Vendor’s Closing Documents. At least two (2) Business Days prior to the Closing Date, subject to the provisions of this Agreement, the Vendor shall deliver, or cause to be delivered, to the Purchaser’s Solicitors the following, duly executed by the Vendor, the Vendor Nominee or the Master Lease Tenant, in each case where it is to be a party thereto: (a) registrable Form A freehold transfers (the “Transfer Documents”) of all of the Lands but for the Cascades Lands Freehold Lot in favour of the Purchaser, Designee or nominee as directed by the Purchaser, subject only to Permitted Encumbrances; (b) transfer of beneficial interest agreement of the Subject Assets in favour of the Purchaser or Designee (c) the Grand Villa Master Lease; (d) the Grand Villa Master Lease Beneficial Covenant; (e) the Grand Villa Nominee Agreement; (f) the Starlight Master Lease; (g) the Starlight Master Lease Beneficial Covenant; (h) the Starlight Nominee Agreement; (i) the Cascades Master Lease; (j) the Cascades Master Lease Beneficial Covenant; (k) the Cascades Nominee Agreement; (l) the Landlord BCLC Agreement(s); (m) an assignment and assumption of Permitted Encumbrances, in form and substance reasonably acceptable to the Vendor and the Purchaser, with respect to all applicable contractual Permitted Encumbrances, for which the applicable Permitted Encumbrances shall be agreed upon by the Vendor and the Purchaser prior to the Purchaser’s Condition Date; (n) any specific assignment and/or assumption and/or non-disturbance or landlord acknowledgement agreements or replacement agreements which may be required under any of the Permitted Encumbrances or any hotel management or hotel license agreement governing a Property or by any Gaming Authority in respect of the Transaction; (o) an assignment of the Vendor’s interest in all Warranties, licenses and permits (to the extent that such licenses and permits are assignable) to the extent that they relate to the Subject Assets and not to the operation of the Business; (p) a statement of adjustments; (q) a mutual undertaking to readjust; (r) the Corporate Certificate re: Vendor; (s) a direction as to the payee or payees of the Balance; (t) a certificate of an officer of the Vendor confirming that the Vendor is not a “non-resident” of Canada within the meaning of the Income Tax Act (Canada); (u) any documents or deliveries contemplated to be delivered by the Master Lease Tenant to the Purchaser, as landlord, pursuant to any of the Grand Villa Master Lease, the Cascades Master Lease, and the Starlight Master Lease, including without limitation, evidence of insurance as required thereby, estoppel certificates and a subordination, non-disturbance and attornment agreement to the Purchaser’s mortgagee as contemplated thereby, or other documents specifically contemplated thereby that may be required in connection with the Purchaser’s financing, provided that, in each case, the Purchaser provides written Notice to the Vendor specifically requiring same, no later than ten (10) Business Days prior to Closing; (v) estoppel certificates for the Nominee Ground Leases, executed by the landlord and the tenant thereunder, confirming that such Nominee Ground Leases are in full force and effect and that there are no defaults by either party thereunder; (w) estoppel certificates for all the Leases (each, an “Existing Lease Estoppel Certificate”), in the Purchaser’s form or such form as may be prescribed by the Leases. To the extent that the Vendor is unable to obtain and deliver to the Purchaser on or before the Closing Date Existing Lease Estoppel Certificates from those tenants not referred to in the preceding sentence despite using all reasonable commercial efforts to obtain the same, the Vendor will execute and deliver to the Purchaser and the Purchaser’s lender or lenders on the Closing Date a certificate of the Vendor for all such tenants (the “Replacement Estoppel Certificate”) certifying the information contemplated in the Purchaser’s form of Existing Lease Estoppel Certificate. The Replacement Estoppel Certificate will be deemed for all purposes to be a representation and warranty by the Vendor, subject to the limitations in Article 6, of the truth and accuracy of the matters set out in the Replacement Estoppel Certificate; (x) registrable discharges of all Encumbrances registered against the Lands in the LTO which are not Permitted Encumbrances. However, if discharges of such Encumbrances are not available on the Closing Date, the Vendor shall be entitled to register a discharge of same within sixty (60) days after the Closing Date so long as the Encumbrance is in favour of a Canadian Schedule I chartered bank pursuant to the Bank Act (Canada), other British Columbia credit union, BNY Trust Company of Canada or Computershare Company of Canada (the “Existing Chargees”) and commercially reasonable undertakings regarding the discharge of such Encumbrances post-closing are complied with, including the provision to the Purchaser prior to the Closing Date of a payout statement for discharge purposes in respect of the Encumbrances to be paid out and an undertaking of the Vendor’s Solicitors satisfactory to the Purchaser’s Solicitors to pay the balance due under the Encumbrances out of the Balance once received by the Vendor’s Solicitors and provided that the Title Insurer has agreed to “insure over” and remove such Encumbrance as an exception on Purchaser’s Title Policies. For clarity, on or before the Closing Date, the Vendor shall deliver to the Purchaser registrable discharges for any financial Encumbrances and financing statements registered under personal property security legislation affecting the Subject Assets in favour of any entity that is not a Canadian Schedule I chartered bank pursuant to the Bank Act (Canada), other British Columbia credit union, BNY Trust Company of Canada or Computershare Company of Canada; (y) where applicable, registrable discharges in respect of all financing statements registered under personal property security legislation affecting the Subject Assets which are in respect of Encumbrances other than Permitted Encumbrances (subject to any provisions as to the release and registration of such discharges otherwise set out herein) or, alternatively, provided that such financing statements registered under personal property security legislation affecting the Subject Assets are in favor of a Canadian Schedule I bank pursuant to the Bank Act (Canada) or other British Columbia credit union, a certificate or “no interest” letter from such bank or credit union as the secured party in respect of such financing statement (which shall survive Closing) certifying that none of the financing statement(s) registered under personal property security legislation against the Vendor, the Cascades Freehold Nominee or the Vendor Nominee, affect the Subject Assets, such certificate or letter to be satisfactory to the Purchaser, acting reasonably; (z) the Cascades Lands Strata Lots Landlord’s Assignment; (aa) the Cascades Lands Strata Lots Notice of Landlord’s Assignment; (bb) the Comfort Letters, executed by Vendor and the applicable property manager or franchisor; (cc) legal opinions as to the due authorization, execution and delivery of the Master Leases and the Master Lease Beneficial Covenants and as to matters of Gaming Law in a form settled by the Purchaser’s Condition Date (which opinions shall be addressed to the Purchaser and the Purchaser’s lenders), as may be requested by the Purchaser or the Purchaser’s lenders, acting reasonably, or as requested by the Title Insurer in order to issue the Title Policies; (dd) certified copies of resolutions of the directors or shareholders, as applicable, of the Cascades Freehold Nominee authorizing the transfer of the Nominee Shares to the Purchaser; (ee) an assignment of the Nominee Shares to Purchaser, which assignment shall include an indemnity from the Vendor to the Purchaser and the Cascades Freehold Nominee against all losses, claims, actions, damages, liabilities and expenses arising from the existence or occurrence of any facts or circumstances whatsoever relating to the Nominee Shares or the Cascades Freehold Nominee that existed or occurred prior to the Closing Date, including without limitation, any known or unknown liabilities of the Cascades Freehold Nominee existing on or before the Closing Date; (ff) registration of the Nominee Shares in the name of the Purchaser and issuance of a new share certificate to the Purchaser in respect of the Nominee Shares; (gg) resignations executed by all persons holding positions as directors or officers of the Cascades Freehold Nominee and indemnities from the Purchaser in favour of such directors and officers; (hh) all minute books and other corporate records of the Nominees in the possession of the Cascades Freehold Nominee or the Vendor; (ii) an assignment and assumption of the Nominee Ground Leases; (jj) the Option Agreements; (kk) the Easement; (ll) such other documents and certificates, including without limitation an officer’s certificate as to the continued accuracy of the surveys provided in the Property Information, as may be reasonably requested by the Title Insurer in order to issue the Title Policies; and (mm) any other closing documents, certificates and assurances as may be requisite in the reasonable opinion of the Purchaser’s solicitors for more perfectly and absolutely assigning, transferring, conveying and assuring to and vesting in the Purchaser, title to the Subject Assets free and clear of any lien, charge, encumbrance or legal notation other than the Permitted Encumbrances as contemplated herein.
Appears in 2 contracts
Samples: Agreement of Purchase and Sale (GTWY Holdings LTD), Agreement of Purchase and Sale (Gateway Casinos & Entertainment LTD)
Vendor’s Closing Documents. At least two (2) Business Days prior to On or before the Closing Date, subject to the provisions of this Agreement, the Vendor shall deliver, or cause to be delivered, will deliver to the Purchaser’s Solicitors in trust to be held in escrow as hereinafter provided the following, following duly executed by the Vendor, the Vendor Nominee or the Master Lease Tenant, in each case where it is to be a party theretoas appropriate and applicable:
(a) the Transfer in registrable Form A freehold transfers (the “Transfer Documents”) of all form and any additional supporting documentation required to effect registration of the Lands but for Transfer in the Cascades Lands Freehold Lot in favour of the Purchaser, Designee or nominee as directed by the Purchaser, subject only to Permitted EncumbrancesLTO;
(b) transfer of beneficial interest agreement of the Subject Assets in favour of the Purchaser or DesigneeHeritage Lease;
(c) a bill of sale related to the Grand Villa Master LeaseChattels (if any), the Other Property and the Plans and Specs;
(d) the Grand Villa Master Lease Beneficial Covenantan assignment and assumption agreement with respect to Permitted Encumbrances and Warranties;
(e) the Grand Villa Nominee AgreementStatement of Adjustments;
(f) the Starlight Master Lease;
(gcertificate(s) the Starlight Master Lease Beneficial Covenant;
(h) the Starlight Nominee Agreement;
(i) the Cascades Master Lease;
(j) the Cascades Master Lease Beneficial Covenant;
(k) the Cascades Nominee Agreement;
(l) the Landlord BCLC Agreement(s);
(m) an assignment and assumption of Permitted Encumbrances, in form and substance reasonably acceptable to the Vendor and the Purchaser, with respect to all applicable contractual Permitted Encumbrances, for which the applicable Permitted Encumbrances shall be agreed upon by the Vendor and the Purchaser prior to the Purchaser’s Condition Date;
(n) any specific assignment and/or assumption and/or non-disturbance or landlord acknowledgement agreements or replacement agreements which may be required under any of the Permitted Encumbrances or any hotel management or hotel license agreement governing a Property or by any Gaming Authority in respect of the Transaction;
(o) an assignment of the Vendor’s interest in all Warranties, licenses and permits (to the extent that such licenses and permits are assignable) to the extent that they relate to the Subject Assets and not to the operation of the Business;
(p) a statement of adjustments;
(q) a mutual undertaking to readjust;
(r) the Corporate Certificate re: Vendor;
(s) a direction as to the payee or payees of the Balance;
(t) a certificate of an officer of the Vendor confirming dated as of the Closing Date and made on behalf of the Vendor without personal liability to the officer, that certifies that the Vendor is not a “non-resident” resident of Canada within for the meaning purposes of the Income Tax Act (Canada);
(ug) any documents or deliveries contemplated a mutual undertaking to be delivered by readjust the Master Lease Tenant to the Purchaser, as landlord, pursuant to any of the Grand Villa Master Lease, the Cascades Master Lease, and the Starlight Master Lease, including without limitation, evidence of insurance as required thereby, estoppel certificates and a subordination, non-disturbance and attornment agreement to the Purchaser’s mortgagee as contemplated thereby, or other documents specifically contemplated thereby that may be required in connection with the Purchaser’s financing, provided that, in each case, the Purchaser provides written Notice to the Vendor specifically requiring same, no later than ten (10) Business Days prior to ClosingAdjustments;
(vh) estoppel certificates for the Nominee Ground Leases, executed by the landlord and the tenant thereunder, confirming that such Nominee Ground Leases are in full force and effect and that there are no defaults by either party thereunder;
(wcertificate(s) estoppel certificates for all the Leases (each, of an “Existing Lease Estoppel Certificate”), in the Purchaser’s form or such form as may be prescribed by the Leases. To the extent that officer of the Vendor is unable to obtain and deliver to the Purchaser on or before dated as of the Closing Date Existing Lease Estoppel Certificates from those tenants not referred to in the preceding sentence despite using all reasonable commercial efforts to obtain the same, and made on behalf of the Vendor will execute and deliver without personal liability to the Purchaser officer, that certifies that each of the representations and warranties of the Purchaser’s lender or lenders Vendor set out herein is materially true and accurate on the Closing Date a certificate of with the Vendor for all such tenants (the “Replacement Estoppel Certificate”) certifying the information contemplated in the Purchaser’s form of Existing Lease Estoppel Certificate. The Replacement Estoppel Certificate will be deemed for all purposes to be a representation and warranty by the Vendor, subject to the limitations in Article 6, of the truth and accuracy of the matters set out in the Replacement Estoppel Certificate;
(x) registrable discharges of all Encumbrances registered against the Lands in the LTO which are not Permitted Encumbrances. However, if discharges of such Encumbrances are not available same effect as though they had been made on the Closing Date, the Vendor shall be entitled to register a discharge of same within sixty (60) days after the Closing Date so long as the Encumbrance is in favour of a Canadian Schedule I chartered bank pursuant to the Bank Act (Canada), other British Columbia credit union, BNY Trust Company of Canada or Computershare Company of Canada (the “Existing Chargees”) and commercially reasonable undertakings regarding the discharge of such Encumbrances post-closing are complied with, including the provision to the Purchaser prior to the Closing Date of a payout statement for discharge purposes in respect of the Encumbrances to be paid out and an undertaking of the Vendor’s Solicitors satisfactory to the Purchaser’s Solicitors to pay the balance due under the Encumbrances out of the Balance once received by the Vendor’s Solicitors and provided that the Title Insurer has agreed to “insure over” and remove such Encumbrance as an exception on Purchaser’s Title Policies. For clarity, on or before the Closing Date, the Vendor shall deliver to the Purchaser registrable discharges for any financial Encumbrances and financing statements registered under personal property security legislation affecting the Subject Assets in favour of any entity that is not a Canadian Schedule I chartered bank pursuant to the Bank Act (Canada), other British Columbia credit union, BNY Trust Company of Canada or Computershare Company of Canada;
(y) where applicable, registrable discharges in respect of all financing statements registered under personal property security legislation affecting the Subject Assets which are in respect of Encumbrances other than Permitted Encumbrances (subject to any provisions as to the release and registration of such discharges otherwise set out herein) or, alternatively, provided that such financing statements registered under personal property security legislation affecting the Subject Assets are in favor of a Canadian Schedule I bank pursuant to the Bank Act (Canada) or other British Columbia credit union, a certificate or “no interest” letter from such bank or credit union as the secured party in respect of such financing statement (which shall survive Closing) certifying that none of the financing statement(s) registered under personal property security legislation against the Vendor, the Cascades Freehold Nominee or the Vendor Nominee, affect the Subject Assets, such certificate or letter to be satisfactory to the Purchaser, acting reasonably;
