Representations by Seller For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Property:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property; Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site plan, zoning or other land use permits for the Property;
(c) Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing other than the Lease;
(d) Except for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge of any such violations;
(e) Seller has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for purposes of ad valorem taxation;
(f) With respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases; (ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as set forth on Exhibit A2;
(g) There are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of the Property, or any interest therein which has not been terminated;
(h) The transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii) if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer for any resulting liability with respect to the period prior to the Closing;
(i) To Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively, “Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material which is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;
(j) Exhibit I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”). The representations and warranties of Seller shall survive Closing for a period of one (1) year.
Representations and Warranties by the Selling Shareholders Each Selling Shareholder severally represents and warrants to the Underwriter as of the date hereof, as of the Applicable Time, as of the Closing Time, and agrees with the Underwriter, as follows:
Representations and Warranties by the Selling Stockholders Each Selling Stockholder severally represents and warrants to each Underwriter as of the date hereof, as of the Closing Time, and, if the Selling Stockholder is selling Option Securities on a Date of Delivery, as of each such Date of Delivery, and agrees with each Underwriter, as follows:
Representations and Warranties of Stockholders Each Stockholder on its own behalf represents and warrants to Parent, severally and not jointly, as of the date hereof with respect to such Stockholder, that:
Representations and Warranties by the Selling Shareholder The Selling Shareholder represents and warrants to, and agrees with, the Company, the Winning Bidder(s) and each Placement Agent at each Representation Date as follows:
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS Each Shareholder hereby represents and warrants to the Company as follows:
Representations by Purchasers; Resale by Purchasers (a) Each Purchaser severally represents and warrants to the Company and the Guarantors that it is an institutional “accredited investor” within the meaning of Rule 501(a)(1),(2),(3) or (7) under the Securities Act.
(b) Each Purchaser severally acknowledges that the Notes have not been registered under the Securities Act and represents and warrants to, and agrees with, the Company and the Guarantors that it will not offer or sell the Offered Securities within the United States or to, or for the account or benefit of, U.S. persons, except (i) pursuant to Rule 144A or any other exemption from the registration requirements of the Securities Act, if available, or (ii) to non-U.S. persons outside the United States, in accordance with Regulation S. Each Purchaser severally represents and agrees that it has offered and sold the Notes, and will offer and sell the Notes (i) as part of its distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 or Rule 144A. Accordingly, neither such Purchaser nor its affiliates, nor any persons acting on its or their behalf, have engaged or will engage in any directed selling efforts with respect to the Notes, and such Purchaser, its affiliates and all persons acting on its or their behalf have complied and will comply with the offering restrictions requirement of Rule 144A and Regulation S. Each Purchaser severally agrees that, at or prior to confirmation of sale of the Notes, other than a sale pursuant to Rule 144A, such Purchaser will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases the Notes from it during the restricted period a confirmation or notice to substantially the following effect: “The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the “Securities Act”) and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the date of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meanings given to them by Regulation S.” Terms used in this subsection (b) have the meanings given to them by Regulation S.
(c) Each Purchaser severally agrees that it and each of its affiliates has not entered and will not enter into any contractual arrangement with respect to the distribution of the Notes except for any such arrangements with the other Purchasers or affiliates of the other Purchasers or with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its affiliates will not offer or sell the Notes in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c), including, but not limited to (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Purchaser severally agrees, with respect to resales made in reliance on Rule 144A of any of the Notes, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the effect that the resale of such Notes has been made in reliance upon the exemption from the registration requirements of the Securities Act provided by Rule 144A.
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 by Purchaser The Purchaser represents and warrants to the Seller that:
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS The Shareholders, individually and separately, represent and warrant as follows:
