issuer, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements Subsidiary or any of its other agreements their respective properties before or undertakings by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Shares or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Issuer nor the Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Issuer, there is not pending or contemplated, any investigation by the Commissions involving the Issuer or any judgementcurrent or former director or officer of the Issuer;
(l) neither the Issuer nor the Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived that, decree with notice or order lapse of time or both, would result in a default by the Issuer or the Subsidiary under), nor has the Issuer or the Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to or by which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree, or order of any court, arbitrator or other governmental authority or (iii) neither the Issuer nor the Subsidiary has been notified by any Governmental Authority of any violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety and employment and labor matters, except in each case as could not have or is boundreasonably be expected to result in a Material Adverse Effect;
(gm) at with respect to all mineral concessions under the Closing, upon payment laws of the purchase priceRepublic of Chile that are material to the business of the Issuer and the Subsidiary, the Shares shall be duly issued Issuer and outstanding as fully paid and non-assessablethe Subsidiary are either the registered owners of such concessions, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests such concessions are held in the properties, business or assets referred name of parties with whom the Issuer and Subsidiary have agreements to obtain such rights; in the Disclosure Record, and the properties each case such concessions are in good standing under and free and clear of all Liens, except for (i) Liens as do not materially affect the applicable laws value of such concessions and do not materially interfere with the use made and proposed to be made of such property by the Issuer and the Subsidiary and (ii) Liens for the payment of federal, provincial, state or other taxes or charges, the payment of which is neither delinquent nor subject to penalties;
(n) neither the Issuer nor the Subsidiary has been notified by any Governmental Authority of any violation of any Environmental Law, nor to the knowledge of the jurisdictions Issuer, do any facts or circumstances exist that are reasonably likely to give rise to any such liability, affecting any of the properties owned or leased by the Issuer or the Subsidiary that could reasonably be expected to have a Material Adverse Effect. To the knowledge of the Issuer, neither the Issuer nor the Subsidiary has violated any Environmental Law applicable to it now or previously in effect, other than such violations or infringements that could reasonably be expected to have a Material Adverse Effect;
(o) all exploration activities conducted by the Issuer or the Subsidiary have been conducted in all material respects in accordance with good exploration practices;
(p) the issuer holds no patent applications, registered copyrights, registered trademarks and the Issuer does not have any third party licenses valued at $5,000 or more on an individual basis;
(q) the Issuer is not aware of any facts or circumstances which they would prevent or impede the Issuer and the Subsidiaries from complying with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, except that, as of the Closing Date, the Issuer’s and the Subsidiary’s internal controls over financial reporting and disclosure controls and procedures were not effective, as the Issuer and the Subsidiary each had material weaknesses in their internal controls over financial reporting and disclosure controls and procedures including: (i) due to the Issuer’s limited number of staff, it is not feasible to achieve complete segregation of incompatible duties; (ii) due to the Issuer’s limited number of staff, it does not have a sufficient number of finance personnel with all the technical accounting knowledge to address all complex and non-routine accounting transactions that may arise; and (iii) the Issuer does not have a whistle blower policy in place;
(r) except for a payment to Flex International Ltd. as a finder’s fee with respect to the Offering, no brokerage or finder’s fees or commissions are situated.or will be payable by the Issuer or the Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions c
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Initial Purchasers that as of the date hereof and as of the Closing Date:
(a) (A) At 12:30 p.m. on February 20, 2013, the Issuer is time of the first contract of sale by the Initial Purchasers for any notes (the “Time of Sale”) and as of its date, the Additional Disclosure Documents and the Preliminary Offering Memorandum did not include any untrue statement of a corporation duly incorporated material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and validly subsisting (B) the Offering Memorandum, as of its date and as of the Closing Date, will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the laws of British Columbia and has foregoing does not apply to information contained in or omitted from the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business Initial Purchaser Information (as currently conducted;defined in Section 13).
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares The statements in the treasury Offering Memorandum under the captions “Description of the Issuer Management Agreement,” “Description of the Contribution and Sale Agreement,” “Description of the Series 2013-1 Notes and the Series 2013-1 Supplement”, “Description of the Indenture” and “Description of the Transition Agent Agreement,” insofar as they purport to enable it to issue constitute a summary of the principal terms of the Notes and the Series 2013-1 Transaction Documents conform in all material respects to the Purchaser terms of the Shares Notes and the Warrant Shares;Series 2013-1 Transaction Documents.
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the The Issuer is a reporting issuer limited liability company duly organized, validly existing and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions Delaware. The Issuer is duly qualified to do business in each jurisdiction in which they are situatedits ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not reasonably be expected to have a material adverse effect upon the Issuer or the ability of the Issuer to perform any of its obligations under any Series 2013-1 Transaction Document to which it is a party.
(d) The Issuer has all necessary limited liability company power and authority to execute and deliver the Notes. Each Note has been duly and validly authorized by the Issuer and, from and after the date on which such Note is executed by the Issuer and authenticated by the Indenture Trustee in accordance with the terms of the Indenture and the Series 2013-1 Supplement and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, shall be validly issued and outstanding and shall constitute a valid and legally binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether enforceability is considered in a proceeding in equity or at law.
(e) The Issuer has all necessary limited liability company power and authority to execute and deliver this Agreement and the other Series 2013-1 Transaction Documents to which it is a party; and the Issuer is and will continue to be authorized to perform its obligations under the Indenture, this Agreement and the other Series 2013-1
Appears in 1 contract
Sources: Note Purchase Agreement (TAL International Group, Inc.)
Representations and Warranties of the Issuer. By accepting this offer, the Issuer represents and warrants to the Subscriber that, as of the Closing Date:
(a) the Issuer is a corporation has been duly incorporated and is validly subsisting and in good standing under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedjurisdiction of incorporation, continuation or amalgamation;
(b) the Issuer shall do all acts is a reporting issuer under the securities laws of British Columbia and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant SharesAlberta;
(c) the common shares of the Company Issuer are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities the Securities has been issued and remains outstanding against the Issuer and, to the Issuer or its directorsbest of the Issuer's knowledge, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awarehave been threatened;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the consummation of the transactions contemplated herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action on the part of the Issuer and and, subject to acceptance by all necessary action the Issuer, this Agreement constitutes a valid obligation of the shareholders thereofIssuer legally binding upon it and enforceable in accordance with its terms subject to such limitations and prohibitions in applicable laws relating to bankruptcy, insolvency, liquidation, moratorium, reorganization, arrangement or winding-up and other laws, rules and regulations of general application affecting the rights, powers, privileges, remedies and interests of creditors generally;
(iif) do not contravenethe sale and issuance of the Securities, conflict with and the delivery of the certificates representing them, will have been approved by all requisite corporate action on or cause before the Issuer to be in breach or default of its memorandum or articlesClosing Date and, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) upon issue and delivery at the Closing, upon payment of the purchase priceclosing, the Shares shall will be duly validly issued and outstanding as fully paid and non-assessable, assessable and the Warrants shall will be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly validly issued and outstanding the certificates representing the Securities will be validly delivered;
(g) the Issuer's "documents" and "core documents" (as fully paid and non-assessable; andsuch terms are defined in the
(h) except there is no "material fact" or "material change" (as qualified by such terms are defined in the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if anySecurities Act, (British Columbia)) related to the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in Issuer which they are situatedhas not been generally disclosed.
Appears in 1 contract
Sources: Unit Offering Subscription Agreement
Representations and Warranties of the Issuer. 4.1 The Issuer represents and warrants that, as of the date given above and at the Closing Date:
(a) the Issuer is a valid and subsisting corporation duly incorporated and validly subsisting in good standing under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedjurisdiction of incorporation;
(b) the Issuer shall do all acts is duly registered and things necessary licensed to carry on business in the jurisdictions in which it carries on business or owns property where so required by the laws of that jurisdiction;
(c) the Issuer will reserve or set aside sufficient shares in the its treasury of the Issuer to enable it to issue to the Purchaser the Shares Shares, and the Warrant Shares;
(c) the common all such shares of the Company are will upon issuance be duly listed and posted for trading on the Exchangevalidly issued as fully paid and non- assessable;
(d) the Issuer has complied and will comply fully with the requirements of all applicable corporate and securities laws and administrative policies and directions, including, without limitation, the Act and State of Nevada company law in relation to all matters relating to the Private Placement;
(e) the issue and sale of the Securities by the Issuer does not and will not conflict with, and does not and will not result in a breach of, any of the terms of its incorporating documents or any agreement or instrument to which the Issuer is a party;
(f) this Agreement has been or will be by the Closing Date, duly authorized by all necessary corporate action on the part of the Issuer, and the Issuer has full corporate power and authority to undertake the Private Placement;
(g) the Issuer is a “reporting issuer” under the Act and is not in default of any of the requirements of the Act;
(h) no order ceasing ceasing, halting or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to and is outstanding against the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened threatened;
(i) no person, firm or corporation acting or purporting to act at the request of which the Issuer is entitled to any brokerage, agency or ought to be awarefinder’s fee in connection with the transactions described herein;
(ej) the Issuer is a reporting issuer and an exchange issuer under has not advertised the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the ExchangeShares for sale;
(fk) the execution, delivery and performance by following disclosure documents of the Issuer of this Agreement and the transactions herein contemplatedIssuer:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action audited consolidated financial statements of the Issuer and by all necessary action in respect of the shareholders thereofits most recently completed financial year;
(ii) do not contravene, conflict with or cause the unaudited interim consolidated financial statements of the Issuer as at and for the quarters completed subsequent to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessableIssuer’s most recently completed financial year; and
(hiii) except as qualified by the disclosure in all prospectuses, filing statements and press releases each material change report filed with the Commissions Commission since its most recently completed financial year, were, at their respective dates of issue or publication, true and correct in all material respects and were prepared, to the Exchange or best of its knowledge, in accordance with the Offering Memorandumlaws, if any, regulations and rules applicable thereto; and
(l) the "Disclosure Record"), the Company is the beneficial owner warranties and representations in this section are true and correct and will remain so as of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedClosing Date.
Appears in 1 contract
Representations and Warranties of the Issuer. (a) Each Issuer hereby represents and warrants to each of the other parties hereto and for the benefit of the Indenture Trustee, on behalf of the Noteholders as of the related Series Closing Date on or after the date on which such Issuer becomes a party to this Agreement:
(i) Such Issuer is a corporation limited liability company duly incorporated organized, validly existing, and validly subsisting in good standing under the laws of British Columbia the State of Delaware and is in compliance with the laws of each state (within the United States of America) in which any applicable Property is located to the extent necessary to its performance under this Agreement;
(ii) The execution and delivery of this Agreement by such Issuer, and the performance and compliance with the terms of this Agreement by such Issuer, do not violate its organizational documents or constitute an event that, with notice or lapse of time, or both, would constitute a default under, or result in the breach of, any material agreement or other instrument to which it is a party or by which it is bound;
(iii) Such Issuer has the corporate limited liability company power and authority to enter into this Agreement and complete the consummate all transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunderperformed by it contemplated by this Agreement, or of any rule or requirement of the Exchange;
(f) has duly authorized the execution, delivery and performance by the Issuer it of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing any applicable Joinder Agreement, and has duly authorized by all necessary corporate action of the Issuer executed and by all necessary action of the shareholders thereofdelivered this Agreement and any applicable Joinder Agreement;
(iiiv) do not contraveneThis Agreement, conflict assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, receivership, moratorium and other similar laws affecting the enforcement of creditors’ rights generally and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is boundat law;
(gv) at Such Issuer is not in violation of, and its execution and delivery of, this Agreement or any applicable Joinder Agreement and its performance and compliance with the Closingterms of this Agreement will not constitute a violation of, upon payment any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation is likely to affect materially and adversely either the ability of such Issuer to perform its obligations under this Agreement or the financial condition of such Issuer;
(vi) No litigation is pending or, to such Issuer’s knowledge, threatened against such Issuer that is reasonably likely to be determined adversely to such Issuer and, if determined adversely to such Issuer, would prohibit such Issuer from entering into this Agreement or that, in such Issuer’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of such Issuer to perform its obligations under this Agreement or the financial condition of such Issuer;
(vii) No consent, approval, authorization or order under any court or governmental agency or body is required for the execution, delivery and performance by such Issuer of, or the compliance by such Issuer with, this Agreement or the consummation of the purchase pricetransactions of such Issuer contemplated by this Agreement, except for any consent, approval, authorization or order that has been obtained or that if not obtained would not have a material and adverse affect on the Shares shall be duly issued ability of such Issuer to perform its obligations hereunder;
(viii) Each officer and outstanding as fully paid employee of such Issuer that has responsibilities concerning the management, servicing and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise administration of the Warrants applicable Properties, Leases and payment of Loans is covered by errors and omissions insurance and the exercise price therefore, fidelity bond as and to the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessableextent required by Section 3.06; and
(hix) except To such Issuer’s knowledge, each of the Properties owned by such Issuer or securing a Loan owned by such Issuer is a commercial property and is operated for commercial purposes. The representations and warranties of each Issuer set forth in this Section 2.02 shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons to whom and for whose benefit they were made for so long as qualified such Issuer remains in existence. Upon discovery by any party hereto of any breach of any of the disclosure in all prospectuses, filing statements foregoing representations and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record")warranties, the Company is party discovering such breach shall give prompt written notice to the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedother parties.
Appears in 1 contract
Sources: Property Management and Servicing Agreement (Essential Properties Realty Trust, Inc.)
Representations and Warranties of the Issuer. The Issuer represents and warrants to, and agrees with, the Holders that:
(a) The Issuer is duly incorporated, validly existing and in good standing under the laws of its state of incorporation, and has the power, authority and capacity to carry on its business as now conducted and as proposed to be conducted, to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby
(b) This Agreement has been duly authorized, executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally, and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity (the “Enforceability Exceptions”). This Agreement and consummation of the Exchange will not (a) violate or conflict with the certificate of incorporation, bylaws or other organizational documents of the Issuer, (b) require any approval or consent of any person under, or result in a breach of or a default under, any material agreement or instrument to which the Issuer is a corporation duly incorporated and validly subsisting under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) party or by which the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares any of its assets are bound, (c) result in the treasury creation or imposition of any lien, charge or encumbrance upon any of the Issuer to enable it to issue property or assets of the Issuer, (d) result in a violation of (or require any consents or approvals under) any laws or regulations, or any governmental or judicial decrees, injunctions or orders applicable to the Purchaser the Shares and the Warrant Shares;Issuer.
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities The Stock Consideration has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance duly authorized by the Issuer of this Agreement and, when issued and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized delivered by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravenepursuant to this Agreement, conflict with or cause the Issuer to will be in breach or default of its memorandum or articlesvalidly issued, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable. The Stock Consideration will not, at the Closing, be subject to any preemptive or participation rights, rights of first refusal or other similar rights and will be free from all taxes, liens and charges with respect to the issue thereof with the Holders being entitled to all rights accorded to a holder of the Common Stock.
(d) Assuming the accuracy of the Holder’s representations and warranties hereunder, the Warrants shall Stock Consideration (a) will be duly granted and enforceable against issued in the Company, upon exercise Exchange exempt from the registration requirements of the Warrants and payment Securities Act pursuant to Section 3(a)(9) of the exercise price thereforeSecurities Act, (b) will, at the Closing, be free of any restrictive legend or other restrictions on resale by the Holders and will be issued in book-entry form and will be represented by permanent global certificates deposited with, or on behalf of, The Depositary Trust Company represented by an unrestricted CUSIP, and (c) shall not be issued in violation of any applicable state and federal laws concerning their issuance. For the purposes of Rule 144 of the Securities Act, the Warrant Shares shall Issuer acknowledges that the holding period of the Stock Consideration may be duly tacked onto the holding period of the Existing Holder Bonds. The Issuer agrees not to take any position contrary to this clause (d).
(e) The authorized, issued and outstanding shares of capital stock of the Issuer are as fully paid and nonset forth in the Issuer’s Quarterly Report on Form 10-assessable; and
Q for the quarter ended September 30, 2018 (h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandumfor subsequent issuances, if any, (the "Disclosure Record")pursuant to this Agreement, the Company is the beneficial owner of the propertiespursuant to reservations, business and assets agreements, employee benefit or the interests in the properties, business or assets equity incentive plans referred to in the Disclosure RecordForm 10-Q or pursuant to the exercise of convertible securities, warrants or options referred to in the Form 10-Q).
(f) When issued in the Exchange, the Stock Consideration shall be listed on the NYSE American LLC.
(g) The Issuer and its subsidiaries, on a consolidated basis, are not as of the date hereof, and after giving effect to the properties are in good standing under transactions contemplated hereby to occur at the applicable laws Closing, will not be Insolvent. For purposes of this paragraph, “Insolvent” means, (i) with respect to the Issuer and its subsidiaries, on a consolidated basis, (A) the sum of the jurisdictions in which Issuer and such subsidiaries’ debts is greater than all such entities’ property, at a fair valuation, (B) the Issuer and its subsidiaries are unable to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured or (C) the Issuer and its subsidiaries intend to incur or believe that they are situatedwill incur debts that would be beyond their ability to pay as such debts mature.
Appears in 1 contract
Representations and Warranties of the Issuer. By accepting this offer, the Issuer represents and warrants to the Subscriber that, as of the date hereof and as of the Closing Date:
(a) the Issuer is a corporation has been duly incorporated and is validly subsisting and in good standing under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedjurisdiction of incorporation, continuation or amalgamation;
(b) the Issuer shall do all acts is and things necessary will be at the Closing Date a reporting issuer (within the meaning of applicable securities laws) in British Columbia, Alberta and Ontario (collectively, the “Canadian Reporting Jurisdictions”) and is subject to reserve or set aside sufficient shares the periodic reporting requirements of the United States Securities Exchange Act of 1934, as amended (the U.S. Exchange Act”), in the treasury United States (together with the Canadian Reporting Jurisdictions, the “Reporting Jurisdictions”). This Issuer has timely filed all notices, reports and other documents required to be filed by each of the Issuer to enable it to issue to Reporting Jurisdictions and is not in default in any material respect of any of the Purchaser requirements of the Shares and applicable securities laws of any of the Warrant SharesReporting Jurisdictions;
(c) the common shares of the Company Issuer are duly listed and posted for trading on the ExchangeTSX and the NYSE and the Securities to be issued in the Private Placement have been conditionally approved for listing on the TSX and the NYSE (or will have been approved for listing on each such stock exchange on or before the Closing Date), subject to official notice of the issuance together with the filing of the documents required to be filed under the terms of such approvals for listing;
(d) the authorized capital of the Issuer consists of an unlimited number of Common shares without par value and an unlimited number of Preferred shares, issuable in series, of which 50,275,126 Common Shares and no Preferred shares were issued and outstanding as of the close of business on October 7, 2015. All of the issued and outstanding Common shares are fully paid and non-assessable and have been duly and validly authorized and issued, in compliance with applicable laws;
(e) none of the documents previously published or filed by the Issuer with the securities commissions in the Reporting Jurisdictions (the “Continuous Disclosure Materials”) contain, as of the date of the statements in the Continuous Disclosure Materials, an untrue statement of material fact or an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in the light of the circumstances in which it was made. All Continuous Disclosure Materials were prepared in accordance with and comply in all material respects with applicable securities laws of the Reporting Jurisdictions and the Issuer is not in material default of its filings under, nor has it failed to file or publish any document required to be filed or published under applicable securities laws of the Reporting Jurisdictions;
(f) all of the outstanding shares of the Issuer’s subsidiaries are legally and beneficially owned by the Issuer, free and clear of all liens, charges and encumbrances of any kind whatsoever;
(g) each of the Issuer and its subsidiaries has the requisite corporate power and capacity to own the assets owned by it and to carry on the business carried on by it, and each of the Issuer and its subsidiaries holds all material licenses and permits that are required for carrying on its business in the manner in which such business has been carried on and is duly qualified to carry on business in all jurisdictions in which it carries on business;
(h) no advertisement of the securities offered hereby or of any of the securities of the Issuer has been made or is being made in relation to or in conjunction with the distribution pursuant to the Offering;
(i) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities the Securities has been issued and remains outstanding against the Issuer and, to the Issuer or its directorsbest of the Issuer’s knowledge, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awarehave been threatened;
(ej) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the consummation of the transactions contemplated herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action on the part of the Issuer and, upon acceptance by the Issuer, this Agreement will constitute a valid obligation of the Issuer legally binding upon it and enforceable in accordance with its terms subject to such limitations and prohibitions in applicable laws relating to bankruptcy, insolvency, liquidation, moratorium, reorganization, arrangement or winding-up and other laws, rules and regulations of general application affecting the rights, powers, privileges, remedies and interests of creditors generally; and
(k) the sale and issuance of the Securities, and the delivery of the certificates representing them, will have been approved by all necessary requisite corporate action of on or before the shareholders thereof;
(ii) do not contraveneClosing Date and, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) upon issue and delivery at the Closing, upon payment of the purchase priceclosing, the Shares shall Securities will be duly issued and outstanding as validly issued, fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated.
Appears in 1 contract
Representations and Warranties of the Issuer. 5.1 The Issuer represents and warrants to the Purchaser, and acknowledges that the Purchaser is relying on these representations and warranties in entering into this Agreement, that:
(a) the Issuer is a corporation valid and subsisting company, duly incorporated and validly subsisting in good standing under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedjurisdiction in which it was incorporated, continued or amalgamated;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer in British Columbia and an exchange issuer under Alberta, and the SECURITIES ACT (B.C.) and Issuer is not not, to the best of its knowledge, in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or Applicable Securities Laws of any rule or requirement of the Exchangethose jurisdictions;
(fc) the execution, delivery and performance by Issuer’s subsidiaries (the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum“Subsidiaries”), if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business are valid and assets or the interests in the properties, business or assets referred to in the Disclosure Record, subsisting companies and the properties are in good standing under the applicable laws of the jurisdictions in which they were incorporated;
(d) the common shares of the Issuer are situatedlisted and posted for trading on the Exchange and, to the best of its knowledge, the Issuer is not in material default of any of the listing requirements of the Exchange;
(e) upon their issuance, the Shares comprising the Warrants and the Shares underlying the Warrants will be validly issued and outstanding fully paid and non-assessable common shares of the Issuer registered as directed by the Purchaser, free and clear of all trade restrictions (except as may be imposed by operation of the Applicable Securities Laws) and all liens, charges or encumbrances of any kind whatsoever;
(f) the Issuer and its Subsidiaries, if any, hold all licences and permits that are required for carrying on their business in the manner in which such business has been carried on and the Issuer and its Subsidiaries, if any, have the corporate power and capacity to own the assets owned by them and to carry on the business carried on by them and they are duly qualified to carry on business in all jurisdictions in which they carry on business;
(g) the Issuer’s financial statements contain no untrue statement of a material fact as at the date thereof, nor do they omit to state a material fact which, at the date thereof, was required to have been stated or was necessary to prevent a statement that was made from being false or misleading in the circumstances in which it was made;
(h) to the best of its knowledge, and except as publicly disclosed, there are no material actions, suits, judgments, investigations or proceedings of any kind whatsoever outstanding, pending or threatened against or affecting the Issuer or its Subsidiaries, if any, at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau or agency of any kind whatsoever and, to the best of the Issuer’s knowledge, there is no basis therefor;
(i) the Issuer has good and sufficient right and authority to enter into this Agreement and complete its transactions contemplated under this Agreement on the terms and conditions set forth herein; and
(j) to the best of its knowledge, the execution and delivery of this Agreement, the performance of its obligations under this Agreement and the completion of its transactions contemplated under this Agreement will not conflict with, or result in the breach of or the acceleration of any indebtedness under, or constitute default under, the constating documents of the Issuer or any indenture, mortgage, agreement, lease, licence or other instrument of any kind whatsoever to which the Issuer is a party or by which it is bound, or any judgment or order of any kind whatsoever of any Court or administrative body of any kind whatsoever by which it is bound.