(z) the Cascades Lands Strata Lots Landlord’s Assignment;
(aa) the Cascades Lands Strata Lots Notice of Landlord’s Assignment;
(bb) the Comfort Letters, executed by Vendor and the applicable property manager or franchisor;
(cc) legal opinions as to the due authorization, execution and delivery of the Master Leases and the Master Lease Beneficial Covenants and as to matters of Gaming Law in a form settled by the Purchaser’s Condition Date (which opinions shall be addressed to the Purchaser and the Purchaser’s lenders), as may be requested by the Purchaser or the Purchaser’s lenders, acting reasonably, or as requested by the Title Insurer in order to issue the Title Policies;
(dd) certified copies of resolutions of the directors or shareholders, as applicable, of the Cascades Freehold Nominee authorizing the transfer of the Nominee Shares to the Purchaser;
(ee) an assignment of the Nominee Shares to Purchaser, which assignment shall include an indemnity from the Vendor to the Purchaser and the Cascades Freehold Nominee against all losses, claims, actions, damages, liabilities and expenses arising from the existence or occurrence of any facts or circumstances whatsoever relating to the Nominee Shares or the Cascades Freehold Nominee that existed or occurred prior to the Closing Date, including without limitation, any known or unknown liabilities of the Cascades Freehold Nominee existing on or before the Closing Date;
(ffi) registration certificate(s) of an officer of the Nominee Shares in the name Vendor dated as of the Purchaser Closing Date and issuance made on behalf of the Vendor without personal liability to the officer, that certifies that the Vendor’s covenants and agreements to be performed and observed by the Vendor pursuant to the terms of this Agreement have been duly observed and performed in all material respects;
(j) the Loan Amending Agreement;
(k) the Option Agreement;
(l) environmental indemnity granted by the Vendor in respect to the Purchased Assets, in a new share certificate form satisfactory to the Purchaser in respect of the Nominee Sharesits sole discretion;
(ggm) resignations executed by all persons holding positions as directors or officers of the Cascades Freehold Nominee and indemnities from the Purchaser in favour of such directors and officersa cross-default agreement;
(hhn) all minute books and other corporate records certified director’s resolution of the Nominees in Vendor approving the possession execution of this Agreement and the Cascades Freehold Nominee or the Vendortransactions contemplated hereunder;
(iio) an assignment and assumption certified resolution of the Nominee Ground Leasesshareholder(s) of the Vendor approving the execution of this Agreement and the transactions contemplated hereunder;
(jjp) confirmation that the Option Agreements;unwritten lease arrangement between the Vendor and Heritage with regard to the Property has been terminated and is of no force and effect; and
(kk) the Easement;
(llq) such other documents and certificates, including without limitation an officer’s certificate acknowledgements as to the continued accuracy of the surveys provided in the Property Information, as may be reasonably requested required by the Title Insurer in order to issue the Title Policies; and
(mm) any other closing documents, certificates and assurances as may be requisite in the reasonable opinion of the Purchaser’s solicitors for more perfectly and absolutely assigning, transferring, conveying and assuring to and vesting in the Purchaser, title to the Subject Assets free and clear of any lien, charge, encumbrance or legal notation other than the Permitted Encumbrances as contemplated hereinSolicitors acting reasonably.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Vendor’s Closing Documents. At least two (2) Business Days prior to Before the Closing Date, subject to the provisions of this Agreement, the Vendor shall deliver, or cause to be delivered, Vendors will deliver to the Purchaser’s Solicitors Solicitors, to be held in escrow as hereinafter provided, the following:
(a) a transfer to the Purchaser of QLT’s beneficial interest in the Properties duly executed by QLT;
(b) Form A transfers (the “Form A Transfers”) transferring to the Purchaser registered title to:
(i) the Lot F Property, duly executed by the Vendor, the Vendor Nominee or the Master Lease Tenant, in each case where it is to be a party thereto:Lot F Nominee; and
(aii) registrable Form A freehold transfers (the “Transfer Documents”) of all of the Lands but for the Cascades Lands Freehold Lot in favour of the Purchaser1 Property, Designee or nominee as directed duly executed by the Purchaser, subject only to Permitted EncumbrancesLot 1 Nominee;
(b) transfer of beneficial interest agreement of the Subject Assets in favour of the Purchaser or Designee
(c) the Grand Villa Master LeaseAssignment of Leases, duly executed by the Vendors;
(d) the Grand Villa Master Lease Beneficial CovenantAssignment of Approved Service Contracts, duly executed by the Vendors;
(e) the Grand Villa Nominee AgreementQLT Lease, duly executed by QLT as tenant;
(f) a xxxx of sale absolute conveying to the Starlight Master LeasePurchaser the Included Chattels and the interest of the Vendors in the Project Documents to the extent such interest is transferrable, duly executed by the Vendors;
(g) a certificate dated the Starlight Master Lease Beneficial CovenantClosing Date of a responsible officer of QLT having knowledge of the facts certifying that to the knowledge of such officer the representations and warranties set out in Section 8.1 are true and correct as at the Closing Date in all material respects and that the Vendors’ covenants and agreements to be observed or performed on or before the Closing Date pursuant to this Agreement have been duly observed and performed in all material respects, in each case with particulars of any applicable exceptions;
(h) a statement of adjustments approved by the Starlight Nominee AgreementVendors;
(i) a notice from the Cascades Master LeaseVendors to the Tenants giving notice of the sale of the Lot F Property and the Building and directing that rent and all other amounts payable to the landlord under the Leases be paid to the Purchaser or as the Purchaser may direct;
(j) the Cascades Master Lease Beneficial Covenant;Estoppel Certificates required pursuant to Section 4.3 (and, if required, the Replacement Estoppel Certificates); and
(k) the Cascades Nominee Agreement;
(l) the Landlord BCLC Agreement(s);
(m) an assignment and assumption of Permitted Encumbrances, in form and substance reasonably acceptable to the Vendor and the Purchaser, with respect to all applicable contractual Permitted Encumbrances, for which the applicable Permitted Encumbrances shall be agreed upon by the Vendor and the Purchaser prior to the Purchaser’s Condition Date;
(n) any specific assignment and/or assumption and/or non-disturbance or landlord acknowledgement agreements or replacement agreements which may be required under any of the Permitted Encumbrances or any hotel management or hotel license agreement governing a Property or by any Gaming Authority in respect of the Transaction;
(o) an assignment of the Vendor’s interest in all Warranties, licenses and permits (to the extent that such licenses and permits are assignable) to the extent that they relate to the Subject Assets and not to the operation of the Business;
(p) a statement of adjustments;
(q) a mutual undertaking to readjust;
(r) the Corporate Certificate re: Vendor;
(s) a direction as to the payee or payees of the Balance;
