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
Samples: 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
Samples: 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
Samples: Bond Purchase Agreement, Bond Purchase Agreement, Bond Purchase Agreement
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
Samples: Bond Purchase Agreement, Bond Purchase Agreement, Bond Purchase Agreement
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
Samples: Subscription Agreement (Cronus Equity Capital Group LLC), Subscription Agreement (Cronus Equity Capital Group LLC)
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
Samples: 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 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
Samples: Auction Agent Agreement (Zions Bancorporation /Ut/), Auction Agent Agreement (Zions Bancorporation /Ut/)
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
Samples: Collateral Management Agreement, Collateral Management Agreement (CBRE Realty Finance 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
Samples: 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 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
Samples: 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 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. 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
Samples: Private Placement Subscription Agreement (McEwen Mining Inc.), Private Placement Subscription Agreement (McEwen Mining 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
Samples: Collateral Management Agreement, Collateral Management Agreement (CBRE Realty Finance Inc)
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
Samples: Issuing and Paying Agent Agreement (Danaher Corp /De/), Issuing and Paying Agent Agreement (Danaher Corp /De/)
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
Samples: Forbearance Agreement (Petroquest Energy Inc), Forbearance Agreement (Petroquest Energy 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
Samples: Auction Agent Agreement, Auction Agent Agreement (Zions Bancorporation /Ut/)
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. (a) Each representation and warranty of the Issuer set forth in the Base Indenture and the Series 2022-1 Supplement is a corporation duly incorporated true and validly subsisting under correct as of the laws date of British Columbia this Amendment in all material respects (except for representations and has warranties which are limited as to materiality by their terms, which representations and warranties shall be true and correct as of the corporate power date of this Amendment) as though such representation or warranty were being made on and authority to enter into this Agreement as of the date hereof and complete the transactions contemplated is hereby and to own and lease its properties and assets and to conduct its business deemed repeated as currently conducted;though fully set forth herein.
(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 by the Issuer of this Agreement and the transactions herein contemplated:
Amendment (i) have or will have been prior to the Closing duly and validly authorized by all necessary corporate action and statutory trust proceedings of the Issuer and by all necessary action of the shareholders thereof;
Issuer, (ii) requires no action by or in respect of, or filing with, or any consent or approval of, any governmental body, agency or official, which has not been obtained and (iii) do not contravene, conflict with or cause violate or result in a breach of (x) any of the provisions of, or constitutes a default under, any indenture, contract, agreement, mortgage, deed of trust or other instrument to which the Issuer to be in breach is a party or default of its memorandum or articles, or articles or by-laws, as by which the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements Issuer or any of its other agreements property is bound, which conflict, violation or undertakings default could reasonably be expected to have a Material Adverse Effect or (y) any judgement, decree or order to or Requirement of Law.
(c) This Amendment has been executed and delivered by which it a duly authorized officer of the Issuer.
(d) Each of this Amendment and the Series 2022-1 Supplement as amended hereby is a party to or is bound;
(g) at the Closinglegal, upon payment valid and binding obligation 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 Issuer enforceable against the CompanyIssuer in accordance with its terms (except as such enforceability may be limited by bankruptcy, upon exercise insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by confidential general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing).
(e) Upon giving effect to this Amendment, there is no Amortization Event, Liquidation Event of Default or Limited Liquidation Event of Default that is continuing as 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 situateddate hereof.
Appears in 1 contract
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
Samples: Commercial Paper Placement Agency Agreement (Harsco Corp)
Representations and Warranties of the Issuer. (a) The Issuer represents (as of the Effective Date and as of each date on which a Loan is made by a Class A Noteholder pursuant to the Series 1997-1 Supplement, unless otherwise indicated) and warrants to, and agrees with, the Purchaser that:
(i) The Issuer is a corporation duly incorporated organized, validly existing and validly subsisting in good standing under the laws of British Columbia the State of Delaware, with its chief executive office located at 000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx 00000, and has the corporate power to own its assets and authority to enter into engage in the activities in which it is presently engaged and is duly qualified and in good standing under the laws of each jurisdiction where its ownership of property or the conduct of its activities requires such qualification, if the failure to so qualify would have a material adverse effect on the financial condition of the Issuer or on the enforceability of the Class A Note or the ability of the Issuer to perform its obligations under this Agreement and complete the other Related Documents to which it is a party. One hundred percent of the beneficial ownership of the Issuer is owned by Xxxxxx Lease Finance Corporation ("WLFC"). The Issuer has no subsidiaries;
(ii) The Issuer has the power, authority and legal right to execute, deliver and perform its obligations under this Agreement and the other Related Documents to which it is a party (collectively, the "Issuer Documents"); the execution, delivery, and performance of the Issuer Documents by the Issuer have been duly authorized by the Issuer by all necessary action, the Issuer Documents, other than the Class A Note, have been duly executed and delivered by the Issuer, and the Class A Note, when issued in accordance with the terms hereof and of the Indenture and the Series 1997-1 Supplement, will have been duly executed and delivered;
(iii) Each of the Issuer Documents (other than the Class A Note), assuming due authorization, execution and delivery by the other parties thereto, constitutes, and the Class A Note, when issued and authenticated in accordance with the terms of the Indenture and the Series 1997-1 Supplement, will constitute, a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except that such enforcement may be limited by (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws (whether statutory, regulatory or decisional) now or hereafter in effect relating to creditors' rights generally and (B) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iv) The consummation of the transactions contemplated by the Issuer Documents and the fulfillment of the terms therein will not conflict with or result in any breach of any of the terms and 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 indenture, agreement, mortgage, deed of trust, commitment letter or funding arrangement with any lending institution or investment bank or other instrument to which the Issuer is a party or by which it is bound, or result in the creation or imposition of any lien, claim or encumbrance upon any of its properties pursuant to the terms of such indenture, agreement, mortgage, deed of trust, commitment letter or funding arrangement with any lending institution or investment bank or other such instrument, other than as created pursuant to the Indenture and the Series 1997-1 Supplement, or violate any law or, any order, rule or regulation applicable to the Issuer of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Issuer or any of its properties and there are no legal or governmental proceedings pending or, to the best knowledge of the Issuer, threatened or contemplated that would result in a material modification or revocation thereof;
(v) There are no litigation, proceedings or investigations to which the Issuer, or any Affiliate of the Issuer, is a party pending, or, to the knowledge of Issuer, threatened, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (A) asserting the invalidity of the Class A Note or the other Issuer Documents, (B) seeking to prevent the issuance of the Class A Note or the consummation of any of the transactions contemplated by the other Issuer Documents, or (C) seeking any determination or ruling that would materially and adversely affect the performance by the Issuer of its obligations under, or the validity or enforceability of, the Class A Note or the other Issuer Documents;
(vi) All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official, required in connection with the execution and delivery of the Issuer Documents by the Issuer and with the valid and proper authorization, issuance and sale of the Class A Note pursuant to this Agreement, have been or will be taken or obtained on or prior to the Effective Date;
(vii) No written materials delivered to the Purchaser by or on behalf of the Issuer in connection with the sale of the Class A Note contain any untrue statement of a material fact or omit a material fact necessary to make the statements contained therein or herein not misleading. There is no fact peculiar to the Issuer or any Affiliate of the Issuer or, to the knowledge of the Issuer, any Lease Agreement, Lessee or Engine which the Issuer has not disclosed to you in writing which materially adversely affects or, so far as the Issuer can now reasonably foresee, will materially adversely affect the ability of the Issuer to perform the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedby the other Related Documents;
(bviii) The List of Engines to be created as of the Closing Date and each supplement thereto will be available to you by the Issuer shall do and will be complete as of the date thereof and will include an accurate (in all acts material respects) description of the Engines;
(ix) The representations and things necessary to reserve or set aside sufficient shares warranties made by the Issuer in the treasury Issuer Documents are true and correct in all material respects and the Purchaser shall be entitled to rely on such representations and warranties;
(x) Any taxes, fees and other governmental charges payable by the Issuer in connection with the execution and delivery of the Issuer to enable it to issue Documents, the pledge of the Collateral to the Purchaser the Shares Indenture Trustee, 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 sale of the Class A Note, have been paid;
(xi) To the extent the Securities Exchange Act of 1934, as amended (the "Exchange Act"), may be deemed to apply to the Class A Note and the Loans, none of the transactions contemplated in the Issuer Documents (including, without limitation thereof, the use of the proceeds from the sale of the Class A Note) will violate or result in a violation of Section 7 of the Exchange Act, or any regulations issued pursuant thereto;
(xii) Concurrently with the execution and delivery of this Agreement, the Issuer is executing no other Note Purchase Agreement with respect to the Class A Note;
(xiii) The Issuer is not an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(xiv) For so long as the Series 1997-1 Class A Notes are the only Notes outstanding under the Indenture, each of the Indenture and the transactions herein contemplated:Series 1997-1 Supplement need not be qualified as an "indenture" pursuant to the terms of the Trust Indenture Act of 1939, as amended;
(xv) The Issuer has not taken and will not take, directly or indirectly, any action prohibited by Rules 101 and 102 under Regulation M of the Securities and Exchange Commission in connection with the offering of the Class A Note;
(xvi) To the extent that the Securities Act may be deemed to apply to the Class A Note and the Loans, neither the Issuer nor any affiliate (as defined in Rule 501(b) of Regulation D under the Securities Act ("Regulation D")) of the Issuer has directly, or through any agent, including, without limitation, First Union, (i) have 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 have been prior be integrated with the sale of the Class A Note in a manner that would render the issuance and sale of the Class A Note a violation of the Securities Act or require the registration of the Class A Note under the Securities Act or (ii) engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offering of the Class A Note.
