ACKNOWLEDGMENTS, REPRESENTATIONS AND WARRANTIES. Colmena acknowledges, represents and warrants that: (a) As of the date of this Agreement, Colmena is not insolvent within the meaning of applicable state and federal laws dealing with debtors and creditors, including the Federal Bankruptcy Code; (b) Colmena is a Delaware corporation duly organized and validly existing in good standing under the laws of the State of Delaware, is qualified to engage in business in all jurisdictions where such qualification is required, and has full power and authority to enter into this Agreement and to consummate the transactions contemplated hereby ; (c) This Agreement and the related security agreements, collateral assignments and Notes provided for herein have been duly authorized by all necessary corporate action and constitute the legal, valid and binding obligations of Colmena enforceable in accordance with their respective terms; (d) The making and performance by Colmena of this Agreement and the related security agreements, collateral assignments, Notes and any related documents and the transactions contemplated hereby and thereby do not contravene any provisions of law applicable to Colmena and do not conflict or are not inconsistent with, and will not result (with or without the giving of notice or both) in a breach of or constitute a default or require any consent under, or result in the creation of any lien, charge or encumbrance upon the Collateral pursuant to the terms of any credit agreement, indenture, mortgage, purchase agreement, deed of trust, security agreement, lease guarantee or other instrument to which Colmena is a party or by which Colmena or its assets may be bound or to which its properties may be subject; (e) All sales, use, property or other taxes, licenses, tolls, inspection or other fees, bonds, permits or certificates which were or may be required to be paid or obtained in connection with the acquisition or ownership by Colmena of the Collateral will have been, or when due will be, paid in full or obtained; (f) Colmena has good, valid and marketable title to the Collateral free and clear of all liens, claims and encumbrances, except as specifically disclosed in exhibit 2.1(c)(2), if any; (g) Concurrently with or prior to the time the initial Loan is made, Yankees will have a perfected continuing first priority security interest in and to all the Collateral, except as specifically disclosed in exhibit 2.1(c)(2), if any; and (h) Colmena has not entered into any understanding or agreement, (oral or in writing) relating to the transactions contemplated herein, or any other transactions contemplated or permitted by this Agreement, with any person or entity which understanding, agreement or other writing would, in the reasonable determination of Yankees, affect the Collateral in any manner whatsoever or any of the rights or interests of Yankees with respect thereto.
Appears in 2 contracts
Samples: Loan Agreement (Colmena Corp), Loan Agreement (Colmena Corp)
ACKNOWLEDGMENTS, REPRESENTATIONS AND WARRANTIES. Colmena 2.1 The Purchaser acknowledges, represents and warrants warrants, as at the date hereof and as at the Closing Date, that:
(a) As no prospectus has been filed by the Issuer with the Commissions in connection with the issuance of the date Shares, the issuance is exempted from the prospectus requirements of this Agreementthe Securities Act of British Columbia and the Securities Act of Alberta and the Securities Act of Ontario and the respective rules and regulations thereto (hereinafter collectively referred to as the “Applicable Securities Laws”), Colmena and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Applicable Securities Laws;
(ii) the Purchaser may not insolvent within receive information that would otherwise be required to be provided to the meaning of applicable state and federal laws dealing with debtors and creditors, including Purchaser under the Federal Bankruptcy CodeApplicable Securities Laws; and
(iii) the Issuer is relieved from certain obligations that would otherwise apply under the Applicable Securities Laws;
(b) Colmena the Purchaser is purchasing the Shares as principal for its own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Shares; and if the Purchaser is a Delaware corporation “portfolio manager” as defined under the Applicable Securities Laws, the Purchaser understands that it is deemed by the Applicable Securities Laws to be acting as principal when it purchases or sells as an agent for accounts that are fully managed by it;
(c) if applicable, the Purchaser will execute and deliver to the Issuer for filing with the Toronto Stock Exchange, the Corporate Placee Registration Form, and any equivalent or other form required by the American Stock Exchange;
(d) the Purchaser is either one or more of the following:
(i) an “accredited investor” as defined under Multilateral Instrument 45-103 (if applicable, the Purchaser has signed and delivered to the Issuer an Accredited Investor Certificate);
(ii) a director, senior officer or control person of the Issuer, or of an affiliate of the Issuer;
(iii) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Issuer, or of an affiliate of the Issuer;
(iv) a close personal friend of a director, senior officer or control person of the Issuer, or of an affiliate of the Issuer;
(v) a close business associate of a director, senior officer or control person of the Issuer, or of an affiliate of the Issuer;
(vi) a person or company that is wholly-owned by any combination of persons or companies described in sub-paragraphs (ii) to (v) above;
(vii) an employee, senior officer or director of the Issuer, provided that the Purchaser has not been induced to purchase the Shares by expectation of employment or continued employment, or otherwise required by the Issuer to purchase the securities;
(viii) a resident of British Columbia and acknowledges receipt of an Offering Memorandum in the required form, and if applicable the Purchaser has signed and delivered to the Issuer a risk acknowledgment (the “Acknowledgment”); or
(ix) a resident of Alberta and acknowledges receipt of an Offering Memorandum in the required form, and the Purchaser has signed and delivered to the Issuer the Acknowledgment, and either the Purchaser is an “eligible investor” as defined under Multilateral Instrument 45- 103, or the aggregate acquisition cost of the Shares being purchased does not exceed $10,000;
(e) the Purchaser is purchasing the Shares under the exemption from prospectus requirements available under section 74(2)(4) of the BC Act and the Purchaser is not a syndicate, partnership or other form of unincorporated entity or organization created solely to permit the purchase of the Shares by a group of individuals whose individual share of the aggregate acquisition cost of the Shares is not less than $97,000 (Cdn.);
(f) the representations, warranties and statements of fact made by the Purchaser herein, and in the Acknowledgment and the Corporate Placee Registration Form (if either or both are required) are true and correct as of the date hereof and will be true on the Closing Date;
(g) the Shares were not offered to the Purchaser through an advertisement in printed media of general and regular paid circulation, radio or television;
(h) the offer made by this subscription is irrevocable and requires acceptance by the Issuer and the approval of the Exchanges;
(i) the Shares have not been, and will not be, registered under the United States Securities Act of 1933, as amended. Accordingly, any offer or sales in the United States or to such nationals or residents thereof must be pursuant to the registration requirements of the Securities Act of 1933, as amended, or an exemption therefrom. The Issuer does not make any representation with respect to, nor has it assumed any responsibility for, the registration of the Shares or the availability of any such exemption; and the Issuer does not make any representation as to when, if at any time, the Shares may be resold in the United States or to such nationals or residents thereof;
(j) this subscription has not been solicited in any manner contrary to Applicable Securities Laws or the United States Securities Act of 1933, as amended;
(k) no person has made to the Purchaser any written or oral representation:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares; or
(iii) as to the future price or value of any of the Shares; or
(l) the Purchaser is not a “control person” of the Issuer as defined in the Applicable Securities Laws and will not become a “control person” by virtue of the purchase of the Shares and does not intend to act in concert with any other person to form a control group;
(m) the Purchaser has no knowledge of a “material fact” or “material change” (as those terms are defined in the Applicable Securities Laws) in the affairs of the Issuer that has not been generally disclosed to the public, save knowledge of this particular transaction;
(n) the purchase of the Shares has been privately negotiated and arranged and the Purchaser or his agent has been invited and afforded the opportunity to conduct a review of all of the Issuer’s affairs and records in order that the Purchaser may be properly and fully aware of all of the facts relevant to the Issuer’s affairs;
(o) the Purchaser has sought and obtained independent legal advice regarding the purchase and re-sale of the Shares under the Applicable Securities Laws;
(p) the Toronto Stock Exchange requires that the Shares must be unconditionally held for a period of four (4) months from the Closing Date;
(q) unless the Purchaser is otherwise exempted under the Applicable Securities Laws, the Shares must be unconditionally held for a period of four (4) months from the Closing Date, except as may be otherwise permitted by the Applicable Securities Laws and, if the Purchaser is a resident of a jurisdiction other than British Columbia, the Shares may be subject to additional re-sale restrictions; and if the Purchaser is a resident of the United States of America, the Shares will be subject to resale restrictions pursuant to Rule 144 promulgated under the United States Securities Act of 1933;
(r) resale of the Shares will be subject to additional resale restrictions beyond the hold periods described immediately above if:
(i) the Purchaser is an insider of the Issuer, other than a director or officer, and has not filed all xxxxxxx xxxxxxx reports or personal information forms required to be filed under the Applicable Securities Laws;
(ii) the Purchaser is a director or officer of the Issuer and has not filed all xxxxxxx xxxxxxx reports or personal information forms required to be filed under the Applicable Securities Laws or the Issuer has not filed all records required to be filed under Part 12 (continuous disclosure) of the Applicable Securities Laws;
(iii) the Purchaser is, or subsequently becomes, a control person within the meaning of the Applicable Securities Laws;
(iv) any unusual effort is made to prepare the market or create a demand for the securities; or
(v) an extraordinary commission or consideration is paid in respect of the trade;
(s) the certificates representing the Shares will contain a legend or legends denoting restrictions on transfer as referred to herein and, where applicable, the resale restrictions under Rule 144 of the United States Securities Act of 1933;
(t) the Purchaser has the legal capacity and competence to enter into and to execute and deliver this Subscription Agreement and to take all actions required pursuant hereto, and the Purchaser is duly organized incorporated and validly existing subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been given to authorize execution of this Subscription Agreement on behalf of the Purchaser;
(u) the entering into of this Subscription Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a party or by which the Purchaser is or may be bound; and
(v) this Subscription Agreement has been duly executed and delivered by the Purchaser and constitutes a valid obligation of the Purchaser legally binding
2.2 The representations, warranties, covenants and acknowledgments of the Purchaser contained in this Subscription Agreement are made by the Purchaser with the intent that they may be relied upon by the Issuer in determining the Purchaser’s eligibility to purchase the Shares hereunder and the Purchaser hereby agrees to indemnify the Issuer against all losses, claims, costs, expenses and damages or liabilities which it may suffer or incur, caused or arising from its reliance thereon and the Purchaser further agrees that by accepting the Shares, the Purchaser shall be representing and warranting that such representations, warranties, covenants and acknowledgments are true as at the Closing Date with the same force and effect as if they had been made by the Purchaser at the Closing Date and that they shall survive the purchase by the Purchaser of the Shares and shall continue in full force and effect notwithstanding any subsequent disposition by the Purchaser of the Shares.