(t) a certificate of an officer of the Vendor confirming that the Vendor is not a “non-resident” of Canada within the meaning of the Income Tax Act (Canada);
(u) any documents or deliveries contemplated to be delivered by the Master Lease Tenant to the Purchaser, as landlord, pursuant to any of the Grand Villa Master Lease, the Cascades Master Lease, and the Starlight Master Lease, including without limitation, evidence of insurance as required thereby, estoppel certificates and a subordination, non-disturbance and attornment agreement to the Purchaser’s mortgagee as contemplated thereby, or other documents specifically contemplated thereby that may be required in connection with the Purchaser’s financing, provided that, in each case, the Purchaser provides written Notice to the Vendor specifically requiring same, no later than ten (10) Business Days prior to Closing;
(v) estoppel certificates for the Nominee Ground Leases, executed by the landlord and the tenant thereunder, confirming that such Nominee Ground Leases are in full force and effect and that there are no defaults by either party thereunder;
(w) estoppel certificates for all the Leases (each, an “Existing Lease Estoppel Certificate”), in the Purchaser’s form or such form as may be prescribed by the Leases. To the extent that the Vendor is unable to obtain and deliver to the Purchaser on or before the Closing Date Existing Lease Estoppel Certificates from those tenants not referred to in the preceding sentence despite using all reasonable commercial efforts to obtain the same, the Vendor will execute and deliver to the Purchaser and the Purchaser’s lender or lenders on the Closing Date a certificate of the Vendor for all such tenants (the “Replacement Estoppel Certificate”) certifying the information contemplated in the Purchaser’s form of Existing Lease Estoppel Certificate. The Replacement Estoppel Certificate will be deemed for all purposes to be a representation and warranty by the Vendor, subject to the limitations in Article 6, of the truth and accuracy of the matters set out in the Replacement Estoppel Certificate;
(x) registrable discharges of all Encumbrances registered against the Lands in the LTO which are not Permitted Encumbrances. However, if discharges of such Encumbrances are not available on the Closing Date, the Vendor shall be entitled to register a discharge of same within sixty (60) days after the Closing Date so long as the Encumbrance is in favour of a Canadian Schedule I chartered bank pursuant to the Bank Act (Canada), other British Columbia credit union, BNY Trust Company of Canada or Computershare Company of Canada (the “Existing Chargees”) and commercially reasonable undertakings regarding the discharge of such Encumbrances post-closing are complied with, including the provision to the Purchaser prior to the Closing Date of a payout statement for discharge purposes in respect of the Encumbrances to be paid out and an undertaking of the Vendor’s Solicitors satisfactory to the Purchaser’s Solicitors to pay the balance due under the Encumbrances out of the Balance once received by the Vendor’s Solicitors and provided that the Title Insurer has agreed to “insure over” and remove such Encumbrance as an exception on Purchaser’s Title Policies. For clarity, on or before the Closing Date, the Vendor shall deliver to the Purchaser registrable discharges for any financial Encumbrances and financing statements registered under personal property security legislation affecting the Subject Assets in favour of any entity that is not a Canadian Schedule I chartered bank pursuant to the Bank Act (Canada), other British Columbia credit union, BNY Trust Company of Canada or Computershare Company of Canada;
(y) where applicable, registrable discharges in respect of all financing statements registered under personal property security legislation affecting the Subject Assets which are in respect of Encumbrances other than Permitted Encumbrances (subject to any provisions as to the release and registration of such discharges otherwise set out herein) or, alternatively, provided that such financing statements registered under personal property security legislation affecting the Subject Assets are in favor of a Canadian Schedule I bank pursuant to the Bank Act (Canada) or other British Columbia credit union, a certificate or “no interest” letter from such bank or credit union as the secured party in respect of such financing statement (which shall survive Closing) certifying that none of the financing statement(s) registered under personal property security legislation against the Vendor, the Cascades Freehold Nominee or the Vendor Nominee, affect the Subject Assets, such certificate or letter to be satisfactory to the Purchaser, acting reasonably;
(z) the Cascades Lands Strata Lots Landlord’s Assignment;
(aa) the Cascades Lands Strata Lots Notice of Landlord’s Assignment;
(bb) the Comfort Letters, executed by Vendor and the applicable property manager or franchisor;
(cc) legal opinions as to the due authorization, execution and delivery of the Master Leases and the Master Lease Beneficial Covenants and as to matters of Gaming Law in a form settled by the Purchaser’s Condition Date (which opinions shall be addressed to the Purchaser and the Purchaser’s lenders), as may be requested by the Purchaser or the Purchaser’s lenders, acting reasonably, or as requested by the Title Insurer in order to issue the Title Policies;
(dd) certified copies of resolutions of the directors or shareholders, as applicable, of the Cascades Freehold Nominee authorizing the transfer of the Nominee Shares to the Purchaser;
(ee) an assignment of the Nominee Shares to Purchaser, which assignment shall include an indemnity from the Vendor to the Purchaser and the Cascades Freehold Nominee against all losses, claims, actions, damages, liabilities and expenses arising from the existence or occurrence of any facts or circumstances whatsoever relating to the Nominee Shares or the Cascades Freehold Nominee that existed or occurred prior to the Closing Date, including without limitation, any known or unknown liabilities of the Cascades Freehold Nominee existing on or before the Closing Date;
(ff) registration of the Nominee Shares in the name of the Purchaser and issuance of a new share certificate to the Purchaser in respect of the Nominee Shares;
(gg) resignations executed by all persons holding positions as directors or officers of the Cascades Freehold Nominee and indemnities from the Purchaser in favour of such directors and officers;
(hh) all minute books and other corporate records of the Nominees in the possession of the Cascades Freehold Nominee or the Vendor;
(ii) an assignment and assumption of the Nominee Ground Leases;
(jj) the Option Agreements;
(kk) the Easement;
(ll) such other documents and certificates, including without limitation an officer’s certificate as to the continued accuracy of the surveys provided in the Property Information, as may be reasonably requested by the Title Insurer in order to issue the Title Policies; and
(mm) any other closing further documents, certificates and assurances of the Vendors as may be requisite in the reasonable opinion of the Purchaser’s solicitors Solicitors to complete the transactions contemplated by this Agreement and for more perfectly and absolutely assigning, transferring, conveying and assuring to and vesting in the Purchaser, title to the Subject Assets Purchased Assets, free and clear of any lienfrom all claims, chargeliens, encumbrance or legal notation charges, encumbrances and caveats other than the Permitted Encumbrances as contemplated hereinEncumbrances, provided that the Purchaser’s Solicitors have prepared and delivered them to the Vendors’ Solicitors at least five (5) Business Days prior to the Closing Date.
