Representations and Warranties of the Corporation. The Corporation represents and warrants to the Underwriters, the U.S. Affiliate and to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements), and acknowledges that each of them is relying upon such representations and warranties, that: 4.1.1 each of the Corporation and the Subsidiaries is validly subsisting under the laws of its governing jurisdiction, and has all requisite corporate power and authority to own, lease and operate its properties and assets and conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2 the Corporation has all requisite corporate power and authority to enter into this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement and carry out its obligations hereunder and thereunder and to authorize and issue the Offered Subscription Receipts and, upon exchange of the Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares in the capital of the Corporation; 4.1.3 each of the Corporation and the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 the authorized capital of the Corporation consists of an unlimited number of Common Shares and of preferred shares of which, as of the close of business on July 3, 2014, 94,792,906 Common Shares were issued and outstanding as fully paid and non-assessable shares in the capital of the Corporation; 4.1.5 except as set forth in Schedule B attached hereto, no person has any agreement, option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for the purchase, subscription or issuance of any securities of the Corporation from or by the Corporation and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material Subsidiaries; 4.1.8 except as described in Schedule E and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Subsidiaries is: (a) in breach or violation of any of the terms or provisions of, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation of the provisions of its articles, by-laws or resolutions or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation or the laws of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none of the Corporation, the Subsidiaries nor any other party to any agreement or instrument is in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in its properties, business or assets, and all agreements under which the Corporation or either of the Subsidiaries holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect; 4.1.30 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the Co

Appears in 1 contract

Sources: Underwriting Agreement (Amaya Inc.)

Representations and Warranties of the Corporation. The Corporation represents and warrants to the ~~Underwriters~~Underwriter, as at the ~~U.S. Affiliate~~ date hereof and to at the ~~Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements)~~Closing Time, and acknowledges that ~~each of them~~ the Underwriter is relying upon such representations and warranties, that: ~~4.1.1~~ (a) each of the Corporation and the Subsidiaries has been duly incorporated, continued or amalgamated and organized and is validly ~~subsisting~~ existing under the laws of the jurisdiction of its ~~governing jurisdiction~~incorporation, continuation or amalgamation and has all requisite corporate authority and power to carry on its business, as now conducted and ~~authority~~ as presently proposed to be conducted by it, and to own, lease and operate its properties and ~~assets and conduct its business as currently conducted and as currently proposed to be conducted~~assets; ~~4.1.2~~ (b) each of the Corporation and the Subsidiaries is duly registered and qualified to carry on business and is validly subsisting under the laws of each jurisdiction in which it carries on its business; (c) the Corporation has ~~all requisite corporate power~~ no subsidiaries other than TAG Oil (NZ) Limited, TAG Oil (Canterbury) Limited and ~~authority to enter into this Agreement~~Durum Energy (PNG) Limited and, other than the Subsidiaries, the ~~Subscription Agreements~~Corporation is not affiliated with, nor is it a holding corporation of, any other body corporate, nor is it a partner of any partnership nor does it own any securities of any other entity; (d) other than TAG Oil (NZ) Limited and TAG Oil (Canterbury) Limited, none of the ~~Acquisition Agreement~~ Subsidiaries conducts any active business operations; (e) the minute book of the Corporation and each of the ~~Subscription Receipt Agreement~~ Subsidiaries contains full, true and ~~carry out its obligations hereunder~~ correct copies of the articles and ~~thereunder~~ by-laws or other constating documents of the Corporation and each of the Subsidiaries and, on or before the Closing Time, will contain copies of all minutes of all meetings and all consent resolutions of the directors, committees of directors and shareholders of the Corporation and all such meetings were duly called and properly held and all such resolutions were properly adopted except to ~~authorize and issue~~ the extent that any such failure could not reasonably be expected to have a material adverse effect on the Corporation or any of the Subsidiaries; (f) the Offered ~~Subscription Receipts and, upon exchange of the Offered Subscription Receipts, the Underlying~~ Shares will be duly and validly authorized and issued as fully paid and non-assessable Common Shares in at the ~~capital~~ Closing Time; (g) at the Closing Time, the form and terms of the ~~Corporation; 4.1.3 each of~~ definitive certificates representing the Corporation and the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 the authorized capital of the Corporation consists of an unlimited number of Common Shares will have been duly approved and of preferred shares of which, as of the close of business on July 3, 2014, 94,792,906 Common Shares were issued and outstanding as fully paid and non-assessable shares in the capital of the Corporation; 4.1.5 except as set forth in Schedule B attached hereto, no person has any agreement, option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for the purchase, subscription or issuance of any securities of the Corporation from or adopted by the Corporation and ~~no rights~~comply with all legal requirements relating thereto, ~~warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding~~including the requirements of the Exchange; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material Subsidiaries; 4.1.8 except as described in Schedule E and except for (ih) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Subsidiaries ~~is: (a)~~ is in default or breach or violation of, and the execution and delivery of, and the performance and compliance with the terms of any of the ~~terms or provisions~~ Material Agreements and the Offering do not and will not: (i) result in any breach of, or in constitute a default ~~under (whether~~ under, and do not and will not create a state of facts which, after notice or lapse of time or both) , would result in a breach of or constitute a default under, any ~~indenture, mortgage, deed of trust, loan agreement~~ term or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation provision of the ~~provisions of its~~ articles, by-laws or resolutions ~~or any statute or any order, rule or regulation~~ of ~~any court or governmental agency or body having jurisdiction over it~~ the Corporation or any of ~~its properties, which violation or~~ the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions ofSubsidiaries, or ~~constitute a default under (whether after notice or lapse of time or both),~~ any indenture, mortgage, ~~deed of trust~~note, ~~loan agreement~~contract, ~~lease or other~~ agreement (written or oral) ), instrument, lease or ~~instrument~~ other document to which the Corporation or any of the Subsidiaries is a party or by which it is ~~bound~~ bound, or any judgment, decree, order, statute, rule or regulation applicable to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the ~~shareholders of~~ Subsidiaries, which default or breach might reasonably be expected to materially adversely affect the ~~Corporation required to be obtained at the Meeting~~assets, ~~no consent~~liabilities, ~~approval~~business, ~~authorization~~operations, ~~order, registration~~ capital or ~~qualification of~~ condition (financial or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents otherwise) of the Corporation or the ~~laws of Québec; 4.1.15 the Corporation has not declared~~ properties or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents assets of the Corporation together with the Subsidiaries (taken as a whole); (ii) create a right for any other party to terminate, accelerate or in any ~~Material Agreement~~way alter any other rights existing under any indenture, mortgage, note, ~~debenture~~contract, ~~indenture~~ agreement (written or oral), instrument, lease or other ~~instrument or~~ document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none of the Corporation, the Subsidiaries nor any other party to any agreement or instrument is in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party ~~and no event has occurred~~ or by which ~~with notice~~ any of them is bound which, upon exercise of such right, might reasonably be expected to materially adversely affect the assets, liabilities, business, operations, capital or ~~lapse of time~~ condition (financial or ~~both would constitute such a default on the part~~ otherwise) of the Corporation together with the Subsidiaries (taken as a whole) or the ~~Subsidiaries, in any such case which default~~ properties or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation assets of the Corporation ~~enforceable against it in accordance~~ together with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in its properties, business or assets, and all agreements under which the Corporation or either of the Subsidiaries holds an interest in (taken as a ~~property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect~~whole); 4.1.30 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the Co

Appears in 1 contract

Sources: Underwriting Agreement (Tag Oil LTD)

Representations and Warranties of the Corporation. (1) The Corporation hereby represents and warrants to the Canadian Underwriters, intending that the ~~U.S. Affiliate and to~~ same may be relied upon by the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements), and acknowledges that each of them is relying upon such representations and warranties, Canadian Underwriters that: ~~4.1.1~~ (a) each of the Corporation and the Material Subsidiaries has been duly incorporated or amalgamated and organized and is validly ~~subsisting~~ existing under the laws of its ~~governing jurisdiction~~jurisdiction of incorporation, ~~and~~ has all requisite corporate power and authority to carry out its business as now conducted and as contemplated by the Final Prospectus and the documents incorporated by reference therein, and to own, lease and operate its properties and ~~assets~~ assets, and ~~conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2~~ the Corporation has all requisite ~~corporate~~ power and authority ~~to enter into this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement and~~ carry out its obligations ~~hereunder and thereunder and to authorize and issue~~ under this agreement; (b) the ~~Offered Subscription Receipts and, upon exchange~~ only major operating subsidiaries of the ~~Offered Subscription Receipts~~company are listed in Schedule A; (c) the Corporation or one of its subsidiaries owns the issued and outstanding shares of each of the Material Subsidiaries as set out in Schedule A, in each case free and clear of any pledge, lien, security interest, charge, claim or encumbrance, other than the ~~Underlying Shares as fully paid~~ securities of Round Mountain Gold Corporation; (d) the Corporation is a reporting issuer in each of the Provinces of Canada and ~~non-assessable~~ the Corporation is not in default of any of the requirements of the securities laws of such jurisdictions; (e) the Corporation's Common Shares are posted and listed for trading on the Exchanges and the Corporation is not in default of any of the listing requirements of the Exchanges, other than has been disclosed in the ~~capital~~ Final Prospectus or the Continuous Disclosure Materials; (f) other than has been disclosed in the Final Prospectus or the Continuous Disclosure Materials, and other than options under the Corporation's Stock Option Plans, there are no options, agreements or other rights outstanding to acquire any Common Shares of the Corporation; ~~4.1.3 each of~~ (g) as at the Corporation and the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has all necessary licencesdate hereof, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 the authorized share capital of the Corporation consists of an unlimited number of Common Shares and an unlimited number of preferred ~~shares~~ shares, of ~~which, as of the close of business on July 3, 2014, 94,792,906~~ which 502,168,375 Common Shares ~~were~~ and no preferred shares are issued and ~~outstanding as fully paid~~ outstanding; (h) the Corporation and ~~non-assessable shares~~ each of its Material Subsidiaries hold all licences and permits that are required for carrying on their business in the ~~capital of~~ manner in which such business has been, and is, carried on, except where the ~~Corporation; 4.1.5 except as set forth in Schedule B attached hereto, no person has any agreement, option, right~~ failure to hold such a licence or ~~privilege~~ permit could not reasonably be expected to have a material adverse effect (whether ~~pre-emptive~~ financial or ~~contractual~~otherwise) ~~capable of becoming an agreement for~~ on the ~~purchase~~business, ~~subscription~~ affairs, operations, assets, liabilities or ~~issuance of any securities~~ financial condition of the Corporation ~~from or by~~ on a consolidated basis (a "Material Adverse Effect"); (i) the Corporation and ~~no rights, warrants or options~~ each of its Material Subsidiaries have good and marketable title to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material Subsidiaries; 4.1.8 except as described in Schedule E and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable all assets owned by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries them free and clear of all ~~mortgages,~~ liens, ~~charges~~charges and encumbrances that materially interfere with the use made or to be made thereof by them, ~~pledges~~save and except as specified in paragraph 6(1)(c) and as disclosed in the Final Prospectus and the Continuous Disclosure Materials; (j) all interests in natural resource properties of the Corporation or the Material Subsidiaries as set out in the Final Prospectus and the Continuous Disclosure Materials that are owned, ~~security interests~~leased or held by the Corporation or its Material Subsidiaries as owner or lessee thereof are so owned with good and marketable title or are so leased with good and valid title, ~~encumbrances~~are in good standing, ~~claims or demands~~ are valid and enforceable, are free and clear of any ~~kind whatsoever~~liens, ~~all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares~~ charges or encumbrances that materially interfere with the use made or to be made thereof by them and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest royalty is payable in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Subsidiaries is: (a) in breach or violation respect of any of them, except as set out in the Final Prospectus or the Continuous Disclosure Materials; no other property rights are necessary for the conduct of the Corporation's or the Material Subsidiaries business; and there are no material restrictions on the ability of the Corporation or the Material Subsidiaries to use, transfer or otherwise exploit any such property rights except as set out in the Final Prospectus or the Continuous Disclosure Materials or as required by applicable law; (A) the Corporation and its Material Subsidiaries are in compliance in all material respects with all terms or and provisions ofof all contracts, or agreements, indentures, leases, instruments and licences in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any connection with the conduct of its ~~property or assets is subject~~business and (B), ~~which breach or violation or~~ to the ~~consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation~~ best of the ~~provisions of its articles~~Corporation's knowledge, ~~by-laws or resolutions or any statute or any order~~all such contracts, ~~rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties~~agreements, ~~which violation or the consequences thereof would~~indentures, ~~alone or~~ leases, policies, instruments and licences are valid and binding in ~~the aggregate~~accordance with their terms and in full force and effect, except in each case with respect to clauses (A) and (B), as could not reasonably be expected to have a Material Adverse Effect; ~~4.1.10~~ (l) except as disclosed in the ~~execution~~ Final Prospectus or the Continuous Disclosure Materials, and ~~delivery~~ to the best knowledge of ~~this Agreement~~the Corporation, the ~~Subscription Agreements~~Corporation and its subsidiaries are in compliance with all material environmental laws in the jurisdictions in which the such entities conducts its business; (m) except as disclosed in the Final Prospectus or the Continuous Disclosure Materials, the ~~Subscription Receipt Agreement~~ Corporation and ~~the Acquisition Agreement and the performance~~ each of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions its Material Subsidiaries maintain insurance against loss of, or ~~constitute~~ damage to, their assets by all insurable risks on a ~~default under (whether after notice or lapse of time or both)~~replacement cost basis, ~~any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any~~ and all of the ~~Subsidiaries is a party or by which it is bound or~~ policies in respect of such insurance coverage are in good standing in all respects and not in default except in each case as could not reasonably be expected to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; ~~4.1.11 other than as will have been obtained prior to~~ (n) the ~~Closing Date and other than the approval of the shareholders~~ consolidated audited financial statements of the Corporation ~~required to be obtained at~~ for its fiscal years ended December 31, 2000 and December 31, 2001 and the ~~Meeting~~unaudited interim financial statements of the Corporation for the quarter ended March 31, ~~no consent~~2002 (collectively the "Corporation's Financial Statements"), ~~approval~~copies of which are incorporated by reference in the Preliminary Prospectus and Final Prospectus, ~~authorization~~are true and correct in every material respect and present fairly and accurately the financial position and results of the operations of the Corporation on a consolidated basis for the periods then ended and the Corporation's Financial Statements have been prepared in accordance with generally accepted accounting principles in Canada applied on a consistent basis; (o) this agreement has been duly authorized, ~~order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution~~ executed and ~~delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation~~ delivered by the Corporation and is a legal, valid and binding obligation of, and is enforceable against, the Corporation in accordance with its terms (subject to bankruptcy, insolvency or other laws affecting the rights of creditors generally, the availability of equitable remedies and the qualification that rights to indemnity and waiver of contribution may be contrary to public policy); (p) the Corporation was and is eligible to use the POP System and at the respective times of filing, each of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance Preliminary Prospectus and the ~~Underlying Shares, when issued,~~ Final Prospectus together with any Prospectus Amendment and any Supplementary Material have and will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects comply with the requirements of the ~~TSX~~ applicable Canadian Securities Laws pursuant to which they have been filed, have and ~~does not conflict with~~ will provide full, true and plain disclosure of all material facts (as defined in the ~~constating documents of~~ Securities Act (Ontario)) relating to the Corporation on a consolidated basis and to the ~~definitive form of certificate~~Securities and will not contain any misrepresentation (as defined in the Securities Act (Ontario)), ~~if any, representing~~ provided that the ~~Underlying Shares complies in all material respects with the requirements of the TSX and does~~ foregoing shall not conflict with the constating documents of the Corporation or the laws of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital apply with respect to statements contained in such ~~securities within~~ documents relating solely to the ~~last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid~~Canadian Underwriters; ~~4.1.16~~ (q) except as disclosed in the ~~Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 –~~ Final Prospectus or the Continuous Disclosure ~~Obligations) since December 31~~Materials, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, there has been no actual material adverse change in the business, affairs, operations, assets, liabilities or financial condition of the Corporation on a consolidated basis since March 31, 2002; (r) the directors and officers of the Corporation and their compensation arrangements with the Corporation, whether as directors, officers or employees of the Corporation are as disclosed in the Preliminary Prospectus and Final Prospectus or in the Continuous Disclosure Materials; (s) all of the material contracts and agreements of the Corporation and of its Material Subsidiaries not made in the ordinary course of business (collectively the "Material Contracts") have been disclosed in the Continuous Disclosure Materials; (t) all tax returns, reports, elections, remittances and payments of the Corporation and of its Material Subsidiaries required by law to have been filed or made in any applicable jurisdiction, have been filed or made (as the case may be), other than for taxes being contested in good faith, and, to the ~~Best~~ knowledge of the Corporation~~’s Knowledge~~, ~~the representations~~ are substantially true, complete and ~~warranties~~ correct and all taxes of the ~~sellers~~ Corporation and ~~the Target contained~~ of its Material Subsidiaries (other than taxes being contested in good faith) have been paid or accrued in the ~~Acquisition Agreement are true and correct~~ Corporation's Financial Statements; (u) except as ~~would not have a Material Adverse Effect; 4.1.24~~ disclosed in the ~~Corporation is not aware of any facts~~ Final Prospectus or ~~circumstances that would cause it to believe that (i)~~ in the ~~Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement~~Continuous Disclosure Materials, ~~the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25~~ there are no ~~legal or governmental~~ actions, suits, judgments, investigations or proceedings ~~or investigations~~ outstanding, pending or or, to the ~~Best~~ best of its knowledge, threatened against or affecting the Corporation~~’s Knowledge~~, ~~contemplated~~ its subsidiaries, or ~~threatened against the Corporation~~ their respective directors, officers or ~~the Subsidiaries~~promoters (in their capacity as such), at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, ~~board~~ board, bureau or ~~agency~~agency of any kind whatsoever, ~~domestic or foreign, which: (i) would~~ except in ~~any way~~ each case as could not reasonably be expected to have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; ~~4.1.26~~ (v) all necessary corporate action has been taken or will have been taken prior to the Time of Closing (as defined below) by the Corporation so as to ~~authorize~~ validly issue and sell the ~~execution~~Securities to the Canadian Underwriters and upon receipt by the Corporation of the purchase price as consideration for the issue of the Securities, ~~delivery~~ such Securities will be validly issued and ~~performance of this Agreement, the Subscription Receipt Agreement~~ outstanding as fully paid and ~~the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none~~ non-assessable shares of the Corporation; (w) Computershare Trust Company of Canada, at its principal office in Toronto, has been duly appointed as the ~~Subsidiaries nor any other party to any agreement or instrument is in material default in~~ transfer agent and registrar for the ~~observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either~~ Common Shares and the ~~Corporation or any~~ Warrants; (x) the forms of the ~~Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on~~ certificates representing the ~~part of the Corporation or the Subsidiaries, in any such case which default or event would~~ Warrants have ~~a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each~~ been duly ~~and validly executed and delivered~~ approved by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and comply with the ~~Subsidiaries is~~ provisions of the ~~owner~~ laws of its ~~properties~~jurisdiction of incorporation and the regulations of the TSX; and (y) the Preliminary Prospectus and Final Prospectus, ~~business and assets or the interests in its properties, business or assets,~~ including any and all ~~agreements under which the Corporation or either~~ amendments thereto, contains and will contain no untrue statement of ~~the Subsidiaries holds an interest in~~ a ~~property, business or asset are in good standing according to their terms except where the failure to be in such good standing~~ material fact and does not and will not ~~have~~ omit to state a ~~Material Adverse Effect; 4.1.30 the Corporation~~ material fact that is ~~a “reporting issuer”,~~ required to be stated or that is necessary to make statements therein not ~~included~~ misleading in ~~a list of defaulting reporting issuers maintained by the Securities Regulators of each~~ light of the ~~Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario~~ circumstances in which they are made. (2) The representations and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements warranties of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with this Canadian ~~Securities Laws~~ Underwriting Agreement shall be true at the ~~time~~ Time of Closing as though they were ~~filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations~~ made at the ~~time~~ Time of Closing and they ~~were filed; 4.1.33~~ shall survive the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution completion of the ~~Offered Subscription Receipts or~~ transactions contemplated under this Canadian Underwriting Agreement and remain in full force and effect thereafter for the ~~Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best~~ benefit of the CoCanadian Underwriters for a period ending on the expiry date of the Warrants.

Appears in 1 contract

Sources: Underwriting Agreement (Echo Bay Mines LTD)

Representations and Warranties of the Corporation. (1) The Corporation hereby represents and warrants to the ~~Underwriters~~Agents, intending that the ~~U.S. Affiliate and to~~ same may be relied upon by the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements), and acknowledges that each of them is relying upon such representations and warrantiesAgents, that: ~~4.1.1~~ (a) each of the Corporation and the Material Subsidiaries has been duly incorporated, continued or amalgamated and organized and is validly ~~subsisting~~ existing under the laws of its ~~governing jurisdiction~~jurisdiction of incorporation, ~~and~~ continuance or amalgamation, has all requisite corporate power and authority to carry on its business as now conducted and as contemplated by the Prospectuses, and to own, lease and operate its properties and ~~assets~~ assets, and ~~conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2~~ the Corporation has all requisite ~~corporate~~ power and authority to ~~enter into this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement and~~ carry out its obligations ~~hereunder and thereunder and to authorize and issue~~ under this Agreement; (b) the ~~Offered Subscription Receipts and, upon exchange~~ only material operating subsidiaries of the ~~Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares~~ Corporation are listed in ~~the capital of the Corporation~~Schedule A; ~~4.1.3~~ (c) the Corporation or one of its Material Subsidiaries owns the issued and outstanding shares of each of the ~~Corporation~~ Material Subsidiaries as set out in Schedule A, in each case free and clear of any pledge, lien, security interest, charge, claim or encumbrance, other than as is described in the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse EffectProspectuses; ~~4.1.4~~ (d) no order, ruling or determination having the ~~authorized capital~~ effect of ceasing, suspending or restricting trading in any Common Shares of the Corporation ~~consists~~ or the sale of ~~an unlimited number of~~ the Common Shares has been issued and no proceedings, investigations or inquiries for such purpose are pending or, to the Corporation’s knowledge, threatened; (e) the Corporation’s common shares are posted and listed for trading on the Exchanges and the Corporation is not in default in any material respect of ~~preferred shares of which, as~~ any of the ~~close of business on July 3, 2014, 94,792,906 Common Shares were issued and outstanding as fully paid and non-assessable shares in the capital~~ listing requirements of the ~~Corporation~~Exchanges; ~~4.1.5 except as set forth in Schedule B attached hereto~~(f) other than options under the Corporation’s Stock Option Plans, ~~no person~~ the Corporation is not a party to and has not entered into any agreement, warrant, option, right or privilege ~~(whether pre-emptive or contractual)~~ reasonably capable of becoming an ~~agreement~~ agreement, for the purchase, subscription or issuance of any Common Shares or securities ~~of the Corporation from or by the Corporation and no rights, warrants or options to acquire, or instruments~~ convertible into or exchangeable ~~for~~for common shares other than as set out in the Prospectuses; (g) as at December 20, ~~any~~ 2005, the authorized share capital of the Corporation consisted of an unlimited number of Common ~~Shares~~Shares and an unlimited number of First Preferred shares, of which 142,987,394 Common Shares and no First Preferred shares are issued and outstanding; ~~4.1.6 no agreement~~ (h) the Corporation, each of the Material Subsidiaries, and, to the Corporation’s knowledge after due inquiry, St. Jude have conducted and are conducting their respective businesses in material compliance with all applicable laws, rules, regulations, tariffs, orders and directives, including without limitation, all laws, regulations and statutes relating to mining and to mining claims, concessions or leases, and environmental, health and safety laws, rules, regulations, or policies or other lawful requirements of any governmental or regulatory bodies having jurisdiction over the Corporation and the Material Subsidiaries in each jurisdiction in which the Corporation or the Material Subsidiaries carries on their respective businesses, other than those in respect of which the failure to comply would not individually or in the aggregate be material and adverse to the Corporation and the Material Subsidiaries (taken as a whole). Each of the Corporation, the Material Subsidiaries, and, to the knowledge of the Corporation after due inquiry, St. Jude hold all certificates, authorities, permits, licenses, registrations and qualifications (collectively, the “Authorities”) in all jurisdictions in which each carries on its business and which are material for and necessary or desirable to carry on their respective businesses as now conducted. To the best of the Corporation’s knowledge, information and belief all the Authorities are valid and existing and in good standing and none of the Authorities contain any burdensome term, provision, condition or limitation which has or is ~~in force~~ likely to have any material adverse effect on the business of the Corporation and the Material Subsidiaries (taken as a whole) as now conducted or ~~effect which in~~ as currently proposed to be conducted. None of the Corporation, any ~~manner affects~~ of the ~~voting~~ Material Subsidiaries, or, to the knowledge of the Corporation after due inquiry, St. Jude has received any notice of proceedings relating to the revocation or ~~Control~~ modification of any of the ~~securities~~ Authorities which, singly or in the aggregate, if the subject of an unfavourable decision, ruling or finding, would materially adversely affect the business, operations, financial condition, or income of the ~~Corporation~~Corporation or the Material Subsidiaries (taken as a whole) or any notice of the revocation or cancellation of, or any intention to revoke or cancel, any of the mining claims, concessions or leases comprising: (i) the Bogoso/Prestea property; ~~4.1.7~~ (ii) the ~~Corporation has no material subsidiaries~~ Prestea Underground property; (iii) the Dunkwa-Mampon properties; (iv) the Wassa property; and (v) the Hwini-Butre property. The above-noted properties are referred to, collectively, as the “Material Resource Properties” and each such property, other than the ~~Material Subsidiaries; 4.1.8 except~~ Hwini-Butre property, is as described in ~~Schedule E and except for~~ the Form 10-K of the Corporation dated April 14, 2005; (i) ~~1,900,000 common shares~~ the Corporation, each of ~~The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31~~its Material Subsidiaries, ~~2018~~and, ~~which are convertible at~~ to the ~~option of the holder into common shares of Intertain at a price of $6.00 per common share;~~ Corporation’s knowledge after due inquiry, St. Jude have good and ~~(iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable~~ marketable title to all assets owned by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries them free and clear of all ~~mortgages,~~ liens, ~~charges~~charges and encumbrances, ~~pledges~~other than as described in the Prospectuses, ~~security~~ and other than such liens, charges and encumbrances that are not individually or in the aggregate material to the Corporation or the Material Subsidiaries taken as a whole; (j) except as set out in the Prospectuses or as are not individually or in the aggregate material to the Corporation and the Material Subsidiaries (taken as a whole), or other than as would not have a material effect on the value of such interests, all interests in the Material Resource Properties are owned, leased or held by the Corporation, its Material Subsidiaries or, to the Corporation’s knowledge after due inquiry, St. Jude as owner or lessee thereof, are so owned with good and marketable title or are so leased with good and valid title, are in good standing, are valid and enforceable, are free and clear of any liens, charges or encumbrances, ~~claims or demands of any kind whatsoever~~except with respect to the litigation listed ion Schedule C, ~~all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares~~ and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest royalty is payable in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Subsidiaries is: (a) in breach or violation respect of any of them; no other material property rights are necessary for the ~~terms~~ conduct or ~~provisions of~~currently intended conduct of the Corporation’s, the Material Subsidiaries’ or, to the knowledge of the Corporation after due inquiry, St. Jude’s business and there are no restrictions on the ability of the Corporation or ~~in default under~~ the Material Subsidiaries to use, transfer or otherwise exploit or explore (~~whether after notice or lapse of time or both~~as the case may be) any ~~indenture~~such property rights, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or except as set out in the ~~aggregate, have a Material Adverse Effect; or~~Prospectuses; (bk) (A) the Corporation and its Material Subsidiaries are in material compliance with all material terms and provisions of all contracts, agreements, indentures, leases, instruments and licences material to the conduct of their businesses taken as a whole and (B) all such contracts, agreements, indentures, leases, policies, instruments and licences are valid and binding in accordance with their terms and are in full force and effect; (l) except in each case as publicly disclosed: (i) to the best of the Corporation’s knowledge, information and belief none of the real property (and the buildings constructed thereon) in violation of the provisions of its articles, by-laws or resolutions or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any of the Material Subsidiaries ~~is a party or by which it is bound or~~ or, to ~~which any of its property or assets is subject, other than any breach or violation~~ the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions knowledge of the Corporation after due inquiry, St. Jude has a direct or indirect interest, whether leasehold or fee simple or otherwise (the “Real Property”), or upon or within which it has operations, is subject to any judicial or administrative proceeding alleging the violation of any federal, provincial, state or municipal environmental, health or safety statute or regulation, domestic or foreign, or is subject to any ~~order, rule or regulation~~ investigation concerning whether any remedial action is needed to respond to a release of any ~~court or governmental agency or body having jurisdiction over it or any of its properties which violation or~~ Hazardous Material (as defined below) into the ~~consequences thereof would~~environment; (ii) except in material compliance with applicable environmental laws, ~~alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of~~ neither the Corporation ~~required~~ nor any Material Subsidiary nor, to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation or the laws of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s ~~normal course issuer bid; 4.1.16 the Corporation has not completed~~ knowledge, St. Jude or any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents occupier of the ~~Corporation~~ Real Property, has filed any notice under any federal, provincial, state or ~~in any Material Agreement~~municipal law, ~~mortgage~~domestic or foreign, ~~note~~indicating past or present treatment, ~~debenture, indenture~~ storage or ~~other instrument or document to which the Corporation is~~ disposal of a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of CanadaHazardous Material; (iii) except in material compliance with applicable environmental laws, none of the ~~subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto~~Real Property has at any time been used by the Corporation or a Material Subsidiary or, to the knowledge of the Corporation after due inquiry, St. Jude or, to the best of the Corporation’s knowledge, information and belief by any other occupier, as a waste storage or waste disposal site; (iv) the ~~Preferred Shares~~Corporation, on a consolidated basis, has no contingent liability of which it has knowledge in connection with any release of any Hazardous Material on or into the environment from any of the Real Property or operations thereon; ~~and~~ (v) ~~the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date~~ none of the ~~Target~~Corporation, ~~including financial due diligence, of~~ any ~~fact or circumstance which would be likely to have a~~ Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereofSubsidiary or, to the ~~Best~~ Corporation’s knowledge after due inquiry, St. Jude or, to the best of the Corporation’s ~~Knowledge~~knowledge, ~~the representations and warranties~~ any occupier of the ~~sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware~~ Real Property, generates, transports, treats, processes, stores or disposes of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best waste on any of the ~~Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or~~ Real Property in ~~equity or before or by any~~ material contravention of applicable federal, provincial, state or municipal laws or ~~other governmental department~~regulations enacted for the protection of the natural environment (including, ~~commission~~without limitation, ~~board~~ ambient air, surface water, ground water, land surface or ~~agency~~subsurface strata) or human health or wildlife (vi) to the Corporation’s knowledge, no underground storage tanks or surface impoundments containing a petroleum product or Hazardous Material are located on any of the Real Property in contravention of applicable federal, provincial, state or municipal laws or regulations, domestic or foreign, ~~which: (i) would in any way have a Material Adverse Effect; or (ii) questions~~ enacted for the ~~issuance, sale or delivery~~ protection of the ~~Offered Subscription Receipts and~~ natural environment (including, without limitation, ambient air, surface water, ground water, land surface or subsurface strata), human health or wildlife. For the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance purposes of this ~~Agreement~~Section 6(1)(l), ~~the Subscription Receipt Agreement and the certificates~~“Hazardous Material” means any contaminant, ~~if any~~chemical, ~~representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none of the Corporation~~pollutant, ~~the Subsidiaries nor~~ subject waste, hazardous waste, deleterious substance, industrial waste, toxic matter or any other ~~party to any agreement or instrument is in material default in~~ substance that when released into the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in its properties, business or assets, and all agreements under which the Corporation or either of the Subsidiaries holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect; 4.1.30 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particularnatural environment (including, without ~~limiting~~ limitation, ambient air, surface water, ground water, land surface or subsurface strata) is likely to cause, at some immediate or future time, harm or degradation to the natural environment (including, without limitation, ambient air, surface water, ground water, land surface or subsurface strata) or risk to human health and, without restricting the generality of the foregoing, includes any contaminant, chemical, pollutant, subject waste, deleterious substance, industrial waste, toxic matter or hazardous waste as defined by applicable federal, provincial, state or municipal laws or regulations enacted for the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements protection of the ~~Corporation contained in the Corporation’s Information Record~~natural environment (including, ~~including any forecasts and estimates~~without limitation, ~~expressions of opinion~~ambient air, ~~intention and expectation have been based on assumptions that are reasonable in the circumstances~~surface water, ~~and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws~~ground water, land surface or subsurface strata), or human health or wildlife; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the Co

Appears in 1 contract

Sources: Agency Agreement (Golden Star Resources LTD)

Representations and Warranties of the Corporation. (1) The Corporation hereby represents and warrants to the ~~Underwriters~~U.S. Agents, intending that the same may be relied upon by the U.S. Affiliate and to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements), and acknowledges that each of them is relying upon such representations and warrantiesAgents, that: ~~4.1.1~~ (a) each of the Corporation and the Material Subsidiaries has been duly incorporated, continued or amalgamated and organized and is validly ~~subsisting~~ existing under the laws of its ~~governing jurisdiction~~jurisdiction of incorporation, ~~and~~ continuance or amalgamation has all requisite corporate power and authority to carry on its business as now conducted and as contemplated by the U.S. Prospectus, and to own, lease and operate its properties and ~~assets~~ assets, and ~~conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2~~ the Corporation has all requisite ~~corporate~~ power and authority to ~~enter into this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement and~~ carry out its obligations ~~hereunder and thereunder and to authorize and issue~~ under this U.S. Agreement; (b) the ~~Offered Subscription Receipts and, upon exchange~~ only major operating subsidiaries of the ~~Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares~~ Corporation are listed in ~~the capital of the Corporation~~Schedule A; ~~4.1.3~~ (c) the Corporation or one of its Material Subsidiaries owns the issued and outstanding shares of each of the ~~Corporation~~ Material Subsidiaries as set out in Schedule A, in each case free and clear of any pledge, lien, security interest, charge, claim or encumbrance; (d) upon completion of the acquisition of the Wassa property as described in the U.S. Preliminary Prospectus and the ~~Subsidiaries is current with all material filings required to be made~~ U.S. Prospectus, Wasford Holdings will own 90% of the issued and outstanding shares of Wexford Goldfields Limited free and clear of any pledge, lien, security interest, charge, claim or encumbrance, other than a security interest in such shares held by Bayerische Hypo-und Vereinsbank AG, Dresdner Bank AG, Fortis Bank (Nederland) N.V. and Standard Bank London Limited (the "SECURED BANKS"), which banks are providing funding in respect of the acquisition; (e) the Corporation meets the requirement for the use of Form S-3 under the ~~laws~~ U.S. Securities Act; (f) no order, ruling or determination having the effect of ceasing, suspending or restricting trading in any securities of the ~~jurisdictions~~ Corporation or the sale of the Common Shares or Warrants comprised in ~~which it exists~~ the Securities has been issued and no proceedings, investigations or ~~carries~~ inquiries for such purpose are pending or threatened; (g) the Corporation's Common Shares are posted and listed for trading on the Exchanges and the Corporation is not in default of any ~~material business~~ of the listing requirements of the Exchanges; (h) other than options under the Corporation's Stock Option Plans, the Corporation is not a party to and has ~~all necessary licences~~not entered into any agreement, ~~leases~~warrant, ~~permits~~option, ~~authorizations and~~ right or privilege reasonably capable of becoming an agreement, for the purchase, subscription or issuance of any Common Shares or securities convertible into or exchangeable for Common Shares other ~~approvals necessary to permit it to conduct its business~~ than as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are set out in ~~full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect~~Schedule C; ~~4.1.4~~ (i) as at the date hereof, the authorized share capital of the Corporation consists of an unlimited number of Common Shares and an unlimited number of ~~preferred~~ First Preferred shares, of which ___ Common Shares and no First Preferred shares ~~of which, as~~ are issued and outstanding; (j) the Corporation and each of the ~~close~~ Material Subsidiaries have conducted and are conducting their respective businesses in compliance with all applicable laws, rules, regulations, tariffs, orders and directives, including without limitation, all laws, regulations and statutes relating to mining and to mining claims, concessions or leases, and environmental, health and safety laws, rules, regulations, or policies or other lawful requirements of any governmental or regulatory bodies having jurisdiction over the Corporation and the Material Subsidiaries in each jurisdiction in which the Corporation or the Material Subsidiaries carries on their respective businesses, and each of the Corporation and the Material Subsidiaries holds all certificates, authorities, permits, licenses, registrations and qualifications (collectively, the "AUTHORITIES") in all jurisdictions in which each carries on its business and which are necessary or desirable to carry on ~~July 3, 2014, 94,792,906 Common Shares were issued~~ their respective businesses as now conducted and ~~outstanding as fully paid and non-assessable shares in~~ to the ~~capital~~ best of the Corporation~~; 4.1.5 except as set forth~~ 's knowledge, information and belief all the Authorities are valid and existing and in ~~Schedule B attached hereto~~good standing and none of the Authorities contain any burdensome term, ~~no person~~ provision, condition or limitation which has or is likely to have any ~~agreement, option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for~~ material adverse effect on the ~~purchase, subscription or issuance of any securities~~ business of the Corporation ~~from or by the Corporation~~ and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material ~~Subsidiaries; 4.1.8 except~~ Subsidiaries (taken as ~~described in Schedule E~~ a whole) as now conducted or as proposed to be conducted, and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Material Subsidiaries ~~is: (a) in breach~~ has received any notice of proceedings relating to the revocation or ~~violation~~ modification of any of the ~~terms or provisions of~~Authorities which, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone singly or in the aggregate, ~~have~~ if the subject of an unfavourable decision, ruling or finding, would materially adversely affect the business, operations, financial condition, or income of the Corporation or the Material Subsidiaries (taken as a ~~Material Adverse Effect; or~~whole) or any notice of the revocation or cancellation of, or any intention to revoke or cancel, any of the mining claims, concessions or leases comprising: (bi) the Bogoso property; (ii) the Prestea property; (iii) the ▇▇▇▇ ▇▇▇▇▇▇ property; (iv) the Yaou and Dorlin properties; and (v) the St. Elie property; (each as described in ~~violation~~ the Form 10-K of the ~~provisions~~ Corporation dated March 25, 2002, and together with the Wassa property, also as described in the Form 10-K of the Corporation dated March 25, 2002, collectively referred to herein, the "RESOURCE PROPERTIES" and the Bogoso property and the Prestea property and the Wassa property collectively being referred to herein as the "MATERIAL RESOURCE PROPERTIES"); (k) neither the Corporation nor any Material Subsidiaries has received any notice of the revocation or cancellation of, or any intention to revoke or cancel, any of the mining claims, concessions or leases comprising the Wassa property; (l) the Corporation and each of its ~~articles~~Material Subsidiaries have good and marketable title to all assets owned by them free and clear of all liens, ~~by-laws~~ charges and encumbrances, other than a security in the shares of Wexford Goldfields Limited that will be held by the Secured Banks, which banks are providing funding in respect of the acquisition of Wexford Goldfields Limited, upon completion of such acquisition; (m) all interests in the Resource Properties are owned or ~~resolutions~~ held by the Corporation or ~~any statute~~ its Material Subsidiaries as owner or ~~any order~~lessee thereof, ~~rule~~ are so owned with good and marketable title or ~~regulation~~ are so leased with good and valid title, are in good standing, are valid and enforceable, are free and clear of any ~~court~~ liens, charges or ~~governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or~~ encumbrances and no royalty is payable in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation respect of any of them, except as set out in the U.S. Prospectus or the Incorporated Documents; no other property rights are necessary for the conduct or intended conduct of the Corporation's or the Material Subsidiaries' business and there are no restrictions on the ability of the Corporation or the Material Subsidiaries to use, transfer or otherwise exploit any such property rights, except as set out in the U.S. Prospectus or the Incorporated Documents; (n) all interests in the Wassa property are owned, leased or held by Wexford Goldfields Limited as owner or lessee thereof, are so owned with good and marketable title or are so leased with good and valid title, are in good standing, are valid and enforceable, are free and clear of any liens, charges or encumbrances, other than a security interest in the shares of Wexford Goldfields Limited that will be held by the Secured Banks, which banks are providing funding in respect of the acquisition of Wexford Goldfields Limited, upon completion of the of such acquisition and no royalty is payable in respect of any of them, except as set out in the U.S. Prospectus or the Incorporated Documents; no other property rights are necessary for the conduct or intended conduct of business in respect of the Wassa property and there are no restrictions on the ability of Wexford Goldfields Limited to use, transfer or otherwise exploit any such property rights, except as set out in the U.S. Prospectus or the Incorporated Documents; (A) the Corporation and its Material Subsidiaries are in compliance with all terms or and provisions ofof all contracts, ~~or constitute a default under~~ agreements, indentures, leases, instruments and licences in connection with the conduct of its business and (~~whether after notice or lapse~~ B) all such contracts, agreements, indentures, leases, policies, instruments and licences are valid and binding in accordance with their terms and in full force and effect; (p) to the best of ~~time or both)~~the Corporation's knowledge, ~~any indenture, mortgage, deed~~ information and belief none of ~~trust, loan agreement, lease or other agreement~~ the real property (~~written or oral~~and the buildings constructed thereon) ~~or instrument to~~ in which the Corporation or any of the Material Subsidiaries is has a ~~party~~ direct or by indirect interest, whether leasehold or fee simple or otherwise (the "REAL PROPERTY"), or upon or within which it has operations, is ~~bound~~ subject to any judicial or administrative proceeding alleging the violation of any federal, provincial, state or municipal environmental, health or safety statute or regulation, domestic or foreign, or is subject to any investigation concerning whether any remedial action is needed to respond to a release of any Hazardous Material (as defined below) into the environment. Neither the Corporation nor any Material Subsidiary nor any occupier of the Real Property, has filed any notice under any federal, provincial, state or municipal law, domestic or foreign, indicating past or present treatment, storage or disposal of a Hazardous Material. Except in compliance with applicable environmental laws, none of the Real Property has at any time been used by the Corporation or a Material Subsidiary or, to the best of the Corporation's knowledge, information and belief by any other occupier, as a waste storage or waste disposal site. The Corporation, on a consolidated basis, has no contingent liability of which it has knowledge or reasonably should have knowledge, information and belief in connection with any release of any Hazardous Material on or into the environment from any of ~~its property~~ the Real Property or ~~assets~~ operations thereon. Neither the Corporation nor any Material Subsidiary nor, to the best of the Corporation's knowledge, any occupier of the Real Property, generates, transports, treats, processes, stores or disposes of any waste on any of the Real Property in contravention of applicable federal, provincial, state or municipal laws or regulations enacted for the protection of the natural environment (including, without limitation, ambient air, surface water, ground water, land surface or subsurface strata) or human health or wildlife. No underground storage tanks or surface impoundments containing a petroleum product or Hazardous Material are located on any of the Real Property in contravention of applicable federal, provincial, state or municipal laws or regulations, domestic or foreign, enacted for the protection of the natural environment (including, without limitation, ambient air, surface water, ground water, land surface or subsurface strata), human health or wildlife. For the purposes of this Section 6(1)(p), "HAZARDOUS MATERIAL" means any contaminant, chemical, pollutant, subject waste, hazardous waste, deleterious substance, industrial waste, toxic matter or any other substance that when released into the natural environment (including, without limitation, ambient air, surface water, ground water, land surface or subsurface strata) is ~~subject~~likely to cause, ~~other than~~ at some immediate or future time, harm or degradation to the natural environment (including, without limitation, ambient air, surface water, ground water, land surface or subsurface strata) or risk to human health and, without restricting the generality of the foregoing, includes any ~~breach~~ contaminant, chemical, pollutant, subject waste, deleterious substance, industrial waste, toxic matter or ~~violation~~ hazardous waste as defined by applicable federal, provincial, state or municipal laws or regulations enacted for the ~~consequences thereof which would~~protection of the natural environment (including, ~~alone~~ without limitation, ambient air, surface water, ground water, land surface or subsurface strata), or human health or wildlife; (q) except as disclosed in the ~~aggregate~~U.S. Prospectus or the Incorporated Documents, ~~not have~~ the Corporation and each of its Material Subsidiaries maintain appropriate insurance against loss of, or damage to, their assets by all insurable risks on a ~~Material Adverse Effect~~repair, ~~nor will such action conflict with~~ reinstatement or ~~result in any violation~~ replacement cost basis, and all of the ~~provisions~~ policies in respect of such insurance coverage are in good standing in all respects and not in default; (r) the ~~articles, by-laws or resolutions~~ consolidated audited financial statements of the Corporation ~~or any statute or any order~~for its fiscal years ended December 31, ~~rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or~~ 1999, December 31, 2000 and December 31, 2001 and the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders unaudited interim financial statements of the Corporation ~~required to be obtained at~~ for the ~~Meeting~~quarter ended March 31, ~~no consent~~2002 (collectively the "CORPORATION'S FINANCIAL STATEMENTS"), ~~approval~~copies of which are incorporated by reference in the U.S. Preliminary Prospectus and the U.S. Prospectus, ~~authorization~~including any reconciliation of financial statements prepared in accordance with generally accepted accounting principles in Canada with generally accepted accounting principles in the United States, ~~order, registration or qualification~~ are true and correct in every material respect and present fairly and accurately the financial position and results of ~~or with any person, court or Governmental Authority or body is required for execution and delivery~~ the operations of ~~this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by~~ the Corporation of on a consolidated basis for the ~~transactions contemplated herein or therein, or~~ periods then ended and the ~~issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts~~ Corporation's Financial Statements have been ~~duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares~~ prepared in ~~the capital of the Corporation~~accordance with generally accepted accounting principles in Canada applied on a consistent basis, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive comply as to form ~~of certificate, if any, representing the Offered Subscription Receipts complies~~ in all material respects with the applicable accounting requirements of the ~~TSX and does not conflict with the constating documents of the Corporation~~ U.S. Securities Act and the ~~definitive form of certificate~~U.S. Exchange Act, ~~if any~~as applicable, ~~representing~~ and the ~~Underlying Shares complies in all material respects with the requirements of the TSX~~ related published rules and ~~does not conflict with the constating documents of the Corporation or the laws of Québec~~regulations thereunder; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (is) the ~~Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation~~ execution and ~~Computershare Trust Company~~ delivery of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued performance by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this ~~Agreement, the Subscription Receipt~~ U.S. Agreement and the ~~certificates, if any, representing the Offered Subscription Receipts~~ Canadian Underwriting Agreement and the ~~Underlying Shares; 4.1.27 none~~ consummation of the ~~Corporation~~transactions contemplated hereby and thereby it, including the issuance and sale of the Common Shares comprised in the Securities, the ~~Subsidiaries nor any other party to any agreement or instrument is in material default~~ creation, issuance and sale of the Warrants comprised in the ~~observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either~~ Securities, the ~~Corporation or any~~ creation and issuance of the ~~Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default~~ Agents' Warrants have been authorized by all necessary action on the part of the ~~Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect~~Corporation; ~~4.1.28~~ (t) this ~~Agreement, the Subscription Agreements, the Acquisition~~ Agreement ~~and the Subscription Receipt Agreement have each~~ has been duly ~~and validly~~ executed and delivered by the ~~Corporation~~Corporation and is a legal, ~~each constitute a~~ valid and binding obligation of of, and is enforceable against the Corporation ~~enforceable against it~~ in accordance with its ~~terms, except as enforcement thereof may be limited by~~ terms (subject to bankruptcy, ~~insolvency, reorganization, moratorium and~~ insolvency or other laws ~~relating to or~~ affecting the rights of creditors generally, ~~and except as limited by~~ the ~~application~~ availability of equitable ~~principles when equitable~~ remedies ~~are sought~~ and by the ~~fact~~ qualification that rights to ~~indemnity,~~ indemnity and waiver of contribution ~~and waiver, and the ability to sever unenforceable terms, each~~ may be ~~limited by applicable law~~contrary to public policy); ~~4.1.29 each~~ (u) except as disclosed in the U.S. Prospectus or the Incorporated Documents, as of the date hereof: (A) there has been no material change in the business, affairs, operations, assets, liabilities or financial condition of the Corporation on a consolidated basis since March 31, 2002; (B) no current reports or other documents have been filed on a confidential basis with the SEC; (C) there has been no transaction entered into by the Corporation which is material to the Corporation; (D) the Corporation and its Material Subsidiaries, on a consolidated basis, have not incurred any material liability or obligation, indirect, direct or contingent, not in the ordinary course of business, nor entered into any material transaction or agreement not in the ordinary course of business; and (E) there has been no dividend or distribution of any kind declared, paid or made by the Corporation or, except for dividends paid to the Corporation or its Material Subsidiaries, any of its Material Subsidiaries, on any class of capital stock or repurchase or redemption by the Corporation or any of its Material Subsidiaries of any class of capital stock; (v) the directors and officers of the Corporation and their compensation arrangements with the ~~Subsidiaries is the owner of its properties~~Corporation, ~~business and assets~~ whether as directors, officers or ~~the interests in its properties, business or assets, and all agreements under which the Corporation or either~~ employees of the ~~Subsidiaries holds an interest~~ Corporation, are as disclosed in ~~a property, business~~ the U.S. Prospectus or ~~asset are~~ in ~~good standing according to their terms except where~~ the ~~failure~~ Incorporated Documents if required to be ~~in such good standing does not and will not have a Material Adverse Effect~~so disclosed; ~~4.1.30 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each~~ (w) all of the ~~Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario~~ material contracts and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements agreements of the Corporation ~~contained~~ and of its Material Subsidiaries not made in the ~~Corporation’s Information Record, including any forecasts and estimates, expressions~~ ordinary course of ~~opinion, intention and expectation~~ business (collectively the "MATERIAL CONTRACTS") have been ~~based on assumptions that are reasonable~~ disclosed in the ~~circumstances~~Incorporated Documents; (x) all tax returns, reports, elections, remittances and payments of the Corporation ~~has updated such forward-looking information~~ and ~~statements as~~ of its Material Subsidiaries required by ~~and~~ law to have been filed or made in ~~compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were~~ any applicable jurisdiction, have been filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document (or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares are in the ~~manner contemplated herein~~process of being prepared for filing, ~~if any, nor instituted proceedings for that purpose and, to the Best of the Co~~which

Appears in 1 contract

Sources: u.s. Agency Agreement (Golden Star Resources LTD)

Representations and Warranties of the Corporation. 4.1 The Corporation represents and warrants to the ~~Underwriters,~~ Agents (on their own behalf and on behalf of the ~~U.S. Affiliate and to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements~~Purchasers), and acknowledges that ~~each of them is~~ the Agents are relying upon such representations and ~~warranties~~warranties in entering into this Agreement, that: 4.1.1 each of the Corporation and the Subsidiaries is validly subsisting under the laws of its governing jurisdiction, and has all requisite corporate power and authority to own, lease and operate its properties and assets and conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2 (a) the Corporation has all requisite corporate power and authority to enter into this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement and carry out its obligations hereunder and thereunder and to authorize and issue the Offered Subscription Receipts and, upon exchange of the Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares in the capital of the Corporationno subsidiaries; ~~4.1.3 each of~~ (b) the Corporation is a valid and ~~the Subsidiaries is current with all material filings required to be made~~ subsisting corporation duly incorporated and in good standing under the laws of the ~~jurisdictions~~ jurisdiction in which it ~~exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it~~ is ~~currently conducted, except where~~ incorporated; (c) the ~~absence~~ Corporation is a reporting issuer in the Province of ~~such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect~~British Columbia, and ~~all~~ on the Closing Date will have been a reporting issuer in such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effectjurisdiction for at least four months; ~~4.1.4~~ (d) the Corporation is not in default of any of the requirements of the Canadian Applicable Securities Laws; (e) the authorized capital of the Corporation consists of an unlimited number of ~~Common Shares and of preferred~~ shares of ~~which,~~ common stock of which 37,735,988 shares were issued and outstanding as of the close of business on ~~July~~ December 3, ~~2014~~2007 as fully paid and non-assessable shares (the “Issued Shares”); (f) the shares of common stock of the Corporation are listed and posted for trading on the Exchanges and the Corporation is not in default of any of the listing requirements of the Exchanges; (g) except for the Issued Shares, ~~94,792,906 Common~~ the Shares ~~were~~ and the Warrants comprising the Units, the Warrant Share, and any options, warrants, agreements and convertible notes disclosed in Schedule “A” to this Agreement, there are no, nor will there be immediately prior to the Time of Closing, documents, instruments or other writings of any kind whatsoever which constitute a “security” (as that term is defined under Canadian Applicable Securities Laws) of the Corporation; (h) at the Time of Closing, the Shares will be validly authorized and issued as fully paid and non-assessable shares of common stock of the Corporation; (i) subject to due exercise of the instruments (including payment in full of the applicable subscription price), if any, pursuant to which they are issued, upon their issuance, the Warrant Shares and the Liquidated Damages Warrant Shares will be validly issued and outstanding as fully paid and non-assessable shares ~~in the capital~~ of common stock of the Corporation; ~~4.1.5 except as set forth~~ (j) upon their issuance, the Warrants and the Liquidated Damages Warrants will be validly created, issued and outstanding, registered in ~~Schedule B attached hereto, no person has any agreement, option, right or privilege~~ the names of the holders thereof; (~~whether pre-emptive or contractual~~k) ~~capable~~ all of ~~becoming an agreement for~~ the ~~purchase, subscription or issuance of any securities~~ transactions of the Corporation ~~from~~ have been properly recorded or by filed in or with the books or records of the Corporation and no the minute books of the Corporation contain all records of the meetings and proceedings of the Corporation’s directors and shareholders since its incorporation; (l) the Corporation has conducted and is conducting its business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it carries on business; (m) other than as disclosed in the Corporation’s SEC filings, the Corporation holds all licences and permits that are required for carrying on its business in the manner in which such business has been carried on and each of the foregoing is in full force and effect; (n) the Corporation has the corporate power and capacity to own the assets owned by it and to carry on the business carried on by it and is duly qualified to carry on business in all jurisdictions in which it carries on business; (o) other than as disclosed in the Corporation’s SEC filings, the Corporation has good and marketable title to its assets free and clear of all liens, charges and encumbrances of any kind whatsoever; (p) other than as disclosed in the Corporation’s SEC filings, the Corporation holds either directly or indirectly freehold title, mining leases, mining claims or other conventional property, proprietary or contractual interests or rights including interests and rights under option and/or joint venture agreements, recognized in the jurisdiction in which a particular property is located, in respect of the ore bodies and minerals located in properties in which it has an interest under valid, subsisting and enforceable title documents or other recognized and enforceable agreements or instruments, sufficient to permit it to explore the minerals relating thereto, all such property, leases or claims and all property, leases or claims in which it has any interest or right have been validly located and recorded in accordance with all applicable laws and are valid and subsisting, it has all necessary surface rights, ~~warrants or options~~ access rights and other necessary rights and interests relating to ~~acquire~~the properties in which it has an interest granting it the right and ability to explore for minerals, ~~or instruments convertible into or exchangeable for, any Common Shares,~~ ore and metals for development purposes as are ~~outstanding; 4.1.6 no agreement is~~ appropriate in ~~force or effect which in any manner affects the voting or Control of any~~ view of the ~~securities~~ rights and interest therein of it, with only such exceptions as do not interfere with the use made by it of the rights or interests so held, and each of the proprietary interests or rights and each of the documents, agreements and instruments and obligations relating thereto referred to above is currently in good standing in the name of the Corporation; ~~4.1.7~~ (q) the Corporation has no material subsidiaries other than the Material Subsidiaries; 4.1.8 except as described in Schedule E and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, is current with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Subsidiaries is: (a) in breach or violation of any of the terms or provisions of, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation of the provisions of its articles, by-laws or resolutions or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation filings required to be ~~obtained at the Meeting~~made in all jurisdictions in which it exists or carries on any business, ~~no consent, approval, authorization, order, registration or qualification~~ and it is not in default of ~~or with~~ any ~~person, court or Governmental Authority or body is~~ filings required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Sharesto be made under Applicable Securities Laws; ~~4.1.12 the Offered Subscription Receipts have been duly authorized~~ (r) all prospectuses, management discussion and ~~allotted for issuance~~ analysis, technical reports, press releases, material change reports, shareholder communications and ~~the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital~~ other disclosure documents of the Corporation, ~~and~~ including all publicly filed financial statements, contain no untrue statement of a Material Fact as at the ~~Subscription Receipts will~~ date thereof nor do they omit to state a Material Fact which, at the date thereof, was required to have ~~the attributes set out~~ been stated or was necessary to prevent a statement that was made from being false or misleading in the ~~Subscription Receipt Agreement~~ circumstances in which it was made and ~~the Subscription Agreements~~were prepared in accordance with and complied with Applicable Securities Laws; ~~4.1.13~~ (s) there is not presently, and will not be until the ~~Preferred Shares~~Closing Date, any Material Change relating to the ~~Commitment Shares and~~ Corporation or change in any Material Fact relating to the ~~Commitment Warrants will~~Corporation, ~~when issued, have the attributes set forth~~ which has not been or will not be fully disclosed in ~~the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects~~ accordance with the requirements of the ~~TSX~~ Applicable Securities Laws; (t) the audited consolidated financial statements of the Corporation for its fiscal year ended July 31, 2007 and ~~does~~ the consolidated interim financial statements of the Corporation for the period ended March 31, 2007 (collectively, the “Financial Statements”) are true and correct in every material respect and present fairly and accurately the financial position and results of the operations of the Corporation for the period then ended and the Financial Statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis; (u) there are no material liabilities of the Corporation, whether direct, indirect, absolute, contingent or otherwise which are not ~~conflict with~~ disclosed or reflected in the ~~constating~~ Corporation’s Financial Statements except those incurred in the ordinary course of business of the Corporation since July 31, 2007 which are recorded in the books and records of the Corporation; (v) since July 31, 2007, there has not been any adverse Material Change of any kind whatsoever in the financial position or condition of the Corporation, or any damage, loss or other change of any kind whatsoever in circumstances materially affecting the business or assets of the Corporation, or the right or capacity of the Corporation to carry on its business, except as disclosed in the publicly filed documents available through SEDAR; (w) the contracts and agreements set out in Schedule “B” hereto constitute all of the material contracts and agreements of the Corporation and ~~the definitive form of certificate, if any, representing the Underlying Shares complies~~ all such contracts and agreements are in good standing and are not in default in any material respect; (x) all ~~material respects with the requirements of the TSX~~ tax returns and ~~does not conflict with the constating documents~~ tax-related reports of the Corporation required by law to have been filed have been filed and are substantially true, complete and correct and all taxes and other government charges of any kind whatsoever of the Corporation have been paid or accrued in the ~~laws of Québec~~Financial Statements; ~~4.1.15~~ (y) the Corporation has established on its books and records reserves which are adequate for the payment of all taxes not ~~declared or paid any dividends or declared or made any other payments or distributions~~ yet due and payable and there are no liens for taxes on ~~or in respect~~ the assets of the Corporation except for taxes not yet due, and there are no audits of any of ~~its securities~~ the tax returns of the Corporation pending, and ~~has not, directly~~ there are no claims which have been or ~~indirectly, redeemed, purchased or otherwise acquired~~ may be asserted relating to any such tax returns of ~~its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within~~ the ~~last 12 months~~ Corporation; (z) other than as disclosed in ~~connection with the purchases of Common Shares made in accordance with~~ the Corporation’s ~~normal course issuer bid; 4.1.16 the Corporation has not completed~~ SEC filings, there are no actions, suits, judgments, investigations or proceedings of any ~~“significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31~~kind whatsoever outstanding, ~~2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of~~ or pending or threatened against or affecting the Corporation or ~~in any Material Agreement~~its directors, ~~mortgage, note, debenture, indenture~~ officers or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, promoters at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, ~~board~~ board, bureau or ~~agency~~agency of any kind whatsoever which would result in an adverse Material Change in the financial position, ~~domestic~~ business or ~~foreign~~prospects of the Corporation and there is no basis therefor; (aa) neither of the Corporation nor any of its directors, ~~which: (i) would~~ officers and promoters is in breach of any ~~way~~ law, ordinance, statute, regulation, by-law, order or decree of any kind whatsoever which breach could have a ~~Material Adverse Effect;~~ material adverse effect on the financial position, business or ~~(ii) questions the issuance, sale or delivery~~ prospects of the ~~Offered Subscription Receipts and the Underlying Shares to be issued by~~ Corporation; (bb) no order ceasing or suspending trading in securities of the Corporation or prohibiting the ~~validity~~ sale of ~~any action taken or~~ such securities has been issued to ~~be taken by~~ and is outstanding against the Corporation ~~pursuant to~~ or ~~in connection with this Agreement~~ its directors, officers or promoters or against any other companies that have common directors, officers or promoters of the ~~Acquisition Agreement~~Corporation and no investigations or proceedings for such purposes are pending or threatened; ~~4.1.26 all necessary corporate action has been taken by~~ (cc) the Corporation has all requisite power and capacity and good and sufficient right and authority to ~~authorize the execution~~enter into, ~~delivery~~ deliver and ~~performance of~~ carry out its obligations under this Agreement, the Subscription ~~Receipt~~ Agreements and the Registration Rights Agreement and to complete the transactions contemplated under this Agreement and the ~~certificates, if any, representing~~ Registration Rights Agreement on the ~~Offered Subscription Receipts~~ terms and ~~the Underlying Shares~~conditions set forth herein; ~~4.1.27 none of the Corporation~~(dd) this Agreement has been authorized, the Subsidiaries nor any other party to any agreement or instrument is in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the ~~Corporation, each constitute~~ Corporation and constitutes a valid and legally binding obligation of the Corporation enforceable against it the Corporation in accordance with ~~its terms~~the terms hereof and, ~~except as enforcement~~ upon being executed and delivered, each of the Subscription Agreements, the Registration Rights Agreement and the certificates representing the Warrants and the Liquidated Damages Warrants will constitute a valid and legally binding obligation of the Corporation enforceable against the Corporation in accordance with the terms thereof ~~may be limited by~~ subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the enforcement of creditors’ rights generally or as limited by laws relating to the availability of equitable remedies; (ee) the execution and delivery of this Agreement, the Subscription Agreements and the Registration Rights Agreement, the performance of the Corporation’s obligations under this Agreement, the Subscription Agreements and the Registration Rights Agreement, and the completion of the transactions contemplated under this Agreement, the Subscription Agreements and the Registration Rights Agreement, will not conflict with, or ~~affecting~~ result in the ~~rights~~ material breach of ~~creditors generally~~or the acceleration of any indebtedness under, or constitute default under, the constating documents of the Corporation or any indenture, mortgage, agreement, lease, licence or other instrument of any kind whatsoever to which the Corporation is a party or by which it or any of its properties or assets are bound, or any statute or any judgment, decree, order, rule, policy or regulation of any court, governmental authority or administrative body of any kind whatsoever applicable to the Corporation or any of its properties or assets; (ff) other than as disclosed in the Corporation’s SEC filings, no action has been taken by any persons which would in any way limit, restrict or cause interference with any mineral exploration and development work which the Corporation currently proposes to carry out on the Corporation’s mineral properties; (gg) other than as disclosed in the Corporation’s SEC filings and except to the extent that any violation or other matter referred to in this subsection does not have a material adverse effect on the financial position, business or prospects of the Corporation: (i) the Corporation is not in violation of, and has operated its business at all times in compliance with, any applicable federal, state, provincial, municipal or local laws, regulations, orders, government decrees or ordinances with respect to environmental, health or safety matters (collectively, “Environmental Laws”); (ii) no orders, directions or notices have been issued and remain outstanding pursuant to any Environmental Laws relating to the business or assets of the Corporation; (iii) the Corporation has not failed to report to the proper federal, state, provincial, municipal or other political subdivision, government, department, commission, board, bureau, agency or instrumentality (domestic or foreign) the occurrence of any event which is required to be so reported by any Environmental Law; and (iv) the Corporation holds all licences, permits and approvals required under any Environmental Laws in connection with the operation of its business and the ownership and use of its assets, all such licences, permits and approvals are in full force and effect, and except ~~as limited~~ for notifications and conditions of general application to assets of the type owned by the ~~application~~ Corporation, the Corporation has not received any notification pursuant to any Environmental Laws that any work, repairs, construction or capital expenditures are required to be made by them as a condition of ~~equitable principles when equitable remedies are sought and by the fact~~ continued compliance with any Environmental Laws, or any licence, permit or approval issued pursuant thereto, or that ~~rights~~ any licence, permit or approval referred to ~~indemnity~~above is about to be reviewed, ~~contribution and waiver~~made subject to limitation or conditions, ~~and the ability to sever unenforceable terms~~revoked, ~~each may be limited by applicable law~~withdrawn or terminated; ~~4.1.29 each~~ (hh) to the knowledge of the Corporation, no insider (as defined in Canadian Applicable Securities Laws) has a present intention as at the date hereof to sell any securities of the Corporation; (ii) neither the Corporation nor any of its shareholders is a party to any unanimous shareholder agreement, pooling agreement, voting trust or other similar type of arrangements in respect of outstanding securities of the Corporation; and (jj) the Corporation has or, on or before the Time of Closing, will enter into the Registration Rights Agreement among the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in its properties, business or assets, and all agreements under which the Corporation or either of the Subsidiaries holds an interest Purchasers in a ~~property~~form acceptable to the Agents, ~~business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect~~acting reasonably; ~~4.1.30~~ 4.2 The Corporation further represents, warrants, covenants and agrees that: (a) the Corporation is a ~~“reporting issuer”, not included in a list of defaulting reporting issuers maintained by~~ registrant under the ~~Securities Regulators of each~~ 1934 Act and is required to file reports under section 13(a) or section 15(d) of the ~~Provinces~~ 1934 Act; (b) it is not registered or required to register as an “investment company” pursuant to the United States Investment Company Act of ~~British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing,~~ 1940; (c) the Corporation has ~~at all relevant times complied with~~ not sold, offered for sale or solicited any offer to buy and will not sell, offer for sale or solicit any offer to buy any of its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator securities in the ~~Provinces~~ United States in a manner that would cause the exemption from registration set forth in Rule 506 of ~~British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports~~ Regulation D to become unavailable with respect to the ~~Offering~~ offer and ~~Proposed Acquisition and financing thereof~~sale of the Units pursuant to paragraph 3.10(b) or for exercises of the Warrants comprised therein; ~~4.1.31 all forward-looking information and statements~~ (d) neither the Corporation nor any of the ~~Corporation contained~~ predecessors or affiliates thereof has been subject to any order, judgment or decree of any court of competent jurisdiction temporarily, preliminarily or permanently enjoining such person for failure to comply with Rule 503 of Regulation D concerning the filing of a notice of sales on Form D; (e) except with respect to offers and sales in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares U.S. Private Placement in the manner ~~contemplated herein~~described in section 3.10(b) of this Agreement, ~~if any~~neither the Corporation nor any of its affiliates, nor ~~instituted proceedings for that purpose and~~any person acting on its or their behalf (other than the Agents, ~~to the Best~~ their affiliates or any person acting on their behalf, in respect of ~~the Co~~which

Appears in 1 contract

Sources: Agency Agreement (Uranium Energy Corp)

Representations and Warranties of the Corporation. The Corporation hereby represents and warrants to the ~~Underwriters, the U.S. Affiliate and to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements),~~ Agent and acknowledges that ~~each of them~~ the Agent is relying upon such representations and ~~warranties,~~ warranties that: ~~4.1.1~~ (a) each of the Corporation and ~~the~~ its Subsidiaries is a corporation duly incorporated, continued or amalgamated and validly ~~subsisting~~ existing under the laws of ~~its governing jurisdiction~~the jurisdiction in which it was incorporated, continued or amalgamated, as the case may be, and has all requisite corporate power and authority and is duly qualified and holds all necessary material permits, licences and authorizations necessary or required to carry on its business as now conducted and proposed to be conducted to own, lease ~~and~~ or operate its properties and assets and ~~conduct~~ no steps or proceedings have been taken by any person, voluntary or otherwise, requiring or authorizing its ~~business as currently conducted and as currently proposed to be conducted~~dissolution or winding up; ~~4.1.2~~ (b) the ~~Corporation has all requisite corporate power and authority to enter into this Agreement,~~ Subsidiaries are the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement and carry out its obligations hereunder and thereunder and to authorize and issue the Offered Subscription Receipts and, upon exchange of the Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares in the capital of the Corporation; 4.1.3 each only subsidiaries of the Corporation and the ~~Subsidiaries is current with all material filings required to be made under~~ information regarding the ~~laws~~ jurisdiction of ~~the jurisdictions in which it exists or carries on any material business and has all necessary licences~~formation of each Subsidiary, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 the authorized capital of the Corporation consists of an unlimited number of Common Shares and of preferred shares of which, as of the close of business on July 3, 2014, 94,792,906 Common Shares were issued and outstanding ~~as fully paid and non-assessable~~ shares in the capital of the ~~Corporation; 4.1.5 except~~ Subsidiaries, and status of the Subsidiaries as ~~set forth~~ material or dormant in Schedule B attached hereto, no person has any agreement, option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for the purchase, subscription or issuance of any securities of the Corporation from or by the Corporation “A” is true and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material Subsidiaries; 4.1.8 except as described in Schedule E and except for (i) 1,900,000 common shares of correct. The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially ~~own,~~ own or exercise ~~Control~~ control or direction ~~over,~~ over 10% or more of the outstanding voting shares of any company that holds any assets or conducts any operations other than ~~its~~ the Subsidiaries and the Corporation beneficially owns, directly or ~~indirectly all~~ indirectly, the percentage indicated on Schedule “A” hereto of the issued and outstanding shares in the capital of the Subsidiaries which are free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and are validly issued and are outstanding as fully paid and ~~non-~~non- assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue or allotment of any unissued shares in the capital of any of the Subsidiaries or any other security convertible into or exchangeable for any such shares; ~~4.1.9~~ (c) the Corporation has all requisite corporate power, authority and capacity to enter into each of this Agreement and the Warrant Indenture and to perform the transactions contemplated herein and therein, including, without limitation, to issue the Offered Units, the Unit Shares, the Warrants, the Warrant Shares, the Additional Units, the Additional Unit Shares, and the Additional Warrants; (d) neither the Corporation nor any of the Subsidiaries ~~is:~~ is (ai) in ~~breach or~~ violation of ~~any~~ its constating documents, or (ii) in default of the ~~terms~~ performance or ~~provisions of~~observance of any obligation, agreement, covenant or condition contained in ~~default under (whether after notice or lapse of time or both)~~ any contract, indenture, trust deed, joint venture, mortgage, ~~deed of trust~~loan agreement, ~~loan agreement~~ note, lease or other agreement ~~(written or oral)~~ or instrument to which it is a party or by which it ~~is bound~~ or ~~to which any of~~ its property ~~or assets is subject~~may be bound, ~~which breach or violation or the consequences thereof would, alone or~~ except in the ~~aggregate, have~~ case of clause (ii) for any such violations or defaults that would not result in a Material Adverse Effect~~; or~~; (be) ~~in violation~~ to the knowledge of the ~~provisions of its articles~~Corporation, ~~by-laws~~ no counterparty to any material obligation, agreement, covenant or ~~resolutions~~ condition contained in any contract, indenture, trust deed, mortgage, loan agreement, note, lease or other agreement or instrument to which the Corporation or any ~~statute~~ Subsidiary is a party is in default in the performance or ~~any order~~observance thereof, ~~rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which~~ except where such violation or ~~the consequences thereof would, alone or~~ default in ~~the aggregate,~~ performance would not have a Material Adverse Effect; ~~4.1.10~~ (f) each of the Corporation and the Subsidiaries has conducted and is conducting its business in compliance with all applicable laws and regulations of each jurisdiction in which it carries on business, except where the failure to so comply would not have a Material Adverse Effect. The Corporation and each of the Subsidiaries holds all material requisite licences, registrations, qualifications, permits and consents necessary or appropriate for carrying on its business as currently carried on and all such licences, registrations, qualifications, permits and consents are valid and subsisting and in good standing in all material respects. Without limiting the generality of the foregoing, neither the Corporation nor any Subsidiary has received a written notice of non-compliance, nor does it know of, nor have reasonable grounds to know of, any facts that could give rise to a notice of non-compliance with any such laws, regulations or permits which would have a Material Adverse Effect; (g) the Corporation is in compliance in all material respects with all of the rules, policies and requirements of the CSE; (h) other than the Leased Premises and except as disclosed in the Offering Documents, each of the Corporation and the Subsidiaries is the absolute legal and beneficial owner of, and has good and marketable title to, all of the material properties and assets thereof as described in the Offering Documents, including but not limited to the Owned Real Property, and no other property or assets are necessary for the conduct of the business of the Corporation and the Subsidiaries as currently conducted. Any and all of the agreements and other documents and instruments pursuant to which each of the Corporation and Subsidiaries holds the material property and assets thereof (including any interest in, or right to earn an interest in, any Intellectual Property (as hereinafter defined)) are valid and subsisting agreements, documents and instruments in full force and effect, enforceable in accordance with the terms thereof, and such material properties and assets are in good standing under the applicable statutes and regulations of the jurisdictions in which they are situated, and all material leases, licenses and other agreements pursuant to which the Corporation or any Subsidiary derives the interests thereof in such property are in good standing. The Corporation does not know of any claim or the basis for any claim that might or could materially and adversely affect the right of the Corporation or any Subsidiary to use, transfer or otherwise exploit their respective assets, none of the properties (or any interest in, or right to earn an interest in, any property) of the Corporation or any Subsidiary is subject to any right of first refusal or purchase or acquisition right, and neither the Corporation nor any Subsidiary has a responsibility or obligation to pay any commission, royalty, licence fee or similar payment to any person with respect to the property and assets thereof; (i) with respect to each of the Leased Premises, the Corporation and the Subsidiaries, as applicable, occupies the Leased Premises and has the exclusive right to occupy and use the Leased Premises and each of the leases pursuant to which the Corporation or a Subsidiary occupies the Leased Premises is in good standing and in full force and effect, except where failure to be so would not reasonably be expected to result in a Material Adverse Effect. The performance of obligations pursuant to and in compliance with the terms of this Agreement and the completion of the transactions described herein by the Corporation, will not afford any of the parties to such leases or any other person the right to terminate such leases or result in any additional or more onerous obligations under such leases. The Corporation has provided the Agent with true and complete copies of all leases in respect of the Leased Premises; (j) neither the Corporation nor any of the Subsidiaries owns any real property, other than the Owned Real Property; (k) no legal or governmental proceedings or inquiries are pending to which the Corporation or any Subsidiary is a party or to which the property thereof is subject that would result in the revocation or modification of any certificate, authority, permit or license necessary to conduct the business now owned or operated by the Corporation or any Subsidiary which, if the subject of an unfavourable decision, ruling or finding could reasonably be expected to have a Material Adverse Effect and, to the knowledge of the Corporation, no such legal or governmental proceedings or inquiries have been threatened against or are contemplated with respect to the Corporation or any Subsidiary or with respect to the properties or assets thereof; (l) other than as disclosed to the Agent in writing, there are no actions, suits, judgments, investigations or proceedings of any kind whatsoever outstanding, pending or, to the best of the Corporation’s knowledge, threatened against or affecting the Corporation or any Subsidiary, or the directors, officers or employees thereof, at law or in equity or before or by any commission, board, bureau or agency of any kind whatsoever and, to the best of the Corporation’s knowledge, there is no basis therefore and neither the Corporation nor any Subsidiary is subject to any judgment, order, writ, injunction, decree, award, rule, policy or regulation of any governmental authority, which, either separately or in the aggregate, may have a Material Adverse Effect or that would materially adversely affect the ability of the Corporation to perform its obligations under this Agreement or the Warrant Indenture; (m) at the Closing Time or Option Closing Date, as applicable, all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Securities Laws necessary for the execution and delivery of this Agreement and the Warrant Indenture, the creation, issuance and sale of the Warrants and Additional Warrants and the consummation of the transactions contemplated hereby and thereby, will have been made or obtained, as applicable (other than the filing of reports required under Securities Laws within the prescribed time periods, which documents shall be filed as soon as practicable after the Closing Date and, in any event, within such deadline imposed by applicable Securities Laws); (n) the authorized and issued and outstanding share capital of the Corporation conforms to the description thereof contained in the Offering Documents. All of the issued and outstanding shares of the Corporation have been duly and validly authorized and issued as fully paid and non-assessable, and none of the outstanding common shares of the Corporation were issued in violation of the pre- emptive or similar rights of any securityholder of the Corporation; (o) at the Closing Time, all necessary corporate action will have been taken by the Corporation to create, allot and authorize the issuance of, as applicable, the Units, Unit Shares, Warrants, Additional Units, Additional Unit Shares, Additional Warrants, and, upon the due conversion of the Warrants and the Additional Warrants in accordance with the provisions thereof, the Warrant Shares, and all such securities will be validly issued as fully paid and non-assessable securities in the capital of the Corporation, and all such securities shall have the attributes corresponding in all material respects to the description thereof set forth in this Agreement; (p) the terms and the number of options to purchase Common Shares granted by the Corporation currently outstanding, including but not limited to stock options and warrants, conforms to the description thereof contained in the Offering Documents and, other than as contemplated by this Agreement or otherwise disclosed in the Prospectus, no person, firm or corporation has any agreement or option, right or privilege (contractual or otherwise) capable of becoming an agreement (including convertible or exchangeable securities and warrants) for the purchase or acquisition from the Corporation or any Subsidiary of any interest in any Common Shares or other securities of the Corporation or any Subsidiary whether issued or unissued; (q) there are no contracts or agreements between either the Corporation or a Subsidiary and any person granting such person the right to require the Corporation or the Subsidiary to file a registration statement under United States federal securities laws or, except as contemplated by this Agreement, a prospectus under Securities Laws, with respect to any securities of the Corporation or any Subsidiary owned or to be owned by such person that require the Corporation or a Subsidiary to include such securities in the securities qualified for distribution under the Offering Documents; (r) except in relation to BZAM Cannabis Corp. and Folium Life Science Inc., there are no voting trusts or agreements, shareholders’ agreements, buy-sell agreements, rights of first refusal agreements, agreements relating to restrictions on transfer, preemptive rights agreements, tag-along agreements, drag-along agreements or proxies relating to any of the securities of the Corporation or the Subsidiaries, to which the Corporation or any of the Subsidiaries is a party; (s) the Unit Shares, Additional Unit Shares, and Warrant Shares to be issued as described in this Agreement and in the Offering Documents have been, or prior to the Closing Time will be, duly authorized and reserved for issuance and, when issued, delivered and paid for in full, will be validly issued and fully paid shares in the capital of the Corporation, and will not have been issued in violation of or subject to any pre-emptive rights or contractual rights to purchase securities issued by the Corporation; (t) the Transfer Agent, at its principal office in Calgary, Alberta, is duly appointed as the registrar and transfer agent of the Corporation with respect to the Common Shares, and the Warrant Agent, at its principal office in Calgary, Alberta, will be, at the Closing Date, duly appointed as warrant agent with respect to the Warrants and Additional Warrants; (u) at the Closing Time, each of this Agreement and the Warrant Indenture shall have been duly authorized and executed and delivered by the Corporation and upon such execution and delivery, each shall constitute a valid and binding obligation of the Corporation and each shall be enforceable against the Corporation in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting creditors’ rights generally, general principles of equity, and the qualifications that equitable remedies may only be granted in the discretion of a court of competent jurisdiction and except that rights of indemnity, contribution, waiver and the ability to sever unenforceable terms may be limited under applicable laws; (v) no authorization, approval, consent, licence, permit, order or filing of, or with, any Governmental Authority or court, domestic or foreign, (other than those which have already been obtained or will be obtained prior to the Closing Date and except for post-closing filings to be made with the CSE and post-closing distribution reports to be filed and other post-closing filings to be made with certain securities regulatory authorities) is required for the valid sale and delivery of the Units or for the execution and delivery or performance of this Agreement, the ~~Subscription Agreements,~~ Warrant Indenture and the ~~Subscription Receipt~~ Offering Documents by the Corporation; (w) each of the execution and delivery of this Agreement and the ~~Acquisition Agreement~~ Warrant Indenture, the performance by the Corporation of its obligations hereunder and thereunder, the sale of the Units hereunder by the Corporation and the ~~performance~~ consummation of the transactions contemplated hereunder and thereunder, ~~the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does~~ (i) do not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), (A) any statute, ~~any indenture~~rule, ~~mortgage, deed of trust, loan agreement, lease~~ law or ~~other agreement~~ regulation applicable to the Corporation; (~~written or oral~~B) ~~or instrument to which~~ the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articlesconstating documents, by-laws or resolutions of the Corporation ~~or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties~~ which ~~violation or the consequences thereof would, alone or~~ are in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained effect at the ~~Meeting, no consent, approval, authorization, order, registration or qualification of or with~~ date hereof; (C) any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation or the laws of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, ~~debenture~~indenture, ~~indenture~~ contract, agreement, instrument, lease or other ~~instrument or~~ document to which the Corporation or any Subsidiary is a ~~party~~party or by which it is bound; or (D) any judgment, ~~any restriction upon~~ decree or ~~impediment to~~ order binding the ~~declaration~~ Corporation or ~~payment of dividends by~~ the ~~directors~~ property or assets of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canadaany Subsidiaries; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none of the Corporation, the Subsidiaries nor any other party to any agreement or instrument is in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in its properties, business or assets, and all agreements under which the Corporation or either of the Subsidiaries holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect; 4.1.30 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and~~, to the Best of the Co~~

Appears in 1 contract

Sources: Agency Agreement

Representations and Warranties of the Corporation. The Corporation hereby represents and warrants to the ~~Underwriters, the U.S. Affiliate~~ Agent (on its own behalf and ~~to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements), and acknowledges that~~ on behalf of each of ~~them is relying upon such representations and warranties, that~~the Purchasers) that as at the date hereof: ~~4.1.1~~ (a) each of the Corporation and the ~~Subsidiaries~~ Subsidiary has been duly incorporated, continued or amalgamated and is validly ~~subsisting~~ existing under the laws of its governing jurisdiction, ~~and~~ has all requisite ~~corporate~~ power and authority and is duly qualified to ~~own,~~ carry on its business as now conducted and to own or lease ~~and operate~~ its properties and assets and ~~conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2~~ the Corporation has all requisite corporate ~~power~~ power, capacity and authority to ~~enter into~~ carry out its obligations under this Agreement, the ~~Subscription Agreements, the Acquisition Agreement~~ Warrant Indenture and the ~~Subscription Receipt Agreement~~ Compensation Option Certificates, and any other document, filing, instrument or agreement delivered in connection with the Offering, and to carry out its obligations hereunder and thereunder and to authorize and issue the Offered Subscription Receipts and, upon exchange of the Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares in the capital of the Corporationthereunder; 4.1.3 each of the Corporation and the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 the authorized capital of the Corporation consists of an unlimited number of Common Shares and of preferred shares of which, as of the close of business on July 3, 2014, 94,792,906 Common Shares were issued and outstanding as fully paid and non-assessable shares in the capital of the Corporation; 4.1.5 except as set forth in Schedule B attached hereto, no person has any agreement, option, right or privilege (~~whether pre-emptive or contractual~~b) capable of becoming an agreement for the purchase, subscription or issuance of any securities of the Corporation from or by the Corporation and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement or instrument is in force or effect and there is no order or ruling which in any manner affects the voting or ~~Control~~ control of any of the securities of the ~~Corporation~~Corporation or the Subsidiary; ~~4.1.7~~ (c) the Corporation ~~has no material subsidiaries other than the Material Subsidiaries; 4.1.8 except as described in Schedule E~~ beneficially owns and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option controls all of the ~~holder into common~~ issued and outstanding voting shares and other securities of ~~Intertain at a price of $6.00 per common share;~~ the Subsidiary and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially ~~own,~~ own or exercise ~~Control~~ control or direction ~~over, 10% or more of~~ over the outstanding voting shares of any company other than ~~its Subsidiaries~~ the Subsidiary and ~~the Corporation beneficially owns, directly or indirectly~~ all of the issued and outstanding shares ~~in the capital~~ of the ~~Subsidiaries~~ Subsidiary are issued as fully paid and non-assessable shares, free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands ~~of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares~~ whatsoever and no ~~person~~ person, firm or corporation has any ~~right~~agreement, ~~agreement or~~ option, right or privilege (whether present or future, contingent or absolute, pre-emptive or ~~any right~~ contractual) capable of becoming ~~a right, agreement or option~~an agreement, for the purchase from the Corporation of any interest in any of ~~such~~ the shares or for the issue or allotment of any unissued shares in the capital of the ~~Subsidiaries~~ Subsidiary or any other security convertible into or exchangeable for any such shares; ~~4.1.9 neither the Corporation nor any of the Subsidiaries is:~~ (ad) ~~in breach~~ all consents, approvals, permits, authorizations or ~~violation of any of the terms or provisions of, or in default~~ filings as may be required under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation of the provisions of its articles, by-laws or resolutions or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 Applicable Securities Laws necessary for the execution and delivery of this Agreement, the ~~Subscription Agreements~~Warrant Indenture, the ~~Subscription Receipt Agreement~~ Compensation Options Certificates and the ~~Acquisition Agreement~~ sale of the Offered Units and the ~~performance~~ issuance and delivery of the Offered Securities and the Compensation Options, and the consummation of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregatehereby, have ~~a Material Adverse Effect; 4.1.11 other than as~~ been made or obtained or will ~~have been~~ be obtained prior to the Closing ~~Date~~ Date, as applicable, subject only to the Standard Listing Conditions; (e) the currently issued and ~~other than~~ outstanding Common Shares are listed and posted for trading on the ~~approval of the shareholders~~ TSXV and no order ceasing or suspending trading in any securities of the Corporation ~~required to be obtained at~~ or prohibiting the ~~Meeting, no consent, approval, authorization, order, registration or qualification~~ trading of ~~or with~~ any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the ~~transactions contemplated herein or therein~~Corporation’s issued securities has been issued and no proceedings for such purpose are pending or, or to the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital knowledge of the Corporation, ~~and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements~~threatened; ~~4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14~~ (f) the definitive form of ~~certificate, if any,~~ certificate representing the ~~Offered Subscription Receipts~~ Common Shares complies ~~in all material respects~~ with the requirements of the ~~TSX~~ OBCA, complies with the requirements of the TSXV Corporate Finance Manual and does not conflict with the constating documents of the ~~Corporation~~ Corporation; (g) the Audited Financial Statements and the ~~definitive form of certificate~~Interim Financial Statements: (i) have been prepared in accordance with International Financial Reporting Standards consistently applied throughout the period referred to therein; (ii) contain no misrepresentation and present fairly, ~~if any, representing the Underlying Shares complies~~ in all material ~~respects with~~ respects, the ~~requirements of~~ financial position (including the ~~TSX~~ assets and ~~does not conflict with the constating documents~~ liabilities, whether absolute, contingent or otherwise) of the Corporation as at such dates and results of operations of the Corporation for the periods then ended; and (iii) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the ~~laws~~ Corporation, and there has been no change in accounting policies or practices of ~~Québec~~the Corporation since the date of the Audited Financial Statements; ~~4.1.15~~ (h) the Corporation: (i) has not made any significant acquisition, as such term is defined in Part 8 of NI 51-102, in its current financial year or prior financial years in respect of which historical and/or pro forma financial statements or other information would be required to be included or incorporated by reference into the Preliminary Prospectus or Final Prospectus and for which a business acquisition report has not been filed under NI 51-102; (ii) has not entered into any agreement or arrangement in respect of a transaction that would be a significant acquisition for purposes of Part 8 of NI 51-102; and (iii) there are no proposed acquisitions by the Corporation that have progressed to the state where a reasonable person would believe that the likelihood of the Corporation completing the acquisition is high and would be a significant acquisition for the purposes of Part 8 of NI 51-102 if completed as of the date of the Final Prospectus; (i) the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its ~~securities~~ shares and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such ~~securities within~~ securities; (j) all taxes (including income tax, capital tax, payroll taxes, employer health tax, workers’ compensation payments, property taxes, custom and land transfer taxes), duties, royalties, levies, imposts, assessments, deductions, charges or withholdings and all liabilities with respect thereto including any penalty and interest payable with respect thereto (collectively, “Taxes”) due and payable by each of the ~~last 12 months other than in connection~~ Corporation and the Subsidiary have been paid. All tax returns, declarations, remittances and filings required to be filed by each of the Corporation and the Subsidiary have been filed with all appropriate governmental authorities and all such returns, declarations, remittances and filings are complete and accurate and no material fact or facts have been omitted therefrom which would make any of them misleading. Except as disclosed to the ~~purchases~~ Agent, neither the Corporation nor the Subsidiary has received any written notice regarding the examination of ~~Common Shares made in accordance~~ any tax return of the Corporation or the Subsidiary and there are no issues or disputes outstanding with any governmental authority respecting any Taxes that have been paid, or may be payable, by the Corporation or the Subsidiary; (k) the Corporation’s ~~normal course issuer bid~~Auditors, which are the auditors who audited the Audited Financial Statements and who provided their audit report thereon, are independent public accountants under Applicable Securities Laws; ~~4.1.16 the Corporation~~ (l) there has ~~not completed any~~ never been a “~~significant acquisition~~reportable disagreement” (~~as such term is defined in~~ within the meaning of National Instrument ~~51-~~51- 102 – Continuous Disclosure Obligations) ~~since December 31~~between the Corporation and the Corporation’s Auditors or with any former auditors of the Corporation; (m) the Corporation maintains a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences; (n) the Corporation is in compliance with the certification requirements contained in National Instrument 52-109 – Certification of Disclosure in Issuers’ Annual and Interim Filings of the Canadian Securities Administrators with respect to the Corporation’s annual and interim filings with Canadian securities regulators; (o) the audit committee of the Corporation is comprised and operates in accordance with the requirements of National Instrument 52-110 – Audit Committees of the Canadian Securities Administrators, ~~2013~~ the majority of whom are “independent” within the meaning of such instrument; (p) as at the Closing Date, except for the Warrants, Compensation Options and as set forth in Schedule “A” to this Agreement, no holder of outstanding securities of the Corporation will be entitled to any pre-emptive or any similar rights to subscribe for any of the Common Shares or other securities of the Corporation and, except as disclosed in Schedule “A”, no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any shares in the capital of the Corporation are outstanding; (q) no legal or governmental proceedings are pending to which the Corporation or the Subsidiary is a party or to which either of their properties is subject that would result individually or in the aggregate in a Material Adverse Change and, to the knowledge of the Corporation and the Subsidiary, no such proceedings have been threatened against or are contemplated with respect to the Corporation or the Subsidiary or any of their respective properties; (r) each of the Corporation and the Subsidiary is the legal and beneficial owner, free of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoever, of the interests in personal property referred to as owned by it in the Disclosure Record and described in the Disclosure Record, and all agreements under which each of the Corporation and the Subsidiary holds an interest in personal property are in good standing according to their terms; (s) the minute books and records of the Corporation and the Subsidiary made available to counsel for the Agent in connection with its due diligence investigations are all of the minute books and records of the Corporation and the Subsidiary and contain copies of all material proceedings of the shareholders, the board of directors and all committees of the board of directors of the Corporation and the Subsidiary to the date of review of such corporate records and minute books and there have been no other meetings, resolutions or proceedings of the shareholders, board of directors or any committees of the board of directors of the Corporation and the Subsidiary not reflected in such minute books and other records; (t) the Corporation is, and will be at the Closing Time, an Eligible Issuer and a reporting issuer in the Qualifying Jurisdictions under Applicable Securities Laws and is eligible to file a short form prospectus under NI 44-101; the Corporation is not in default in any material respect of any requirement of Applicable Securities Laws and the Corporation is not included in a list of defaulting reporting issuers maintained by the Canadian Securities Regulators. In particular, without limiting the foregoing, the Corporation is in compliance at the date hereof with its obligations to make timely disclosure of all material changes relating to it and, other than in respect of any material change reports previously filed on a confidential basis and thereafter made public or any material change reports previously filed on a confidential basis and in respect of which no material change ever resulted, no such disclosure has been made on a confidential basis and there is no material change relating to the ~~Proposed Acquisition~~Corporation which has occurred and with respect to which the requisite material change statement has not been filed, except to the extent that the Offering and the transactions contemplated thereunder may constitute a material change; (u) on November 3, 2014, the Corporation ~~is not contemplating any such “significant acquisition”~~filed the Preliminary Prospectus in each of the Qualifying Jurisdictions and obtained, pursuant to the Passport System, a receipt dated November 4, 2014 from the Principal Regulator therefor, evidencing the issuance by the Canadian Securities Regulators of receipts for the Preliminary Prospectus; ~~4.1.17 there is~~ (v) the execution and delivery of each of this Agreement, the Warrant Indenture and the Compensation Option Certificates and the compliance with all provisions contemplated thereunder, the offering and sale of the Offered Units and the issuance of the Offered Securities and the Compensation Options does not and will not: (i) require the consent, approval, authorization, registration or qualification of or with any governmental authority, stock exchange, securities regulatory authority or other third party, except: (A) such as have been obtained; or (B) such as may be required and will be obtained by the Closing Time; (ii) result in a breach of or default under, nor create a state of facts which, after notice or lapse of time or both, would result in a breach of or default under, nor conflict with: 1. any of the terms, conditions or provisions of the constating documents or resolutions of the ~~Corporation~~ shareholders, board of directors or in any ~~Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which~~ committee of the ~~Corporation is a party, any restriction upon or impediment to the declaration or payment~~ board of ~~dividends by the~~ directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment LettersSubsidiary; ~~4.1.18 the Corporation is not aware, based on its due diligence~~ 2. any Applicable Law applicable to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the ~~Subsidiaries~~Subsidiary, ~~at law~~ including, without limitation, Applicable Securities Laws, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Corporation; or 3. any Material Agreement; or (iii) give rise to any lien, charge or claim in ~~equity~~ or ~~before~~ with respect to the properties or ~~by any federal, provincial, municipal~~ assets now owned or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued hereafter acquired by the Corporation or the ~~validity~~ Subsidiary or the acceleration of or the maturity of any ~~action taken~~ debt under any indenture, mortgage, lease, agreement or ~~to be taken by~~ instrument binding or affecting the Corporation ~~pursuant to or in connection with this Agreement~~ or the ~~Acquisition Agreement~~Subsidiary or any of their respective properties; ~~4.1.26 all necessary corporate action has been taken by~~ (w) upon the ~~Corporation to authorize the execution~~execution and delivery thereof, ~~delivery and performance~~ each of this Agreement, the ~~Subscription Receipt Agreement~~ Warrant Indenture and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none of the Corporation, the Subsidiaries nor any other party to any agreement or instrument is in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each Compensation Option Certificates shall constitute a valid and binding obligation of the Corporation and each shall be enforceable against it the Corporation in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors ~~generally,~~ generally and except as limited by the application of equitable principles when equitable remedies are ~~sought~~ sought, and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, ~~each~~ may be limited by ~~applicable law~~Applicable Law; ~~4.1.29~~ (x) at the Closing Time, all necessary corporate action will have been taken by the Corporation to: (i) validly create, authorize and issue the Warrants, Additional Warrants and the Compensation Options; and (ii) allot, reserve and authorize the issuance of each of the Unit Shares, as well as the Warrant Shares, Additional Shares, Compensation Warrants, and the Compensation Shares (upon the due exercise of the Warrants, Additional Warrants, Compensation Options, or Compensation Warrants, respectively, in accordance with the terms thereof) as fully paid and non-assessable securities in the capital of the Corporation; (y) the authorized capital of the Corporation consists of an unlimited number of Common Shares of which 18,912,155 Common Shares are issued and outstanding as fully paid and non-assessable as at the date hereof; (z) other than as contemplated hereby, there is no person acting or purporting to act at the request or on behalf of the Corporation that is entitled to any brokerage or finder’s fee in connection with the transactions contemplated by this Agreement; (aa) no person is entitled to demand the proceeds of the Offering or any part thereof; (bb) all disclosure filings required to be made by the Corporation pursuant to Applicable Securities Laws have been made and such disclosure and filings contained no misrepresentation as at the respective dates thereof; (cc) neither the Corporation nor the Subsidiary has knowledge of any legislation, or proposed legislation (published by a legislative body), which it anticipates will materially and adversely affect the business, affairs, operations, assets, liabilities (contingent or otherwise) or prospects of the Corporation or the Subsidiary; (dd) each of the Corporation and the ~~Subsidiaries~~ Subsidiary is ~~the owner~~ in material compliance with all Applicable Laws respecting employment and employment practices, terms and conditions of ~~its properties~~employment, ~~business~~ pay equity and assets or the interests in its properties, business or assets, and all agreements under which the Corporation or either of the Subsidiaries holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effectwages; ~~4.1.30 the Corporation is a “reporting issuer”,~~ (ee) there has not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been ~~made on a confidential basis that is still maintained on a confidential basis,~~ and there is ~~no material change relating~~ not currently any labour disruption or conflict which could reasonably be expected to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the Cocau

Appears in 1 contract

Sources: Agency Agreement

Representations and Warranties of the Corporation. The Corporation represents and warrants to the ~~Underwriters~~Underwriter, as at the ~~U.S. Affiliate~~ date hereof and to at the ~~Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements)~~Closing Time, and acknowledges that ~~each of them~~ the Underwriter is relying upon such representations and warranties, that: ~~4.1.1~~ (a) each of the Corporation and the Subsidiaries has been duly incorporated, continued or amalgamated and organized and is validly ~~subsisting~~ existing under the laws of the jurisdiction of its ~~governing jurisdiction~~incorporation, continuation or amalgamation and has all requisite corporate authority and power to carry on its business, as now conducted and ~~authority~~ as presently proposed to be conducted by it, and to own, lease and operate its properties and ~~assets and conduct its business as currently conducted and as currently proposed to be conducted~~assets; ~~4.1.2~~ (b) each of the Corporation and the Subsidiaries is duly registered and qualified to carry on business and is validly subsisting under the laws of each jurisdiction in which it carries on its business; (c) the Corporation has ~~all requisite corporate power~~ no subsidiaries other than TAG Oil (NZ) Limited, TAG Oil (Canterbury) Limited and ~~authority to enter into this Agreement~~Durum Energy (PNG) Limited and, other than the Subsidiaries, the ~~Subscription Agreements~~Corporation is not affiliated with, nor is it a holding corporation of, any other body corporate, nor is it a partner of any partnership nor does it own any securities of any other entity; (d) other than TAG Oil (NZ) Limited, none of the ~~Acquisition Agreement~~ Subsidiaries conducts any active business operations; (e) the minute book of the Corporation and each of the ~~Subscription Receipt Agreement~~ Subsidiaries contains full, true and ~~carry out its obligations hereunder~~ correct copies of the articles and ~~thereunder~~ by-laws or other constating documents of the Corporation and each of the Subsidiaries and, on or before the Closing Time, will contain copies of all minutes of all meetings and all consent resolutions of the directors, committees of directors and shareholders of the Corporation and all such meetings were duly called and properly held and all such resolutions were properly adopted except to ~~authorize and issue~~ the extent that any such failure could not reasonably be expected to have a material adverse effect on the Corporation or any of the Subsidiaries; (f) the Offered ~~Subscription Receipts and, upon exchange of the Offered Subscription Receipts, the Underlying~~ Shares will be duly and validly authorized and issued as fully paid and non-assessable Common Shares in at the ~~capital~~ Closing Time; (g) the Broker Warrants will be duly and validly created, authorized and issued at the Closing Time; (h) when issued pursuant to the terms of the ~~Corporation; 4.1.3 each~~ Warrant Certificates (including payment of the ~~Corporation~~ exercise price thereof) the Warrant Shares will be duly and ~~the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business~~ validly created, authorized and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 the authorized capital of the Corporation consists of an unlimited number of Common Shares and of preferred shares of which, as of the close of business on July 3, 2014, 94,792,906 Common Shares were issued ~~and outstanding~~ as fully paid and non-assessable ~~shares in~~ Common Shares; (i) at the ~~capital~~ Closing Time, the form and terms of the ~~Corporation; 4.1.5 except as set forth in Schedule B attached hereto~~definitive certificates representing the Common Shares, no person has any agreement, option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for the purchase, subscription or issuance of any securities of the Corporation from or Broker Warrants and Warrant Shares will have been duly approved and adopted by the Corporation and ~~no rights~~comply with all legal requirements relating thereto, ~~warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding~~including the requirements of the Exchange; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material Subsidiaries; 4.1.8 except as described in Schedule E and except for (ij) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Subsidiaries ~~is: (a)~~ is in default or breach or violation of, and the execution and delivery of, and the performance and compliance with the terms of any of the ~~terms or provisions~~ Material Agreements and the Offering do not and will not: (i) result in any breach of, or in constitute a default ~~under (whether~~ under, and do not and will not create a state of facts which, after notice or lapse of time or both) , would result in a breach of or constitute a default under, any ~~indenture, mortgage, deed of trust, loan agreement~~ term or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation provision of the ~~provisions of its~~ articles, by-laws or resolutions ~~or any statute or any order, rule or regulation~~ of ~~any court or governmental agency or body having jurisdiction over it~~ the Corporation or any of ~~its properties, which violation or~~ the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions ofSubsidiaries, or ~~constitute a default under (whether after notice or lapse of time or both),~~ any indenture, mortgage, ~~deed of trust~~note, ~~loan agreement~~contract, ~~lease or other~~ agreement (written or oral) ), instrument, lease or ~~instrument~~ other document to which the Corporation or any of the Subsidiaries is a party or by which it is ~~bound~~ bound, or any judgment, decree, order, statute, rule or regulation applicable to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the ~~shareholders of~~ Subsidiaries, which default or breach might reasonably be expected to materially adversely affect the ~~Corporation required to be obtained at the Meeting~~assets, ~~no consent~~liabilities, ~~approval~~business, ~~authorization~~operations, ~~order, registration~~ capital or ~~qualification of~~ condition (financial or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents otherwise) of the Corporation or the ~~laws of Québec; 4.1.15 the Corporation has not declared~~ properties or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents assets of the Corporation together with the Subsidiaries (taken as a whole); (ii) create a right for any other party to terminate, accelerate or in any ~~Material Agreement~~way alter any other rights existing under any indenture, mortgage, note, ~~debenture~~contract, ~~indenture~~ agreement (written or oral), instrument, lease or other ~~instrument or~~ document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none of the Corporation, the Subsidiaries nor any other party to any agreement or instrument is in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party ~~and no event has occurred~~ or by which ~~with notice~~ any of them is bound which, upon exercise of such right, might reasonably be expected to materially adversely affect the assets, liabilities, business, operations, capital or ~~lapse of time~~ condition (financial or ~~both would constitute such a default on the part~~ otherwise) of the Corporation together with the Subsidiaries (taken as a whole) or the ~~Subsidiaries, in any such case which default~~ properties or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation assets of the Corporation ~~enforceable against it in accordance~~ together with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in its properties, business or assets, and all agreements under which the Corporation or either of the Subsidiaries holds an interest in (taken as a ~~property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect~~whole); 4.1.30 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the Co

Appears in 1 contract

Sources: Underwriting Agreement (Tag Oil LTD)

Representations and Warranties of the Corporation. (1) The Corporation hereby represents and warrants to the ~~Underwriters~~Agents, intending that the ~~U.S. Affiliate and to~~ same may be relied upon by the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements), and acknowledges that each of them is relying upon such representations and warrantiesAgents, that: ~~4.1.1~~ (a) each of the Corporation and the Material Subsidiaries has been duly incorporated, continued or amalgamated and organized and is validly ~~subsisting~~ existing under the laws of its ~~governing jurisdiction~~jurisdiction of incorporation, ~~and~~ continuance or amalgamation, has all requisite corporate power and authority to carry on its business as now conducted and as contemplated by the Prospectuses, and to own, lease and operate its properties and ~~assets~~ assets, and ~~conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2~~ the Corporation has all requisite ~~corporate~~ power and authority to ~~enter into this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement and~~ carry out its obligations ~~hereunder and thereunder and to authorize and issue~~ under this Agreement; (b) the ~~Offered Subscription Receipts and, upon exchange~~ only material operating subsidiaries of the ~~Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares~~ Corporation are listed in ~~the capital of the Corporation~~Schedule A; ~~4.1.3~~ (c) the Corporation or one of its Material Subsidiaries owns the issued and outstanding shares of each of the ~~Corporation~~ Material Subsidiaries as set out in Schedule A, in each case free and clear of any pledge, lien, security interest, charge, claim or encumbrance, other than as is described in the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse EffectProspectuses; ~~4.1.4~~ (d) no order, ruling or determination having the ~~authorized capital~~ effect of ceasing, suspending or restricting trading in any Common Shares of the Corporation ~~consists~~ or the sale of ~~an unlimited number of~~ the Common Shares has been issued and no proceedings, investigations or inquiries for such purpose are pending or, to the Corporation’s knowledge, threatened; (e) the Corporation’s common shares are posted and listed for trading on the Exchanges and the Corporation is not in default in any material respect of ~~preferred shares of which, as~~ any of the ~~close~~ listing requirements of ~~business on July 3, 2014, 94,792,906 Common Shares were issued and outstanding~~ the Exchanges; (f) other than options under the Corporation’s Stock Option Plans or as ~~fully paid and non-assessable shares~~ set out in the ~~capital of~~ Prospectuses, the ~~Corporation; 4.1.5 except as set forth in Schedule B attached hereto, no person~~ Corporation is not a party to and has not entered into any agreement, warrant, option, right or privilege ~~(whether pre-emptive or contractual)~~ reasonably capable of becoming an ~~agreement~~ agreement, for the purchase, subscription or issuance of any Common Shares or securities of the Corporation from or by the Corporation and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material Subsidiaries; 4.1.8 except as described in Schedule E and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for ~~any such~~ common shares; ~~4.1.9 neither~~ (g) as at February 16, 2007, the authorized share capital of the Corporation consisted of an unlimited number of Common Shares and an unlimited number of First Preferred shares, of which 207,938,661 Common Shares and no First Preferred shares are issued and outstanding; (h) the Corporation and each of the Material Subsidiaries have conducted and are conducting their respective businesses in material compliance with all applicable laws, rules, regulations, tariffs, orders and directives, including without limitation, all laws, regulations and statutes relating to mining and to mining claims, concessions or leases, and environmental, health and safety laws, rules, regulations, or policies or other lawful requirements of any governmental or regulatory bodies having jurisdiction over the Corporation and the Material Subsidiaries in each jurisdiction in which the Corporation or the Material Subsidiaries carries on their respective businesses, other than those in respect of which the failure to comply would not individually or in the aggregate be material and adverse to the Corporation and the Material Subsidiaries (taken as a whole). Each of the Corporation and the Material Subsidiaries hold all certificates, authorities, permits, licenses, registrations and qualifications (collectively, the “Authorities”) in all jurisdictions in which each carries on its business and which are material for and necessary or desirable to carry on their respective businesses as now conducted. To the best of the Corporation’s knowledge, information and belief all the Authorities are valid and existing and in good standing and none of the Authorities contain any burdensome term, provision, condition or limitation which has or is likely to have any material adverse effect on the business of the Corporation and the Material Subsidiaries (taken as a whole) as now conducted or as currently proposed to be conducted. None of the Corporation nor any of the Material Subsidiaries ~~is: (a) in breach~~ has received any notice of proceedings relating to the revocation or ~~violation~~ modification of any of the ~~terms or provisions of~~Authorities which, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone singly or in the aggregate, ~~have~~ if the subject of an unfavourable decision, ruling or finding, would materially adversely affect the business, operations, financial condition, or income of the Corporation and the Material Subsidiaries (taken as a ~~Material Adverse Effect; or~~whole) or any notice of the revocation or cancellation of, or any intention to revoke or cancel, any of the mining claims, concessions or leases comprising: (bi) the Bogoso/Prestea property; (ii) the Prestea Underground property; (iii) the Wassa property; and (iv) the Hwini-Butre and B▇▇▇▇ properties. The above-noted properties are referred to, collectively, as the “Material Resource Properties” and each such property is as described in ~~violation of~~ the ~~provisions~~ Prospectuses; (i) the Corporation and each of its ~~articles~~Material Subsidiaries have good and marketable title to all assets owned by them free and clear of all liens, ~~by-laws or resolutions or any statute or any order~~charges and encumbrances, ~~rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone~~ other than as set forth in Schedule C hereto or in the ~~aggregate~~Prospectuses and other than such liens, charges and encumbrances that are not individually or in the aggregate material to the Corporation and the Material Subsidiaries taken as a whole; (j) except as set out in the Prospectuses or as are not individually or in the aggregate material to the Corporation and the Material Subsidiaries (taken as a whole), or other than as would not have a material effect on the value of such interests, all interests in the Material ~~Adverse Effect; 4.1.10~~ Resource Properties are owned, leased or held by the ~~execution~~ Corporation or its Material Subsidiaries as owner or lessee thereof, are so owned with good and ~~delivery~~ marketable title or are so leased with good and valid title, are in good standing, are valid and enforceable, are free and clear of ~~this Agreement~~any liens, ~~the Subscription Agreements~~charges or encumbrances, ~~the Subscription Receipt Agreement~~ and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result no royalty is payable in ~~a breach or violation~~ respect of any of them; no other material property rights are necessary for the conduct or currently intended conduct of the Corporation’s or the Material Subsidiaries’ business and there are no restrictions on the ability of the Corporation or the Material Subsidiaries to use, transfer or otherwise exploit or explore (as the case may be) any such property rights, except as set out in the Prospectuses; (k) (A) the Corporation and its Material Subsidiaries are in material compliance with all material terms or and provisions ofof all contracts, ~~or constitute~~ agreements, indentures, leases, instruments and licences material to the conduct of their businesses taken as a ~~default under~~ whole and (~~whether after notice or lapse~~ B) all such contracts, agreements, indentures, leases, policies, instruments and licences are valid and binding in accordance with their terms and are in full force and effect; (l) except in each case as publicly disclosed: (i) to the best of ~~time or both)~~the Corporation’s knowledge, ~~any indenture, mortgage, deed~~ information and belief none of ~~trust, loan agreement, lease or other agreement~~ the real property (~~written or oral~~and the buildings constructed thereon) ~~or instrument to~~ in which the Corporation or any of the Material Subsidiaries is has a ~~party~~ direct or by indirect interest, whether leasehold, fee simple or otherwise (the “Real Property”), or upon or within which it has operations, is ~~bound~~ currently subject to any judicial or ~~to which any of its property or assets is subject, other than any breach or violation~~ administrative proceeding alleging the ~~consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any~~ violation of ~~the provisions of the articles~~any federal, ~~by-laws~~ provincial, state or ~~resolutions of the Corporation~~ municipal environmental, health or ~~any~~ safety statute or regulation, domestic or foreign, or is subject to any ~~order, rule or regulation~~ investigation concerning whether any remedial action is needed to respond to a release of any ~~court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a~~ Hazardous Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation or the laws of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as ~~such term is~~ defined ~~in National Instrument 51-102 – Continuous Disclosure Obligations~~below) ~~since December 31, 2013 and, other than~~ into the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, environment; (ii) ~~the supplemental debenture indenture dated February 7~~except in material compliance with applicable environmental laws, ~~2013 between~~ neither the Corporation ~~and Computershare Trust Company~~ nor any Material Subsidiary or any occupier of ~~Canada~~the Real Property, has filed any notice under any federal, provincial, state or municipal law, domestic or foreign, indicating past or present treatment, storage or disposal of a Hazardous Material; (iii) except in material compliance with applicable environmental laws, none of the ~~subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto~~Real Property has at any time been used by the Corporation or a Material Subsidiary or, to the best of the Corporation’s knowledge, information and belief by any other occupier, as a waste storage or waste disposal site; (iv) the ~~Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware~~Corporation, ~~based~~ on ~~its due diligence to date~~ a consolidated basis, has no contingent liability of ~~the Target, including financial due diligence, of any fact or circumstance~~ which ~~would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and~~ it has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or knowledge in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none of the Corporation, the Subsidiaries nor any ~~other party to any agreement or instrument is in material default in the observance or performance~~ release of any ~~term~~ Hazardous Material on or ~~obligation to be performed by it under any such agreement or instrument to which either~~ into the ~~Corporation or~~ environment from any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in its properties, business or assets, and all agreements under which the Corporation or either of the Subsidiaries holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect; 4.1.30 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the CoReal

Appears in 1 contract

Sources: Agency Agreement (Golden Star Resources LTD)

Representations and Warranties of the Corporation. The Corporation ~~represents~~ represents, warrants and ~~warrants to~~ covenants that, as of the ~~Underwriters,~~ date given above and at the U.S. Affiliate and to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements), and acknowledges that each of them is relying upon such representations and warranties, thatClosing: ~~4.1.1 each of~~ (a) the Corporation is a valid and ~~the Subsidiaries is validly~~ subsisting ~~under the laws of its governing jurisdiction,~~ corporation amalgamated and has all requisite corporate power and authority to own, lease and operate its properties and assets and conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2 the Corporation has all requisite corporate power and authority to enter into this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement and carry out its obligations hereunder and thereunder and to authorize and issue the Offered Subscription Receipts and, upon exchange of the Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares in ~~the capital of the Corporation; 4.1.3 each of the Corporation and the Subsidiaries is current with all material filings required to be made~~ good standing under the laws of the ~~jurisdictions~~ Province of British Columbia; (b) the Corporation is duly registered and licensed to carry on business in each jurisdiction in which it ~~exists or~~ carries on ~~any material~~ business ~~and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except~~ or owns property where required under the ~~absence~~ laws of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effectthat jurisdiction; ~~4.1.4~~ (c) as at the date of this Agreement the authorized capital of the Corporation consists of an unlimited ~~number~~ Common Shares, of which 34,933,072 Common Shares ~~and of preferred shares of which, as of the close of business on July 3, 2014, 94,792,906 Common Shares were~~ are issued and outstanding as fully paid and non-assessable as at August 14, 2019, subject to the following: (i) Common Shares to be issued in connection with the U.S. Public Offering; (ii) Common Shares to be issued in connection with the proposed purchase by Liberty Metals & Mining Holdings, LLC (“Liberty”) of 7,575,758 common shares for aggregate gross proceeds of US$10,000,000; and (iii) Common Shares to be issued in connection with the ~~capital~~ US$1,000,000 incentive fee payable to the lenders (the “Lenders”) under the proposed credit agreement between the Corporation, Platinum Group Metals (RSA) Proprietary Limited, Sprott Private Resource Lending II (Collector), LP and the Lenders (the “Sprott Credit Agreement”), in consideration for the advance of the ~~Corporation~~credit facility under the Sprott Credit Agreement; ~~4.1.5 except as set forth in Schedule B attached hereto~~(d) all financial statements, ~~no person has any agreement~~information circulars, ~~option~~news releases, ~~right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for the purchase, subscription or issuance of any securities of the Corporation from or~~ material change reports and other documents filed by the Corporation with the Commissions in Canada on the System for Electronic Document Analysis and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material Subsidiaries; 4.1.8 except as described in Schedule E and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Subsidiaries is: (a) in breach or violation of any of the terms or provisions of, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation of the provisions of its articles, by-laws or resolutions or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of Retrieval or with ~~any person, court or Governmental Authority or body is required for execution~~ the United States Securities and ~~delivery of this Agreement,~~ Exchange Commission (the ~~Subscription Agreements~~ “Disclosure Record”) within the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts past 12 months were true and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies correct in all material respects ~~with~~ and did not contain any misrepresentation (as defined in the ~~requirements~~ Securities Act (British Columbia)) as at the respective dates of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation or the laws of Québecsuch filings; ~~4.1.15~~ (e) except as qualified by the ~~Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or~~ disclosure in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure ~~Obligations) since December 31, 2013 and, other than the Proposed Acquisition~~Record, the Corporation is ~~not contemplating any such “significant acquisition”; 4.1.17 there is not, in~~ the ~~constating documents~~ beneficial owner of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none of the Corporation, the Subsidiaries nor any other party to any agreement or instrument is in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in ~~its~~ the properties, business or ~~assets~~assets referred to in the Disclosure Record; (f) except as qualified by the disclosure in the Disclosure Record, any and all agreements ~~under~~ pursuant to which the Corporation holds its material assets or ~~either~~ is entitled to the use of material assets are valid and subsisting agreements in full force and effect, enforceable in accordance with their respective terms and the Corporation is not in material default of any of the ~~Subsidiaries holds an interest in a property~~provisions of any such agreements nor has any such default been alleged, ~~business or asset~~ and the Corporation is not aware of any disputes with respect thereto and such assets are in good standing ~~according~~ under the applicable statutes and regulations of the jurisdictions in which they are situate, and all leases, licences, concessions, and claims pursuant to ~~their terms except where~~ which the ~~failure~~ Corporation derives its interests in such material assets are in good standing and there has been no material default under any such leases, licenses, concessions, and claims and all taxes required to be in paid with respect to such ~~good standing does not and will not~~ assets to the date hereof have ~~a Material Adverse Effect~~been paid; ~~4.1.30 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained~~ (g) except as qualified by the ~~Securities Regulators of each of~~ disclosure in the ~~Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing~~Disclosure Record, the Corporation has ~~at all relevant times complied with~~ conducted and is conducting its ~~obligations to make timely disclosure of~~ business in compliance in all material ~~changes~~ respects with all applicable laws, rules, regulations, tariffs, orders and directives of each jurisdiction in which it carries on business (except when the failure to do so would not have a material adverse effect) and possesses all material certificates, authorities, permits or licences issued by the appropriate provincial, state, municipal, federal or other governmental or regulatory agency or body necessary to carry on the business currently as carried on by it, is in compliance in all material respects with such certificates, authorities, permits and licences and with all laws, regulations, tariffs, rules, orders and directives material to its operations, including, without limitation, all laws, regulations and statutes relating to itmining claims, ~~no such disclosure~~ concessions, licenses, leases or other instruments and the Corporation has ~~been made on a confidential basis that is still maintained on a confidential basis, and there is no material change~~ not received any notice of proceedings relating to the revocation or modification of any such certificates, authorities, permits, licences, mining claims, concessions, leases or other instruments conferring mineral rights which, singly or in the aggregate, if the subject of an unfavourable decision, order, ruling or finding, would materially and adversely affect the conduct of its business, operations, financial condition or income of the Corporation ~~which has occurred~~ and ~~with respect to which the requisite material change report~~ it has not ~~been filed with a Securities Regulator in~~ received notice of the ~~Provinces of British Columbia~~revocation or cancellation of, ~~Alberta~~or any intention to revoke or cancel, ~~Saskatchewan~~any such licence, ~~Manitoba~~permit, ~~Ontario~~ approval, consent, certificate, registration or ~~Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof~~authorization; ~~4.1.31 all forward-looking information and~~ (h) the financial statements of the Corporation contained in the Disclosure Record, filed with any of the Commissions have all been prepared in accordance with Canadian generally accepted accounting principles, accurately reflect the financial position and all material liabilities (accrued, absolute, contingent or otherwise) of the Corporation as of the date thereof; (i) the Corporation 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 Securities Laws and the Business Corporations Act (British Columbia) in relation to the issue and trading of its securities and in all matters relating to the private placement of the Offered Securities; (j) there is not presently any material change, as defined in the Securities Laws, relating to the Corporation or change in any material fact, as defined in the Securities Laws, relating to any of the Purchased Securities, which has not been fully disclosed in accordance with the requirements of the Securities Laws and the policies of the Stock Exchanges; (k) the issue and sale of the Offered Securities by the Corporation does not and will not conflict with, and does not and will not result in a breach of, any of the terms of the Corporation’s ~~Information~~ constating documents or any agreement or instrument to which the Corporation is a party or by which it is bound; (l) except as described in the Disclosure Record, ~~including~~ the Corporation is not a party to any ~~forecasts~~ actions, suits or proceedings which could materially affect its business or financial condition, and ~~estimates~~to the best of the Corporation’s knowledge, ~~expressions of opinion~~no such actions, ~~intention and expectation~~ suits or proceedings are contemplated or have been ~~based~~ threatened; (m) there are no judgments against the Corporation which are unsatisfied, nor is the Corporation subject to any consent decrees or injunctions; (n) this Agreement has been or will be at the Closing Date duly authorized by all necessary corporate action on ~~assumptions that are reasonable in~~ the ~~circumstances~~part of the Corporation, and the Corporation has ~~updated such forward-looking information~~ full corporate power and ~~statements as required by and in compliance with Applicable Securities Laws~~authority to undertake the Offering; ~~4.1.32 the documents forming~~ (o) to the Corporation’s ~~Information Record complied~~ knowledge, it is not in ~~all~~ default in any material ~~respects with Canadian~~ respect of any of the requirements of the Securities Laws at or any of the ~~time they were filed and such documents~~administrative policies, ~~and~~ notices or rules, as applicable, of the ~~statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed~~Toronto Stock Exchange; ~~4.1.33~~ (p) no order ceasing or suspending trading in securities of the ~~Circular will comply in~~ Corporation nor prohibiting the sale of such securities has been issued to and is outstanding against the Corporation 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; (q) the Corporation has filed all ~~material respects with Canadian Securities Laws at the time it will be filed~~ federal, provincial, local and ~~will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact~~ foreign tax returns which are required to be ~~stated in such document~~ filed, or ~~necessary~~ have requested extensions thereof, and have paid all taxes required to ~~make~~ be paid by them and any ~~statement in such document not misleading; 4.1.34 no securities commission~~other assessment, ~~stock exchange~~ fine or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose andpenalty levied against them, to the ~~Best~~ extent that any of the Coforegoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith; and (r) the Corporation has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable and there are no liens for taxes on the assets of the Corporation or its subsidiaries except for taxes not yet due, and there are no audits of any of the tax returns of the Corporation which are known by the Corporation’s management to be pending, other than such audits which are currently being contested in good faith.