Appears in 1 contract
Sources: Warrant Subscription Agreement
Representations and Warranties of the Issuer. 11.1 The Issuer represents and warrants and, where specified, covenants to the Underwriters that:
(a) the Issuer is a corporation duly incorporated and organized and validly subsisting under the laws of British Columbia its jurisdiction of incorporation, and has the is up to date with respect to all of its corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedfilings under those laws;
(b) the Issuer shall do has all acts necessary corporate power, authority and things necessary capacity to reserve own or set aside sufficient shares lease its property and assets and to carry on its business as presently conducted and as proposed to be conducted as will be contemplated in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant SharesFinal Prospectus;
(c) the common shares of the Company Issuer’s directors are duly listed and posted for trading on the Exchangeappointed;
(d) no order ceasing the Issuer is a reporting issuer, or suspending trading the equivalent thereof, under the Securities Laws of all provinces and territories of Canada and is not currently in securities default in any material respect of any requirement of the Securities Laws of any of the Qualifying Jurisdictions or included on a list of defaulting reporting issuers maintained by any of the securities commissions or similar regulatory authorities in any of the Qualifying Jurisdictions. In particular, without limiting the generality of the foregoing, the Issuer nor prohibiting is in compliance at the sale date hereof with its obligations to make timely disclosure of all material changes relating to it and no such securities disclosure has been issued made on a confidential basis and there is no material change relating to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters has occurred and no investigations or proceedings for such purposes are pending or threatened of with respect to which the Issuer is or ought to be awarerequisite material change report has not been filed other than a material change report in respect of the Offering. None of the Issuer’s Public Disclosure Documents contain a misrepresentation at the date of filing thereof that has not been corrected since filing;
(e) the Issuer is covenants to use its best efforts to maintain its status as a reporting issuer in the Qualifying Jurisdictions and an exchange issuer under the SECURITIES ACT (B.C.) and is to maintain such status, not in material default of any of default, from the requirements of date hereof up to and including the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the ExchangeClosing Date;
(f) the executionIssuer is eligible in accordance with the provisions of NI 44-101 to file a short form prospectus in each of the Qualifying Jurisdictions and the OSC is the principal regulator for the Issuer under the Passport System for purposes of the filing of the Preliminary Prospectus and the Final Prospectus;
(g) any further documents incorporated by reference in the Offering Documents, when such documents are filed with the Securities Commissions, will conform in all material respects to the requirements of the Securities Laws, as applicable;
(h) as of the date of this Agreement and as of the Closing Time, each of the Offering Documents, does not and will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements in or omissions from the Offering Documents made in reliance upon and in conformity with information furnished in writing to the Issuer by or on behalf of any Underwriter specifically for inclusion therein;
(i) except as disclosed in the Preliminary Prospectus or the Final Prospectus and except as provided in the Undertaking Regarding Registration Rights dated April 18, 2008 in favour of SNCF Participations SA, no person has any right to demand filing of a prospectus or registration statement or similar document by the Issuer in any jurisdiction or registration of any security of the Issuer in any jurisdiction, and no person will have any such right immediately following the Closing;
(j) as of the Closing Time the authorized capital of the Issuer consists of an unlimited number of Shares and preferred shares;
(k) as of the Closing Time, except for the Debentures, the 6.75% convertible subordinated unsecured debentures due June 30, 2015, and the 6.25% convertible subordinated unsecured debentures due June 30, 2018 no securities exchangeable or convertible into securities of the Issuer are issued and outstanding;
(l) the attributes of the Debentures and the Underlying Shares conform in all material respects with their descriptions in the Preliminary Prospectus and the Final Prospectus;
(m) upon issue of the Debentures by the Issuer in accordance with this Agreement the Debentures will be duly and validly created, authorized and issued, and the Underlying Shares will be duly and validly created, authorized and issued as fully-paid and non-assessable common shares of the Issuer on the exercise of the conversion privilege by a holder of Debentures;
(n) this Agreement, the Trust Indenture and the Debentures will be, at the Closing Time, duly executed and delivered by or on behalf of the Issuer and constitute or will constitute, when so executed and delivered, legal, valid and binding obligations of the Issuer, enforceable in accordance with their respective terms, provided that enforceability may be limited by bankruptcy, insolvency and other similar laws affecting creditors’ rights generally, that specific performance, injunctive relief and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution may be limited by applicable law;
(o) the execution and delivery by the Issuer of this Agreement, the Trust Indenture and the Debentures, and the performance by the Issuer of this Agreement its obligations thereunder, and the transactions herein contemplated:
(i) have or will consummation by the Issuer of the Offering, and the issuance, sale and delivery of the Debentures, have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-lawsor, as the case may be, will be at the Closing Time duly authorized;
(p) except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been, or will as of the Closing Time be, obtained, no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, the Trust Indenture and the Debentures, or the performance by the Issuer of its obligations thereunder, and the consummation by the Issuer of the Offering, including the creation, issue and sale of the Debentures (and Underlying Shares);
(q) neither the execution and the delivery of this Agreement, the Trust Indenture, the Debentures and any document executed by the Issuer in connection therewith, nor the consummation of the Offering and thereby, will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any resolution Governmental Entity to which either is subject, or any provision of the Issuer’s organizational documents, (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any notice, except as required pursuant to the Credit Facility, the Senior Secured Note Purchase Agreement and the SNCF Subscription Agreement, under any agreement, contract, lease, license, instrument or other arrangement to which the Issuer is a party or by which either is bound or to which any of their respective assets is subject, which in the case of item (ii) would have a Material Adverse Effect;
(r) the Issuer is not a non-resident of Canada within the meaning of the Income Tax Act (Canada);
(s) each of the Preliminary Prospectus and the Final Prospectus, in both the French and English languages, and the execution and filing of each of the Preliminary Prospectus and the Final Prospectus, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary action by the Issuer, and each of the Preliminary Prospectus and the Final Prospectus, in both the French and English languages, have been duly executed by and on behalf of the Issuer;
(t) except as disclosed in the Preliminary Prospectus or the Final Prospectus or by the Issuer to the Underwriters or their counsel by email correspondence on or before the date hereof, since September 30, 2013, the Business has been carried on in the Ordinary Course, and neither the Issuer nor any of its respective directors subsidiaries has:
(i) incurred or shareholdersassumed or paid or discharged any material obligation or liability (direct or contingent), except for current obligations and liabilities incurred in the Ordinary Course;
(ii) loaned or agreed to lend money to any Person including a shareholder or partner, except loans to an affiliate;
(iii) sold or otherwise disposed of any fixed or capital assets (other than dispositions having a fair market value, in the case of any single sale or disposition, less than $1,000,000);
(iv) made, or made any commitments to make, any trust deedscapital expenditures (other than capital expenditures, debenturein the case of any single capital expenditure, loan agreements less than $1,000,000) except in the Ordinary Course and except for the purchase of new buses by the Issuer;
(v) suffered an extraordinary loss, or waived any rights of material value, or entered into any material commitment or transaction not in the Ordinary Course;
(vi) made any change in its accounting policies; or
(vii) authorized or agreed or otherwise become committed to do any of the foregoing;
(u) except as disclosed in the Preliminary Prospectus or the Final Prospectus, subsequent to September 30, 2013 there has not been any Material Adverse Change in respect of the Issuer;
(v) as at the Closing Time, the TSX will have conditionally approved the listing of the Debentures and the Underlying Shares, and NASDAQ will have conditionally approved the listing of the Underlying Shares subject in each case to satisfaction by the Issuer of the Standard Listing Conditions;
(w) as at the Closing Time, the form and terms of the certificates for the Debentures will be approved and adopted by the directors of the Issuer and will comply with the terms and conditions of the Trust Indenture and the requirements of the TSX;
(x) the Issuer and each of its subsidiaries has paid or will pay or has made or will make arrangements for the payment of all Governmental Charges in respect of its Business, which are capable of forming or resulting in a Lien, other than a Permitted Lien, on the assets of its business. There are no proceedings either in progress, pending or, to the Actual Knowledge of the Issuer, threatened in connection with any material Governmental Charges in respect of the Business. The Issuer and each of its subsidiaries has withheld or collected and remitted all material amounts required to be withheld or collected and remitted by it in respect of any Governmental Charges;
(y) except as disclosed in the Offering Documents or as disclosed by the Issuer to the Underwriters or its counsel by email correspondence on or before the date hereof and for which Taxes and any associated penalties or interest have been accrued in the Issuer’s most recently publicly filed financial statements:
(i) the Issuer and each of its subsidiaries has filed, or caused to be filed, in a timely manner all income and other material Tax Returns that are required to have been filed by them in any jurisdiction prior to the date hereof (all of which Tax Returns were correct and complete in all material respects), and no request for any extension of time within which to file any Tax Returns of, or with respect to them has been made, which Tax Returns have not since been timely filed;
(ii) the Issuer and each of its subsidiaries has paid, or caused to be paid, all material Taxes and assessments payable by it, whether or not a Tax Return is required to be filed in respect thereof, to the extent such Taxes and assessments have become due and payable and before they have become delinquent, except for any Taxes and assessments the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings, and the Issuer and each of its subsidiaries has established reasonable reserves in accordance with generally accepted accounting principles in respect of all estimated Taxes due (a) with respect to periods for which Tax Returns are not due at the Closing Time and (b) Taxes and assessments, the amount, applicability or validity of which is currently being contested;
(iii) neither the Issuer nor any of its subsidiaries is a party to any Tax allocation or sharing agreement of any kind, whether written or verbal, which could reasonably be expected to have a Material Adverse Effect;
(iv) no material deficiencies exist or have been asserted with respect to Taxes of the Issuer or any of its other subsidiaries, no material unresolved controversies pending, or to the Issuer’s Actual Knowledge, threatened regarding Taxes exist with respect to that the Issuer or any of its subsidiaries and no material Tax audits or examinations are pending or, to the Issuer’s Actual Knowledge, threatened in respect of fiscal years ending on or before the Closing Date;
(v) no waiver and consent in respect of limitation periods or otherwise with respect to any fiscal year has been requested by a Governmental Entity or filed by the Issuer or any of its subsidiaries; and,
(vi) the Issuer and each of its subsidiaries has duly collected or withheld all material amounts on account of any Taxes required by Laws to be collected or withheld by it, has duly and timely remitted to the appropriate Governmental Entity any such amounts required by Laws to be remitted to it prior to the date hereof and amounts so collected or withheld and not yet remitted, if any, will be retained by such party and remitted to the proper Governmental Entity when due. Neither the Issuer nor any of its subsidiaries is a party to any agreement requiring it to make any “excess parachute payments” within the meaning of U.S. Tax Code Section 280G in connection with the Offering;
(z) in connection with employee matters:
(i) neither the Issuer nor any of its subsidiaries is a party to any employment agreements or undertakings other employment related arrangements which require that a payment or other compensation or benefits be paid or conferred upon any employee, officer or manager of the Issuer or any judgementof its subsidiaries in connection with:
(1) the execution and delivery by the Issuer or any of its subsidiaries to the extent it is a party or signatory thereto, decree of this Agreement and any related agreements contemplated in the Final Prospectus; or
(2) the performance by the Issuer or order any of its subsidiaries to the extent it is a party or signatory thereto, of the transaction contemplated herein and therein;
(ii) there are no outstanding material loans or advances made by the Issuer or any of its subsidiaries to any current or former employee, officer or manager of the Issuer or any of its subsidiaries other than expense reimbursements and advances in respect thereof in the Ordinary Course and other than loans or advances that will be repaid on or before Closing;
(iii) there is no strike or lock-out occurring or, to the Actual Knowledge of the Issuer, threatened which it would reasonably be expected to have a Material Adverse Effect. To the Actual Knowledge of the Issuer, there are no current union organizing activities involving employees of the Issuer or any of its subsidiaries which, if successful, would reasonably be expected to have a Material Adverse Effect; and
(iv) neither the Issuer nor any of its subsidiaries has any pending arbitration cases, lawsuits or grievances before any Governmental Entity outstanding including, employment standards, unfair labour practices, employment discrimination, occupational health and safety, employment equity, pay equity, workers compensation, human rights and labour relations which would reasonably be expected to have a Material Adverse Effect;
(aa) in connection with labour matters, except as set out in the Preliminary Prospectus or the Final Prospectus or in Schedule 11.1(aa), neither the Issuer nor any of its subsidiaries is a party to or is boundbound by any:
(i) oral or written contract or commitment for the employment or retainer of any individual, including, for greater certainty, any contract or commitment with directors or named executive officers (as defined under Securities Laws), other than for contracts of indefinite hire terminable by the Issuer or its subsidiaries without cause on reasonable notice;
(gii) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions oral or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated.wri
Appears in 1 contract
Sources: Underwriting Agreement (Student Transportation Inc.)
Representations and Warranties of the Issuer. By accepting this offer, the Issuer represents and warrants to the Subscriber that, as of the Closing Date:
(a) the Issuer is a corporation has been duly incorporated and is validly subsisting and in good standing under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedjurisdiction of incorporation, continuation or amalgamation;
(b) the Issuer shall do all acts and things necessary to reserve is a reporting issuer under the securities laws of one or set aside sufficient shares more jurisdictions in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant SharesCanada;
(c) the common shares of the Company Issuer are duly listed and posted for trading on the Exchangea recognized stock exchange or quotation system;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities the Securities has been issued and remains outstanding against the Issuer and, to the Issuer or its directorsbest of the Issuer’s knowledge, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awarehave been threatened;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the consummation of the transactions contemplated herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action on the part of the Issuer and and, subject to acceptance by all necessary action the Issuer, this Agreement constitutes a valid obligation of the shareholders thereof;
(ii) do not contraveneIssuer legally binding upon it and enforceable in accordance with its terms subject to such limitations and prohibitions in applicable laws relating to bankruptcy, conflict with insolvency, liquidation, moratorium, reorganization, arrangement or cause the Issuer to be in breach or default of its memorandum or articles, or articles or bywinding-up and other laws, as rules and regulations of general application affecting the case may berights, or powers, privileges, remedies and interests of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessablecreditors generally; and
(hf) except as qualified by the disclosure in all prospectuses, filing statements sale and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner issuance of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure RecordSecurities, and the properties are in good standing under the applicable laws delivery of the jurisdictions in which they are situatedcertificates representing them, will have been approved by all requisite corporate action on or before the Closing Date and, upon issue and delivery at the closing, the Securities will be validly issued.
Appears in 1 contract
Sources: Subscription Agreement
Representations and Warranties of the Issuer. The Issuer represents and warrants to, and agrees with the Purchaser, as of the date hereof and as of the Closing Date (as defined herein), that:
(a) the The Issuer has been duly incorporated, is validly existing as a corporation duly incorporated and validly subsisting in good standing under the laws of British Columbia and the State of Delaware, has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets property and to conduct its business and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, result in a material adverse change in the condition, financial or otherwise, or in the business, properties, or operations of the Issuer and its subsidiaries, taken as currently conducted;a whole (any such change, a “Material Adverse Change”).
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury The audited consolidated financial statements of the Issuer to enable it to issue to and its subsidiaries contained in the Purchaser Issuer’s Form 10-K for the Shares year ended December 31, 2020 (the “Financial Statements”) fairly present in all material respects the consolidated financial position of the Issuer and its subsidiaries as of the respective dates specified therein and the Warrant Shares;results of their operations and cash flows for the respective periods so specified and have been prepared in accordance with U.S. generally accepted accounting principles (“GAAP”).
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the The execution, delivery delivery, and performance by the Issuer of this Agreement Agreement, the Indenture, the Notes, and the transactions herein contemplated:Registration Rights Agreement do not and will not (i) violate any material provision of federal, state, or local law or regulation applicable to the Issuer or its subsidiaries, or the governing documents of the Issuer or its subsidiaries, (ii) result in or require the creation or imposition of any Lien (as such term is defined in the Indenture) of any nature whatsoever upon any properties or assets of the Issuer or its subsidiaries, other than Permitted Liens (as such term is defined in the Indenture), or (iii) require any approval of interest holders of the Issuer or its subsidiaries, other than consents or approvals that have been obtained and that are still in force and effect.
(d) This Agreement has been duly authorized, executed and delivered by the Issuer and, assuming due authorization, execution and delivery hereof by the Purchaser, will constitute a valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and equitable principles of general applicability.
(e) The Indenture has been duly authorized by the Issuer and, at the Closing Date, will have been duly executed and delivered by the Issuer and, assuming due authorization, execution and delivery thereof by the Trustee, will constitute a valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and equitable principles of general applicability.
(f) The Notes have been duly authorized by the Issuer and, at the Closing Date, will have been duly executed by the Issuer and when authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Purchaser in accordance with the terms of this Agreement, assuming due authorization, execution and delivery thereof by the Trustee, will be valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and equitable principles of general applicability, and will be entitled to the benefits of the Indenture.
(g) The Registration Rights Agreement has been duly authorized by the Issuer, and, when the Notes are delivered and paid for pursuant to this Agreement on the Closing Date, the Registration Rights Agreement will have been duly executed and delivered by the Issuer, and assuming due execution and delivery thereof by the Purchaser will constitute a valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and equitable principles of general applicability.
(h) The Notes to be purchased by the Purchaser from the Issuer on the Closing Date will be in the form contemplated by the Indenture.
(i) have The execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, this Agreement, the Indenture and the Notes will not contravene (i) the certificate of incorporation, bylaws or will have been prior other organizational documents, each as amended or restated to date, of the Issuer; (ii) any agreement or other instrument binding upon the Issuer or any of its subsidiaries that is material to the Closing duly authorized Issuer and its subsidiaries, taken as a whole; (iii) any provision of applicable law or regulation; or (iv) any judgment, injunction, order or decree of any governmental body, agency or court having jurisdiction over the Issuer or any subsidiary, except, in the case of clauses (ii), (iii) and (iv) above, for any such contravention that would not have a Material Adverse Change.
(j) There are no legal or governmental actions, suits, investigations or proceedings, pending or, to the knowledge of the Issuer, threatened to which the Issuer or any of its subsidiaries is a party or to which any of the properties of the Issuer or any of its subsidiaries is subject that would, if adversely determined, result in a Material Adverse Change or have a material adverse effect on the power or ability of the Issuer to perform its obligations under this Agreement, the Indenture or the Notes.
(k) No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority (as defined in the Indenture) in the United States, any state or other political subdivision thereof, any other jurisdiction in which the Issuer or any subsidiary conducts all or any part of its business, or which asserts jurisdiction over any properties of the Issuer or any subsidiary, or any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such Governmental Authority is required by the Issuer in connection with the execution, delivery or performance by the Issuer of this Agreement, the Indenture or the Notes.
(l) The Issuer and its subsidiaries own, possess or have a right to use all licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service marks, trademarks and trade names necessary corporate action to conduct the business now operated by them without known conflict with the rights of others that, if determined adversely to the Issuers or any of its subsidiaries, would, individually or in the aggregate, result in a Material Adverse Change.
(m) Each of the Issuer and by its subsidiaries is, and has at all necessary action times since December 31, 2018 been, in compliance in all respects with Applicable Law, except to the extent that such nonperformance would not be reasonably expected to result in a Material Adverse Change. “Applicable Law” means all applicable provisions of the shareholders thereof;
all (i) constitutions, treaties, statutes, laws, rules, regulations, codes, guidelines and ordinances of any Governmental Authority, (ii) do not contraveneapprovals of Governmental Authorities and (iii) orders, conflict with or cause the Issuer to be in breach or default of its memorandum or articlesdecisions, or articles or by-lawsdirected duties, as the case may bejudgments, or awards and decrees of any resolution Governmental Authority (including common law and principles of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"public policy), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated.
Appears in 1 contract
Sources: Note Purchase Agreement (Universal Insurance Holdings, Inc.)
Representations and Warranties of the Issuer. (a) 16.1 On the date hereof, the Issuer hereby represents and warrants to each Certificateholder and the Representative that:
16.1.1 it is a corporation duly incorporated and validly subsisting as a company under the laws of British Columbia the Republic of Türkiye and as an asset leasing corporation under the Sukuk Communiqé;
16.1.2 it has the corporate power to own its assets and authority to enter into this Agreement and complete carry on its business as it is being conducted;
16.1.3 the transactions contemplated hereby by, and all obligations expressed to own be assumed by it in, the Transaction Documents constitute its legal, valid, binding and lease enforceable obligations, subject to the qualifications set out in the applicable legal opinions delivered pursuant to the terms of a subscription agreement (the "Subscription Agreement") dated 3 November 2023 entered into in connection with the issuance of the Certificates;
16.1.4 its properties entry into, and assets the transactions contemplated by, the Transaction Documents to which it is a party (including, without limitation, rights afforded to it under the Purchase Undertaking) do not and will not conflict with:
(a) any law or regulation applicable to conduct its business as currently conductedit in the Republic of Türkiye;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;its constitutional documents; or
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing any agreement or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements instrument binding upon it or any of its assets, save to the extent that such conflict could not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, results of operations or business affairs of the Issuer;
16.1.5 it has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, its obligations under this Deed, the Conditions and all other agreements or undertakings or any judgementTransaction Documents to which it is a party;
16.1.6 all authorisations required to enable it lawfully to enter into, decree or order exercise its rights and comply with its obligations pursuant to or by this Deed and all other Transaction Documents to which it is a party to (or is boundspecified as a beneficiary) have been obtained or effected and are in full force and effect;
(g) at 16.1.7 it has not engaged in any business or activity since its incorporation, other than those in line with the Closing, upon payment requirement of the purchase priceSukuk Communiqué, the Shares shall be duly issued and outstanding as fully paid and non-assessableactivities described in the "Description of the Issuer" section contained in the Prospectus, the Warrants shall be duly granted and enforceable against the Company, upon exercise authorisation of the Warrants Certificates and payment of the exercise price therefore, matters contemplated in the Warrant Shares shall be duly issued Transaction Documents and outstanding as fully paid and non-assessablethe Prospectus; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions 16.1.8 no Dissolution Event has occurred or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedcontinuing.
Appears in 1 contract
Sources: Representative Agreement
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Registered Holder as of January 23, 2001 as follows:
(a) the Issuer is a corporation duly incorporated organized, existing and validly subsisting in good standing under the laws of British Columbia its state of incorporation and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its the business as currently conducted;which it conducts and proposes to conduct.
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the The execution, delivery and performance of the Debentures by the Issuer has been duly approved by the Board of this Agreement Directors of Issuer and all other actions required to authorize and effect the offer and sale of the Debentures have been duly taken and approved.
(c) The Company does not have a sufficient number of authorized and unissued shares of Common Stock which are not otherwise reserved to cover the conversion of the Debentures until such time, if any, it obtains shareholder approval to increase the authorized shares of Common Stock, at which time the Company will reserve for issuance a sufficient number of shares of Common Stock to allow for the conversion of the Debentures.