Appears in 1 contract
Vendor’s Closing Documents. At least two (2) Business Days prior to the Closing Date, subject to the provisions of this Agreement, the Vendor shall deliver, or cause to be delivered, to the Purchaser’s Solicitors the following, duly executed by the Vendor, the Vendor Nominee or the Master Lease Tenant, in each case where it is to be a party thereto:
(a) registrable Form A freehold transfers (the “Transfer Documents”) of all of the Lands but for the Cascades Lands Freehold Lot in favour of the Purchaser, Designee or nominee as directed by the Purchaser, subject only to Permitted Encumbrances;
(b) transfer of beneficial interest agreement of the Subject Assets in favour of the Purchaser or Designee
(c) the Grand Villa Master Lease;
(d) the Grand Villa Master Lease Beneficial Covenant;
(e) the Grand Villa Nominee Agreement;
(f) the Starlight Master Lease;
(g) the Starlight Master Lease Beneficial Covenant;
(h) the Starlight Nominee Agreement;
(i) the Cascades Master Lease;
(j) the Cascades Master Lease Beneficial Covenant;
(k) the Cascades Nominee Agreement;
(l) the Landlord BCLC Agreement(s);
(m) an assignment and assumption of Permitted Encumbrances, in form and substance reasonably acceptable to the Vendor and the Purchaser, with respect to all applicable contractual Permitted Encumbrances, for which the applicable Permitted Encumbrances shall be agreed upon by the Vendor and the Purchaser prior to the Purchaser’s Condition Date;
(n) any specific assignment and/or assumption and/or non-disturbance or landlord acknowledgement agreements or replacement agreements which may be required under any of the Permitted Encumbrances or any hotel management or hotel license agreement governing a Property or by any Gaming Authority in respect of the Transaction;
(o) an assignment of the Vendor’s interest in all Warranties, licenses and permits (to the extent that such licenses and permits are assignable) to the extent that they relate to the Subject Assets and not to the operation of the Business;
(p) a statement of adjustments;
(q) a mutual undertaking to readjust;
(r) the Corporate Certificate re: Vendor;
(s) a direction as to the payee or payees of the Balance;
(t) a certificate of an officer of the Vendor confirming that the Vendor is not a “non-resident” of Canada within the meaning of the Income Tax Act (Canada);
(u) any documents or deliveries contemplated to be delivered by the Master Lease Tenant to the Purchaser, as landlord, pursuant to any of the Grand Villa Master Lease, the Cascades Master Lease, and the Starlight Master Lease, including without limitation, evidence of insurance as required thereby, estoppel certificates and a subordination, non-disturbance and attornment agreement to the Purchaser’s mortgagee as contemplated thereby, or other documents specifically contemplated thereby that may be required in connection with the Purchaser’s financing, provided that, in each case, the Purchaser provides written Notice to the Vendor specifically requiring same, no later than ten (10) Business Days prior to Closing;
(v) estoppel certificates for the Nominee Ground Leases, executed by the landlord and the tenant thereunder, confirming that such Nominee Ground Leases are in full force and effect and that there are no defaults by either party thereunder;
(w) estoppel certificates for all the Leases (each, an “Existing Lease Estoppel Certificate”), in the Purchaser’s form or such form as may be prescribed by the Leases. To the extent that the Vendor is unable to obtain and deliver to the Purchaser on or before the Closing Date Existing Lease Estoppel Certificates from those tenants not referred to in the preceding sentence despite using all reasonable commercial efforts to obtain the same, the Vendor will execute and deliver to the Purchaser and the Purchaser’s lender or lenders on the Closing Date a certificate of the Vendor for all such tenants (the “Replacement Estoppel Certificate”) certifying the information contemplated in the Purchaser’s form of Existing Lease Estoppel Certificate. The Replacement Estoppel Certificate will be deemed for all purposes to be a representation and warranty by the Vendor, subject to the limitations in Article 6, of the truth and accuracy of the matters set out in the Replacement Estoppel Certificate;
(x) registrable discharges of all Encumbrances registered against the Lands in the LTO which are not Permitted Encumbrances. However, if discharges of such Encumbrances are not available on the Closing Date, the Vendor shall be entitled to register a discharge of same within sixty (60) days after the Closing Date so long as the Encumbrance is in favour of a Canadian Schedule I chartered bank pursuant to the Bank Act (Canada), other British Columbia credit union, BNY Trust Company of Canada or Computershare Company of Canada (the “Existing Chargees”) and commercially reasonable undertakings regarding the discharge of such Encumbrances post-closing are complied with, including the provision to the Purchaser prior to the Closing Date of a payout statement for discharge purposes in respect of the Encumbrances to be paid out and an undertaking of the Vendor’s Solicitors satisfactory to the Purchaser’s Solicitors to pay the balance due under the Encumbrances out of the Balance once received by the Vendor’s Solicitors and provided that the Title Insurer has agreed to “insure over” and remove such Encumbrance as an exception on Purchaser’s Title Policies. For clarity, on or before the Closing Date, the Vendor shall deliver to the Purchaser registrable discharges for any financial Encumbrances the following:
(a) the corporate minute books and financing statements registered under personal property security legislation affecting all other books and records of each of the Subject Assets in favour of any entity that is not a Canadian Schedule I chartered bank pursuant to the Bank Act (Canada), other British Columbia credit union, BNY Trust Company of Canada or Computershare Company of CanadaSubsidiaries;
(yb) where applicablea certificate of the Chief Executive Officer of the Vendor dated as of the Closing Date and certifying the truth and accuracy of the Vendor’s representations and warranties as of the Closing Date and certifying that all covenants to be performed by the Vendor by the Closing Time as contained in this Agreement have been so performed;
(c) duly signed resignations of the examiner, registrable discharges directors and officers of the Subsidiaries listed in respect Schedule 13.2(c);
(d) a certified copy of resolutions of the directors of Mexgold authorizing the transfer of all financing statements registered under personal property security legislation affecting of the Subject Assets which are in respect of Encumbrances other than Permitted Encumbrances (subject to any provisions as issued and outstanding Mexgold Shares to the release and Purchaser, the registration of such discharges otherwise set out hereinshares in the name of the Purchaser (or the Purchaser’s nominee, as the Purchaser may direct in writing), the issue of share certificates representing the said shares registered in the name of the Purchaser (or the Purchaser’s nominee, as the Purchaser may direct in writing) orand effecting the necessary changes in the directors and officers of Mexgold, alternativelyas the Purchaser may direct;
(e) share certificate(s) registered in the name of the Purchaser (or the Purchaser’s nominee, provided that such financing statements as the Purchaser may direct in writing) signed by an authorized representative of Mexgold representing all of the issued and outstanding Mexgold Shares;
(f) a certified copy of the register of members of Mexgold showing the Purchaser (or its nominee) as the sole registered under personal property security legislation affecting owner of the Subject Assets are in favor Mexgold Shares;
(g) a certified copy of a Canadian Schedule I bank pursuant resolutions of the examiner and attorneys-in-fact of each of Metales, CM del Cubo and AGCH authorizing the transfer of the Minority Shares to the Bank Act Purchaser, the registration of such shares in the name of the Purchaser (Canada) or other British Columbia credit unionthe Purchaser’s nominee, a certificate or “no interest” letter from such bank or credit union as the secured party Purchaser may direct in respect writing), the issue of such financing statement (which shall survive Closing) certifying that none share certificates representing the said shares registered in the name of the financing statement(s) registered under personal property security legislation against the Vendor, the Cascades Freehold Nominee Purchaser (or the Purchaser’s nominee, as the Purchaser may direct in writing) and effecting the necessary changes in the directors and officers of each of Metales, CM del Cubo and AGCH, as the Purchaser may direct;