Appears in 1 contract

Sources: Subscription Agreement (Deepkloof LTD)

Representations and Warranties of the Corporation. (1) The Corporation hereby represents and warrants to the U.S. Underwriters, intending that the same may be relied upon by the U.S. Affiliate and to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements), and acknowledges that each of them is relying upon such representations and warranties, Underwriters that: ~~4.1.1~~ (a) each of the Corporation and the Material Subsidiaries has been duly incorporated or amalgamated and organized and is validly ~~subsisting~~ existing under the laws of its ~~governing jurisdiction~~jurisdiction of incorporation, ~~and~~ has all requisite corporate power and authority to carry out its business as now conducted and as contemplated by the U.S. Shelf Prospectus Supplement and the documents incorporated by reference therein, and to own, lease and operate its properties and ~~assets~~ assets, and ~~conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2~~ the Corporation has all requisite ~~corporate~~ power and authority ~~to enter into this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement and~~ carry out its obligations ~~hereunder and thereunder and to authorize and issue the Offered Subscription Receipts and, upon exchange~~ under this agreement; (b) The only major operating subsidiaries of the ~~Offered Subscription Receipts~~Corporation are listed in Schedule A; (c) the Corporation or one of its subsidiaries owns the issued and outstanding shares of each of the Material Subsidiaries as set out in Schedule A, in each case free and clear of any pledge, lien, security interest, charge, claim or encumbrance, other than the ~~Underlying Shares as fully paid and non-assessable~~ securities of Round Mountain Gold Corporation; (d) the Corporation meets the requirement for the use of Form S-3 Under the U.S. Securities Act; (e) the Corporation's Common Shares are posted and listed for trading on the Exchanges and the Corporation is not in default of any of the listing requirements of the Exchanges, other than has been disclosed in the ~~capital~~ U.S. Shelf Prospectus Supplement or the Continuous Disclosure Materials; (f) other than has been disclosed in the U.S. Shelf Prospectus Supplement or the Continuous Disclosure Materials, and other than options under the Corporation's Stock Option Plans, there are no options, agreements or other rights outstanding to acquire any Common Shares of the Corporation; ~~4.1.3 each of~~ (g) as at the Corporation and the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has all necessary licencesdate hereof, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 the authorized share capital of the Corporation consists of an unlimited number of Common Shares and an unlimited number of preferred ~~shares~~ shares, of ~~which, as of the close of business on July 3, 2014, 94,792,906~~ which 502,168,375 Common Shares ~~were~~ and no preferred shares are issued and ~~outstanding as fully paid~~ outstanding; (h) the Corporation and ~~non-assessable shares~~ each of its Material Subsidiaries hold all licences and permits that are required for carrying on their business in the ~~capital of~~ manner in which such business has been, and is, carried on, except where the ~~Corporation; 4.1.5 except as set forth in Schedule B attached hereto~~failure to hold such a license or permit could not reasonably be expected to have a material adverse effect on the business, ~~no person has any agreement~~affairs, ~~option~~operations, ~~right~~ assets, liabilities or ~~privilege (whether pre-emptive or contractual) capable of becoming an agreement for the purchase, subscription or issuance of any securities~~ financial condition of the Corporation ~~from or by~~ on a consolidated basis (a "Material Adverse Effect"); (i) the Corporation and ~~no rights, warrants or options~~ each of its Material Subsidiaries have good and marketable title to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material Subsidiaries; 4.1.8 except as described in Schedule E and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable all assets owned by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries them free and clear of all ~~mortgages,~~ liens, ~~charges~~charges and encumbrances that materially interfere with the use made or to be made thereof by them, ~~pledges~~save and except as specified in Section 6(1)(c) and as disclosed in the U.S. Shelf Prospectus Supplement and the Continuous Disclosure Materials; (j) all interests in natural resource properties of the Corporation or its Material Subsidiaries as set out in the U.S. Shelf Prospectus, ~~security interests~~the U.S. Shelf Prospectus Supplement and the Continuous Disclosure Materials that are owned or held by the Corporation or its Material Subsidiaries as owner or lessee thereof are so owned with good and marketable title or are so leased with good and valid title, ~~encumbrances~~are in good standing, ~~claims or demands~~ are valid and enforceable, are free and clear of any ~~kind whatsoever~~liens, ~~all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares~~ charges or encumbrances that materially interfere with the use made or to be made by them and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest royalty is payable in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Subsidiaries is: (a) in breach or violation respect of any of them, except as set out in the U.S. Shelf Prospectus Supplement or the Continuous Disclosure Materials; no other property rights are necessary for the conduct of the Corporation's or the Material Subsidiaries' business and there are no material restrictions on the ability of the Corporation or the Material Subsidiaries to use, transfer or otherwise exploit any such property rights except as set out in the U.S. Shelf Prospectus Supplement or the Continuous Disclosure Materials or as required by applicable laws; (k) (A) the Corporation and its Material Subsidiaries are in compliance in all material respects with all terms or and provisions ofof all contracts, or agreements, indentures, leases, instruments and licences in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any connection with the conduct of its ~~property or assets is subject, which breach or violation or~~ business and (B) to the ~~consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation~~ best of the ~~provisions of its articles~~Corporation's knowledge, ~~by-laws or resolutions or any statute or any order~~all such contracts, ~~rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties~~agreements, ~~which violation or the consequences thereof would~~indentures, ~~alone or~~ leases, policies, instruments and licences are valid and binding in ~~the aggregate~~accordance with their terms and in full force and effect, except in each case with respect to clauses (A) and (B), as could not reasonably be expected to have a Material Adverse Effect; ~~4.1.10~~ (l) except as disclosed in the ~~execution and delivery~~ U.S. Shelf Prospectus Supplement or the Continuous Disclosure Materials, to the best of ~~this Agreement~~the Corporation's knowledge, the ~~Subscription Agreements~~Corporation and its subsidiaries are in compliance with all material environmental laws in the jurisdictions in which such entities conduct their businesses; (m) except as disclosed in the U.S. Shelf Prospectus Supplement or the Continuous Disclosure Materials, the ~~Subscription Receipt Agreement~~ Corporation and ~~the Acquisition Agreement and the performance~~ each of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions its Material Subsidiaries maintain insurance against loss of, or ~~constitute~~ damage to, their assets by all insurable risks on a ~~default under (whether after notice or lapse of time or both)~~replacement cost basis, ~~any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any~~ and all of the ~~Subsidiaries is a party or by which it is bound or~~ policies in respect of such insurance coverage are in good standing in all respects and not in default, except in each case as could not reasonably be expected to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; ~~4.1.11 other than as will have been obtained prior to~~ (n) the ~~Closing Date and other than the approval of the shareholders~~ consolidated audited financial statements of the Corporation ~~required to be obtained at~~ for its fiscal years ended December 31, 2000 and December 31, 2001 and the ~~Meeting~~unaudited interim financial statements of the Corporation for the quarter ended March 31, ~~no consent~~2002 (collectively the "Corporation's Financial Statements"), ~~approval~~copies of which are incorporated by reference in the U.S. Shelf Preliminary Prospectus Supplement and the U.S. Shelf Prospectus Supplement , ~~authorization~~are true and correct in every material respect and present fairly and accurately the financial position and results of the operations of the Corporation on a consolidated basis for the periods then ended and the Corporation's Financial Statements have been prepared in accordance with generally accepted accounting principles in Canada applied on a consistent basis; (o) this agreement has been duly authorized, ~~order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution~~ executed and ~~delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation~~ delivered by the Corporation and is a legal, valid and binding obligation of, and is enforceable against the Corporation in accordance with its terms (subject to bankruptcy, insolvency or other laws affecting the rights of creditors generally, the ~~transactions contemplated herein or therein, or~~ availability of equitable remedies and the ~~issuance~~ qualification that rights to indemnity and waiver of ~~the Offered Subscription Receipts and Underlying Shares~~contribution may be contrary to public policy); ~~4.1.12~~ (p) The U.S. Registration Statement, at the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporationtime it became effective, and the ~~Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares~~U.S. Shelf Prospectus contained therein, ~~the Commitment Shares and the Commitment Warrants will~~at such time complied, ~~when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies~~ fully in all material respects with the requirements of the ~~TSX and does not conflict with the constating documents of the Corporation~~ U.S. Securities Act and the ~~definitive form of certificate, if any, representing~~ rules and regulations adopted by the ~~Underlying Shares complies~~ SEC thereunder; the Incorporated Documents at the time they were filed complied in all material respects with the requirements of the ~~TSX~~ U.S. Exchange Act and ~~does not conflict with~~ the ~~constating documents of~~ rules and regulations adopted by the ~~Corporation~~ SEC thereunder; (q) except as disclosed in the U.S. Shelf Prospectus Supplement or the laws of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure ~~Obligations) since December 31~~Materials, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, there has been no actual material adverse change in the business, affairs, operations, assets, liabilities or financial condition of the Corporation on a consolidated basis since March 31, 2002; (r) the directors and officers of the Corporation and their compensation arrangements with the Corporation, whether as directors, officers or employees of the Corporation are as disclosed in the U.S. Shelf Prospectus Supplement or in the Continuous Disclosure Materials; (s) all of the material contracts and agreements of the Corporation and of its Material Subsidiaries not made in the ordinary course of business (collectively the "Material Contracts") have been disclosed in the Continuous Disclosure Materials; (t) all tax returns, reports, elections, remittances and payments of the Corporation and of its Material Subsidiaries required by law to have been filed or made in any applicable jurisdiction, have been filed or made (as the case may be), other than for taxes being contested in good faith, and, to the ~~Best~~ knowledge of the Corporation~~’s Knowledge~~, ~~the representations~~ are substantially true, complete and ~~warranties~~ correct and all taxes of the ~~sellers~~ Corporation and ~~the Target contained~~ of its Material Subsidiaries (other than for taxes being contested in good faith) have been paid or accrued in the ~~Acquisition Agreement are true and correct~~ Corporation's Financial Statements; (u) except as ~~would not have a Material Adverse Effect; 4.1.24~~ disclosed in the ~~Corporation is not aware of any facts~~ U.S. Shelf Prospectus Supplement or ~~circumstances that would cause it to believe that (i)~~ in the ~~Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement~~Continuous Disclosure Materials, ~~the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25~~ there are no ~~legal or governmental~~ actions, suits, judgments, investigations or proceedings ~~or investigations~~ outstanding, pending or or, to the ~~Best~~ best of its knowledge, threatened against or affecting the Corporation~~’s Knowledge~~, ~~contemplated~~ its subsidiaries, or ~~threatened against the Corporation~~ their respective directors, officers or ~~the Subsidiaries~~promoters (in their capacity as such), at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, ~~board~~ board, bureau or ~~agency~~agency of any kind whatsoever, ~~domestic or foreign, which: (i) would~~ except in ~~any way~~ each case as could not reasonably be expected to have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; ~~4.1.26~~ (v) all necessary corporate action has been taken or will have been taken prior to the Time of Closing (as defined below) by the Corporation so as to ~~authorize~~ validly issue and sell the ~~execution~~Securities to the U.S. Underwriters and upon receipt by the Corporation of the purchase price as consideration for the issue of the Securities, ~~delivery~~ such Securities will be validly issued and ~~performance of this Agreement, the Subscription Receipt Agreement~~ outstanding as fully paid and ~~the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none~~ non-assessable shares of the Corporation, the Subsidiaries nor any other party to any agreement or instrument is in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either ; (w) the Corporation ~~or any~~ is not a company registered under the United States Investment Company Act of ~~the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries~~1940, in any such case which default or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiveramended, and the ~~ability~~ Corporation is not a company controlled by an investment company required to ~~sever unenforceable terms, each may~~ be ~~limited by applicable law~~so registered; ~~4.1.29 each~~ (x) Computershare Trust Company of Canada, at its principal office in Toronto, has been duly appointed as the transfer agent and registrar for the Common Shares and the Warrants; (y) the forms of the certificates representing the Warrants have been duly approved by the Corporation and comply with the ~~Subsidiaries is~~ provisions of the ~~owner~~ laws of its ~~properties, business~~ jurisdiction of incorporation and ~~assets or~~ the ~~interests in its properties, business or assets, and all agreements under which the Corporation or either~~ regulations of the ~~Subsidiaries holds an interest in~~ AMEX; and (z) the U.S. Shelf Preliminary Prospectus Supplement and the U.S. Shelf Prospectus Supplement, contain no untrue statement of a ~~property, business or asset are in good standing according to their terms except where the failure to be in such good standing~~ material fact and does not and will not ~~have~~ omit to state a ~~Material Adverse Effect; 4.1.30~~ material fact that is required to be stated or that is necessary to make the ~~Corporation is a “reporting issuer”,~~ statements therein not ~~included~~ misleading in ~~a list of defaulting reporting issuers maintained by the Securities Regulators of each~~ light of the ~~Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario~~ circumstances in which they are made. (2) The representations and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements warranties of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws this U.S. Underwriting Agreement shall be true at the ~~time~~ Time of Closing as though they were ~~filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations~~ made at the ~~time~~ Time of Closing and they ~~were filed; 4.1.33~~ shall survive the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution completion of the ~~Offered Subscription Receipts or~~ transactions contemplated under this U.S. Underwriting Agreement and remain in full force and effect thereafter for the ~~Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best~~ benefit of the CoU.S. Underwriters for a period ending on the expiry date of the Warrants.

Appears in 1 contract

Sources: Underwriting Agreement (Echo Bay Mines LTD)

Representations and Warranties of the Corporation. The Corporation hereby represents and warrants to and with the ~~Underwriters, the U.S. Affiliate~~ Agent (on its own behalf and ~~to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements), and acknowledges that each~~ on behalf of ~~them is relying upon such representations and warranties, that: 4.1.1~~ each of the Purchasers) that as at the date hereof: (a) the Corporation and ~~the Subsidiaries~~ each Subsidiary has been duly organized and is validly ~~subsisting~~ existing and in good standing under the laws of its ~~governing jurisdiction,~~ jurisdiction of organization and has all requisite power and authority necessary to, and is qualified to, carry on its business as now conducted, and to own or lease its properties and assets in all jurisdictions in which it currently carries on business and/or owns or leases its properties and assets; and the Corporation has all required corporate power and authority to ~~own~~create, ~~lease~~ issue and ~~operate its properties~~ sell the Offered Securities and ~~assets and conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2~~ the ~~Corporation has all requisite corporate power and authority~~ Compensation Warrants, to enter into this ~~Agreement, the Subscription Agreements, the Acquisition~~ Agreement and the Subscription ~~Receipt Agreement~~ Agreements and to carry out ~~its obligations hereunder and thereunder and to authorize and issue~~ the ~~Offered Subscription Receipts and, upon exchange~~ provisions of ~~the Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares in the capital~~ each of ~~the Corporation~~such agreements; 4.1.3 each of the Corporation and the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 (b) the authorized capital of the Corporation consists of an unlimited number of Common Shares ~~and of preferred shares~~ of which, as of December 16, 2004 (being the ~~close~~ date of ~~business on July 3, 2014, 94,792,906~~ the Letter Agreement) 81,958,838 Common Shares ~~were~~ are issued and outstanding as fully paid and non-assessable shares in the capital of the Corporation; ~~4.1.5 except as set forth in Schedule B attached hereto, no person has any agreement, option, right or privilege~~ (~~whether pre-emptive or contractual~~c) capable of becoming an agreement for the purchase, subscription or issuance of any securities of the Corporation from or by the Corporation and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no ~~material~~ subsidiaries other than the ~~Material Subsidiaries; 4.1.8 except as described~~ Subsidiaries listed in Schedule E and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries "C" and the Corporation beneficially owns, directly or ~~indirectly~~ indirectly, the percentage indicated of all of the issued and outstanding shares in the capital of ~~the Subsidiaries~~ each Subsidiary free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind ~~whatsoever~~whatsoever except (i) the security interest in favour of Standard Bank London Limited in the shares held indirectly by the Corporation in Florida Canyon Mining, Inc.; and (ii) the security interest in favour of The Canada Trust Company in the shares held directly by the Corporation in Apollo Gold, Inc. and held indirectly by the Corporation in Montana Tunnels Mining, Inc., Standard Gold Mining, Inc., Mine Development Finance, Inc. and Apollo Gold Exploration, Inc. pursuant to that certain Trust Indenture dated November 4, 2004, all of such shares have been duly authorized and validly issued and are outstanding as ~~fully~~ fully-paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue or allotment of any unissued shares in the capital of ~~the Subsidiaries~~ any Subsidiary or any other security convertible into or exchangeable for any such shares; ~~4.1.9 neither~~ (d) the Corporation ~~nor~~ does not have any of Significant Interest Companies other than the ~~Subsidiaries is:~~Subsidiaries; (ae) ~~in breach or violation of any of~~ no order prohibiting the terms or provisions of, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation of the provisions of its articles, by-laws or resolutions or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance sale of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, Securities or the issuance of the ~~Offered Subscription Receipts~~ Compensation Options has been issued and ~~Underlying Shares; 4.1.12~~ no proceedings for such purpose are pending or, to the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital knowledge of the Corporation, ~~and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements~~threatened; ~~4.1.13 the Preferred Shares~~(f) no person, ~~the Commitment Shares and the Commitment Warrants will~~firm or corporation, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation or the laws of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to has any agreement or option, or any right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the ~~Best of the Corporation’s Knowledge~~purchase, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware subscription or issuance of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none securities of the Corporation, ~~the Subsidiaries nor any~~ other ~~party to any agreement or instrument is~~ than as set out in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse EffectSchedule "D"; ~~4.1.28 this Agreement~~(g) other than as disclosed in Schedule "D", the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and the Subsidiaries has conducted and is conducting its business in compliance in all material respects with all applicable laws and regulations of each jurisdiction in which it carries on business (including, without limitation, all applicable Canadian federal, provincial, municipal and local environmental, anti-pollution and licensing laws, regulations and other lawful requirements of any governmental or regulatory body, including, but not limited to relevant exploration and exploitation permits and concessions) and 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 or permits which would have a material adverse effect on the Corporation or the Subsidiaries; (h) except as qualified in the Disclosure Documents, the Corporation or a Subsidiary is the beneficial owner of ~~its~~ the properties, business and assets or the interests in ~~its~~ the properties, business or ~~assets~~assets referred to as owned by it in the Disclosure Documents, ~~and~~ all agreements under which the Corporation or ~~either of the Subsidiaries~~ a Subsidiary holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a ~~Material Adverse Effect; 4.1.30~~ material adverse effect on the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made (on a ~~confidential basis that is still maintained on a confidential~~ consolidated basis) or its properties, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario business or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstancesassets, and the ~~Corporation has updated such forward-looking information and statements~~ Disclosure Documents were as ~~required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws~~ at the ~~time they were filed and such documents, and the statements set forth therein, were~~ respective dates thereof true and correct in all material respects concerning the Corporation and the Subsidiaries, and contained no ~~misrepresentations at the time they were filed~~misrepresentations; ~~4.1.33~~ (i) all information which has been prepared by the ~~Circular will comply in~~ Corporation relating to the Corporation and the Subsidiaries and their business, property and liabilities and either publicly disclosed or provided to the Agent, including all ~~material respects with Canadian Securities Laws at~~ financial, marketing and operational information provided to the ~~time it will be filed and will be~~ Agent is, as of the date of such information, true and correct in all material respects, ~~contain~~ and no ~~misrepresentations at~~ fact or facts have been omitted therefrom which would make such information materially misleading; (j) the ~~time~~ Corporation has, and to the best of the Corporation's knowledge the directors and officers of the Corporation have, answered every question or inquiry of the Agent and their counsel in connection with the Agent's due diligence investigations fully and truthfully; (k) the Corporation is not aware of any legislation, or proposed legislation (published by a legislative body), which it anticipates will ~~be filed~~ materially and adversely affect the business, affairs, operations, assets or liabilities (contingent or otherwise) of the Corporation and the Subsidiaries, considered as a whole; (l) the Corporation and each Subsidiary has obtained all certificates, authorizations, permits or licences necessary to conduct the business now owned or operated by it and the Corporation has not received any notice of proceedings relating to the revocation or modification of any material certificate, authority, permit or license necessary which, if the subject of an unfavourable decision, ruling or finding would materially and adversely affect the conduct of the business, operations, financial condition or income of the Corporation (on a consolidated basis); (m) the execution and delivery of this Agreement and the Subscription Agreements and the performance of the transactions contemplated thereunder and the filing with the SEC of the Supplemental Prospectus and the Resale Registration Statement does not and will ~~not omit~~ not: (i) require the consent, approval, authorization, registration or qualification of or with any ~~fact~~ governmental authority, stock exchange, securities regulatory authority or other third party, except: (i) such as have been obtained; or (ii) such as may be required under the applicable by-laws, policies, regulations and prescribed forms of the Exchange and the AMEX; (ii) result in a breach of or default under, nor create a state of facts which, after notice or lapse of time or both, would result in a breach of or default under, nor conflict with: (A) any of the terms, conditions or provisions of the constating documents or resolutions of the shareholders, directors or any committee of directors of the Corporation or any Subsidiary or any material indenture, agreement or instrument to which the Corporation or any Subsidiary is a party or by which it or they are contractually bound; or (B) any statute, rule, regulation or law applicable to the Corporation, or the Subsidiaries including, without limitation, the Applicable Securities Laws of the Offering Jurisdictions, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Corporation or the Subsidiaries; or (C) any material mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Corporation or any Subsidiary is a party or by which the Corporation or any Subsidiary or a material portion of the assets of the Corporation or any Subsidiary are bound (a "Material Agreement"), or any judgment, decree, order, statute, rule or regulation applicable to any of them; and (iii) except as encumbered hereby, only, give rise to any lien, charge or claim in or with respect to the properties or assets now owned or hereafter acquired by the Corporation or any Subsidiary or the acceleration of or the maturity of any debt under any indenture, mortgage, lease, agreement or instrument binding or affecting any of them or any of their properties; (n) the auditors of the Corporation are independent public accountants as required by the Applicable Securities Laws and there has never been any reportable disagreement (within the meaning of National Instrument 51-102 - Continuous Disclosure) with the present or any former auditor of the Corporation; (o) the Corporation and each Subsidiary has filed all federal, provincial, territorial, state, local and foreign tax returns that are required to be ~~stated~~ filed or have requested extensions thereof (except in any case in which the failure so to file would not have a material adverse effect on the assets and properties, business, results of operations or condition (financial or otherwise) of the Corporation) on a consolidated basis 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 any such ~~document~~ assessment, fine or penalty that is currently being contested in good faith; (p) the Corporation and each Subsidiary has established on its books and records reserves that are adequate for the payment of all taxes not yet due and payable and there are no liens for taxes on the assets of the Corporation or any Subsidiary and there are no audits known by the Corporation's management to be pending of the tax returns of the Corporation or any Subsidiary (whether federal, state, provincial, territorial, local or foreign) and there are no claims which have been or may be asserted relating to any such tax returns, which audits and claims, if determined adversely, would result in the assertion by any governmental agency of any deficiency that would have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Corporation (on a consolidated basis); (q) no domestic or foreign taxation authority has asserted or, to the best of the Corporation's knowledge, threatened to assert any assessment, claim or liability for taxes due or to become due in connection with any review or examination of the tax returns of the Corporation or each Subsidiary (including, without limitation, any predecessor companies) filed for any year which would have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Corporation (on a consolidated basis); (r) the Corporation and each Subsidiary maintains a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary to ~~make~~ permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any ~~statement in such document not misleading~~differences; ~~4.1.34~~ (s) neither the Corporation nor, to the best of the Corporation's knowledge, any other party is in material default in the observance or performance of any term or obligation to be performed by it under any of the Material Agreements and no ~~securities commission~~event has occurred which with notice or lapse of time or both would constitute such a default, ~~stock exchange~~ in any such case which default or ~~comparable authority has issued any order preventing~~ event would have a material adverse effect on the assets or ~~suspending~~ properties, business, results of operations or condition (financial or otherwise) of the ~~offer~~Corporation (on a consolidated basis); (t) at Closing, the Corporation will have filed all documents, taken all proceedings and obtained all regulatory consents necessary as a precondition to the sale ~~or distribution~~ of the Offered Securities and the issuance of the Compensation Warrants hereunder; (u) this Agreement, the Subscription ~~Receipts~~ Agreements, the Warrants and the Compensation Warrants shall be, by the Time of Closing, duly authorized, executed and delivered by the Corporation and shall be legal, valid and binding obligations of the Corporation, enforceable in accordance with their terms (except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights generally, (ii) general equitable principles or (iii) limitations under applicable law in respect of rights of indemnity, contribution and waiver of contribution); (v) the ~~Underlying Shares~~ attributes of the Warrants will conform in all material respects with the description thereof contained in the ~~manner~~ Subscription Agreements; (w) at the Time of Closing: (i) the creation and issuance of the Warrants will have been validly authorized and issued; (ii) the creation and issuance of the Compensation Warrants will have been validly authorized and issued; (iii) upon the exercise of the Warrants, in accordance with the provisions thereof, the Unit Warrant Shares will have been validly authorized and issued; and (iv) upon the exercise of the Compensation Warrants in accordance with the provisions thereof, the Agent Units will have been validly authorized and issued, and the Agent Common Shares will have been conditionally allotted for issuance by the Corporation as fully paid and non-assessable Common Shares of the Corporation, and the Common Shares issuable upon the exercise of the Agent Warrants will have been conditionally allotted for issuance by the Corporation as fully paid and non-assessable Common Shares of the Corporation; (x) other than the Agent, there is no person acting or purporting to act at the request of the Corporation, who is entitled to any brokerage or agency fee in connection with the transactions contemplated ~~herein~~herein and in the event any person acting or purporting to act for the Corporation establishes a claim for any such fee from the Agent, ~~if any~~the Corporation covenants to indemnify and hold harmless the Agent with respect thereto and with respect to all costs reasonably incurred in the defence thereof; (y) the minute books and corporate records of the Corporation and each Subsidiary made available to the Agent in connection with their due diligence investigations of the Corporation for the periods from the dates of their incorporation to the date of examination thereof contain all proceedings (or certified copies thereof) of the shareholders, ~~nor instituted~~ the board of directors and all committees of the board of directors of the Corporation or such Subsidiary, as the case may be, and there have been no other meetings, resolutions or proceedings ~~for that purpose and~~of the shareholders, board of directors or any committee of the board of directors of the Corporation or such Subsidiary, as the case may be, to the ~~Best~~ date of review of such corporate records and minute books not reflected in such minute books and other records; (z) there is not, in the constating documents or by-laws of the CoCorporation or any Subsidiary or in any agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation or any Subsidiary is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by the Corporation to the holders of its Common Shares; (aa) the audited annual financial statements of the Corporation (the "Financial Statements") (i) have been prepared in accordance with generally accepted accounting principles in Canada consistently applied throughout the period referred to therein,

Appears in 1 contract

Sources: Agency Agreement (Apollo Gold Corp)

Representations and Warranties of the Corporation. The Corporation hereby represents and warrants to ~~the Underwriters, the U.S. Affiliate~~ and ~~to the Purchasers (such representations and warranties having been incorporated by reference~~ in ~~the Subscription Agreements), and acknowledges that each~~ favour of ~~them is relying upon such representations and warranties,~~ MFC that: ~~4.1.1~~ (a) The Corporation was duly continued and is a valid and subsisting corporation under the provisions of the CBCA. The Corporation has all requisite corporate power and authority to carry on its business as now being carried on by it and to own or lease and operate its properties and assets and is duly licensed or otherwise qualified to carry on business in each jurisdiction in which a material amount of its business is conducted or wherein the character of the properties and assets now owned by it makes such qualification necessary; (b) As of the date hereof, the authorized capital of the Corporation consists of 500,000,000 Trimble Shares of which, as at the date hereof, approximately 8,926,487 Trimble Shares are validly issued and outstanding as fully paid and non-assessable and 1,693,300 Trimble Shares are reserved for issuance under the ~~Subsidiaries~~ Corporation's stock option plan. As of the date hereof, no options to acquire Trimble Shares are outstanding. Except as set out herein and in the Trimble Disclosure Documents, there are no other options, warrants, conversions, privileges, calls or other rights, agreements, arrangements, commitments or obligations of the Corporation to issue or sell any shares of any capital stock of the Corporation or securities or obligations of any kind convertible into or exchangeable for any shares of capital stock of the Corporation or any other person, nor are there outstanding any stock appreciation rights, phantom equity or similar rights, agreements, arrangements, or commitments based upon the book value, income or any other attribute of the Corporation; (c) Each of the Corporation's subsidiaries is a corporation or other business entity duly organized, validly ~~subsisting~~ existing and in good standing under the laws of its ~~governing jurisdiction~~jurisdiction of incorporation or organization, except for such failure to be in good standing which would not, individually or in the aggregate, be materially adverse, and has all requisite corporate power and authority to ~~own,~~ carry on its business as now carried on by it and to own or lease and to operate its properties and assets and ~~conduct~~ is duly licensed or otherwise qualified in each jurisdiction in which a material amount of its business ~~as currently~~ is conducted or wherein the character of the properties and ~~as currently proposed to be conducted~~assets now owned by it make such qualification necessary; ~~4.1.2 the~~ (d) The Corporation has ~~all~~ no outstanding agreements, subscriptions, warrants, options or commitments, nor has it granted any rights or privileges capable of becoming an agreement, subscription, warrant, option or commitment, obligating it to issue any additional securities convertible into debt securities or evidence of indebtedness whatsoever except as otherwise disclosed in the Trimble Disclosure Documents; (e) The Corporation has the requisite corporate power and authority to enter into this ~~Agreement~~Agreement and to perform its obligations hereunder. The execution, ~~the Subscription Agreements, the Acquisition~~ delivery and performance of this Arrangement Agreement and the ~~Subscription Receipt Agreement~~ agreements, documents and ~~carry out its obligations hereunder~~ transactions contemplated herein are within the corporate power and thereunder and to authorize and issue the Offered Subscription Receipts and, upon exchange of the Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares in the capital of the Corporation; 4.1.3 each authority of the Corporation and ~~the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has~~ have been duly authorized by all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 the authorized capital of the Corporation consists of an unlimited number of Common Shares and of preferred shares of which, as of the close of business on July 3, 2014, 94,792,906 Common Shares were issued and outstanding as fully paid and non-assessable shares in the capital of the Corporation; 4.1.5 except as set forth in Schedule B attached hereto, no person has any agreement, option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for the purchase, subscription or issuance of any securities of the Corporation from or corporate action by the Corporation and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material Subsidiaries; 4.1.8 except as described in Schedule E this Arrangement Agreement constitutes a valid and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Subsidiaries is: (a) in breach or violation of any of the terms or provisions of, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation of the provisions of its articles, by-laws or resolutions or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital binding obligation of the Corporation, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws affecting the rights of creditors generally and subject to the general principles of equity; (f) The audited consolidated financial statements of the Corporation for the financial year ended April 30, 2001 and the ~~Subscription Receipts will~~ unaudited interim consolidated financial statements for the nine months ended January 31, 2002 present fairly the consolidated financial condition and results of operations of the Corporation for the respective periods indicated in such consolidated financial statements and have ~~the attributes set out~~ been prepared in accordance with GAAP; (g) Since January 31, 2002, there has been no material adverse change in the ~~Subscription Receipt Agreement and~~ business, operations, properties, assets or condition, financial or otherwise, of the ~~Subscription Agreements~~Corporation, on a consolidated basis, from that shown in the unaudited interim consolidated financial statements of the Corporation for the nine month period ended January 31, 2002; ~~4.1.13 the Preferred Shares~~(h) The Trimble Disclosure Documents were, ~~the Commitment Shares and the Commitment Warrants will~~as of their respective dates, ~~when issued, have the attributes set forth~~ in ~~the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies~~ compliance in all material respects with all applicable legislation and did not, when filed, contain any material misrepresentation; (i) The Corporation is the ~~requirements~~ beneficial owner of its properties and assets, with good and marketable title thereto free and clear of material encumbrances, except as otherwise disclosed in the ~~TSX and~~ Trimble Disclosure Documents; (j) The Corporation does not ~~conflict with~~ have any liability or obligation including, without limitation, tax liabilities, whether accrued, absolute, contingent or otherwise, not reflected in the ~~constating documents~~ Corporation's audited consolidated financial statements for the financial year ended April 30, 2001 or the unaudited interim consolidated financial statements for the nine months ended January 31, 2002, except for liabilities and obligations incurred in the ordinary course of business since January 31, 2002, which liabilities and obligations are not materially adverse in the ~~Corporation and~~ aggregate; (k) Except as otherwise disclosed in the ~~definitive form of certificate~~Trimble Disclosure Documents or to MFC, ~~if any~~there are no actions, ~~representing the Underlying Shares complies in all material respects with the requirements of the TSX and does~~ suits, proceedings, investigations or outstanding claims or demands, whether or not ~~conflict with the constating documents~~ purportedly on behalf of the Corporation or its subsidiaries, instituted, pending, or to the ~~laws~~ knowledge of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, ~~2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of~~ threatened against or affecting the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, subsidiaries at law or in equity or before or by any ~~federal, provincial, municipal or other~~ governmental department, commission, ~~board~~ board, bureau, agency or ~~agency~~institution, domestic or foreign, ~~which~~or before any arbitrator, nor is there any judgment, order, decree or award of any court or other governmental authority having jurisdiction, obtained, pending, or to the knowledge of the Corporation, threatened against the Corporation or its subsidiaries, which could prevent or materially hinder the consummation of the Arrangement or the other transactions contemplated by this Agreement or which could result in a material adverse change in respect of the Corporation; (l) The business of the Corporation is being conducted in all material respects in compliance with all applicable laws, regulations and ordinances of all authorities having jurisdiction; and (m) The execution and delivery of this Arrangement Agreement, the consummation of the transactions contemplated hereby and the fulfilment of or compliance with the terms and provisions hereof do not or will not, nor will they with the giving of notice or the lapse of time or both: (i) ~~would~~ violate any provision of any law or provisions of the Charter Documents of the Corporation; (ii) conflict with, result in a breach of, constitute default under, or accelerate or permit the acceleration of the performance required by any ~~way have~~ material agreement, covenant, undertaking, commitment, instrument, judgment, order, decree or award to which the Corporation or any subsidiaries of the Corporation is a ~~Material Adverse Effect~~party or by which any of them is bound or to which the property of any of them is subject, all as of the Effective Date; or (iiiii) ~~questions~~ result in the ~~issuance~~cancellation, ~~sale~~ suspension or ~~delivery~~ material alteration in the terms of ~~the Offered Subscription Receipts and the Underlying Shares to be issued~~ any material licence, permit or authority held by the Corporation or any subsidiaries of the ~~validity~~ Corporation or in the creation of any ~~action taken~~ lien, charge, security interest or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none encumbrance upon any of the ~~Corporation, the Subsidiaries nor any other party to any agreement or instrument is in~~ material ~~default in the observance or performance~~ assets of ~~any term or obligation to be performed by it under any such agreement or instrument to which either~~ the Corporation or any ~~of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part~~ subsidiaries of the Corporation under such material agreement, covenant, undertaking, commitment, instrument, judgment, order, decree or ~~the Subsidiaries~~award or give to any other person any material interest or rights, in including rights of purchase, termination, cancellation or acceleration under any such ~~case which default~~ material agreement, covenant, undertaking, commitment, instrument, judgment, order, decree or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in its properties, business or assets, and all agreements under which the Corporation or either of the Subsidiaries holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect; 4.1.30 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the Coaward.

