KEGSHARE TOKENS PURCHASE FINANCE TERMS AND CONDITIONS
PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT APPLY TO YOU.
This Agreement contains the terms and conditions that apply to the financing of a member’s (“You” and where applicable “Your”) purchase from FreshTAP Logistics Inc. d/b/a Kegshare (the “Company”) of Kegshare Tokens for sale on kegshare.ca (the “Site”). You agree, as a condition of the financing, to be bound by and accept the terms and conditions of this Agreement as applicable to Your purchase of Kegshare Tokens from the Site.
This Agreement is subject to change without prior written notice at any time, in the Company’s sole discretion.
Unless otherwise defined in this Agreement or the context otherwise requires, capitalized words used in this Agreement have the meanings set out in Section 6.14 (Definitions).
By selecting the “Purchase Finance” option in connection with Your purchase of Kegshare Tokens, You have agreed to borrow from the Company an amount (the “Loan”) equal to (a) the purchase price currently in effect for type(s) the Kegshare Token(s) You have agreed to purchase, multiplied by (b) the number of Kegshare Tokens You have agreed to purchase through the Kegshare Network (the “Purchased Kegshare Tokens”). Subject to the terms and conditions hereof, and relying on Your representations and warranties set out below, the Company hereby agrees to lend You an amount equal to the Loan on the terms and in the manner as set forth in this Agreement.
2.2 Term of Loan.
The Loan shall be for a term of one (1), two (2), three (3) or four (4) years, as You determine by indicating your selection when purchasing Kegshare Tokens through the Kegshare Network (the “Term”), commencing on the date You agree to purchase Kegshare Tokens through the Kegshare Network (the “Effective Date”).
2.3 Advance of Funds.
The full proceeds of the Loan shall be advanced by the Company and applied to Your purchase of the Purchased Kegshare Tokens in a single advance on the Effective Date.
The Loan shall bear interest at the rate of twelve percent (12%) per annum, calculated monthly both before and after default, as well as before judgment, with interest on overdue interest at the same rate, calculated in the same manner, until paid, and payable in accordance with this Agreement.
Subject to the terms and conditions of this Agreement, You will make payments (consisting of principal and interest) on a monthly basis in accordance with an amortization schedule such that one hundred percent (100%) of the Loan (including all principal and interest) will be repaid on or before, and fully amortized in accordance with, the dates set out in the amortization schedule displayed on the Kegshare Network. The Company will deliver the amortization schedule to you within fourteen (14) days of Your purchase of Kegshare Tokens.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties
To induce the Company to enter into this Agreement and to make the Loan, You represent and warrant to the Company (each of which representations and warranties shall survive the execution and delivery of this Agreement) as follows:
(a) Formation; Organization. If a company, partnership or similar corporate structure, You are duly organized and validly existing in good standing under the laws of the jurisdiction of Your formation except where the failure to be so would not reasonably be expected to result in a Material Adverse Effect;
(b) Authority; Contravention. (i) You have full power and authority to execute and deliver this Agreement and perform Your obligations hereunder; (ii) the execution, delivery and performance of this Agreement by You has been duly authorized by all necessary or proper action; (iii) the entry into this Agreement and performance thereof shall not constitute a violation of any applicable law or contractual obligation of Yours; and (iv) the execution, delivery or performance of this Agreement does not require the consent or approval of any Governmental Authority or any other Person;
(c) Agreement. As of the Effective Date, this Agreement has been duly executed and delivered by You or on Your behalf and continues a legal, valid and binding obligation of Yours, enforceable against You in accordance with its terms;
(d) Material Contracts. You are not in default, and to Your knowledge, no third party is in default, under or with respect to any contractual obligations, which alone or in the aggregate has had or could reasonably be expected to have a Material Adverse Effect;
(e) Taxes. All tax returns, reports and statements required by any Governmental Authority to be filed by You or any Subsidiary have been filed and no tax lien has been filed against You, any Subsidiary or any your respective property;
(f) Litigation. No litigation is pending or, to Your knowledge, threatened against You or any Subsidiary. As of the Effective Date, there is no litigation pending or threatened against You or any Subsidiary which seeks damages, injunctive relief or alleges criminal misconduct, and following the Effective Date, You will notify the Company promptly in writing upon learning of the existence, threat or commencement of any such litigation;
(g) No Default. No Event of Default has occurred and is continuing.
4.1 Use of Proceeds.
You will use the proceeds of the Loan for the purchase of the Purchased Kegshare Tokens and for no other purpose.