(xvii) To the extent that the Securities Act may be deemed to apply to the Closing duly authorized Class A Note and the Loans, assuming compliance by all you with your agreements set forth in Section 6 hereof, it is not necessary corporate action in connection with the offer, sale and delivery of the Issuer and Class A Note in the manner contemplated by all necessary action of this Agreement to register the shareholders thereofClass A Note under the Securities Act;
(iixviii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articlesNo event has occurred and is continuing that constitutes, or articles with the passage of time or the giving of notice or both would constitute, an Early Amortization Event under, and as defined in, the Indenture. The Issuer is not in violation of any agreement, charter instrument, by-laws, as the case may be, law 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 instrument to which they are a party or by which it is a party to they are or is may be bound;
(gxix) at the Closing, upon payment The aggregate amount 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 Scheduled Payments payable by the disclosure in all prospectuses, filing statements and press releases filed with Lessees under the Commissions or Lease Agreements during each Collection Period is sufficient to pay 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 RecordMonthly Servicing Fee, and the properties are principal and interest on the Class A Note, as such payments become due and payable, in good standing under accordance with the applicable laws Indenture and the Series 1997-1 Supplement;
(xx) The Issuer agrees that it will not directly or indirectly, sell or offer to sell the Class A Note or similar security in a manner that would render the issuance and sale of the jurisdictions in which they are situatedClass A Note pursuant to this Agreement a violation of Section 5 of the Securities Act.
Appears in 1 contract
Samples: Class a Note Purchase Agreement (Willis Lease Finance Corp)
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
Samples: Property Management and Servicing Agreement (Essential Properties Realty Trust, Inc.)
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
Samples: Issue Agreement
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
Samples: Private Placement Subscription Agreement (McEwen Mining Inc.)
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 xxx.xxxxx.xxx, 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 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
Samples: Issuing and Paying Agent Agreement (Enbridge Energy Partners Lp)
Representations and Warranties of the Issuer. By the Issuer’s acceptance hereof it hereby represents and warrants to, and covenants and agrees with, the Underwriter and the Obligated Group (and it shall be a condition of the obligation of the Underwriter to purchase and accept delivery of the Series 2017 Bonds at the Closing that the Issuer shall so represent and warrant as of the date of the Closing) that:
(a) the Issuer It is a corporation duly incorporated political subdivision of the State organized and validly subsisting existing under the laws of British Columbia and the State. The Issuer has the corporate all necessary power and authority and has taken all official actions necessary to adopt the resolution approving the issuance of the Series 2017 Bonds and to enter into and perform its duties under the Indenture, the Loan Agreement, this Bond Purchase Agreement, the Tax Agreement and complete the transactions contemplated hereby and other documents to own and lease its properties and assets and which it is a party related to conduct its business as currently conducted;the issuance of the Series 2017 Bonds (collectively, the “Issuer Documents”).
(b) the Issuer shall do all acts The execution and things necessary to reserve or set aside sufficient shares in the treasury delivery of the Issuer to enable it to issue to Documents and compliance with the Purchaser provisions thereof will not conflict with, or constitute a violation of or default under, the Shares and the Warrant Shares;
(c) the common shares Constitution of the Company are duly listed and posted for trading on the Exchange;
(d) no State or any existing State law, regulation, any decree or order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued applicable to the Issuer or its directorsany resolution of the Issuer and will not conflict with or result in a material violation or breach of, officers or promoters constitute a default under, any material agreement, indenture, mortgage, lease 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 instrument to 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 subject or by which it is a party to or is bound;.
(gc) at Except as disclosed in 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 Limited Public Offering Memorandum, if anyto the best of the knowledge of the Issuer, there is no action, suit, proceeding, inquiry, or investigation at law or in equity or before or by any court, public board, or body pending or, to its knowledge, threatened against it (the "Disclosure Record"or to its knowledge, after making due inquiry with respect thereto, any basis therefor), wherein an unfavorable decision, ruling, or finding would adversely affect the Company is transactions contemplated hereby or the beneficial owner validity of the propertiesIssuer Documents, business or any other agreement or instrument to which it is a party and assets which is used or contemplated for use in the consummation of the transactions contemplated hereby.
(d) The information contained under the headings “SHORT STATEMENT – The Issuer,” “THE ISSUER” and “LITIGATION – The Issuer” in the Limited Public Offering Memorandum fairly and accurately summarize the legal matters set forth therein.
(e) Any certificate signed by any of its authorized officers and delivered to the Underwriter shall be deemed a representation and warranty by it to the Underwriter as to the statements made therein.
(f) Except as may be required under Blue Sky or other securities laws of any state and for filings to be made with the Internal Revenue Service on Form 8038, to the best of its knowledge, there is no consent, approval, authorization or other order of, or filing with, or certification by, any state court, or state or federal governmental agency, or public body of any state required for the execution and delivery of the Issuer Documents or the interests in consummation by the properties, business or assets referred to in the Disclosure Record, and the properties are in good standing under the applicable laws Issuer of the jurisdictions in transactions on its part contemplated herein or therein, which they are situatedhas not been duly obtained or made on or prior to the date hereof.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Investor that the representations and warranties given in this Clause shall be true and correct at the Signing Date, each Closing Date, each Conversion Date and at each Subscription Date:
(a) the The Issuer is a corporation duly incorporated and validly subsisting existing under the laws of British Columbia Switzerland and has the corporate requisite power and authority to enter into and perform its obligations under this Agreement Agreement, the Convertible Notes and complete the transactions contemplated hereby pursuant to any certificate or other document furnished or to be furnished under this Agreement. The Issuer has full corporate power and all necessary licenses, permits and authorizations to own and lease its properties and assets and to conduct carry on its business as currently conducted;now conducted and to own, lease and operate the assets and properties necessary in connection therewith. All issued shares of the Issuer are fully paid-in and non-assessable.
(b) The Issuer or any of the Issuer shall do all acts material subsidiaries have not filed any petition for their winding-up, are not insolvent within the meaning of applicable laws (subject to subordination declarations, as per the most recent reports), and things necessary to reserve have not made any assignment or set aside sufficient shares initiated any arrangement with their creditors, nor has any petition for receivership or any administration order been presented in respect of any of the treasury Group Companies. No receiver or liquidator has been appointed in respect of the Group Companies or any of their material assets. A “material subsidiary” as used in this Agreement is any subsidiary or affiliate which contributes for more than 25% of the total turnover of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;group.
(c) This Agreement, and any certificate or other document furnished or to be furnished under this Agreement and the common shares performance by the Issuer of its obligations under them have been duly authorized by all necessary corporate action on the part of the Company are duly listed Issuer, and posted this Agreement and any other document or instrument executed in connection with this Agreement including each Tranche will, when executed, constitute valid and binding and enforceable obligations of the Issuer in accordance with their respective terms. Agreement for trading on the Exchange;Issuance and Subscription of Convertible Notes 22
(d) no order ceasing The execution by the Issuer of this Agreement, the Warrant Agreement and any other document or suspending trading instrument in securities connection with them, and the performance by the Issuer of its obligations under the Agreement, the Warrant Agreement and any other document or instrument in connection with them and the consummation of the transaction provided for in this Agreement, the Warrant Agreement and any other document or instrument in connection with them, do not and will not result in a breach of any provision of the articles of association of the Issuer nor prohibiting the sale or of such securities has been issued any applicable law, order, judgement or decree of any court or governmental agency or of any agreement 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 to be aware;by which the Issuer is bound.
(e) The Issuer has fully complied with all reporting requirements and other obligations in accordance with Swiss securities laws and regulations of SIX. The Issuer's consolidated financial statements as of and for the period ended December 31, 2019 and 2018 fairly present, in all material respects, the consolidated financial position of the Issuer is a reporting issuer as at December 31, 2019 and an exchange issuer under 2018, respectively, and its consolidated results of operations and its consolidated cash flows for the SECURITIES ACT (B.C.) and is not years then ended in material default of any accordance with U.S. GAAP. From December 31, 2019 until the date hereof, the business of the requirements Issuer has been conducted in the ordinary course of business in a manner consistent with past practice, unless otherwise disclosed by the SECURITIES ACT (B.C.) or Issuer in public announcements made in accordance with applicable law and the Rules thereunder, or of any rule or requirement of the Exchange;pertinent stock exchange rules.
(f) The Issuer acknowledges that the Investor has solely relied on publicly available information disclosed by the Issuer. Taking the respective dates of, and the periods referred to in, such information into account, including the timing of the regular reporting duties, such information does, at such dates and for such periods, not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements therein (except to the extent deferral of disclosure is permissible under applicable law, including SIX regulations) and are, in the light of the circumstances under which they are made, not misleading.