(h) share certificates representing the Minority Shares registered in the name of the Purchaser (or the Purchaser’s nominee, as the Purchaser may direct in writing) and duly signed by two authorized representatives of each of Metales, CM del Cubo and AGCH;
(i) a certified copy of the register of shareholders of each of Metales, CM del Cubo and AGCH showing the Purchaser (or its nominee) as the registered owner of the Minority Shares;
(j) evidence satisfactory to the Purchaser of the revocation of powers of attorney and notified to the attorneys-in-fact listed in Schedule 13.2(j) previously granted by or on behalf of each of Metales, CM del Cubo and AGCH;
(k) executed assignment and novation of the rights and obligations of the Vendor Nomineeunder the Las Xxxxxx Lease, affect the Subject Assetsif this has been achieved by Closing;
(l) releases, such certificate or letter to be in form and substance satisfactory to the Purchaser, acting reasonably, executed by the Vendor in its capacity as a shareholder, in favour of each of the Subsidiaries releasing the Subsidiaries from any and all manner of Actions and liabilities whatsoever, in law or equity, which the Vendor ever had, now has or may have against each of the Subsidiaries for or by reason of any matter, cause or thing whatsoever done or omitted to be done by the Subsidiary up to the Closing;
(zm) all such other instruments of transfer, duly executed, which in the opinion of the Purchaser acting reasonably are necessary to effect and evidence the transfer of the Purchased Shares to the Purchaser free and clear of all Encumbrances; and
(n) opinions of counsel to the Vendor satisfactory to the Purchaser in the form attached in Schedule J hereto as to (i) the Cascades Lands Strata Lots Landlord’s Assignment;
corporate status and good standing of the Subsidiaries and the registered holders; (aaii) the Cascades Lands Strata Lots Notice share capital of Landlord’s Assignment;
the Subsidiaries; (bbiii) the Comfort Letters, executed by Vendor and the applicable property manager or franchisor;
(cc) legal opinions as to the due authorization, execution and delivery of the Master Leases and the Master Lease Beneficial Covenants and as to matters of Gaming Law in a form settled this Agreement by the Purchaser’s Condition Date Vendor and enforceability matters; and (which opinions shall be addressed to the Purchaser and the Purchaser’s lenders), as may be requested by the Purchaser or the Purchaser’s lenders, acting reasonably, or as requested by the Title Insurer in order to issue the Title Policies;
(dd) certified copies of resolutions of the directors or shareholders, as applicable, of the Cascades Freehold Nominee authorizing the transfer of the Nominee Shares to the Purchaser;
(ee) an assignment of the Nominee Shares to Purchaser, which assignment shall include an indemnity from the Vendor to the Purchaser and the Cascades Freehold Nominee against all losses, claims, actions, damages, liabilities and expenses arising from the existence or occurrence of any facts or circumstances whatsoever relating to the Nominee Shares or the Cascades Freehold Nominee that existed or occurred prior to the Closing Date, including without limitation, any known or unknown liabilities of the Cascades Freehold Nominee existing on or before the Closing Date;
(ff) registration of the Nominee Shares in the name of the Purchaser and issuance of a new share certificate to the Purchaser in respect of the Nominee Shares;
(gg) resignations executed by all persons holding positions as directors or officers of the Cascades Freehold Nominee and indemnities from the Purchaser in favour of such directors and officers;
(hh) all minute books and other corporate records of the Nominees in the possession of the Cascades Freehold Nominee or the Vendor;
(ii) an assignment and assumption of the Nominee Ground Leases;
(jj) the Option Agreements;
(kk) the Easement;
(lliv) such other documents and certificates, including without limitation an officer’s certificate matters as to the continued accuracy of the surveys provided in the Property Information, as Purchaser may be reasonably requested by the Title Insurer in order to issue the Title Policies; and
(mm) any other closing documents, certificates and assurances as may be requisite in the reasonable opinion of the Purchaser’s solicitors for more perfectly and absolutely assigning, transferring, conveying and assuring to and vesting in the Purchaser, title to the Subject Assets free and clear of any lien, charge, encumbrance or legal notation other than the Permitted Encumbrances as contemplated hereinrequest.
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Vendor’s Closing Documents. At least two (2) Business Days the Closing, the Vendors will deliver the following to the Purchaser:
7.1.1 evidence of the receipt of those Material Consents obtained by the Vendors prior to the Closing DateClosing, subject together with any other consents, approvals and authorizations referred to in Section 5.4 obtained by the Vendors;
7.1.2 a certified copy of a resolution of the Board of Directors or other authorizing resolution of the Vendors authorizing the sale and transfer of the Purchased Assets, respectively, as contemplated by this Agreement and the execution and delivery of this Agreement and all documents to be executed and delivered by the Vendors pursuant hereto;
7.1.3 a certificates of a senior officer of each of the Vendors as to the provisions incumbency of this Agreement, the Vendor shall deliver, or cause signatories on behalf of the Vendors and certifying the accuracy as of the Closing Date of the Vendors’ representations and warranties and the performance of their covenants to be delivered, to performed at or before the Purchaser’s Solicitors Closing;
7.1.4 the following, duly discharge and release of all Encumbrances listed and identified for discharge in the Section 1.1.108 of the Disclosure Statement;
7.1.5 the Tax Elections executed by the VendorVendors, as applicable;
7.1.6 all deeds, documents of title, conveyances, bills of sale, transfers, assignments, and indentures and other documents necessary or desirable to effect the Vendor Nominee or assignment, transfer and sale of the Master Lease Tenant, in each case where it is Purchased Assets as contemplated by this Agreement; the deeds of transfer relating to the Lands to be a party thereto:
(a) registrable Form A freehold transfers (the “Transfer Documents”) of all of the Lands but for the Cascades Lands Freehold Lot in favour of the Purchaser, Designee registered on title shall not contain any additional representation or nominee as directed warranty other than those contained herein and such deeds shall be prepared by the Purchaser, subject only Vendors and submitted to Permitted Encumbrances;
(b) transfer of beneficial interest agreement of the Subject Assets in favour of the Purchaser or Designee
(c) the Grand Villa Master Lease;
(d) the Grand Villa Master Lease Beneficial Covenant;
(e) the Grand Villa Nominee Agreement;
(f) the Starlight Master Lease;
(g) the Starlight Master Lease Beneficial Covenant;
(h) the Starlight Nominee Agreement;
(i) the Cascades Master Lease;
(j) the Cascades Master Lease Beneficial Covenant;
(k) the Cascades Nominee Agreement;
(l) the Landlord BCLC Agreement(s);
(m) an assignment and assumption of Permitted Encumbrances, in form and substance reasonably acceptable to the Vendor and the Purchaser, with respect to all applicable contractual Permitted Encumbrances, for which the applicable Permitted Encumbrances shall be agreed upon by the Vendor and the Purchaser prior to the Purchaser’s Condition Date;
(n) any specific assignment and/or assumption and/or non-disturbance or landlord acknowledgement agreements or replacement agreements which may be required under any of the Permitted Encumbrances or any hotel management or hotel license agreement governing a Property or by any Gaming Authority in respect of the Transaction;
(o) an assignment of the Vendor’s interest in all Warranties, licenses and permits (to the extent that such licenses and permits are assignable) to the extent that they relate to the Subject Assets and not to the operation of the Business;