4.2 Affirmative Covenants.
You covenant and agree with the Company so long as the Loan or any portion thereof (including all fees and expenses in connection therewith or in connection with this Agreement or pursuant to the Kegshare Service) is outstanding, that You will:
(a) do or cause to be done all things necessary to preserve, renew and keep in full force and effect Your legal existence and the rights, licenses, permits and privileges material to the conduct of Your business;
(b) furnish to the Company prompt written Notice of (i) the occurrence of any Event of Default, specifying the nature and extent thereof, (ii) Your becoming aware of the filing or commencement of, or Your receipt of any written threat or written notice of intention of any Person to file or commence any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority, against You that would reasonably be expected to result in a Material Adverse Effect, and (iii) any other development that results in, or would reasonably be expected to result in a Material Adverse Effect;
(c) pay or perform Your obligations that, if not paid or performed, would reasonably be expected to result in a Material Adverse Effect before the same shall become delinquent or in default, except where (i) the validity or amount thereof is being contested in good faith by appropriate proceedings, (ii) You have set aside on Your books adequate reserves with respect thereto and (iii) the failure to make payment pending such contest would not reasonably be expected to result in a Material Adverse Effect;
(d) comply with all laws, rules, regulations and orders of any Governmental Authority applicable to You or Your property and maintain all permits and licenses necessary to conduct Your business, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect; and
(e) provide the Company with such information, financial or otherwise, available to You as is reasonably requested by the Company in connection with this Agreement.
EVENTS OF DEFAULT
5.1 Events of Default.
For the purposes of this Agreement, each of the following shall be an “Event of Default”:
(a) any portion of the principal or interest amount of the Loan is not in paid accordance with Section 2.5 (Repayment) and any such failure to pay has not been remedied within ten (10) calendar days after the relevant due date;
(b) any portion of any amount due and owing to the Company or any other Person is not in paid in full when due and any such failure to pay has not been remedied within ten (10) calendar days after the relevant due date;
(c) (i) any representation or warranty made by You in this Agreement is untrue or incorrect in any material respect, as of the date when made or deemed made or (ii) You are in breach of or default in the performance of or compliance with any of Your other covenants or agreements in this Agreement or any other agreement between You and the Company, and the same remains un-remedied within ten (10) calendar days after You receive Notice thereof from the Company;
(d) (i) You commence any proceeding or other action relating to You in bankruptcy or seek reorganization, arrangement, re-adjustment of Your debts, receivership, dissolution, liquidation, winding-up, composition or any other relief under the BIA, or under any other insolvency, reorganization, liquidation, dissolution, arrangement, composition, re-adjustment of debt or any other similar act or law, of any jurisdiction, domestic or foreign, now or hereafter existing; (ii) You admit the material allegations of any petition or pleading in connecting with such proceeding; (iii) You apply for, or consent or acquiesce to the appointment of a receiver, conservator, trustee or similar officer for You or for all or a substantial part of Your property; or (iv) You make a general assignment for the benefit of creditors; or
(e) (i) commencement of any proceedings or the taking of any other action against You in bankruptcy or seeking reorganization, arrangement, re-adjustment of Your debts, receivership, dissolution, liquidation, winding-up, composition, or any other relief under the BIA, or under any other insolvency, reorganization, liquidation, dissolution, arrangement, composition, re-adjustment of debt or any other similar act or law, of any jurisdiction, domestic or foreign, now or hereafter existing and the continuance of any such events for thirty (30) calendar days un-dismissed, un-bonded or undischarged; (ii) the appointment of a receiver, conservator, trustee or similar officer for You or for all or substantially all of Your property and the continuance of any such events for thirty (30) calendar days un-dismissed, un-bonded or undisclosed; or (iii) the issuance of a warrant of attachment, execution or similar process against any of Your material assets and the continuance of such event for thirty (30) calendar days un-dismissed, un-bonded and undischarged;
(f) a final judgment for the payment of money is rendered against You or Your Subsidiaries which, is in excess of $50,000, unless the same is: (i) fully covered by insurance as acknowledged by the applicable issuer(s) in writing within fifteen (15) calendar days of the judgment or (ii) vacated, stayed, bonded, paid or discharged within a period of fifteen (15) calendar days from the date of such judgment, unless within such fifteen (15) calendar days, any seizure or taking possession of any of Your property shall have occurred; or
(g) any other event shall have occurred which has had or could reasonably be expected to have a Material Adverse Effect.
5.2 Remedies Upon Your Default.
Upon the occurrence of an Event of Default, the Company may:
(a) in its sole discretion, declare the full amount of the Loan then outstanding and all accrued and unpaid interest thereon to be immediately due and payable without any presentment, demand, protest or further notice (all of which are hereby expressly waived by You) and the Loan and all amounts owing thereon shall thereby immediately become due and payable;
(b) in its sole discretion, repurchase from You all or any portion of the Purchased Kegshare Tokens at a price per Keg equal to the Depreciated Value less the Reallocation fee, for cash or on credit or for future Kegshare services;
(c) upon the occurrence and during the continuance of an Event of Default and at the Company’s request, You will assemble all Kegs in your possession or under your control and make them available to the Company at such place or places which the Company may reasonably select. Until the Company is able to collect all Kegs in your possession or under your control, You shall not have the right to use the Kegs or any part thereof. The Company may, if it so elects, seek the appointment of a receiver or receiver manager to take possession of the Kegs and to enforce any of the Company’s remedies with respect thereto without prior notice or hearing. To the maximum extent permitted by applicable law, You waive all claims, damages, and demands against the Company, its Affiliates, agents, and the officers, directors and employees of any of them arising out of the repossession, retention or sale of the Purchased Kegshare tokens and Kegs except such as are determined in a final judgment by a court of competent jurisdiction to have arisen solely out of the gross negligence or wilful misconduct of such Person. You will remain liable for any deficiency if the Kegs or any portion thereof are not recovered or recoverable by the Company and to pay all amounts to which the Company is entitled; and
(d) grant extensions of time and other indulgences, take and give up securities, grant releases and discharges, without prejudice to any of the other rights and remedies of the Company hereunder.
5.3 Remedies Cumulative.
The Company’s rights and remedies under this Agreement are cumulative and nonexclusive of any other rights and remedies which the Company may have under any other agreement or at law or in equity. All provisions of this Agreement are intended to be subject to all applicable mandatory provisions of law that may be controlling and to be limited, to the extent necessary, so that they do not render this Agreement invalid or unenforceable, in whole or in part.
5.4 Waivers by You.
To the fullest extent permitted by applicable law, You hereby waive:
(a) presentment, demand and protest, and notice of presentment, acceleration, protest, default, non-payment, maturity, release, compromise, settlement, extension or renewal of any or all of this Agreement, contracts and guarantees at any time held by the Company on which You may in any way be liable, and hereby ratifies and confirms whatever the Company may do in this regard; and
(b) all rights to notice and a hearing prior to the Company’s repurchase of the Purchased Kegshare Tokens or taking possession or control of, or attachment or levy upon, any Kegs which might be required by any court prior to allowing the Company to exercise any of its remedies.
The proceeds of any repurchase of the Purchased Kegshare Tokens pursuant to Section 5.2(b) shall be applied by the Company upon receipt to the Loan and to any other amounts then due and owing by You to the Company in such order as the Company may deem advisable in its sole discretion, following which the balance of the Loan and any interest and fees thereon shall remain due and payable by You.
You agree to indemnify and hold the Company and its respective directors and officers professional advisors and representatives (each, an “Indemnified Person”), harmless from and against any and all actions, proceedings, claims, damages, losses, liabilities and expenses of any kind or nature whatsoever (including reasonable legal fees and disbursements) which may be instituted or asserted against or incurred by any such Indemnified Person as the result of the Loan having been extended, suspended or terminated under this Agreement or with respect to the execution, delivery, enforcement, performance or administration of, or in any other way arising out of or relating to, this Agreement or any other documents or transactions contemplated by or referred to herein and any actions or failures to act with respect to any of the foregoing, including any and all taxes and legal costs and expenses arising out of or incurred in connection with any dispute between or among any parties to this Agreement, except to the extent that any such Indemnified Liability is finally determined by a court of competent jurisdiction to have resulted solely from such Indemnified Person’s gross negligence or wilful misconduct.
6.2 Set Off and Survival.
Without limitation to any other rights or remedies of the Company, the Company shall have the right at all times without notice to You (which notice is hereby waived to the maximum extent permitted by law) to set off or apply against any obligations now and hereafter owing (whether matured or contingent) any deposits at any time held by, or other indebtedness at any time owing by, the Company or any of its Affiliates to or for Your credit or account. All indemnities hereunder shall survive any termination of this Agreement unless expressly released in writing.
All notices, accountings and payments (each, a “Notice”) required or permitted hereunder must be in writing and delivered by email and will be deemed to have been given on the Business Day following such email transmission.
6.4 Waivers and Extensions of Time.
The Company may in its sole discretion grant extensions of time and other indulgences. Any waiver of any of the provisions hereunder will be effective only if in writing and will be effective only in respect of the specific event for which it is given.
6.5 Further Assurance.
The parties will at all times do, execute, acknowledge and deliver such acts, deeds and agreements as may be reasonably necessary or desirable to give full force and effect to the terms of this Agreement.
6.6 Time of the Essence.
Time shall be of the essence in this Agreement.
This Agreement may not be assigned, transferred or otherwise conveyed by You in whole or in part without the express prior written consent of the Company. The Company may assign this Agreement to an Affiliate at any time without notice.
6.8 Successors and Assigns.
This Agreement shall enure to the benefit of and be binding upon the parties and their heirs, executors, administrators, personal representatives, respective successors and permitted assigns.
6.9 Termination of Agreement.
This Agreement shall terminate when all of Your Obligations incurred hereunder have been discharged in full.
Any provision of this Agreement that is or becomes unenforceable shall be unenforceable to the extent of such unenforceability without invalidating the remaining provisions hereof. To the extent permitted by applicable law, each of the parties hereby waives any provision of law that renders any provision hereof unenforceable in any respect.
6.11 Entire Agreement.
This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties hereto with respect thereto. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the parties other than as expressly set forth in this Agreement.
6.12 Independent Legal Advice.
You hereby acknowledges and agrees that You have had the opportunity to seek independent legal advice with respect to the terms of this Agreement and have either obtained such advice or, notwithstanding such opportunity, wish to enter into the Agreement without the benefit of such advice.
6.13 Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, and the parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of British Columbia.
Unless otherwise defined herein or the context otherwise requires, the following terms shall have the following meanings in this Agreement:
(a) “Affiliate” shall mean with respect to a specified Person, another Person that directly or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified;
(b) “Agreement” shall mean these Kegshare Tokens Purchase Finance Terms and Conditions, as the same may be amended, supplemented or restated from time to time;
(c) “BIA” means the Bankruptcy and Insolvency Act (Canada);
(d) “Business Day” shall mean any day other than a Saturday, a Sunday or a day on which banks are required to be closed in Vancouver, British Columbia, Canada;
(e) “Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have corresponding meanings;
(f) “Depreciated Value” means the value of a Kegshare Token at a particular time, determined as (i) the initial purchase price of the Kegshare Token, multiplied by (ii) the number of days remaining on the term of the Kegshare Token, divided by (iii) the number of days in the full term of the Kegshare Token;
(g) “Effective Date” has the meaning ascribed thereto in Section 2.2 (Term of Loan);
(h) “Event of Default” has the meaning ascribed thereto in Section 5.1 (Events of Default);
(i) “Governmental Authority” shall mean any nation or government, any state, provincial or other political subdivision thereof, and any agency, department or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government;
(j) “Indemnified Person” has the meaning ascribed thereto in Section 6.1 (Indemnity);
(k) “Keg” means a 304 grade stainless steel vessel owned by the Company and made available for use by its members pursuant to the Kegshare Service;
(l) “Kegshare Network” means the internet platform and related technology located at kegshare.ca
(m) “Kegshare Service” means the shared Keg pool and associated membership benefits described in greater detail here kegshare.ca;
(n) “Kegshare Token” means a right, exercisable at any time and from time to time for a period of one hundred and twenty (120) months commencing on the date such right is purchased from the Company, to access and use for a permitted purpose a Keg of a specified size and description from among the pool of available Kegs maintained by the Company in connection with the Kegshare Service;
(o) “Loan” has the meaning ascribed thereto in Section 2.1 (Loan);
(p) “Material Adverse Effect” shall mean a material adverse effect (a) on Your business, operations, results of operations, prospects, assets, liabilities, property, financial condition or other condition of Yours or those of any of Your Subsidiaries, or (b) the Company’s ability to enforce its rights or remedies under this Agreement and, where used in relation to any other entity, has a similar meaning;
(q) “Notice” has the meaning ascribed thereto in Section 6.3 (Notice);
(r) “Obligations” means (i) the due and punctual payment of (A) principal and interest on the Loan, when and as due, whether at maturity, by acceleration, upon one or more dates for prepayment or otherwise and (B) all other monetary obligations, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise of Yours to the Company under this Agreement and (ii) the due and punctual performance of all covenants, agreements, obligations and liabilities of Yours under or pursuant to this Agreement;
(s) “Person” means any individual, sole proprietorship, partnership, limited liability partnership, joint venture, trust, unincorporated organization, corporation, legal person, institution, entity or Governmental Authority, and shall include such Person’s successors and assigns;
(t) “Purchased Kegshare Tokens” has the meaning ascribed thereto in Section 2.1 (Loan);
(u) “Reallocation fee” means the amount determined by the Company from time to time and published on the Kegshare price list kegshare.ca;
(v) “Subsidiary” shall mean, with respect to any Person: (i) any corporation of which more than fifty percent (50%) of the outstanding shares having ordinary voting power to elect a majority of the board of directors of such corporation is at the time, directly or indirectly, owned legally or beneficially by such Person and/or one or more Subsidiaries of such Person, or with respect to which any such Person has the right to vote or designate the vote of fifty percent (50%) or more of such shares whether by proxy, agreement, operation of law or otherwise; and (ii) any partnership or limited liability company in which such Person or one or more Subsidiaries of such Person has an equity interest (whether in the form of voting or participation in profits or capital contribution) of more than fifty percent (50%) or of which any such Person is a general partner or manager or may exercise the powers of a general partner or manager; and
(w) “Term” has the meaning ascribed thereto in Section 2.2 (Term of Loan).