(g) The Issuer is not required to obtain any consent, waiver, authorization or order of, or make any filing or registration with, any court or other federal, state, provincial, local or other governmental or regulatory authority in connection with the execution, delivery and performance by the Issuer of this Agreement and the transactions herein contemplated:delivery of the New Shares to the Investor (other than the registration of New Shares with the competent commercial register and obtaining approval from SIX Exchange Regulation with respect to the listing and initial trading of the New Shares.
(ih) have or The Shares are, and the New Shares 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 contraveneupon issuance be, conflict with or cause the Issuer to be in breach or default of its memorandum or articles, or articles or by-lawslisted on SIX Swiss Exchange and/or on any other Exchange, as the case may be. Agreement for the Issuance and Subscription of Convertible Notes 23
(i) There are no material suits, administrative, arbitration or other proceedings (including but not limited to tax proceedings) pending or to the Issuer's knowledge threatened against any of the Group Companies, and there are no such material suits or proceedings pending or to the Issuer's knowledge threatened by the Group Companies against any resolution other person, nor are there to the Issuer's knowledge any circumstances which may result in such material suits, administrative, arbitration or other proceedings, the outcome of its respective directors which, if it were unfavorable, would individually have a Material Adverse Change.
(j) Each Convertible Note will constitute direct, unconditional, unsecured and unsubordinated obligations of the Issuer and, at all times so long as any amount thereunder is outstanding, shall rank equally with all other present or shareholdersfuture unsecured and unsubordinated debt securities of the Issuer.
(k) The Issuer has not, directly or indirectly, made any trust deedsagreement or commitment with or to any investors where as a result of the issuance or sale of Shares under this Agreement any person or entity would have (i) pre-emptive rights or rights of first refusal with respect to the Shares to be delivered to the Investor or (ii) other rights to purchase or receive Shares or other securities of the Issuer.
(l) Other than as publicly disclosed by the Issuer, debentureand other than any options granted to directors, loan agreements officers, employees, advisors and persons providing services to the Company or any of its subsidiaries under the Issuer's share option compensation plans, there are no securities or other agreements or undertakings rights in issue of the Issuer or any judgementof its subsidiaries that are convertible into or exchangeable for Shares, decree and there are neither any claims against the Issuer to buy nor any obligations of the Issuer or order any of its subsidiaries to or by which it is a party to or is boundissue, any Shares;
(gm) at Neither the ClosingIssuer and its Affiliates nor, upon payment to the knowledge of the purchase priceIssuer, any director, officer, agent, employee or Affiliate of any of them is a person or entity that is, or is owned fifty (50) percent or more or controlled by one or more persons or entities that are:
(i) on the list of Specially Designated Nationals and Blocked Persons maintained by the U.S. Department of Treasury’s Office of Foreign Asset Control (OFAC SDN List);
(ii) the subject of any economic sanctions administered or enforced by OFAC or the U.S. State Department, 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
United Nations Security Council (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"UNSC), the Company European Union (EU), Her Majesty’s Treasury (HMT), or other relevant sanctions authority (collectively, the “Sanctions”), nor has a place of business in, or is operating, organized, resident or doing business in, a country or territory that is, or whose government is, the beneficial owner subject of OFAC’s sanctions programs (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria) (the “Sanctions Programs”). Agreement for the Issuance and Subscription of Convertible Notes 24 The Issuer and its Affiliates shall not, directly or indirectly, use the proceeds received under this Agreement, or lend, contribute, facilitate or otherwise make available such proceeds, directly or indirectly, to any Person: (a) to fund, directly or indirectly, any activities or business of or with any Person that is identified on the OFAC SDN List or that is an entity that is owned fifty (50) percent or more by one or more persons that are on the OFAC SDN List, or in any country or territory, that, during the time of such funding activities, is, or whose government is, the subject of Sanctions or Sanctions Programs; or (b) in any other manner that will result in a violation of Sanctions. The Issuer is not in violation of any of the properties, business and assets or the interests in the properties, business or assets referred sanctions imposed pursuant to in the Disclosure Record, and the properties are in good standing under the applicable laws of the jurisdictions in which they are situatedCAATSA.
Appears in 1 contract
Samples: Convertible Notes Agreement (Wisekey International Holding S.A.)
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
Samples: Placement Agent Agreement (Amdl 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 Secuxxxxxx;
(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
Samples: Private Placement Subscription Agreement (Independence Energy Corp.)
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
Samples: 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. 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. (a) Each representation and warranty of the Issuer set forth in the Base Indenture and the Series 2022-3 Supplement is a corporation duly incorporated true and validly subsisting under correct as of the laws date of British Columbia this Amendment in all material respects (except for representations and has warranties which are limited as to materiality by their terms, which representations and warranties shall be true and correct as of the corporate power date of this Amendment) as though such representation or warranty were being made on and authority to enter into this Agreement as of the date hereof and complete the transactions contemplated is hereby and to own and lease its properties and assets and to conduct its business deemed repeated as currently conducted;though fully set forth herein.
(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 by the Issuer of this Agreement and the transactions herein contemplated:
Amendment (i) have or will have been prior to the Closing duly and validly authorized by all necessary corporate action and statutory trust proceedings of the Issuer and by all necessary action of the shareholders thereof;
Issuer, (ii) requires no action by or in respect of, or filing with, or any consent or approval of, any governmental body, agency or official, which has not been obtained and (iii) do not contravene, conflict with or cause violate or result in a breach of (x) any of the provisions of, or constitutes a default under, any indenture, contract, agreement, mortgage, deed of trust or other instrument to which the Issuer to be in breach is a party or default of its memorandum or articles, or articles or by-laws, as by which the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements Issuer or any of its other agreements property is bound, which conflict, violation or undertakings default could reasonably be expected to have a Material Adverse Effect or (y) any judgement, decree or order to or Requirement of Law.
(c) This Amendment has been executed and delivered by which it a duly authorized officer of the Issuer.
(d) Each of this Amendment and the Series 2022-3 Supplement as amended hereby is a party to or is bound;
(g) at the Closinglegal, upon payment valid and binding obligation 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 Issuer enforceable against the CompanyIssuer in accordance with its terms (except as such enforceability may be limited by bankruptcy, upon exercise insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by confidential general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing).
(e) Upon giving effect to this Amendment, there is no Amortization Event, Liquidation Event of Default or Limited Liquidation Event of Default that is continuing as 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 situateddate hereof.
Appears in 1 contract
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 Mxxxxxx Xxxxxx upon the completion of an initial public offering of the Issuer, pursuant to the Closing duly authorized employment agreement between the Issuer and Mxxxxxx Xxxxxx dated February 7, 2022;
(j) except for Mxxxxxx Xxxxxx, Axxx Xxxxxx and Sxxxxxx XxXxxxxx, 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 Mxxxxxx Xxxxxx and Axxx Xxxxxx, 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 Jxxx Copper Inc., and neither of Los Azules Mining Inc. and San Jxxx Copper Inc. has assets other than shares of ACM; and none of International Copper Mining Inc., Los Azules Mining Inc. and San Jxxx 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 Vxxxxx 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 Vxxxxx 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 Jxxx 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
Samples: Private Placement Subscription Agreement (McEwen Mining 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
Samples: Loan Agreement
Representations and Warranties of the Issuer. Section 2.1. To induce the Noteholders to execute and deliver this First Amendment (which representations shall survive the execution and delivery of this First Amendment), the Issuer and the Parent represent and warrant to the Noteholders that:
(a) this First Amendment has been duly authorized, executed and delivered by it and this First Amendment constitutes the legal, valid and binding obligation, contract and agreement of the Issuer is a corporation duly incorporated and validly subsisting under the enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of British Columbia and has the corporate power and authority or equitable principles relating 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 conductedor limiting creditors’ rights generally;
(b) the Issuer shall do all acts Note Purchase Agreement, as amended by this First Amendment, constitute the legal, valid and things necessary to reserve or set aside sufficient shares in the treasury binding obligations, contracts and agreements of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant SharesParent enforceable against each in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(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 and the Parent of this Agreement and the transactions herein contemplated:
First Amendment (i) have or will have has been prior to the Closing duly authorized by all necessary requisite corporate action of the Issuer and by all necessary action of the shareholders thereof;
and, if required, shareholder action, (ii) do does not contravenerequire the consent or approval of any governmental or regulatory body or agency and (iii) will not (A) violate (1) any provision of law, conflict with statute, rule or cause regulation or the Issuer’s or Parent’s certificate of limited partnership, articles of organization, by‑laws or limited partnership agreement, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon the Issuer to be in breach or default of its memorandum the Parent or articles, or articles or by-laws, as the case may be, or (3) any provision of any resolution of its respective directors material indenture, agreement or shareholders, any trust deeds, debenture, loan agreements other instrument to which the Issuer or any of its other agreements or undertakings or any judgement, decree or order to the Parent is a party or by which it is a party to its properties or is assets are or may be bound;
(g) at the Closing, upon payment including, without limitation, any one of the purchase pricePrimary Credit Facilities, the Shares shall be duly issued and outstanding as fully paid and non-assessableor (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, the Warrants shall be duly granted and enforceable against the Company, upon exercise agreement or other instrument referred to in clause (iii)(A)(3) of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessablethis Section 2.1(c); and
(hd) 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 propertiesdate hereof and after giving effect to this First Amendment, business and assets no Default 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 Event of the jurisdictions in Default has occurred which they are situatedis continuing.
Appears in 1 contract
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
Samples: Non Offering Prospectus 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. 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
Samples: Private Placement Subscription Agreement (Polymet Mining Corp)
Representations and Warranties of the Issuer. 3.01. The Issuer hereby represents and warrants that the following statements shall be true and correct as of the date hereof:
(a) the representations and warranties of the Issuer is a corporation duly incorporated and validly subsisting under contained in Article V of the laws of British Columbia and has the corporate power and authority to enter into this Agreement and complete in each of the transactions contemplated hereby Related Documents are true and correct on and as of the date hereof as though made on and as of such date (except to own the extent the same expressly relate to an earlier date and lease its properties and assets and except that the representations contained in Section 5.11 of the Agreement shall be deemed to conduct its business as currently conducted;refer to the most recent financial statements of the Issuer delivered to the Bank pursuant to Section 6.01(p) of the Agreement; and
(b) no Default or Event of Default has occurred and is continuing or would result from the execution of this Amendment.
3.02. In addition to the representations given in Article V of the Agreement, the Issuer shall do all acts hereby represents 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;warrants as follows:
(ca) 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 by the Issuer of the Fee Agreement, this Agreement Amendment and the transactions herein contemplated:
(i) have or will performance by the Issuer of the Agreement, as amended hereby, are within its powers, have been prior to the Closing duly authorized by all necessary corporate action and do not contravene any law, rule or regulation, any judgment, order or decree or any contractual restriction binding on or affecting the Issuer.
(b) No authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Issuer of the Fee Agreement, this Amendment or the performance by the Issuer of the Agreement, as amended hereby.
(c) The Fee Agreement, this Amendment and the Agreement, as amended hereby, constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their respective terms, except that (i) the enforcement thereof may be limited by bankruptcy, reorganization, insolvency, liquidation, moratorium and by all necessary action other laws relating to or affecting the enforcement of creditors’ rights and remedies generally, as the same may be applied in the event of the shareholders thereof;
bankruptcy, reorganization, insolvency, liquidation or similar situation of the Issuer, and (ii) do not contravene, conflict with no representation or cause warranty is expressed as to the Issuer to be in breach or default availability 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 situatedequitable remedies.
Appears in 1 contract
Samples: Standby Bond Purchase 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
Samples: Receivables Purchase Agreement (Trendwest Resorts Inc)
Representations and Warranties of the Issuer. As of the date ------------ -------------------------------------------- hereof, the Issuer hereby represents and warrants as follows:
(a) the The Issuer is a corporation public corporation, duly incorporated organized and validly subsisting existing under and pursuant to the Constitution and laws of British Columbia the State, and has the corporate full power and authority under the Constitution and laws of the State to enter into this Agreement and complete the transactions contemplated hereby on its part by this Agreement, the Indenture, the Remarketing Agreement and the Bond Resolution, and to own carry out its obligations hereunder and lease thereunder. By the Bond Resolution, the Issuer has duly authorized the execution and delivery of this Agreement, the Remarketing Agreement and the Indenture, the sale, issuance, execution and delivery of the Bonds, and the performance of its properties obligations under this Agreement, the Indenture, the Remarketing Agreement and assets and to conduct its business as currently conducted;the Bonds.
(b) Neither the Issuer shall do all acts Issuer's execution and things necessary to reserve delivery of the Bonds, the Indenture, the Remarketing Agreement or set aside sufficient shares this Agreement, the Issuer's consummation of the transactions contemplated on its part hereby and thereby, nor the Issuer's fulfillment of or compliance with the terms and conditions or provisions of the Bonds, the Indenture, the Remarketing Agreement or this Agreement conflicts with or results in the treasury breach of any of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant Shares;
(c) the common shares terms, conditions or provisions of any constitutional provision or statute of the Company are duly listed and posted for trading on the Exchange;
(d) no State or of any agreement, instrument, judgment, order ceasing or suspending trading in securities of the Issuer nor prohibiting the sale of such securities has been issued decree 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 now 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 bound, or constitutes a party to default under any of the foregoing, or is bound;results in the creation or imposition of any lien, charge or encumbrance of any nature upon any property or assets of the Issuer prohibited under the terms of any instrument or agreement.
(gc) at There is no litigation pending or, to the Closingbest of the Issuer's knowledge, upon threatened against the Issuer questioning the Issuer's execution, sale, issuance, delivery or payment of the purchase priceBonds, or the Issuer's execution, delivery or performance of its obligations under this Agreement, the Shares shall be duly issued and outstanding as fully paid and non-assessableRemarketing Agreement or the Indenture, or the organization, powers or authority of the Issuer, or the right of the officers of the Issuer to hold their respective offices.
(d) Simultaneously herewith, the Warrants shall Issuer's rights, title and interests in and under this Agreement will be duly granted assigned and enforceable against conveyed to the CompanyTrustee (with certain reservations and exceptions described in Article X), upon exercise of the Warrants and without recourse, as security for payment of the exercise price therefore, the Warrant Shares shall be duly issued principal and outstanding as fully paid Purchase Price of 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 Memorandumpremium, if any, and interest on the Bonds.
(e) The Issuer hereby lends or will lend to the "Disclosure Record"), Corporation in accordance with the Company is terms of this Agreement the beneficial owner principal sum of $26,500,000 derived from the proceeds 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 sale of the jurisdictions in which they are situatedBonds, all for the purpose of financing all or a portion of the costs of the Project and of issuing the Bonds.
Appears in 1 contract
Samples: Loan Agreement (Atg Inc)
Representations and Warranties of the Issuer. 6.1 The Issuer represents and warrants to the Placing Agent that:
(a1) the Issuer is a corporation duly incorporated and is validly subsisting existing under the laws of British Columbia and Bermuda;
(2) the entire existing issued share capital of the Issuer is listed on the Main Board of the Stock Exchange;
(3) the Issuer has the corporate full power and authority to enter into this Agreement and complete issue the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedNotes;
(b4) with respect to all announcements, circulars, interim and annual reports issued by the Issuer to the Stock Exchange and/or the shareholders of the Issuer since the publication of the announcement of the Issuer relating to the results of the Issuer for the year ended 31 December 2015 (“Previous Announcements”), all statements of fact contained therein were true, accurate and not misleading in any material respect and all expressions of opinion or intention contained therein were made on reasonable grounds after due and careful enquiries and were truly and honestly held by the directors of the Issuer and were fairly based and there were no other facts known to the directors of the Issuer the omission of which would make any such statement or expression in any of the Previous Announcements misleading in any material respect;
(5) the Issuer shall do all acts not, and things necessary to reserve or set aside sufficient shares in the treasury shall procure that no member of the Issuer Group shall at any time prior to enable it or on each relevant Closing Date(s), do or omit to issue do anything which may cause any of the representations, warranties and undertakings set out in this Clause 6 to the Purchaser the Shares and the Warrant Sharesbe untrue in any material respect;
(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;
(e6) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not has complied with all Applicable Laws 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 performing this Agreement and when dealing with the transactions herein contemplated:
(i) have or will have been prior to Placing Agent and 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-assessablePlacee(s); and
(h7) except the foregoing representations, warranties and undertakings shall be deemed to be repeated on each relevant Closing Date as qualified by if given or made on such date, with reference in each case to the disclosure facts and circumstances then subsisting and shall remain in all prospectuses, filing statements full force and press releases filed with effect.
6.2 The Issuer undertakes to notify the Commissions Placing Agent of any matter or event coming to its attention prior to the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner relevant Closing Date(s) which shows any of the propertiesrepresentations, business warranties and assets undertaking to be or the interests to have been untrue, inaccurate or misleading 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 situatedany material respect.
Appears in 1 contract
Samples: Placing 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
Samples: Note Purchase Agreement (Universal Insurance Holdings, Inc.)
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. (a) Each representation and warranty of the Issuer set forth in the Base Indenture and the Series 2021-A Supplement is a corporation duly incorporated true and validly subsisting under correct as of the laws date of British Columbia this Amendment in all material respects (except for representations and has warranties which are limited as to materiality by their terms, which representations and warranties shall be true and correct as of the corporate power date of this Amendment) as though such representation or warranty were being made on and authority to enter into this Agreement as of the date hereof and complete the transactions contemplated is hereby and to own and lease its properties and assets and to conduct its business deemed repeated as currently conducted;though fully set forth herein.
(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 by the Issuer of this Agreement and the transactions herein contemplated:
Amendment (i) have or will have been prior to the Closing duly and validly authorized by all necessary corporate action and statutory trust proceedings of the Issuer and by all necessary action of the shareholders thereof;
Issuer, (ii) requires no action by or in respect of, or filing with, or any consent or approval of, any governmental body, agency or official, which has not been obtained and (iii) do not contravene, conflict with or cause violate or result in a breach of (x) any of the provisions of, or constitutes a default under, any indenture, contract, agreement, mortgage, deed of trust or other instrument to which the Issuer to be in breach is a party or default of its memorandum or articles, or articles or by-laws, as by which the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements Issuer or any of its other agreements property is bound, which conflict, violation or undertakings default could reasonably be expected to have a Material Adverse Effect or (y) any judgement, decree or order to or Requirement of Law.
(c) This Amendment has been executed and delivered by which it a duly authorized officer of the Issuer.
(d) Each of this Amendment and the Series 2021-A Supplement as amended hereby is a party to or is bound;
(g) at the Closinglegal, upon payment valid and binding obligation 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 Issuer enforceable against the CompanyIssuer in accordance with its terms (except as such enforceability may be limited by bankruptcy, upon exercise insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by confidential general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing).
(e) Upon giving effect to this Amendment, there is no Amortization Event, Liquidation Event of Default or Limited Liquidation Event of Default that is continuing as 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 situateddate hereof.
Appears in 1 contract
Samples: Second Amended and Restated Series 2021 a Supplement (Hertz Global Holdings, 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 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
Samples: Receivables Purchase Agreement (Trendwest Resorts Inc)
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
Samples: Exchange Agreement (Worldspan L P)
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. 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. (a) Each representation and warranty of the Issuer set forth in the Base Indenture and the Series 2022-4 Supplement is a corporation duly incorporated true and validly subsisting under correct as of the laws date of British Columbia this Amendment in all material respects (except for representations and has warranties which are limited as to materiality by their terms, which representations and warranties shall be true and correct as of the corporate power date of this Amendment) as though such representation or warranty were being made on and authority to enter into this Agreement as of the date hereof and complete the transactions contemplated is hereby and to own and lease its properties and assets and to conduct its business deemed repeated as currently conducted;though fully set forth herein.
(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 by the Issuer of this Agreement and the transactions herein contemplated:
Amendment (i) have or will have been prior to the Closing duly and validly authorized by all necessary corporate action and statutory trust proceedings of the Issuer and by all necessary action of the shareholders thereof;
Issuer, (ii) requires no action by or in respect of, or filing with, or any consent or approval of, any governmental body, agency or official, which has not been obtained and (iii) do not contravene, conflict with or cause violate or result in a breach of (x) any of the provisions of, or constitutes a default under, any indenture, contract, agreement, mortgage, deed of trust or other instrument to which the Issuer to be in breach is a party or default of its memorandum or articles, or articles or by-laws, as by which the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements Issuer or any of its other agreements property is bound, which conflict, violation or undertakings default could reasonably be expected to have a Material Adverse Effect or (y) any judgement, decree or order to or Requirement of Law.
(c) This Amendment has been executed and delivered by which it a duly authorized officer of the Issuer.
(d) Each of this Amendment and the Series 2022-4 Supplement as amended hereby is a party to or is bound;
(g) at the Closinglegal, upon payment valid and binding obligation 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 Issuer enforceable against the CompanyIssuer in accordance with its terms (except as such enforceability may be limited by bankruptcy, upon exercise insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by confidential general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing).
(e) Upon giving effect to this Amendment, there is no Amortization Event, Liquidation Event of Default or Limited Liquidation Event of Default that is continuing as 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 situateddate hereof.
Appears in 1 contract
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. Section 2.1. To induce the Noteholders to execute and deliver this Third Amendment (which representations shall survive the execution and delivery of this Third Amendment), the Issuer and the Parent represent and warrant to the Noteholders that:
(a) this Third Amendment has been duly authorized, executed and delivered by it and this Third Amendment constitutes the legal, valid and binding obligation, contract and agreement of the Issuer is a corporation duly incorporated and validly subsisting under the enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of British Columbia and has the corporate power and authority or equitable principles relating 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 conductedor limiting creditors’ rights generally;
(b) the Issuer shall do all acts Note Purchase Agreement, as amended by this Third Amendment, constitute the legal, valid and things necessary to reserve or set aside sufficient shares in the treasury binding obligations, contracts and agreements of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant SharesParent enforceable against each in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(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 and the Parent of this Agreement and the transactions herein contemplated:
Third Amendment (i) have or will have has been prior to the Closing duly authorized by all necessary requisite corporate action of the Issuer and by all necessary action of the shareholders thereof;
and, if required, shareholder action, (ii) do does not contravenerequire the consent or approval of any governmental or regulatory body or agency and (iii) will not (A) violate (1) any provision of law, conflict with statute, rule or cause regulation or the Issuer’s or Parent’s certificate of limited partnership, articles of organization, by‑laws or limited partnership agreement, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon the Issuer to be in breach or default of its memorandum the Parent or articles, or articles or by-laws, as the case may be, or (3) any provision of any resolution of its respective directors material indenture, agreement or shareholders, any trust deeds, debenture, loan agreements other instrument to which the Issuer or any of its other agreements or undertakings or any judgement, decree or order to the Parent is a party or by which it is a party to its properties or is assets are or may be bound;
(g) at the Closing, upon payment including, without limitation, any one of the purchase pricePrimary Credit Facilities, the Shares shall be duly issued and outstanding as fully paid and non-assessableor (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, the Warrants shall be duly granted and enforceable against the Company, upon exercise agreement or other instrument referred to in clause (iii)(A)(3) of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessablethis Section 2.1(c); and
(hd) 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 propertiesdate hereof and after giving effect to this Third Amendment, business and assets no Default 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 Event of the jurisdictions in Default has occurred which they are situatedis continuing.
Appears in 1 contract
Representations and Warranties of the Issuer. Section 2.1. To induce the Noteholders to execute and deliver this Second Amendment (which representations shall survive the execution and delivery of this Second Amendment), the Issuer and the Parent represent and warrant to the Noteholders that:
(a) this Second Amendment has been duly authorized, executed and delivered by it and this Second Amendment constitutes the legal, valid and binding obligation, contract and agreement of the Issuer is a corporation duly incorporated and validly subsisting under the enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of British Columbia and has the corporate power and authority or equitable principles relating 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 conductedor limiting creditors’ rights generally;
(b) the Issuer shall do all acts Note Purchase Agreement, as amended by this Second Amendment, constitute the legal, valid and things necessary to reserve or set aside sufficient shares in the treasury binding obligations, contracts and agreements of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant SharesParent enforceable against each in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(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 and the Parent of this Agreement and the transactions herein contemplated:
Second Amendment (i) have or will have has been prior to the Closing duly authorized by all necessary requisite corporate action of the Issuer and by all necessary action of the shareholders thereof;
and, if required, shareholder action, (ii) do does not contravenerequire the consent or approval of any governmental or regulatory body or agency and (iii) will not (A) violate (1) any provision of law, conflict with statute, rule or cause regulation or the Issuer’s or Parent’s certificate of limited partnership, articles of organization, by‑laws or limited partnership agreement, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon the Issuer to be in breach or default of its memorandum the Parent or articles, or articles or by-laws, as the case may be, or (3) any provision of any resolution of its respective directors material indenture, agreement or shareholders, any trust deeds, debenture, loan agreements other instrument to which the Issuer or any of its other agreements or undertakings or any judgement, decree or order to the Parent is a party or by which it is a party to its properties or is assets are or may be bound;
(g) at the Closing, upon payment including, without limitation, any one of the purchase pricePrimary Credit Facilities, the Shares shall be duly issued and outstanding as fully paid and non-assessableor (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, the Warrants shall be duly granted and enforceable against the Company, upon exercise agreement or other instrument referred to in clause (iii)(A)(3) of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessablethis Section 2.1(c); and
(hd) 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 propertiesdate hereof and after giving effect to this Second Amendment, business and assets no Default 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 Event of the jurisdictions in Default has occurred which they are situatedis continuing.
Appears in 1 contract
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. 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 Xxxxxxx Xxxxxxx, 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
Samples: Securities Purchase Agreement (Willowtree Advisor, 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 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
Samples: Receivables Purchase Agreement (Trendwest Resorts Inc)
Representations and Warranties of the Issuer. 6.1 The Issuer represents and warrants to the Placing Agent that:
(a1) the Issuer is a corporation duly incorporated and is validly subsisting existing under the laws of British Columbia and Bermuda;
(2) the entire existing issued share capital of the Issuer is listed on the Main Board of the Stock Exchange;
(3) the Issuer has the corporate full power and authority to enter into this Agreement and complete issue the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedNotes;
(b4) with respect to all announcements, circulars, interim and annual reports issued by the Issuer to the Stock Exchange and/or the shareholders of the Issuer since the publication of the announcement of the Issuer relating to the results of the Issuer for the six months ended 30 June 2016 (“Previous Announcements”), all statements of fact contained therein were true, accurate and not misleading in any material respect and all expressions of opinion or intention contained therein were made on reasonable grounds after due and careful enquiries and were truly and honestly held by the directors of the Issuer and were fairly based and there were no other facts known to the directors of the Issuer the omission of which would make any such statement or expression in any of the Previous Announcements misleading in any material respect;
(5) the Issuer shall do all acts not, and things necessary to reserve or set aside sufficient shares in the treasury shall procure that no member of the Issuer Group shall at any time prior to enable it or on each relevant Closing Date(s), do or omit to issue do anything which may cause any of the representations, warranties and undertakings set out in this Clause 6 to the Purchaser the Shares and the Warrant Sharesbe untrue in any material respect;
(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;
(e6) the Issuer is a reporting issuer and an exchange issuer under the SECURITIES ACT (B.C.) and is not has complied with all Applicable Laws 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 performing this Agreement and when dealing with the transactions herein contemplated:
(i) have or will have been prior to Placing Agent and 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-assessablePlacee(s); and
(h7) except the foregoing representations, warranties and undertakings shall be deemed to be repeated on each relevant Closing Date as qualified by if given or made on such date, with reference in each case to the disclosure facts and circumstances then subsisting and shall remain in all prospectuses, filing statements full force and press releases filed with effect.