(p) a statement of adjustments;
(q) a mutual undertaking to readjust;
(r) the Corporate Certificate re: Vendor;
(s) a direction as to the payee or payees of the Balance;
(t) a certificate of an officer of the Vendor confirming that the Vendor is not a “non-resident” of Canada within the meaning of the Income Tax Act (Canada);
(u) any documents or deliveries contemplated to be delivered by the Master Lease Tenant to the Purchaser, as landlord, pursuant to any of the Grand Villa Master Lease, the Cascades Master Lease, and the Starlight Master Lease, including without limitation, evidence of insurance as required thereby, estoppel certificates and a subordination, non-disturbance and attornment agreement to the Purchaser’s mortgagee as contemplated thereby, or other documents specifically contemplated thereby that may be required in connection with the Purchaser’s financing, provided that, in each case, the Purchaser provides written Notice to the Vendor specifically requiring same, no later than at least ten (10) Business Days prior to Closing;
7.1.7 a legal opinion of counsels to the Vendors, in form and substance satisfactory to the Vendors and the Purchaser and their respective counsel, acting reasonably, relating inter alia to the corporate status of the Vendors and the Equity Entities (vother than Elk Lake and Xxxxxxx-Domtar Inc.) estoppel certificates (collectively, the “Opinion Entities”), the due authorization and necessary corporate action for the Nominee Ground Leasesexecution, delivery and performance of this Agreement and the Other Transaction Documents to which each of the Opinion Entities is a party, and the non-violation of applicable law and constating documents as a result of the execution and delivery thereof; and
7.1.8 the Other Transaction Documents executed by the landlord and the tenant thereunder, confirming that Vendors; and
7.1.9 such Nominee Ground Leases are in full force and effect and that there are no defaults by either party thereunder;
(w) estoppel certificates for all the Leases (each, an “Existing Lease Estoppel Certificate”), in the Purchaser’s form or such form as may be prescribed by the Leases. To the extent that the Vendor is unable to obtain and deliver to the Purchaser on or before the Closing Date Existing Lease Estoppel Certificates from those tenants not referred to in the preceding sentence despite using all reasonable commercial efforts to obtain the same, the Vendor will execute and deliver to the Purchaser and the Purchaser’s lender or lenders on the Closing Date a certificate of the Vendor for all such tenants (the “Replacement Estoppel Certificate”) certifying the information contemplated in the Purchaser’s form of Existing Lease Estoppel Certificate. The Replacement Estoppel Certificate will be deemed for all purposes to be a representation and warranty by the Vendor, subject to the limitations in Article 6, of the truth and accuracy of the matters set out in the Replacement Estoppel Certificate;
(x) registrable discharges of all Encumbrances registered against the Lands in the LTO which are not Permitted Encumbrances. However, if discharges of such Encumbrances are not available on the Closing Date, the Vendor shall be entitled to register a discharge of same within sixty (60) days after the Closing Date so long as the Encumbrance is in favour of a Canadian Schedule I chartered bank pursuant to the Bank Act (Canada), other British Columbia credit union, BNY Trust Company of Canada or Computershare Company of Canada (the “Existing Chargees”) and commercially reasonable undertakings regarding the discharge of such Encumbrances post-closing are complied with, including the provision to the Purchaser prior to the Closing Date of a payout statement for discharge purposes in respect of the Encumbrances to be paid out and an undertaking of the Vendor’s Solicitors satisfactory to the Purchaser’s Solicitors to pay the balance due under the Encumbrances out of the Balance once received by the Vendor’s Solicitors and provided that the Title Insurer has agreed to “insure over” and remove such Encumbrance as an exception on Purchaser’s Title Policies. For clarity, on or before the Closing Date, the Vendor shall deliver to the Purchaser registrable discharges for any financial Encumbrances and financing statements registered under personal property security legislation affecting the Subject Assets in favour of any entity that is not a Canadian Schedule I chartered bank pursuant to the Bank Act (Canada), other British Columbia credit union, BNY Trust Company of Canada or Computershare Company of Canada;
(y) where applicable, registrable discharges in respect of all financing statements registered under personal property security legislation affecting the Subject Assets which are in respect of Encumbrances other than Permitted Encumbrances (subject to any provisions as to the release and registration of such discharges otherwise set out herein) or, alternatively, provided that such financing statements registered under personal property security legislation affecting the Subject Assets are in favor of a Canadian Schedule I bank pursuant to the Bank Act (Canada) or other British Columbia credit union, a certificate or “no interest” letter from such bank or credit union as the secured party in respect of such financing statement (which shall survive Closing) certifying that none of the financing statement(s) registered under personal property security legislation against the Vendor, the Cascades Freehold Nominee or the Vendor Nominee, affect the Subject Assets, such certificate or letter to be satisfactory to the Purchaser, acting reasonably;
(z) the Cascades Lands Strata Lots Landlord’s Assignment;
(aa) the Cascades Lands Strata Lots Notice of Landlord’s Assignment;
(bb) the Comfort Letters, executed by Vendor and the applicable property manager or franchisor;
(cc) legal opinions as to the due authorization, execution and delivery of the Master Leases and the Master Lease Beneficial Covenants and as to matters of Gaming Law in a form settled by the Purchaser’s Condition Date (which opinions shall be addressed to the Purchaser and the Purchaser’s lenders), documents as may be requested by the Purchaser or the Purchaser’s lenders, acting reasonably, or as requested by the Title Insurer in order to issue the Title Policies;
(dd) certified copies of resolutions of the directors or shareholders, as applicable, of the Cascades Freehold Nominee authorizing the transfer of the Nominee Shares to the Purchaser;
(ee) an assignment of the Nominee Shares to Purchaser, which assignment shall include an indemnity from the Vendor to the Purchaser and the Cascades Freehold Nominee against all losses, claims, actions, damages, liabilities and expenses arising from the existence or occurrence of any facts or circumstances whatsoever relating to the Nominee Shares or the Cascades Freehold Nominee that existed or occurred prior to the Closing Date, including without limitation, any known or unknown liabilities of the Cascades Freehold Nominee existing on or before the Closing Date;
(ff) registration of the Nominee Shares in the name of the Purchaser and issuance of a new share certificate to the Purchaser in respect of the Nominee Shares;
(gg) resignations executed by all persons holding positions as directors or officers of the Cascades Freehold Nominee and indemnities from the Purchaser in favour of such directors and officers;
(hh) all minute books and other corporate records of the Nominees in the possession of the Cascades Freehold Nominee or the Vendor;
(ii) an assignment and assumption of the Nominee Ground Leases;
(jj) the Option Agreements;
(kk) the Easement;
(ll) such other documents and certificates, including without limitation an officer’s certificate as to the continued accuracy of the surveys provided in the Property Information, as may be reasonably requested by the Title Insurer in order to issue the Title Policies; and
(mm) any other closing documents, certificates and assurances as may be requisite in the reasonable opinion of the Purchaser’s solicitors for more perfectly and absolutely assigning, transferring, conveying and assuring to and vesting in the Purchaser, title to the Subject Assets free and clear of any lien, charge, encumbrance or legal notation other than the Permitted Encumbrances as contemplated herein.