2.3 The Issuer represents and warrants as at the date hereof and as at the Closing Date, that:
(a) the Issuer and its subsidiaries, if any, are valid and subsisting corporations duly incorporated and in good standing under the laws of the State jurisdiction of Delaware, is qualified their incorporation;
(b) the Issuer will reserve or set aside sufficient Shares in the treasury of the Issuer to engage in business in all jurisdictions where such qualification is required, and has full power and authority to enter into this Agreement and to consummate issue the transactions contemplated hereby Shares;
(c) This the Issuer is a “reporting issuer” as defined under the Applicable Securities Laws, and is not on the list of defaulting issuers maintained by the Commissions;
(d) the Issuer is a “qualifying issuer”, as that term is defined under Multilateral Instrument 45-106, and has filed a current Annual Information Form with the Commissions;
(e) the Issuer shall use its best efforts to diligently seek and obtain the acceptance for filing of this Subscription Agreement by the Exchanges and will make all filings necessary to obtain the related security agreementsexemptions from registration and prospectus requirements available under the Applicable Securities Laws respectively in respect of the transaction contemplated hereby;
(f) the issuance and sale of the Shares 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, collateral assignments and Notes provided for herein have conditions or provisions of its constating documents or any agreement or instrument to which the Issuer is a party;
(g) this Subscription Agreement has been duly authorized by all necessary corporate action on the part of the Issuer and constitute constitutes a valid obligation of the legal, valid Issuer legally binding upon it and binding obligations of Colmena enforceable in accordance with their respective its terms;
(d) The making and performance by Colmena of this Agreement and the related security agreements, collateral assignments, Notes and any related documents and the transactions contemplated hereby and thereby do not contravene any provisions of law applicable to Colmena and do not conflict or are not inconsistent with, and will not result (with or without the giving of notice or both) in a breach of or constitute a default or require any consent under, or result in the creation of any lien, charge or encumbrance upon the Collateral pursuant to the terms of any credit agreement, indenture, mortgage, purchase agreement, deed of trust, security agreement, lease guarantee or other instrument to which Colmena is a party or by which Colmena or its assets may be bound or to which its properties may be subject;
(e) All sales, use, property or other taxes, licenses, tolls, inspection or other fees, bonds, permits or certificates which were or may be required to be paid or obtained in connection with the acquisition or ownership by Colmena of the Collateral will have been, or when due will be, paid in full or obtained;
(f) Colmena has good, valid and marketable title to the Collateral free and clear of all liens, claims and encumbrances, except as specifically disclosed in exhibit 2.1(c)(2), if any;
(g) Concurrently with or prior to the time the initial Loan is made, Yankees will have a perfected continuing first priority security interest in and to all the Collateral, except as specifically disclosed in exhibit 2.1(c)(2), if any; and
(h) Colmena has not entered into any understanding or agreement, (oral or in writing) relating to the transactions contemplated herein, or any other transactions contemplated or permitted by this Agreement, with any person or entity which understanding, agreement or other writing would, in the reasonable determination of Yankees, affect the Collateral in any manner whatsoever or any of the rights or interests of Yankees with respect thereto.
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (Tanzanian Royalty Exploration Corp), Private Placement Subscription Agreement (Tanzanian Royalty Exploration Corp)
ACKNOWLEDGMENTS, REPRESENTATIONS AND WARRANTIES. Colmena (a) Explorations acknowledges, represents and warrants that:
(a1) As of the date of this Agreement, Colmena Explorations is not insolvent within the meaning of applicable state and federal laws dealing with debtors and creditors, including the Federal Bankruptcy Code;
(b2) Colmena Explorations is a Delaware corporation duly organized and validly existing in good standing under the laws of the State of Delaware, is qualified to engage in business in all jurisdictions where such qualification is required, and has full power and authority to enter into this Agreement and to consummate the transactions contemplated hereby hereby;
(c3) This Agreement and the related security agreements, collateral assignments assignments, Convertible Bonds and Notes provided for herein have been duly authorized by all necessary corporate action and constitute the legal, valid and binding obligations of Colmena Explorations enforceable in accordance with their respective terms;
(d4) The making and performance by Colmena Explorations of this Agreement and the related security agreements, collateral assignments, Convertible Bonds, Notes and any related documents and the transactions contemplated hereby and thereby do not contravene any provisions of law applicable to Colmena Explorations and do not conflict or are not inconsistent with, and will not result (with or without the giving of notice or both) in a breach of or constitute a default or require any consent under, or result in the creation of any lien, charge or encumbrance upon the Collateral pursuant to the terms of any credit agreement, indenture, mortgage, purchase agreement, deed of trust, security agreement, lease guarantee or other instrument to which Colmena Explorations is a party or by which Colmena Explorations or its assets may be bound or to which its properties may be subject;
(e5) All sales, use, property or other taxes, licenses, tolls, inspection or other fees, bonds, permits or certificates which were or may be required to be paid or obtained in connection with the acquisition or ownership by Colmena Explorations of the Collateral will have been, or when due will be, paid in full or obtained;
(f6) Colmena Explorations has good, valid and marketable title to the Collateral free and clear of all liens, claims and encumbrances, except as specifically disclosed in exhibit 2.1(c)(22(c)(2), if any;
(g7) Concurrently with or prior to the time the initial Loan is made, Yankees will have a perfected continuing first priority security interest in and to all the Collateral, except as specifically disclosed in exhibit 2.1(c)(22(c)(2), if any; and
(h) Colmena 8) Explorations has not entered into any understanding or agreement, agreement (oral or in writing) relating to the transactions contemplated herein, or any other transactions contemplated or permitted by this Agreement, with any person or entity which understanding, agreement or other writing would, in the reasonable determination of Yankees, affect the Collateral in any manner whatsoever or any of the rights or interests of Yankees with respect thereto.