Appears in 1 contract

Sources: Arrangement Agreement (MFC Bancorp LTD)

Representations and Warranties of the Corporation. The Corporation hereby represents and warrants to the Underwriters, the U.S. Affiliate and to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements), and acknowledges that each of them is relying upon such representations and warranties, thatSubscriber as follows: ~~4.1.1 each of the Corporation~~ (a) it is a corporation duly incorporated and ~~the Subsidiaries is validly subsisting~~ organized under the laws of ~~its governing jurisdiction,~~ the Province of Ontario and ~~has all requisite~~ is presently in good standing thereunder with full corporate power ~~and authority~~ to ~~own, lease and operate~~ own its properties and ~~assets and conduct~~ carry on its business as ~~currently conducted and as currently proposed to be~~ now being conducted; ~~4.1.2~~ (b) the Corporation has ~~all requisite corporate~~ full power and authority to enter into this ~~Agreement,~~ agreement and perform the ~~Subscription Agreements,~~ same and do all other acts which may be necessary to consummate the ~~Acquisition Agreement and~~ transaction contemplated hereby; (c) the Subscription Receipt Agreement and carry out its obligations hereunder and thereunder and to authorize and issue the Offered Subscription Receipts and, upon exchange of the Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares in underlying the ~~capital of~~ Purchased Securities being sold to the Corporation; 4.1.3 each of the Corporation and the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect Subscriber in accordance with ~~their terms except where~~ the ~~failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4~~ provisions hereof and the ~~authorized capital~~ Warrant Shares that may be issued upon exercise of the ~~Corporation consists of an unlimited number of Common Shares~~ Warrants will have been duly allotted and ~~of preferred shares of which~~reserved for issuance and upon issuance and delivery, ~~as of the close of business on July 3, 2014, 94,792,906 Common Shares were~~ will be validly issued and outstanding as fully paid and non-assessable ~~shares in the capital of~~ shares; (d) the Corporation~~; 4.1.5 except as set forth in Schedule B attached hereto, no person has any agreement, option, right or privilege (whether pre-emptive or contractual) capable~~ 's share capital consists of ~~becoming~~ an ~~agreement for the purchase, subscription or issuance~~ unlimited number of ~~any securities~~ common shares of which there are 119,372,306 common shares of the Corporation from or by the Corporation and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material Subsidiaries; 4.1.8 except as described in Schedule E and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the validly issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as representing fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital stock of the ~~Subsidiaries or any other security convertible into or exchangeable for any such shares~~Corporation; ~~4.1.9 neither~~ (e) the issuance and sale of the Purchased Securities and Securities underlying them by the Corporation nor any of the Subsidiaries is: (a) in breach or violation of any of the terms or provisions of, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation of the provisions of its articles, by-laws or resolutions or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does do not and will not conflict with or and do not and will not result in a breach ~~or violation~~ of any of the ~~terms~~ terms, conditions or provisions ~~of,~~ of its constating documents or ~~constitute a default under (whether after notice or lapse of time or both),~~ any ~~indenture, mortgage, deed of trust, loan agreement, lease or other~~ agreement ~~(written or oral)~~ or instrument to which the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation or the laws of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party~~, any restriction upon or impediment to~~ ; (f) the ~~declaration or payment of dividends by~~ latest financial statements accurately reflect the ~~directors~~ financial position of the Corporation as at the date thereof and no material changes in such position have taken place since the date thereof, save in the ordinary course of the Corporation's business or ~~the payment of dividends by a Subsidiary to its parent or~~ as publicly announced; (g) the Corporation to has complied fully with requirements of the ~~holders of its Common Shares, other than~~ securities laws in the jurisdiction in which the Purchased Securities will be distributed and the Act pursuant to which it was incorporated and its regulations; (h) the ~~terms of:~~ Purchased Securities subscribed for hereunder represent part of a private placement for a total of up to 20,000,000 Offered Securities, comprising up to 15,000,000 Hard Dollar Units and up to 5,000,000 Flow-Through Units; (i) the ~~Cadillac ▇▇▇▇ Credit Agreements~~Corporation is a reporting issuer in good standing in the Provinces of Ontario, ~~(ii)~~ Alberta, and British Columbia and has received all necessary regulatory approvals for the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letterstransactions contemplated hereby; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (ij) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this ~~Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action~~ agreement has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none of the Corporation, the Subsidiaries nor any other party to any agreement or instrument is in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly ~~and validly~~ executed and delivered by the ~~Corporation, each constitute~~ Corporation and is a valid ~~and binding obligation of the Corporation~~ agreement enforceable ~~against it~~ in accordance with its terms~~, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting~~ ; (k) the ~~rights of creditors generally, and except as limited~~ Purchased Securities are not being sold by the ~~application~~ Corporation to the Subscriber with knowledge of ~~equitable principles when equitable remedies are sought and by~~ any material fact about the ~~fact~~ Corporation that ~~rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law~~has not been generally disclosed; 4.1.29 each of the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in its properties, business or assets, and all agreements under which the Corporation or either of the Subsidiaries holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect; 4.1.30 (l) the Corporation is and will continue to be during the term of this Subscription Agreement and at all times which are relevant for the purposes of this Subscription Agreement a “~~reporting issuer~~principal-business corporation”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the Co

Appears in 1 contract

Sources: Subscription Agreement

Representations and Warranties of the Corporation. The Corporation hereby represents and warrants to and with the ~~Underwriters,~~ Agents (on the ~~U.S. Affiliate~~ Agents' own behalf and to on behalf of each of the ~~Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements),~~ Purchasers) and acknowledges that each of them is relying upon such representations and ~~warranties~~warranties in acting as agents, ~~that~~in the case of the Agents, and in purchasing the Units, in the case of the Purchasers, that as at the date hereof: ~~4.1.1~~ (a) the Corporation and each of the ~~Corporation~~ Subsidiaries has been duly incorporated or amalgamated and ~~the Subsidiaries~~ is ~~validly subsisting~~ existing under the laws of its ~~governing jurisdiction,~~ jurisdiction of incorporation or amalgamation and has all requisite power and authority necessary to, and is qualified to, carry on its business as now conducted and to own or lease its properties and assets in all jurisdictions in which it currently carries on business and/or owns or leases its properties and assets; and the Corporation has all required corporate power and authority to ~~own~~allot, ~~lease~~ issue and ~~operate its properties and assets and conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2~~ sell the ~~Corporation has all requisite corporate power and authority~~ Units, to enter into this Agreement, the Subscription Agreements, the ~~Acquisition Agreement~~ Warrant Indenture, the Compensation Warrants and ~~the Subscription Receipt Agreement and~~ to carry out ~~its obligations hereunder and thereunder and to authorize and issue~~ the ~~Offered Subscription Receipts and, upon exchange~~ provisions of ~~the Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares in the capital~~ each of ~~the Corporation~~such agreements; 4.1.3 each of the Corporation and the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 (b) the authorized capital of the Corporation consists of ~~an unlimited number of~~ 50,000,000 Common ~~Shares and of preferred shares~~ Shares, of which, as of the ~~close of business on July 3~~date hereof, ~~2014, 94,792,906~~ 14,751,724 Common Shares ~~were~~ are issued and outstanding as fully paid and non-assessable shares in the capital of the Corporation; ~~4.1.5 except as set forth in Schedule B attached hereto, no person has any agreement, option, right or privilege~~ (~~whether pre-emptive or contractual~~c) capable of becoming an agreement for the purchase, subscription or issuance of any securities of the Corporation from or by the Corporation and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no ~~material~~ subsidiaries other than the ~~Material Subsidiaries; 4.1.8 except as described in Schedule E~~ Subsidiaries and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially ~~own,~~ own or exercise ~~Control~~ control or direction over, 10% or more of the outstanding voting shares of any company other than ~~its Subsidiaries and~~ the Subsidiaries; the Corporation beneficially owns, directly or ~~indirectly all~~ indirectly, 100% of the issued and outstanding shares in the capital of each of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, ; to the Corporation's knowledge all of such shares have been duly authorized and validly issued and are outstanding as ~~fully~~ fully-paid ~~and non-assessable~~ shares ~~and~~ and, in respect of the Subsidiaries only, no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue or allotment of any unissued shares in the capital of ~~the Subsidiaries~~ any Subsidiary or any other security convertible into or exchangeable for any such shares; ~~4.1.9 neither~~ (d) to the knowledge of the Corporation, no order ceasing or suspending trading in any securities of the Corporation ~~nor any~~ or prohibiting the sale of the ~~Subsidiaries is: (a) in breach~~ Units or ~~violation~~ the trading of any of the ~~terms or provisions of~~Corporation's issued securities has been issued and no proceedings for such purpose are pending or, ~~or in default under~~ to the knowledge of the Corporation, threatened; (~~whether after notice or lapse~~ e) to the knowledge of ~~time or both) any indenture~~the Corporation, ~~mortgage, deed of trust, loan agreement or~~ other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or than as disclosed in the ~~aggregate~~Disclosure Documents, ~~have a Material Adverse Effect; or (b)~~ no agreement is in ~~violation of~~ force or effect which in any manner affects the ~~provisions of its articles, by-laws~~ voting or resolutions or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation control of any of the ~~terms or provisions of, or constitute a default under (whether after notice or lapse~~ securities of ~~time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which~~ the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse EffectSubsidiaries; ~~4.1.11~~ (f) other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares disclosed in the ~~capital of the Corporation~~Disclosure Documents, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation or the laws of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its ~~securities~~ shares and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its ~~securities~~ shares or agreed to do so or otherwise effected any return of capital with respect to such ~~securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid~~shares; ~~4.1.16 the Corporation has not completed any “significant acquisition”~~ (g) except as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced set forth in Schedule ~~B hereto; (iv) the Preferred Shares;~~ "A" hereto and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as ~~would not have a Material Adverse Effect; 4.1.23~~ contemplated hereby, no person, firm or corporation, as of the date hereof, to has any agreement or option, or any right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the ~~Best~~ purchase, subscription or issuance of any securities of the Corporation~~’s Knowledge~~; (h) the Corporation is, and on the ~~representations~~ Closing Date will be, a "qualifying issuer" within the meaning of Multilateral Instrument 45-102 Resale of Securities ("MI 45-102") and ~~warranties~~ is a reporting issuer under the applicable securities laws in each of Ontario, British Columbia and Alberta and will at the Time of Closing be a reporting issuer under the applicable laws of the ~~sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24~~ Province of Quebec; the Corporation is not ~~aware~~ in default in any material respect of any ~~facts~~ requirement of the Applicable Securities Laws of the Offering Jurisdictions and the Corporation is not included in a list of defaulting reporting issuers maintained by the Securities Commission in each of Ontario, British Columbia and Alberta. In particular, without limiting the foregoing, the Corporation is in compliance at the date hereof with its obligations under Applicable Securities Laws to make timely disclosure of all material changes relating to it and, since December 31, 2002 (other than in respect of material change reports previously filed on a confidential basis and thereafter made public or ~~circumstances~~ material change reports previously filed on a confidential basis and in respect of which no material change ever resulted), no such disclosure has been made on a confidential basis and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed, except to the extent that ~~would cause it to believe that~~ the Offering constitutes a material change; (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best currently issued and outstanding Common Shares of the ~~Corporation’s Knowledge, contemplated~~ Corporation are listed and posted for trading on the Exchange and quoted for trading on Nasdaq and to its knowledge no order ceasing or ~~threatened against~~ suspending trading in any securities of the Corporation or prohibiting the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale ~~or delivery~~ of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action Units has been ~~taken by~~ issued and no proceedings for such purpose are pending or, to the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none knowledge of the Corporation, threatened; (j) the ~~Subsidiaries nor any other party to any agreement or instrument is in material default in~~ definitive form of certificate representing the ~~observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either~~ Offered Shares complies with the ~~Corporation or any~~ requirements of the ~~Subsidiaries is a party~~ Company Act (British Columbia) and ~~no event has occurred which with notice or lapse of time or both would constitute such a default on the part~~ of the ~~Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect~~Exchange; ~~4.1.28 this Agreement,~~ (k) to the ~~Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by~~ knowledge of the Corporation, each ~~constitute a valid and binding obligation~~ of the Corporation ~~enforceable against~~ and the Subsidiaries has conducted, and is conducting, its business in material compliance with all applicable laws, rules and regulations of each jurisdiction in which its business is carried on and is licensed, registered or qualified in all jurisdictions in which it owns, leases or operates its property or carries on business to enable its business to be carried on as now or proposed to be conducted and its property and assets to be owned, leased and operated and all such licences, registrations and qualifications are and will at the Time of Closing be valid, subsisting and in ~~accordance with its terms~~good standing, except ~~as enforcement thereof may be limited by bankruptcy~~in each case in respect of matters which do not and will not result in any material adverse change to the business, ~~insolvency, reorganization, moratorium~~ business prospects or condition (financial or otherwise) of the Corporation and ~~other laws relating to or affecting~~ the ~~rights of creditors generally~~Subsidiaries (on a consolidated basis), and except for the failure to be so qualified or the absence of any such license, registration or qualification which does not and will not have a material adverse effect on the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Corporation and the Subsidiaries (on a consolidated basis) or on the corporate power or authority of the Corporation to perform its obligations under this Agreement; (l) except as ~~limited~~ qualified by the ~~application of equitable principles when equitable remedies are sought and by~~ disclosure in the ~~fact that rights to indemnity~~Disclosure Documents, ~~contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29~~ each of the Corporation and the Subsidiaries is the beneficial owner of ~~its~~ the properties, business and assets or the interests in ~~its~~ the properties, business or ~~assets~~assets referred to as owned by it in the Corporation's most recent annual information form filed on SEDAR, ~~and~~ all agreements under which the Corporation or ~~either of~~ the Subsidiaries holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a ~~Material Adverse Effect; 4.1.30~~ material adverse effect on the Corporation ~~is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by~~ and the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made Subsidiaries (on a ~~confidential basis that is still maintained on a confidential~~ consolidated basis) or its properties, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario business or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstancesassets, and the ~~Corporation has updated such forward-looking information and statements~~ Disclosure Documents were as ~~required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws~~ at the ~~time they were filed and such documents, and the statements set forth therein, were~~ date thereof true and correct in all material respects concerning the Corporation and the Subsidiaries, and contained no ~~misrepresentations at the time they were filed~~misrepresentations; ~~4.1.33~~ (m) none of the ~~Circular~~ Corporation or the Subsidiaries has received any notice of proceedings relating to the revocation or modification of any material certificate, authority, permit or license necessary to conduct the business now owned or operated by it which, if the subject of an unfavourable decision, ruling or finding would materially and adversely affect the conduct of the business, operations, financial condition or income of the Corporation and the Subsidiaries (on a consolidated basis); (n) the Corporation is not in default or in breach in any material respect of, and the execution and delivery of this Agreement, the performance and compliance with the terms hereof and the completion of the transactions described herein by the Corporation will ~~comply~~ not result in ~~all~~ any material ~~respects~~ breach of, or be in conflict with or constitute a material default under, or create a state of facts which, after notice or lapse of time, or both, would constitute a material default under any term or provision of the constating documents or any resolutions of the Corporation or any material mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Corporation is a party or by which it or a material portion of its assets are bound (a "MATERIAL AGREEMENT"), or any judgment, decree, order, statute, rule or regulation applicable to any of them; (o) the auditors of the Corporation who audited the Audited Financial Statements are independent public accountants as required by Applicable Securities Laws and to the knowledge of the Corporation there has never been any reportable disagreement (within the meaning of National Policy Statement No. 31 of the Canadian Securities ~~Laws at~~ Administrators) with the ~~time it will be~~ present auditor or, to the knowledge of the Corporation, any former auditor of the Corporation; (p) each of the Corporation and the Subsidiaries has filed all federal, provincial, state, local and ~~will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact~~ foreign tax returns that are required to be ~~stated~~ filed or have requested extensions thereof (except in any case in which the failure so to file would not have a material adverse effect on the assets and properties, business, results of operations, prospects or condition (financial or otherwise) of the Corporation and the Subsidiaries (on a consolidated basis)) 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 any such ~~document~~ assessment, fine or ~~necessary to make any statement~~ penalty that is currently being contested in ~~such document not misleading~~good faith; ~~4.1.34~~ (q) the Corporation and each of the Subsidiaries has established on its books and records reserves that are adequate for the payment of all taxes not yet due and payable and there are no ~~securities commission~~liens for taxes on the assets of the Corporation or any of the Subsidiaries, ~~stock exchange~~ and, there are no audits known by the Corporation's management to be pending of the tax returns of the Corporation or ~~comparable~~ any of the Subsidiaries (whether federal, state, provincial, local or foreign) and there are no claims which have been or may be asserted relating to any such tax returns, which audits and claims, if determined adversely, would result in the assertion by any governmental agency of any deficiency that would have a material adverse effect on the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Corporation and the Subsidiaries (on a consolidated basis); (r) no domestic or foreign taxation authority has ~~issued~~ asserted or, to the Corporation's knowledge, threatened to assert any ~~order preventing~~ assessment, claim or ~~suspending the offer, sale~~ liability for taxes due or ~~distribution~~ to become due in connection with any review or examination of the ~~Offered Subscription Receipts~~ tax returns of the Corporation or any of the ~~Underlying Shares~~ Subsidiaries (including, without limitation, any predecessor companies) filed for any year which would have a material adverse effect on the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Corporation or any of the Subsidiaries; (s) neither the Corporation nor, to the Corporation's knowledge, any other party to a Material Agreement is in material default in the ~~manner contemplated herein, if any, nor instituted proceedings for that purpose~~ observance or performance of any term or obligation to be performed by it under any such Material Agreement and, to the ~~Best~~ Corporation's knowledge, no event has occurred which with notice or lapse of time or both would constitute such a default, in any such case which default or event would have a material adverse effect on the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the CoCorporation and the Subsidiaries (on a consolidated basis); (t) at the Time of Closing, the Corporation will have filed all documents, taken all proceedings and obtained all regulatory consents necessary to be filed by the Time of Closing in connection with the sale of the Units; (u) upon completion of all of the transactions contemplated in this Agreement the Units will be validly issued and outstanding as fully paid and non-assessable and will not have been issued in violation of or subject to any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation; (v) the execution and delivery of each of this Agreement, the Warrant Indenture, the Compensation Warrants and the Subscription Agreements and the performance of the transactions contemplated thereunder, the offering and sale of the Units at the Time of Closing and any compliance by the Corporation with the other provisions of each of such agreements to be complied with by it does not and will not: (i) require the consent, approval, authorization, registration or qualification of or with any governmental authority, stock exchange, securities regulatory authority or other third party, except: (i) such as have been obtained; or (ii) such as may be required under the applicable by-laws, policies, regulations and prescribed forms of the Exchange or Nasdaq; (ii) result in a breach of or default under, or create a state of facts which, after notice or lapse of time or both, would result in a breach of or default under, or conflict with: (iii) any of the terms, conditions or provisions of the constating documents or resolutions of the shareholders, directors or any committee of directors of the Corporation or any of the Subsidiaries or any Material Agreement ; or (iv) any statute, rule, regulation or law applicable to the Corporation, or any of the Subsidiaries including, without limitation, the Applicable Securities Laws of the Offering Jurisdictions, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Corporation or any of the Subsidiaries; or (v) give rise to any lien, charge or claim in or with respect to the properties or assets now owned or hereafter acquired by the Corporation or the Subsidiaries or the acceleration of or the maturity of any debt under any indenture, mortgage, lease, agreement or instrument binding or affecting any of them or any of their properties; (w) the financial statements, press releases, material change reports, management information circulars or annual information forms filed by or on behalf of the Corporation since December 31, 2002 with any Securities Commission, the Exchange or Nasdaq taken together as a whole, are true and correct and do not contain a misrepresentation, determined as at the date of filing, which has not been corrected; (x) other than the Agents, there is no person acting or, to the knowledge of the Corporation, purporting to act at the request of the Corporation, who is entitled to any brokerage or agency fee in connection with the transactions contemplated herein; (y) the minute books and records of the Corporation made available to counsel for the Agents in connection with its due diligence investigation of the Corporation for the periods from the date of amalgamation or incorporation, as the case may be, to the date of examination thereof respectively, are all of the minute books and records of the Corporation and contain copies of all proceedings (or certified copies thereof) of the shareholders and the board of directors of the Corporation to the date of review of such corporate records and minute books and there have been no other meetings, resolutions or proceedings

Appears in 1 contract

Sources: Agency Agreement (Spectrum Signal Processing Inc)

Representations and Warranties of the Corporation. (1) The Corporation hereby represents and warrants to the ~~Underwriters~~U.S. Agents, intending that the same may be relied upon by the U.S. Affiliate and to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements), and acknowledges that each of them is relying upon such representations and warrantiesAgents, that: ~~4.1.1~~ (a) each of the Corporation and the Material Subsidiaries has been duly incorporated, continued or amalgamated and organized and is validly ~~subsisting~~ existing under the laws of its ~~governing jurisdiction~~jurisdiction of incorporation, ~~and~~ continuance or amalgamation, has all requisite corporate power and authority to carry on its business as now conducted and as contemplated by the Prospectuses, and to own, lease and operate its properties and ~~assets~~ assets, and ~~conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2~~ the Corporation has all requisite ~~corporate~~ power and authority to ~~enter into this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement and~~ carry out its obligations ~~hereunder and thereunder and to authorize and issue~~ under this Agreement; (b) the ~~Offered Subscription Receipts and, upon exchange~~ only major operating subsidiaries of the ~~Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares~~ Corporation are listed in ~~the capital of the Corporation~~Schedule A; ~~4.1.3~~ (c) the Corporation or one of its Material Subsidiaries owns the issued and outstanding shares of each of the Material Subsidiaries as set out in Schedule A, in each case free and clear of any pledge, lien, security interest, charge, claim or encumbrance, other than as is described in the Prospectuses; (d) no order, ruling or determination having the effect of ceasing, suspending or restricting trading in any securities of the Corporation or the sale of the Common Shares or Warrants comprised in the Securities has been issued and no proceedings, investigations or inquiries for such purpose are pending or, to the Corporation's knowledge, threatened; (e) the Corporation's Common Shares are posted and listed for trading on the Exchanges and the ~~Subsidiaries~~ Corporation is ~~current with all~~ not in default in any material ~~filings required to be made~~ respect of any of the listing requirements of the Exchanges; (f) other than options under the ~~laws of~~ Corporation's Stock Option Plans, the ~~jurisdictions in which it exists or carries on any material business~~ Corporation is not a party to and has ~~all necessary licences~~not entered into any agreement, ~~leases~~warrant, ~~permits~~option, ~~authorizations and~~ right or privilege reasonably capable of becoming an agreement, for the purchase, subscription or issuance of any Common Shares or securities convertible into or exchangeable for Common Shares other ~~approvals necessary to permit it to conduct its business~~ than as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are set out in ~~full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect~~Schedule C; ~~4.1.4~~ (g) as at January 31, 2003, the authorized share capital of the Corporation consists of an unlimited number of Common Shares and an unlimited number of ~~preferred~~ First Preferred shares, of which 87,696,002 Common Shares and no First Preferred shares ~~of which, as~~ are issued and outstanding; (h) the Corporation and each of the ~~close~~ Material Subsidiaries have conducted and are conducting their respective businesses in compliance with all applicable laws, rules, regulations, tariffs, orders and directives, including without limitation, all laws, regulations and statutes relating to mining and to mining claims, concessions or leases, and environmental, health and safety laws, rules, regulations, or policies or other lawful requirements of ~~business~~ any governmental or regulatory bodies having jurisdiction over the Corporation and the Material Subsidiaries in each jurisdiction in which the Corporation or the Material Subsidiaries carries on ~~July 3~~their respective businesses, ~~2014, 94,792,906 Common Shares were issued and outstanding as fully paid and non-assessable shares~~ other than those in respect of which the failure to comply would not individually or in the ~~capital~~ aggregate be material. Each of the Corporation and the Material Subsidiaries holds all certificates, authorities, permits, licenses, registrations and qualifications (collectively, the "AUTHORITIES") in all jurisdictions in which each carries on its business and which are material for and necessary or desirable to carry on their respective businesses as now conducted. To the best of the Corporation~~; 4.1.5 except as set forth~~ 's knowledge, information and belief all the Authorities are valid and existing and in ~~Schedule B attached hereto~~good standing and none of the Authorities contain any burdensome term, ~~no person~~ provision, condition or limitation which has or is likely to have any ~~agreement, option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for~~ material adverse effect on the ~~purchase, subscription or issuance of any securities~~ business of the Corporation ~~from or by the Corporation~~ and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material ~~Subsidiaries; 4.1.8 except~~ Subsidiaries (taken as ~~described in Schedule E and except for (i~~a whole) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, as now conducted or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither proposed to be conducted. Neither the Corporation nor any of the Material Subsidiaries ~~is: (a) in breach~~ has received any notice of proceedings relating to the revocation or ~~violation~~ modification of any of the ~~terms or provisions of~~Authorities which, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone singly or in the aggregate, ~~have~~ if the subject of an unfavourable decision, ruling or finding, would materially adversely affect the business, operations, financial condition, or income of the Corporation or the Material Subsidiaries (taken as a ~~Material Adverse Effect; or~~whole) or any notice of the revocation or cancellation of, or any intention to revoke or cancel, any of the mining claims, concessions or leases comprising: (bi) the Bogoso property; (ii) the Prestea property; (iii) the ▇▇▇▇ ▇▇▇▇▇▇ property; (iv) the Yaou and Dorlin properties; and (v) the Wassa property; (each as described in ~~violation~~ the Form 10-K of the ~~provisions~~ Corporation dated March 25, 2002, except for the Wassa Property which is described in the Form 8-K of the Corporation dated September 13, 2002, collectively referred to herein as the "RESOURCE PROPERTIES", and the Bogoso property, the Prestea property and the Wassa property collectively being referred to herein as the "MATERIAL RESOURCE PROPERTIES"); (i) the Corporation and each of its ~~articles~~Material Subsidiaries have good and marketable title to all assets owned by them free and clear of all liens, ~~by-laws or resolutions or any statute or any order~~charges and encumbrances, ~~rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties~~other than as described in the Prospectuses, ~~which violation or the consequences thereof would~~and other than such liens, ~~alone~~ charges and encumbrances that are not individually or in the ~~aggregate, have a~~ aggregate material to the Corporation or the Material ~~Adverse Effect~~Subsidiaries; ~~4.1.10~~ (j) all interests in the ~~execution~~ Resource Properties are owned, leased or held by the Corporation or its Material Subsidiaries as owner or lessee thereof, are so owned with good and ~~delivery~~ marketable title or are so leased with good and valid title, are in good standing, are valid and enforceable, are free and clear of ~~this Agreement~~any liens, ~~the Subscription Agreements, the Subscription Receipt Agreement~~ charges or encumbrances and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result no royalty is payable in ~~a breach or violation~~ respect of any of them, except as set out in the ~~terms~~ Prospectuses or ~~provisions of~~as are not individually or in the aggregate material to the Corporation or the Material Subsidiaries, or ~~constitute~~ other than as would not have a ~~default under~~ material effect on the value of such interests; no other material property rights are necessary for the conduct or intended conduct of the Corporation's or the Material Subsidiaries' business and there are no restrictions on the ability of the Corporation or the Material Subsidiaries to use, transfer or otherwise exploit any such property rights, except as set out in the Prospectuses; (~~whether after notice or lapse~~ k) (A) the Corporation and its Material Subsidiaries are in material compliance with all material terms and provisions of ~~time or both)~~all contracts, ~~any indenture~~agreements, ~~mortgage~~indentures, ~~deed~~ leases, instruments and licences material to the conduct of ~~trust~~its business and (B) all such contracts, ~~loan agreement~~agreements, ~~lease or other agreement~~ indentures, leases, policies, instruments and licences are valid and binding in accordance with their terms and in full force and effect; (~~written or oral~~l) ~~or instrument~~ to the best of the Corporation's knowledge, information and belief none of the real property (and the buildings constructed thereon) in which the Corporation or any of the Material Subsidiaries is has a ~~party~~ direct or by indirect interest, whether leasehold or fee simple or otherwise (the "REAL PROPERTY"), or upon or within which it has operations, is ~~bound~~ subject to any judicial or ~~to which any of its property or assets is subject, other than any breach or violation~~ administrative proceeding alleging the ~~consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any~~ violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation or the laws of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, state or municipal environmental, health or ~~other governmental department, commission, board~~ safety statute or ~~agency~~regulation, domestic or foreign, ~~which:~~ or is subject to any investigation concerning whether any remedial action is needed to respond to a release of any Hazardous Material (ias defined below) ~~would~~ into the environment. Except in material compliance with applicable environmental laws, neither the Corporation nor any ~~way have a~~ Material ~~Adverse Effect; or (ii) questions~~ Subsidiary nor, to the ~~issuance~~Corporation's knowledge, ~~sale or delivery~~ any occupier of the ~~Offered Subscription Receipts and~~ Real Property, has filed any notice under any federal, provincial, state or municipal law, domestic or foreign, indicating past or present treatment, storage or disposal of a Hazardous Material. Except in material compliance with applicable environmental laws, none of the ~~Underlying Shares to be issued~~ Real Property has at any time been used by the Corporation or a Material Subsidiary or, to the ~~validity~~ best of the Corporation's knowledge, information and belief by any ~~action taken~~ other occupier, as a waste storage or ~~to be taken by~~ waste disposal site. Except as disclosed in the ~~Corporation pursuant to or~~ Prospectuses, the Corporation, on a consolidated basis, has no contingent liability of which it has knowledge in connection with ~~this Agreement~~ any release of any Hazardous Material on or into the ~~Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by~~ environment from any of the Real Property or operations thereon. Neither the Corporation nor any Material Subsidiary nor, to ~~authorize~~ the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none best of the Corporation's knowledge, any occupier of the ~~Subsidiaries nor any other party to any agreement~~ Real Property, generates, transports, treats, processes, stores or ~~instrument is in material default in the observance or performance~~ disposes of any ~~term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or~~ waste on any of the ~~Subsidiaries is a party and no event has occurred which with notice~~ Real Property in material contravention of applicable federal, provincial, state or ~~lapse of time~~ municipal laws or ~~both would constitute such a default on~~ regulations enacted for the ~~part~~ protection of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in its properties, business or assets, and all agreements under which the Corporation or either of the Subsidiaries holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect; 4.1.30 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particularnatural environment (including, without ~~limiting the foregoing~~limitation, ~~the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it~~ambient air, ~~no such disclosure has been made on a confidential basis that is still maintained on a confidential basis~~surface water, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbiaground water, ~~Alberta, Saskatchewan, Manitoba, Ontario~~ land surface or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document subsurface strata) or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the Cohuman health or

Appears in 1 contract

Sources: u.s. Agency Agreement (Golden Star Resources LTD)

Representations and Warranties of the Corporation. The Corporation represents and warrants to and agrees with the Underwriters, the U.S. Affiliate and to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements), and acknowledges that each of them is relying upon such representations and warranties, Underwriters that: ~~4.1.1 each of the Corporation~~ (a) it is a not-for-profit corporation duly created and ~~the Subsidiaries is~~ validly ~~subsisting~~ existing and in good standing under ~~the laws of its governing jurisdiction~~Chapter 617, and has all requisite corporate power and authority to own, lease and operate its properties and assets and conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2 the Corporation has all requisite corporate power and authority to enter into this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement and carry out its obligations hereunder and thereunder and to authorize and issue the Offered Subscription Receipts and, upon exchange of the Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares in the capital of the Corporation; 4.1.3 each of the Corporation and the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business Florida Statutes and has all necessary ~~licences, leases, permits, authorizations~~ licenses and ~~other approvals necessary to permit it~~ permits to conduct its business as ~~it is currently conducted, except where~~ described in the ~~absence of such power~~ Preliminary Offering Statement and ~~authority or failure~~ the Offering Statement and to ~~make any filing or obtain any license,~~ act as lessee and sublessee under the Series 2022B Ground Lease and as lessor in connection with the lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where -purchase by the ~~failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 the authorized capital~~ School Board of the Corporation consists of an unlimited number of Common Shares and of preferred shares of which, as of the close of business on July 3, 2014, 94,792,906 Common Shares were issued and outstanding as fully paid and non-assessable shares in the capital of the CorporationSeries 2022B Facilities; 4.1.5 except as set forth in Schedule B attached hereto, no person has any agreement, option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for the purchase, subscription or issuance of any securities of the Corporation from or by the Corporation and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material Subsidiaries; 4.1.8 except as described in Schedule E and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Subsidiaries is: (a) in breach or violation of any of the terms or provisions of, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) ~~in violation of~~ with respect to the ~~provisions~~ Corporation, the Preliminary Offering Statement as of its ~~articles, by-laws~~ date did not contain any untrue statement of a material fact or resolutions or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have omit to state a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation material fact required to be ~~obtained~~ stated therein or which is necessary to make the statements and information therein, in light of the circumstances under which they were made, not misleading in any material respect; (c) both at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation or the laws of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any time of its ~~securities~~ acceptance hereof and ~~has not, directly or indirectly, redeemed, purchased or otherwise acquired any~~ at all times during the period from the date hereof up to and including a date which is the later of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) receipt of notice from the ~~Cadillac ▇▇▇▇ Credit Agreements, (ii~~Senior Manager pursuant to Section 3(c) hereof that the ~~supplemental debenture indenture dated February 7, 2013 between~~ Offering Statement is no longer required to be delivered under the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; Rule or (ii) 90 days after the ~~Acquisition Agreement~~date of the Closing (or 25 days after the date of the Closing if the Offering Statement is filed with the MSRB in electronic format at or prior to Closing), the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts statements and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none of the Corporation, the Subsidiaries nor any other party to any agreement or instrument is in material default information contained in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in its properties, business or assets, and all agreements under which the Corporation or either of the Subsidiaries holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect; 4.1.30 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports Offering Statement with respect to the ~~Offering~~ Corporation are and ~~Proposed Acquisition~~ are expected to be, to the best of its knowledge after due inquiry, true, correct and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct complete in all material respects and ~~contained~~ the Offering Statement, to the knowledge of the Corporation after due inquiry, does not as of the date of acceptance hereof and is not expected to, at any time during the period from the date hereof up to and including the later of (i) receipt of notice from the Senior Manager pursuant to Section 3(c) hereof that the Offering Statement is no ~~misrepresentations~~ longer required to be delivered under the Rule or (ii) 90 days after the date of the Closing (or 25 days after the date of the Closing if the Offering Statement is filed with the MSRB in electronic format at ~~the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects~~or prior to Closing), contain ~~no misrepresentations at the time it will be filed and will not~~ any untrue statement of a material fact or omit ~~any~~ to state a material fact required to be stated ~~in such document or~~ therein necessary to make the statements and information therein, in light of the circumstances under which they were made, not misleading in any ~~statement in such document not misleading~~material respect; ~~4.1.34~~ (d) if the Final Offering Statement is supplemented or amended pursuant to Section 10 hereof, at the time of each supplement or amendment thereto and (unless subsequently again supplemented or amended pursuant to Section 10 hereof) at all times during the period from the date of such supplement or amendment to and including a date which is the later of (i) receipt of notice from the Senior Manager pursuant to Section 3(c) hereof that the Offering Statement is no ~~securities commission, stock exchange or comparable authority has issued any order preventing or suspending~~ longer required to be delivered under the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the CoRule or

Appears in 1 contract

Sources: Master Lease Purchase Agreement

Representations and Warranties of the Corporation. The Corporation hereby represents and warrants to and with the ~~Underwriters, the U.S. Affiliate~~ Agents (on its own behalf and ~~to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements), and acknowledges that each~~ on behalf of ~~them is relying upon such representations and warranties, that: 4.1.1~~ each of the Purchasers) that as at the date hereof: (a) the Corporation and ~~the Subsidiaries~~ each Subsidiary has been duly organized and is validly ~~subsisting~~ existing and in good standing under the laws of its ~~governing jurisdiction,~~ jurisdiction of organization and has all requisite power and authority necessary to, and is qualified to, carry on its business as now conducted, and to own or lease its properties and assets in all jurisdictions in which it currently carries on business and/or owns or leases its properties and assets; and the Corporation has all required corporate power and authority to ~~own~~create, ~~lease~~ issue and ~~operate its properties~~ sell the Offered Securities and ~~assets and conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2~~ the ~~Corporation has all requisite corporate power and authority~~ Compensation Warrants, to enter into this ~~Agreement, the Subscription Agreements, the Acquisition~~ Agreement and the Subscription ~~Receipt Agreement~~ Agreements and to carry out ~~its obligations hereunder and thereunder and to authorize and issue~~ the ~~Offered Subscription Receipts and, upon exchange~~ provisions of ~~the Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares in the capital~~ each of ~~the Corporation~~such agreements; 4.1.3 each of the Corporation and the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 (b) the authorized capital of the Corporation consists of an unlimited number of Common Shares ~~and of preferred shares~~ of which, as of October 11, 2006 (being the ~~close~~ date of ~~business on July 3, 2014, 94,792,906~~ the Letter Agreement) 123,321,883 Common Shares ~~were~~ are issued and outstanding as fully paid and non-assessable shares in the capital of the Corporation; ~~4.1.5 except as set forth in Schedule B attached hereto, no person has any agreement, option, right or privilege~~ (~~whether pre-emptive or contractual~~c) capable of becoming an agreement for the purchase, subscription or issuance of any securities of the Corporation from or by the Corporation and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no ~~material~~ subsidiaries other than the ~~Material Subsidiaries; 4.1.8 except as described~~ Subsidiaries listed in Schedule E and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries "C" and the Corporation beneficially owns, directly or ~~indirectly~~ indirectly, the percentage indicated of all of the issued and outstanding shares in the capital of ~~the Subsidiaries~~ each Subsidiary free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as ~~fully~~ fully-paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue or allotment of any unissued shares in the capital of ~~the Subsidiaries~~ any Subsidiary or any other security convertible into or exchangeable for any such shares; ~~4.1.9 neither~~ (d) the Corporation ~~nor~~ does not have any of Significant Interest Companies other than the ~~Subsidiaries is:~~Subsidiaries; (ae) ~~in breach or violation of any of~~ no order prohibiting the terms or provisions of, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation of the provisions of its articles, by-laws or resolutions or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance sale of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, Securities or the issuance of the ~~Offered Subscription Receipts~~ Compensation Warrants has been issued and ~~Underlying Shares; 4.1.12~~ no proceedings for such purpose are pending or, to the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital knowledge of the Corporation, ~~and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements~~threatened; ~~4.1.13 the Preferred Shares~~(f) no person, ~~the Commitment Shares and the Commitment Warrants will~~firm or corporation, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation or the laws of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to has any agreement or option, or any right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the ~~Best of the Corporation’s Knowledge~~purchase, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware subscription or issuance of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none securities of the Corporation, ~~the Subsidiaries nor any~~ other ~~party to any agreement or instrument is~~ than as set out in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse EffectSchedule "B"; ~~4.1.28 this Agreement~~(g) other than as disclosed in Schedule "D", the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and the Subsidiaries has conducted and is conducting its business in compliance in all material respects with all applicable laws and regulations of each jurisdiction in which it carries on business (including, without limitation, all applicable Canadian federal, provincial, municipal and local environmental, anti-pollution and licensing laws, regulations and other lawful requirements of any governmental or regulatory body, including, but not limited to relevant exploration and exploitation permits and concessions) and 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 or permits which would have a material adverse effect on the Corporation or the Subsidiaries; (h) except as qualified in the Disclosure Documents, the Corporation or a Subsidiary is the beneficial owner of ~~its~~ the properties, business and assets or the interests in ~~its~~ the properties, business or ~~assets~~assets referred to as owned by it in the Disclosure Documents, ~~and~~ all agreements under which the Corporation or ~~either of the Subsidiaries~~ a Subsidiary holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a ~~Material Adverse Effect; 4.1.30~~ material adverse effect on the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made (on a ~~confidential basis that is still maintained on a confidential~~ consolidated basis) or its properties, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario business or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstancesassets, and the ~~Corporation has updated such forward-looking information and statements~~ Disclosure Documents were as ~~required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws~~ at the ~~time they were filed and such documents, and the statements set forth therein, were~~ respective dates thereof true and correct in all material respects concerning the Corporation and the Subsidiaries, and contained no ~~misrepresentations at the time they were filed~~misrepresentations; ~~4.1.33~~ (i) all information which has been prepared by the ~~Circular will comply in~~ Corporation relating to the Corporation and the Subsidiaries and their business, property and liabilities and either publicly disclosed or provided to the Agents, including all ~~material respects with Canadian Securities Laws at~~ financial, marketing and operational information provided to the ~~time it will be filed and will be~~ Agents is, as of the date of such information, true and correct in all material respects, ~~contain~~ and no ~~misrepresentations at~~ fact or facts have been omitted therefrom which would make such information materially misleading; (j) the ~~time~~ Corporation has, and to the best of the Corporation's knowledge the directors and officers of the Corporation have, answered every question or inquiry of the Agents and their counsel in connection with the Agents' due diligence investigations fully and truthfully; (k) the Corporation is not aware of any legislation, or proposed legislation (published by a legislative body), which it anticipates will ~~be filed~~ materially and adversely affect the business, affairs, operations, assets or liabilities (contingent or otherwise) of the Corporation and the Subsidiaries, considered as a whole; (l) the Corporation and each Subsidiary has obtained all certificates, authorizations, permits or licences necessary to conduct the business now owned or operated by it and the Corporation has not received any notice of proceedings relating to the revocation or modification of any material certificate, authority, permit or license necessary which, if the subject of an unfavourable decision, ruling or finding would materially and adversely affect the conduct of the business, operations, financial condition or income of the Corporation (on a consolidated basis); (m) the execution and delivery of this Agreement and the Subscription Agreements and the performance of the transactions contemplated thereunder and the filing with the SEC of the Prospectus Supplement does not and will ~~not omit~~ not: (i) require the consent, approval, authorization, registration or qualification of or with any ~~fact~~ governmental authority, stock exchange, securities regulatory authority or other third party, except: (i) such as have been obtained; or (ii) such as may be required under the applicable by-laws, policies, regulations and prescribed forms of the Exchange and the AMEX; (ii) result in a breach of or default under, nor create a state of facts which, after notice or lapse of time or both, would result in a breach of or default under, nor conflict with: (A) any of the terms, conditions or provisions of the constating documents or resolutions of the shareholders, directors or any committee of directors of the Corporation or any Subsidiary or any material indenture, agreement or instrument to which the Corporation or any Subsidiary is a party or by which it or they are contractually bound; or (B) any statute, rule, regulation or law applicable to the Corporation, or the Subsidiaries including, without limitation, the Applicable Securities Laws of the Offering Jurisdictions, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Corporation or the Subsidiaries; or (C) any material mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Corporation or any Subsidiary is a party or by which the Corporation or any Subsidiary or a material portion of the assets of the Corporation or any Subsidiary are bound (a "Material Agreement"), or any judgment, decree, order, statute, rule or regulation applicable to any of them; and (iii) except as encumbered hereby, only, give rise to any lien, charge or claim in or with respect to the properties or assets now owned or hereafter acquired by the Corporation or any Subsidiary or the acceleration of or the maturity of any debt under any indenture, mortgage, lease, agreement or instrument binding or affecting any of them or any of their properties; (n) the auditors of the Corporation are independent public accountants as required by the Applicable Securities Laws and there has never been any reportable disagreement (within the meaning of National Instrument 51-102 - Continuous Disclosure) with the present or any former auditor of the Corporation; (o) the Corporation and each Subsidiary has filed all federal, provincial, territorial, state, local and foreign tax returns that are required to be ~~stated~~ filed or have requested extensions thereof (except in any case in which the failure so to file would not have a material adverse effect on the assets and properties, business, results of operations or condition (financial or otherwise) of the Corporation) on a consolidated basis 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 any such ~~document~~ assessment, fine or penalty that is currently being contested in good faith; (p) the Corporation and each Subsidiary has established on its books and records reserves that are adequate for the payment of all taxes not yet due and payable and there are no liens for taxes on the assets of the Corporation or any Subsidiary and there are no audits known by the Corporation's management to be pending of the tax returns of the Corporation or any Subsidiary (whether federal, state, provincial, territorial, local or foreign) and there are no claims which have been or may be asserted relating to any such tax returns, which audits and claims, if determined adversely, would result in the assertion by any governmental agency of any deficiency that would have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Corporation (on a consolidated basis); (q) no domestic or foreign taxation authority has asserted or, to the best of the Corporation's knowledge, threatened to assert any assessment, claim or liability for taxes due or to become due in connection with any review or examination of the tax returns of the Corporation or each Subsidiary (including, without limitation, any predecessor companies) filed for any year which would have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Corporation (on a consolidated basis); (r) the Corporation and each Subsidiary maintains a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary to ~~make~~ permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any ~~statement in such document not misleading~~differences; ~~4.1.34~~ (s) neither the Corporation nor, to the best of the Corporation's knowledge, any other party is in material default in the observance or performance of any term or obligation to be performed by it under any of the Material Agreements and no ~~securities commission~~event has occurred which with notice or lapse of time or both would constitute such a default, ~~stock exchange~~ in any such case which default or ~~comparable authority has issued any order preventing~~ event would have a material adverse effect on the assets or ~~suspending~~ properties, business, results of operations or condition (financial or otherwise) of the ~~offer~~Corporation (on a consolidated basis); (t) at Closing, the Corporation will have filed all documents, taken all proceedings and obtained all regulatory consents necessary as a precondition to the sale ~~or distribution~~ of the Offered Securities and the issuance of the Compensation Warrants hereunder; (u) this Agreement, the Subscription ~~Receipts~~ Agreements, the Warrants and the Compensation Warrants shall be, by the Time of Closing, duly authorized, executed and delivered by the Corporation and shall be legal, valid and binding obligations of the Corporation, enforceable in accordance with their terms (except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights generally, (ii) general equitable principles or (iii) limitations under applicable law in respect of rights of indemnity, contribution and waiver of contribution); (v) the ~~Underlying Shares~~ attributes of the Warrants will conform in all material respects with the description thereof contained in the ~~manner~~ Subscription Agreements; (w) at the Time of Closing: (i) the creation and issuance of the Warrants will have been validly authorized and issued; (ii) the creation and issuance of the Compensation Warrants will have been validly authorized and issued; (iii) upon the exercise of the Warrants, in accordance with the provisions thereof, the Warrant Shares will have been validly authorized and issued; and (iv) upon the exercise of the Compensation Warrants in accordance with the provisions thereof, the Agent Units will have been validly authorized and issued, and the Agent Common Shares will have been conditionally allotted for issuance by the Corporation as fully paid and non-assessable Common Shares of the Corporation, and the Common Shares issuable upon the exercise of the Agent Warrants will have been conditionally allotted for issuance by the Corporation as fully paid and non-assessable Common Shares of the Corporation; (x) other than the Agents, there is no person acting or purporting to act at the request of the Corporation, who is entitled to any brokerage or agency fee in connection with the transactions contemplated ~~herein~~herein and in the event any person acting or purporting to act for the Corporation establishes a claim for any such fee from the Agents, ~~if any~~the Corporation covenants to indemnify and hold harmless the Agents with respect thereto and with respect to all costs reasonably incurred in the defence thereof; (y) the minute books and corporate records of the Corporation and each Subsidiary made available to the Agents in connection with their due diligence investigations of the Corporation for the periods from the dates of their incorporation to the date of examination thereof contain all proceedings (or certified copies thereof) of the shareholders, ~~nor instituted~~ the board of directors and all committees of the board of directors of the Corporation or such Subsidiary, as the case may be, and there have been no other meetings, resolutions or proceedings ~~for that purpose and~~of the shareholders, board of directors or any committee of the board of directors of the Corporation or such Subsidiary, as the case may be, to the ~~Best~~ date of review of such corporate records and minute books not reflected in such minute books and other records; (z) there is not, in the constating documents or by-laws of the CoCorporation or any Subsidiary or in any agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation or any Subsidiary is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by the Corporation to the holders of its Common Shares; (aa) the audited annual financial statements of the Corporation (the "Financial Statements") (i) have been prepared in accordance with generally accepted accounting principles in Canada consistently applied throughout the period referred to therein, (ii) present fairly, in all material respects, the financial position (including the assets and liabilities, whether absolute, contingent or otherwise) of the Corporation as at such dates and results of operations of the Corporation for the periods then ended, and (iii) contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Corporation and there has been no change in accounting policies or practices of the Corporation since the dates of such Financial Statements; (bb) there are no act