(d) The Debentures have been duly and validly authorized. The Debentures and Common Stock issuable upon conversion of the Debentures (the "Conversion Shares"), when issued (assuming compliance with Section 7(a) hereof) and paid for in accordance with the terms hereof, will be fully paid and non-assessable and valid and binding obligations of the Issuer enforceable in accordance with their respective terms.
(e) Issuer has obtained all licenses, permits and other governmental authorizations necessary to the conduct of its business; such licenses, permits and other governmental authorizations obtained are in full force and effect; and Issuer is in all material respects complying therewith.
(f) Except as disclosed in the documents listed in Section 7(h) below, Issuer knows of no pending or threatened legal or governmental proceedings to which Issuer is a party which could materially adversely affect the business, property, financial condition or operations of the Issuer.
(g) Issuer is not in violation of or default under, nor will the execution and delivery of the Debentures, the issuance of the Common Stock upon conversion of the Debentures in accordance with Section 9 hereof (and assuming compliance with Section 7(a) hereof) and the incurrence of the obligations herein and therein set forth and the consummation of the transactions herein or therein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be result in breach or default of its memorandum or articlesa violation of, or constitute a default under the articles of incorporation or by-laws, as the case may be, performance or observance of any resolution of its respective directors material obligations, agreement, covenant or shareholders, condition contained in any trust deedsbond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreements or instrument to which the Issuer is a party or by which it or any of its other agreements properties may be bound or undertakings in violation of any material order, rule, regulation, writ, injunction or decree of any judgementgovernment, decree governmental instrumentality or order court, domestic or foreign; PROVIDED, HOWEVER, that the failure to comply herewith shall not be deemed a breach hereof unless such failure would have a material adverse effect on the business, financial condition or by which it is results of operations of Issuer and its subsidiaries, taken as a party to or is bound;
whole (g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; anda "Material Adverse Effect").
(h) except The financial information contained in the Issuer's Annual Report on Form 10-KSB for the fiscal year ended December 31, 1999, the Issuer's Quarterly Report on Form 10-QSB for the fiscal quarter ended March 31, 2000, as qualified amended by the disclosure in all prospectusesIssuer's Form 10- QSB/A dated July 25, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record")2000, the Company is Issuer's Quarterly Report on Form 10-QSB for the beneficial owner fiscal quarter ended June 30, 2000 and the Issuer's Quarterly Report on Form 10-QSB for the fiscal quarter ended September 30, 2000, presents fairly the financial condition of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws Issuer as of the jurisdictions in which they are situateddates and for the periods indicated.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby makes the following representations and warranties for the benefit of the Trustee and Holders of the Notes, on which the Sellers rely in entering into this Agreement with the Issuer and on which the Holders of the Notes rely in purchasing the Notes; such representations and warranties speak as of each Transfer Date and the date of the related transfer of the Assets under the Indenture unless otherwise indicated, but shall survive any subsequent transfer, assignment, contribution or conveyance of the Assets or any part thereof:
(a) the The Issuer has been duly organized and is validly existing in good standing as a corporation duly incorporated and validly subsisting under the laws of British Columbia and has the State of Delaware, with corporate power and authority to enter into this Agreement and complete own its properties, perform its obligations under the transactions contemplated hereby Transaction Documents and to own transact the business in which it is now engaged or in which it proposes to engage; the Issuer is duly qualified to do business and lease its properties and assets and to conduct is in good standing in each State in which the nature of its business as currently conducted;requires it to be so qualified, except where failure to so qualify would not have a material adverse effect on the ability of the Issuer to perform its obligations under the Transaction Documents.
(b) The transfer to and receipt by the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares of the Sellers' interest in the treasury Loan Documents, the Receivables and the Related Security pursuant to this Agreement and the consummation of the transactions contemplated herein and in the Transaction Documents will not conflict with or result in breach of any of the terms or provisions of, or constitute (with or without notice, lapse of time or both) a default under the certificate of incorporation or by-laws of the Issuer or any material indenture, agreement, mortgage, deed of trust or other instrument to enable which the Issuer is a party or by which it to issue is bound, or result in the creation or imposition of any lien, charge or encumbrance (except for the lien created by the Indenture) upon any of the property or assets of the Issuer pursuant to the Purchaser terms of, such indenture, mortgage, deed of trust, or other agreement or instrument to which the Shares Issuer is a party or by which it is bound or to which any of the property or assets of the Issuer is subject, nor will such action result in any violation of the provisions of the certificate of incorporation or by-laws of the Issuer or any statute or any order, rule or regulation of any court or regulatory authority or other governmental agency or body having jurisdiction over the Issuer or any of its properties; and no consent, approval, authorization, order, registration or qualification of or with or other action of any court or any such regulatory authority or other governmental agency or body is required for the Warrant Shares;acquisition of the Assets hereunder.
(c) The Transaction Documents to which the common shares Issuer is a party have been duly authorized, executed and delivered by the Issuer by all necessary corporate action and constitute valid and legally binding obligations of the Company are duly listed Issuer enforceable against the Issuer in accordance with their terms, subject as to enforcement to bankruptcy, insolvency, reorganization and posted for trading on the Exchange;other similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity regardless of whether enforcement is sought in a court of equity or law.
(d) There are no order ceasing proceedings or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued investigations to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is a party pending or, to the knowledge of the Issuer, threatened, before any court, regulatory body, administrative agency or ought other tribunal or governmental instrumentality (a) asserting the invalidity of this Agreement, (b) seeking to be aware;
(e) prevent the Issuer is a reporting issuer and an exchange issuer under issuance of the SECURITIES ACT (B.C.) and is not in material default Notes or the consummation of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereundertransactions contemplated by this Agreement, or of (c) seeking any rule determination or requirement of ruling that would materially and adversely affect the Exchange;
(f) the execution, delivery and performance by the Issuer of its obligations under, or the validity or enforceability of, this Agreement and the transactions herein contemplated:Agreement.
(ie) All approvals, authorizations, consents, orders or other actions of any Person or of any court, governmental agency or body or official, required in connection with the execution and delivery of this Agreement, have been or will have been be taken or obtained on or prior to the Closing duly authorized by all necessary corporate action Date.
(f) The Issuer Address is the principal place of business and chief executive office of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedIssuer.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Trendwest Resorts Inc)
Representations and Warranties of the Issuer. 5.1 The Issuer represents and warrants to the Purchaser, and acknowledges that the Purchaser is relying on these representations and warranties in entering into this Agreement, that:
(a) the Issuer is a corporation valid and subsisting company, duly incorporated and validly subsisting in good standing under the laws of British Columbia the jurisdiction in which it was incorporated, continued or amalgamated, no proceedings have been taken, instituted or, are pending for the dissolution of the Issuer, and the Issuer has all of the requisite corporate power power, capacity and authority carry on its businesses as now conducted or proposed to enter into this Agreement and complete the transactions contemplated hereby be conducted and to own or lease and lease its properties operate the property and assets and to conduct its business as currently conductedthereof;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer in British Columbia, Alberta and an exchange issuer under Ontario, and the SECURITIES ACT (B.C.) and Issuer is not in material default of any of the requirements of the SECURITIES ACT Applicable Securities Laws;
(B.C.c) the Issuer is in good standing and licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the character of the property or assets thereof owned or leased or the Rules thereundernature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in compliance with all applicable laws, rules and regulations of each such jurisdiction;
(d) the Issuer’s subsidiaries (the “Subsidiaries”), if any, are valid and subsisting companies and in good standing under the laws of the jurisdictions in which they were incorporated;
(e) the common shares of the Issuer are listed and posted for trading on the Exchange and the Issuer is not in default of any rule or requirement of the listing requirements of the Exchange;
(f) upon their issuance, the Unit Shares and the Warrant Shares will be validly issued and outstanding fully paid and non-assessable common shares of the Issuer registered as directed by the Purchaser, and, upon their issuance, the Securities will be free and clear of all liens, charges or encumbrances of any kind whatsoever and will not be subject to a restricted period or statutory hold period which extends beyond four months and one day after the Closing Date, and the certificates representing the Securities shall bear only the following legend: UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [the date which is four months and one day after the Closing Date will be inserted]. WITHOUT PRIOR WRITTEN APPROVAL OF THE TSX VENTURE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [the date which is four months and one day after the Closing Date will be inserted].
(g) the Issuer and its Subsidiaries, if any, have good and marketable title to their property and assets free and clear of all liens, charges and encumbrances of any kind whatsoever;
(h) the Issuer and its Subsidiaries, if any, hold either directly or indirectly freehold title, mining leases, mining claims or other conventional property, proprietary or contractual interests or rights including interests and rights under option and/or joint venture agreements, recognized in the jurisdiction in which a particular property is located, in respect of the ore bodies and minerals located in properties in which they have an interest under valid, subsisting and enforceable title documents or other recognized and enforceable agreements or instruments, sufficient to permit them to explore the minerals relating thereto, all such property, leases or claims and all property, leases or claims in which they have any interest or right have been validly located and recorded in accordance with all applicable laws and are valid and subsisting, they have all necessary surface rights, access rights and other necessary rights and interests relating to the properties in which they have an interest granting them the right and ability to explore for minerals, ore and metals for development purposes as are appropriate in view of the rights and interest therein of it, with only such exceptions as do not interfere with the use made by them of the rights or interests so held, and each of the proprietary interests or rights and each of the documents, agreements and instruments and obligations relating thereto referred to above is currently in good standing in the name of the Issuer or its Subsidiaries, if any, as applicable;
(i) the Issuer and its Subsidiaries, if any, hold all licences and permits that are required for carrying on their business in the manner in which such business has been carried on and the Issuer and its Subsidiaries, if any, have the corporate power and capacity to own the assets owned by them and to carry on the business carried on by them and they are duly qualified to carry on business in all jurisdictions in which they carry on business;
(j) the audited consolidated financial statements of the Issuer for the years ended December 31, 2011 and December 31, 2010 (the “Audited Financial Statements”) together with the auditors' report thereon and the notes thereto, have been prepared in accordance with international financial reporting standards applied on a basis consistent with prior periods (except as disclosed in such consolidated financial statements), and present fairly the financial condition and position of the Issuer on a consolidated basis as at the dates thereof and such consolidated financial statements contain no direct or implied statement of a material fact which is untrue on the date of such consolidated financial statements and do not omit to state any material fact which is required by international financial reporting standards or by applicable law to be stated or reflected therein or which is necessary to make the statements contained therein not misleading;
(k) since December 31, 2011:
(i) the Issuer has not paid or declared any dividend or incurred any material capital expenditure or made any commitment therefor except in the ordinary course of business in connection with its mineral exploration activities;
(ii) the Issuer has not incurred any obligation or liability, direct or indirect, contingent or otherwise, except in the ordinary course of business and which is not, and which in the aggregate are not, material; and
(iii) the Issuer has not entered into any material transaction, except in each case as disclosed in the Information;
(l) the auditors of the Issuer who audited the Audited Financial Statements and who provided their audit report thereon are independent public accountants within the meaning of the applicable securities laws;
(m) except as disclosed in the Information, there are no material actions, suits, judgments, investigations or proceedings of any kind whatsoever outstanding, pending or, to the best of its knowledge, threatened against or affecting the Issuer or its Subsidiaries, if any, at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau or agency of any kind whatsoever and, to the best of the Issuer’s knowledge, there is no basis therefor;
(n) each of the documents which is part of the Information is, as of the date thereof, in compliance in all material respects with the Applicable Securities Laws and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and such documents collectively constitute full, true and plain disclosure of all material facts relating to the Issuer and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, as of the date hereof. There is no fact known to the Issuer which the Issuer has not publicly disclosed which materially adversely affects, or so far as the Issuer can reasonably foresee, will materially adversely affect, the assets, liabilities (contingent or otherwise), capital, affairs, business, prospects, operations or condition (financial or otherwise) of the Issuer or the ability of the Issuer to perform its obligations under this Agreement or which would otherwise be material to any person intending to make an equity investment in the Issuer;
(o) the Issuer is in compliance with all timely disclosure obligations under the Applicable Securities Laws and, without limiting the generality of the foregoing, there has not occurred any material adverse change in the assets, liabilities (contingent or otherwise), capital, affairs, business, prospects, operations or condition (financial or otherwise) of the Issuer which has not been publicly disclosed and none of the documents filed by or on behalf of the Issuer pursuant to the applicable securities laws contain a misrepresentation (as such term is defined in the BC Act) as at the date thereof;
(p) the Issuer maintains a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are completed in accordance with the general or a specific authorization of management of the Issuer; (ii) transactions are recorded as necessary to permit the preparation of consolidated financial statements for the Issuer in conformity with international financial reporting standards and to maintain asset accountability; (iii) access to assets of the Issuer is permitted only in accordance with the general or a specific authorization of management of the Issuer; and (iv) the recorded accountability for assets of the Issuer is compared with the existing assets of the Issuer at reasonable intervals and appropriate action is taken with respect to any differences therein;
(q) the Issuer is authorized to issue, among other things, an unlimited number of Shares, of which, as of the date hereof 56,747,693 Shares were issued and outstanding as fully paid Shares;
(r) no order ceasing or suspending trading in the securities of the Issuer nor prohibiting sale of such securities has been issued to the Issuer and to the best of the Issuer’s knowledge no investigations or proceedings for such purposes are pending or threatened;
(s) no person has any agreement, option, right or privilege (whether pre-emptive, contractual or otherwise) capable of becoming an agreement for the purchase, acquisition, subscription for or issue of any of the unissued shares or other securities of the Issuer, except pursuant to the outstanding options, warrants and preferred shares disclosed in the Information;
(t) the issue of the Securities will not be subject to or trigger any pre-emptive right or other contractual right to purchase securities granted by the Issuer or to which the Issuer is subject and which has not been waived;
(u) the Issuer has full corporate power and authority to enter into this Agreement and to do all acts and things and execute and deliver all documents as are required hereunder to be done, observed, performed or executed and delivered by it in accordance with the terms hereof and the Issuer has taken all necessary corporate action to authorize the execution, delivery and performance by the Issuer of this Agreement and to observe and perform the provisions of this Agreement in accordance with the provisions hereof including, without limitation, the issue of the Securities to the Purchaser;
(v) this Agreement constitutes a binding obligation of the Issuer enforceable in accordance with its terms, subject to the laws relating to creditors’ rights generally and equitable remedies;
(w) none of the creation, issuance and sale of the Securities by the Issuer, the execution and delivery of this Agreement, the compliance by the Issuer with the provisions of this Agreement or the consummation of the transactions herein contemplated:
contemplated herein, do or will (i) have require the consent, approval, or will authorization, order or agreement of, or registration or qualification with, any governmental agency, body or authority, court, stock exchange, securities regulatory authority or other person, except (A) such as have been prior to obtained, or (B) such as may be required under the applicable securities laws and the policies and rules of the Exchange and will be obtained by the Closing duly authorized Date, or (ii) conflict with or result in any breach or violation of any of the provisions of, or constitute a default under, or create a state of facts which after notice or lapse of time, or both, would constitute a default under any indenture, mortgage, deed of trust, lease or other agreement or instrument to which the Issuer is a party or by all necessary corporate action which it or any of its properties or assets is bound, or the constitution, articles or by-laws or any other constating document of the Issuer and or any resolution passed by all necessary action the directors (or any committee thereof) or shareholders of the shareholders Issuer, or any statute or any judgment, decree, order, rule, policy or regulation of any court, governmental authority, arbitrator, stock exchange or securities regulatory authority applicable to the Issuer or any of the properties or assets thereof;
(iix) do not contravene, conflict with there exists no continuing liabilities or cause obligations of the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment respect of the purchase priceactivities, the Shares shall be duly issued and outstanding as fully paid and non-assessablebusiness, the Warrants shall be duly granted and enforceable against the Company, upon exercise actions or agreements of the Warrants and payment of the exercise price thereforeIssuer prior to April 5, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable2010; and
(hy) except as qualified any inspection or investigation by the disclosure or in all prospectuses, filing statements and press releases filed with the Commissions behalf of Subscriber shall not limit or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner affect any of the propertiesrepresentations or express or implied warranties of Issuer which are contained herein or which are to be included or implied in any document, business and assets instrument or agreement to be delivered at the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedClosing.
Appears in 1 contract
Sources: Unit Subscription Agreement (Sentient Executive GP IV, LTD)
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Collateral Manager that:
(a) the Issuer is a corporation (i) has been duly incorporated as a limited liability company and is validly subsisting existing under the laws of British Columbia and Delaware; (ii) has the corporate full power and authority to enter into own the Issuer’s assets and the financial assets proposed to be owned by the Issuer and included among the Collateral and to transact the business for which the Issuer was incorporated; (iii) is duly qualified under the laws of each jurisdiction where the Issuer’s ownership or lease of property or the conduct of the Issuer’s business requires or the performance of the Issuer’s obligations under this Agreement and complete the transactions contemplated hereby Indenture would require such qualification, except for failures to be so qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Issuer or the ability of the Issuer to perform its obligations under, or on the validity or enforceability of, this Agreement and the Indenture; and (iv) has full power and authority to own execute, deliver and lease its properties perform the Issuer’s obligations hereunder and assets and to conduct its business as currently conductedthereunder;
(b) this Agreement and the Indenture have been duly authorized, executed and delivered by the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of constitute legal, valid and binding agreements enforceable against the Issuer in accordance with their terms except that the enforceability thereof may be subject to enable it (i) bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws now or hereafter in effect relating to issue to the Purchaser the Shares creditors’ rights and the Warrant Shares(ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(c) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other Person is required for the common shares performance by the Issuer of its duties hereunder or under the provisions of the Company are Indenture applicable to the Collateral Manager, except those that may be required under state securities or “blue sky” laws or the applicable laws of any jurisdiction outside of the United States, and such as have been duly listed and posted for trading on the Exchangemade or obtained;
(d) no order ceasing neither the execution, delivery and performance of this Agreement or suspending trading in securities the provisions of the Indenture applicable to the Collateral Manager nor the performance by the Issuer nor prohibiting of its duties hereunder or under the sale provisions of such securities has been issued the Indenture applicable to the Collateral Manager (i) conflicts with or will violate or result in a default under the Issuer’s Governing Documents or any material contract or agreement to which the Issuer is a party or by which it or its assets may be bound, or any law, decree, order, rule, or regulation applicable to the Issuer of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having jurisdiction over the Issuer or its directorsproperties, officers or promoters (other than as contemplated or against permitted by the Indenture) will result in a lien on any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the property of the Issuer is and (ii) would have a material adverse effect upon the ability of the Issuer to perform its duties under this Agreement or ought the provisions of the Indenture applicable to be awarethe Collateral Manager;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is its Affiliates are not in material default violation of any federal or state laws or regulations, and there is no charge, investigation, action, suit or proceeding before or by any court or regulatory agency pending or, to the best knowledge of the requirements Issuer, threatened that, in any case, would have a material adverse effect upon the ability of the SECURITIES ACT (B.C.) Issuer to perform its duties under this Agreement or the Rules thereunder, or of any rule or requirement provisions of the ExchangeIndenture applicable to the Collateral Manager;
(f) the execution, delivery and performance by Issuer is not an “investment company” under the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;Investment Company Act; and
(g) at the Closing, upon payment assets of the purchase price, Issuer do not and will not at any time constitute the Shares shall be duly issued and outstanding as fully paid and non-assessable, assets of any plan subject to the Warrants shall be duly granted and enforceable against the Company, upon exercise fiduciary responsibility provisions of ERISA or of any plan subject to Section 4975 of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedCode.
Appears in 1 contract
Sources: Collateral Management Agreement (Lument Finance Trust, Inc.)
Representations and Warranties of the Issuer. 8.1 The Issuer hereby represents and warrants to the Subscriber (which representations and warranties will survive the Closing for so long as any Obligations remain outstanding under the terms of the Debenture) that:
(a) it is duly incorporated, amalgamated, formed, merged or continued, as the Issuer is a corporation duly incorporated case may be, and validly subsisting existing as a corporation, company or partnership, under the laws of British Columbia its jurisdiction of formation and is duly qualified, licensed or registered to carry on business under the laws applicable to it in all jurisdictions in which the nature of its property or business makes such qualification necessary except where failure to be so qualified, licensed or registered could not reasonably be expected to have a Material Adverse Effect,
(b) it has the all requisite corporate or other power and authority to (i) own and operate its property and to carry on the Business carried on by it; and (ii) enter into and perform its obligations under this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Sharesother Transaction Documents;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of each of this Agreement Agreement, the Debenture, and the transactions herein contemplated:
(i) have or will have Warrant, including, without limitation, the reservation for issuance and the issuance of the Warrants Shares issuable upon exercise of the Warrant, and all other Transaction Documents to which it is a party, has been prior to the Closing duly authorized by all necessary corporate action and other actions required, and each such document has been duly executed and delivered by it, and constitutes a legal, valid and binding obligation enforceable against it in accordance with its terms, subject to the availability of equitable remedies and the Issuer effect of bankruptcy, insolvency and by all necessary action similar laws affecting the rights of the shareholders thereofcreditors generally;
(iid) do the execution and delivery of this Agreement, the Debenture, the Warrant, and the delivery of the Warrant Shares issuable upon exercise of the Warrant, and the performance of its obligations hereunder and thereunder and compliance with the terms, conditions and provisions hereof and thereof, did not contravene, and will not conflict with or cause result in a breach of any of the terms, conditions or provisions of (i) its constating documents or by laws, or (ii) any Applicable Law, or (iii) any other contractual restriction binding on or affecting its or its property;
(e) the entering into and the performance by the Issuer of this Agreement, the Debenture, and the Warrant, including, without limitation, the reservation for issuance and the issuance of the Warrants Shares issuable upon exercise of the Warrant, and all other Transaction Documents to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party party, do not require any filing, notice, consent, approval, authorization or order of any Governmental Authority, except those that have been made or obtained, as applicable;
(f) it has no contingent liabilities in excess of the liabilities that are either reflected or reserved against in the Issuer’s audited financial statements and interim financial statements which would reasonably be expected to or is boundbe material to the financial condition of the Issuer on a consolidated basis;
(g) there are no litigation, arbitration or administrative proceedings, or investigations by any Governmental Authority outstanding and there are no proceedings pending or, to its knowledge, threatened, against it, its officers or directors, or in respect of its property, which, if determined adversely to it could have a Material Adverse Effect;
(h) there are no expropriation or similar proceedings, actual or threatened, of which the Issuer has notice, or reason to believe such notice is pending or threatened, against its assets, or any material part thereof;
(i) it is conducting its Business in compliance in all material respects with all Applicable Laws of each jurisdiction in which it carries on its business;
(j) the Issuer is not in default in any material respect under any Material Contract;
(k) its property is owned by it as the beneficial owner thereof with good and marketable title thereto, free and clear of all Liens (other than Permitted Liens), encumbrances and defects, and any property leased by it is held under a valid, subsisting and enforceable lease;
(l) there has been no voluntary or involuntary action taken either by or against the Issuer or any of its Affiliates for winding-up, dissolution, liquidation, bankruptcy, receivership, administration or similar or analogous events in respect of any such Person or all or any material part of its assets or revenues;
(m) the Issuer maintains insurance policies with reputable insurers against risks of loss or damage to the properties, assets and business of the Issuer of such types as are customary in the case of Persons engaged in the same or similar businesses to the full insurable value of their respective properties;
(n) the audited consolidated financial statements and the related notes thereto of the Issuer for the year ended December 31, 2020 and interim consolidated financial statements and the related notes thereto of the Parent for the nine (9) months ended September 30, 2021 comply in all material respects with the applicable requirements of Applicable Laws and present fairly, in all material respects, the consolidated financial position of the Issuer as of the dates indicated and the results of its operations and the changes in its cash flows for the periods specified, and have been prepared in conformity with GAAP, applied on a consistent basis throughout the periods covered thereby;
(o) since December 31, 2020, no event or circumstance has occurred or is contemplated that has had or could reasonably be expected to have a Material Adverse Effect;
(p) it is not necessary that this Agreement, the Debenture or the Warrant be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration, notarial or similar Taxes or fees be paid on or in relation to the documents or the transactions contemplated by the documents;
(q) any secured and unsubordinated claims of a holder against the Issuer under the Debenture will rank at least pari passu with the claims of all of the Issuer’s other secured creditors except those creditors whose claims are mandatorily preferred by laws of general application to companies;
(r) there are no off-balance sheet transactions arrangements, obligations (including contingent obligations) or other relationships of the Issuer with unconsolidated entities or other Persons that may have a material current or future effect on the financial condition, changes in financial condition, results of operations, earnings, cash flow, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses of the Issuer on a consolidated basis or that would reasonably be expected to be material to an investor;
(s) all information which has been provided by or on behalf of the Issuer to the Subscriber and its representatives prior to the date hereof was and remains true and correct in all material respects as at the Closingtime provided and does not, upon payment as of such time, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make such information not misleading;
(t) the Issuer shall use the proceeds of the purchase priceOffering in accordance with the Use of Proceeds;
(u) it is in compliance in all material respects with all Applicable Laws respecting labor, employment and employment practices and benefits, terms and conditions of employment and wages and hours;
(v) it is not party to any collective bargaining agreement, does not employ any member of a union, believes that its relations with its employees are good and no executive officer has notified it that such officer intends to leave the Shares shall be duly Issuer or otherwise terminate such officer’s employment with the Issuer;
(w) it (i) owns the capital stock or other comparable equity interests of each of its subsidiaries free and clear of any liens and all of the issued and outstanding as shares of such capital stock or comparable equity interests are validly issued and are fully paid and paid, non-assessableassessable and free of preemptive and similar rights, and (ii) has the Warrants shall unrestricted right to vote, and (subject to limitations imposed by applicable law) to receive dividends and distributions on, all capital stock or other comparable equity interests owned;
(x) it is not, and for so long the Subscriber holds any Securities will be, an “investment company,” a company controlled by an “investment company” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended;
(y) it has made or filed all federal, state and foreign income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject; has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be duly granted due on such returns, reports and enforceable against declarations, except those being contested in good faith; has set aside on its books provision reasonably adequate for the Companypayment of all taxes for periods subsequent to the periods to which such returns, upon exercise reports or declarations apply; and there are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Warrants and payment Issuer know of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessableno basis for any such claim; and
(hz) except as qualified by none of the disclosure Issuer, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Issuer participating in all prospectusesthe Offering, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the any beneficial owner of 20% or more of the propertiesIssuer’s outstanding voting equity securities, business and assets or calculated on the interests basis of voting power, nor any promoter (as that term is defined in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing Rule 405 under the applicable laws Securities Act) connected with the Issuer in any capacity at the time of sale is subject to any of the jurisdictions “Bad Actor” disqualifications described in which they are situatedRule 506(d)(1)(i) to (viii) under the Securities Act.