6.2 The Issuer undertakes to notify the Commissions Placing Agent of any matter or event coming to its attention prior to the Exchange or the Offering Memorandum, if any, (the "Disclosure Record"), the Company is the beneficial owner relevant Closing Date(s) which shows any of the propertiesrepresentations, business warranties and assets undertaking to be or the interests to have been untrue, inaccurate or misleading 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 situatedany material respect.
Appears in 1 contract
Samples: Placing Agreement
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
Samples: Representative Agreement
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. 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
Samples: Purchase and Sale Agreement (Trendwest Resorts Inc)
Representations and Warranties of the Issuer. (a) Each representation and warranty of the Issuer set forth in the Base Indenture and the Series 2021-1 Supplement is a corporation duly incorporated true and validly subsisting under correct as of the laws date of British Columbia this Amendment in all material respects (except for representations and has warranties which are limited as to materiality by their terms, which representations and warranties shall be true and correct as of the corporate power date of this Amendment) as though such representation or warranty were being made on and authority to enter into this Agreement as of the date hereof and complete the transactions contemplated is hereby and to own and lease its properties and assets and to conduct its business deemed repeated as currently conducted;though fully set forth herein.
(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 by the Issuer of this Agreement and the transactions herein contemplated:
Amendment (i) have or will have been prior to the Closing duly and validly authorized by all necessary corporate action and statutory trust proceedings of the Issuer and by all necessary action of the shareholders thereof;
Issuer, (ii) requires no action by or in respect of, or filing with, or any consent or approval of, any governmental body, agency or official, which has not been obtained and (iii) do not contravene, conflict with or cause violate or result in a breach of (x) any of the provisions of, or constitutes a default under, any indenture, contract, agreement, mortgage, deed of trust or other instrument to which the Issuer to be in breach is a party or default of its memorandum or articles, or articles or by-laws, as by which the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements Issuer or any of its other agreements property is bound, which conflict, violation or undertakings default could reasonably be expected to have a Material Adverse Effect or (y) any judgement, decree or order to or Requirement of Law.
(c) This Amendment has been executed and delivered by which it a duly authorized officer of the Issuer.
(d) Each of this Amendment and the Series 2021-1 Supplement as amended hereby is a party to or is bound;
(g) at the Closinglegal, upon payment valid and binding obligation 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 Issuer enforceable against the CompanyIssuer in accordance with its terms (except as such enforceability may be limited by bankruptcy, upon exercise insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by confidential general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing).
(e) Upon giving effect to this Amendment, there is no Amortization Event, Liquidation Event of Default or Limited Liquidation Event of Default that is continuing as 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 situateddate hereof.
Appears in 1 contract
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. (a) Each representation and warranty of the Issuer set forth in the Base Indenture and the Series 2021-2 Supplement is a corporation duly incorporated true and validly subsisting under correct as of the laws date of British Columbia this Amendment in all material respects (except for representations and has warranties which are limited as to materiality by their terms, which representations and warranties shall be true and correct as of the corporate power date of this Amendment) as though such representation or warranty were being made on and authority to enter into this Agreement as of the date hereof and complete the transactions contemplated is hereby and to own and lease its properties and assets and to conduct its business deemed repeated as currently conducted;though fully set forth herein.
(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 by the Issuer of this Agreement and the transactions herein contemplated:
Amendment (i) have or will have been prior to the Closing duly and validly authorized by all necessary corporate action and statutory trust proceedings of the Issuer and by all necessary action of the shareholders thereof;
Issuer, (ii) requires no action by or in respect of, or filing with, or any consent or approval of, any governmental body, agency or official, which has not been obtained and (iii) do not contravene, conflict with or cause violate or result in a breach of (x) any of the provisions of, or constitutes a default under, any indenture, contract, agreement, mortgage, deed of trust or other instrument to which the Issuer to be in breach is a party or default of its memorandum or articles, or articles or by-laws, as by which the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements Issuer or any of its other agreements property is bound, which conflict, violation or undertakings default could reasonably be expected to have a Material Adverse Effect or (y) any judgement, decree or order to or Requirement of Law.
(c) This Amendment has been executed and delivered by which it a duly authorized officer of the Issuer.
(d) Each of this Amendment and the Series 2021-2 Supplement as amended hereby is a party to or is bound;
(g) at the Closinglegal, upon payment valid and binding obligation 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 Issuer enforceable against the CompanyIssuer in accordance with its terms (except as such enforceability may be limited by bankruptcy, upon exercise insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by confidential general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing).
(e) Upon giving effect to this Amendment, there is no Amortization Event, Liquidation Event of Default or Limited Liquidation Event of Default that is continuing as 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 situateddate hereof.
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
Samples: Warrant Subscription Agreement
Representations and Warranties of the Issuer. Section 2.1. To induce the Noteholders to execute and deliver this First Amendment (which representations shall survive the execution and delivery of this First Amendment), the Issuer and the Parent represent and warrant to the Noteholders that:
(a) this First Amendment has been duly authorized, executed and delivered by it and this First Amendment constitutes the legal, valid and binding obligation, contract and agreement of the Issuer is a corporation duly incorporated and validly subsisting under the enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of British Columbia and has the corporate power and authority or equitable principles relating 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 conductedor limiting creditors’ rights generally;
(b) the Issuer shall do all acts Note Purchase Agreement, as amended by this First Amendment, constitute the legal, valid and things necessary to reserve or set aside sufficient shares in the treasury binding obligations, contracts and agreements of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant SharesParent enforceable against each in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(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 and the Parent of this Agreement and the transactions herein contemplated:
First Amendment (i) have or will have has been prior to the Closing duly authorized by all necessary requisite corporate action of the Issuer and by all necessary action of the shareholders thereof;
and, if required, shareholder action, (ii) do does not contravenerequire the consent or approval of any governmental or regulatory body or agency and (iii) will not (A) violate (1) any provision of law, conflict with statute, rule or cause regulation or the Issuer’s or Parent’s certificate of limited partnership, articles of organization, by-laws or limited partnership agreement, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon the Issuer to be in breach or default of its memorandum the Parent or articles, or articles or by-laws, as the case may be, or (3) any provision of any resolution of its respective directors material indenture, agreement or shareholders, any trust deeds, debenture, loan agreements other instrument to which the Issuer or any of its other agreements or undertakings or any judgement, decree or order to the Parent is a party or by which it is a party to its properties or is assets are or may be bound;
(g) at the Closing, upon payment including, without limitation, any one of the purchase pricePrimary Credit Facilities, the Shares shall be duly issued and outstanding as fully paid and non-assessableor (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, the Warrants shall be duly granted and enforceable against the Company, upon exercise agreement or other instrument referred to in clause (iii)(A)(3) of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessablethis Section 2.1(c); and
(hd) 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 propertiesdate hereof and after giving effect to this First Amendment, business and assets no Default 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 Event of the jurisdictions in Default has occurred which they are situatedis continuing.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents -------------------------------------------- and warrants to, and agrees with, each Purchaser that except as set forth on the Schedule of Exceptions annexed hereto:
(a) the The Issuer is a corporation has been duly incorporated and is validly subsisting existing as a corporation in good standing under the laws of British Columbia the State of Delaware.
(b) This Agreement has been duly authorized, executed and delivered by the Issuer and is a valid and binding agreement 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 generally or to general principles of equity; and the Issuer has the full corporate power and authority necessary to enter into this Agreement and complete the transactions contemplated hereby and to own and lease perform 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;obligations hereunder.
(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 of its affiliates is required for execution of this Agreement, including, without limitation, the issuance and sale of the Company are duly listed and posted for trading on Shares or the Exchange;performance of its obligations hereunder.
