Purchaser Closing Deliveries No later than one (1) Business Day prior to the Closing Date (except for the balance of the Purchase Price which is to be delivered at the time specified in Section 2.2.4), Purchaser shall deliver to the Escrow Agent (for disbursement to the applicable Seller upon the Closing) the following items with respect to each Property being conveyed at such Closing:
(a) A title affidavit (or at Purchaser’s option an indemnity) pertaining to Purchaser’s activity on the applicable Property prior to Closing, in the customary form reasonably acceptable to Purchaser, to enable Title Insurer to delete the standard exceptions to the title insurance policy set forth in this Agreement (other than matters constituting any Permitted Exceptions and matters which are to be completed or performed post-Closing) to be issued pursuant to the Title Commitment; provided that such affidavit does not subject Purchaser to any greater liability, or impose any additional obligations, other than as set forth in this Agreement;
(b) Any declaration or other statement which may be required to be submitted to the local assessor with respect to the terms of the sale of such Property;
(c) A closing statement executed by Purchaser;
(d) A counterpart of the General Assignment, countersigned by Purchaser or Purchaser’s Designated Entity, as applicable;
(e) A counterpart of the Leases Assignment, countersigned by Purchaser or Purchaser’s Designated Entity, as applicable;
(f) A counterpart of the Tenant Notices, countersigned by Purchaser or Purchaser’s Designated Entity, as applicable, to be delivered to the Tenants by Purchaser promptly following Closing;
(g) Resolutions, certificates of good standing, and such other organizational documents as Title Insurer shall reasonably require evidencing Purchaser’s or Purchaser Designated Entities’, as applicable, authority to consummate this transaction; and
(h) If applicable and only with respect to the Runaway Bay I, the Xxxxxx’x Pointe, and Xxxx Bridge Crossing Properties, the Loan Documents to be executed by Purchaser or Purchaser’s Designated Entity, as applicable.
Purchaser Deliveries At the Closing, Purchaser shall deliver to Seller:
(a) The Assignment and Assumption Agreement;
(b) Purchaser’s acceptance of its appointment as successor trustee or custodian, as applicable, of the XXX and Xxxxx Accounts included in the Deposits and assumption of the fiduciary obligations of the trustee or custodian with respect thereto, as contemplated by Section 2.4;
(c) The Branch Lease Assignments and such other instruments and documents as any landlord under a Branch Lease may reasonably require as necessary or desirable for providing for the assumption by Purchaser of a Branch Lease, each such instrument and document in form and substance reasonably satisfactory to the parties and dated as of the Closing Date;
(d) The Tenant Assignments and such other instruments and documents as any subtenant under a Tenant Lease may reasonably require as necessary or desirable for providing for the assumption by Purchaser of a Tenant Lease, each such instrument and document in form and substance reasonably satisfactory to the parties and dated as of the Closing Date;
(e) The Equipment Lease Assignments and such other instruments and documents as any lessor under an Equipment Lease may reasonably require as necessary or desirable for providing for the assumption by Purchaser of an Equipment Lease, each such instrument and document in form and substance reasonably satisfactory to the parties and dated as of the Closing Date;
(f) The Assumed Contract Assignments and such other instruments and documents as any party under an Assumed Contract may reasonably require as necessary or desirable for providing for the assumption by Purchaser of an Assumed Contract, each such instrument and document in form and substance reasonably satisfactory to the parties and dated as of the Closing Date;
(g) The Loan Documents Assignment and such other instruments and documents as Seller may reasonably require as necessary or desirable for providing for the assumption by Purchaser of the Loan Documents, each such instrument and document in form and substance reasonably satisfactory to the parties and dated as of the Closing Date; and
(h) The certificate required to be delivered by Purchaser pursuant to Section 9.2(e).
Purchaser’s Closing Deliveries Purchaser shall obtain or execute and deliver to Seller at Closing the following documents, all of which shall be duly executed, acknowledged and notarized where required:
Purchaser’s Deliveries Subject to the fulfillment or waiver of the conditions set forth in Sections 6.2, Purchaser shall execute and/or deliver to Seller all of the following:
(i) Payment of the Purchase Price as required under Section 3.3(a) hereof.
(ii) An assumption agreement, duly executed by Purchaser, under which Purchaser assumes those Assumed Liabilities described in Section 2.2 hereof.
(iii) An incumbency and specimen signature certificate with respect to the officers of Purchaser executing this Agreement and Purchaser's Ancillary Documents on behalf of Purchaser.
(iv) A certified copy of resolutions of Purchaser's Board of Directors, authorizing the execution, delivery and performance of this Agreement and Purchaser's Ancillary Documents
(v) A closing certificate executed by an executive officer of Purchaser (or any other officer of Purchaser specifically authorized to do so), on behalf of Purchaser, pursuant to which Purchaser represents and warrants to Seller that Purchaser's representations and warranties to Seller are true and correct as of the Closing Date as if then originally made (or, if any such representation or warranty is untrue in any respect, specifying the respect in which the same is untrue), that all covenants required by the terms hereof to be performed by Purchaser on or before the Closing Date, to the extent not waived by Purchaser in writing, have been so performed (or, if any such covenant has not been performed, indicating that such covenant has not been performed), and that all documents to be executed and delivered by Purchaser at the Closing have been executed by duly authorized officers of Purchaser.