Appears in 2 contracts
Samples: Revolving Loan Agreement (Explorations Group Inc), Revolving Loan Agreement (Explorations Group Inc)
ACKNOWLEDGMENTS, REPRESENTATIONS AND WARRANTIES. Colmena 2.1 The Purchaser acknowledges, represents and warrants warrants, as at the date hereof and as at each Closing Date, that:
(a) As no prospectus has been filed by the Issuer with the Commissions in connection with the issuance of the date Shares, the issuance is exempted from the prospectus requirements of this Agreementthe Securities Acts of Alberta, Colmena British Columbia and Ontario and the respective rules and regulations thereto (hereinafter collectively referred to as the “Applicable Securities Laws”), and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Applicable Securities Laws;
(ii) the Purchaser may not insolvent within receive information that would otherwise be required to be provided to the meaning of applicable state and federal laws dealing with debtors and creditors, including Purchaser under the Federal Bankruptcy CodeApplicable Securities Laws; and
(iii) the Issuer is relieved from certain obligations that would otherwise apply under the Applicable Securities Laws;
(b) Colmena the Purchaser is purchasing the Shares as principal for his own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Shares;
(c) the Purchaser is a Delaware corporation director, senior officer or control person of the Issuer, or of an affiliate of the Issuer and is an “accredited investor” as that term is defined in Rule 505 of Regulation D of the United States Securities Act of 1933, as amended;
(d) the representations, warranties and statements of fact made by the Purchaser herein are true and correct as of the date hereof and will be true on each Closing Date;
(e) the Shares were not offered to the Purchaser through an advertisement in printed media of general and regular paid circulation, radio or television;
(f) the offer made by this subscription is irrevocable and requires acceptance by the Issuer and the approval of the Exchange;
(g) the Shares (sometimes hereinafter referred to as the “Securities”) have not been, and will not be, registered under the United States Securities Act of 1933, as amended. Accordingly, any offer or sales in the United States or to such nationals or residents thereof must be pursuant to the registration requirements of the Securities Act of 1933, as amended, or an exemption therefrom. The Issuer does not make any representation with respect to, nor has it assumed any responsibility for, the registration of the Securities or the availability of any such exemption; and the Issuer does not make any representation as to when, if at any time, the Securities may be resold in the United States or to such nationals or residents thereof;
(h) this subscription has not been solicited in any manner contrary to Applicable Securities Laws or the United States Securities Act of 1933, as amended;
(i) no person has made to the Purchaser any written or oral representation:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities; or
(iii) as to the future price or value of any of the Securities;
(j) the Purchaser is not a “control person” of the Issuer as defined in the Applicable Securities Laws and will not become a “control person” by virtue of the purchase of the Securities and does not intend to act in concert with any other person to form a control group;
(k) the Purchaser has no knowledge of a “material fact” or “material change” (as those terms are defined in the Applicable Securities Laws) in the affairs of the Issuer that has not been generally disclosed to the public, save knowledge of this particular transaction;
(l) the purchase of the Securities has been privately negotiated and arranged and the Purchaser has been invited and afforded the opportunity to conduct a review of all of the Issuer’s affairs and records in order that the Purchaser may be properly and fully aware of all of the facts relevant to the Issuer’s affairs;
(m) the Purchaser has sought and obtained independent legal advice regarding the purchase and re-sale of the Securities under the Applicable Securities Laws;
(n) unless the Purchaser is otherwise exempted under the Applicable Securities Laws, the Securities must be unconditionally held for a period of four (4) months from the applicable Closing Date upon which the Securities are issued, except as may be otherwise permitted by the Applicable Securities Laws and the Securities will be subject to resale restrictions pursuant to Rule 144 promulgated under the United States Securities Act of 1933;
(o) resale of the Securities will be subject to additional resale restrictions beyond the hold periods described immediately above if:
(i) the Purchaser is an insider of the Issuer, other than a director or officer, and has not filed all xxxxxxx xxxxxxx reports or personal information forms required to be filed under the Applicable Securities Laws;
(ii) the Purchaser is a director or officer of the Issuer and has not filed all xxxxxxx xxxxxxx reports or personal information forms required to be filed under the Applicable Securities Laws or the Issuer has not filed all records required to be filed under Part 12 (continuous disclosure) of the Applicable Securities Laws;
(iii) the Purchaser is, or subsequently becomes, a control person within the meaning of the Applicable Securities Laws;
(iv) any unusual effort is made to prepare the market or create a demand for the securities; or
(v) an extraordinary commission or consideration is paid in respect of the trade;
(p) the certificates representing the Securities will contain a legend or legends denoting restrictions on transfer as referred to herein and, where applicable, the resale restrictions under Rule 144 of the United States Securities Act of 1933;
(q) the Purchaser has the legal capacity and competence to enter into and to execute and deliver this Subscription Agreement and to take all actions required pursuant hereto;
(r) the entering into of this Subscription Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to the Purchaser or of any agreement, written or oral, to which the Purchaser may be a party or by which the Purchaser is or may be bound; and
(s) this Subscription Agreement has been duly organized executed and validly existing delivered by the Purchaser and constitutes a valid obligation of the Purchaser legally binding upon the Purchaser and enforceable against the Purchaser in accordance with its terms.
2.2 The representations, warranties, covenants and acknowledgments of the Purchaser contained in this Subscription Agreement are made by the Purchaser with the intent that they may be relied upon by the Issuer in determining the Purchaser’s eligibility to purchase the Shares hereunder and the Purchaser hereby agrees to indemnify the Issuer against all losses, claims, costs, expenses and damages or liabilities which it may suffer or incur, caused or arising from its reliance thereon and the Purchaser further agrees that by accepting the Shares, the Purchaser shall be representing and warranting that such representations, warranties, covenants and acknowledgments are true as at the Closing Date with the same force and effect as if they had been made by the Purchaser at the Closing Date and that they shall survive the purchase by the Purchaser of the Securities and shall continue in full force and effect notwithstanding any subsequent disposition by the Purchaser of the Securities.
2.3 The Issuer represents and warrants as at the date hereof and as at each Closing Date, that:
(a) the Issuer and its subsidiaries, if any, are valid and subsisting corporations duly incorporated and in good standing under the laws of the State jurisdiction of Delaware, is qualified their incorporation;
(b) the Issuer will reserve or set aside sufficient shares in the treasury of the Issuer to engage in business in all jurisdictions where such qualification is required, and has full power and authority to enter into this Agreement and to consummate issue the transactions contemplated hereby Securities;
(c) This the Issuer is a “reporting issuer” as defined under the Applicable Securities Laws, and is not on the list of defaulting issuers maintained by the Commissions;
(d) the Issuer will on each Closing Date, be a “qualifying issuer”, as that term is defined under Multilateral Instrument 45-102, and will, prior to the first Closing Date have filed a current Annual Information Form with the Commissions;
(e) the Issuer shall use its best efforts to diligently seek and obtain the acceptance for filing of this Subscription Agreement by the Exchange and will make all filings necessary to obtain the related security agreementsexemptions from registration and prospectus requirements available under the Applicable Securities Laws respectively in respect of the transaction contemplated hereby;
(f) 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, collateral assignments and Notes provided for herein have conditions or provisions of its constating documents or any agreement or instrument to which the Issuer is a party;
(g) this Subscription Agreement has been duly authorized by all necessary corporate action on the part of the Issuer and constitute constitutes a valid obligation of the legal, valid Issuer legally binding upon it and binding obligations of Colmena enforceable in accordance with their respective its terms;
(d) The making and performance by Colmena of this Agreement and the related security agreements, collateral assignments, Notes and any related documents and the transactions contemplated hereby and thereby do not contravene any provisions of law applicable to Colmena and do not conflict or are not inconsistent with, and will not result (with or without the giving of notice or both) in a breach of or constitute a default or require any consent under, or result in the creation of any lien, charge or encumbrance upon the Collateral pursuant to the terms of any credit agreement, indenture, mortgage, purchase agreement, deed of trust, security agreement, lease guarantee or other instrument to which Colmena is a party or by which Colmena or its assets may be bound or to which its properties may be subject;
(e) All sales, use, property or other taxes, licenses, tolls, inspection or other fees, bonds, permits or certificates which were or may be required to be paid or obtained in connection with the acquisition or ownership by Colmena of the Collateral will have been, or when due will be, paid in full or obtained;
(f) Colmena has good, valid and marketable title to the Collateral free and clear of all liens, claims and encumbrances, except as specifically disclosed in exhibit 2.1(c)(2), if any;
(g) Concurrently with or prior to the time the initial Loan is made, Yankees will have a perfected continuing first priority security interest in and to all the Collateral, except as specifically disclosed in exhibit 2.1(c)(2), if any; and
(h) Colmena has not entered into any understanding or agreement, (oral or in writing) relating to the transactions contemplated herein, or any other transactions contemplated or permitted by this Agreement, with any person or entity which understanding, agreement or other writing would, in the reasonable determination of Yankees, affect the Collateral in any manner whatsoever or any of the rights or interests of Yankees with respect thereto.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Tan Range Exploration Corp)
ACKNOWLEDGMENTS, REPRESENTATIONS AND WARRANTIES. Colmena 2.1 The Purchaser acknowledges, represents and warrants, as at the date hereof and as at
(a) no prospectus has been filed by the Issuer with the Commissions in connection with the issuance of the Shares, the issuance is exempted from the prospectus requirements of the Securities Act of British Columbia and the Securities Act of Alberta and the Securities Act of Ontario and the respective rules and regulations thereto (hereinafter collectively referred to as the “Applicable Securities Laws”), and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Applicable Securities Laws;
(ii) the Purchaser may not receive information that would otherwise be required to be provided to the Purchaser under the Applicable Securities Laws; and
(iii) the Issuer is relieved from certain obligations that would otherwise apply under the Applicable Securities Laws;
(b) the Purchaser is purchasing the Shares as principal for its own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Shares; and if the Purchaser is a “portfolio manager” as defined under the Applicable Securities Laws, the Purchaser understands that it is deemed by the Applicable Securities Laws to be acting as principal when it purchases or sells as an agent for accounts that are fully managed by it;
(c) if applicable, the Purchaser will execute and deliver to the Issuer for filing with the Toronto Stock Exchange, the Corporate Placee Registration Form, and any equivalent or other form required by the American Stock Exchange;
(d) the Purchaser is either one or more of the following:
(i) an “accredited investor” as defined under Multilateral Instrument 45-103 (if applicable, the Purchaser has signed and delivered to the Issuer an Accredited Investor Certificate);
(ii) a director, senior officer or control person of the Issuer, or of an affiliate of the Issuer;
(iii) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Issuer, or of an affiliate of the Issuer;
(iv) a close personal friend of a director, senior officer or control person of the Issuer, or of an affiliate of the Issuer;
(v) a close business associate of a director, senior officer or control person of the Issuer, or of an affiliate of the Issuer;
(vi) a person or company that is wholly-owned by any combination of persons or companies described in sub-paragraphs (ii) to (v) above;
(vii) an employee, senior officer or director of the Issuer, provided that the Purchaser has not been induced to purchase the Shares by expectation of employment or continued employment, or otherwise required by the Issuer to purchase the securities;
(viii) a resident of British Columbia and acknowledges receipt of an Offering Memorandum in the required form, and if applicable the Purchaser has signed and delivered to the Issuer a risk acknowledgment (the “Acknowledgment”); or
(ix) a resident of Alberta and acknowledges receipt of an Offering Memorandum in the required form, and the Purchaser has signed and delivered to the Issuer the Acknowledgment, and either the Purchaser is an “eligible investor” as defined under Multilateral Instrument 45- 103, or the aggregate acquisition cost of the Shares being purchased does not exceed $10,000;
(e) the Purchaser is purchasing the Shares under the exemption from prospectus requirements available under section 74(2)(4) of the BC Act and the Purchaser is not a syndicate, partnership or other form of unincorporated entity or organization created solely to permit the purchase of the Shares by a group of individuals whose individual share of the aggregate acquisition cost of the Shares is not less than $97,000 (Cdn.);
(f) the representations, warranties and statements of fact made by the Purchaser herein, and in the Acknowledgment and the Corporate Placee Registration Form (if either or both are required) are true and correct as of the date hereof and will be true on the Closing Date;
(g) the Shares were not offered to the Purchaser through an advertisement in printed media of general and regular paid circulation, radio or television;
(h) the offer made by this subscription is irrevocable and requires acceptance by the Issuer and the approval of the Exchanges;
(i) the Shares have not been, and will not be, registered under the United States Securities Act of 1933, as amended. Accordingly, any offer or sales in the United States or to such nationals or residents thereof must be pursuant to the registration requirements of the Securities Act of 1933, as amended, or an exemption therefrom. The Issuer does not make any representation with respect to, nor has it assumed any responsibility for, the registration of the Shares or the availability of any such exemption; and the Issuer does not make any representation as to when, if at any time, the Shares may be resold in the United States or to such nationals or residents thereof;
(j) this subscription has not been solicited in any manner contrary to Applicable Securities Laws or the United States Securities Act of 1933, as amended;
(k) no person has made to the Purchaser any written or oral representation:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares; or
(iii) as to the future price or value of any of the Shares; or
(l) the Purchaser is not a “control person” of the Issuer as defined in the Applicable Securities Laws and will not become a “control person” by virtue of the purchase of the Shares and does not intend to act in concert with any other person to form a control group;
(m) the Purchaser has no knowledge of a “material fact” or “material change” (as those terms are defined in the Applicable Securities Laws) in the affairs of the Issuer that has not been generally disclosed to the public, save knowledge of this particular transaction;
(n) the purchase of the Shares has been privately negotiated and arranged and the Purchaser or his agent has been invited and afforded the opportunity to conduct a review of all of the Issuer’s affairs and records in order that the Purchaser may be properly and fully aware of all of the facts relevant to the Issuer’s affairs;
(o) the Purchaser has sought and obtained independent legal advice regarding the purchase and re-sale of the Shares under the Applicable Securities Laws;
(p) the Toronto Stock Exchange requires that the Shares must be unconditionally held for a period of four (4) months from the Closing Date;
(q) unless the Purchaser is otherwise exempted under the Applicable Securities Laws, the Shares must be unconditionally held for a period of four (4) months from the Closing Date, except as may be otherwise permitted by the Applicable Securities Laws and, if the Purchaser is a resident of a jurisdiction other than British Columbia, the Shares may be subject to additional re-sale restrictions; and if the Purchaser is a resident of the United States of America, the Shares will be subject to resale restrictions pursuant to Rule 144 promulgated under the United States Securities Act of 1933;
(r) resale of the Shares will be subject to additional resale restrictions beyond the hold periods described immediately above if:
(i) the Purchaser is an insider of the Issuer, other than a director or officer, and has not filed all xxxxxxx xxxxxxx reports or personal information forms required to be filed under the Applicable Securities Laws;
(ii) the Purchaser is a director or officer of the Issuer and has not filed all xxxxxxx xxxxxxx reports or personal information forms required to be filed under the Applicable Securities Laws or the Issuer has not filed all records required to be filed under Part 12 (continuous disclosure) of the Applicable Securities Laws;
(iii) the Purchaser is, or subsequently becomes, a control person within the meaning of the Applicable Securities Laws;
(iv) any unusual effort is made to prepare the market or create a demand for the securities; or
(v) an extraordinary commission or consideration is paid in respect of the trade;
(s) the certificates representing the Shares will contain a legend or legends denoting restrictions on transfer as referred to herein and, where applicable, the resale restrictions under Rule 144 of the United States Securities Act of 1933;
(t) the Purchaser has the legal capacity and competence to enter into and to execute and deliver this Subscription Agreement and to take all actions required pursuant hereto, and the Purchaser is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been given to authorize execution of this Subscription Agreement on behalf of the Purchaser;
(u) the entering into of this Subscription Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a party or by which the Purchaser is or may be bound; and
(v) this Subscription Agreement has been duly executed and delivered by the Purchaser and constitutes a valid obligation of the Purchaser legally binding upon the Purchaser and enforceable against the Purchaser in accordance with its terms.
2.2 The representations, warranties, covenants and acknowledgments of the Purchaser contained in this Subscription Agreement are made by the Purchaser with the intent that they may be relied upon by the Issuer in determining the Purchaser’s eligibility to purchase the Shares hereunder and the Purchaser hereby agrees to indemnify the Issuer against all losses, claims, costs, expenses and damages or liabilities which it may suffer or incur, caused or arising from its reliance thereon and the Purchaser further agrees that by accepting the Shares, the Purchaser shall be representing and warranting that such representations, warranties, covenants and acknowledgments are true as at the Closing Date with the same force and effect as if they had been made by the Purchaser at the Closing Date and that they shall survive the purchase by the Purchaser of the Shares and shall continue in full force and effect notwithstanding any subsequent disposition by the Purchaser of the Shares.