(d) no order ceasing Neither the sale of the Shares pursuant to, nor the performance of its obligations under, this Agreement by the Issuer will:
(i) violate, conflict with, result in a breach of, or suspending trading in securities constitute a default (or an event which with the giving of notice or the lapse of time or both would be reasonably likely to constitute a default) under (A) the certificate of incorporation, charter or by-laws of the Issuer nor prohibiting the sale or any of such securities has been issued its affiliates, (B) any decree, judgment, order, law, treaty, rule, regulation or determination applicable to the Issuer or any of its directorsaffiliates of any court, officers governmental agency or promoters body, or against arbitrator having jurisdiction over the Issuer or any of its affiliates or over the properties or assets of the Issuer or any of its affiliates, (C) the terms of any bond, debenture, note or other companies that have common directorsevidence of indebtedness, officers or promoters and no investigations any agreement, stock option or proceedings for such purposes are pending other similar plan, indenture, lease, mortgage, deed of trust or threatened of other instrument to which the Issuer or any of its affiliates is a party, by which the Issuer or ought any of its affiliates is bound, or to be aware;which any of the properties of the Issuer or any of its affiliates is subject, or (D) the terms of any "lock-up" or similar provision of any underwriting or similar agreement to which the Issuer or any of its affiliates is a party; or
(ii) result in the creation or imposition of any lien, charge or encumbrance upon the Shares or any of the assets of the Issuer or any of its affiliates.
(e) the Issuer is a reporting issuer The Shares (i) are, or will be upon issuance, free and an exchange issuer under the SECURITIES ACT (B.C.) and is not in material default clear of any security interests, liens, claims or other encumbrances; (ii) have been duly and validly authorized and will be duly and validly issued, fully paid and nonassessable; (iii) will not have been individually and collectively, issued or sold in violation of any preemptive or other similar rights of the requirements holders of any securities of the SECURITIES ACT Issuer; and (B.C.iv) or will not subject the Rules thereunder, or holders thereof to personal liability by reason of any rule or requirement of the Exchange;being such holders.
(f) There is no pending or, to the executionbest knowledge of the Issuer, delivery and threatened action, suit, proceeding or investigation before any court, governmental agency or body, or arbitrator having jurisdiction over the Issuer or any of its affiliates that would materially affect the results of operations of the Issuer or the execution by the Issuer of, or the performance by the Issuer of its obligations under, this Agreement.
(g) The Issuer, and, to the best knowledge of the Issuer, any other person selling or offering to sell the Shares in connection with the transaction contemplated by this Agreement, have not made, at any time, any oral communication in connection with the offer or sale of the Shares which contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading, taking all of such statements, the Issuer's Filings and this Agreement and as a whole.
(h) The Issuer is not in possession of any material non-public information that, if publicly disclosed, would, or could reasonably be expected to have, an effect on the transactions herein contemplated:price of the Shares.
(i) have or will have Assuming the accuracy of Purchaser's representations and warranties set forth herein, the sale of the Shares pursuant to this Agreement has been prior made in accordance with the provisions and requirements of Regulation D under the Securities Act ("Regulation D") and any applicable state law.
(j) None of the Issuer, any affiliate of the Issuer, or, to the Closing duly authorized by all necessary corporate action knowledge of the Issuer, any person acting on behalf of the Issuer and by all necessary action of or any such affiliate has engaged, or will engage, in any general solicitation or general advertising with respect to the shareholders thereof;Shares.
(iik) do not contravene, conflict with or cause The Issuer has timely made all filings required under the Issuer Securities Exchange Act during the twelve month period preceding the date hereof and is eligible to be in breach or default of its memorandum or articles, or articles or by-laws, as use Form S-3 to register 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 Initial 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 Conversion Shares under the applicable laws of the jurisdictions in which they are situatedSecurities Act.
Appears in 1 contract
Samples: Securities Subscription Agreement (Oxis International Inc)
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
Samples: Agreement for the Issuance of and Subscription to Warrants (Biophytis SA)
Representations and Warranties of the Issuer. (a) Each representation and warranty of the Issuer set forth in the Base Indenture and the Series 2022-2 Supplement is a corporation duly incorporated true and validly subsisting under correct as of the laws date of British Columbia this Amendment in all material respects (except for representations and has warranties which are limited as to materiality by their terms, which representations and warranties shall be true and correct as of the corporate power date of this Amendment) as though such representation or warranty were being made on and authority to enter into this Agreement as of the date hereof and complete the transactions contemplated is hereby and to own and lease its properties and assets and to conduct its business deemed repeated as currently conducted;though fully set forth herein.
(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 by the Issuer of this Agreement and the transactions herein contemplated:
Amendment (i) have or will have been prior to the Closing duly and validly authorized by all necessary corporate action and statutory trust proceedings of the Issuer and by all necessary action of the shareholders thereof;
Issuer, (ii) requires no action by or in respect of, or filing with, or any consent or approval of, any governmental body, agency or official, which has not been obtained and (iii) do not contravene, conflict with or cause violate or result in a breach of (x) any of the provisions of, or constitutes a default under, any indenture, contract, agreement, mortgage, deed of trust or other instrument to which the Issuer to be in breach is a party or default of its memorandum or articles, or articles or by-laws, as by which the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements Issuer or any of its other agreements property is bound, which conflict, violation or undertakings default could reasonably be expected to have a Material Adverse Effect or (y) any judgement, decree or order to or Requirement of Law.
(c) This Amendment has been executed and delivered by which it a duly authorized officer of the Issuer.
(d) Each of this Amendment and the Series 2022-2 Supplement as amended hereby is a party to or is bound;
(g) at the Closinglegal, upon payment valid and binding obligation 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 Issuer enforceable against the CompanyIssuer in accordance with its terms (except as such enforceability may be limited by bankruptcy, upon exercise insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by confidential general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing).
(e) Upon giving effect to this Amendment, there is no Amortization Event, Liquidation Event of Default or Limited Liquidation Event of Default that is continuing as 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 situateddate hereof.
Appears in 1 contract
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. 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. (a) Each representation and warranty of the Issuer set forth in the Base Indenture and the Series 2022-5 Supplement is a corporation duly incorporated true and validly subsisting under correct as of the laws date of British Columbia this Amendment in all material respects (except for representations and has warranties which are limited as to materiality by their terms, which representations and warranties shall be true and correct as of the corporate power date of this Amendment) as though such representation or warranty were being made on and authority to enter into this Agreement as of the date hereof and complete the transactions contemplated is hereby and to own and lease its properties and assets and to conduct its business deemed repeated as currently conducted;though fully set forth herein.
(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 by the Issuer of this Agreement and the transactions herein contemplated:
Amendment (i) have or will have been prior to the Closing duly and validly authorized by all necessary corporate action and statutory trust proceedings of the Issuer and by all necessary action of the shareholders thereof;
Issuer, (ii) requires no action by or in respect of, or filing with, or any consent or approval of, any governmental body, agency or official, which has not been obtained and (iii) do not contravene, conflict with or cause violate or result in a breach of (x) any of the provisions of, or constitutes a default under, any indenture, contract, agreement, mortgage, deed of trust or other instrument to which the Issuer to be in breach is a party or default of its memorandum or articles, or articles or by-laws, as by which the case may be, or of any resolution of its respective directors or shareholders, any trust deeds, debenture, loan agreements Issuer or any of its other agreements property is bound, which conflict, violation or undertakings default could reasonably be expected to have a Material Adverse Effect or (y) any judgement, decree or order to or Requirement of Law.
(c) This Amendment has been executed and delivered by which it a duly authorized officer of the Issuer.
(d) Each of this Amendment and the Series 2022-5 Supplement as amended hereby is a party to or is bound;
(g) at the Closinglegal, upon payment valid and binding obligation 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 Issuer enforceable against the CompanyIssuer in accordance with its terms (except as such enforceability may be limited by bankruptcy, upon exercise insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by confidential general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing).
(e) Upon giving effect to this Amendment, there is no Amortization Event, Liquidation Event of Default or Limited Liquidation Event of Default that is continuing as 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 situateddate hereof.