(vi) Such other documents from Purchaser as may reasonably be required in order to effectuate the transactions contemplated (i) hereby and (ii) by the Purchaser's Ancillary Documents.
Representations and Warranties of the Selling Stockholders Each of the Selling Stockholders severally and not jointly represents and warrants to each Underwriter and the Company that:
Representations and Warranties of the Selling Shareholders Each of the Selling Shareholders represents and warrants to, and agrees with, the Company and each Underwriter as set forth below in this Section 2.
(a) Each Selling Shareholder is duly incorporated and organized and is validly existing under the laws of the Province of Alberta and has all requisite corporate power and authority to own or lease its properties and assets, to carry on its business and to sell and deliver the Offered Shares to be sold by it hereunder.
(b) Neither Selling Shareholder is selling the Offered Shares to be sold by it hereunder based on information that it holds that has not otherwise been made publicly available, which, if such information was made publicly available, could reasonably have a material impact on the price or value of the Common Shares.
(c) Each Selling Shareholder has the corporate power and capacity to execute, deliver and perform its obligations under this Agreement and the Share Purchase Agreement. This Agreement and the Share Purchase Agreement have been duly authorized, executed and delivered by each Selling Shareholder and constitute legal, valid and binding obligations of each Selling Shareholder enforceable against them in accordance with their respective terms, except as enforcement hereof or thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to the fact that rights of indemnity and contribution may be limited by applicable law.
(d) Neither the sale or delivery of the Offered Shares, nor the consummation of the Reorganization Transaction, the Repurchase Transaction or any other of the transactions contemplated herein, nor the fulfilment of the terms hereof will (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which either Selling Shareholder or any of their respective subsidiaries is a party or by which either Selling Shareholder or any of their respective subsidiaries is bound or to which any of the property or assets of either Selling Shareholder or any of their respective subsidiaries is subject, (ii) result in any violation of the articles, by-laws or other constating documents of either Selling Shareholder, (iii) contravene any statute or any order, rule or regulation of any Governmental Agency having jurisdiction over either Selling Shareholder or any of their respective subsidiaries or over the properties or assets of either Selling Shareholder or their respective subsidiaries; and no Governmental Authorization of or with any such Governmental Agency is required for the issue and sale of the Offered Shares or the consummation by the Selling Shareholders of the Reorganization Transaction, the Repurchase Transaction or any of the other transactions contemplated by this Agreement, except for the filing of the Prospectuses in respect of the Offered Shares under Canadian Securities Laws and the Repurchase Relief to be granted under Canadian Securities Laws, the registration under the Act of the Offered Shares and such Governmental Authorizations as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Offered Shares by the Underwriters.
(e) (A) Each Selling Shareholder, directly or indirectly, has, and on the Closing Date, will directly have, valid marketable title to a number of Common Shares equivalent to the number of Offered Shares to be sold by it, free and clear of any hypothec, lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction on transfer of any kind; (B) each Selling Shareholder has the full right, power and authority to sell, assign and transfer a number of Common Shares equivalent to the number of Offered Shares to be sold by it to the Underwriters; and (C) upon the delivery of the Offered Shares, the holders thereof will obtain good and marketable title to such Offered Shares, free and clear of any hypothec, lien, charge, claim, encumbrance, pledge, security interest, defect or other restriction on transfer of any kind.
(f) Neither Selling Shareholder nor any of their respective subsidiaries has taken, directly or indirectly, any action which was designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company or, except as permitted by this Agreement, facilitate the sale or resale of the Offered Shares.
(g) Neither Selling Shareholder nor any of their respective subsidiaries has conducted any transactions with the government of any Prohibited Country or with any person or entity located in any of the Prohibited Countries. The net proceeds from the sale of the Offered Shares (as described in the Prospectus under the caption “Use of Proceeds”) have not been and will not be, directly or indirectly, invested in or committed to any business activities in any of the Prohibited Countries.
(h) Other than as contemplated by this Agreement, there is no broker, finder, agent or other party that is entitled to receive from either Selling Shareholder any brokerage or finder’s fee or other fee or commission as a result of any of the transactions contemplated by this Agreement, and in the event that any such person acting for and on behalf of or representing a Selling Shareholder would be entitled to receive any such fee from the Underwriters by operation of law, the Selling Shareholders jointly and severally agree to indemnify and hold harmless each Underwriter from such fee and as well as from any costs and expenses reasonably incurred in respect thereof.
(i) The information relating to NOVA and its subsidiaries contained in the Prospectuses and any Supplementary Material, together with any amendments or supplements thereto, on its date and, on the Closing Date, constituted and will constitute full, true and plain disclosure of all material facts relating thereto and did not and will not include any misrepresentation, and did not and will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading. Neither the Registration Statement, nor any amendment or supplement thereto when they will have become effective and on the Closing Date, will contain an untrue statement of a material fact relating to NOVA and its subsidiaries or omit to state a material fact relating thereto required to be stated therein or necessary in order to make the statements therein not misleading.