2.3 The Issuer represents and warrants as at the date hereof and as at the Closing Date, that:
(a) As of the date of this AgreementIssuer and its subsidiaries, Colmena is not insolvent within the meaning of applicable state if any, are valid and federal laws dealing with debtors subsisting corporations duly incorporated and creditors, including the Federal Bankruptcy Code;
(b) Colmena is a Delaware corporation duly organized and validly existing in good standing under the laws of the State jurisdiction of Delaware, is qualified their incorporation;
(b) the Issuer will reserve or set aside sufficient Shares in the treasury of the Issuer to engage in business in all jurisdictions where such qualification is required, and has full power and authority to enter into this Agreement and to consummate issue the transactions contemplated hereby Shares;
(c) This the Issuer is a “reporting issuer” as defined under the Applicable Securities Laws, and is not on the list of defaulting issuers maintained by the Commissions;
(d) the Issuer is a “qualifying issuer”, as that term is defined under Multilateral Instrument 45-106, and has filed a current Annual Information Form with the Commissions;
(e) the Issuer shall use its best efforts to diligently seek and obtain the acceptance for filing of this Subscription Agreement by the Exchanges and will make all filings necessary to obtain the related security agreementsexemptions from registration and prospectus requirements available under the Applicable Securities Laws respectively in respect of the transaction contemplated hereby;
(f) the issuance and sale of the Shares 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, collateral assignments and Notes provided for herein have conditions or provisions of its constating documents or any agreement or instrument to which the Issuer is a party;
(g) this Subscription Agreement has been duly authorized by all necessary corporate action and constitute on the legal, valid and binding obligations of Colmena enforceable in accordance with their respective terms;
(d) The making and performance by Colmena of this Agreement and the related security agreements, collateral assignments, Notes and any related documents and the transactions contemplated hereby and thereby do not contravene any provisions of law applicable to Colmena and do not conflict or are not inconsistent with, and will not result (with or without the giving of notice or both) in a breach of or constitute a default or require any consent under, or result in the creation of any lien, charge or encumbrance upon the Collateral pursuant to the terms of any credit agreement, indenture, mortgage, purchase agreement, deed of trust, security agreement, lease guarantee or other instrument to which Colmena is a party or by which Colmena or its assets may be bound or to which its properties may be subject;
(e) All sales, use, property or other taxes, licenses, tolls, inspection or other fees, bonds, permits or certificates which were or may be required to be paid or obtained in connection with the acquisition or ownership by Colmena part of the Collateral will have been, or when due will be, paid in full or obtained;
(f) Colmena has good, Issuer and constitutes a valid and marketable title to the Collateral free and clear of all liens, claims and encumbrances, except as specifically disclosed in exhibit 2.1(c)(2), if any;
(g) Concurrently with or prior to the time the initial Loan is made, Yankees will have a perfected continuing first priority security interest in and to all the Collateral, except as specifically disclosed in exhibit 2.1(c)(2), if any; and
(h) Colmena has not entered into any understanding or agreement, (oral or in writing) relating to the transactions contemplated herein, or any other transactions contemplated or permitted by this Agreement, with any person or entity which understanding, agreement or other writing would, in the reasonable determination of Yankees, affect the Collateral in any manner whatsoever or any of the rights or interests of Yankees with respect thereto.obligation of
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Tanzanian Royalty Exploration Corp)
ACKNOWLEDGMENTS, REPRESENTATIONS AND WARRANTIES. Colmena 2.1 The Purchaser acknowledges, represents and warrants warrants, as at the date hereof and as at the Closing Date, that:
(a) As no prospectus has been filed by the Issuer with the Commissions in connection with the issuance of the date Shares, the issuance is exempted from the prospectus requirements of this Agreementthe Securities Act of British Columbia and the Securities Act of Alberta and the Securities Act of Ontario and the respective rules and regulations thereto (hereinafter collectively referred to as the “Applicable Securities Laws”), Colmena and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Applicable Securities Laws;
(ii) the Purchaser may not insolvent within receive information that would otherwise be required to be provided to the meaning of applicable state and federal laws dealing with debtors and creditors, including Purchaser under the Federal Bankruptcy CodeApplicable Securities Laws; and
(iii) the Issuer is relieved from certain obligations that would otherwise apply under the Applicable Securities Laws;
(b) Colmena the Purchaser is purchasing the Shares as principal for its own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Shares; and if the Purchaser is a Delaware corporation “portfolio manager” as defined under the Applicable Securities Laws, the Purchaser understands that it is deemed by the Applicable Securities Laws to be acting as principal when it purchases or sells as an agent for accounts that are fully managed by it;
(c) if applicable, the Purchaser will execute and deliver to the Issuer for filing with the Toronto Stock Exchange, the Corporate Placee Registration Form, and any equivalent or other form required by the American Stock Exchange;
(d) the Purchaser is either one or more of the following:
(i) an “accredited investor” as defined under Multilateral Instrument 45-103 (if applicable, the Purchaser has signed and delivered to the Issuer an Accredited Investor Certificate);
(ii) a director, senior officer or control person of the Issuer, or of an affiliate of the Issuer;
(iii) a spouse, parent, grandparent, brother, sister or child of a director, senior officer or control person of the Issuer, or of an affiliate of the Issuer;
(iv) a close personal friend of a director, senior officer or control person of the Issuer, or of an affiliate of the Issuer;
(v) a close business associate of a director, senior officer or control person of the Issuer, or of an affiliate of the Issuer;
(vi) a person or company that is wholly-owned by any combination of persons or companies described in sub-paragraphs (ii) to (v) above;
(vii) an employee, senior officer or director of the Issuer, provided that the Purchaser has not been induced to purchase the Shares by expectation of employment or continued employment, or otherwise required by the Issuer to purchase the securities;
(viii) a resident of British Columbia and acknowledges receipt of an Offering Memorandum in the required form, and if applicable the Purchaser has signed and delivered to the Issuer a risk acknowledgment (the “Acknowledgment”); or
(ix) a resident of Alberta and acknowledges receipt of an Offering Memorandum in the required form, and the Purchaser has signed and delivered to the Issuer the Acknowledgment, and either the Purchaser is an “eligible investor” as defined under Multilateral Instrument 45- 103, or the aggregate acquisition cost of the Shares being purchased does not exceed $10,000;
(e) the Purchaser is purchasing the Shares under the exemption from prospectus requirements available under section 74(2)(4) of the BC Act and the Purchaser is not a syndicate, partnership or other form of unincorporated entity or organization created solely to permit the purchase of the Shares by a group of individuals whose individual share of the aggregate acquisition cost of the Shares is not less than $97,000 (Cdn.);
(f) the representations, warranties and statements of fact made by the Purchaser herein, and in the Acknowledgment and the Corporate Placee Registration Form (if either or both are required) are true and correct as of the date hereof and will be true on the Closing Date;
(g) the Shares were not offered to the Purchaser through an advertisement in printed media of general and regular paid circulation, radio or television;
(h) the offer made by this subscription is irrevocable and requires acceptance by the Issuer and the approval of the Exchanges;
(i) the Shares have not been, and will not be, registered under the United States Securities Act of 1933, as amended. Accordingly, any offer or sales in the United States or to such nationals or residents thereof must be pursuant to the registration requirements of the Securities Act of 1933, as amended, or an exemption therefrom. The Issuer does not make any representation with respect to, nor has it assumed any responsibility for, the registration of the Shares or the availability of any such exemption; and the Issuer does not make any representation as to when, if at any time, the Shares may be resold in the United States or to such nationals or residents thereof;
(j) this subscription has not been solicited in any manner contrary to Applicable Securities Laws or the United States Securities Act of 1933, as amended;
(k) no person has made to the Purchaser any written or oral representation:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the purchase price of any of the Shares; or
(iii) as to the future price or value of any of the Shares; or
(l) the Purchaser is not a “control person” of the Issuer as defined in the Applicable Securities Laws and will not become a “control person” by virtue of the purchase of the Shares and does not intend to act in concert with any other person to form a control group;
(m) the Purchaser has no knowledge of a “material fact” or “material change” (as those terms are defined in the Applicable Securities Laws) in the affairs of the Issuer that has not been generally disclosed to the public, save knowledge of this particular transaction;
(n) the purchase of the Shares has been privately negotiated and arranged and the Purchaser or its agent has been invited and afforded the opportunity to conduct a review of all of the Issuer’s affairs and records in order that the Purchaser may be properly and fully aware of all of the facts relevant to the Issuer’s affairs;
(o) the Purchaser has sought and obtained independent legal advice regarding the purchase and re-sale of the Shares under the Applicable Securities Laws;
(p) the Toronto Stock Exchange requires that the Shares must be unconditionally held for a period of four (4) months from the Closing Date;
(q) unless the Purchaser is otherwise exempted under the Applicable Securities Laws, the Shares must be unconditionally held for a period of four (4) months - 5 - from the Closing Date, except as may be otherwise permitted by the Applicable Securities Laws and, if the Purchaser is a resident of a jurisdiction other than British Columbia, the Shares may be subject to additional re-sale restrictions; and if the Purchaser is a resident of the United States of America, the Shares will be subject to resale restrictions pursuant to Rule 144 promulgated under the United States Securities Act of 1933;
(r) resale of the Shares will be subject to additional resale restrictions beyond the hold periods described immediately above if:
(i) the Purchaser is an insider of the Issuer, other than a director or officer, and has not filed all xxxxxxx xxxxxxx reports or personal information forms required to be filed under the Applicable Securities Laws;
(ii) the Purchaser is a director or officer of the Issuer and has not filed all xxxxxxx xxxxxxx reports or personal information forms required to be filed under the Applicable Securities Laws or the Issuer has not filed all records required to be filed under Part 12 (continuous disclosure) of the Applicable Securities Laws;
(iii) the Purchaser is, or subsequently becomes, a control person within the meaning of the Applicable Securities Laws;
(iv) any unusual effort is made to prepare the market or create a demand for the securities; or
(v) an extraordinary commission or consideration is paid in respect of the trade;
(s) the certificates representing the Shares will contain a legend or legends denoting restrictions on transfer as referred to herein and, where applicable, the resale restrictions under Rule 144 of the United States Securities Act of 1933;
(t) the Purchaser has the legal capacity and competence to enter into and to execute and deliver this Subscription Agreement and to take all actions required pursuant hereto, and the Purchaser is duly organized incorporated and validly existing subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been given to authorize execution of this Subscription Agreement on behalf of the Purchaser;
(u) the entering into of this Subscription Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to, or the constating documents of, the Purchaser or of any agreement, written or oral, to which the Purchaser may be a party or by which the Purchaser is or may be bound; and
(v) this Subscription Agreement has been duly executed and delivered by the Purchaser and constitutes a valid obligation of the Purchaser legally binding upon the Purchaser and enforceable against the Purchaser in accordance with its terms.