Appears in 1 contract
Representations and Warranties of the Issuer. The Issuer represents (aas of the Effective Date and as of each date on which a Loan is made by a Class A Noteholder pursuant to the Supplement, unless otherwise indicated) and warrants to, and agrees with, the Purchaser that:
(i) The Issuer is a corporation duly incorporated organized, validly existing and validly subsisting in good standing under the laws of British Columbia the State of Delaware, with its chief executive office located at 0000 Xxxxxxxxx Xxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx 00000, and has the corporate power to own its assets and authority to enter into engage in the activities in which it is presently engaged and is duly qualified and in good standing under the laws of each jurisdiction where its ownership of property or the conduct of its activities requires such qualification, if the failure to so qualify would have a material adverse effect on the financial condition of the Issuer or on the enforceability of the Class A Note or the ability of the Issuer to perform its obligations under this Agreement and complete the other Related Documents to which it is a party. One hundred percent of the beneficial ownership of the Issuer is owned by Xxxxxx Lease Finance Corporation ("WLFC"). The Issuer has no subsidiaries;
(ii) The Issuer has the power, authority and legal right to execute, deliver and perform its obligations under this Agreement and the other Related Documents to which it is a party (collectively, the "Issuer Documents"); the execution, delivery, and performance of the Issuer Documents by the Issuer have been duly authorized by the Issuer by all necessary action, the Issuer Documents, other than the Class A Note, have been duly executed and delivered by the Issuer, and the Class A Note, when issued in accordance with the terms hereof and of the Indenture and the Supplement, will have been duly executed and delivered;
(iii) Each of the Issuer Documents (other than the Class A Note), assuming due authorization, execution and delivery by the other parties thereto, constitutes, and the Class A Note, when issued and authenticated in accordance with the terms of the Indenture and the Supplement, will constitute, a legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except that such enforcement may be limited by (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws (whether statutory, regulatory or decisional) now or hereafter in effect relating to creditors' rights generally and (B) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iv) The consummation of the transactions contemplated by the Issuer Documents and the fulfillment of the terms therein will not conflict with or result in any breach of any of the terms and 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 indenture, agreement, mortgage, deed of trust, commitment letter or funding arrangement with any lending institution or investment bank or other instrument to which the Issuer is a party or by which it is bound, or result in the creation or imposition of any lien, claim or encumbrance upon any of its properties pursuant to the terms of such indenture, agreement, mortgage, deed of trust, commitment letter or funding arrangement with any lending institution or investment bank or other such instrument, other than as created pursuant to the Indenture and the Supplement, or violate any law or, any order, rule or regulation applicable to the Issuer of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Issuer or any of its properties and there are no legal or governmental proceedings pending or, to the best knowledge of the Issuer, threatened or contemplated that would result in a material modification or revocation thereof;
(v) There are no litigation, proceedings or investigations to which the Issuer, or any Affiliate of the Issuer, is a party pending, or, to the knowledge of Issuer, threatened, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (A) asserting the invalidity of the Class A Note or the other Issuer Documents, (B) seeking to prevent the issuance of the Class A Note or the consummation of any of the transactions contemplated by the other Issuer Documents, or (C) seeking any determination or ruling that would materially and adversely affect the performance by the Issuer of its obligations under, or the validity or enforceability of, the Class A Note or the other Issuer Documents;
(vi) All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official, required in connection with the execution and delivery of the Issuer Documents by the Issuer and with the valid and proper authorization, issuance and sale of the Class A Note pursuant to this Agreement, have been or will be taken or obtained on or prior to the Effective Date;
(vii) No written materials delivered to the Purchaser by or on behalf of the Issuer in connection with the sale of the Class A Note contain any untrue statement of a material fact or omit a material fact necessary to make the statements contained therein or herein not misleading. There is no fact peculiar to the Issuer or any Affiliate of the Issuer or, to the knowledge of the Issuer, any Lease Agreement, Lessee or Engine which the Issuer has not disclosed to the Deal Agent in writing which materially adversely affects or, so far as the Issuer can now reasonably foresee, will materially adversely affect the ability of the Issuer to perform the transactions contemplated hereby and to own and lease its properties and assets and to conduct its business as currently conductedby the other Related Documents;
(bviii) The List of Engines to be created as of the Closing Date and each supplement thereto will be available to the Deal Agent by the Issuer shall do and will be complete as of the date thereof and will include an accurate (in all acts material respects) description of the Engines;
(ix) The representations and things necessary to reserve or set aside sufficient shares warranties made by the Issuer in the treasury Issuer Documents are true and correct in all material respects and the Purchaser shall be entitled to rely on such representations and warranties;
(x) Any taxes, fees and other governmental charges payable by the Issuer in connection with the execution and delivery of the Issuer to enable it to issue Documents, the pledge of the Collateral to the Purchaser the Shares Indenture Trustee, 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 sale of the Class A Note, have been paid;
(xi) To the extent the Securities Exchange Act of 1934, as amended (the "Exchange Act"), may be deemed to apply to the Class A Note and the Loans, none of the transactions contemplated in the Issuer Documents (including, without limitation thereof, the use of the proceeds from the sale of the Class A Note) will violate or result in a violation of Section 7 of the Exchange Act, or any regulations issued pursuant thereto;
(xii) Concurrently with the execution and delivery of this Agreement Agreement, the Issuer is executing no other note purchase agreement with respect to the Class A Note;
(xiii) The Issuer is not an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(xiv) For so long as the Series 1997-1 Class A Notes are the only Notes outstanding under the Indenture, each of the Indenture and the transactions herein contemplated:Supplement need not be qualified as an "indenture" pursuant to the terms of the Trust Indenture Act of 1939, as amended;
(xv) The Issuer has not taken and will not take, directly or indirectly, any action prohibited by Rules 101 and 102 under Regulation M of the Securities and Exchange Commission in connection with the offering of the Class A Note;
(xvi) To the extent that the Securities Act may be deemed to apply to the Class A Note and the Loans, neither the Issuer nor any affiliate (as defined in Rule 501(b) of Regulation D under the Securities Act ("Regulation D")) of the Issuer has directly, or through any agent, including, without limitation, FUNB, (i) have 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 have been prior be integrated with the sale of the Class A Note in a manner that would render the issuance and sale of the Class A Note a violation of the Securities Act or require the registration of the Class A Note under the Securities Act or (ii) engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offering of the Class A Note.
(xvii) To the extent that the Securities Act may be deemed to apply to the Closing duly authorized by all Class A Note and the Loans, it is not necessary corporate action in connection with the offer, sale and delivery of the Issuer and Class A Note in the manner contemplated by all necessary action of this Agreement to register the shareholders thereofClass A Note under the Securities Act assuming that the Purchaser is an "accredited investor" as defined in Regulation D under the Securities Act;
(iixviii) do not contravene, conflict with or cause the Issuer to be in breach or default of its memorandum or articlesNo event has occurred and is continuing that constitutes, or articles with the passage of time or the giving of notice or both would constitute, an Early Amortization Event under, and as defined in, the Indenture. The Issuer is not in violation of any agreement, charter instrument, by-laws, as the case may be, law 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 instrument to which they are a party or by which it is a party to they are or is may be bound;
(gxix) at the Closing, upon payment The aggregate amount 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 Scheduled Payments payable by the disclosure in all prospectuses, filing statements and press releases filed with Lessees under the Commissions or Lease Agreements during each Collection Period is sufficient to pay 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 Recordmonthly Servicing Fee, and the properties are principal and interest on the Class A Note, as such payments become due and payable, in good standing under accordance with the applicable laws Indenture and the Supplement;
(xx) The Issuer agrees that it will not directly or indirectly, sell or offer to sell the Class A Note or similar security in a manner that would render the issuance and sale of the jurisdictions in which they are situatedClass A Note pursuant to this Agreement a violation of Section 5 of the Securities Act.
Appears in 1 contract
Samples: Note Purchase Agreement (Willis Lease Finance Corp)
Representations and Warranties of the Issuer. Section 2.1. To induce the Noteholders to execute and deliver this Second Amendment (which representations shall survive the execution and delivery of this Second Amendment), the Issuer and the Parent represent and warrant to the Noteholders that:
(a) this Second Amendment has been duly authorized, executed and delivered by it and this Second Amendment constitutes the legal, valid and binding obligation, contract and agreement of the Issuer is a corporation duly incorporated and validly subsisting under the enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of British Columbia and has the corporate power and authority or equitable principles relating 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 conductedor limiting creditors’ rights generally;
(b) the Issuer shall do all acts Note Purchase Agreement, as amended by this Second Amendment, constitute the legal, valid and things necessary to reserve or set aside sufficient shares in the treasury binding obligations, contracts and agreements of the Issuer to enable it to issue to the Purchaser the Shares and the Warrant SharesParent enforceable against each in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(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 and the Parent of this Agreement and the transactions herein contemplated:
Second Amendment (i) have or will have has been prior to the Closing duly authorized by all necessary requisite corporate action of the Issuer and by all necessary action of the shareholders thereof;
and, if required, shareholder action, (ii) do does not contravenerequire the consent or approval of any governmental or regulatory body or agency and (iii) will not (A) violate (1) any provision of law, conflict with statute, rule or cause regulation or the Issuer’s or Parent’s certificate of limited partnership, articles of organization, by-laws or limited partnership agreement, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon the Issuer to be in breach or default of its memorandum the Parent or articles, or articles or by-laws, as the case may be, or (3) any provision of any resolution of its respective directors material indenture, agreement or shareholders, any trust deeds, debenture, loan agreements other instrument to which the Issuer or any of its other agreements or undertakings or any judgement, decree or order to the Parent is a party or by which it is a party to its properties or is assets are or may be bound;
(g) at the Closing, upon payment including, without limitation, any one of the purchase pricePrimary Credit Facilities, the Shares shall be duly issued and outstanding as fully paid and non-assessableor (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, the Warrants shall be duly granted and enforceable against the Company, upon exercise agreement or other instrument referred to in clause (iii)(A)(3) of the Warrants and payment of the exercise price therefore, the Warrant Shares shall be duly issued and outstanding as fully paid and non-assessablethis Section 2.1(c); and
(hd) 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 propertiesdate hereof and after giving effect to this Second Amendment, business and assets no Default 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 Event of the jurisdictions in Default has occurred which they are situatedis continuing.
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 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
Samples: Unit Offering Subscription Agreement
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 0000 Xxx) in connection with the offer or sale of the Securities;
(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
Samples: Private Placement Subscription Agreement (American Lithium Minerals, Inc.)