(j) No withholding tax imposed under the federal laws of Canada or the laws of the Province of Alberta will be payable in respect of the payment of the Underwriting Fee by the Selling Shareholders to an Underwriter that is not resident in Canada for the purposes of the Income Tax Act (Canada), provided that such Underwriter deals at arm’s length with the Selling Shareholders (as such term is understood for the purposes of the Income Tax Act (Canada)), such Underwriting Fee is payable in respect of services rendered by such Underwriter wholly outside of Canada that are performed in the ordinary course of business carried on by the Underwriter that includes the performance of such services for a fee and the amount of such Underwriting Fee is reasonable in the circumstances.
(k) No goods and services tax imposed under the federal laws of Canada will be payable by a Selling Shareholder in respect of the payment of the Underwriting Fee to an Underwriter that is not resident in Canada, provided that such Underwriting Fee is in respect of services performed by such Underwriter wholly outside of Canada.
(l) No stamp duty, documentary taxes or similar taxes are payable by the Company under the federal laws of Canada or the laws of the Province of Alberta in connection with the sale and delivery of the Offered Shares pursuant to this Agreement by either Selling Shareholder. Any certificate signed by any officer of a Selling Shareholder and delivered to the Representatives or to the Company or counsel for the Underwriters or for the Company in connection with the offering of the Offered Shares shall be deemed a representation and warranty by the Selling Shareholder, as to matters covered thereby, to each Underwriter or to the Company, as the case may be.
Representations and Warranties of the Company and the Selling Stockholders (a) The Company represents and warrants to, and agrees with, the several Underwriters that:
Authorization Purchase and Sale Terms of the Sponsor Warrants A. Authorization of the Sponsor Warrants. The Company has duly authorized the issuance and sale of the Sponsor Warrants to the Purchaser.
B. Purchase and Sale of the Sponsor Warrants.
(i) As payment in full for the 5,050,000 Sponsor Warrants being purchased under this Agreement, Purchaser shall pay $5,050,000 (the ’Purchase Price’), which amounts shall increase to 5,500,000 Sponsor Warrants for a Purchase Price of $5,500,000 if the underwriters’ over-allotment option is exercised, and in such case all references herein to Purchase Price shall instead refer to 5,500,000, by wire transfer of immediately available funds or by such other method as may be reasonably acceptable to the Company, to the trust account (the ’Trust Account’) at a financial institution to be chosen by the Company, maintained by Continental Stock Transfer & Trust Company, acting as trustee, at least one (1) business day prior to the date of effectiveness of the Registration Statement.
(ii) The closing of the purchase and sale of the Sponsor Warrants shall take place simultaneously with the closing of the Public Offering (the ’Closing Date’). The closing of the purchase and sale of the Sponsor Warrants shall take place at the offices of Hxxxxx Xxxxxxx Xxxxxxx & Li LLC, 800 Xxxxx Xxx, Xxxxx 0000, Xxx Xxxx, XX 00000, or such other place as may be agreed upon by the parties hereto.
Representations and Warranties of the Company and the Selling Shareholders (a) The Company represents and warrants to each of the Underwriters as follows:
(i) A registration statement on Form S-1 (File No. 333-120615) with respect to the Shares has been prepared by the Company in conformity in all material respects with the requirements of the Securities Act of 1933, as amended (the "Act"), and the rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder and has been filed with the Commission. The Company and the transactions contemplated by this Agreement meet the requirements and comply with the conditions for the use of Form S-1. Copies of such registration statement, including any amendments thereto, the preliminary prospectuses (meeting in all material respects, at the time of filing thereof, the requirements of the Rules and Regulations) contained therein and the exhibits and financial statements thereto, as finally amended and revised, have heretofore been delivered by the Company to you. Such registration statement, together with any registration statement filed by the Company pursuant to Rule 462(b) of the Act, is herein referred to as the "Registration Statement," which shall be deemed to include all information omitted therefrom in reliance upon Rule 430A and contained in the Prospectus referred to below, has become effective under the Act and no post-effective amendment to the Registration Statement has been filed as of the date of this Agreement. "Prospectus" means the form of prospectus first filed with the Commission pursuant to Rule 424(b). Each preliminary prospectus included in the Registration Statement prior to the time it becomes effective is herein referred to as a "Preliminary Prospectus." Any reference herein to the Registration Statement, any Preliminary Prospectus or to the Prospectus or to any amendment or supplement to any of the foregoing documents shall be deemed to refer to and include any supplements or amendments thereto, filed with the Commission after the date of filing of the Prospectus under Rules 424(b) or 430A, and prior to the termination of the offering of the Shares by the Underwriters.
Representations and Warranties of the Selling Stockholder The Selling Stockholder represents and warrants to each Underwriter and the Company that:
