and each Lender to make Revolving Advances on each
Funding Date are subject to satisfaction of all of the terms and conditions set
forth in this Agreement and in the Conditions Rider attached hereto, and the
accuracy of all the representations and warranties of Borrower and the other
Loan Parties (as applicable) set forth herein and in the other Loan Documents.
SECTION 4.
REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS
To induce Agent and each Lender to enter into the Loan Documents and to make and
to continue to make Revolving Advances, Borrower represents, warrants and
covenants to Agent and each Lender that the following statements are and (when
deemed remade hereunder)
18
will be true, correct and complete and, unless specifically limited, shall
remain so for so long as the Revolving Loan Commitment shall be in effect and
until payment in full of all Obligations:
4.1
Organization, Powers, Capitalization.
(A)
ORGANIZATION AND POWERS.
EACH OF THE LOAN PARTIES IS DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF ITS
JURISDICTION OF INCORPORATION AND QUALIFIED TO DO BUSINESS IN ALL JURISDICTIONS
WHERE SUCH QUALIFICATION IS REQUIRED EXCEPT WHERE FAILURE TO BE SO QUALIFIED
COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
EACH OF THE
LOAN PARTIES HAS ALL REQUISITE ORGANIZATIONAL POWER AND AUTHORITY TO OWN AND
OPERATE ITS PROPERTIES, TO CARRY ON ITS BUSINESS AS NOW CONDUCTED AND PROPOSED
TO BE CONDUCTED AND TO ENTER INTO EACH LOAN DOCUMENT.
(B)
CAPITALIZATION.
AS OF THE CLOSING DATE, THE AUTHORIZED SHARE
CAPITAL OR CAPITAL STOCK OF EACH OF THE LOAN PARTIES AND ITS RESPECTIVE
SUBSIDIARIES IS AS SET FORTH ON SCHEDULE 4.1(B), INCLUDING ALL PREEMPTIVE OR
OTHER OUTSTANDING RIGHTS, OPTIONS, WARRANTS, CONVERSION RIGHTS OR SIMILAR
AGREEMENTS OR UNDERSTANDINGS FOR THE PURCHASE OR ACQUISITION FROM ANY LOAN PARTY
OF ANY SHARES OF CAPITAL OR OTHER SECURITIES OF ANY SUCH ENTITY.
ALL ISSUED AND
OUTSTANDING SHARES OF CAPITAL OF EACH OF US BORROWER AND ITS SUBSIDIARIES ARE
DULY AUTHORIZED AND VALIDLY ISSUED, FULLY PAID, NONASSESSABLE, FREE AND CLEAR OF
ALL LIENS OTHER THAN THOSE IN FAVOUR OF AGENT FOR THE BENEFIT OF AGENT AND
LENDERS, AND THOSE IN FAVOUR OF US FACILITY AGENT, FOR THE BENEFIT OF US
FACILITY AGENT AND US FACILITY LENDERS, AND SUCH SHARES WERE ISSUED IN
COMPLIANCE WITH ALL APPLICABLE STATE, PROVINCIAL, CANADIAN AND US FEDERAL LAWS
CONCERNING THE ISSUANCE OF SECURITIES.
BORROWER WILL PROMPTLY NOTIFY LENDER OF
ANY CHANGE IN THE OWNERSHIP OR CORPORATE STRUCTURE OF ANY LOAN PARTY THAT WOULD
RESULT IN THE OCCURRENCE OF AN EVENT OF DEFAULT PURSUANT TO SUBSECTION 8.1.
4.2
Authorization of Borrowing, No Conflict.
Each of the Loan Parties
has the organizational power and authority to incur the Obligations and to grant
security interests (or applicable equivalents) in the Collateral (in which it
has any right, title or interest).
On the Closing Date, the execution, delivery
and performance of the Loan Documents by each Loan Party signatory thereto will
have been duly authorized by all necessary corporate and