Appears in 1 contract
Sources: Private Placement Subscription Agreement for Debentures (Global Crossing Airlines Group Inc.)
Representations and Warranties of the Issuer. 7.1 The Issuer warrants and represents to Canaccord Genuity, and acknowledges that Canaccord Genuity has relied on such warranties and representations in entering into this Agreement, that:
(a) the Issuer is a valid and subsisting corporation duly incorporated and validly subsisting in good standing under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedjurisdiction in which it is incorporated, continued or amalgamated;
(b) the Issuer shall do all acts is duly registered and things necessary licenced to reserve or set aside sufficient shares carry on business in the treasury jurisdictions in which it carries on business or owns property where so required by the laws of the Issuer to enable it to issue to the Purchaser the Shares these jurisdictions and the Warrant Sharesis not otherwise precluded from carrying on business or owning property in such jurisdictions by any other commitment, agreement or document;
(c) the common shares of the Company are duly listed and posted for trading on the ExchangeIssuer has no subsidiaries;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting has full corporate power and authority to carry on its business as now carried on by it and to undertake the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters Listing and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing has been, duly authorized by all necessary corporate action on the part of the Issuer;
(e) all of the material transactions of the Issuer have been promptly and by properly recorded or filed in its books or records and its minute books or records contain all necessary action material records of the shareholders thereofmeetings and proceedings of its directors, shareholders, and other committees, if any, since conception;
(iif) do not contraveneas of the date hereof, conflict with or cause the authorized capital of the Issuer to be in breach or default consists of its memorandum or articlesan unlimited number of common shares and an unlimited number of preferred shares, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly 28,661,774 common shares are issued and outstanding as fully paid and non-assessablenon- assessable and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming such a right, agreement or option, for the Warrants shall be duly granted and enforceable against issue or allotment of any unissued shares in the Company, upon exercise capital of the Warrants and payment Issuer or any other security convertible into or exchangeable for any such shares, or to require the Issuer to purchase, redeem or otherwise acquire any of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding shares in its capital other than as fully paid and non-assessable; anddisclosed in the Prospectus;
(hg) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company Issuer is the legal and beneficial owner of and has good and marketable title to the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure RecordProspectus, all agreements by which the Issuer holds an interest in a property, business or assets are in good standing according to their terms and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedsituated and all filings and work commitments required to maintain the properties in good standing have been properly recorded and filed in a timely manner with the appropriate regulatory body and there are no mortgages, liens, charges, encumbrances or any other interests in or on such properties other than as disclosed in the Prospectus;
(h) the Prospectus contains full, true and plain disclosure of all material facts in relation to the Issuer, its Business and its securities, contains no misrepresentations (as such term is defined in the Applicable Legislation), is accurate in all material respects and omits no fact, the omission of which will make such representations misleading or incorrect;
(i) the minute books of the Issuer, which have been made available to Canaccord Genuity or counsel to Canaccord Genuity, are complete and accurate in all material respects;
(j) the Issuer has all requisite corporate power and capacity to enter into this Agreement and to do all acts and things and execute and deliver all documents as are required hereunder to be done, observed, performed or executed and delivered by it in accordance with the terms hereof and the Issuer has taken, or will have taken before the execution of the Certificate, all necessary corporate action to authorize the execution, and delivery of, and performance of its obligations under this Agreement and to observe and perform its obligations under this Agreement;
(k) the Financial Statements filed with the Commission or supplied by the Issuer to Canaccord Genuity have been prepared in accordance with Canadian generally accepted accounting principles, present fairly, in all material respects, the financial position and all material liabilities (accrued, absolute, contingent or otherwise) of the Issuer, as of the date thereof, and there have been no adverse material changes in the financial position of the Issuer since the date thereof and the Business of the Issuer has been carried on in the usual and ordinary course consistent with past practice since the date thereof;
(l) the auditors of the Issuer who audited the Financial Statements and who provided their audit report thereon are independent public accountants as required under Applicable Legislation and there has never been a reportable disagreement (within the meaning of National Instrument 51-102) with the present auditors of the Issuer;
(m) the audit committee of the Issuer is comprised and operates in accordance with the requirements of National Instrument 52-110 ±Audit Committees of the Canadian Securities Administrators.
(n) other than as disclosed in the Prospectus, since December 31, 2020, the Issuer has not:
i. paid or declared any dividend or incurred any material capital expenditure or made any commitment therefor;
ii. incurred any obligation or liability, direct or indirect, contingent or otherwise, except in the ordinary course of business; and
iii. entered into any material transaction or made a significant acquisition.
(o) the Issuer is not in violation of any term of any constating document thereof. The Issuer is not in violation of any term or provision of any agreement, indenture or other instrument applicable to it which would, or could reasonably be expected to, result in any Material Adverse Effect, the Issuer is not in default in the payment of any material obligation owed which is now due, if any, and there is no action, suit, proceeding or investigation commenced, threatened or, to the knowledge of the Issuer after due inquiry, pending which, either in any case or in the aggregate, might result in any Material Adverse Effect or which places, or could reasonably be expected to place, in question the validity or enforceability of this Agreement or any document or instrument delivered, or to be delivered, by the Issuer pursuant hereto.
(p) the Issuer has not committed an act of bankruptcy or sought protection from the creditors thereof before any court or pursuant to any legislation, proposed a compromise or arrangement to the creditors thereof generally, taken any proceeding with respect to a compromise or arrangement, taken any proceeding to be declared bankrupt or wound up, taken any proceeding to have a receiver appointed of any of the assets thereof, had any person holding any encumbrance, lien, charge, hypothec, pledge, mortgage, title retention agreement or other security interest or receiver take possession of any of the property thereof, had an execution or distress become enforceable or levied upon any portion of the property thereof or had any petition for a receiving order in bankruptcy filed against it;
(q) the Issuer has not approved or has entered into any agreement in respect of, or has any knowledge of:
i. the purchase of any material property or assets or any interest therein or, other than as disclosed in the Prospectus, the sale, transfer or other disposition of any material property or assets or any interest therein currently owned, directly or indirectly, by the Issuer whether by asset sale, transfer of shares or otherwise; or
ii. the change of control (by sale or transfer of shares or sale of all or substantially all of the property and assets of the Issuer) of the Issuer.
(r) the Issuer is in compliance with all applicable laws, regulations and statutes (including all environmental laws and regulations) in the jurisdictions in which it carries on business and which may materially affect the Issuer, has not received a notice of non-compliance, nor knows of, nor has reasonable grounds to know of, any facts that could give rise to a notice of non-compliance with any such laws, regulations and statutes, and is not aware of any pending change or contemplated change to any applicable law or regulation or governmental position that would materially affect the Business of the Issuer or the Business or legal environment under which the Issuer operates;
(s) the Issuer has not been in material violation of, in connection with the ownership, use, maintenance or operation of its property and assets, any applicable federal, provincial, state, municipal or local laws, by-laws, regulations, orders, policies,
Appears in 1 contract
Sources: Non Offering Prospectus Agreement
Representations and Warranties of the Issuer. The Issuer hereby makes the following representations and warranties for the benefit of the Trustee and Holders of the Notes, on which the Sellers rely in entering into this Agreement with the Issuer and on which the Holders of the Notes rely in purchasing the Notes; such representations and warranties speak as of the Closing Date unless otherwise indicated, but shall survive any subsequent transfer, assignment, contribution or conveyance of the Assets or any part thereof:
(a) the The Issuer has been duly organized and is validly existing in good standing as a corporation duly incorporated and validly subsisting under the laws of British Columbia and has the State of Delaware, with corporate power and authority to enter into this Agreement and complete own its properties, perform its obligations under the transactions contemplated hereby Transaction Documents and to own transact the business in which it is now engaged or in which it proposes to engage; the Issuer is duly qualified to do business and lease its properties and assets and to conduct is in good standing in each State in which the nature of its business as currently conducted;requires it to be so qualified, except where failure to so qualify would not have a material adverse effect on the ability of the Issuer to perform its obligations under the Transaction Documents.
(b) The transfer to and receipt by the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares of the Sellers' interest in the treasury Contracts, the Receivables and the related Vacation Credits pursuant to this Agreement and the consummation of the transactions contemplated herein and in the Transaction Documents will not conflict with or result in breach of any of the terms or provisions of, or constitute (with or without notice, lapse of time or both) a default under the Certificate of Incorporation or By-laws of the Issuer or any material indenture, agreement, mortgage, deed of trust or other instrument to enable which the Issuer is a party or by which it to issue is bound, or result in the creation or imposition of any lien, charge or encumbrance (except for the lien created by the Indenture) upon any of the property or assets of the Issuer pursuant to the Purchaser terms of, such indenture, mortgage, deed of trust, or other agreement or instrument to which the Shares Issuer is a party or by which it is bound or to which any of the property or assets of the Issuer is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Issuer or any statute or any order, rule or regulation of any court or regulatory authority or other governmental agency or body having jurisdiction over the Issuer or any of its properties; and no consent, approval, authorization, order, registration or qualification of or with or other action of any court or any such regulatory authority or other governmental agency or body is required for the Warrant Shares;acquisition of the Assets hereunder.
(c) The Transaction Documents to which the common shares Issuer is a party have been duly authorized, executed and delivered by the Issuer by all necessary corporate action and constitute valid and legally binding obligations of the Company are duly listed Issuer enforceable against the Issuer in accordance with their terms, subject as to enforcement to bankruptcy, insolvency, reorganization and posted for trading on the Exchange;other similar laws of general applicability relating to or 14 affecting creditors' rights generally and to general principles of equity regardless of whether enforcement is sought in a court of equity or law.
(d) There are no order ceasing proceedings or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued investigations to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is a party pending or, to the knowledge of the Issuer, threatened, before any court, regulatory body, administrative agency or ought other tribunal or governmental instrumentality (a) asserting the invalidity of this Agreement, (b) seeking to be aware;
(e) prevent the Issuer is a reporting issuer and an exchange issuer under issuance of the SECURITIES ACT (B.C.) and is not in material default Notes or the consummation of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereundertransactions contemplated by this Agreement, or of (c) seeking any rule determination or requirement of ruling that would materially and adversely affect the Exchange;
(f) the execution, delivery and performance by the Issuer of its obligations under, or the validity or enforceability of, this Agreement and the transactions herein contemplated:Agreement.
(ie) All approvals, authorizations, consents, orders or other actions of any Person or of any court, governmental agency or body or official, required in connection with the execution and delivery of this Agreement, have been or will have been be taken or obtained on or prior to the Closing duly authorized by all necessary corporate action Date.
(f) The Issuer Address is the principal place of business and chief executive office of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedIssuer.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Trendwest Resorts Inc)
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Collateral Manager that:
(a) the Issuer is a corporation (i) has been duly incorporated as an exempted company and is validly subsisting existing under the laws of British Columbia and the Cayman Islands; (ii) has the corporate full power and authority to enter into own the Issuer’s assets and the financial assets proposed to be owned by the Issuer and included among the Collateral and to transact the business for which the Issuer was incorporated; (iii) is duly qualified under the laws of each jurisdiction where the Issuer’s ownership or lease of property or the conduct of the Issuer’s business requires or the performance of the Issuer’s obligations under this Agreement and complete the transactions contemplated hereby Indenture would require such qualification, except for failures to be so qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Issuer or the ability of the Issuer to perform its obligations under, or on the validity or enforceability of, this Agreement and the Indenture; and (iv) has full power and authority to own execute, deliver and lease its properties perform the Issuer’s obligations hereunder and assets and to conduct its business as currently conductedthereunder;
(b) this Agreement and the Indenture have been duly authorized, executed and delivered by the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of constitute legal, valid and binding agreements enforceable against the Issuer in accordance with their terms except that the enforceability thereof may be subject to enable it (i) bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws now or hereafter in effect relating to issue to the Purchaser the Shares creditors’ rights and the Warrant Shares(ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(c) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other Person is required for the common shares performance by the Issuer of its duties hereunder or under the provisions of the Company are Indenture applicable to the Collateral Manager, except those that may be required under state securities or “blue sky” laws or the applicable laws of any jurisdiction outside of the United States, and such as have been duly listed and posted for trading on the Exchangemade or obtained;
(d) no order ceasing neither the execution, delivery and performance of this Agreement or suspending trading in securities the provisions of the Indenture applicable to the Collateral Manager nor the performance by the Issuer nor prohibiting of its duties hereunder or under the sale provisions of such securities has been issued the Indenture applicable to the Collateral Manager (i) conflicts with or will violate or result in a default under the Issuer’s Governing Documents or any material contract or agreement to which the Issuer is a party or by which it or its assets may be bound, or any law, decree, order, rule, or regulation applicable to the Issuer of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having jurisdiction over the Issuer or its directorsproperties, officers or promoters (other than as contemplated or against permitted by the Indenture) will result in a lien on any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the property of the Issuer is and (ii) would have a material adverse effect upon the ability of the Issuer to perform its duties under this Agreement or ought the provisions of the Indenture applicable to be awarethe Collateral Manager;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is its Affiliates are not in material default violation of any federal, state or Cayman Islands laws or regulations, and there is no charge, investigation, action, suit or proceeding before or by any court or regulatory agency pending or, to the best knowledge of the requirements Issuer, threatened that, in any case, would have a material adverse effect upon the ability of the SECURITIES ACT (B.C.) Issuer to perform its duties under this Agreement or the Rules thereunder, or of any rule or requirement provisions of the ExchangeIndenture applicable to the Collateral Manager;
(f) the execution, delivery and performance by Issuer is not an “investment company” under the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;Investment Company Act; and
(g) at the Closing, upon payment assets of the purchase price, Issuer do not and will not at any time constitute the Shares shall be duly issued and outstanding as fully paid and non-assessable, assets of any plan subject to the Warrants shall be duly granted and enforceable against the Company, upon exercise fiduciary responsibility provisions of ERISA or of any plan subject to Section 4975 of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedCode.
Appears in 1 contract
Sources: Collateral Management Agreement (Lument Finance Trust, Inc.)
Representations and Warranties of the Issuer. (a) The Issuer hereby represents and warrants to each of the other parties hereto and for the benefit of the Indenture Trustee, on behalf of the Noteholders and the Insurers as of each Series Closing Date:
(i) The Issuer is a corporation limited liability company duly incorporated organized, validly existing, and validly subsisting in good standing under the laws of British Columbia the State of Delaware and is in compliance with the laws of each state (within the United States of America) in which any Mortgaged Property is located to the extent necessary to its performance under this Agreement;
(ii) The execution and delivery of this Agreement by the Issuer, and the performance and compliance with the terms of this Agreement by Issuer, do not violate its organizational documents or constitute an event that, with notice or lapse of time, or both, would constitute a default under, or result in the breach of, any material agreement or other instrument to which it is a party or by which it is bound;
(iii) The Issuer has the corporate limited liability company power and authority to enter into this Agreement and complete the consummate all transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunderperformed by it contemplated by this Agreement, or of any rule or requirement of the Exchange;
(f) has duly authorized the execution, delivery and performance by it of this Agreement, and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Issuer, enforceable against the Issuer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(v) The Issuer is not in violation of, and its execution and delivery of, this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation is likely to affect materially and adversely either the ability of the Issuer to perform its obligations under this Agreement or the financial condition of the Issuer;
(vi) No litigation is pending or, to Issuer’s knowledge, threatened against the Issuer that is reasonably likely to be determined adversely to Issuer and, if determined adversely to the Issuer, would prohibit the Issuer from entering into this Agreement or that, in the Issuer’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Issuer to perform its obligations under this Agreement or the financial condition of the Issuer;
(vii) No consent, approval, authorization or order under any court or governmental agency or body is required for the execution, delivery and performance by Issuer of, or the compliance by the Issuer with, this Agreement or the consummation of the transactions of the Issuer contemplated by this Agreement, except for any consent, approval, authorization or order that has been obtained or that if not obtained would not have a material and adverse affect on the ability of the Issuer to perform its obligations hereunder;
(viii) Each officer and employee of the Issuer that has responsibilities concerning the management, servicing and administration of Mortgaged Properties, Leases and Mortgage Loans is covered by errors and omissions insurance and the fidelity bond as and to the extent required by Section 3.07(c); and
(ix) To the Issuer’s knowledge each of the Mortgaged Properties is a commercial property and is operated for commercial purposes.
(b) The representations and warranties of the Issuer set forth in Section 2.02(a) shall survive the execution and delivery of this Agreement and the transactions herein contemplated:
(i) have or will have been prior shall inure to the Closing duly authorized by all necessary corporate action benefit of the Persons to whom and for whose benefit they were made for so long as the Issuer and remains in existence. Upon discovery by all necessary action any party hereto of any breach of any of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase priceforegoing representations and warranties, the Shares party discovering such breach shall be duly issued and outstanding as fully paid and non-assessable, give prompt written notice to the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedother parties.
Appears in 1 contract
Sources: Property Management and Servicing Agreement (Spirit Finance Corp)
Representations and Warranties of the Issuer. The Issuer represents and warrants as follows:
(a) This Agreement and the Obligations have been duly authorized, and this Agreement when executed and delivered and the Obligations when issued in accordance with the applicable Instructions, will be valid and binding obligations of the Issuer, enforceable against the Issuer is a corporation duly incorporated in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and validly subsisting under the other laws of British Columbia and has the corporate power and authority general applicability relating to enter into this Agreement and complete the transactions contemplated hereby or affecting creditors’ rights and to own and lease its properties and assets and to conduct its business as currently conductedgeneral equity principles;
(b) This Agreement and the consummation of the transactions herein contemplated will not (i) result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument for money borrowed to which the Issuer shall do all acts and things necessary is a party or by which the Issuer is bound or to reserve which any of the property or set aside sufficient shares in the treasury assets of the Issuer to enable it to issue is subject, or (ii) result in any violation of (x) the provisions of the Certificate of Limited Partnership or the Limited Partnership Agreement of the Issuer or (y) to the Purchaser best knowledge of the Shares Issuer, any statute applicable to it or any order, rule or regulation of any court or government agency or body having jurisdiction over the Issuer or any of its properties, in any manner which, in the case of clauses (i) and (ii) (y), would have a material adverse effect on the Warrant Sharesbusiness of the Issuer and its subsidiaries taken as a whole;
(c) No consent, approval, authorization or order of, or registration or qualification with, any court or governmental agency or body having jurisdiction over the common shares Issuer or any of its properties is required to be obtained or made by the Issuer by any material applicable statutory law or regulation for it to issue and sale of the Company are duly listed Obligations, except such as have been, or will have been obtained prior to the issue and posted for trading on sale of the Exchange;Obligations, and such consents, approvals, authorizations, registrations or qualifications as may be required under “blue sky” or state securities laws or insurance laws in connection with the issue and sale of the Obligations by the Issuer; and
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been Each Obligation issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to under this Agreement will be aware;
(e) the Issuer is a reporting issuer and an exchange issuer exempt from registration under the SECURITIES ACT (B.C.) and is not in material default Securities Act of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder1933, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance as amended. Each Instruction by the Issuer of to issue Obligations under this Agreement shall be deemed a representation and warranty by the transactions Issuer as of the date thereof that the representations and warranties herein contemplated:
(i) have or will have been prior are true and correct as if made on and as of such date, except to the Closing duly authorized by all necessary corporate action of the Issuer extent that such representations and by all necessary action of the shareholders thereof;
(ii) do not contravenewarranties specifically refer to a different date, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the which case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares they shall be duly issued true and outstanding correct as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedsuch date.