2.2 The representations, warranties, covenants and acknowledgments of the Purchaser contained in this Subscription Agreement are made by the Purchaser with the intent that they may be relied upon by the Issuer in determining the Purchaser’s eligibility to purchase the Shares hereunder and the Purchaser hereby agrees to indemnify the Issuer against all losses, claims, costs, expenses and damages or liabilities which it may suffer or incur, caused or arising from its reliance thereon and the Purchaser further agrees that by accepting the Shares, the Purchaser shall be representing and warranting that such representations, warranties, covenants and acknowledgments are true as at the Closing Date with the same force and effect as if they had been made by the Purchaser at the Closing Date and that they shall survive the purchase by the Purchaser of the Shares and shall continue in full force and effect notwithstanding any subsequent disposition by the Purchaser of the Shares.
2.3 The Issuer represents and warrants as at the date hereof and as at the Closing Date, that:
(a) the Issuer and its subsidiaries, if any, are valid and subsisting corporations duly incorporated and in good standing under the laws of the State jurisdiction of Delaware, is qualified their incorporation;
(b) the Issuer will reserve or set aside sufficient shares in the treasury of the Issuer to engage in business in all jurisdictions where such qualification is required, and has full power and authority to enter into this Agreement and to consummate issue the transactions contemplated hereby Shares;
(c) This the Issuer is a “reporting issuer” as defined under the Applicable Securities Laws, and is not on the list of defaulting issuers maintained by the Commissions;
(d) the Issuer is a “qualifying issuer”, as that term is defined under Multilateral Instrument 45-106, and has filed a current Annual Information Form with the Commissions;
(e) the Issuer shall use its best efforts to diligently seek and obtain the acceptance for filing of this Subscription Agreement by the Exchanges and will make all filings necessary to obtain the related security agreementsexemptions from registration and prospectus requirements available under the Applicable Securities Laws respectively in respect of the transaction contemplated hereby;
(f) the issuance and sale of the Shares 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, collateral assignments and Notes provided for herein have conditions or provisions of its constating documents or any agreement or instrument to which the Issuer is a party;
(g) this Subscription Agreement has been duly authorized by all necessary corporate action and constitute on the legal, valid and binding obligations of Colmena enforceable in accordance with their respective terms;
(d) The making and performance by Colmena of this Agreement and the related security agreements, collateral assignments, Notes and any related documents and the transactions contemplated hereby and thereby do not contravene any provisions of law applicable to Colmena and do not conflict or are not inconsistent with, and will not result (with or without the giving of notice or both) in a breach of or constitute a default or require any consent under, or result in the creation of any lien, charge or encumbrance upon the Collateral pursuant to the terms of any credit agreement, indenture, mortgage, purchase agreement, deed of trust, security agreement, lease guarantee or other instrument to which Colmena is a party or by which Colmena or its assets may be bound or to which its properties may be subject;
(e) All sales, use, property or other taxes, licenses, tolls, inspection or other fees, bonds, permits or certificates which were or may be required to be paid or obtained in connection with the acquisition or ownership by Colmena part of the Collateral will have been, or when due will be, paid in full or obtained;
(f) Colmena has good, Issuer and constitutes a valid and marketable title to the Collateral free and clear of all liens, claims and encumbrances, except as specifically disclosed in exhibit 2.1(c)(2), if any;
(g) Concurrently with or prior to the time the initial Loan is made, Yankees will have a perfected continuing first priority security interest in and to all the Collateral, except as specifically disclosed in exhibit 2.1(c)(2), if any; and
(h) Colmena has not entered into any understanding or agreement, (oral or in writing) relating to the transactions contemplated herein, or any other transactions contemplated or permitted by this Agreement, with any person or entity which understanding, agreement or other writing would, in the reasonable determination of Yankees, affect the Collateral in any manner whatsoever or any of the rights or interests of Yankees with respect thereto.obligation of
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Tanzanian Royalty Exploration Corp)
ACKNOWLEDGMENTS, REPRESENTATIONS AND WARRANTIES. Colmena 2.1 The Purchaser acknowledges, represents and warrants warrants, as at the date hereof and as at each Closing Date, that:
(a) As no prospectus has been filed by the Issuer with the Commissions in connection with the issuance of the date Shares, the issuance is exempted from the prospectus requirements of this Agreementthe Securities Acts of Alberta, Colmena British Columbia and Ontario and the respective rules and regulations thereto (hereinafter collectively referred to as the “Applicable Securities Laws”), and that:
(i) the Purchaser is restricted from using most of the civil remedies available under the Applicable Securities Laws;
(ii) the Purchaser may not insolvent within receive information that would otherwise be required to be provided to the meaning of applicable state and federal laws dealing with debtors and creditors, including Purchaser under the Federal Bankruptcy CodeApplicable Securities Laws; and
(iii) the Issuer is relieved from certain obligations that would otherwise apply under the Applicable Securities Laws;
(b) Colmena the Purchaser is purchasing the Shares as principal for his own account and not for the benefit of any other person and not with a view to the resale or distribution of all or any of the Shares;
(c) the Purchaser is a Delaware corporation director, senior officer or control person of the Issuer, or of an affiliate of the Issuer and is an “accredited investor” as that term is defined in Rule 505 of Regulation D of the United States Securities Act of 1933, as amended;
(d) the representations, warranties and statements of fact made by the Purchaser herein are true and correct as of the date hereof and will be true on each Closing Date;
(e) the Shares were not offered to the Purchaser through an advertisement in printed media of general and regular paid circulation, radio or television;
(f) the offer made by this subscription is irrevocable and requires acceptance by the Issuer and the approval of the Exchanges;
(g) the Shares (sometimes hereinafter referred to as the “Securities”) have not been, and will not be, registered under the United States Securities Act of 1933, as amended. Accordingly, any offer or sales in the United States or to such nationals or residents thereof must be pursuant to the registration requirements of the Securities Act of 1933, as amended, or an exemption therefrom. The Issuer does not make any representation with respect to, nor has it assumed any responsibility for, the registration of the Securities or the availability of any such exemption; and the Issuer does not make any representation as to when, if at any time, the Securities may be resold in the United States or to such nationals or residents thereof;
(h) this subscription has not been solicited in any manner contrary to Applicable Securities Laws or the United States Securities Act of 1933, as amended;
(i) no person has made to the Purchaser any written or oral representation:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the Securities; or
(iii) as to the future price or value of any of the Securities;
(j) the Purchaser is not a “control person” of the Issuer as defined in the Applicable Securities Laws and will not become a “control person” by virtue of the purchase of the Securities and does not intend to act in concert with any other person to form a control group;
(k) the Purchaser has no knowledge of a “material fact” or “material change” (as those terms are defined in the Applicable Securities Laws) in the affairs of the Issuer that has not been generally disclosed to the public, save knowledge of this particular transaction;
(l) the purchase of the Securities has been privately negotiated and arranged and the Purchaser has been invited and afforded the opportunity to conduct a review of all of the Issuer’s affairs and records in order that the Purchaser may be properly and fully aware of all of the facts relevant to the Issuer’s affairs;
(m) the Purchaser has sought and obtained independent legal advice regarding the purchase and re-sale of the Securities under the Applicable Securities Laws;
(n) unless the Purchaser is otherwise exempted under the Applicable Securities Laws, the Securities must be unconditionally held for a period of four (4) months from the applicable Closing Date upon which the Securities are issued, except as may be otherwise permitted by the Applicable Securities Laws and the Securities will be subject to resale restrictions pursuant to Rule 144 promulgated under the United States Securities Act of 1933;
(o) resale of the Securities will be subject to additional resale restrictions beyond the hold periods described immediately above if:
(i) the Purchaser is an insider of the Issuer, other than a director or officer, and has not filed all xxxxxxx xxxxxxx reports or personal information forms required to be filed under the Applicable Securities Laws;