Appears in 1 contract

Sources: Agency Agreement (Apollo Gold Corp)

Representations and Warranties of the Corporation. The Corporation represents and warrants to the ~~Underwriters, the U.S. Affiliate and to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements),~~ Agent and acknowledges that ~~each of them~~ the Agent is relying upon such representations and warranties, ~~that~~as follows: ~~4.1.1~~ (a) the Corporation has been duly incorporated, amalgamated or continued and is validly subsisting under the Business Corporations Act (British Columbia) (“BCBCA”) and Nutaq Innovation Inc., its only subsidiary (the “Subsidiary”) is a corporation duly incorporated, continued or amalgamated and validly existing under Canada Business Corporations Act (“CBCA”), and no steps or proceedings have been taken by any person, voluntary or otherwise, requiring or authorizing their dissolution or winding up; (b) the Subsidiary is wholly-owned by the Corporation, all of the issued and outstanding shares of the Subsidiary, all of which are issued and fully paid and non-assessable shares, are free and clear of all mortgages, liens, charges, security interests, encumbrances, claims or demands whatsoever and no person, firm or corporation has any agreement, option, right or privilege (whether preemptive or contractual) capable of becoming an agreement, for the purchase from the Corporation of the Subsidiary or of any interest in the Subsidiary or any of the shares in the capital of the Subsidiary; (c) the Corporation and the Subsidiary are each qualified to carry on business under the laws of each jurisdiction in which they carry on a material portion of their business; (d) each of the Corporation and the ~~Subsidiaries is validly subsisting under the laws of its governing jurisdiction, and~~ Subsidiary has all requisite corporate capacity, power and authority to carry on its business as now conducted and as presently proposed to be conducted by it and to own, lease and operate its ~~properties and~~ assets and ~~conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2~~ the Corporation has all requisite corporate power and authority to ~~enter into~~ carry out the provisions of this Agreement, the Subscription Agreements, the ~~Acquisition Agreement~~ certificates representing Debenture and the ~~Subscription Receipt Agreement and carry out its obligations hereunder and thereunder~~ certificates representing the Broker Warrants and to ~~authorize~~ undertake the Offering and ~~issue the Offered Subscription Receipts and, upon exchange of the Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares in the capital of the Corporation~~all other transactions contemplated herein; 4.1.3 each of the Corporation and the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 (e) the authorized capital of the Corporation consists of an unlimited number of ~~Common Shares and of preferred~~ common shares of ~~which, as of the close of business on July 3, 2014, 94,792,906 Common Shares were~~ which 106,591,871 common shares are issued and ~~outstanding as~~ outstanding, all of which shares are fully paid and non-~~assessable shares in~~ assessable; (f) the ~~capital~~ minute books of the ~~Corporation~~Corporation and the Subsidiary are true and correct and contain full true and correct copies of the constating documents of the Corporation and the Subsidiary and the minutes of all meetings and all the resolutions of the directors and shareholders thereof; ~~4.1.5 except~~ (g) other than pursuant to the provisions of this Agreement, as ~~set forth in Schedule B attached hereto~~of the date of this Agreement, no ~~person~~ person, firm, corporation or other entity holds any securities convertible or exchangeable into securities of the Corporation or now has any agreement, warrant, option, right or privilege (whether ~~pre-emptive~~ preemptive or contractual) being or capable of becoming an ~~agreement~~ agreement, option or right for the purchase, subscription or issuance of any unissued shares, securities (including convertible securities) or warrants of the Corporation from or by the Corporation and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material Subsidiaries; 4.1.8 except as described in Schedule E and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase ~~warrants, with each whole warrant being~~ warrants exercisable ~~by the holder~~ for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries 6,572,599 Common Shares and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever4,510,000 stock options, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares which in the ~~capital of the Subsidiaries or any other security convertible into or exchangeable~~ aggregate are exercisable for ~~any such shares~~11,082,599 Common Shares; ~~4.1.9 neither the Corporation nor any of the Subsidiaries is:~~ (ah) in breach or violation of any of the terms or provisions of, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation of the provisions of its articles, by-laws or resolutions or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery each of this Agreement, the Subscription Agreements, the ~~Subscription Receipt Agreement~~ Debentures, the GSA, the Agency and Interlender Agreement, the Nuran Hypothec, the Debenture Warrants and the ~~Acquisition Agreement~~ Broker Warrant Certificates (collectively, the “Transaction Documents”) have been, or will be, upon execution thereof, duly authorized, executed and delivered by the ~~performance~~ Corporation and constitute, or will constitute when executed, a legal, valid and binding obligation of the ~~transactions contemplated hereunder~~ Corporation enforceable in accordance with its terms except that: (i) the enforcement thereof may be limited by bankruptcy, insolvency and ~~thereunder~~other laws affecting the enforcement of creditors’ rights generally, (ii) rights of indemnity, contribution and waiver of contribution thereunder may be limited under applicable law; and (iii) equitable remedies, including, without limitation, specific performance and injunctive relief, may be granted only in the ~~Offering and~~ discretion of a court of competent jurisdiction; (i) the issuance of the Offered ~~Subscription Receipts~~ Securities and the ~~Underlying~~ Bonus Shares ~~does~~ will not be subject to any pre-emptive rights or other contractual right to purchase securities granted by the Corporation or to which the Corporation is subject; (j) the Corporation is not in default or breach of, and the execution and delivery of, and the compliance with the terms of, the Transaction Documents will not result in a material breach of, and do not and will not ~~conflict with or result in~~ create a ~~breach or violation~~ state of ~~any of the terms or provisions of~~facts which, ~~or constitute a default under (whether~~ after notice or lapse of time or both), will result in a material breach of, and do not and will not conflict with: (i) any material statute, rule or regulation applicable to the Corporation; (ii) any of the terms, conditions or provisions of the constating documents or articles laws or resolutions of the Corporation; (iii) any material trust indenture, ~~mortgage~~agreement, ~~deed of trust, loan agreement~~instrument, lease or other ~~agreement~~ document (~~written or oral~~“Material Contract”) ~~or instrument~~ to which the Corporation ~~or any of the Subsidiaries~~ is a party or by which it the Corporation is or will be contractually bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation as of the ~~provisions of~~ Closing Time; or (iv) any material judgment, decree or order binding on the ~~articles~~Corporation, ~~by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it~~ or any of its ~~properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect~~assets; ~~4.1.11 other than as will have been obtained prior~~ (k) all Material Contracts to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of which the Corporation and the ~~definitive form of certificate, if any, representing the Underlying Shares complies~~ Subsidiary is a party are in ~~all~~ good standing and in full force and effect unamended and no material ~~respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation~~ default or ~~the laws of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or~~ breach exists in respect of any of ~~its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any~~ them on the part of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none of the Corporation, the Subsidiaries nor any other party to any agreement or instrument is in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the ~~Subsidiaries is a party~~ parties to them and no event has occurred ~~which with~~ which, after the giving of notice or the lapse of time or both would constitute such a material default or breach and which would have a material adverse effect on the ~~part~~ Corporation and the Subsidiary, taken as a whole; the foregoing includes all the presently outstanding Material Contracts entered into by the Corporation and or the Subsidiary in the course of carrying out its operations and all operations related thereto; (l) the interim financial statements of the Corporation or for the ~~Subsidiaries~~nine months ended July 31, 2016 (the “Financial Statements”) (i) are, in ~~any such case which default or event would have~~ all material respects, consistent with the books and records of the Corporation on a ~~Material Adverse Effect~~consolidated basis; (ii) contain and reflect all material adjustments for the fair presentation of the consolidated results of operations and the financial condition of the business of the Corporation for the periods covered thereby in accordance with International Financial Reporting Standards, consistently applied; and (iii) present fully, fairly and correctly, the consolidated material assets and financial condition of the Corporation as at the date thereof and the results of operations and the changes in financial position for the period then ended; ~~4.1.28 this Agreement~~(m) the Corporation maintains a system of internal accounting controls sufficient to provide reasonable assurances that transactions are executed in accordance with management’s general or specific authorization, and transactions are recorded as necessary to permit preparation of financial statements in conformity with International Financial Reporting Standards and to maintain accountability for assets and liabilities; (n) to the ~~Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by~~ knowledge of the Corporation, ~~each constitute a valid and binding obligation~~ the auditors of the Corporation ~~enforceable against it in accordance~~ who audited the financial statements of the Corporation for the most recent financial year-end 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 NI 51-102) with ~~its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting~~ the ~~rights~~ present auditors of ~~creditors generally, and except as limited by~~ the ~~application of equitable principles when equitable remedies are sought and by~~ Corporation; (o) the ~~fact that rights to indemnity, contribution and waiver,~~ Corporation and the ~~ability~~ Subsidiary maintain insurance coverage and insurance policies similar to ~~sever unenforceable terms, each may be limited~~ those maintained by ~~applicable law; 4.1.29 each~~ other companies doing business in industries similar to those of the Corporation and the ~~Subsidiaries is~~ Subsidiary (other than directors’ and officers’ liability insurance), their insurance policies and insurance coverages are sufficient for the ~~owner~~ purposes of ~~its properties~~their business, ~~business and assets or the interests in its properties, business or assets,~~ all payments under such policies are up to date and all ~~agreements under which the Corporation or either of the Subsidiaries holds an interest in a property, business or asset~~ such policies are in good ~~standing according~~ standing; (p) to ~~their terms except where~~ the ~~failure~~ knowledge of the Corporation, none of the Corporation, its officers or directors is aware of any circumstances presently existing under which liability is or could reasonably be expected to be in such good standing does not and will not have a Material Adverse Effect; 4.1.30 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the Coincurred under Part XXIII - –

Appears in 1 contract

Sources: Agency Agreement

Representations and Warranties of the Corporation. 4.1 The Corporation represents and warrants to the ~~Underwriters,~~ Agents (each on its own behalf and on behalf of the ~~U.S. Affiliate and to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements~~Purchasers), and acknowledges that ~~each of them is~~ the Agents are relying upon such representations and ~~warranties~~warranties in entering into this Agreement, that: ~~4.1.1 each~~ (a) the Corporation has no material subsidiaries; (b) the Corporation is a valid and subsisting corporation duly incorporated and in good standing under the Business Corporations Act (Ontario) with respect to the filing of annual reports with the Registrar of Companies (Ontario); (c) the Corporation is a reporting issuer only in the Provinces of British Columbia, Alberta and Ontario and the Corporation, to the best of its knowledge, is not in default of any of the requirements of the Canadian Applicable Securities Laws; (d) the authorized capital of the Corporation consists of an unlimited number of common shares without par value of which 31,492,277 common shares are issued and outstanding as of the ~~Subsidiaries is validly subsisting under~~ date hereof as fully paid and non-assessable; (e) the ~~laws~~ common shares of the Corporation are listed and posted for trading on the Exchange and, to the best of its ~~governing jurisdiction~~knowledge, ~~and has all requisite corporate power and authority to own, lease and operate its properties and assets and conduct its business as currently conducted and as currently proposed to be conducted~~the Corporation is not in default of any of the listing requirements of the Exchange; ~~4.1.2 the Corporation has all requisite corporate power and authority to enter into this Agreement,~~ (f) except for the Subscription Agreements, ~~the Acquisition Agreement~~ and the ~~Subscription Receipt Agreement~~ securities issuable to the Agents hereunder, and ~~carry out its obligations hereunder~~ any options, warrants, agreements and ~~thereunder and~~ convertible notes disclosed in Schedule "A" to ~~authorize and issue~~ this Agreement, there are no, nor will there be immediately prior to the ~~Offered Subscription Receipts and~~Time of Closing, documents, instruments or other writings of any kind whatsoever which constitute a "security" (as that term is defined under Canadian Applicable Securities Laws) of the Corporation; (g) subject to due exercise (including payment in full of the applicable subscription price, if any) of the instruments pursuant to which they are issued, if any, upon ~~exchange of the Offered Subscription Receipts~~their issuance, the ~~Underlying~~ Shares, the Commission Shares, the Corporate Finance Fee Shares and the Compensation Option Shares will be validly issued and outstanding as fully paid and non-assessable ~~Common Shares in the capital~~ common shares of the Corporation; ~~4.1.3 each~~ (h) upon their issuance, the Compensation Options will have been validly created and issued and will be outstanding, registered in the names of the holders thereof; (i) of the material transactions of the Corporation have been promptly and properly recorded or filed in or with the books or records of the Corporation and the ~~Subsidiaries~~ minute books of the Corporation contain all records of the meetings and proceedings of the Corporation's directors, shareholders and other committees, if any; (j) with respect to the two years preceding the date hereof, all prospectuses, annual information forms, material change reports, shareholder communications, press releases, publicly filed financial statements, and other disclosure documents of the Corporation (collectively the "Disclosure Documents") contain no untrue statement of a Material Fact relating to the Corporation as at the date on which such documents were filed on SEDAR nor do they omit to state a Material Fact relating to the Corporation which, at the date on which such documents were filed on SEDAR, 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 and were prepared in accordance with and complied with Applicable Securities Laws; (k) the Corporation holds all material licences and permits that are required for carrying on its business in the manner in which such business has been carried on and each of the foregoing is in full force and effect; (1) the Corporation has the corporate power and capacity to own the assets owned by it and to carry on the business carried on by it and the Corporation is duly qualified to carry on business in all jurisdictions in which it carries on business; (m) the Corporation has good and marketable title to its assets free and clear of all liens, charges and encumbrances of any kind whatsoever except as detailed in the agreements with respect to the acquisition of such assets as set forth in Schedule "B" or in any relevant title opinions previously obtained by it with respect to any -7 such assets (copies of which have been provided to the Agents) or set out in the Corporation's Disclosure Documents; (n) the Corporation holds either exploration or exploitation concessions or claims or other conventional property, proprietary or contractual interests or rights, recognized in the jurisdiction in which a particular mineral property is located, in respect of the minerals located in properties in which it has, or has a right to acquire, an interest under valid, subsisting and enforceable title documents or other recognized and enforceable agreements or instruments, sufficient to permit it to explore the minerals relating thereto, all such property, leases or claims and all property, leases or claims in which it has any interest or right have been validly located and recorded in accordance with all applicable laws and are valid and subsisting, it has all necessary surface rights, access rights and other necessary rights and interests relating to the mineral properties in which it has an interest granting it the right and ability to explore for minerals for development purposes as are appropriate in view of the rights and interest therein of it, with only such exceptions as do not materially interfere with the use made by it of the rights or interests so held, and each of the proprietary interests or rights and each of the documents, agreements and instruments and obligations relating thereto referred to above is currently in good standing in its name; (o) the Corporation is current with all material filings required to be made ~~under the laws of the~~ in all jurisdictions in which it exists or carries on any material business and ~~has all necessary licences~~the Corporation is not in default of any filings required to be made under Applicable Securities Laws; (p) the audited consolidated financial statements of the Corporation for its fiscal year ended December 31, ~~leases~~2003 and the unaudited consolidated financial statements of the Corporation for the interim six month period ended June 30, ~~permits~~2004 (collectively, ~~authorizations~~ the "Financial Statements") are true and ~~other approvals necessary to permit it to conduct its business as it is currently conducted, except where~~ correct in every material respect and present fairly and accurately the ~~absence~~ consolidated financial position and results of ~~such power~~ the operations of the Corporation for the periods then ended and ~~authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not~~ the Financial Statements have ~~a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect~~ been prepared in accordance with ~~their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have~~ Canadian generally accepted accounting principles applied on a ~~Material Adverse Effect~~consistent basis; ~~4.1.4~~ (q) there are no material liabilities of the ~~authorized capital~~ Corporation, whether direct, indirect, absolute or, to the best of the Corporation's knowledge, contingent or otherwise which are not disclosed or reflected in the Corporation's Financial Statements except those incurred in the ordinary course of business of the Corporation ~~consists of an unlimited number of Common Shares~~ since June 30, 2004 and ~~of preferred shares of which, as of the close of business on July 3, 2014, 94,792,906 Common Shares were issued and outstanding as fully paid and non-assessable shares~~ which are recorded in the ~~capital~~ books and records of the Corporation; ~~4.1.5 except as set forth~~ (r) since June 30, 2004 there has not been any adverse Material Change of any kind whatsoever in ~~Schedule B attached hereto~~the financial position or condition of the Corporation, ~~no person has~~ or any ~~agreement~~damage, ~~option~~loss or other change of any kind whatsoever in circumstances materially affecting the business or assets of the Corporation, or the right or ~~privilege (whether pre-emptive or contractual) capable of becoming an agreement for the purchase, subscription or issuance of any securities~~ capacity of the Corporation ~~from or by~~ to carry on its business; -8 (s) the ~~Corporation~~ contracts and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material Subsidiaries; 4.1.8 except as described agreements set out in Schedule E and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly "B" hereto constitute all of the ~~issued~~ material contracts and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Subsidiaries is: (a) in breach or violation of any of the terms or provisions of, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation of the provisions of its articles, by-laws or resolutions or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions agreements of the Corporation or presently in force, and all such contracts and agreements are in good standing in all material respects and not in default in any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effectrespect; ~~4.1.11 other than as will have been obtained prior to the Closing Date~~ (t) all tax returns and ~~other than the approval of the shareholders~~ reports of the Corporation required by law to ~~be obtained at~~ have been filed have been filed and are substantially true, complete and correct and all taxes and other government charges of any kind whatsoever of it have been paid or accrued in the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying SharesFinancial Statements; ~~4.1.12~~ (u) except as disclosed in Schedule "C" hereto, to the ~~Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares~~best of its knowledge, ~~when issued~~there are no actions, ~~will be validly issued as fully paid and non-assessable Common Shares in the capital~~ suits, judgments, investigations or proceedings of ~~the Corporation~~any kind whatsoever outstanding, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of pending or threatened against or affecting the Corporation or ~~the laws of Québec; 4.1.15 the Corporation has not declared~~ its directors, officers or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, promoters at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, ~~board~~ board, bureau or ~~agency~~agency of any kind whatsoever which would result in an adverse Material Change in the financial position, ~~domestic~~ business or ~~foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery~~ prospects of the ~~Offered Subscription Receipts and~~ Corporation and, to the ~~Underlying Shares to be issued by~~ best of its knowledge, there is no basis therefor; (v) neither the Corporation or nor, to the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none best of the Corporation's knowledge, ~~the Subsidiaries nor~~ any ~~other party to any agreement or instrument is~~ of its directors, officers and promoters are in ~~material default in the observance or performance~~ breach of any ~~term~~ law, ordinance, statute, regulation, by-law, order or ~~obligation to be performed by it under~~ decree of any ~~such agreement or instrument to~~ kind whatsoever which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event breach would have a ~~Material Adverse Effect~~material adverse effect on the financial position, business or prospects of the Corporation; ~~4.1.28~~ (w) the Corporation has all requisite power and capacity and good and sufficient right and authority to enter into, deliver and carry out its obligations under this ~~Agreement, the Subscription Agreements, the Acquisition~~ Agreement and the Subscription ~~Receipt~~ Agreements and to complete the transactions contemplated under this Agreement ~~have each~~ on the terms and conditions set forth herein; (x) this Agreement has been ~~duly and validly~~ authorized, executed and delivered by the ~~Corporation, each constitute~~ Corporation and constitutes a valid and legally binding obligation of the Corporation enforceable against it the Corporation in accordance with ~~its terms~~the terms thereof and, ~~except as enforcement thereof may be limited by bankruptcy~~upon being executed and delivered, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the ~~Corporation~~ Subscription Agreements and the ~~Subsidiaries is~~ certificates representing the ~~owner~~ Compensation Options will constitute a valid and legally binding obligation of the Corporation enforceable against the Corporation in accordance with the terms thereof, subject to laws of general application with respect to bankruptcy and creditors' rights and the principles of equity; (y) the execution and delivery of this Agreement and the Subscription Agreements, the performance of its ~~properties~~obligations under this Agreement and the completion of the transactions contemplated under this Agreement will not conflict with, ~~business and assets~~ or result in the breach of or the ~~interests in its properties~~acceleration of any indebtedness under, ~~business~~ or ~~assets~~constitute default under, ~~and all agreements under which~~ the Articles or By-Laws of the Corporation or ~~either~~ any indenture, mortgage, agreement, lease, licence or other instrument of ~~the Subsidiaries holds an interest in a property, business or asset are in good standing according~~ any kind whatsoever to ~~their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect; 4.1.30~~ which the Corporation is a ~~“reporting issuer”~~party or by which it or any of its properties or assets is bound, ~~not included in a list~~ or, to the best of ~~defaulting reporting issuers maintained by the Securities Regulators~~ its knowledge, any statute or any judgment, decree, order, rule, policy or regulation of ~~each~~ any court, governmental authority or administrative body of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating any kind whatsoever applicable to the Corporation or any of its properties or assets, which ~~has occurred~~ could have a material adverse effect on the condition, business, properties or results of operations of the Corporation; and (z) except as disclosed herein and ~~with respect to which the requisite material change report has not been filed with a Securities Regulator~~ in the ~~Provinces of British Columbia~~Disclosure Documents, ~~Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect~~ to the ~~Offering~~ best of its knowledge, no action has been taken by any persons which would in any way limit, restrict or cause interference with any mineral exploration and ~~Proposed Acquisition~~ development work which either the Corporation or the Subsidiary currently proposes to carry out on its mineral properties. 4.2 The representations and ~~financing thereof; 4.1.31 all forward-looking information and statements~~ warranties of the Corporation contained in this Section 4 of the ~~Corporation’s Information Record, including any forecasts and estimates, expressions~~ Agreement shall be true at the applicable Time of ~~opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances,~~ Closing and the ~~Corporation has updated such forward-looking information and statements~~ applicable Closing Date as ~~required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws~~ though they were made at the ~~time they were filed and such documents,~~ applicable Time of Closing and the ~~statements set forth therein, were true~~ applicable Closing Date and ~~correct in all material respects and contained no misrepresentations at~~ they shall survive the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution completion of the ~~Offered Subscription Receipts or~~ transactions contemplated under this Agreement for a period of two years from the ~~Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the Co~~applicable Closing Date.

Appears in 1 contract

Sources: Agency Agreement (Fronteer Development Group Inc)

Representations and Warranties of the Corporation. The Corporation hereby represents and warrants to and with the ~~Underwriters, the U.S. Affiliate~~ Agent (on its own behalf and ~~to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements), and acknowledges that each~~ on behalf of ~~them is relying upon such representations and warranties, that: 4.1.1~~ each of the Purchasers) that as at the date hereof, other than as set forth in the Disclosure Documents: (a) the Corporation and ~~the Subsidiaries~~ each Subsidiary has been duly organized and is validly ~~subsisting~~ existing and in good standing under the laws of its ~~governing jurisdiction,~~ jurisdiction of organization and has all requisite power and authority necessary to, and is qualified to, carry on its business as now conducted, and to own or lease its properties and assets in all jurisdictions in which it currently carries on business and/or owns or leases its properties and assets; and the Corporation has all required corporate power and authority to ~~own~~create, ~~lease~~ issue and ~~operate its properties~~ sell the Offered Securities and ~~assets and conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2~~ the ~~Corporation has all requisite corporate power and authority~~ Compensation Warrants, to enter into this ~~Agreement, the Subscription Agreements, the Acquisition~~ Agreement and the Subscription ~~Receipt Agreement~~ Agreements and to carry out ~~its obligations hereunder and thereunder and to authorize and issue~~ the ~~Offered Subscription Receipts and, upon exchange~~ provisions of ~~the Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares in the capital~~ each of ~~the Corporation~~such agreements; 4.1.3 each of the Corporation and the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 (b) the authorized capital of the Corporation consists of an unlimited number of Common Shares ~~and of preferred shares~~ of which, as of ~~the close of business on July 3~~February 21, ~~2014~~2007, ~~94,792,906~~ 142,302,285 Common Shares ~~were~~ are issued and outstanding as fully paid and non-assessable shares in the capital of the Corporation; ~~4.1.5 except as set forth in Schedule B attached hereto, no person has any agreement, option, right or privilege~~ (~~whether pre-emptive or contractual~~c) capable of becoming an agreement for the purchase, subscription or issuance of any securities of the Corporation from or by the Corporation and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no ~~material~~ subsidiaries other than the ~~Material Subsidiaries; 4.1.8 except as described~~ Subsidiaries listed in Schedule E and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries "C" and the Corporation beneficially owns, directly or ~~indirectly~~ indirectly, the percentage indicated of all of the issued and outstanding shares in the capital of ~~the Subsidiaries~~ each Subsidiary free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as ~~fully~~ fully-paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue or allotment of any unissued shares in the capital of ~~the Subsidiaries~~ any Subsidiary or any other security convertible into or exchangeable for any such shares; ~~4.1.9 neither~~ (d) the Corporation ~~nor~~ does not have any of Significant Interest Companies other than the ~~Subsidiaries is:~~Subsidiaries; (ae) ~~in breach or violation of any of~~ no order prohibiting the terms or provisions of, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation of the provisions of its articles, by-laws or resolutions or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance sale of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, Securities or the issuance of the ~~Offered Subscription Receipts~~ Compensation Warrants has been issued and ~~Underlying Shares; 4.1.12~~ no proceedings for such purpose are pending or, to the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital knowledge of the Corporation, ~~and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements~~threatened; ~~4.1.13 the Preferred Shares~~(f) no person, ~~the Commitment Shares and the Commitment Warrants will~~firm or corporation, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation or the laws of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to has any agreement or option, or any right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the ~~Best of the Corporation’s Knowledge~~purchase, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware subscription or issuance of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none securities of the Corporation, ~~the Subsidiaries nor any~~ other ~~party to any agreement or instrument is~~ than as set out in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse EffectSchedule "D"; ~~4.1.28 this Agreement~~(g) other than as disclosed in Schedule "D", the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and the Subsidiaries has conducted and is conducting its business in compliance in all material respects with all applicable laws and regulations of each jurisdiction in which it carries on business (including, without limitation, all applicable Canadian federal, provincial, municipal and local environmental, anti-pollution and licensing laws, regulations and other lawful requirements of any governmental or regulatory body, including, but not limited to relevant exploration and exploitation permits and concessions) and 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 or permits which would have a material adverse effect on the Corporation or the Subsidiaries; (h) the Corporation or a Subsidiary is the beneficial owner of ~~its~~ the properties, business and assets or the interests in ~~its~~ the properties, business or ~~assets~~assets referred to as owned by it in the Disclosure Documents, ~~and~~ all agreements under which the Corporation or ~~either of the Subsidiaries~~ a Subsidiary holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a ~~Material Adverse Effect; 4.1.30~~ material adverse effect on the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made (on a ~~confidential basis that is still maintained on a confidential~~ consolidated basis) or its properties, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario business or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstancesassets, and the ~~Corporation has updated such forward-looking information and statements~~ Disclosure Documents were as ~~required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws~~ at the ~~time they were filed and such documents, and the statements set forth therein, were~~ respective dates thereof true and correct in all material respects concerning the Corporation and the Subsidiaries, and contained no ~~misrepresentations at the time they were filed~~material misrepresentations; ~~4.1.33~~ (i) all information which has been prepared by the ~~Circular will comply in~~ Corporation relating to the Corporation and the Subsidiaries and their business, property and liabilities and either publicly disclosed or provided to the Agent, including all ~~material respects with Canadian Securities Laws at~~ financial, marketing and operational information provided to the ~~time it will be filed and will be~~ Agent is, as of the date of such information, true and correct in all material respects, ~~contain~~ and no ~~misrepresentations~~ fact or facts have been omitted therefrom which would make such information materially misleading; (j) the Corporation has, and to the best of the Corporation's knowledge the directors and officers of the Corporation have, answered every question or inquiry of the Agent and their counsel in connection with the Agent's due diligence investigations fully and truthfully; (k) the Corporation is not aware of any legislation, or proposed legislation (published by a legislative body), which it anticipates will materially and adversely affect the business, affairs, operations, assets or liabilities (contingent or otherwise) of the Corporation and the Subsidiaries, considered as a whole; (l) the Corporation and each Subsidiary has obtained all certificates, authorizations, permits or licences necessary to conduct the business now owned or operated by it and the Corporation has not received any notice of proceedings relating to the revocation or modification of any material certificate, authority, permit or license necessary which, if the subject of an unfavourable decision, ruling or finding would materially and adversely affect the conduct of the business, operations, financial condition or income of the Corporation (on a consolidated basis); (m) the execution and delivery of this Agreement and the Subscription Agreements and the performance of the transactions contemplated thereunder does not and will not: (i) require the consent, approval, authorization, registration or qualification of or with any governmental authority, stock exchange, securities regulatory authority or other third party, except: (i) such as have been obtained; or (ii) such as may be required under the applicable by-laws, policies, regulations and prescribed forms of the Exchange and the AMEX; (ii) result in a breach of or default under, nor create a state of facts which, after notice or lapse of time or both, would result in a breach of or default under, nor conflict with: (A) any of the terms, conditions or provisions of the constating documents or resolutions of the shareholders, directors or any committee of directors of the Corporation or any Subsidiary or any material indenture, agreement or instrument to which the Corporation or any Subsidiary is a party or by which it or they are contractually bound; or (B) any statute, rule, regulation or law applicable to the Corporation, or the Subsidiaries including, without limitation, the Applicable Securities Laws of the Offering Jurisdictions, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Corporation or the Subsidiaries; or (C) any material mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Corporation or any Subsidiary is a party or by which the Corporation or any Subsidiary or a material portion of the assets of the Corporation or any Subsidiary are bound (a "Material Agreement"), or any judgment, decree, order, statute, rule or regulation applicable to any of them; and (iii) except as encumbered hereby, only, give rise to any lien, charge or claim in or with respect to the properties or assets now owned or hereafter acquired by the Corporation or any Subsidiary or the acceleration of or the maturity of any debt under any indenture, mortgage, lease, agreement or instrument binding or affecting any of them or any of their properties; (n) the auditors of the Corporation are independent public accountants as required by the Applicable Securities Laws and there has never been any reportable disagreement (within the meaning of National Instrument 51-102 - Continuous Disclosure) with the present or any former auditor of the Corporation; (o) the Corporation and each Subsidiary has filed all federal, provincial, territorial, state, local and foreign tax returns that are required to be filed or have requested extensions thereof (except in any case in which the failure so to file would not have a material adverse effect on the assets and properties, business, results of operations or financial condition of the Corporation) on a consolidated basis 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 any such assessment, fine or penalty that is currently being contested in good faith; (p) the Corporation and each Subsidiary has established on its books and records reserves that are adequate for the payment of all taxes not yet due and payable and there are no liens for taxes on the assets of the Corporation or any Subsidiary and there are no audits known by the Corporation's management to be pending of the tax returns of the Corporation or any Subsidiary (whether federal, state, provincial, territorial, local or foreign) and there are no claims which have been or may be asserted relating to any such tax returns, which audits and claims, if determined adversely, would result in the assertion by any governmental agency of any deficiency that would have a material adverse effect on the assets or properties, business, results of operations or financial condition of the Corporation (on a consolidated basis); (q) no domestic or foreign taxation authority has asserted or, to the best of the Corporation's knowledge, threatened to assert any assessment, claim or liability for taxes due or to become due in connection with any review or examination of the tax returns of the Corporation or each Subsidiary (including, without limitation, any predecessor companies) filed for any year which would have a material adverse effect on the assets or properties, business, results of operations or financial condition of the Corporation (on a consolidated basis); (r) the Corporation and each Subsidiary maintains a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; (s) neither the Corporation nor, to the best of the Corporation's knowledge, any other party is in material default in the observance or performance of any term or obligation to be performed by it under any of the Material Agreements and no event has occurred which with notice or lapse of time or both would constitute such a default, in any such case which default or event would have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Corporation (on a consolidated basis); (t) at the ~~time it~~ Time of Closing on the Closing Date, the Corporation will have filed all documents, taken all proceedings and obtained all regulatory consents necessary as a precondition to the sale of the Offered Securities and the issuance of the Compensation Warrants hereunder; (u) this Agreement, the Subscription Agreements and the Compensation Warrants shall be, by the Time of Closing, duly authorized, executed and delivered by the Corporation and shall be ~~filed~~ legal, valid and binding obligations of the Corporation, enforceable in accordance with their terms (except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights generally, (ii) general equitable principles or (iii) limitations under applicable law in respect of rights of indemnity, contribution and waiver of contribution); (v) the attributes of the Debenture Warrants will conform in all material respects with the description thereof contained in the Subscription Agreements; (w) at the Time of Closing: (i) the creation and issuance of the Offered Securities will have been validly authorized and issued; (ii) the creation and issuance of the Compensation Warrants will have been validly authorized and issued; (iii) upon the conversion of the Debentures, in accordance with the provisions thereof, the Debenture Common Shares will have been validly authorized and issued by the Corporation as fully paid and non-assessable Common Shares of the Corporation, and will not ~~omit~~ have been issued in violation of or subject to any ~~fact required~~ pre-emptive rights or other contractual rights to ~~be stated~~ purchase securities issued by the Corporation; (iv) upon the exercise of the Debenture Warrants in ~~such document~~ accordance with the provisions thereof, the Debenture Shares will have been validly authorized and issued by the Corporation as fully paid and non-assessable Common Shares of the Corporation, and will not have been issued in violation of or ~~necessary~~ subject to ~~make~~ any ~~statement~~ pre-emptive rights or other contractual rights to purchase securities issued by the Corporation; and (v) upon the exercise of the Compensation Warrants in ~~such document~~ accordance with the provisions thereof, the Compensation Shares will have been validly authorized and issued by the Corporation as fully paid and non-assessable Common Shares of the Corporation, and will not ~~misleading~~have been issued in violation of or subject to any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation; ~~4.1.34 no securities commission~~(x) other than the Agent and Shoreline Pacific, ~~stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution~~ LLC in respect of the ~~Offered Subscription Receipts~~ Shoreline Subscriptions, there is no person acting or purporting to act at the ~~Underlying Shares~~ request of the Corporation, who is entitled to any brokerage or agency fee in connection with the transactions contemplated herein and in the ~~manner contemplated herein~~event any person acting or purporting to act for the Corporation establishes a claim for any such fee from the Agent, ~~if any~~the Corporation covenants to indemnify and hold harmless the Agent with respect thereto and with respect to all costs reasonably incurred in the defence thereof; (y) the minute books and corporate records of the Corporation and each Subsidiary made available to the Agent in connection with their due diligence investigations of the Corporation for the periods from December 31, ~~nor instituted~~ 2003 to the date of examination thereof contain all material proceedings ~~for that purpose and~~(or certified copies thereof) of the shareholders, the board of directors and all committees of the board of directors of the Corporation or such Subsidiary, as the case may be, and there have been no other meetings, resolutions or proceedings of the shareholders, board of directors or any committee of the board of directors of the Corporation or such Subsidiary, as the case may be, to the ~~Best~~ date of review of such corporate records and minute books not reflected in such minute books and other records; (z) there is not, in the constating documents or by-laws of the CoCorporation or any Subsidiary or in any agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation or any Subsidiary is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by the Corporation to the holders of its Common Shares; (aa) the audited annual financial statements of the Corporation (the "Financial Statements") (i) have been prepared in accordance with generally accepted accounting principles in Canada consistently applied throughout the period referred to therein, (ii) present fairly, in all material respects, t

Appears in 1 contract

Sources: Agency Agreement (Apollo Gold Corp)

Representations and Warranties of the Corporation. (1) The Corporation hereby represents and warrants to the ~~Underwriters~~U.S. Agents, intending that the same may be relied upon by the U.S. Affiliate and to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements), and acknowledges that each of them is relying upon such representations and warrantiesAgents, that: ~~4.1.1~~ (a) each of the Corporation and the Material Subsidiaries has been duly incorporated, continued or amalgamated and organized and is validly ~~subsisting~~ existing under the laws of its ~~governing jurisdiction~~jurisdiction of incorporation, ~~and~~ continuance or amalgamation, has all requisite corporate power and authority to carry on its business as now conducted and as contemplated by the U.S. Prospectus, and to own, lease and operate its properties and ~~assets~~ assets, and ~~conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2~~ the Corporation has all requisite ~~corporate~~ power and authority to ~~enter into this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement and~~ carry out its obligations ~~hereunder and thereunder and to authorize and issue~~ under this U.S. Agreement; (b) the ~~Offered Subscription Receipts and, upon exchange~~ only major operating subsidiaries of the ~~Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares~~ Corporation are listed in ~~the capital of the Corporation~~Schedule A; ~~4.1.3~~ (c) the Corporation or one of its Material Subsidiaries owns the issued and outstanding shares of each of the ~~Corporation~~ Material Subsidiaries as set out in Schedule A, in each case free and clear of any pledge, lien, security interest, charge, claim or encumbrance; (d) upon completion of the acquisition of the Wassa Transactions (as defined below) as described in the U.S. Preliminary Prospectus and the ~~Subsidiaries~~ U.S. Prospectus, Wasford Holdings will own 90% of the issued and outstanding shares of Wexford Goldfields Limited, free and clear of any pledge, lien, security interest, charge, claim or encumbrance, other than as is ~~current with all material filings required to be made~~ held for the benefit of Bayerische Hypo-und Vereinsbank AG, Dresdner Bank AG, Fortis Bank (Nederland) N.V. and Standard Bank London Limited (the "SECURED BANKS"), which banks are providing funding in respect of the acquisition; (e) the Corporation meets the requirements for the use of Form S-3 under the ~~laws~~ U.S. Securities Act; (f) no order, ruling or determination having the effect of ceasing, suspending or restricting trading in any securities of the ~~jurisdictions~~ Corporation or the sale of the Common Shares or Warrants comprised in ~~which it exists~~ the Securities has been issued and no proceedings, investigations or ~~carries~~ inquiries for such purpose are pending or, to the Corporation's knowledge, threatened; (g) the Corporation's Common Shares are posted and listed for trading on the Exchanges and the Corporation is not in default in any material ~~business~~ respect of any of the listing requirements of the Exchanges; (h) other than options under the Corporation's Stock Option Plans, the Corporation is not a party to and has ~~all necessary licences~~not entered into any agreement, ~~leases~~warrant, ~~permits~~option, ~~authorizations and~~ right or privilege reasonably capable of becoming an agreement, for the purchase, subscription or issuance of any Common Shares or securities convertible into or exchangeable for Common Shares other ~~approvals necessary to permit it to conduct its business~~ than as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are set out in ~~full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect~~Schedule C; ~~4.1.4~~ (i) as at the date hereof, the authorized share capital of the Corporation consists of an unlimited number of Common Shares and an unlimited number of ~~preferred~~ First Preferred shares, of which - Common Shares and no First Preferred shares ~~of which, as~~ are issued and outstanding; (j) the Corporation and each of the ~~close~~ Material Subsidiaries have conducted and are conducting their respective businesses in compliance with all applicable laws, rules, regulations, tariffs, orders and directives, including without limitation, all laws, regulations and statutes relating to mining and to mining claims, concessions or leases, and environmental, health and safety laws, rules, regulations, or policies or other lawful requirements of ~~business~~ any governmental or regulatory bodies having jurisdiction over the Corporation and the Material Subsidiaries in each jurisdiction in which the Corporation or the Material Subsidiaries carries on ~~July 3~~their respective businesses, ~~2014, 94,792,906 Common Shares were issued and outstanding as fully paid and non-assessable shares~~ other than those in respect of which the failure to comply would not individually or in the ~~capital~~ aggregate be material, and each of the Corporation and the Material Subsidiaries holds all certificates, authorities, permits, licenses, registrations and qualifications (collectively, the "AUTHORITIES") in all jurisdictions in which each carries on its business and which are material for and necessary or desirable to carry on their respective businesses as now conducted and to the best of the Corporation~~; 4.1.5 except as set forth~~ 's knowledge, information and belief all the Authorities are valid and existing and in ~~Schedule B attached hereto~~good standing and none of the Authorities contain any burdensome term, ~~no person~~ provision, condition or limitation which has or is likely to have any ~~agreement, option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for~~ material adverse effect on the ~~purchase, subscription or issuance of any securities~~ business of the Corporation ~~from or by the Corporation~~ and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material ~~Subsidiaries; 4.1.8 except~~ Subsidiaries (taken as ~~described in Schedule E~~ a whole) as now conducted or as proposed to be conducted, and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Material Subsidiaries ~~is: (a) in breach~~ has received any notice of proceedings relating to the revocation or ~~violation~~ modification of any of the ~~terms or provisions of~~Authorities which, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone singly or in the aggregate, ~~have a Material Adverse Effect; or (b) in violation~~ if the subject of an unfavourable decision, ruling or finding, would materially adversely affect the ~~provisions of its articles~~business, ~~by-laws or resolutions or any statute or any order~~operations, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions offinancial condition, or constitute a default under (whether after notice or lapse of time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents income of the Corporation or the ~~laws~~ Material Subsidiaries (taken as a whole) or any notice of ~~Québec~~the revocation or cancellation of, or any intention to revoke or cancel, any of the mining claims, concessions or leases comprising: (i) the Bogoso property; ~~4.1.15~~ (ii) the Prestea property; (iii) the Paul Isnard property; (iv) the Yaou and Dorlin properti▇▇; ▇▇▇ (v) the St. Elie property; (each as described in the Form 10-K of the Corporation dated March 25, 2002, collectively referred to herein as the "RESOURCE PROPERTIES", and the Bogoso property and the Prestea property collectively being referred to herein as the "MATERIAL RESOURCE PROPERTIES"); (k) neither the Corporation nor any of the Material Subsidiaries has received any notice of the revocation or cancellation of, or any intention to revoke or cancel, any of the material mining claims, concessions or leases comprising the Wassa property; (l) the Corporation and each of its Material Subsidiaries have good and marketable title to all assets owned by them free and clear of all liens, charges and encumbrances, other than as will be held for the benefit of the Secured Banks, which banks are providing funding in respect of the acquisition of Wexford Goldfields Limited, upon completion of such acquisition, and other than such liens, charges and encumbrances that are not ~~declared~~ individually or ~~paid~~ in the aggregate material to the Corporation or the Material Subsidiaries; (m) all interests in the Resource Properties are owned, leased or held by the Corporation or its Material Subsidiaries as owner or lessee thereof, are so owned with good and marketable title or are so leased with good and valid title, are in good standing, are valid and enforceable, are free and clear of any ~~dividends~~ liens, charges or ~~declared or made any other payments or distributions on or~~ encumbrances and no royalty is payable in respect of any of ~~its securities and has not~~them, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (except as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, set out in the ~~constating documents of~~ U.S. Prospectus or the Incorporated Documents or as are not individually or in the aggregate material to the Corporation or ~~in any~~ the Material ~~Agreement~~Subsidiaries, ~~mortgage, note, debenture, indenture~~ or other ~~instrument~~ than as would not have a material effect on the value of such interests; no other material property rights are necessary for the conduct or ~~document to which~~ intended conduct of the ~~Corporation is a party, any restriction upon~~ Corporation's or ~~impediment to~~ the ~~declaration or payment of dividends by~~ Material Subsidiaries' business and there are no restrictions on the ~~directors~~ ability of the Corporation or the ~~payment of dividends by a Subsidiary~~ Material Subsidiaries to ~~its parent~~ use, transfer or otherwise exploit any such property rights, except as set out in the U.S. Prospectus or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment LettersIncorporated Documents; ~~4.1.18~~ (n) the Corporation is ~~not aware~~in the process of acquiring, ~~based on~~ through its ~~due diligence to date~~ wholly-owned subsidiary Wasford Holdings, 90% of the ~~Target~~equity of Wexford Goldfields Limited, ~~including financial due diligence,~~ which is in the process of ~~any fact or circumstance which would be likely to have a Material Adverse Effect following completion~~ acquiring all interests in the Wassa gold property in Ghana' (the "Wassa Transactions"). The Wassa property and the current terms of the ~~Proposed Acquisition; 4.1.19 the Acquisition Agreement~~ Wassa Transactions are as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation described in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers U.S. Preliminary Prospectus and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none of the Corporation, the Subsidiaries nor any other party to any agreement or instrument is in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in its properties, business or assets, and all agreements under which the Corporation or either of the Subsidiaries holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect; 4.1.30 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the CoU.S.

Appears in 1 contract

Sources: u.s. Agency Agreement (Golden Star Resources LTD)

Representations and Warranties of the Corporation. The Corporation represents and warrants to the ~~Underwriters, the U.S. Affiliate and to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements)~~Purchasers, and acknowledges that each of them is relying upon such representations and warranties, ~~that:~~that (it being agreed that any representation and warranty made in respect of the Target and its subsidiaries is made to the Best of the Corporation’s Knowledge): 4.1.1 each of the Corporation and the Subsidiaries is validly subsisting under the laws of its governing jurisdiction, and has all requisite corporate power and authority to own, lease and operate its properties and assets and conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2 the Corporation has all requisite corporate power and authority to enter into this ~~Agreement, the Subscription Agreements, the Acquisition~~ Agreement and the ~~Subscription Receipt~~ Acquisition Agreement and carry out its obligations hereunder and thereunder and to authorize and issue the Offered ~~Subscription Receipts~~ Securities and, upon exchange of the Offered ~~Subscription Receipts~~Preferred Shares or exercise of the Warrants, the Underlying Shares as fully paid and non-assessable Common Shares in the capital of the Corporation; 4.1.3 each of the Corporation and the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 the authorized capital of the Corporation consists of an unlimited number of Common Shares and of ~~preferred shares~~ 1,139,356 Preferred Shares of which, as of the close of business on July 330, 2014, ~~94,792,906~~ 95,261,306 Common Shares were issued and outstanding as fully paid and non-assessable shares in the capital of the Corporation; 4.1.5 except as set forth in Schedule B D attached hereto, no person has any agreement, option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for the purchase, subscription or issuance of any securities of the Corporation from or by the Corporation and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation, except for the Voting Disenfranchisement Agreement to be entered into as of the Closing as well as the voting disenfranchisement agreement to be entered into with BlackRock; 4.1.7 the Corporation has no material subsidiaries other than the Material ~~Subsidiaries~~Subsidiaries and, from and after Closing, the Target ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entities; 4.1.8 except as described in Schedule E G and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) ~~$3,850,000~~ CDN$3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December ~~31, 2018~~31,2018, which are convertible at the option of the holder into common shares of Intertain at a price of ~~$6.00~~ CDN$6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of ~~$5.00~~ CDN$5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Subsidiaries is: (a) in breach or violation of any of the terms or provisions of, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation of the provisions of (i) its articles, by-laws or resolutions or (ii) any statute (including the PATRIOT Act) or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which (in the case of clause (ii) above) violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this ~~Agreement, the Subscription Agreements, the Subscription Receipt~~ Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the ~~Offering~~ Issuance and the issuance of the Offered ~~Subscription Receipts~~ Securities and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of (i) the provisions of the articles, by-laws or resolutions of the Corporation or (ii) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which (in the case of clause (ii) above) violation or the consequences ~~thereof would~~thereof, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any ~~person, court or~~ Governmental Authority or body is required for execution and delivery of this ~~Agreement, the Subscription Agreements the Acquisition~~ Agreement or the ~~Subscription Receipt~~ Acquisition Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered ~~Subscription Receipts~~ Securities and the Underlying Shares; 4.1.12 the Offered ~~Subscription Receipts~~ Securities have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the ~~Subscription Receipts~~ Offered Securities will have the attributes set out in ~~the Subscription Receipt Agreement and the Subscription Agreements~~this Agreement; 4.1.13 the ~~Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the~~ definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, certificate representing the Underlying Shares complies in all material respects with the requirements of the TSX and ~~does~~ such form and those representing the Warrants do not conflict with the constating documents of the Corporation or the laws of Québec; ~~4.1.15~~ 4.1.14 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; ~~4.1.16~~ 4.1.15 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the ~~Proposed~~ Acquisition, the Corporation is not contemplating any such “significant acquisition”; ~~4.1.17~~ 4.1.16 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation or its Subsidiary is a party, any restriction upon or impediment to the declaration or payment of dividends on the Common Shares by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B D hereto; and (iv) the ~~Preferred Shares; and (v) the Commitment Letters~~Credit Facilities Documents; ~~4.1.18~~ 4.1.17 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the ~~Proposed~~ Acquisition; ~~4.1.19~~ 4.1.18 the Acquisition Agreement as provided to the ~~Underwriters~~ Purchasers is complete, true and accurate and has not been amended, terminated or rescinded; ~~4.1.20~~ 4.1.19 the ~~Commitment Letters~~ Preferred Shares Underwriting Agreement, the BlackRock Subscription Agreement and the Subscription Receipt Underwriting Agreement as provided to the ~~Underwriters~~ Purchasers are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.20 the Credit Facilities Documents as provided to the Purchasers are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 ~~the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22~~ as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; ~~4.1.23~~ 4.1.22 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; ~~4.1.24~~ 4.1.23 the Corporation is not aware of any facts or circumstances that would cause it to believe that ~~(i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii)~~ the Acquisition Agreement, the ~~Commitment Letters~~ Preferred Shares Underwriting Agreement, the BlackRock Subscription Agreement, the Subscription Receipt Underwriting Agreement or the Credit Facilities Documents will be terminated; ~~4.1.25~~ 4.1.24 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered ~~Subscription Receipts~~ Securities and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; ~~4.1.26~~ 4.1.25 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this ~~Agreement, the Subscription Receipt~~ Agreement and the certificates, if any, representing the Offered ~~Subscription Receipts~~ Securities and the Underlying Shares; ~~4.1.27~~ 4.1.26 none of the Corporation, the Subsidiaries nor any other party to any agreement or instrument is in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect; ~~4.1.28~~ 4.1.27 this ~~Agreement, the Subscription Agreements, the Acquisition~~ Agreement and the ~~Subscription Receipt~~ Acquisition Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; ~~4.1.29~~ 4.1.28 each of the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in its properties, business or assets, and all agreements under which the Corporation or either of the Subsidiaries holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect; ~~4.1.30~~ 4.1.29 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the ~~Offering and Proposed~~ Acquisition and financing thereof; ~~4.1.31~~ 4.1.30 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with the Applicable Securities ~~Laws~~Laws of the Jurisdictions; ~~4.1.32~~ 4.1.31 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; ~~4.1.33~~ 4.1.32 the Circular ~~will comply~~ complies in all material respects with Canadian Securities Laws and as at the ~~time~~ date of its filing it ~~will be filed and will be~~ was true and correct in all material respects, ~~contain~~ contained no misrepresentations ~~at the time it will be filed~~ and ~~will~~ did not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; ~~4.1.34~~ 4.1.33 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered ~~Subscription Receipts~~ Securities or the Underlying Shares in the manner contemplated herein~~, if any~~, nor instituted proceedings for that purpose and, to the Best of the CoCorporation’s Knowledge, no such proceedings are pending or contemplated; 4.1.34 neither the Corporation nor any of the Subsidiaries has received notice from any Governmental Authority of any jurisdiction in which it carries on a material part of its business, or owns or leases any material property, of an

Appears in 1 contract

Sources: Subscription Agreement (Amaya Inc.)

Representations and Warranties of the Corporation. The Corporation represents and warrants to the ~~Underwriters, the U.S. Affiliate and to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements)~~Purchasers, and acknowledges that each of them is relying upon such representations and warranties, ~~that:~~that (it being agreed that any representation and warranty made in respect of the Target and its subsidiaries is made to the Best of the Corporation’s Knowledge): 4.1.1 each of the Corporation and the Subsidiaries is validly subsisting under the laws of its governing jurisdiction, and has all requisite corporate power and authority to own, lease and operate its properties and assets and conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2 the Corporation has all requisite corporate power and authority to enter into this ~~Agreement, the Subscription Agreements, the Acquisition~~ Agreement and the ~~Subscription Receipt~~ Acquisition Agreement and carry out its obligations hereunder and thereunder and to authorize and issue the Offered ~~Subscription Receipts~~ Securities and, upon exchange of the Offered ~~Subscription Receipts~~Preferred Shares or exercise of the Warrants, the Underlying Shares as fully paid and non-assessable Common Shares in the capital of the Corporation; 4.1.3 each of the Corporation and the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 the authorized capital of the Corporation consists of an unlimited number of Common Shares and of ~~preferred shares~~ 1,139,356 Preferred Shares of which, as of the close of business on July 330, 2014, ~~94,792,906~~ 95,261,306 Common Shares were issued and outstanding as fully paid and non-assessable shares in the capital of the Corporation; 4.1.5 except as set forth in Schedule B D attached hereto, no person has any agreement, option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for the purchase, subscription or issuance of any securities of the Corporation from or by the Corporation and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation, except for the Voting Disenfranchisement Agreement to be entered into as of the Closing as well as the voting disenfranchisement agreement to be entered into with certain funds and/or accounts managed or advised by GSO; 4.1.7 the Corporation has no material subsidiaries other than the Material ~~Subsidiaries~~Subsidiaries and, from and after Closing, the Target ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entities; 4.1.8 except as described in Schedule E G and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) ~~$3,850,000~~ CDN$3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of ~~$6.00~~ CDN$6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of ~~$5.00~~ CDN$5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Subsidiaries is: (a) in breach or violation of any of the terms or provisions of, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation of the provisions of (i) its articles, by-laws or resolutions or (ii) any statute (including the PATRIOT Act) or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which (in the case of clause (ii) above) violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this ~~Agreement, the Subscription Agreements, the Subscription Receipt~~ Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the ~~Offering~~ Issuance and the issuance of the Offered ~~Subscription Receipts~~ Securities and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of (i) the provisions of the articles, by-laws or resolutions of the Corporation or (ii) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which (in the case of clause (ii) above) violation or the consequences ~~thereof would~~thereof, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any ~~person, court or~~ Governmental Authority or body is required for execution and delivery of this ~~Agreement, the Subscription Agreements the Acquisition~~ Agreement or the ~~Subscription Receipt~~ Acquisition Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered ~~Subscription Receipts~~ Securities and the Underlying Shares; 4.1.12 the Offered ~~Subscription Receipts~~ Securities have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the ~~Subscription Receipts~~ Offered Securities will have the attributes set out in ~~the Subscription Receipt Agreement and the Subscription Agreements~~this Agreement; 4.1.13 the ~~Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the~~ definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, certificate representing the Underlying Shares complies in all material respects with the requirements of the TSX and ~~does~~ such form and those representing the Warrants do not conflict with the constating documents of the Corporation or the laws of Québec; ~~4.1.15~~ 4.1.14 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; ~~4.1.16~~ 4.1.15 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the ~~Proposed~~ Acquisition, the Corporation is not contemplating any such “significant acquisition”; ~~4.1.17~~ 4.1.16 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation or its Subsidiary is a party, any restriction upon or impediment to the declaration or payment of dividends on the Common Shares by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B D hereto; and (iv) the ~~Preferred Shares; and (v) the Commitment Letters~~Credit Facilities Documents; ~~4.1.18~~ 4.1.17 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the ~~Proposed~~ Acquisition; ~~4.1.19~~ 4.1.18 the Acquisition Agreement as provided to the ~~Underwriters~~ Purchasers is complete, true and accurate and has not been amended, terminated or rescinded; ~~4.1.20~~ 4.1.19 the ~~Commitment Letters~~ Preferred Shares Underwriting Agreement, the BlackRock Subscription Agreement and the Subscription Receipt Underwriting Agreement as provided to the ~~Underwriters~~ Purchasers are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.20 the Credit Facilities Documents as provided to the Purchasers are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 ~~the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22~~ as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; ~~4.1.23~~ 4.1.22 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; ~~4.1.24~~ 4.1.23 the Corporation is not aware of any facts or circumstances that would cause it to believe that ~~(i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii)~~ the Acquisition Agreement, the ~~Commitment Letters~~ Preferred Shares Underwriting Agreement, the BlackRock Subscription Agreement, the Subscription Receipt Underwriting Agreement or the Credit Facilities Documents will be terminated; ~~4.1.25~~ 4.1.24 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered ~~Subscription Receipts~~ Securities and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; ~~4.1.26~~ 4.1.25 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this ~~Agreement, the Subscription Receipt~~ Agreement and the certificates, if any, representing the Offered ~~Subscription Receipts~~ Securities and the Underlying Shares; ~~4.1.27~~ 4.1.26 none of the Corporation, the Subsidiaries nor any other party to any agreement or instrument is in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect; ~~4.1.28~~ 4.1.27 this ~~Agreement, the Subscription Agreements, the Acquisition~~ Agreement and the ~~Subscription Receipt~~ Acquisition Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; ~~4.1.29~~ 4.1.28 each of the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in its properties, business or assets, and all agreements under which the Corporation or either of the Subsidiaries holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect; ~~4.1.30~~ 4.1.29 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the ~~Offering and Proposed~~ Acquisition and financing thereof; ~~4.1.31~~ 4.1.30 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with the Applicable Securities ~~Laws~~Laws of the Jurisdictions; ~~4.1.32~~ 4.1.31 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; ~~4.1.33~~ 4.1.32 the Circular ~~will comply~~ complies in all material respects with Canadian Securities Laws and as at the ~~time~~ date of its filing it ~~will be filed and will be~~ was true and correct in all material respects, ~~contain~~ contained no misrepresentations ~~at the time it will be filed~~ and ~~will~~ did not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; ~~4.1.34~~ 4.1.33 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered ~~Subscription Receipts~~ Securities or the Underlying Shares in the manner contemplated herein~~, if any~~, nor instituted proceedings for that purpose and, to the Best of the CoCorporation’s Knowledge, no such proceedings are pending or contemplated; 4.1.34 neither the Corporation nor any of the Subsidiaries has received notice from any Governmental Authority of any jurisdiction in which it carries on a material part of its business,

Appears in 1 contract

Sources: Subscription Agreement (Amaya Inc.)

Representations and Warranties of the Corporation. The Corporation represents and warrants to the ~~Underwriters, the U.S. Affiliate and to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements),~~ Agent and acknowledges that ~~each of them~~ the Agent is relying upon such representations and warranties, ~~that~~as follows: ~~4.1.1 each of~~ (a) the Corporation ~~and the Subsidiaries is validly subsisting under the laws of its governing jurisdiction, and~~ has ~~all requisite~~ full corporate power and authority to ~~own~~undertake the Offering, ~~lease~~ the Offering Option and ~~operate its properties and assets and conduct its business as currently conducted and as currently proposed to be conducted~~all other transactions contemplated herein; 4.1.2 the Corporation has all requisite corporate power and authority to enter into this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement and carry out its obligations hereunder and thereunder and to authorize and issue the Offered Subscription Receipts and, upon exchange of the Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares in the capital of the Corporation; 4.1.3 each of the Corporation and the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 (b) the authorized capital of the Corporation consists of ~~an unlimited number~~ 500,000,000 shares of Common ~~Shares and~~ Stock, par value $0.00001 per share, of ~~preferred~~ which at the date hereof 11,109,650 shares of ~~which, as of the close of business on July 3, 2014, 94,792,906~~ Common ~~Shares were~~ Stock are issued and outstanding ~~as fully paid~~ and ~~non-assessable~~ an additional 1,500,000 shares in of Common Stock will be issued after the ~~capital~~ closing of the ~~Corporation; 4.1.5 except as set forth~~ Offering in ~~Schedule B attached hereto, no person has any agreement, option, right or privilege (whether pre-emptive or contractual) capable~~ connection with the transfer of ~~becoming an agreement for the purchase, subscription or issuance of any securities~~ 100% of the ~~Corporation from or by~~ ownership of eBanx [Isle of Man] Ltd. to Cybe▇▇▇▇.▇▇▇ [▇▇le of Man] Ltd., which transfer is subject only to the ~~Corporation~~ issue and ~~no rights, warrants or options~~ sale of in excess of 571,428 shares pursuant to ~~acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is~~ the Offering in ~~force or effect which in any manner affects~~ accordance with the ~~voting or Control of any~~ terms and conditions of the ~~securities~~ share purchase agreement dated November, 1999 between Cybe▇▇▇▇.▇▇▇ [▇▇le of Man] Ltd., Aundyr Enmyn Limited, IFG International (Nominees) Limited, Aundyr Trust and eBan▇.▇▇▇ [▇▇le of Man] Ltd. (the ~~Corporation;~~"eBanx Acquisition Agreement"); and ~~4.1.7~~ (c) the Corporation has no ~~material~~ subsidiaries other than the ~~Material Subsidiaries; 4.1.8 except as described in Schedule E~~ subsidiaries listed below (which list includes eBanx [Isle of Man] Ltd. and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018eBanx [Nevada] Ltd., which ~~are convertible at the option~~ companies will only become subsidiaries of the ~~holder into common shares~~ Corporation after the Closing of ~~Intertain at a price of $6.00 per common share; and~~ the Offering pursuant to the eBanx Acquisition Agreement) (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015collectively, the ~~Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries~~ "subsidiaries") and the Corporation beneficially owns, or will own following the Closing of the Offering in the case of eBanx [Isle of Man] Ltd. and eBanx [Nevada] Ltd., directly or ~~indirectly~~ indirectly, the percentage indicated below of all of the issued and outstanding voting and equity shares in the capital of each of the ~~Subsidiaries~~ subsidiaries free and clear of all mortgages, liens, charges, pledges, security ~~interests~~interest, encumbrances, claims or demands of any kind ~~whatsoever~~whatsoever except as set forth in the financial statements referred to in subparagraph 4(k) below, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue or allotment of any unissued shares in the capital of ~~the Subsidiaries~~ any subsidiary or any other security convertible into or exchangeable for any such shares~~; 4.1.9 neither the Corporation nor any~~ : Beneficial Equity and Voting Name Jurisdiction of the Subsidiaries is: (a) in breach or violation of any of the terms or provisions of, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation of the provisions of its articles, by-laws or resolutions or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation or the laws of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac Incorporation Ownership ---- ----------------------------- --------- Cybe▇▇▇▇.▇▇▇ ~~Credit Agreements,~~ [▇▇le of Man] Ltd. (ii"IOM") ~~the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust~~ Isle of Man Company Information y Technologies Canadian Costa Rica IOM Sistemas de Informacion Technologies Costa Rica IOM eBan▇.▇▇▇ [▇▇le of ~~Canada; (iii~~Man] Ltd.("eBanx IOM") the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date Isle of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none of the Corporation, the Subsidiaries nor any other party to any agreement or instrument is in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in its properties, business or assets, and all agreements under which the Corporation or either of the Subsidiaries holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect; 4.1.30 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the CoMan IOM(1)

Appears in 1 contract

Sources: Agency Agreement (Cyberoad Com Corp)

Representations and Warranties of the Corporation. The Corporation hereby represents and warrants to and with the ~~Underwriters, the U.S. Affiliate~~ Underwriters (on their own behalf and ~~to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements), and acknowledges that each~~ on behalf of ~~them is relying upon such representations and warranties, that: 4.1.1~~ each of the Purchasers) that as at the date hereof: (a) the Corporation and each of the Subsidiaries has been duly incorporated and is ~~validly subsisting~~ existing under the laws of its ~~governing jurisdiction,~~ jurisdiction of incorporation and has all requisite power and authority necessary to, and is qualified to, carry on its business as now conducted and to own or lease its properties and assets in all jurisdictions in which it currently carries on business and/or owns or leases its properties and assets; and the Corporation has all required corporate power and authority to ~~own~~allot, ~~lease~~ issue and ~~operate its properties and assets and conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2~~ sell the ~~Corporation has all requisite corporate power and authority~~ Offered Shares, to enter into this ~~Agreement,~~ Agreement and the Subscription Agreements, ~~the Acquisition Agreement~~ and ~~the Subscription Receipt Agreement and~~ to carry out ~~its obligations hereunder and thereunder and to authorize and issue~~ the ~~Offered Subscription Receipts and, upon exchange~~ provisions of ~~the Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares in the capital~~ each of ~~the Corporation~~such agreements; 4.1.3 each of the Corporation and the Subsidiaries is current with all material filings required to be made under the laws of the jurisdictions in which it exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 (b) the authorized capital of the Corporation consists of ~~an unlimited number of~~ 50,000,000 Common ~~Shares and of preferred shares~~ Shares, of which, as of the ~~close of business on July 3~~date hereof, ~~2014, 94,792,906~~ 12,420,108 Common Shares ~~were~~ are issued and outstanding as fully paid and non-assessable shares in the capital of the Corporation; ~~4.1.5 except as set forth in Schedule B attached hereto, no person has any agreement, option, right or privilege~~ (~~whether pre-emptive or contractual~~c) capable of becoming an agreement for the purchase, subscription or issuance of any securities of the Corporation from or by the Corporation and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no ~~material~~ subsidiaries other than the ~~Material Subsidiaries; 4.1.8 except as described in Schedule E~~ Subsidiaries and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially ~~own,~~ own or exercise ~~Control~~ control or direction over, 10% or more of the outstanding voting shares of any company other than ~~its Subsidiaries and~~ such subsidiaries; the Corporation beneficially owns, directly or ~~indirectly all~~ indirectly, 100% of the issued and outstanding shares in the capital of each of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, ; to the best of the Corporation's knowledge all of such shares have been duly authorized and validly issued and are outstanding as ~~fully~~ fully-paid ~~and non-assessable~~ shares ~~and~~ and, in respect of the Subsidiaries only, no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue or allotment of any unissued shares in the capital of ~~the Subsidiaries~~ any Subsidiary or any other security convertible into or exchangeable for any such shares; ~~4.1.9 neither~~ (d) Spectrum Signal Processing (UK) Limited has no material assets or liabilities, is not party to any Material Agreements and no revenues are booked through such Subsidiary; (e) no order ceasing or suspending trading in any securities of the Corporation ~~nor any~~ or prohibiting the sale of the ~~Subsidiaries is: (a) in breach~~ Offered Shares or ~~violation~~ the trading of any of the ~~terms or provisions of~~Corporation's issued securities has been issued and no proceedings for such purpose are pending or, ~~or in default under (whether after notice or lapse~~ to the knowledge of ~~time or both) any indenture~~the Corporation, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; orthreatened; (bf) ~~in violation~~ to the knowledge of the ~~provisions of its articles~~Corporation, ~~by-laws~~ no agreement is in force or ~~resolutions~~ effect which in any manner affects the voting or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation control of any of the ~~terms or provisions of, or constitute a default under (whether after notice or lapse~~ securities of ~~time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which~~ the Corporation or any of its Subsidiaries; (g) except as described in the ~~Subsidiaries~~ Disclosure Documents or as set forth in Schedule "B" hereto and except as contemplated hereby, no person, firm or corporation, as of the date hereof, has any agreement or option, or any right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase, subscription or issuance of any securities of the Corporation; (h) the Corporation is a ~~party~~ reporting issuer under the Applicable Securities Laws in each of British Columbia, Alberta and Ontario, and is a "qualifying issuer" within the meaning of Multilateral Instrument 45-102 - Resale of Securities ("MI 45-102"); the Corporation is not in default in any material respect of any requirement of the Applicable Securities Laws of the Offering Jurisdictions and the Corporation is not included in a list of defaulting reporting issuers maintained by the securities commissions of the Offering Jurisdictions. In particular, without limiting the foregoing, the Corporation is in compliance at the date hereof with its obligations to make timely disclosure of all material changes relating to it and, since December 31, 2001 (other than in respect of material change reports previously filed on a confidential basis and thereafter made public or by material change reports previously filed on a confidential basis and in respect of which it no material change ever resulted), no such disclosure has been made on a confidential basis and there is ~~bound or~~ no material change relating to the Corporation which has occurred and with respect to which ~~any~~ the requisite material change statement has not been filed, except to the extent that the Offering constitutes a material change; (i) the currently issued and outstanding Common Shares of ~~its property~~ the Corporation are listed and posted for trading on the Exchange and NASDAQ and no order ceasing or ~~assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result~~ suspending trading in any ~~violation of the provisions of the articles, by-laws or resolutions~~ securities of the Corporation or ~~any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or~~ prohibiting the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance sale of the Offered ~~Subscription Receipts~~ Shares has been issued and ~~Underlying Shares; 4.1.12~~ no proceedings for such purpose are pending or, to the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital knowledge of the Corporation, ~~and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements~~threatened; ~~4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14~~ (j) the definitive form of ~~certificate, if any,~~ certificate representing the ~~Offered Subscription Receipts~~ Common Shares is in proper form under the laws of the Province of British Columbia and complies ~~in all material respects~~ with the requirements of each of the ~~TSX~~ Exchange and NASDAQ and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation or the laws of QuébecCorporation; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (~~as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations~~k) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none of the Corporation, the Subsidiaries nor any other party to any agreement or instrument is in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and its Subsidiaries has conducted and is conducting its business in material compliance with all applicable laws, rules and regulations of each jurisdiction in which its business is carried on and is licensed, registered or qualified in all jurisdictions in which it owns, leases or operates its property or carries on business to enable its business to be carried on as now or proposed to be conducted and its property and assets to be owned, leased and operated and all such licences, registrations and qualifications are and will at the Time of Closing be valid, subsisting and in good standing, except in each case in respect of matters which do not and will not result in any material adverse change to the business, business prospects or condition (financial or otherwise) of the Corporation and its Subsidiaries (on a consolidated basis), and except for the failure to be so qualified or the absence of any such license, registration or qualification which does not and will not have a material adverse effect on the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Corporation and its Subsidiaries (on a consolidated basis) or on the power or authority of the Corporation to perform its obligations under this Agreement; (l) except as qualified by the disclosure in the Disclosure Documents, each of the Corporation and its Subsidiaries is the beneficial owner of ~~its~~ the properties, business and assets or the interests in ~~its~~ the properties, business or ~~assets~~assets referred to as owned by it in the Disclosure Documents, ~~and~~ all agreements under which the Corporation or ~~either of the~~ its Subsidiaries holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a ~~Material Adverse Effect; 4.1.30~~ material adverse effect on the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and ~~Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with~~ its ~~obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made~~ Subsidiaries (on a ~~confidential basis that is still maintained on a confidential~~ consolidated basis) or its properties, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario business or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstancesassets, and the ~~Corporation has updated such forward-looking information and statements~~ Disclosure Documents were as ~~required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws~~ at the ~~time they were filed and such documents, and the statements set forth therein, were~~ date thereof true and correct in all material respects concerning the Corporation and its Subsidiaries, and contained no ~~misrepresentations~~ misrepresentations; (m) none of the Corporation nor its Subsidiaries has received any notice of proceedings relating to the revocation or modification of any material certificate, authority, permit or license necessary to conduct the business now owned or operated by it which, if the subject of an unfavourable decision, ruling or finding would materially and adversely affect the conduct of the business, operations, financial condition or income of the Corporation and its Subsidiaries (on a consolidated basis); (n) the Corporation is not in default nor in breach in any material respect of, and the execution and delivery of this Agreement, the performance and compliance with the terms hereof and the completion of the transactions described herein by the Corporation will not result in any material breach of, or be in conflict with or constitute a material default under, or create a state of facts which, after notice or lapse of time, or both, would constitute a material default under any term or provision of the constating documents or any resolutions of the Corporation or any material mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Corporation is a party or by which it or a material portion of its assets are bound (a "Material Agreement"), or any judgment, decree, order, statute, rule or regulation applicable to any of them; (o) the auditors of the Corporation who audited the Audited Financial Statements are independent public accountants as required by the Applicable Securities Laws and there has never been any reportable disagreement (within the meaning of National Policy Statement No. 31 of the Canadian Securities Administrators) with the present or any former auditor of the Corporation; (p) the Corporation and each of its Subsidiaries has filed all federal, provincial, state, local and foreign tax returns that are required to be filed or have requested extensions thereof (except in any case in which the failure so to file would not have a material adverse effect on the assets and properties, business, results of operations, prospects or condition (financial or otherwise) of the Corporation and its Subsidiaries (on a consolidated basis)) 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 any such assessment, fine or penalty that is currently being contested in good faith; (q) the Corporation and each of its Subsidiaries has established on its books and records reserves that are adequate for the payment of all taxes not yet due and payable and there are no liens for taxes on the assets of the Corporation or any of its Subsidiaries, and there are no audits known by the Corporation's management to be pending of the tax returns of the Corporation or any of its Subsidiaries (whether federal, state, provincial, local or foreign) and there are no claims which have been or may be asserted relating to any such tax returns, which audits and claims, if determined adversely, would result in the assertion by any governmental agency of any deficiency that would have a material adverse effect on the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Corporation and its Subsidiaries (on a consolidated basis); (r) no domestic or foreign taxation authority has asserted or, to the best of the Corporation's knowledge, threatened to assert any assessment, claim or liability for taxes due or to become due in connection with any review or examination of the tax returns of the Corporation or any of its Subsidiaries (including, without limitation, any predecessor companies) filed for any year which would have a material adverse effect on the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Corporation or any of its Subsidiaries; (s) neither the Corporation nor, to the best of the Corporation's knowledge, any other party is in material default in the observance or performance of any term or obligation to be performed by it under any Material Agreement and no event has occurred which with notice or lapse of time or both would constitute such a default, in any such case which default or event would have a material adverse effect on the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Corporation and its Subsidiaries (on a consolidated basis); (t) at the ~~time they were filed~~Time of Closing, the Corporation will have filed all documents, taken all proceedings and obtained all regulatory consents necessary in connection with the sale of the Offered Shares; ~~4.1.33~~ (u) upon completion of all of the ~~Circular~~ transactions contemplated in this Agreement the Offered Shares will ~~comply~~ be validly issued and outstanding as fully paid and non-assessable and will not have been issued in ~~all~~ violation of or subject to any pre-emptive rights or other contractual rights to purchase securities issued by the Corporation; (v) the execution and delivery of each of this Agreement and the Subscription Agreements and the performance of the transactions contemplated thereunder, the offering and sale of the Offered Shares at the Time of Closing and any compliance by the Corporation with the other provisions of each of such Agreements to be complied with by it does not and will not: (i) require the consent, approval, authorization, registration or qualification of or with any governmental authority, stock exchange, securities regulatory authority or other third party, except: (i) such as have been obtained; or (ii) such as may be required under the applicable by-laws, policies, regulations and prescribed forms of the Exchange or NASDAQ; (ii) result in a breach of or default under, nor create a state of facts which, after notice or lapse of time or both, would result in a breach of or default under, nor conflict with: (1) any of the terms, conditions or provisions of the constating documents or resolutions of the shareholders, directors or any committee of directors of the Corporation or any of its Subsidiaries or any material ~~respects with Canadian~~ indenture, agreement or instrument to which the Corporation or any of its Subsidiaries is a party or by which it or they are contractually bound; or (2) any statute, rule, regulation or law applicable to the Corporation, or any of its Subsidiaries including, without limitation, the Applicable Securities Laws at of the ~~time~~ Offering Jurisdictions, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Corporation or any of its Subsidiaries; and (iii) give rise to any lien, charge or claim in or with respect to the properties or assets now owned or hereafter acquired by the Corporation or its Subsidiaries or the acceleration of or the maturity of any debt under any indenture, mortgage, lease, agreement or instrument binding or affecting any of them or any of their properties; (w) the Corporation is not aware of any legislation, or proposed legislation (published by a legislative body), which it anticipates will be materially and adversely affect the business, affairs, operations, assets, liabilities (contingent or otherwise) or prospects of the Corporation and its Subsidiaries, considered as a whole; (x) the financial statements, press releases, material change reports, management information circulars or annual information forms filed ~~and will be~~ by or on behalf of the Corporation since December 31, 2001 with any Securities Commission, the Exchange or NASDAQ taken together as a whole, are true and correct ~~in all material respects~~and do not contain a misrepresentation, ~~contain no misrepresentations~~ determined as at the ~~time it will be filed~~ date of filing, which has not been corrected; (y) other than the Underwriters, there is no person acting or purporting to act at the request of the Corporation, who is entitled to any brokerage or agency fee in connection with the transactions contemplated herein; (z) the minute books and ~~will~~ records of the Corporation made available to counsel for the Underwriters in connection with its due diligence investigation of the Corporation for the periods from its date of incorporation to the date of examination thereof are all of the minute books and records of the Corporation and contain copies of all proceedings (or certified copies thereof) of the shareholders, the boards of directors and all committees of the boards of directors of the Corporation to the date of review of such corporate records and minute books and there have been no other meetings, resolutions or proceedings of the shareholders, boards of directors or any committees of the boards of directors of the Corporation to the date of review of such corporate records and minute books not ~~omit any fact required to be stated~~ reflected in such ~~document~~ minute books and other records, other than those which have been disclosed to the Underwriters or ~~necessary to make any statement~~ which are not material in ~~such document not misleading~~the context of the Corporation; ~~4.1.34 no securities commission~~(aa) there is not, ~~stock exchange or comparable authority has issued any order preventing or suspending~~ in the ~~offer, sale or distribution~~ constating documents of the ~~Offered Subscription Receipts~~ Corporation or ~~the Underlying Shares~~ in ~~the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the Co~~any material agr

Appears in 1 contract

Sources: Underwriting Agreement (Spectrum Signal Processing Inc)

Representations and Warranties of the Corporation. (1) The Corporation hereby represents and warrants to the ~~Underwriters~~U.S. Agents, intending that the same may be relied upon by the U.S. Affiliate and to the Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements), and acknowledges that each of them is relying upon such representations and warrantiesAgents, that: ~~4.1.1~~ (a) each of the Corporation and the Material Subsidiaries has been duly incorporated, continued or amalgamated and organized and is validly ~~subsisting~~ existing under the laws of its ~~governing jurisdiction~~jurisdiction of incorporation, ~~and~~ continuance or amalgamation, has all requisite corporate power and authority to carry on its business as now conducted and as contemplated by the U.S. Prospectus, and to own, lease and operate its properties and ~~assets~~ assets, and ~~conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2~~ the Corporation has all requisite ~~corporate~~ power and authority to ~~enter into this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement and~~ carry out its obligations ~~hereunder and thereunder and to authorize and issue~~ under this U.S. Agreement; (b) the ~~Offered Subscription Receipts and, upon exchange~~ only major operating subsidiaries of the ~~Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares~~ Corporation are listed in ~~the capital of the Corporation~~Schedule A; ~~4.1.3~~ (c) the Corporation or one of its Material Subsidiaries owns the issued and outstanding shares of each of the ~~Corporation~~ Material Subsidiaries as set out in Schedule A, in each case free and clear of any pledge, lien, security interest, charge, claim or encumbrance; (d) upon completion of the acquisition of the Wassa Transactions (as defined below) as described in the U.S. Preliminary Prospectus and the ~~Subsidiaries~~ U.S. Prospectus, Wasford Holdings will own 90% of the issued and outstanding shares of Wexford Goldfields Limited, free and clear of any pledge, lien, security interest, charge, claim or encumbrance, other than as is ~~current with all material filings required to be made~~ held for the benefit of Bayerische Hypo-und Vereinsbank AG, Dresdner Bank AG, Fortis Bank (Nederland) N.V. and Standard Bank London Limited (the "SECURED BANKS"), which banks are providing funding in respect of the acquisition; (e) the Corporation meets the requirements for the use of Form S-3 under the ~~laws~~ U.S. Securities Act; (f) no order, ruling or determination having the effect of ceasing, suspending or restricting trading in any securities of the ~~jurisdictions~~ Corporation or the sale of the Common Shares or Warrants comprised in ~~which it exists~~ the Securities has been issued and no proceedings, investigations or ~~carries~~ inquiries for such purpose are pending or, to the Corporation's knowledge, threatened; (g) the Corporation's Common Shares are posted and listed for trading on the Exchanges and the Corporation is not in default in any material ~~business~~ respect of any of the listing requirements of the Exchanges; (h) other than options under the Corporation's Stock Option Plans, the Corporation is not a party to and has ~~all necessary licences~~not entered into any agreement, ~~leases~~warrant, ~~permits~~option, ~~authorizations and~~ right or privilege reasonably capable of becoming an agreement, for the purchase, subscription or issuance of any Common Shares or securities convertible into or exchangeable for Common Shares other ~~approvals necessary to permit it to conduct its business~~ than as it is currently conducted, except where the absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would not have a Material Adverse Effect, and all such licences, leases, permits, authorizations and other approvals are set out in ~~full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect~~Schedule C; ~~4.1.4~~ (i) as at the date hereof, the authorized share capital of the Corporation consists of an unlimited number of Common Shares and an unlimited number of ~~preferred~~ First Preferred shares, of which 67,000,703 Common Shares and no First Preferred shares ~~of which, as~~ are issued and outstanding; (j) the Corporation and each of the ~~close~~ Material Subsidiaries have conducted and are conducting their respective businesses in compliance with all applicable laws, rules, regulations, tariffs, orders and directives, including without limitation, all laws, regulations and statutes relating to mining and to mining claims, concessions or leases, and environmental, health and safety laws, rules, regulations, or policies or other lawful requirements of ~~business~~ any governmental or regulatory bodies having jurisdiction over the Corporation and the Material Subsidiaries in each jurisdiction in which the Corporation or the Material Subsidiaries carries on ~~July 3~~their respective businesses, ~~2014, 94,792,906 Common Shares were issued and outstanding as fully paid and non-assessable shares~~ other than those in respect of which the failure to comply would not individually or in the ~~capital~~ aggregate be material, and each of the Corporation and the Material Subsidiaries holds all certificates, authorities, permits, licenses, registrations and qualifications (collectively, the "AUTHORITIES") in all jurisdictions in which each carries on its business and which are material for and necessary or desirable to carry on their respective businesses as now conducted and to the best of the Corporation~~; 4.1.5 except as set forth~~ 's knowledge, information and belief all the Authorities are valid and existing and in ~~Schedule B attached hereto~~good standing and none of the Authorities contain any burdensome term, ~~no person~~ provision, condition or limitation which has or is likely to have any ~~agreement, option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for~~ material adverse effect on the ~~purchase, subscription or issuance of any securities~~ business of the Corporation ~~from or by the Corporation~~ and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material ~~Subsidiaries; 4.1.8 except~~ Subsidiaries (taken as ~~described in Schedule E~~ a whole) as now conducted or as proposed to be conducted, and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Material Subsidiaries ~~is: (a) in breach~~ has received any notice of proceedings relating to the revocation or ~~violation~~ modification of any of the ~~terms or provisions of~~Authorities which, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone singly or in the aggregate, ~~have~~ if the subject of an unfavourable decision, ruling or finding, would materially adversely affect the business, operations, financial condition, or income of the Corporation or the Material Subsidiaries (taken as a ~~Material Adverse Effect; or~~whole) or any notice of the revocation or cancellation of, or any intention to revoke or cancel, any of the mining claims, concessions or leases comprising: (bi) the Bogoso property; (ii) the Prestea property; (iii) the Paul Isnard property; (iv) the Yaou and Dorlin ▇▇▇▇▇▇▇▇▇▇; and (v) the St. Elie property; (each as described in ~~violation~~ the Form 10-K of the ~~provisions~~ Corporation dated March 25, 2002, collectively referred to herein as the "RESOURCE PROPERTIES", and the Bogoso property and the Prestea property collectively being referred to herein as the " MATERIAL RESOURCE PROPERTIES"); (k) neither the Corporation nor any of the Material Subsidiaries has received any notice of the revocation or cancellation of, or any intention to revoke or cancel, any of the material mining claims, concessions or leases comprising the Wassa property; (l) the Corporation and each of its ~~articles~~Material Subsidiaries have good and marketable title to all assets owned by them free and clear of all liens, ~~by-laws or resolutions or any statute or any order~~charges and encumbrances, ~~rule or regulation~~ other than as will be held for the benefit of ~~any court or governmental agency or body having jurisdiction over it or any of its properties~~the Secured Banks, which ~~violation or~~ banks are providing funding in respect of the ~~consequences thereof would~~acquisition of Wexford Goldfields Limited, ~~alone~~ upon completion of such acquisition, and other than such liens, charges and encumbrances that are not individually or in the ~~aggregate, have a~~ aggregate material to the Corporation or the Material ~~Adverse Effect~~Subsidiaries; ~~4.1.10~~ (m) all interests in the ~~execution~~ Resource Properties are owned, leased or held by the Corporation or its Material Subsidiaries as owner or lessee thereof, are so owned with good and ~~delivery~~ marketable title or are so leased with good and valid title, are in good standing, are valid and enforceable, are free and clear of ~~this Agreement~~any liens, ~~the Subscription Agreements, the Subscription Receipt Agreement~~ charges or encumbrances and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result no royalty is payable in ~~a breach or violation~~ respect of any of them, except as set out in the ~~terms~~ U.S. Prospectus or ~~provisions of~~the Incorporated Documents or as are not individually or in the aggregate material to the Corporation or the Material Subsidiaries, or ~~constitute~~ other than as would not have a ~~default under~~ material effect on the value of such interests; no other material property rights are necessary for the conduct or intended conduct of the Corporation's or the Material Subsidiaries' business and there are no restrictions on the ability of the Corporation or the Material Subsidiaries to use, transfer or otherwise exploit any such property rights, except as set out in the U.S. Prospectus or the Incorporated Documents; (~~whether after notice~~ n) the Corporation is in the process of acquiring, through its wholly-owned subsidiary Wasford Holdings, 90% of the equity of Wexford Goldfields Limited, which is in the process of acquiring all interests in the Wassa gold property in Ghana` (the "Wassa Transactions"). The Wassa property and the current terms of the Wassa Transactions are as described in the U.S. Preliminary Prospectus and the U.S. Prospectus. The Corporation expects that the Wassa Transactions will close by September 1, 2002. The Corporation knows of no fact, event, occurrence, announcement or ~~lapse~~ any other thing that would, or might reasonably be expected to, materially increase the costs of ~~time~~ the closing of the Wassa Transactions, or ~~both)~~materially delay the closing of the Wassa Transactions; (A) the Corporation and its Material Subsidiaries are in compliance with all material terms and provisions of all contracts, ~~any indenture~~agreements, ~~mortgage~~indentures, ~~deed~~ leases, instruments and licences material to the conduct of ~~trust~~its business and (B) all such contracts, ~~loan agreement~~agreements, ~~lease or other agreement~~ indentures, leases, policies, instruments and licences are valid and binding in accordance with their terms and in full force and effect; (~~written or oral~~p) ~~or instrument~~ to the best of the Corporation's knowledge, information and belief none of the real property (and the buildings constructed thereon) in which the Corporation or any of the Material Subsidiaries is has a ~~party~~ direct or by indirect interest, whether leasehold or fee simple or otherwise (the "REAL PROPERTY"), or upon or within which it has operations, is ~~bound~~ subject to any judicial or administrative proceeding alleging the violation of any federal, provincial, state or municipal environmental, health or safety statute or regulation, domestic or foreign, or is subject to any investigation concerning whether any remedial action is needed to respond to a release of any Hazardous Material (as defined below) into the environment. Neither the Corporation nor any Material Subsidiary nor, to the Corporation's knowledge, any occupier of the Real Property, has filed any notice under any federal, provincial, state or municipal law, domestic or foreign, indicating past or present treatment, storage or disposal of a Hazardous Material. Except in compliance with applicable environmental laws, none of the Real Property has at any time been used by the Corporation or a Material Subsidiary or, to the best of the Corporation's knowledge, information and belief by any other occupier, as a waste storage or waste disposal site. The Corporation, on a consolidated basis, has no contingent liability of which it has knowledge in connection with any release of any Hazardous Material on or into the environment from any of ~~its property~~ the Real Property or ~~assets~~ operations thereon. Neither the Corporation nor any Material Subsidiary nor, to the best of the Corporation's knowledge, any occupier of the Real Property, generates, transports, treats, processes, stores or disposes of any waste on any of the Real Property in contravention of applicable federal, provincial, state or municipal laws or regulations enacted for the protection of the natural environment (including, without limitation, ambient air, surface water, ground water, land surface or subsurface strata) or human health or wildlife. To the Corporation's knowledge, no underground storage tanks or surface impoundments containing a petroleum product or Hazardous Material are located on any of the Real Property in contravention of applicable federal, provincial, state or municipal laws or regulations, domestic or foreign, enacted for the protection of the natural environment (including, without limitation, ambient air, surface water, ground water, land surface or subsurface strata), human health or wildlife. For the purposes of this Section 6(1)(p), "HAZARDOUS MATERIAL" means any contaminant, chemical, pollutant, subject waste, hazardous waste, deleterious substance, industrial waste, toxic matter or any other substance that when released into the natural environment (including, without limitation, ambient air, surface water, ground water, land surface or subsurface strata) is ~~subject~~likely to cause, ~~other than~~ at some immediate or future time, harm or degradation to the natural environment (including, without limitation, ambient air, surface water, ground water, land surface or subsurface strata) or risk to human health and, without restricting the generality of the foregoing, includes any ~~breach~~ contaminant, chemical, pollutant, subject waste, deleterious substance, industrial waste, toxic matter or ~~violation~~ hazardous waste as defined by applicable federal, provincial, state or municipal laws or regulations enacted for the ~~consequences thereof which would~~protection of the natural environment (including, ~~alone~~ without limitation, ambient air, surface water, ground water, land surface or subsurface strata), or human health or wildlife; (q) except as disclosed in the ~~aggregate~~U.S. Prospectus or the Incorporated Documents, ~~not have~~ the Corporation and each of its Material Subsidiaries maintain appropriate insurance against loss of, or damage to, their assets for all insurable risks on a ~~Material Adverse Effect~~repair, ~~nor will such action conflict with~~ reinstatement or ~~result in any violation~~ replacement cost basis, and all of the ~~provisions~~ policies in respect of such insurance coverage are in good standing in all respects and not in default; (r) the ~~articles, by-laws or resolutions~~ consolidated audited financial statements of the Corporation ~~or any statute or any order~~for its fiscal years ended December 31, ~~rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or~~ 1999, December 31, 2000 and December 31, 2001 and the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders unaudited interim financial statements of the Corporation ~~required to be obtained at~~ for the ~~Meeting~~quarter ended March 31, ~~no consent~~2002 (collectively the "CORPORATION'S FINANCIAL STATEMENTS"), ~~approval~~copies of which are incorporated by reference in the U.S. Preliminary Prospectus and the U.S. Prospectus, ~~authorization~~including any reconciliation of financial statements prepared in accordance with generally accepted accounting principles in Canada with generally accepted accounting principles in the United States, ~~order, registration or qualification~~ are true and correct in every material respect and present fairly and accurately the financial position and results of ~~or with any person, court or Governmental Authority or body is required for execution and delivery~~ the operations of ~~this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by~~ the Corporation of on a consolidated basis for the ~~transactions contemplated herein or therein, or~~ periods then ended and the ~~issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts~~ Corporation's Financial Statements have been ~~duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares~~ prepared in ~~the capital of the Corporation~~accordance with generally accepted accounting principles in Canada applied on a consistent basis, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive comply as to form ~~of certificate, if any, representing the Offered Subscription Receipts complies~~ in all material respects with the applicable accounting requirements of the ~~TSX and does not conflict with the constating documents of the Corporation~~ U.S. Securities Act and the ~~definitive form of certificate~~U.S. Exchange Act, ~~if any~~as applicable, ~~representing~~ and the ~~Underlying Shares complies in all material respects with the requirements of the TSX~~ related published rules and ~~does not conflict with the constating documents of the Corporation or the laws of Québec~~regulations thereunder; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (is) the ~~Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation~~ execution and ~~Computershare Trust Company~~ delivery of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued performance by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this ~~Agreement, the Subscription Receipt~~ U.S. Agreement and the ~~certificates, if any, representing the Offered Subscription Receipts~~ Canadian Underwriting Agreement and the ~~Underlying Shares; 4.1.27 none~~ consummation of the ~~Corporation~~transactions contemplated hereby and thereby, including the issuance and sale of the Common Shares comprised in the Securities, the ~~Subsidiaries nor any other party to any agreement or instrument is in material default~~ creation, issuance and sale of the Warrants comprised in the ~~observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either~~ Securities and the ~~Corporation or any~~ creation and issuance of the ~~Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default~~ Underwriters' Warrants (as defined in the Canadian Underwriting Agreement) have been authorized by all necessary action on the part of the ~~Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect~~Corporation; ~~4.1.28~~ (t) this ~~Agreement, the Subscription Agreements, the Acquisition~~ U.S. Agreement and the ~~Subscription Receipt~~ Canadian Underwriting Agreement have ~~each~~ been duly ~~and validly~~ executed and delivered by the ~~Corporation~~Corporation and each such agreement is a legal, ~~each constitute a~~ valid and binding obligation of of, and is enforceable against, the Corporation ~~enforceable against it~~ in accordance with its ~~terms, except as enforcement thereof may be limited by~~ terms (subject to bankruptcy, ~~insolvency, reorganization, moratorium and~~ insolvency or other laws ~~relating to or~~ affecting the rights of creditors generally, ~~and except as limited by~~ the ~~application~~ availability of equitable ~~principles when equitable~~ remedies ~~are sought~~ and by the ~~fact~~ qualification that rights to ~~indemnity,~~ indemnity and waiver of contribution ~~and waiver, and the ability to sever unenforceable terms, each~~ may be ~~limited by applicable law~~contrary to public policy); ~~4.1.29 each~~ (u) except as disclosed in the U.S. Prospectus or the Incorporated Documents, since March 31, 2002: (A) there has been no material change in the business, affairs, operations, assets, liabilities or financial condition of the Corporation on a consolidated basis; (B) no current reports or other documents have been filed on a confidential basis with the SEC; (C) there has been no transaction entered into by the Corporation and not disclosed which is material to the Corporation; (D) the Corporation and its Material Subsidiaries, on a consolidated basis, have not incurred any material liability or obligation, indirect, direct or contingent, not in the ordinary course of business, nor entered into any material transaction or agreement not in the ordinary course of business; and (E) there has been no dividend or distribution of any kind declared, paid or made by the Corporation or, except for dividends paid to the Corporation or its Material Subsidiaries, any of its Material Subsidiaries, on any class of capital stock or repurchase or redemption by the Corporation or any of its Material Subsidiaries of any class of capital stock; (v) the directors and officers of the Corporation and their compensation arrangements with the ~~Subsidiaries is the owner of its properties~~Corporation, ~~business and assets~~ whether as directors, officers or ~~the interests in its properties, business or assets, and all agreements under which the Corporation or either~~ employees of the ~~Subsidiaries holds an interest~~ Corporation, are as disclosed in ~~a property, business~~ the U.S. Prospectus or ~~asset are~~ in ~~good standing according to their terms except where~~ the ~~failure~~ Incorporated Documents if required to be ~~in such good standing does not and will not have a Material Adverse Effect~~so disclosed; ~~4.1.30 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each~~ (w) all of the ~~Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario~~ material contracts and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements agreements of the Corporation ~~contained~~ and of its Material Subsidiaries not made in the ~~Corporation’s Information Record, including any forecasts and estimates, expressions~~ ordinary course of ~~opinion, intention and expectation~~ business (collectively the "MATERIAL CONTRACTS") have been ~~based on assumptions that are reasonable~~ disclosed in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the CoIncorporated Docu

Appears in 1 contract

Sources: u.s. Agency Agreement (Golden Star Resources LTD)

Representations and Warranties of the Corporation. The Corporation hereby represents and warrants ~~to the Underwriters~~to, and agrees with, the ~~U.S. Affiliate~~ Placement Agent, as of the date hereof and to as of the ~~Purchasers~~ date of the consummation of the sale of the Securities (~~such representations and warranties having been incorporated by reference in~~ the ~~Subscription Agreements~~"Closing")~~, and acknowledges that each of them is relying upon such representations and warranties~~, that: ~~4.1.1 each~~ (a) The Business Plan does not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Corporation by or on behalf of the Placement Agent expressly for use in the Business Plan or any amendment or supplement thereto. The Corporation has not distributed any offering material in connection with the offering or sale of the Securities other than the Business Plan. The Corporation confirms that it has not provided the Investors or their agents or counsel with any information that constitutes or might constitute material non-public information. (b) There has been no notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or initiation or, to the knowledge of the Corporation, threat of any proceeding for such purpose. (c) The financial statements and the related notes included in the Business Plan present fairly, in all material respects, the financial condition of the Corporation as of the dates thereof and the results of its operations and cash flows at the dates and for the periods covered thereby in conformity with generally accepted accounting principles ("GAAP"). No other financial statements or schedules of the Corporation or any other entity are required by the Securities Act or the Rules and Regulations to be included in the Business Plan. Singer Lewak ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP (the "Accountants"), who have reported on such financial statements and schedules, are independent accountants with respect to the Corporation as required by the Securities Act and the Rules and Regulations. The financial statements of the Corporation and the ~~Subsidiaries~~ related notes and schedules included in the Business Plan have been prepared in conformity with the requirements of the Securities Act and the Rules and Regulations and present fairly the information shown therein. (d) The Corporation maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (e) The Corporation is a corporation, duly organized, validly ~~subsisting~~ existing and in good standing under the laws of ~~its governing jurisdiction~~the State of Nevada, ~~and has all requisite~~ with full corporate power and authority to ~~own, lease~~ own and ~~operate~~ use its properties and assets and ~~conduct~~ to carry on its business as currently ~~conducted~~ conducted. The Corporation has no subsidiaries other than International Net Broadcasting, LLC, a wholly-owned subsidiary (the "SUBSIDIARY"). The Subsidiary is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of California, with full corporate power and authority to own and use its properties and assets and to carry on its business as currently ~~proposed~~ conducted. Each of the Corporation and the Subsidiary is duly qualified to do business and is in good standing as a foreign corporation or limited liability company, as the case may be, in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be ~~conducted; 4.1.2~~ so qualified or in good standing, as the case may be, would not, individually or in the aggregate, (x) adversely affect the legality, validity or enforceability of the Securities or any of the other Transaction Documents (as defined below), (y) have or result in a material adverse effect on the results of operations, assets, prospects (insofar as such prospects may reasonably be foreseen) or financial condition of the Corporation and the Subsidiary, taken as a whole or (z) adversely impair the Corporation's ability to perform fully on a timely basis its obligations under any Transaction Document, including, without limitation, the Corporation's obligations under Section 3.7 of the Securities Purchase Agreement between the Corporation and the purchasers of Securities (the "Securities Purchase Agreement") (any of (x), (y) or (z), being a "MATERIAL ADVERSE EFFECT"). (f) Since the date as of which information is given in the Business Plan, except as otherwise stated therein, (i) there has ~~all~~ been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Corporation and the Subsidiary, taken as a whole, whether or not arising in the ordinary course of business, (ii) there have been no transactions entered into by the Corporation or the Subsidiary, other than those in the ordinary course of business, which are material with respect to the Corporation, and the Subsidiary, taken as a whole, (iii) there has been no dividend or distribution of any kind declared, paid or made either by the Corporation or the Subsidiary on any class of its respective securities, and (iv) neither the Corporation nor the Subsidiary has incurred any liabilities or obligations, either direct or contingent, other than in the ordinary course of business. (g) The Corporation has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this ~~Agreement, the Subscription Agreements, the Acquisition~~ Agreement and the ~~Subscription Receipt Agreement~~ other Transaction Documents (as defined) and otherwise to carry out its obligations hereunder and ~~thereunder~~ thereunder. This Agreement, the Secured Bridge Note, the Loan and Security Agreement, the Securities Purchase Agreement, the Certificate of Designation, the Registration Rights Agreements and the Placement Agent's Warrant Agreement are collectively referred to ~~authorize~~ as the "TRANSACTION DOCUMENTS." The execution and ~~issue the Offered Subscription Receipts and, upon exchange~~ delivery of each of the ~~Offered Subscription Receipts~~Transaction Documents by the Corporation and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Corporation and no further action is required by the Corporation. Each of the Transaction Documents has been duly executed by the Corporation and when delivered in accordance with the terms hereof will constitute the legal, ~~the Underlying Shares as fully paid~~ valid and ~~non-assessable Common Shares in the capital~~ binding obligation of the Corporation;, enforceable against the Corporation in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of, creditors' rights and remedies or by other equitable principles of general application. Neither the Corporation nor the Subsidiary is in violation of any of the provisions of its respective articles of incorporation, bylaws or other organizational documents. Prior to the Closing the Certificate of Designation has been filed with the Secretary of State of the State of Nevada and will be in full force and effect, enforceable against the Corporation in accordance with the provisions thereof. ~~4.1.3 each~~ (h) Each of the Corporation and the ~~Subsidiaries is current with~~ Subsidiary has filed all ~~material filings~~ federal, state, local and foreign tax returns that are required to be filed or has requested extensions thereof and have paid all taxes and all assessments to the extent that the same have become due. No tax assessment or deficiency has been made ~~under~~ or proposed against the ~~laws~~ Corporation or the Subsidiary nor has the Corporation or the Subsidiary received any notice of any proposed assessment or deficiency. The charges, accruals and reserves shown as the ~~jurisdictions~~ financial statements included in the Business Plan, in respect of taxes for all fiscal periods to date are adequate based on current law. There is no material unpaid assessment or proposal by any taxing authority for additional taxes for which it exists or carries on any material business and has all necessary licences, leases, permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the ~~absence of such power and authority or failure to make any filing or obtain any license, lease, permit, authorization or other approval would~~ Corporation does not have ~~a Material Adverse Effect~~adequate reserves for any fiscal year. (i) On the date hereof, and all such licences, leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where the failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect; 4.1.4 the authorized capital of the Corporation consists of an unlimited number of Common Shares and of preferred shares of which, as of the close of business on July 3, 2014, 94,792,906 Common Shares were issued and outstanding as fully paid and non-assessable shares in the capital of the Corporation; 4.1.5 except as set forth in Schedule B attached hereto, no person has any agreement, option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for the purchase, subscription or issuance of any securities of the Corporation from or by the Corporation and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects the voting or Control of any of the securities of the Corporation; 4.1.7 the Corporation has no material subsidiaries other than the Material Subsidiaries; 4.1.8 except as described in Schedule E and except for (i) ~~1,900,000 common~~ 50,000,000 shares of ~~The Intertain Group Ltd. (“Intertain”);~~ Common Stock, $0.001 par value and (ii) ~~$3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at the option of the holder into common~~ 1,000,000 shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Subsidiaries is: (a) in breach or violation of any of the terms or provisions of, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, which breach or violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; or (b) in violation of the provisions of its articles, by-laws or resolutions or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.10 the execution and delivery of this Agreement, the Subscription Agreements, the Subscription Receipt Agreement and the Acquisition Agreement and the performance of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which the Corporation or any of the Subsidiaries is a party or by which it is bound or to which any of its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior to the Closing Date and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation or the laws of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation in the Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none of the Corporation, the Subsidiaries nor any other party to any agreement or instrument is in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in its properties, business or assets, and all agreements under which the Corporation or either of the Subsidiaries holds an interest in a property, business or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect; 4.1.30 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the Copreferred

Appears in 1 contract

Sources: Placement Agency Agreement (Entertainment Boulevard Inc)

Appears in 1 contract

Sources: Agency Agreement

Representations and Warranties of the Corporation. The Corporation represents and warrants as follows to the ~~Underwriters,~~ Subscriber at the ~~U.S. Affiliate~~ date of this Agreement and to at the ~~Purchasers (such representations and warranties having been incorporated by reference in the Subscription Agreements),~~ Time of Closing and acknowledges and confirms that ~~each of them~~ the Subscriber is relying upon such representations and ~~warranties~~warranties in connection with the offer, ~~that~~sale and issuance of the Subscribed Shares to the Subscriber: ~~4.1.1 each of the~~ (a) The Corporation and ~~the Subsidiaries is validly subsisting under the laws of~~ its ~~governing jurisdiction,~~ subsidiaries are corporations incorporated and has all requisite corporate power and authority to own, lease and operate its properties and assets and conduct its business as currently conducted and as currently proposed to be conducted; 4.1.2 the Corporation has all requisite corporate power and authority to enter into this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement and carry out its obligations hereunder and thereunder and to authorize and issue the Offered Subscription Receipts and, upon exchange of the Offered Subscription Receipts, the Underlying Shares as fully paid and non-assessable Common Shares existing in ~~the capital of the Corporation; 4.1.3 each of the Corporation and the Subsidiaries is current with all material filings required to be made~~ good standing under the laws of the jurisdictions in which ~~it exists~~ they are incorporated, continued or ~~carries on any material business~~ amalgamated; (b) The execution and ~~has~~ delivery of, and performance by the Corporation of this Agreement have been authorized by all necessary ~~licences~~corporate action on the part of the Corporation; (c) This Agreement has been duly executed and delivered by the Corporation and constitutes a legal, ~~leases~~valid and binding agreement of the Corporation enforceable against it in accordance with its terms; (d) The Corporation is not required to give any notice to, ~~permits, authorizations and other approvals necessary to permit it to conduct its business as it is currently conducted, except where the absence of such power and authority or failure to~~ make any filing with or obtain any ~~license~~authorization, ~~lease, permit, authorization~~ order or other consent or approval ~~would not have a Material Adverse Effect~~of any Person in connection with the execution or delivery of or performance of its obligations under this Agreement or the consummation of the Offering, other than the Exchange’s acceptance of the transactions contemplated herein, and ~~all such licences~~the filings required to be made prior to or following Closing, ~~leases, permits, authorizations and other approvals are in full force and effect in accordance with their terms except where~~ under the ~~failure to so maintain such licences, leases, permits, authorizations or other approvals would not have a Material Adverse Effect~~rules of the Exchange; ~~4.1.4~~ (e) The Corporation has complied with Applicable Securities Laws in connection with the offer, sale and issuance of the Subscribed Shares; (f) Computershare Trust Company of Canada at its offices in the city of Vancouver, is the duly appointed registrar and transfer agent of the Corporation with respect to the Common Shares (the “Transfer Agent”); (g) The authorized capital of the Corporation consists of an unlimited number of Common Shares and of preferred shares without par value of ~~which, as~~ which 48,730,165 Common Shares are issued and outstanding (without giving effect to the Common Shares subscribed for under this Agreement). The outstanding Common Shares of the ~~close~~ Corporation are fully paid and non-assessable. There are no other equity or voting securities of ~~business~~ the Corporation outstanding, and there are no outstanding stock options, warrants or other convertible securities or instruments that may be converted into Common Shares, except as set forth on ~~July 3~~Schedule 4.2 attached to the Credit Agreement. The fully diluted share capital of the Corporation is 51,291,665 Common Shares; (h) The Subscribed Shares have been duly authorized for issuance and sale by all necessary action on the part of the Corporation and, ~~2014, 94,792,906 Common Shares were~~ when issued and delivered by the Corporation against payment of the consideration thereof pursuant to this Agreement, will have been validly issued, and will be outstanding as fully paid and non-assessable ~~shares~~ shares, and will not have been issued in violation of or subject to any pre-emptive rights or other contractual rights to purchase securities issued by the ~~capital~~ Corporation or in violation of any Applicable Securities Laws; (i) The Corporation is not party or subject to any agreement or understanding and, to the knowledge of the Corporation, there is no agreement between any shareholders or officers or directors of the Corporation, that affects or relates to the voting or giving of written consents with respect to any of the Corporation’s securities; ~~4.1.5 except~~ (j) The Corporation and its subsidiaries have not committed an act of bankruptcy, are not insolvent, have not proposed a compromise or arrangement to creditors generally, have not had a petition or a receiving order in bankruptcy filed against any of them, have not made a voluntary assignment in bankruptcy, have not taken any proceedings with respect to a compromise or arrangement, have not taken any proceedings to be declared bankrupt or wound-up, have not taken any proceedings to have a receiver appointed for any of property and have not had any execution or distress become enforceable or become levied upon any of property. The Corporation has, and will at the Closing Date have, sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the “going concern” test under Canadian generally accepted accounting principles; (k) The Corporation is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta, and (i) the Common Shares of the Corporation are currently listed and posted for trading on the Exchange and no order ceasing or suspending trading, other than as ~~set forth~~ publicly disclosed, in ~~Schedule B attached hereto, no person has any agreement, option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement for the purchase, subscription or issuance of~~ any securities of the Corporation ~~from~~ or by prohibiting the ~~Corporation and no rights, warrants~~ sale or ~~options to acquire,~~ issuance of the Subscribed Shares or ~~instruments convertible into or exchangeable for, any Common Shares, are outstanding; 4.1.6 no agreement is in force or effect which in any manner affects~~ the ~~voting or Control~~ trading of any of the Corporation’s issued securities has been issued and no (formal or informal) proceedings for such purpose have been threatened or, to the knowledge of the Corporation~~; 4.1.7~~ , are pending; and (ii) the Corporation has ~~no material subsidiaries other than~~ not taken any action which would reasonably be expected to result in the ~~Material Subsidiaries~~delisting or suspension of the Common Shares on or from the Exchange; ~~4.1.8 except~~ (l) The Corporation is licensed, registered or qualified as ~~described~~ an extra-provincial or foreign corporation in Schedule E and except for (i) 1,900,000 common shares of The Intertain Group Ltd. (“Intertain”); (ii) $3,850,000 aggregate principal amount of 5.0% unsecured subordinate convertible debentures of Intertain maturing on December 31, 2018, which are convertible at all jurisdictions where the ~~option~~ character of the holder into common shares of Intertain at a price of $6.00 per common share; and (iii) 353,000 Intertain common share purchase warrants, with each whole warrant being exercisable by the holder for one Intertain common share at an exercise price of $5.00 per share until December 31, 2015, the Corporation does not beneficially own, or exercise Control or direction over, 10% or more of the outstanding voting shares of any company other than its Subsidiaries and the Corporation beneficially owns, directly or indirectly all of the issued and outstanding shares in the capital of the Subsidiaries free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands of any kind whatsoever, all of such shares have been duly authorized and validly issued and are outstanding as fully paid and non-assessable shares and no person has any right, agreement or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option, for the purchase from the Corporation of any interest in any of such shares or for the issue of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares; 4.1.9 neither the Corporation nor any of the Subsidiaries is: (a) in breach or violation of any of the terms or provisions of, or in default under (whether after notice or lapse of time or both) any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which it is a party or by which it is bound or to which any of its property or assets ~~is subject, which breach~~ thereof owned or ~~violation~~ leased or the ~~consequences~~ nature of the activities conducted by it make licensing, registration or qualification necessary and is carrying on the business thereof ~~would~~in material compliance with all applicable laws, ~~alone or in the aggregate, have a Material Adverse Effect; or~~rules and regulations of each such jurisdiction; (bm) The information in ~~violation~~ all documents filed by the Corporation with Canadian securities regulatory authorities (including in all documents filed at ▇▇▇.▇▇▇▇▇.▇▇▇) (the “Disclosure Record”) was, at the time of ~~the provisions of its articles~~such filing, ~~by-laws~~ accurate in all material respects, did not contain any misrepresentation and did not omit to disclose any material fact, except as subsequently corrected or resolutions or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties, which violation or the consequences thereof would, alone or updated in ~~the aggregate, have~~ a ~~Material Adverse Effect; 4.1.10 the execution and delivery of~~ subsequently filed document (in this Agreement, “misrepresentation” and “material fact” have them meanings ascribed to them in the ~~Subscription Agreements~~Securities Act (British Columbia)). All information relating to the business, ~~the Subscription Receipt Agreement and the Acquisition Agreement and the performance~~ assets, liabilities, properties, capitalization or financial condition of the transactions contemplated hereunder and thereunder, the Offering and the issuance of the Offered Subscription Receipts and the Underlying Shares does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement (written or oral) or instrument to which Corporation provided by the Corporation or any of ~~the Subsidiaries is a party or by which it is bound or to which any of~~ its property or assets is subject, other than any breach or violation the consequences thereof which would, alone or in the aggregate, not have a Material Adverse Effect, nor will such action conflict with or result in any violation of the provisions of the articles, by-laws or resolutions of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or any of its properties which violation or the consequences thereof would, alone or in the aggregate, have a Material Adverse Effect; 4.1.11 other than as will have been obtained prior advisers to the ~~Closing Date~~ Subscriber is true, accurate and other than the approval of the shareholders of the Corporation required to be obtained at the Meeting, no consent, approval, authorization, order, registration or qualification of or with any person, court or Governmental Authority or body is required for execution and delivery of this Agreement, the Subscription Agreements the Acquisition Agreement or the Subscription Receipt Agreement, or the consummation by the Corporation of the transactions contemplated herein or therein, or the issuance of the Offered Subscription Receipts and Underlying Shares; 4.1.12 the Offered Subscription Receipts have been duly authorized and allotted for issuance and the Underlying Shares, when issued, will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation, and the Subscription Receipts will have the attributes set out in the Subscription Receipt Agreement and the Subscription Agreements; 4.1.13 the Preferred Shares, the Commitment Shares and the Commitment Warrants will, when issued, have the attributes set forth in the Commitment Letters; 4.1.14 the definitive form of certificate, if any, representing the Offered Subscription Receipts complies complete in all material ~~respects with the requirements~~ respects; and (n) The Corporation and its subsidiaries own all of the ~~TSX~~ properties and does not conflict with the constating documents of the Corporation and the definitive form of certificate, if any, representing the Underlying Shares complies in all material respects with the requirements of the TSX and does not conflict with the constating documents of the Corporation or the laws of Québec; 4.1.15 the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its securities and has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed assets that they purport to do so or otherwise effected any return of capital with respect to such securities within the last 12 months other than in connection with the purchases of Common Shares made in accordance with the Corporation’s normal course issuer bid; 4.1.16 the Corporation has not completed any “significant acquisition” (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) since December 31, 2013 and, other than the Proposed Acquisition, the Corporation is not contemplating any such “significant acquisition”; 4.1.17 there is not, own in the constating documents of the Corporation or in any Material Agreement, mortgage, note, debenture, indenture or other instrument or document to which the Corporation is a party, any restriction upon or impediment to the declaration or payment of dividends by the directors of the Corporation or the payment of dividends by a Subsidiary to its parent or the Corporation to the holders of its Common Shares, other than pursuant to the terms of: (i) the Cadillac ▇▇▇▇ Credit Agreements, (ii) the supplemental debenture indenture dated February 7, 2013 between the Corporation and Computershare Trust Company of Canada; (iii) the subordinated debt agreement with Capital Régional et Coopératif Desjardins referenced in Schedule B hereto; (iv) the Preferred Shares; and (v) the Commitment Letters; 4.1.18 the Corporation is not aware, based on its due diligence to date of the Target, including financial due diligence, of any fact or circumstance which would be likely to have a Material Adverse Effect following completion of the Proposed Acquisition; 4.1.19 the Acquisition Agreement Disclosure Record. Except as provided to the Underwriters is complete, true and accurate and has not been amended, terminated or rescinded; 4.1.20 the Commitment Letters as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.21 the Credit Facilities Documents as provided to the Underwriters are complete, true and accurate and have not been amended, terminated or rescinded; 4.1.22 as of the Closing Time, the representations and warranties of the Corporation disclosed in the ~~Acquisition Agreement shall be true and correct except as would not have a Material Adverse Effect; 4.1.23 as of the date hereof~~Disclosure Record, to the Best of the Corporation’s Knowledge, the representations and warranties of the sellers and the Target contained in the Acquisition Agreement are true and correct except as would not have a Material Adverse Effect; 4.1.24 the Corporation is not aware of any facts or circumstances that would cause it to believe that (i) the Proposed Acquisition will not be completed before the Release Deadline; or (ii) the Acquisition Agreement, the Commitment Letters or the Credit Facilities Documents will be terminated; 4.1.25 there are no legal or governmental actions, proceedings or investigations pending or to the Best of the Corporation’s Knowledge, contemplated or threatened against the Corporation or the Subsidiaries, at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which: (i) would in any way have a Material Adverse Effect; or (ii) questions the issuance, sale or delivery of the Offered Subscription Receipts and the Underlying Shares to be issued by the Corporation or the validity of any action taken or to be taken by the Corporation pursuant to or in connection with this Agreement or the Acquisition Agreement; 4.1.26 all necessary corporate action has been taken by the Corporation to authorize the execution, delivery and performance of this Agreement, the Subscription Receipt Agreement and the certificates, if any, representing the Offered Subscription Receipts and the Underlying Shares; 4.1.27 none of the Corporation, the Subsidiaries nor any other party to any agreement or instrument is in material default in the observance or performance of any term or obligation to be performed by it under any such agreement or instrument to which either the Corporation or any of the Subsidiaries is a party and no event has occurred which with notice or lapse of time or both would constitute such a default on the part of the Corporation or the Subsidiaries, in any such case which default or event would have a Material Adverse Effect; 4.1.28 this Agreement, the Subscription Agreements, the Acquisition Agreement and the Subscription Receipt Agreement have each been duly and validly executed and delivered by the Corporation, each constitute a valid and binding obligation of the Corporation enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, each may be limited by applicable law; 4.1.29 each of the Corporation and the Subsidiaries is the owner of its properties, business and assets or the interests in its properties, business or assets, and all agreements ~~under~~ by which the Corporation or ~~either of the Subsidiaries~~ its subsidiaries holds an interest in a ~~property, business~~ property or asset are in good standing according to their terms except where the failure to be in such good standing does not and will not have a Material Adverse Effect; 4.1.30 the Corporation is a “reporting issuer”, not included in a list of defaulting reporting issuers maintained by the Securities Regulators of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Québec and in particular, without limiting the foregoing, the Corporation has at all relevant times complied with its obligations to make timely disclosure of all material changes relating to it, no such disclosure has been made on a confidential basis that is still maintained on a confidential basis, and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change report has not been filed with a Securities Regulator in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or Québec, except material change reports with respect to the Offering and Proposed Acquisition and financing thereof; 4.1.31 all forward-looking information and statements of the Corporation contained in the Corporation’s Information Record, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, and the Corporation has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; 4.1.32 the documents forming the Corporation’s Information Record complied in all material respects with Canadian Securities Laws at the time they were filed and such documents, and the statements set forth therein, were true and correct in all material respects and contained no misrepresentations at the time they were filed; 4.1.33 the Circular will comply in all material respects with Canadian Securities Laws at the time it will be filed and will be true and correct in all material respects, contain no misrepresentations at the time it will be filed and will not omit any fact required according to be stated in such document or necessary to make any statement in such document not misleading; 4.1.34 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the offer, sale or distribution of the Offered Subscription Receipts or the Underlying Shares in the manner contemplated herein, if any, nor instituted proceedings for that purpose and, to the Best of the Cotheir terms.

Appears in 1 contract

Sources: Private Placement Subscription Agreement (Nevsun Resources LTD)

Common use of Representations and Warranties of the Corporation Clause in Contracts