Appears in 1 contract
Sources: Issuing and Paying Agent Agreement (Enbridge Energy Partners Lp)
Representations and Warranties of the Issuer. 8.1 The Issuer hereby represents and warrants to the Subscriber (which representations and warranties will survive the Closing) that:
(a) the Issuer is a corporation duly incorporated and validly subsisting under the laws of British Columbia and has its jurisdiction of incorporation, licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease character of its properties owned or leased or the nature of the activities conducted by it make such licensing, registration or qualification necessary and assets and to conduct shall carry on its business as currently conductedin the ordinary course and in compliance in all material respects with all applicable laws, rules and regulations of each such jurisdiction;
(b) on the Closing Date, the Issuer shall do will have taken all acts corporate steps and things proceedings necessary to reserve or set aside sufficient shares in approve the treasury of the Issuer to enable it to issue to the Purchaser the Shares transactions contemplated under this Subscription Agreement, including its execution and the Warrant Sharesdelivery;
(c) the common shares Issuer has not received notice from any applicable regulatory authority that it is in default of any securities laws material to the Company are duly listed and posted for trading on the ExchangeSubscriber;
(d) no order ceasing or suspending trading at the time of closing on the Closing Date, the Common Shares will be duly and validly created, authorized and issued; will be validly issued as fully paid as non-assessable Common Shares in securities the capital of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awareIssuer;
(e) the issuance and sale of the Common Shares by the Issuer does not and will not constitute a breach of or default under the constating documents of the Issuer or any law, regulation, order or ruling applicable to the Issuer or any agreement, contract or indenture to which the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and party or by which it is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchangebound;
(f) for the executionpurposes of the transactions contemplated herein, delivery and performance by the Issuer has obtained waivers from the shareholders of this the Issuer in respect of the pre-emptive rights set out in the Shareholder Agreement, or the Issuer has provided notice to the shareholders of the Issuer under the pre-emptive rights provisions of the Shareholder Agreement and the transactions herein contemplated:
(i) have relevant exercise period has expired, or will have been prior the Issuer has provided notice in writing to the Closing duly authorized by all necessary corporate action Subscriber outlining in reasonable detail the extent to which the shareholders of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or byhave exercised such pre-lawsemptive rights, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;applicable; and
(g) at this Subscription Agreement, when signed by the ClosingIssuer, upon payment constitutes a binding and enforceable obligation of the purchase priceIssuer, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed accordance with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedits terms.
Appears in 1 contract
Sources: Private Placement Subscription Agreement (McEwen Mining Inc.)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Portfolio Manager as follows:
(a) the The Issuer has been duly formed and registered and is validly existing as a corporation duly incorporated and validly subsisting limited liability company under the laws of British Columbia and the Cayman Islands, has the corporate full limited liability company power and authority to enter into this Agreement own its assets and complete the transactions contemplated hereby obligations proposed to be owned by it and included in the Assets and to own transact the business in which it is presently engaged and is duly qualified under the laws of each jurisdiction where its ownership or lease its properties and assets and to of property or the conduct of its business as currently conducted;requires, or the performance of its obligations under this Agreement, the Indenture, the Securities Account Control Agreement, any Hedge Agreement, the Collateral Administration Agreement, the Loan Sale Agreement, the AML Services Agreement, the Administration Agreement, each Master Participation Agreement or the Notes (collectively, the “Issuer Documents”) would require, such qualification, except for failures to be so qualified, authorized or licensed that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Issuer.
(b) The Issuer has the Issuer shall do all acts necessary limited liability company power and things necessary authority to reserve or set aside sufficient shares in the treasury execute and deliver each of the Issuer Documents, and to enable it perform all of its obligations required thereunder, and has taken all necessary action to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities authorize each of the Issuer nor prohibiting Documents on the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters terms and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer conditions hereof and an exchange issuer under the SECURITIES ACT (B.C.) thereof and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance of each of the Issuer Documents and the performance of all obligations imposed upon it hereunder and thereunder.
(c) This Agreement has been executed and delivered by a duly authorized officer of the Issuer, and this Agreement constitutes the legally valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, subject, as to enforcement, to (i) the effect of bankruptcy, insolvency, reorganization, moratorium, winding up or similar laws affecting generally the enforcement of creditors’ rights, as such laws would apply in the event of any bankruptcy, receivership, insolvency, winding up or similar event applicable to the Issuer and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(d) No consent of any other Person, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority, other than those that may be required under state securities or “blue sky” laws and those that have been or shall be obtained in connection with the Indenture and the issuance of the Notes, is required by the Issuer in connection with the Issuer Documents or the execution, delivery, performance, validity or enforceability of the Issuer Documents or the obligations imposed upon the Issuer hereunder or thereunder.
(e) The Issuer is not in violation of any applicable federal or state securities law or regulation promulgated thereunder, and there is no charge, investigation, action, suit or proceeding before or by any court pending or, to the best knowledge of the Issuer, threatened in writing that, if determined adversely to the Issuer, would have a material adverse effect upon the performance by the Issuer of its duties hereunder, or on the validity or enforceability of, this Agreement and the transactions herein contemplated:Agreement.
(if) have or will have been prior to the Closing duly authorized by all necessary corporate action The execution, delivery and performance of the Issuer Documents, and by all necessary action of the shareholders thereof;
(ii) documents and instruments required thereunder do not contraveneviolate any provision of any existing law or regulation binding on the Issuer, conflict with or cause any order, judgment, award or decree of any court, arbitrator or governmental authority binding on the Issuer, or the Governing Instruments of, or any securities issued by, the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors mortgage, indenture, lease, contract or shareholdersother agreement, any trust deeds, debenture, loan agreements instrument or undertaking to which the Issuer is a party or by which the Issuer or any of its assets may be bound, the violation of which would have a material adverse effect on the business, operations, assets or financial condition of the Issuer or the performance by the Issuer of its duties under this Agreement, and do not result in or require the creation or imposition of any lien on any of its property, assets or revenues pursuant to the provisions of any such mortgage, indenture, lease, contract or other agreements agreement, instrument or undertakings undertaking (other than the lien of the Indenture).
(g) The Issuer is not in violation of its Governing Instruments, or in breach or violation of, or in default under, the Indenture or any judgement, decree contract or order agreement to or by which it is a party to or is by which it or any of its assets may be bound;
(g) at , or any applicable statute or any rule, regulation or order of any court, government agency or body having jurisdiction over the ClosingIssuer or its properties, upon payment except for any breach, violation or default that would not have a material adverse effect on the validity or enforceability of the purchase pricethis Agreement, the Shares shall be duly issued and outstanding as fully paid and non-assessableCollateral Administration Agreement or the Indenture, or the performance by the Issuer of its duties under this Agreement, the Warrants shall be duly granted and enforceable against Collateral Administration Agreement or the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; andIndenture.
(h) except The Issuer is not required to be registered as qualified an “investment company” under the Investment Company Act.
(i) There is no charge, investigation, action, suit or proceeding before or by any court pending or, to the best knowledge of the Issuer, threatened that, if determined adversely to the Issuer, would have a material adverse effect upon the performance by the disclosure Issuer of its duties under, or on the validity or enforceability of, this Agreement, the Collateral Administration Agreement or the provisions of the Indenture applicable to the Issuer thereunder.
(j) The information contained in the final offering circular, dated November 26, 2021, pertaining to the Notes (the “Offering Circular”) is true and correct in all prospectusesmaterial respects, filing and does not omit to state any material fact necessary in order to make the statements and press releases filed with therein, in light of the Commissions or the Exchange or the Offering Memorandumcircumstances under which they were made, if anynot misleading; provided, (the "Disclosure Record")that, the Company is Issuer makes no representation or warranty with respect to the beneficial owner of the properties, business and assets or the interests in the properties, business or assets information referred to in the Disclosure Record, and the properties are in good standing under the applicable laws Section 4(h) of the jurisdictions in which they are situatedthis Agreement.
Appears in 1 contract
Sources: Portfolio Management Agreement (Bain Capital Specialty Finance, Inc.)
Representations and Warranties of the Issuer. The Issuer makes the following representations and warranties:
(a) the The Issuer is a municipal corporation duly incorporated and validly subsisting under charter city, and is authorized to issue the laws Bond to finance a portion of British Columbia the cost of the Project pursuant to the Law and in accordance with Act.
(b) The Issuer has the corporate lawful power and authority under the Law and the Act to enter into this Loan Agreement and complete the transactions contemplated hereby Indenture and to own carry out its obligations hereunder and lease under the Indenture. By proper action of its properties and assets and to conduct its business as currently conducted;
(b) governing body, the Issuer shall do has been duly authorized to execute and deliver this Loan Agreement, acting by and through its duly authorized officers. The Indenture and this Loan Agreement have been duly executed by the issuer and, assuming due execution by all acts other parties thereto, each constitutes a valid, legal, binding and things necessary to reserve or set aside sufficient shares in the treasury enforceable obligation of the Issuer (subject to enable it to issue to the Purchaser the Shares bankruptcy, insolvency or creditors’ rights laws, principles of equity and the Warrant Shares;
(climitations of remedies against governmental agencies within the State) without offset, defense or counterclaim. To the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directorsIssuer’s knowledge, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance of the Indenture and this Loan Agreement by the Issuer will not violate any material provision of this Agreement any law, regulation, order or decree of any governmental authority and all consents, approvals, authorizations, orders or filings of or with any State court or governmental agency or body, if any, required for the transactions herein contemplated:execution, delivery and performance of such documents by the Issuer have been obtained or made.
(ic) have To the Issuer's knowledge, the Issuer has not received notice of any pending or will have been prior to threatened action, suit or proceeding, arbitration or governmental investigation against the Closing duly authorized by all necessary corporate action Issuer, an adverse outcome of which would materially affect the Issuer’s performance under the Indenture and this Loan Agreement.
(d) To the Issuer’s knowledge, the execution, delivery and performance of the Indenture and this Loan Agreement by the Issuer and by all necessary action of the shareholders thereof;
(ii) do will not contravene, cause or constitute a material default under or materially conflict with its organizational documents or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment otherwise materially adversely affect performance of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise duties of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions issuer under such organizational documents or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedother agreements.
Appears in 1 contract
Sources: Loan Agreement
Representations and Warranties of the Issuer. The Issuer represents, warrants to, and covenants and agrees with, the Underwriter and the Borrower that:
(a) On the date hereof and on the Closing Date, the statements and information contained in the Preliminary Official Statement and the Official Statement under the headings “THE ISSUER” and “ABSENCE OF MATERIAL LITIGATION—The Issuer,” are and will be true, correct and complete in all material respects, and such statements and information in the Preliminary Official Statement and the Official Statement do not and will not omit any statement or information which is necessary to make such statements and information, in light of the circumstances under which they are made, not misleading in any material respect.
(b) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, pending or to the best of the Issuer’s knowledge threatened against the Issuer in any way:
(1) Affecting the organization of the Issuer, or the legal or corporate existence of the Issuer, or the title of the members of the Issuer to their respective offices, or any powers of the Issuer under the Constitution or the laws of the State pursuant to which the Issuer was created;
(2) Seeking to prohibit, restrain or enjoin the issuance, sale or delivery of the Bonds or the collection of revenues from the Borrower derived from payments under the Loan Agreement, or the pledge thereof;
(3) Contesting or affecting the validity or enforceability of the Resolution adopted by the Issuer pursuant to the Act or the Issuer Documents;
(4) Contesting the power of the Issuer to enter into, execute and deliver the documents listed in clause (3) above or to consummate the transactions contemplated by such documents and the Preliminary Official Statement and the Official Statement; or
(5) Wherein an unfavorable decision, ruling or finding would materially adversely affect the validity or enforceability of the Issuer Documents, the financial position or condition of the Issuer or the exclusion from gross income for federal income tax purposes of the interest on the Bonds.
(c) The Issuer is not in breach of or default under any applicable law or administrative regulation of the State or of the United States, or any applicable judgment or decree or any loan agreement, indenture, note, resolution, agreement or other instrument to which the Issuer is a corporation party or is otherwise subject, which would impair in any material respect the performance of its obligations under the Issuer Documents.
(d) The Issuer is a public body, corporate and politic, duly incorporated organized and validly subsisting existing under the laws of British Columbia the State, established by and has acting pursuant to the corporate Act, and has, and at the Closing Date will have, full legal right, power and authority under the Constitution and the laws of the State: (i) to enter into this Agreement the Issuer Documents; (ii) to adopt the Resolution; (iii) to issue, sell and complete deliver the Bonds to the Underwriter under the Indenture and as provided herein; (iv) to pledge and assign the revenue, other money, securities, funds, accounts, guarantees, insurance, and other items pledged under the terms of the Indenture, as provision of and security for the payment of the principal of and interest on the Bonds, and to similarly pledge all money, securities and earnings held in the funds and accounts held under the Indenture, all in the manner described in the Resolution, the Indenture and the Loan Agreement; and (v) to carry out, give effect to and consummate all the other transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) by the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in Documents, the treasury of Resolution, the Issuer to enable it to issue to the Purchaser the Shares Preliminary Official Statement and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;Official Statement.
(e) The Issuer has duly and validly adopted the Resolution, has duly authorized and approved the use of the Preliminary Official Statement and the Official Statement, and the execution and delivery of the Bonds and the Issuer is a reporting issuer Documents, and an exchange issuer under has duly authorized and approved the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement its obligations contained in, and the taking of any and all action as may be necessary to carry out, give effect to and consummate the transactions herein contemplated:
(i) have or will have been prior to contemplated by, each of those documents, and at the Closing duly authorized by all necessary corporate action Date, the Bonds and the Issuer Documents will constitute the valid, legal and binding obligations of the Issuer (assuming due authorization, execution and delivery by all necessary action the other parties thereto, where necessary) in accordance with their respective terms, and the Resolution and will be in full force and effect.
(f) The Issuer’s execution and delivery of the shareholders thereof;
(ii) do not contravene, conflict with or cause Bonds and the Issuer to be Documents, the Issuer’s consummation of the transactions contemplated by such documents, and the Issuer’s fulfillment of or compliance with the terms, conditions or provisions thereof will not conflict with, violate or result in the breach of any of the terms, conditions or default provisions of its memorandum any constitutional provision or articles, or articles or by-laws, as statute of the case may be, State or of any resolution of its respective directors agreement, instrument, statute, governmental rule or shareholdersregulation, any trust deedslaw and order, debenture, loan agreements judgment or any of its other agreements or undertakings or any judgement, decree or order to which the Issuer is now a party or by which it is bound, and will not constitute a default under any of the foregoing that has not been waived or consented to in writing by the appropriate party to or is bound;parties, and will not result in the creation or imposition of any lien, charge, security interest or encumbrance of any nature upon any property or assets of the Issuer prohibited under the terms of any such agreement, instrument, statute, governmental rule or regulation, court order, judgment or decree.
(g) at the Closing, upon payment Upon delivery of the purchase priceBonds, the Shares shall be duly issued Issuer will have good right, full power and outstanding lawful authority to pledge and assign the Trust Estate described in the Indenture to the Trustee as fully paid provided in the Indenture and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; andResolution.
(h) except as qualified The Issuer has complied, and will at the Closing Date be in compliance, in all respects with the Resolution and the Issuer Documents.
(i) All approvals, consents, authorization, elections and orders of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction that would constitute a condition precedent to, or the absence of which would materially adversely affect, the performance by the disclosure Issuer of its obligations hereunder or under the Bonds or any of the Issuer Documents have been obtained and are in all prospectusesfull force and effect.
(j) The Issuer, filing statements at the expense of the Borrower, will furnish such information, execute such instruments and press releases filed take such other action in cooperation with the Commissions Underwriter as the Underwriter may reasonably request to qualify the Bonds for offer and sale under the “blue sky” or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner other securities laws and regulations of such states and other jurisdictions of the propertiesUnited States as the Underwriter may designate, business provided that in connection therewith the Issuer shall not be required to file a general consent to service of process in any jurisdiction.
(k) The Issuer shall furnish such information, execute such instruments and assets or take such other action consistent with law as may be required, and shall otherwise cooperate with the interests Underwriter in taking all action necessary, to qualify the Bonds for offer and sale and to determine the eligibility for investment in the propertiesBonds under the laws of such jurisdictions as the Underwriter designates and the continuation of such qualification in effect so long as required for distribution of the Bonds; provided, business however, that the foregoing will not require the Issuer to consent to service of process in any foreign jurisdiction or assets referred to register as a broker-dealer or qualify as a foreign corporation in any foreign jurisdiction.
(l) Any certificate signed by the Disclosure RecordExecutive Director or other authorized officer of the Issuer shall be deemed a representation and warranty by the Issuer to the Underwriter as to the statements made therein.
(m) The Issuer will cause the proceeds of the Bonds to be deposited with the Trustee in accordance with the Indenture and as contemplated by the Preliminary Official Statement and the Official Statement.
(n) The Issuer has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that it is a bond issuer whose arbitrage certifications may not be relied upon.
(o) The Issuer has not taken or omitted to take on or before the date hereof any action that would adversely affect the exclusion from gross income for federal income tax purposes of the interest on the Bonds.
(p) All meetings of the governing body of the Issuer at which action was taken in connection with the Issuer Documents and the Bonds were duly and legally called and held, open to the public at all times, and the properties are in good standing under the applicable laws notice of the jurisdictions time and place of each such meeting was given as required by law.
(q) The Issuer shall, at the expense of the Borrower, furnish or cause to be furnished to the Underwriter, in which they such quantities as shall be requested by the Underwriter, copies of the Official Statement and all amendments and supplements thereto, in each case as soon as available. The execution and delivery of this Bond Purchase Agreement by the Issuer shall constitute a representation to the Underwriter that the representations and warranties contained in this Section are situatedtrue as of the date hereof and as of each Draw Down Date.
Appears in 1 contract
Sources: Bond Purchase Agreement
Representations and Warranties of the Issuer. The Issuer represents and warrants to, and agrees with the Placement Agent that:
(a) the The Issuer is a corporation duly incorporated organized, validly existing and validly subsisting in good standing under the laws of British Columbia and the State of Delaware.
(b) The Issuer has the corporate duly authorized and outstanding capitalization as set forth in the Registration Statement and/or Memorandum, the Shares shall conform to the description contained in the Registration Statement and/or Memorandum, and the Shares to be issued, when issued and delivered, shall be duly and validly issued, fully paid and non-assessable, and subject to no preemptive rights or similar rights on the part of any person or entity, except as set forth in the Registration Statement and/or Memorandum. A sufficient number of shares of the common stock of the Issuer have been reserved for issuance by the Issuer for all Shares required to be issued pursuant to the Offering.
(c) The Registration Statement and/or Memorandum does not contain any untrue statement of a material fact or omit to state any material fact required to be stated or necessary to make the statements in the Memorandum not misleading.
(d) The execution and delivery of this Agreement, the consummation of the transactions contemplated in this Agreement, and compliance with the terms and provisions of this Agreement shall not conflict with, or result in a breach or, any of the terms or provisions of, or constitute a default under, the Certificate of Incorporation, as amended, or the Bylaws of the Issuer, or any indenture, mortgage or other agreement or instrument to which the Issuer is a party or by which it or its properties are bound, or any applicable law, rule, regulation, judgment, order, or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Issuer or its properties.
(e) This Agreement has been duly authorized, executed and delivered on behalf of the Issuer, and is the valid, binding and enforceable obligation of the Issuer, except to the extent that obligations concerning indemnification herein may be limited by applicable securities laws, and except as enforceability may be limited by the application of bankruptcy, insolvency, moratorium or similar laws affecting the rights of creditors generally and by judicial limitations on the right of specific performance. The Issuer has full requisite power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducted;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;Agreement.
(f) No authorization, approval, consent or license of any regulatory body or authority is required for the executionvalid authorization, delivery issuance, sale and performance by deliver of the Issuer of this Agreement Shares, or, if so required, all authorizations, approvals, consents and the transactions herein contemplated:
(i) have or will licenses have been prior to the Closing duly authorized by all necessary corporate action of the Issuer obtained and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedfull force and effect.