(ii) the Purchaser is a director or officer of the Issuer and has not filed all xxxxxxx xxxxxxx reports or personal information forms required to be filed under the Applicable Securities Laws or the Issuer has not filed all records required to be filed under Part 12 (continuous disclosure) of the Applicable Securities Laws;
(iii) the Purchaser is, or subsequently becomes, a control person within the meaning of the Applicable Securities Laws;
(iv) any unusual effort is made to prepare the market or create a demand for the securities; or
(v) an extraordinary commission or consideration is paid in respect of the trade;
(p) the certificates representing the Securities will contain a legend or legends denoting restrictions on transfer as referred to herein and, where applicable, the resale restrictions under Rule 144 of the United States Securities Act of 1933;
(q) the Purchaser has the legal capacity and competence to enter into and to execute and deliver this Subscription Agreement and to take all actions required pursuant hereto;
(r) the entering into of this Subscription Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable to the Purchaser or of any agreement, written or oral, to which the Purchaser may be a party or by which the Purchaser is or may be bound; and
(s) this Subscription Agreement has been duly organized executed and validly existing delivered by the Purchaser and constitutes a valid obligation of the Purchaser legally binding upon the Purchaser and enforceable against the Purchaser in accordance with its terms.
2.2 The representations, warranties, covenants and acknowledgments of the Purchaser contained in this Subscription Agreement are made by the Purchaser with the intent that they may be relied upon by the Issuer in determining the Purchaser’s eligibility to purchase the Shares hereunder and the Purchaser hereby agrees to indemnify the Issuer against all losses, claims, costs, expenses and damages or liabilities which it may suffer or incur, caused or arising from its reliance thereon and the Purchaser further agrees that by accepting the Shares, the Purchaser shall be representing and warranting that such representations, warranties, covenants and acknowledgments are true as at the Closing Date with the same force and effect as if they had been made by the Purchaser at the Closing Date and that they shall survive the purchase by the Purchaser of the Securities and shall continue in full force and effect notwithstanding any subsequent disposition by the Purchaser of the Securities.
2.3 The Issuer represents and warrants as at the date hereof and as at each Closing Date, that:
(a) the Issuer and its subsidiaries, if any, are valid and subsisting corporations duly incorporated and in good standing under the laws of the State jurisdiction of Delaware, is qualified their incorporation;
(b) the Issuer will reserve or set aside sufficient shares in the treasury of the Issuer to engage in business in all jurisdictions where such qualification is required, and has full power and authority to enter into this Agreement and to consummate issue the transactions contemplated hereby Securities;
(c) This the Issuer is a “reporting issuer” as defined under the Applicable Securities Laws, and is not on the list of defaulting issuers maintained by the Commissions;
(d) the Issuer will on each Closing Date, be a “qualifying issuer”, as that term is defined under Multilateral Instrument 45-106, and will, prior to the first Closing Date have filed a current Annual Information Form with the Commissions;
(e) the Issuer shall use its best efforts to diligently seek and obtain the acceptance for filing of this Subscription Agreement by the Exchanges and will make all filings necessary to obtain the related security agreementsexemptions from registration and prospectus requirements available under the Applicable Securities Laws respectively in respect of the transaction contemplated hereby;
(f) 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, collateral assignments and Notes provided for herein have conditions or provisions of its constating documents or any agreement or instrument to which the Issuer is a party;
(g) this Subscription Agreement has been duly authorized by all necessary corporate action on the part of the Issuer and constitute constitutes a valid obligation of the legal, valid Issuer legally binding upon it and binding obligations of Colmena enforceable in accordance with their respective its terms;
(d) The making and performance by Colmena of this Agreement and the related security agreements, collateral assignments, Notes and any related documents and the transactions contemplated hereby and thereby do not contravene any provisions of law applicable to Colmena and do not conflict or are not inconsistent with, and will not result (with or without the giving of notice or both) in a breach of or constitute a default or require any consent under, or result in the creation of any lien, charge or encumbrance upon the Collateral pursuant to the terms of any credit agreement, indenture, mortgage, purchase agreement, deed of trust, security agreement, lease guarantee or other instrument to which Colmena is a party or by which Colmena or its assets may be bound or to which its properties may be subject;
(e) All sales, use, property or other taxes, licenses, tolls, inspection or other fees, bonds, permits or certificates which were or may be required to be paid or obtained in connection with the acquisition or ownership by Colmena of the Collateral will have been, or when due will be, paid in full or obtained;
(f) Colmena has good, valid and marketable title to the Collateral free and clear of all liens, claims and encumbrances, except as specifically disclosed in exhibit 2.1(c)(2), if any;
(g) Concurrently with or prior to the time the initial Loan is made, Yankees will have a perfected continuing first priority security interest in and to all the Collateral, except as specifically disclosed in exhibit 2.1(c)(2), if any; and
(h) Colmena has not entered into any understanding or agreement, (oral or in writing) relating to the transactions contemplated herein, or any other transactions contemplated or permitted by this Agreement, with any person or entity which understanding, agreement or other writing would, in the reasonable determination of Yankees, affect the Collateral in any manner whatsoever or any of the rights or interests of Yankees with respect thereto.
Appears in 1 contract
Samples: Private Placement Subscription Agreement (Tanzanian Royalty Exploration Corp)
ACKNOWLEDGMENTS, REPRESENTATIONS AND WARRANTIES. Colmena AmeriNet acknowledges, represents and warrants that:
(a) As of the date of this Agreement, Colmena AmeriNet is not insolvent within the meaning of applicable state and federal laws dealing with debtors and creditors, including including, without limitation, the Federal Bankruptcy Code;
(b) Colmena AmeriNet is a Delaware corporation duly organized and validly existing in good standing under the laws of the State of Delaware, is all of its subsidiaries are duly organized, validly existing and in good standing under the laws of their respective states of organization, AmeriNet and all of its subsidiaries are qualified to engage in business in all jurisdictions where such qualification is required, required and AmeriNet has full power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and thereby;
(c) This Agreement and the related security agreements, collateral assignments and Notes provided for herein have been duly authorized by all necessary corporate action and hereby and thereby constitute the legal, valid and binding obligations of Colmena AmeriNet enforceable in accordance with their respective terms;
(d) The making and performance by Colmena AmeriNet of this Agreement and the related security agreements, collateral assignments, Notes and any related documents and the transactions contemplated hereby and thereby do not contravene any provisions of law applicable to Colmena AmeriNet and do not conflict or are not inconsistent with, and will not result (with or without the giving of notice or both) in a breach of or constitute a default or require any consent under, or result in the creation of any lien, charge or encumbrance upon the Collateral pursuant to the terms of any credit agreement, indenture, mortgage, purchase agreement, deed of trust, security agreement, lease guarantee or other instrument to which Colmena AmeriNet is a party or by which Colmena AmeriNet or its assets may be bound or to which its properties may be subject;
(e) All sales, use, property or other taxes, licenses, tolls, inspection or other fees, bonds, permits or certificates which were or may be required to be paid or obtained in connection with the acquisition or ownership by Colmena AmeriNet of the Collateral will have been, or when due will be, paid in full or obtained;
(f) Colmena AmeriNet has good, valid and marketable title to the Collateral free and clear of all liens, claims and encumbrances, except as specifically disclosed in exhibit 2.1(c)(2), if any;
(g) Concurrently with or prior to the time the initial Loan is made, Yankees will have a perfected continuing first priority security interest in and to all the Collateral, except as specifically disclosed in exhibit 2.1(c)(2), if any; and
(h) Colmena AmeriNet has not entered into any understanding or agreement, (oral or in writing) relating to the transactions contemplated herein, or any other transactions contemplated or permitted by this Agreement, with any person or entity which understanding, agreement or other writing would, in the reasonable determination of Yankees, affect the Collateral in any manner whatsoever or any of the rights or interests of Yankees with respect thereto.
Appears in 1 contract
Samples: Convertible Loan Agreement (Amerinet Group Com Inc)
ACKNOWLEDGMENTS, REPRESENTATIONS AND WARRANTIES. Colmena acknowledges3.1 The Company expressly acknowledges and agrees that the obligation of the Company and the other Loan Parties to repay the Loans and the other obligations under the Loan Documents is absolute and unconditional, and there exists no right of setoff or recoupment, counterclaim or defense of any nature whatsoever to payment of such obligations. The Company acknowledges and agrees that each of the Loan Documents is the legal, valid and binding obligation of each Loan Party thereto, enforceable against such Loan Party in accordance with its terms. The Company agrees that it shall, and shall cause each of its Subsidiaries to, not dispute the validity or enforceability of any of the Loan Documents, or any of its obligations thereunder, or the validity, priority, enforceability or extent of the Agent's security interest, mortgage or lien against any item of Collateral described in the Loan Documents, in any judicial, administrative or other proceeding, either during or following the expiration or termination of the Forbearance Period.
3.2 The Company represents and warrants that:
to the Agent and the Lenders that (a) As the representations and warranties made in Section 9 (excluding Sections 9.6 and 9.8) of the date Credit Agreement are true and correct on and as of the Tenth Amendment Effective Date and the Forbearance Effective Date with the same effect as if made on and as of the Tenth Amendment Effective Date and Forbearance Effective Date, as the case may be (except to the extent relating solely to an earlier date, in which case they were true and correct as of such earlier date); (b) other than the Specified Defaults, no Event of Default or Unmatured Event of Default exists or will result from the execution of this Agreement; (c) no event or circumstance has occurred since the Effective Date that has resulted, Colmena is not insolvent within or would reasonably be expected to result, in a Material Adverse Effect; (d) the meaning execution and delivery by the Company of applicable state and federal laws dealing with debtors and creditors, including the Federal Bankruptcy Code;
(b) Colmena is a Delaware corporation duly organized and validly existing in good standing under the laws of the State of Delaware, is qualified to engage in business in all jurisdictions where such qualification is required, and has full power and authority to enter into this Agreement and to consummate the transactions contemplated performance by the Company of its obligations under the Credit Agreement as amended hereby ;
(cas so amended, the "AMENDED CREDIT AGREEMENT") This Agreement and (i) are within the related security agreementscorporate powers of the Company, collateral assignments and Notes provided for herein (ii) have been duly authorized by all necessary corporate action action, (iii) have received all necessary approval from any Governmental Authority and constitute (iv) do not and will not contravene or conflict with any provision of any law, rule or regulation or any order, decree, judgment or award which is binding on the Company or any Guarantor or any of their respective Subsidiaries or of any provision of the certificate of incorporation or bylaws or other organizational documents of the Company or of any agreement, indenture, instrument or other document which is binding on the Company or any Guarantor or any of their respective Subsidiaries; (e) the Amended Credit Agreement is the legal, valid and binding obligations obligation of Colmena the Company, enforceable against the Company in accordance with their respective its terms;
(d) The making and performance , except as enforceability may be limited by Colmena applicable bankruptcy, insolvency or similar laws affecting the enforcement of this Agreement and the related security agreements, collateral assignments, Notes and any related documents and the transactions contemplated hereby and thereby do not contravene any provisions of law applicable to Colmena and do not conflict or are not inconsistent with, and will not result (with or without the giving of notice or both) in a breach of or constitute a default or require any consent under, or result in the creation of any lien, charge or encumbrance upon the Collateral pursuant to the terms of any credit agreement, indenture, mortgage, purchase agreement, deed of trust, security agreement, lease guarantee or other instrument to which Colmena is a party creditors' rights generally or by which Colmena or its assets may be bound or equitable principles relating to which its properties may be subject;
(e) All sales, use, property or other taxes, licenses, tolls, inspection or other fees, bonds, permits or certificates which were or may be required to be paid or obtained in connection with the acquisition or ownership by Colmena of the Collateral will have been, or when due will be, paid in full or obtained;
enforceability; (f) Colmena has goodthe obligation of the Company and the other Loan Parties to repay the Loans and the other obligations under the Loan Documents is absolute and unconditional, valid and marketable title there exists no right of setoff or recoupment, counterclaim or defense of any nature whatsoever to the Collateral free payment of such obligations; and clear of all liens, claims and encumbrances, except as specifically disclosed in exhibit 2.1(c)(2), if any;
(g) Concurrently with or prior to the time the initial Loan no Forbearance Default has occurred and is made, Yankees will have a perfected continuing first priority security interest in and to all the Collateral, except as specifically disclosed in exhibit 2.1(c)(2), if any; and
(h) Colmena has not entered into any understanding or agreement, (oral or in writing) relating to the transactions contemplated herein, or any other transactions contemplated or permitted by this Agreement, with any person or entity which understanding, agreement or other writing would, in the reasonable determination of Yankees, affect the Collateral in any manner whatsoever or any of the rights or interests of Yankees with respect theretocontinuing.
Appears in 1 contract
ACKNOWLEDGMENTS, REPRESENTATIONS AND WARRANTIES. Colmena Explorations acknowledges, represents and warrants that:
(a) As of the date of this Agreement, Colmena Explorations is not insolvent within the meaning of applicable state and federal laws dealing with debtors and creditors, including the Federal Bankruptcy Code;
(b) Colmena Explorations is a Delaware corporation duly organized and validly existing in good standing under the laws of the State of Delaware, is qualified to engage in business in all jurisdictions where such qualification is required, and has full power and authority to enter into this Agreement and to consummate the transactions contemplated hereby ;
(c) This Agreement and the related security agreements, collateral assignments and Notes provided for herein have been duly authorized by all necessary corporate action and constitute the legal, valid and binding obligations of Colmena Explorations enforceable in accordance with their respective terms;
(d) The making and performance by Colmena Explorations of this Agreement and the related security agreements, collateral assignments, Notes and any related documents and the transactions contemplated hereby and thereby do not contravene any provisions of law applicable to Colmena Explorations and do not conflict or are not inconsistent with, and will not result (with or without the giving of notice or both) in a breach of or constitute a default or require any consent under, or result in the creation of any lien, charge or encumbrance upon the Collateral pursuant to the terms of any credit agreement, indenture, mortgage, purchase agreement, deed of trust, security agreement, lease guarantee or other instrument to which Colmena Explorations is a party or by which Colmena Explorations or its assets may be bound or to which its properties may be subject;
(e) All sales, use, property or other taxes, licenses, tolls, inspection or other fees, bonds, permits or certificates which were or may be required to be paid or obtained in connection with the acquisition or ownership by Colmena Explorations of the Collateral will have been, or when due will be, paid in full or obtained;
(f) Colmena Explorations has good, valid and marketable title to the Collateral free and clear of all liens, claims and encumbrances, except as specifically disclosed in exhibit 2.1(c)(2), if any;
(g) Concurrently with or prior to the time the initial Loan is made, Yankees will have a perfected continuing first priority security interest in and to all the Collateral, except as specifically disclosed in exhibit 2.1(c)(2), if any; and
(h) Colmena Explorations has not entered into any understanding or agreement, (oral or in writing) relating to the transactions contemplated herein, or any other transactions contemplated or permitted by this Agreement, with any person or entity which understanding, agreement or other writing would, in the reasonable determination of Yankees, affect the Collateral in any manner whatsoever or any of the rights or interests of Yankees with respect thereto.
Appears in 1 contract