Appears in 1 contract
Sources: Placement Agent Agreement (Amdl Inc)
Representations and Warranties of the Issuer. 8.1 The Issuer hereby represents and warrants to the Subscriber (which representations and warranties will survive the Closing) that:
(a) each of the Issuer and the Material Subsidiaries (as defined herein) is a corporation duly incorporated and validly subsisting under the laws of British Columbia and has its jurisdiction of incorporation, licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease character of its properties owned or leased or the nature of the activities conducted by it make such licensing, registration or qualification necessary and assets carries and to conduct shall carry on its business as currently conductedin the ordinary course and in compliance in all material respects with all Applicable Laws of each such jurisdiction;
(b) on the Closing Date, the Issuer shall do will have taken all acts corporate steps and things proceedings necessary to reserve or set aside sufficient shares in duly approve the treasury transactions contemplated under this Agreement, including its execution and delivery, and the execution and delivery of the Issuer to enable it to issue Amendment No.2 to the Purchaser Nuton Collaboration Agreement, the Shares Share Purchase Agreement and the Warrant Shareseach other agreement contemplated by this Agreement;
(c) the common shares of the Company are duly listed and posted for trading on the ExchangeClosing Date, the Issuer will have caused Andes Corporation Minera S.A (“ACM”) to have taken all corporate steps and proceedings necessary to duly approve the transactions contemplated under this Agreement, including the execution and delivery of each agreement contemplated by this Agreement to which ACM is a party;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awarenot in default of any securities laws;
(e) at the Issuer is a reporting issuer time of closing on the Closing Date, the Common Shares will be duly and an exchange issuer under validly created, authorized and issued; will be validly issued as fully paid as non-assessable Common Shares in the SECURITIES ACT (B.C.) and is not in material default of any capital of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the ExchangeIssuer;
(f) the execution, issuance and delivery and performance of the Common Shares by the Issuer to the Subscriber does not and will not constitute a breach of this or default under the constating documents of the Issuer or any law, regulation, order or ruling applicable to the Issuer or any agreement, contract or indenture to which the Issuer is a party or by which it is bound;
(g) for the purposes of the transactions contemplated herein, the Issuer has obtained waivers from the shareholders of the Issuer in respect of the pre-emptive rights set out in the Shareholder Agreement, or the Issuer has provided notice to the shareholders of the Issuer under the pre-emptive rights provisions of the Shareholder Agreement and the transactions herein contemplated:relevant exercise period has expired, or the Issuer has provided notice in writing to the Subscriber outlining in reasonable detail the extent to which the shareholders of the Issuer have exercised such pre-emptive rights, as applicable;
(h) the Issuer is authorized to issue an unlimited number of Common Shares and an unlimited number of Class B common shares; and as of the date of this Agreement, 30,785,000 Common Shares are issued and outstanding and no Class B common shares are issued and outstanding;
(i) have as of the Closing Date, there exist no options, warrants, rights of conversion or will have been prior other rights, contracts or commitments that could require the Issuer to issue any Common Shares or other securities other than the pre-emptive rights set out in the Shareholder Agreement and the 40,000 options that the Issuer has agreed to grant to M▇▇▇▇▇▇ ▇▇▇▇▇▇ upon the completion of an initial public offering of the Issuer, pursuant to the Closing duly authorized employment agreement between the Issuer and M▇▇▇▇▇▇ ▇▇▇▇▇▇ dated February 7, 2022;
(j) except for M▇▇▇▇▇▇ ▇▇▇▇▇▇, A▇▇▇ ▇▇▇▇▇▇ and S▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, the Issuer has no employees or independent contractors, and neither of such employees are entitled to any bonus, increase in compensation or other benefit that is contingent on the Closing. The Issuer has provided copies of the employment agreements between the Issuer and each of M▇▇▇▇▇▇ ▇▇▇▇▇▇ and A▇▇▇ ▇▇▇▇▇▇, and there are no other agreements, whether written or oral, between either of such employees and the Issuer;
(k) the issuance and sale of the Common Shares by all necessary corporate action the Issuer and the fulfilment of the terms hereof does not and will not conflict with or constitute a breach of or default under (i) the constating documents of the Issuer or its Material Subsidiaries (as defined below), (ii) any Applicable Laws, order or ruling or (iii) any agreement, contract or indenture, including any covenants or provisions respecting the Issuer’s right to issue additional equity, or any pre-emptive right or similar rights therein, to which the Issuer or any of its Material Subsidiaries (as defined below) is a party or by which it is bound, or to which any of the property or assets of the Issuer or any of its Material Subsidiaries (as defined below) is subject;
(l) each of this Agreement, Amendment No.2 to the Nuton Collaboration Agreement, the Share Purchase Agreement, and each other agreement of the Issuer and its affiliates contemplated hereby, when signed by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-lawssuch affiliates, as the case may be, constitutes a binding and enforceable obligation of the Issuer or of any resolution of such affiliates, as applicable, enforceable in accordance with its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is boundterms;
(gm) at the Closing, upon payment Exhibit “E” accurately shows (i) each direct and indirect subsidiary of the purchase priceIssuer (collectively, “Material Subsidiaries”); (ii) the registered and beneficial holders of all of the issued and outstanding shares in the capital of each of the Material Subsidiaries; and (iii) the numbers and classes of shares currently held by each such holder and the percentage in the outstanding capital of each Material Subsidiary. The Issuer has no assets other than the holding of the shares of each of the Material Subsidiaries;
(n) International Copper Mining Inc. has no assets other than the holding of the shares of each of Los Azules Mining Inc. and San J▇▇▇ Copper Inc., and neither of Los Azules Mining Inc. and San J▇▇▇ Copper Inc. has assets other than shares of ACM; and none of International Copper Mining Inc., Los Azules Mining Inc. and San J▇▇▇ Copper Inc. (together, the Shares shall “Cayman Subsidiaries”) operated or engaged in, or operates or engages in, any business activities, operations or management other than business activities, operations or management related to the Los Azules Project;
(o) the Issuer has not operated or engaged in, and is not operating or engaged in, any business activities or operations other than those related to the Los Azules Project and the Elder Creek Project;
(p) except as publicly disclosed by the Issuer and/or MUX, none of the shareholders of the Issuer have any agreements or side letters with the Issuer granting such shareholders any rights in respect of the Issuer, including the right to nominate directors for appointment to the board of directors of the Issuer or any approval rights with respect to any transactions of the Issuer or the Material Subsidiaries (including, without limitation, granting of offtake, royalty, stream or similar rights with respect to the Los Azules Project);
(q) there are no circumstances, developments or events that would constitute or reasonably be duly expected to constitute a material adverse effect in respect of any of the Issuer or the Material Subsidiaries;
(r) other than as set out in the V▇▇▇▇▇ opinion, there are no: (i) Claims pending or, to the knowledge of the Issuer, threatened against any of the Issuer or the Material Subsidiaries before or by any governmental authority; and (ii) outstanding judgments, orders, decrees, writs, injunctions, decisions, rulings or awards against any of the Issuer or the Material Subsidiaries or affecting any of the Issuer, the Material Subsidiaries, the Los Azules Project or the Elder Creek Project;
(s) a complete copy of the articles, bylaws, minute books, share registers and other corporate records of the Issuer and the Material Subsidiaries have been provided to the Subscriber. Such books and records have been maintained in accordance with Applicable Laws and contain complete and accurate records of all matters required to be dealt with in such books and records, in each case, in all material respects;
(t) the Issuer owns all of the issued and outstanding securities of the Material Subsidiaries, free and clear of any encumbrances and defects, and has no other subsidiaries. All of the outstanding equity interests in the Material Subsidiaries have been duly authorized and validly issued and all of such equity interests are outstanding as fully paid and non-assessableassessable shares. There exist no options, warrants, purchase rights, or other contracts or commitments that would require the Issuer or any other person to sell, transfer or otherwise dispose of any equity interests of the Material Subsidiaries or for the issue or allotment of any unissued shares in the capital of the Material Subsidiaries or any other security convertible into or exchangeable for any such shares. Except as publicly disclosed by the Issuer and/or MUX, none of the Issuer or the Material Subsidiaries has any obligations (including any obligation to provide any guarantee, security, support, indemnification, assumption or endorsement of or any similar commitment with respect to the obligations, liabilities or indebtedness of any other person) including, without limitation, the Warrants shall be duly granted obligations of MUX under the amended and enforceable against the Companyrestated credit agreement dated May 19, upon exercise 2023 between MUX and Evanachan Limited as lender and as Administrative Agent;
(u) each of the Warrants Material Subsidiaries has been duly incorporated or established and payment of the exercise price therefore, the Warrant Shares shall be duly issued is validly existing and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of its respective jurisdiction of organization with all requisite corporate power and authority to own, use, lease and operate its properties and conduct its business in the jurisdictions manner currently conducted, and is duly qualified to transact business in each jurisdiction where it carries its business;
(v) the Issuer and its Material Subsidiaries (i) are conducting their business operations in material compliance with Applicable Laws, including without limitation those of the country, state, province, municipality or other local or foreign jurisdiction in which they such entity carries on business or conducts its activities; (ii) have received and hold all material permits, by-laws, licenses, waivers, exemptions, consents, certificates, registrations, rights, rights of way, entitlements and other approvals which are situated.required from any governmental or regulatory authority or any other person necessary to the conduct of their business and activities as currently conducted, and to the conduct of their business as proposed to be conducted pursuant to the use of funds proposal underlying the proposed placement, including but not limited to those required under applicable mining and environmental laws (“Authorizations”); and (iii) are in material compliance with all terms and conditions of such Authorizations, and such Authorizations are in full force and effect in all material respects; and (iv) have not received any notice of the modification, suspension, revocation, cancellation or non-renewal of, or any intention to modify, suspend, revoke, cancel or not renew or any proceeding relating to the modification, suspension, revocation, cancellation or non-renewal of any such Authorizations, and no Authorizations will be subject to modification, suspension, revocation, cancellation or non-renewal as a result of the execution and delivery of this Agreement or the Closing;
(w) except to the extent qualified by the V▇▇▇▇▇ Opinion, which the Subscriber acknowledges having received, the Issuer and each of its Material Subsidiaries (i) own, hold or lease all such properties as are necessary to the conduct of their respective businesses as currently operated, and to the conduct of their business as proposed to be conducted pursuant to the use of funds proposal underlying the proposed placement; and (ii) have good and marketable title under Applicable Laws to all real property and good and marketable title to all personal property owned by them that constitute the Los Azules Project and the Elder Creek Project and to all material personal property owned by them in the conduct of their business on the Los Azules Project and the Elder Creek Project, in each case free and clear of all liens, encumbrances and defects; and any real property and buildings to be held under lease or sublease by the Issuer and the Material Subsidiaries are held by them under valid, subsisting and enforceable leases; (A) the “Los Azules Project” means the Los Azules project owned by ACM and located in the San J▇▇▇ Province, Argentina, which involves exploration, development and other operations on the mineral properties, claims and any other mineral rights listed in, and depicted by the maps in, Exhibit “F” hereto, and which includes the project described in the technical report entitled “SEC S-K 229.1304 Initial Assessment Individual Disclosure for the Los Azules Project, Argentina” with an effective reporting date of September 1, 2017 prepared by Mining Plus; and (B) the “Elder Creek Project” means the project commonly known as the Elder Creek project, which is owned by NPGUS LLC and located near Elder Creek, Nevada, USA, which involves exploration, development and other operations on the mineral properties, claims and any other mineral rights comprising such project;
Appears in 1 contract
Sources: Private Placement Subscription Agreement (McEwen Mining Inc.)
Representations and Warranties of the Issuer. (a) the The Issuer represents and warrants as follows:
(i) The Issuer is a corporation duly incorporated organized and validly subsisting existing corporation in good standing under the laws of British Columbia the jurisdiction of its incorporation and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and own its property, to own and lease its properties and assets and to conduct carry on its business as currently presently being conducted;, to execute and deliver this Agreement, the Issuing and Paying Agency Agreement, and the Notes, and to perform and observe the conditions hereof and thereof.
(bii) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer Each of this Agreement and the transactions herein contemplated:Issuing and Paying Agency Agreement has been duly and validly authorized, executed and delivered by the Issuer and
(iiii) have or Assuming that the Notes are offered and sold in the manner contemplated by Section 6 below, the offer and sale by the Issuer of such Notes will have been prior constitute exempt transactions under Section 4(2) of the 1933 Act and Rule 506 thereunder, and, accordingly, registration of the Notes under the 1933 Act will not be required. Qualification of an indenture with respect to the Closing duly authorized Notes under the Trust Indenture Act of 1939, as amended, will not be required in connection with the offer, issuance, sale or delivery of the Notes.
(iv) The Issuer is neither an "investment company" nor a "company controlled by all necessary corporate an investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) No consent or action of, or filing or registration with, any governmental or public regulatory body or authority is required to authorize, or is otherwise required in connection with, the execution, delivery or performance of this Agreement, the Issuing and Paying Agency Agreement or the Notes.
(vi) Neither the execution and delivery by the Issuer of any of this Agreement, the Issuing and Paying Agency Agreement and the Notes, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer, will (x) result in the creation of imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer and by all necessary action or (y) violate any of the shareholders thereof;
(ii) do not contravene, conflict with or cause terms of the Issuer to be in breach or default of its memorandum or articles, or articles Issuer's charter documents or by-laws, as any contract or instrument to which the case may beIssuer is a party or by which it or its property is bound, or any law or regulation, or any order, writ, injunction or decree of any resolution court or governmental instrumentality, to which the Issuer is subject or by which it or its property is bound.
(vii) There are no actions, suits, proceedings, claims or governmental investigations pending or, to the knowledge of its respective directors or shareholdersthe Issuer, any trust deeds, debenture, loan agreements threatened against the Issuer or any of its other agreements officers or undertakings directors or any judgementpersons who control the Issuer (within the meaning of Section 15 of the 1933 Act or Section 20 of the Exchange Act) or to which any property of the Issuer is subject, decree which could in any way result in a material adverse change in the condition (financial or order to otherwise) of the Issuer, or by materially prevent or interfere with, or materially and adversely affect the Issuer's execution, delivery of performance of, any of this Agreement, the Issuing and Paying Agency Agreement and the Notes, of which it is a party to or is bound;the Placement Agent has not been notified in writing.
(gviii) at The initial Offering Materials do not, and any amendments or supplements thereto and any subsequent Offering Materials and any amendments or supplements thereto will not, contain any untrue statement of a material fact or omit to state a
(b) Each issuance of Notes by the Closingissuer shall be deemed a representation and warranty by the Issuer to the Placement Agent, upon payment as of the purchase pricedate thereof, that both before and after giving effect to such issuance, (i) the Shares shall be duly issued representations and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise warranties of the Warrants Issuer set forth in Section 3(a) hereof remain true and payment correct on and as of such date as if made on and as of such date (except to the exercise price therefore, extent such representations and warranties expressly relate solely to an earlier date); (ii) the Warrant Shares shall be duly issued corporate resolutions and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner certificate of the properties, business and assets or the interests in the properties, business or assets incumbency referred to in Section 5 hereof remain accurate and in full force and effect; (iii) since the Disclosure Recorddate of the most recent Offering Materials, there has been no material adverse change in the financial condition or operations of the Issuer which has not been disclosed to the Placement Agent in writing; and (iii) the properties are Issuer is not in good standing default of any of its obligations hereunder, under the applicable laws of the jurisdictions in which they are situatedIssuing and Paying Agency Agreement or under any Note.
Appears in 1 contract
Sources: Commercial Paper Placement Agency Agreement (Harsco Corp)
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Collateral Manager that:
(a) the Issuer is a corporation (i) has been duly incorporated as an exempted company and is validly subsisting existing under the laws of British Columbia and the Cayman Islands; (ii) has the corporate full power and authority to enter into own the Issuer’s assets and the securities proposed to be owned by the Issuer and included among the Collateral and to transact the business for which the Issuer was incorporated; (iii) is duly qualified under the laws of each jurisdiction where the Issuer’s ownership or lease of property or the conduct of the Issuer’s business requires or the performance of the Issuer’s obligations under this Agreement and complete the transactions contemplated hereby Indenture would require such qualification, except for failures to be so qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Issuer or the ability of the Issuer to perform its obligations under, or on the validity or enforceability of, this Agreement and the Indenture; and (iv) has full power and authority to own execute, deliver and lease its properties perform the Issuer’s obligations hereunder and assets and to conduct its business as currently conductedthereunder;
(b) this Agreement and the Indenture have been duly authorized, executed and delivered by the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of constitute legal, valid and binding agreements enforceable against the Issuer in accordance with their terms except that the enforceability thereof may be subject to enable it (i) bankruptcy, insolvency, reorganization, winding-up, moratorium, receivership, conservatorship or other similar laws now or hereafter in effect relating to issue to the Purchaser the Shares creditors’ rights and the Warrant Shares(ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(c) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other Person is required for the common shares performance by the Issuer of its duties hereunder or under the Indenture, except those that may be required under state securities or “blue sky” laws or the applicable laws of any jurisdiction outside of the Company are United States, and such as have been duly listed and posted for trading on the Exchangemade or obtained;
(d) no order ceasing neither the execution, delivery and performance of this Agreement or suspending trading in securities of the Indenture nor the performance by the Issuer nor prohibiting of its duties hereunder or under the sale Indenture (i) conflicts with 28547457.3 or will violate or result in a default under the Issuer’s Governing Documents or any material contract or agreement to which the Issuer is a party or by which it or its assets may be bound, or any law, decree, order, rule, or regulation applicable to the Issuer of such securities has been issued to any court or regulatory, administrative or governmental agency, body or authority or arbitrator having jurisdiction over the Issuer or its directorsproperties, officers or promoters (other than as contemplated or against permitted by the Indenture) will result in a lien on any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the property of the Issuer is and (ii) would have a material adverse effect upon the ability of the Issuer to perform its duties under this Agreement or ought to be awarethe Indenture;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is its Affiliates are not in material default violation of any federal, state or Cayman Islands laws or regulations, and there is no charge, investigation, action, suit or proceeding before or by any court or regulatory agency pending or, to the best knowledge of the requirements Issuer, threatened that, in any case, would have a material adverse effect upon the ability of the SECURITIES ACT (B.C.) Issuer to perform its duties under this Agreement or the Rules thereunder, or of any rule or requirement of the ExchangeIndenture;
(f) the execution, delivery and performance by Issuer is not an “investment company” under the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;1940 Act; and
(g) at the Closing, upon payment assets of the purchase price, Issuer do not and will not at any time constitute the Shares shall be duly issued and outstanding as fully paid and non-assessable, assets of any plan subject to the Warrants shall be duly granted and enforceable against the Company, upon exercise fiduciary responsibility provisions of ERISA or of any plan subject to Section 4975 of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedCode.
Appears in 1 contract
Sources: Collateral Management Agreement (TPG RE Finance Trust, Inc.)
Representations and Warranties of the Issuer. 8.1 The Issuer hereby represents and warrants to the Subscriber (which representations and warranties will survive the Closing) that:
(a) each of the Issuer and the Material Subsidiaries (as defined herein) is a corporation duly incorporated and validly subsisting under the laws of British Columbia and has its jurisdiction of incorporation, licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease character of its properties owned or leased or the nature of the activities conducted by it make such licensing, registration or qualification necessary and assets carries and to conduct shall carry on its business as currently conductedin the ordinary course and in compliance in all material respects with all Applicable Laws of each such jurisdiction;
(b) on the Closing Date, the Issuer shall do will have taken all acts corporate steps and things proceedings necessary to reserve or set aside sufficient shares in duly approve the treasury transactions contemplated under this Agreement, including its execution and delivery, and the execution and delivery of the Issuer to enable it to issue to the Purchaser the Shares IRA Amendment and the Warrant Shareseach other agreement contemplated by this Agreement;
(c) on the common shares Closing Date the Issuer will have caused ACM to have taken, all corporate steps and proceedings necessary to duly approve the transactions contemplated under this Agreement, including the execution and delivery of the Company are duly listed CCCPRA Amendment and posted for trading on the Exchangeeach other agreement contemplated by this Agreement to which ACM is a party;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awarenot in breach of any securities laws;
(e) at the Issuer is a reporting issuer time of closing on the Closing Date, the Common Shares will be duly and an exchange issuer under validly created, authorized and issued; will be validly issued as fully paid as non-assessable Common Shares in the SECURITIES ACT (B.C.) and is not in material default of any capital of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the ExchangeIssuer;
(f) the execution, issuance and delivery and performance of the Common Shares by the Issuer to the Subscriber does not and will not constitute a breach of or default under the constating documents of the Issuer or any law, regulation, order or ruling applicable to the Issuer or any agreement, contract or indenture to which the Issuer is a party or by which it is bound;
(g) for the purposes of the transactions contemplated herein, the Issuer has provided notice to the shareholders of the Issuer under the pre-emptive rights provisions of the Shareholder Agreement (and Issuer has provided a copy of such notice to the Subscriber) and the relevant exercise period has expired without any shareholders exercising their pre-emptive rights;
(h) the Issuer is authorized to issue an unlimited number of Common Shares and an unlimited number of Class B common shares; and as of the date of this Agreement Agreement, 28,885,000 Common Shares are issued and the transactions herein contemplated:outstanding and no Class B common shares are issued and outstanding;
(i) have as of the Closing Date, there exist no options, warrants, rights of conversion or will have been prior other rights, contracts or commitments that could require the Issuer to issue any Common Shares or other securities other than the pre-emptive rights set out in the Shareholder Agreement and the 40,000 options that the Issuer has agreed to grant to M▇▇▇▇▇▇ ▇▇▇▇▇▇ upon the completion of an initial public offering of the Issuer, pursuant to the Closing duly authorized employment agreement between the Issuer and M▇▇▇▇▇▇ ▇▇▇▇▇▇ dated February 7, 2022;
(j) except for M▇▇▇▇▇▇ ▇▇▇▇▇▇ and A▇▇▇ ▇▇▇▇▇▇, the Issuer has no employees and other than S▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, the Issuer has no independent contractors, and neither of such employees are entitled to any bonus, increase in compensation or other benefit that is contingent on the Closing. The Issuer has provided copies of the employment agreements between the Issuer and each of M▇▇▇▇▇▇ ▇▇▇▇▇▇ and A▇▇▇ ▇▇▇▇▇▇, and there are no other agreements, whether written or oral, between either of such employees and the Issuer;
(k) the issuance and sale of the Common Shares by all necessary corporate action the Issuer and the fulfilment of the terms hereof does not and will not conflict with or constitute a breach of or default under (i) the constating documents of the Issuer or its Material Subsidiaries (as defined below), (ii) any Applicable Laws, order or ruling or (ii) any agreement, contract or indenture, including any covenants or provisions respecting the Issuer’s right to issue additional equity, or any pre-emptive right or similar rights therein, to which the Issuer or any of its Material Subsidiaries (as defined below) is a party or by which it is bound, or to which any of the property or assets of the Issuer or any of its Material Subsidiaries (as defined below) is subject;
(l) each of this Agreement, the IRA Amendment, the CCCPRA Amendment and each other agreement of the Issuer and its affiliates contemplated hereby, when signed by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-lawssuch affiliates, as the case may be, constitutes a binding and enforceable obligation of the Issuer or of any resolution of such affiliates, as applicable, enforceable in accordance with its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is boundterms;
(gm) at the Closing, upon payment Exhibit “G” accurately shows (i) each direct and indirect subsidiary of the purchase priceIssuer (collectively, “Material Subsidiaries”); (ii) the registered and beneficial holders of all of the issued and outstanding shares in the capital of each of the Material Subsidiaries; and (iii) the numbers and classes of shares currently held by each such holder and the percentage in the outstanding capital of each Material Subsidiary. The Issuer has no assets other than the holding of the shares of each of the Material Subsidiaries;
(n) International Copper Mining Inc. has no assets other than the holding of the shares of each of Los Azules Mining Inc. and San J▇▇▇ Copper Inc., and neither of Los Azules Mining Inc. and San J▇▇▇ Copper Inc. has assets other than shares of ACM; and none of International Copper Mining Inc., Los Azules Mining Inc. and San J▇▇▇ Copper Inc. (together, the Shares shall “Cayman Subsidiaries”) operated or engaged in, or operates or engages in, any business activities, operations or management other than business activities, operations or management related to the Los Azules Project;
(o) the Issuer has not operated or engaged in, and is not operating or engaged in, any business activities or operations other than those related to the Los Azules Project and the Elder Creek Project;
(p) except for the Shareholder Agreement and the Nuton collaboration agreement dated August 30, 2022, as amended (the “Nuton Collaboration Agreement”) by and among the Issuer, MUX, R▇▇▇▇▇ ▇▇▇▇▇▇ and Nuton LLC and the copper Cathodes and Concentrates Purchase Rights Agreement dated March 9, 2023 between Nuton LLC and ACM, none of the shareholders of the Issuer (other than the Subscriber) have any agreements or side letters with the Issuer granting such shareholders any rights in respect of the Issuer, including the right to nominate directors for appointment to the board of directors of the Issuer or any approval rights with respect to any transactions of the Issuer or the Material Subsidiaries (including, without limitation, granting of offtake, royalty, stream or similar rights with respect to the Los Azules Project);
(q) there are no circumstances, developments or events that would constitute or reasonably be duly expected to constitute a material adverse effect in respect of any of the Issuer or the Material Subsidiaries;
(r) there are no: (i) Claims pending or, to the knowledge of the Issuer, threatened against any of the Issuer or the Material Subsidiaries before or by any governmental authority; and (ii) outstanding judgments, orders, decrees, writs, injunctions, decisions, rulings or awards against any of the Issuer or the Material Subsidiaries or affecting any of the Issuer, the Material Subsidiaries, the Los Azules Project or the Elder Creek Project;
(s) the articles, bylaws, minute books, share registers and other corporate records of the Issuer and the Material Subsidiaries have been maintained in accordance with Applicable Laws and contain complete and accurate records of all matters required to be dealt with in such books and records, in each case, in all material respects;
(t) the Issuer owns all of the issued and outstanding securities of the Material Subsidiaries, free and clear of any encumbrances and defects, and has no other subsidiaries. All of the outstanding equity interests in the Material Subsidiaries have been duly authorized and validly issued and all of such equity interests are outstanding as fully paid and non-assessableassessable shares. There exist no options, warrants, purchase rights, or other contracts or commitments that would require the Issuer or any other person to sell, transfer or otherwise dispose of any equity interests of the Material Subsidiaries or for the issue or allotment of any unissued shares in the capital of the Material Subsidiaries or any other security convertible into or exchangeable for any such shares. None of the Issuer or the Material Subsidiaries has any obligations (including any obligation to provide any guarantee, security, support, indemnification, assumption or endorsement of or any similar commitment with respect to the obligations, liabilities or indebtedness of any other person) including, without limitation, the Warrants shall be duly granted obligations of MUX under the amended and enforceable against the Companyrestated credit agreement dated May 19, upon exercise 2023 between MUX and Evanachan Limited;
(u) each of the Warrants Material Subsidiaries has been duly incorporated or established and payment of the exercise price therefore, the Warrant Shares shall be duly issued is validly existing and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of its respective jurisdiction of organization with all requisite corporate power and authority to own, use, lease and operate its properties and conduct its business in the jurisdictions manner currently conducted, and is duly qualified to transact business in each jurisdiction where it carries its business;
(v) the Issuer and its Material Subsidiaries (i) are conducting their business operations in material compliance with Applicable Laws, including without limitation those of the country, state, province, municipality or other local or foreign jurisdiction in which they such entity carries on business or conducts its activities; (ii) have received and hold all material permits, by-laws, licenses, waivers, exemptions, consents, certificates, registrations, rights, rights of way, entitlements and other approvals which are situated.required from any governmental or regulatory authority or any other person necessary to the conduct of their business and activities as currently conducted, and to the conduct of their business as proposed to be conducted pursuant to the use of funds proposal underlying the proposed placement, including but not limited to those required under applicable mining and environmental laws (“Authorizations”); and (iii) are in material compliance with all terms and conditions of such Authorizations, and such Authorizations are in full force and effect in all material respects; and (iv) have not received any notice of the modification, suspension, revocation, cancellation or non-renewal of, or any intention to modify, suspend, revoke, cancel or not renew or any proceeding relating to the modification, suspension, revocation, cancellation or non-renewal of any such Authorizations, and no Authorizations will be subject to modification, suspension, revocation, cancellation or non-renewal as a result of the execution and delivery of this Agreement or the Closing;
(w) except to the extent qualified by the V▇▇▇▇▇ Opinion, which the Subscriber acknowledges having received, the Issuer and each of its Material Subsidiaries (i) own, hold or lease all such properties as are necessary to the conduct of their respective businesses as currently operated, and to the conduct of their business as proposed to be conducted pursuant to the use of funds proposal underlying the proposed placement; and (ii) have good and marketable title under Applicable Laws to all real property and good and marketable title to all personal property owned by them that constitute the Los Azules Project and the Elder Creek Project and to all material personal property owned by them in the conduct of their business on the Los Azules Project and the Elder Creek Project, in each case free and clear of all liens, encumbrances and defects; and any real property and buildings to be held under lease or sublease by the Issuer and the Material Subsidiaries are held by them under valid, subsisting and enforceable leases; (A) the “Los Azules Project” means the Los Azules project owned by ACM and located in the San J▇▇▇ Province, Argentina, which involves exploration, development and other operations on the mineral properties, claims and any other mineral rights listed in, and depicted by the map in, Exhibit “H” hereto, and which includes the project described in the technical report entitled “SEC S-K 229.1304 Initial Assessment Individual Disclosure for the Los Azules Project, Argentina” with an effective reporting date of September 1, 2017 prepared by Mining Plus; and (B) the “Elder Creek Project” means the project commonly known as the Elder Creek project, which is owned by NPGUS LLC and located near Elder Creek, Nevada, USA, which involves exploration, development and other operations on the mineral properties, claims and any other mineral rights comprising such project;
Appears in 1 contract
Sources: Private Placement Subscription Agreement (McEwen Mining Inc.)
Representations and Warranties of the Issuer. 5.1 The Issuer represents, warrants and covenants that, as of the date given above and at the Closing:
(a) the Issuer is a valid and subsisting corporation duly incorporated and validly subsisting in good standing under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedColumbia;
(b) the Issuer shall do all acts is duly registered and things necessary licensed to reserve or set aside sufficient shares carry on business in the treasury jurisdictions in which it carries on business or owns property where required under the laws of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Sharesthat jurisdiction;
(c) this Subscription Agreement has been or will be by the common shares Closing, duly authorized by all necessary corporate action on the part of the Company are duly Issuer, and the Issuer has or will have by the Closing full corporate power and authority to undertake the Offering;
(d) the Common Shares of the Issuer are, and will continue to be as of the Closing Date, listed and posted for trading on the Exchange;
(de) the Issuer has filed all federal, provincial, local and foreign tax returns which are required to be filed, or has requested extensions thereof, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith;
(f) the Issuer has complied, or will comply, with all applicable corporate and securities laws and regulations in connection with the offer, sale and issuance of the Purchased Securities;
(g) no order ceasing or suspending trading in the securities of the Issuer nor or prohibiting the sale of such its securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and to the best of the Issuer’s knowledge no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awarethreatened;
(eh) the Issuer is a “reporting issuer issuer” in the provinces of British Columbia and an exchange issuer under the SECURITIES ACT (B.C.) Alberta and is not in material default included on the list of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance defaulting reporting issuers maintained by the Issuer of this Agreement and the transactions herein contemplated:Commissions;
(i) have or will have been prior to upon their issuance on the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase priceDate, the FT Shares shall will be duly validly issued and outstanding as fully paid and non-assessableassessable common shares of the Issuer;
(j) the Issuer shall keep proper and complete books, records and accounts in accordance with generally accepted accounting principles showing true and accurate records of all Qualifying Expenditures incurred pursuant to this Agreement and upon reasonable notice shall make such books, records and accounts in respect of the relevant Qualifying Expenditures available for inspection by or on behalf of the Purchaser;
(k) the Issuer shall file with CRA within the time prescribed by subsection 66(12.68) of the Tax Act the forms prescribed for the purposes of such subsection together with a copy of this Agreement and any “selling instrument” contemplated by such legislation or by this Agreement and shall forthwith following such filings and upon receiving a written request from the Purchaser, provide to the Purchaser a copy of such forms certified by an officer of the Issuer;
(l) the Issuer or its subsidiaries, if any, is licensed, registered or qualified as an extra provincial or foreign issuer in all jurisdictions where the character of the property or assets thereof owned or leased or the nature of the activities generating Qualifying Expenditures conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in compliance with all applicable laws, rules and regulations of each such jurisdiction;
(m) the Issuer has no reason to believe that it will be unable to incur during the period commencing on the Closing Date and ending on the Termination Date, or that it will be unable to renounce to the Purchaser effective on or before December 31, 2020, Qualifying Expenditures in an aggregate amount equal to the Commitment Amount;
(n) the Issuer has not breached any flow-through share agreement to which it is or was a party and, in particular, the Warrants Issuer has not failed to incur and renounce expenses which it covenanted to incur and renounce nor has the CRA or the Issuer reduced pursuant to subsection 66(12.73) of the Tax Act any amount renounced by the Issuer;
(o) the Issuer hereby agrees to incur Qualifying Expenditures on its mineral properties in accordance with this Agreement and the Tax Act, and in an amount equal to the Commitment Amount during the period commencing on the Closing Date and ending on the Termination Date, and the Issuer agrees to renounce pursuant to subsection 66(12.6) of the Tax Act in prescribed form to the Purchaser in respect of the FT Shares purchased by the Purchaser pursuant to this Agreement an amount in respect of such Qualifying Expenditures so incurred by the Issuer equal to the Commitment Amount, with an effective date no later than December 31, 2020;
(p) the Issuer shall deliver to the Purchaser, before March 1, 2021, the Prescribed Forms that the Issuer is required to deliver to the Purchaser pursuant to the provisions of the Tax Act, fully completed and executed, renouncing to the Purchaser Qualifying Expenditures in an amount equal to the Commitment Amount with an effective date of no later than December 31, 2020 and shall timely file such Prescribed Forms with the relevant taxation authorities;
(q) the Issuer shall incur and renounce Qualifying Expenditures pursuant to this Agreement and all other agreements with other persons providing for the issue of FT Shares entered into by the Issuer on the Closing Date (collectively, the “Other Agreements”) pro rata by the number of FT Shares issued or to be issued pursuant thereto before incurring and renouncing qualifying expenditures pursuant to any other agreement which the Issuer has entered into or shall enter into with any person with respect to the issue of flow- through shares (as defined in subsection 66(15) of the Tax Act) subsequent to this Agreement; the Issuer shall not, without the prior consent of the Purchaser enter into any other agreement which would prevent or restrict its ability to renounce Qualifying Expenditures to the Purchaser in the amount of the Commitment Amount; if the Issuer is required under the Tax Act to reduce Qualifying Expenditures previously renounced to the Purchaser, the reduction shall be duly granted made pro rata by the number of FT Shares issued or to be issued pursuant to this Agreement to the reduction made under the Other Agreements but the Issuer shall not reduce Qualifying Expenditures renounced to the Purchaser under this Agreement until it has first reduced to the extent possible all qualifying expenditures renounced to persons other than the Purchaser and enforceable against the Company, upon exercise subscribers under the Other Agreements pursuant to agreements entered into after the Closing Date;
(r) the Issuer shall incur and renounce Qualifying Expenditures in the amount of the Warrants and payment Commitment Amount;
(s) the Qualifying Expenditures to be renounced by the Issuer to the Purchaser:
(i) will constitute Qualifying Expenditures on the effective date of the exercise price therefore, renunciation;
(ii) will not include any amount that has previously been renounced by the Warrant Shares shall Issuer to the Purchaser or to any other person;
(iii) would be duly issued and outstanding as fully paid and non-assessabledeductible by the Issuer in computing its income for the purposes of Part I of the Tax Act but for the renunciation to the Purchaser if the Issuer had sufficient income; and
(hiv) except will not be subject to any reduction under subsection 66(12.73) of the Tax Act;
(t) the Issuer shall not reduce the amount renounced to the Purchaser pursuant to subsection 66(12.6) of the Tax Act;
(u) the Issuer shall not be subject to the provisions of subsection 66(12.67) of the Tax Act in a manner which impairs its ability to renounce Qualifying Expenditures to the Purchaser in an amount equal to the Commitment Amount;
(v) if the Issuer receives, or becomes entitled to receive, any government assistance which is described in paragraph (a) of the definition of “excluded obligation” in subsection 6202.1(5) of the Regulations and the receipt or entitlement to receive such government assistance has or will have the effect of reducing the amount of Qualifying Expenditures that may validly be renounced to the Purchaser hereunder to less than the Commitment Amount, the Issuer shall incur on or before the Termination Date sufficient additional Qualifying Expenditures so that it is able to renounce an amount equal to the Commitment Amount to the Purchaser after accounting for government assistance received, and to the extent it is not able to do so the Issuer shall remit to the Purchaser the benefit of all amounts received or receivable in respect of such government assistance to the extent of such reduction but only to the extent the flowing out of such assistance to the Purchaser is in accordance with any of the relevant statutes referenced in paragraph (a) of the definition of “excluded obligation” in subsection 6202.1(5) of the Regulations;
(w) if the Issuer does not incur on or before the Termination Date and renounce to the Purchaser, effective on or before December 31, 2020, Qualifying Expenditures equal to the Commitment Amount, the Issuer shall, provided the Purchaser is not in breach of any of its representations under this Agreement which would prevent the renunciation of such expenses to the Purchaser, indemnify and hold harmless the Purchaser and each of the partners thereof if the Purchaser is a partnership or a limited partnership (each an “Indemnified Party”), as qualified to, and pay in settlement thereof to the Indemnified Party on or before the twentieth Business Day following the Termination Date, an amount equal to the amount of any tax (within the meaning of paragraph (c) of the definition of “excluded obligation” in subsection 6202.1(5) of the Regulations) payable under the Tax Act (and under any corresponding provincial legislation) by the disclosure Indemnified Party as a consequence of such failure; in all prospectuses, filing statements and press releases filed with the Commissions event that CRA (or any similar provincial tax authority) reduces the Exchange amount renounced by the Issuer to the Purchaser pursuant to subsection 66(12.73) of the Tax Act (or the Offering Memorandum, if any, (the "Disclosure Record"any corresponding provincial legislation), the Company is Issuer shall indemnify and hold harmless each Indemnified Party, as to, and pay in settlement thereof to the beneficial owner Indemnified Party on or before the twentieth Business Day following the date of such reduction, an amount equal to the amount of any tax (within the meaning of paragraph (c) the definition of “excluded obligation” in subsection 6202.1(5) of the propertiesRegulations) payable under the Tax Act (and under any corresponding provincial legislation) by the Indemnified Party as a consequence of such reduction. Notwithstanding the foregoing, this indemnity shall have no force or effect and the Purchaser shall not have any recourse or rights of action to the extent that such indemnity, recourse or right of action would otherwise cause the FT Shares to be “prescribed shares” within the meaning of section 6202.1 of the Regulations;
(x) the Issuer is and will continue to be a “principal-business corporation” as defined in subsection 66(15) of the Tax Act until such time as the last of the Qualifying Expenditures have been incurred and assets validly renounced to the Purchaser;
(y) upon issue, the FT Shares issued and sold to the Purchaser pursuant to this Agreement will be a “flow-through share” as defined in subsection 66(15) of the Tax Act and the FT Shares will not constitute a “prescribed share” for the purpose of section 6202.1 of the Regulations, provided that the Purchaser is not in breach of any of its representations, warranties, covenants or certifications under this Agreement which would prevent the interests renunciation of Qualified Expenditures to the Purchaser or cause a FT Share to be a “prescribed share” including, without limitation, the Purchaser’s representation in Section 2.2(x);
(z) the propertiesIssuer will not take any step or fail to take any step if, business under the Tax Act, such action or assets referred omission would result in a reduction of amounts required to be renounced to the Purchaser pursuant to the terms of this Agreement; and
(aa) to the extent that any Indemnified Party entitled to be indemnified under subsection 3.1(w) of this Agreement is not a party to this Agreement, the Purchaser shall obtain and hold the rights and benefits of this Agreement in the Disclosure Recordtrust for, and on behalf of, such Indemnified Party and such Indemnified Party shall be entitled to enforce the properties are provisions of this section notwithstanding that such Indemnified Party is not a party to this Agreement.
5.2 Survival of representations and warranties The representations and warranties contained in good standing under this Section will survive the applicable laws Closing for a period of the jurisdictions in which they are situatedtwo years.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby makes the following representations and warranties to the Seller:
(a) the The Issuer is a corporation duly incorporated organized, validly existing and validly subsisting in good standing under the laws of British Columbia and the State of Delaware. The Issuer has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct carry on its business as currently conducted;
(b) now being conducted and is duly qualified to do business and is in good standing in each jurisdiction in which the Issuer shall do all acts failure to be so qualified and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading good standing would have a material adverse effect on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer. The Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default violation of any of the requirements provisions of the SECURITIES ACT (B.C.) its certificate of incorporation or the Rules thereunderby-laws. No consent, approval or agreement of any rule individual or requirement of entity is required to be obtained by the Exchange;
(f) Issuer in connection with the execution, delivery execution and performance by the Issuer of this Agreement or the execution and performance by the transactions herein contemplated:Issuer of any agreements, instruments or other obligations entered into in connection with this Agreement.
(ib) have The Issuer has authorized capital stock consisting of 100,000,000 shares of Issuer Common Stock, and 10,000,000 shares of preferred stock, par value $0.0001 per share (the “Preferred Stock”), of which 5,000,000 shares of Common Stock, consisting of the Shares, and no shares of Preferred Stock, are the only shares presently issued and outstanding.
(c) There is no private or will have been prior governmental action, suit, proceeding, claim, arbitration or investigation pending before any agency, court or tribunal, foreign or domestic, or, to the Closing duly authorized by all necessary corporate action of Issuer’s knowledge, threatened against the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings properties or any judgementof its officers or directors (in their capacities as such). There is no judgment, decree or order to against the Issuer that could prevent, enjoin, alter or by which it is a party to or is bound;
(g) at the Closing, upon payment delay any of the purchase price, the Shares transactions contemplated by this Agreement. The term “Issuer’s knowledge” shall be duly issued mean and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise include actual knowledge of the Warrants and payment Seller or of any member, director or officer of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedIssuer.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to AMBAC on and as of the Closing Date, as follows:
(a) the Issuer it and each of its Subsidiaries (including, without limitation, Northern) is a corporation duly incorporated and validly subsisting existing under the laws of British Columbia England and has the corporate Wales with full power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conducteddescribed in the Offering Circular, is not in liquidation or receivership and is lawfully qualified to do business in those jurisdictions in which business is conducted by it, except where the failure to so qualify is not reasonably likely to have a material adverse effect on the financial condition, business or results of operations of the Issuer and its Subsidiaries (including, without limitation, Northern) taken as a whole (the "Group") (such effect being hereinafter referred to as a "Material Adverse Effect");
(b) the Transaction Documents have been duly authorised by the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject only to enable it all applicable insolvency laws affecting the rights of creditors generally and to issue to the Purchaser the Shares and the Warrant Sharesgeneral principles of equity;
(c) the common shares Bonds have been duly authorised by the Issuer and, when duly executed, authenticated, issued and delivered in accordance with the Trust Deed, will constitute legal, valid and binding obligations of the Company are duly listed Issuer, enforceable against the Issuer in accordance with their terms, subject only to all applicable insolvency laws affecting creditors' rights generally and posted for trading on the Exchangeto general principles of equity;
(d) no order ceasing action or suspending trading in securities thing is required to be taken, fulfilled or done (including, without limitation, the obtaining of any consent or licence or the making of any filing or registration) for the issue of the Bonds, the carrying out of the other transactions contemplated by the Transaction Documents or the compliance by the Issuer nor prohibiting with the sale terms of such securities has the Bonds and the Transaction Documents, except for those which have been issued obtained and are in full force and effect and not subject to any conditions which require to be satisfied prior to the Issuer date hereof and have not been satisfied, and except where the failure to take any such action or its directorsfulfill any such requirement would not, officers individually or promoters in the aggregate, result in a Material Adverse Effect or against any other companies that have common directors, officers impair the validity or promoters and no investigations enforceability of the Transaction Documents or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be awareBonds;
(e) the Issuer is execution and delivery of the Transaction Documents, the issue of the Bonds, the carrying out of the other transactions contemplated by the Transaction Documents and compliance with their terms do not and will not (i) conflict with or result in a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default breach of any of the requirements terms or provisions of, or constitute a default under, the documents constituting the Issuer or Northern or any indenture, trust deed, mortgage or other agreement or instrument to which the Issuer or any other member of the SECURITIES ACT Group is a party or by which any of them or any of their respective properties is bound, or (B.C.ii) infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over the Issuer, any such other member of the Group or any of their respective properties or assets or infringe the rules of any stock exchange on which securities of the Issuer are listed, where any such conflict, breach, default or infringement, individually or in the aggregate, is reasonably likely to (x) have a Material Adverse Effect or (y) impair the validity or enforceability of the Transaction Documents or the Rules thereunder, or of any rule or requirement of the ExchangeBonds;
(f) other than with respect to the executionAMBAC Information (as defined below) (i) the Offering Circular contains all information with respect to the Issuer, delivery the Group and performance the Bonds which is material in the context of the issue and offering of the Bonds, (ii) all statements of fact contained in it are true and accurate in all material respects and not misleading in any material respect, (iii) the opinions and intentions expressed in it with regard to the Issuer and to the Group are honestly held, have been reached after considering all relevant circumstances and are based on reasonable assumptions (it being understood that opinions and intentions necessarily involve uncertainties), (iv) there is no other fact or matter omitted from the Offering Circular which (x) is necessary to enable investors and their investment advisers to make an informed assessment of the assets and liabilities, financial position, profits and losses and prospects of the Issuer and the Group and of the rights attaching to the Bonds, or (y) the omission of which makes any statement therein misleading in any material respect, or (z) in the context of the issue and offering of the Bonds is material for disclosure therein; and (v) all reasonable enquiries have been made by the Issuer to ascertain such facts and to verify the accuracy of all such information and statements, provided that this subsection 2.01(f) shall not apply to statements in the Offering Circular based on written information furnished to the Issuer by the Lead Managers as defined in the Subscription Agreement (the "Lead Manager Information"), it being understood and agreed that the transactions herein contemplated:only such information is the legend concerning over-allotments and stabilisation on page 2 of the Offering Circular.
(i) have or will the consolidated financial statements of Northern and its consolidated subsidiaries taken as a whole (the "Northern Consolidated Group") incorporated by reference in the Offering Circular were prepared in accordance with accounting principles generally accepted in, and pursuant to the relevant laws of, the United Kingdom consistently applied and give a true and fair view of the financial position of the Northern Consolidated Group as at the dates, and the results of operations and changes in financial position of the Northern Consolidated Group as at the dates, and the results of operations and changes in financial position of the Northern Consolidated Group for the periods, in respect of which they have been prior to the Closing duly authorized by all necessary corporate action of the Issuer prepared, and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause since the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment date of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise last audited consolidated financial statements of the Warrants and payment Northern Consolidated Group incorporated by reference in the Offering Circular there has been no material adverse change, nor any development involving a prospective material adverse change, in the financial condition, business or results of operations of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; andNorthern Consolidated Group;
(h) except as qualified by disclosed in the disclosure Offering Circular, there are no pending actions, suits or proceedings against or involving the Issuer or any other member of the Group or any of their respective properties which, if determined adversely to any such member of the Group, would be reasonably likely to have, individually or in all prospectusesthe aggregate, filing statements and press releases filed with a Material Adverse Effect or would adversely affect the Commissions ability of the Issuer to perform its obligations under the Transaction Documents or the Exchange Bonds or which are otherwise material in the context of the issue of the Bonds and, to the best of the Issuer's knowledge, having made all reasonable enquiries, no such actions, suits or proceedings are threatened;
(i) no event has occurred or circumstance arisen which, had the Bonds already been issued, would constitute an event described under "Issuer Events of Default" in the conditions of the Bonds as set out in the Offering MemorandumCircular;
(j) neither the Issuer nor any other member of the Group is in default in the performance or observance of its obligations under or in respect of any agreement, if anyundertaking or instrument to which the Issuer or any other member of the Group is party or by which the Issuer or any other member of the Group may be bound and no event has occurred which would constitute a default under or in respect of such agreement, undertaking or instrument other than, in each case, such defaults that would not, individually or in the aggregate, have a Material Adverse Effect;
(k) except as disclosed in the Offering Circular, neither the Issuer nor any other member of the Group is in violation of any statute, rule, regulation, decision or order of any governmental agency or body or any court, whether domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, "Disclosure Recordenvironmental laws"), owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would individually or in the Company is aggregate have a Material Adverse Effect;
(l) since the beneficial owner date of the properties, business and assets or the interests latest audited financial statements incorporated by reference in the properties, business Offering Circular (i) except as disclosed in or assets referred contemplated by the Offering Circular no member of the Group has entered into a transaction material to the Group other than those in the Disclosure Recordordinary course of business, and (ii) except as disclosed in the properties are Offering Circular, there has been no dividend or distribution of any kind declared, paid or made by the Issuer or any other member of the Group on any class of its share capital;
(m) neither the Issuer nor its affiliates nor any person acting on behalf of any of them have engaged or will engage in good standing any directed selling efforts (as defined in Regulation S under the applicable laws United States Securities Act of 1933, as amended (the Securities Act")) with respect to the Bonds;
(n) it reasonably believes that there is no substantial US market interest (as defined in Regulation S under the Securities Act) in its debt securities; and
(o) except as disclosed in the Offering Circular and except as would not have a Material Adverse Effect, (i) each member of the jurisdictions Group has carried on its business in which compliance in all respects with all legal and regulatory requirements applicable to such business, including, without limitation, the PES Licence, (ii) each member of the Group has all necessary permits, licences, authorisations, consents and approvals and has made all necessary filings required under any applicable law, regulation or rule, and has obtained all necessary authorisations, consents and approvals from other persons, required in the conduct of its businesses as they are situatedcurrently carried on, (iii) no member of the Group has received any notice of proceedings which remain unresolved relating to the revocation or modification of any such permits, licences, authorisations, consents or approvals, and (iv) no member of the Group is in breach of, or in default under, any such permits, licences, authorisations, consents or approvals or any applicable law, regulation or rule or any decree, order or judgment applicable to any member of the Group.
(p) The Bonds and the Issuer's obligations under this Insurance Agreement constitute direct, unsecured, (subject to the express term of the Trust Deed and this Insurance Agreement) unconditional and unsubordinated obligations of the Issuer;
(q) The PEC Licence has been issued to Northern and there are no breaches or violations of such PES Licence of which the Issuer is aware; and
(r) all ring-fencing and other provisions which restrict or limit the Issuer's and its Subsidiaries' business activities, asset dispositions, debt incurrence and corporate guarantees which are material to the Issuer and its Subsidiaries taken as a whole are contained in the Restrictive Documents, the PES Licence, the pending Licence Modifications, the Existing Bonds and not any other documents, and all such documents will have been supplied to AMBAC and its counsel prior to the date hereof.
Appears in 1 contract
Sources: Insurance and Indemnity Agreement (Midamerican Energy Holdings Co /New/)
Representations and Warranties of the Issuer. 5.1 The Issuer represents and warrants to the Purchaser, and acknowledges that the Purchaser is relying on these representations and warranties in entering into this Agreement, that:
(a) the Issuer is a corporation valid and subsisting company, duly incorporated and validly subsisting in good standing under the laws of British Columbia the jurisdiction in which it was incorporated, continued or amalgamated, no proceedings have been taken, instituted or, are pending for the dissolution of the Issuer, and the Issuer has all of the requisite corporate power power, capacity and authority carry on its businesses as now conducted or proposed to enter into this Agreement and complete the transactions contemplated hereby be conducted and to own or lease and lease its properties operate the property and assets and to conduct its business as currently conductedthereof;
(b) the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer in British Columbia, Alberta and an exchange issuer under Ontario, and the SECURITIES ACT (B.C.) and Issuer is not in material default of any of the requirements of the SECURITIES ACT Applicable Securities Laws;
(B.C.c) the Issuer is in good standing and licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the character of the property or assets thereof owned or leased or the Rules thereundernature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof in compliance with all applicable laws, rules and regulations of each such jurisdiction;
(d) the Issuer’s subsidiaries (the “Subsidiaries”), if any, are valid and subsisting companies and in good standing under the laws of the jurisdictions in which they were incorporated;
(e) the common shares of the Issuer are listed and posted for trading on the Exchange and the Issuer is not in default of any rule or requirement of the listing requirements of the Exchange;
(f) upon their issuance, the Unit Shares and the Warrant Shares will be validly issued and outstanding fully paid and non-assessable common shares of the Issuer registered as directed by the Purchaser, and, upon their issuance, the Securities will be free and clear of all liens, charges or encumbrances of any kind whatsoever and will not be subject to a restricted period or statutory hold period which extends beyond four months and one day after the First Closing Date or the Second Closing Date, as applicable, and the certificates representing the Securities shall bear only the following legend: UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [the date which is four months and one day after the First Closing Date or Second Closing Date, as applicable, will be inserted]. WITHOUT PRIOR WRITTEN APPROVAL OF THE TSX VENTURE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [the date which is four months and one day after the First Closing Date or Second Closing Date, as applicable, will be inserted].
(g) the Issuer and its Subsidiaries, if any, have good and marketable title to their property and assets free and clear of all liens, charges and encumbrances of any kind whatsoever;
(h) the Issuer and its Subsidiaries, if any, hold either directly or indirectly freehold title, mining leases, mining claims or other conventional property, proprietary or contractual interests or rights including interests and rights under option and/or joint venture agreements, recognized in the jurisdiction in which a particular property is located, in respect of the ore bodies and minerals located in properties in which they have an interest under valid, subsisting and enforceable title documents or other recognized and enforceable agreements or instruments, sufficient to permit them to explore the minerals relating thereto, all such property, leases or claims and all property, leases or claims in which they have any interest or right have been validly located and recorded in accordance with all applicable laws and are valid and subsisting, they have all necessary surface rights, access rights and other necessary rights and interests relating to the properties in which they have an interest granting them the right and ability to explore for minerals, ore and metals for development purposes as are appropriate in view of the rights and interest therein of it, with only such exceptions as do not interfere with the use made by them of the rights or interests so held, and each of the proprietary interests or rights and each of the documents, agreements and instruments and obligations relating thereto referred to above is currently in good standing in the name of the Issuer or its Subsidiaries, if any, as applicable;
(i) the Issuer and its Subsidiaries, if any, hold all licences and permits that are required for carrying on their business in the manner in which such business has been carried on and the Issuer and its Subsidiaries, if any, have the corporate power and capacity to own the assets owned by them and to carry on the business carried on by them and they are duly qualified to carry on business in all jurisdictions in which they carry on business;
(j) the audited consolidated financial statements of the Issuer for the years ended December 31, 2012 and December 31, 2011 (the “Audited Financial Statements”) together with the auditors' report thereon and the notes thereto, have been prepared in accordance with international financial reporting standards applied on a basis consistent with prior periods (except as disclosed in such consolidated financial statements), and present fairly the financial condition and position of the Issuer on a consolidated basis as at the dates thereof and such consolidated financial statements contain no direct or implied statement of a material fact which is untrue on the date of such consolidated financial statements and do not omit to state any material fact which is required by international financial reporting standards or by applicable law to be stated or reflected therein or which is necessary to make the statements contained therein not misleading;
(k) since December 31, 2012:
(i) the Issuer has not paid or declared any dividend or incurred any material capital expenditure or made any commitment therefor except in the ordinary course of business in connection with its mineral exploration activities;
(ii) the Issuer has not incurred any obligation or liability, direct or indirect, contingent or otherwise, except in the ordinary course of business and which is not, and which in the aggregate are not, material; and
(iii) the Issuer has not entered into any material transaction, except in each case as disclosed in the Information;
(l) the auditors of the Issuer who audited the Audited Financial Statements and who provided their audit report thereon are independent public accountants within the meaning of the applicable securities laws;
(m) except as disclosed in the Information, there are no material actions, suits, judgments, investigations or proceedings of any kind whatsoever outstanding, pending or, to the best of its knowledge, threatened against or affecting the Issuer or its Subsidiaries, if any, at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau or agency of any kind whatsoever and, to the best of the Issuer’s knowledge, there is no basis therefor;
(n) each of the documents which is part of the Information is, as of the date thereof, in compliance in all material respects with the Applicable Securities Laws and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and such documents collectively constitute full, true and plain disclosure of all material facts relating to the Issuer and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, as of the date hereof. There is no fact known to the Issuer which the Issuer has not publicly disclosed which materially adversely affects, or so far as the Issuer can reasonably foresee, will materially adversely affect, the assets, liabilities (contingent or otherwise), capital, affairs, business, prospects, operations or condition (financial or otherwise) of the Issuer or the ability of the Issuer to perform its obligations under this Agreement or which would otherwise be material to any person intending to make an equity investment in the Issuer;
(o) the Issuer is in compliance with all timely disclosure obligations under the Applicable Securities Laws and, without limiting the generality of the foregoing, there has not occurred any material adverse change in the assets, liabilities (contingent or otherwise), capital, affairs, business, prospects, operations or condition (financial or otherwise) of the Issuer which has not been publicly disclosed and none of the documents filed by or on behalf of the Issuer pursuant to the applicable securities laws contain a misrepresentation (as such term is defined in the BC Act) as at the date thereof;
(p) the Issuer maintains a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are completed in accordance with the general or a specific authorization of management of the Issuer; (ii) transactions are recorded as necessary to permit the preparation of consolidated financial statements for the Issuer in conformity with international financial reporting standards and to maintain asset accountability; (iii) access to assets of the Issuer is permitted only in accordance with the general or a specific authorization of management of the Issuer; and (iv) the recorded accountability for assets of the Issuer is compared with the existing assets of the Issuer at reasonable intervals and appropriate action is taken with respect to any differences therein;
(q) the Issuer is authorized to issue, among other things, an unlimited number of Shares, of which, as of the date hereof 80,660,193 Shares were issued and outstanding as fully paid Shares;
(r) no order ceasing or suspending trading in the securities of the Issuer nor prohibiting sale of such securities has been issued to the Issuer and to the best of the Issuer’s knowledge no investigations or proceedings for such purposes are pending or threatened;
(s) no person has any agreement, option, right or privilege (whether pre-emptive, contractual or otherwise) capable of becoming an agreement for the purchase, acquisition, subscription for or issue of any of the unissued shares or other securities of the Issuer, except pursuant to the outstanding options, warrants and preferred shares disclosed in the Information and VMS Ventures’ pre-emptive rights;
(t) other than VMS Ventures’ pre-emptive rights, the issue of the Securities will not be subject to or trigger any pre-emptive right or other contractual right to purchase securities granted by the Issuer or to which the Issuer is subject and which has not been waived;
(u) the Issuer has full corporate power and authority to enter into this Agreement and to do all acts and things and execute and deliver all documents as are required hereunder to be done, observed, performed or executed and delivered by it in accordance with the terms hereof and the Issuer has taken all necessary corporate action to authorize the execution, delivery and performance by the Issuer of this Agreement and to observe and perform the provisions of this Agreement in accordance with the provisions hereof including, without limitation, the issue of the Securities to the Purchaser;
(v) this Agreement constitutes a binding obligation of the Issuer enforceable in accordance with its terms, subject to the laws relating to creditors’ rights generally and equitable remedies;
(w) none of the creation, issuance and sale of the Securities by the Issuer, the execution and delivery of this Agreement, the compliance by the Issuer with the provisions of this Agreement or the consummation of the transactions herein contemplated:
contemplated herein, do or will (i) have require the consent, approval, or will authorization, order or agreement of, or registration or qualification with, any governmental agency, body or authority, court, stock exchange, securities regulatory authority or other person, except (A) such as have been prior obtained, or (B) such as may be required under the applicable securities laws and the policies and rules of the Exchange and will be obtained by the First Closing Date or Second Closing Date, as applicable, or (ii) conflict with or result in any breach or violation of any of the provisions of, or constitute a default under, or create a state of facts which after notice or lapse of time, or both, would constitute a default under any indenture, mortgage, deed of trust, lease or other agreement or instrument to which the Closing duly authorized Issuer is a party or by all necessary corporate action which it or any of its properties or assets is bound, or the constitution, articles or by-laws or any other constating document of the Issuer and or any resolution passed by all necessary action the directors (or any committee thereof) or shareholders of the shareholders Issuer, or any statute or any judgment, decree, order, rule, policy or regulation of any court, governmental authority, arbitrator, stock exchange or securities regulatory authority applicable to the Issuer or any of the properties or assets thereof;
(iix) do not contravene, conflict with there exists no continuing liabilities or cause obligations of the Issuer in respect of the activities, business, actions or agreements of the Issuer prior to be in breach or default of its memorandum or articlesApril 5, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound2010;
(gy) at there is no person acting or purporting to act in connection with the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessabletransactions contemplated herein who is entitled to any brokerage or finder’s fee; and
(hz) except as qualified any inspection or investigation by or in behalf of Subscriber shall not limit or affect any of the disclosure representations or express or implied warranties of Issuer which are contained herein or which are to be included or implied in all prospectusesany document, filing statements and press releases filed with instrument or agreement to be delivered at the Commissions or Closing.
5.2 Unless the Exchange or Issuer otherwise has advised the Offering Memorandum, if any, (the "Disclosure Record")Purchaser in writing, the Company is the beneficial owner representations and warranties of the properties, business Issuer contained in this Subscription Agreement shall be true at the time of Closing as though they were made at the time of Closing and assets or shall survive the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws completion of the jurisdictions in which they are situatedtransactions contemplated under this Subscription Agreement for a period of one year from the First Closing Date.
Appears in 1 contract
Sources: Unit Subscription Agreement (Sentient Executive GP IV, LTD)
Representations and Warranties of the Issuer. 4.1 The Issuer represents and warrants that, as of the date given above and at the Closing Date:
(a) the Issuer is a valid and subsisting corporation duly incorporated and validly subsisting in good standing under the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedjurisdiction of incorporation;
(b) the Issuer shall do all acts is duly registered and things necessary licensed to carry on business in the jurisdictions in which it carries on business or owns property where so required by the laws of that jurisdiction;
(c) the Issuer will reserve or set aside sufficient shares in the its treasury of the Issuer to enable it to issue to the Purchaser the Shares Shares, and the Warrant Shares;
(c) the common all such shares of the Company are will upon issuance be duly listed and posted for trading on the Exchange;validly issued as fully paid and non-assess able
(d) the Issuer has complied and will comply fully with the requirements of all applicable corporate and securities laws and administrative policies and directions, including, without limitation, the Act and State of Delaware company law in relation to all matters relating to the Private Placement;
(e) the issue and sale of the Securities by the Issuer does not and will not conflict with, and does not and will not result in a breach of, any of the terms of its incorporating documents or any agreement or instrument to which the Issuer is a party;
(f) this Agreement has been or will be by the Closing Date, duly authorized by all necessary corporate action on the part of the Issuer, and the Issuer has full corporate power and authority to undertake the Private Placement;
(g) the Issuer is a "reporting issuer" under the Act and is not in default of any of the requirements of the Act;
(h) no order ceasing ceasing, halting or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued to and is outstanding against the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened threatened; no person, firm or corporation acting or purporting to act at the request of which the Issuer is entitled to any brokerage, agency or ought to be aware;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not finder's fee in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance by the Issuer of this Agreement and connection with the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereofdescribed herein;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;
(g) at the Closing, upon payment of the purchase price, the Shares shall be duly issued and outstanding as fully paid and non-assessable, the Warrants shall be duly granted and enforceable against the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situated.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents and warrants to the Loan Obligation Manager that:
(a) the Issuer is a corporation (i) has been duly incorporated and registered as an exempted company and is validly subsisting existing under the laws of British Columbia and the Cayman Islands; (ii) has the corporate full power and authority to enter into own the Issuer’s assets and the securities proposed to be owned by the Issuer and included among the Assets and to transact the business for which the Issuer was incorporated; (iii) is duly qualified under the laws of each jurisdiction where the Issuer’s ownership or lease of property or the conduct of the Issuer’s business requires or the performance of the Issuer’s obligations under this Agreement and complete the transactions contemplated hereby Indenture would require such qualification, except for failures to be so qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Issuer or the ability of the Issuer to perform its obligations under, or on the validity or enforceability of, this Agreement and the Indenture; and (iv) has full power and authority to own execute, deliver and lease its properties perform the Issuer’s obligations hereunder and assets and to conduct its business as currently conductedthereunder;
(b) this Agreement and the Indenture have been duly authorized, executed and delivered by the Issuer shall do all acts and things necessary to reserve or set aside sufficient shares in the treasury of constitute legal, valid and binding agreements enforceable against the Issuer in accordance with their terms except that the enforceability thereof may be subject to enable it (i) bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws now or hereafter in effect relating to issue to the Purchaser the Shares creditors’ rights and the Warrant Shares(ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(c) no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other Person is required for the common shares performance by the Issuer of its duties hereunder or under the Indenture, except those that may be required under state securities or “blue sky” laws or the applicable laws of any jurisdiction outside of the Company are United States, and such as have been duly listed and posted for trading on the Exchangemade or obtained;
(d) no order ceasing neither the execution, delivery and performance of this Agreement or suspending trading in securities of the Indenture nor the performance by the Issuer nor prohibiting of its duties hereunder or under the sale Indenture (i) conflicts with or will violate or result in a default under the Issuer’s Governing Documents or any material contract or agreement to which the Issuer is a party or by which it or its assets may be bound, or any law, decree, order, rule, or regulation applicable to the Issuer of such securities has been issued to any court or regulatory, administrative or governmental agency, body or authority or arbitrator having jurisdiction over the Issuer or its directorsproperties, officers or promoters (other than as contemplated or against permitted by the Indenture) will result in a lien on any other companies that have common directors, officers or promoters and no investigations or proceedings for such purposes are pending or threatened of which the property of the Issuer is and (ii) would have a material adverse effect upon the ability of the Issuer to perform its duties under this Agreement or ought to be awarethe Indenture;
(e) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is its Affiliates are not in material default violation of any federal, state or Cayman Islands laws or regulations, and there is no charge, investigation, action, suit or proceeding before or by any court or regulatory agency pending or, to the best knowledge of the requirements Issuer, threatened that, in any case, would have a material adverse effect upon the ability of the SECURITIES ACT (B.C.) Issuer to perform its duties under this Agreement or the Rules thereunder, or of any rule or requirement of the ExchangeIndenture;
(f) the execution, delivery and performance by Issuer is not an “investment company” under the Issuer of this Agreement and the transactions herein contemplated:
(i) have or will have been prior to the Closing duly authorized by all necessary corporate action of the Issuer and by all necessary action of the shareholders thereof;
(ii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements or any of its other agreements or undertakings or any judgement, decree or order to or by which it is a party to or is bound;Investment Company Act; and
(g) at the Closing, upon payment assets of the purchase price, Issuer do not and will not at any time constitute the Shares shall be duly issued and outstanding as fully paid and non-assessable, assets of any plan subject to the Warrants shall be duly granted and enforceable against the Company, upon exercise fiduciary responsibility provisions of ERISA or of any plan subject to Section 4975 of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; and
(h) except as qualified by the disclosure in all prospectuses, filing statements and press releases filed with the Commissions or the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedCode.
Appears in 1 contract
Sources: Loan Obligation Management Agreement (Arbor Realty Trust Inc)
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Portfolio Manager as follows:
(a) the The Issuer has been duly formed and registered and is validly existing as a corporation duly incorporated and validly subsisting limited liability company under the laws of British Columbia and the Cayman Islands, has the corporate full limited liability company power and authority to enter into this Agreement own its assets and complete the transactions contemplated hereby obligations proposed to be owned by it and included in the Assets and to own transact the business in which it is presently engaged and is duly qualified under the laws of each jurisdiction where its ownership or lease its properties and assets and to of property or the conduct of its business as currently conducted;requires, or the performance of its obligations under this Agreement, the Indenture, the Securities Account Control Agreement, any Hedge Agreement, the Collateral Administration Agreement, the Loan Sale Agreement, the AML Services Agreement, the Administration Agreement, each Master Participation Agreement or the Notes (collectively, the “Issuer Documents”) would require, such qualification, except for failures to be so qualified, authorized or licensed that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Issuer.
(b) The Issuer has the Issuer shall do all acts necessary limited liability company power and things necessary authority to reserve or set aside sufficient shares in the treasury execute and deliver each of the Issuer Documents, and to enable it perform all of its obligations required thereunder, and has taken all necessary action to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares of the Company are duly listed and posted for trading on the Exchange;
(d) no order ceasing or suspending trading in securities authorize each of the Issuer nor prohibiting Documents on the sale of such securities has been issued to the Issuer or its directors, officers or promoters or against any other companies that have common directors, officers or promoters terms and no investigations or proceedings for such purposes are pending or threatened of which the Issuer is or ought to be aware;
(e) the Issuer is a reporting issuer conditions hereof and an exchange issuer under the SECURITIES ACT (B.C.) thereof and is not in material default of any of the requirements of the SECURITIES ACT (B.C.) or the Rules thereunder, or of any rule or requirement of the Exchange;
(f) the execution, delivery and performance of each of the Issuer Documents and the performance of all obligations imposed upon it hereunder and thereunder.
(c) This Agreement has been executed and delivered by a duly authorized officer of the Issuer, and this Agreement constitutes the legally valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, subject, as to enforcement, to (i) the effect of bankruptcy, insolvency, reorganization, moratorium, winding up or similar laws affecting generally the enforcement of creditors’ rights, as such laws would apply in the event of any bankruptcy, receivership, insolvency, winding up or similar event applicable to the Issuer and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(d) No consent of any other Person, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority, other than those that may be required under state securities or “blue sky” laws and those that have been or shall be obtained in connection with the Indenture and the issuance of the Notes, is required by the Issuer in connection with the Issuer Documents or the execution, delivery, performance, validity or enforceability of the Issuer Documents or the obligations imposed upon the Issuer hereunder or thereunder.
(e) The Issuer is not in violation of any applicable federal or state securities law or regulation promulgated thereunder, and there is no charge, investigation, action, suit or proceeding before or by any court pending or, to the best knowledge of the Issuer, threatened in writing that, if determined adversely to the Issuer, would have a material adverse effect upon the performance by the Issuer of its duties hereunder, or on the validity or enforceability of, this Agreement and the transactions herein contemplated:Agreement.
(if) have or will have been prior to the Closing duly authorized by all necessary corporate action The execution, delivery and performance of the Issuer Documents, and by all necessary action of the shareholders thereof;
(ii) documents and instruments required thereunder do not contraveneviolate any provision of any existing law or regulation binding on the Issuer, conflict with or cause any order, judgment, award or decree of any court, arbitrator or governmental authority binding on the Issuer, or the Governing Instruments of, or any securities issued by, the Issuer to be in breach or default of its memorandum or articles, or articles or by-laws, as the case may be, or of any resolution of its respective directors mortgage, indenture, lease, contract or shareholdersother agreement, any trust deeds, debenture, loan agreements instrument or undertaking to which the Issuer is a party or by which the Issuer or any of its assets may be bound, the violation of which would have a material adverse effect on the business, operations, assets or financial condition of the Issuer or the performance by the Issuer of its duties under this Agreement, and do not result in or require the creation or imposition of any lien on any of its property, assets or revenues pursuant to the provisions of any such mortgage, indenture, lease, contract or other agreements agreement, instrument or undertakings undertaking (other than the lien of the Indenture).
(g) The Issuer is not in violation of its Governing Instruments, or in breach or violation of, or in default under, the Indenture or any judgement, decree contract or order agreement to or by which it is a party to or is by which it or any of its assets may be bound;
(g) at , or any applicable statute or any rule, regulation or order of any court, government agency or body having jurisdiction over the ClosingIssuer or its properties, upon payment except for any breach, violation or default that would not have a material adverse effect on the validity or enforceability of the purchase pricethis Agreement, the Shares shall be duly issued and outstanding as fully paid and non-assessableCollateral Administration Agreement or the Indenture, or the performance by the Issuer of its duties under this Agreement, the Warrants shall be duly granted and enforceable against Collateral Administration Agreement or the Company, upon exercise of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessable; andIndenture.
(h) except The Issuer is not required to be registered as qualified an “investment company” under the Investment Company Act.
(i) There is no charge, investigation, action, suit or proceeding before or by any court pending or, to the best knowledge of the Issuer, threatened that, if determined adversely to the Issuer, would have a material adverse effect upon the performance by the disclosure Issuer of its duties under, or on the validity or enforceability of, this Agreement, the Collateral Administration Agreement or the provisions of the Indenture applicable to the Issuer thereunder.
(j) The information contained in the final offering circular pertaining to the Notes (the “Offering Circular”) is true and correct in all prospectusesmaterial respects, filing and does not omit to state any material fact necessary in order to make the statements and press releases filed with therein, in light of the Commissions or the Exchange or the Offering Memorandumcircumstances under which they were made, if anynot misleading; provided, (the "Disclosure Record")that, the Company is Issuer makes no representation or warranty with respect to the beneficial owner of the properties, business and assets or the interests in the properties, business or assets information referred to in the Disclosure Record, and the properties are in good standing under the applicable laws Section 4(h) of the jurisdictions in which they are situatedthis Agreement.
Appears in 1 contract
Sources: Portfolio Management Agreement (Bain Capital Specialty Finance, Inc.)