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Vendor’s Closing Documents. At least two (2) Business Days prior to the Closing Date, subject to the provisions of this AgreementClosing, the Vendor shall deliver, or cause to be delivered, will deliver the following to the Purchaser’s Solicitors the following, duly executed by the Vendor, the Vendor Nominee or the Master Lease Tenant, in each case where it is to be a party thereto:
(a) registrable Form A freehold transfers (the “Transfer Documents”) of all Acquired Tenure and an assignment of the Lands but for the Cascades Lands Freehold Lot in favour of Acquired Tenure to the Purchaser, Designee or nominee in such form as directed by the Purchaser, subject only to Permitted EncumbrancesPurchaser may reasonably require;
(b) all deeds, bills of sale, transfers and assignments (including all consents contemplated by 6.3(d)) which are necessary to assign or transfer of beneficial the Purchased Assets (other than the Acquired Tenure) or the Vendor’s interest agreement of the Subject Assets in favour of therein to the Purchaser or Designeeas contemplated by this Agreement, in such form as the Purchaser may reasonably require;
(c) discharges of any Encumbrances against any of the Grand Villa Master Lease;
(d) the Grand Villa Master Lease Beneficial Covenant;
(e) the Grand Villa Nominee Agreement;
(f) the Starlight Master Lease;
(g) the Starlight Master Lease Beneficial Covenant;
(h) the Starlight Nominee Agreement;
(i) the Cascades Master Lease;
(j) the Cascades Master Lease Beneficial Covenant;
(k) the Cascades Nominee Agreement;
(l) the Landlord BCLC Agreement(s);
(m) an assignment and assumption of Purchased Assets that are not Permitted Encumbrances, each in form and substance reasonably acceptable to the Vendor and the Purchaser, with respect to all applicable contractual Permitted Encumbrances, for which the applicable Permitted Encumbrances shall be agreed upon by the Vendor and the Purchaser prior to the Purchaser’s Condition Date;
(n) any specific assignment and/or assumption and/or non-disturbance or landlord acknowledgement agreements or replacement agreements which may be required under any of the Permitted Encumbrances or any hotel management or hotel license agreement governing a Property or by any Gaming Authority in respect of the Transaction;
(o) an assignment of the Vendor’s interest in all Warranties, licenses and permits (to the extent that such licenses and permits are assignable) to the extent that they relate to the Subject Assets and not to the operation of the Business;
(p) a statement of adjustments;
(q) a mutual undertaking to readjust;
(r) the Corporate Certificate re: Vendor;
(s) a direction as to the payee or payees of the Balance;
(t) a certificate of an officer of the Vendor confirming that the Vendor is not a “non-resident” of Canada within the meaning of the Income Tax Act (Canada);
(u) any documents or deliveries contemplated to be delivered by the Master Lease Tenant to the Purchaser, as landlord, pursuant to any of the Grand Villa Master Lease, the Cascades Master Lease, and the Starlight Master Lease, including without limitation, evidence of insurance as required thereby, estoppel certificates and a subordination, non-disturbance and attornment agreement to the Purchaser’s mortgagee as contemplated thereby, or other documents specifically contemplated thereby that may be required in connection with the Purchaser’s financing, provided that, in each case, the Purchaser provides written Notice to the Vendor specifically requiring same, no later than ten (10) Business Days prior to Closing;
(v) estoppel certificates for the Nominee Ground Leases, executed by the landlord and the tenant thereunder, confirming that such Nominee Ground Leases are in full force and effect and that there are no defaults by either party thereunder;
(w) estoppel certificates for all the Leases (each, an “Existing Lease Estoppel Certificate”), in the Purchaser’s form or such form as may be prescribed by the Leases. To the extent that the Vendor is unable to obtain and deliver to the Purchaser on or before the Closing Date Existing Lease Estoppel Certificates from those tenants not referred to in the preceding sentence despite using all reasonable commercial efforts to obtain the same, the Vendor will execute and deliver to the Purchaser and the Purchaser’s lender or lenders on the Closing Date a certificate of the Vendor for all such tenants (the “Replacement Estoppel Certificate”) certifying the information contemplated in the Purchaser’s form of Existing Lease Estoppel Certificate. The Replacement Estoppel Certificate will be deemed for all purposes to be a representation and warranty by the Vendor, subject to the limitations in Article 6, of the truth and accuracy of the matters set out in the Replacement Estoppel Certificate;
(x) registrable discharges of all Encumbrances registered against the Lands in the LTO which are not Permitted Encumbrances. However, if discharges of such Encumbrances are not available on the Closing Date, the Vendor shall be entitled to register a discharge of same within sixty (60) days after the Closing Date so long as the Encumbrance is in favour of a Canadian Schedule I chartered bank pursuant to the Bank Act (Canada), other British Columbia credit union, BNY Trust Company of Canada or Computershare Company of Canada (the “Existing Chargees”) and commercially reasonable undertakings regarding the discharge of such Encumbrances post-closing are complied with, including the provision to the Purchaser prior to the Closing Date of a payout statement for discharge purposes in respect of the Encumbrances to be paid out and an undertaking of the Vendor’s Solicitors satisfactory to the Purchaser’s Solicitors to pay the balance due under the Encumbrances out of the Balance once received by the Vendor’s Solicitors and provided that the Title Insurer has agreed to “insure over” and remove such Encumbrance as an exception on Purchaser’s Title Policies. For clarity, on or before the Closing Date, the Vendor shall deliver to the Purchaser registrable discharges for any financial Encumbrances and financing statements registered under personal property security legislation affecting the Subject Assets in favour of any entity that is not a Canadian Schedule I chartered bank pursuant to the Bank Act (Canada), other British Columbia credit union, BNY Trust Company of Canada or Computershare Company of Canada;
(y) where applicable, registrable discharges in respect of all financing statements registered under personal property security legislation affecting the Subject Assets which are in respect of Encumbrances other than Permitted Encumbrances (subject to any provisions as to the release and registration of such discharges otherwise set out herein) or, alternatively, provided that such financing statements registered under personal property security legislation affecting the Subject Assets are in favor of a Canadian Schedule I bank pursuant to the Bank Act (Canada) or other British Columbia credit union, a certificate or “no interest” letter from such bank or credit union as the secured party in respect of such financing statement (which shall survive Closing) certifying that none of the financing statement(s) registered under personal property security legislation against the Vendor, the Cascades Freehold Nominee or the Vendor Nominee, affect the Subject Assets, such certificate or letter to be satisfactory to the Purchaser, acting reasonably;
(zd) the Cascades Lands Strata Lots Landlord’s Assignmentan executed statement of any adjustments under section 2.6;
(aae) a certificate of a senior officer of the Cascades Lands Strata Lots Notice of Landlord’s Assignment;
(bb) the Comfort Letters, executed by Vendor and the applicable property manager or franchisor;
(cc) legal opinions as to the due authorization, execution and delivery accuracy at the Closing Date of the Master Leases Vendor’s representations and warranties and the Master Lease Beneficial Covenants and as performance of its covenants to matters of Gaming Law in a form settled by the Purchaser’s Condition Date (which opinions shall be addressed to the Purchaser and the Purchaser’s lenders), as may be requested by the Purchaser or the Purchaser’s lenders, acting reasonably, or as requested by the Title Insurer in order to issue the Title Policies;
(dd) certified copies of resolutions of the directors or shareholders, as applicable, of the Cascades Freehold Nominee authorizing the transfer of the Nominee Shares to the Purchaser;
(ee) an assignment of the Nominee Shares to Purchaser, which assignment shall include an indemnity from the Vendor to the Purchaser and the Cascades Freehold Nominee against all losses, claims, actions, damages, liabilities and expenses arising from the existence or occurrence of any facts or circumstances whatsoever relating to the Nominee Shares or the Cascades Freehold Nominee that existed or occurred prior to the Closing Date, including without limitation, any known or unknown liabilities of the Cascades Freehold Nominee existing performed hereunder on or before the Closing Date, together with particulars of any inaccuracy or non-performance in respect thereof;
(fff) registration a certified copy of resolutions of the Nominee Shares in the name directors of the Purchaser and issuance of a new share certificate to Vendor approving the Purchaser in respect sale of the Nominee SharesPurchased Assets as contemplated by this Agreement and the execution and delivery by the Vendor of this Agreement and all documents required to be executed by the Vendor pursuant hereto;
(ggg) resignations an executed by all persons holding positions as directors or officers copy of the Cascades Freehold Nominee and indemnities from the Purchaser in favour of such directors and officersChip Supply Agreement;
(hhh) all minute books and other corporate records an executed copy of the Nominees in the possession of the Cascades Freehold Nominee or the VendorXxxxxxxxx Xxxx Amendment;
(iii) an assignment and assumption executed copies of the Nominee Ground Leases;
(jj) the Option Closing Agreements;
(kkj) an executed copy of the Easementassignment of the Genus Licence Agreement;
(llk) such other documents and certificates, including without limitation an officer’s a clearance certificate as to the continued accuracy under section 99 of the surveys provided Social Services Tax Act (British Columbia);
(l) an executed election form under subsection 167(1) of Part IX of the Excise Tax Act (Canada) as contemplated in section 7.3;
(m) an opinion of the Vendor’s counsel substantially in the Property Information, as may be reasonably requested by the Title Insurer in order to issue the Title Policiesform of Schedule ”X”; and
(mmn) any other closing documents, certificates and assurances as may be requisite in a receipt for the reasonable opinion amount of the Purchaser’s solicitors for more perfectly and absolutely assigning, transferring, conveying and assuring to and vesting in the Purchaser, title to the Subject Assets free and clear of any lien, charge, encumbrance or legal notation other than the Permitted Encumbrances as contemplated hereinPurchase Price that is paid at Closing.
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Vendor’s Closing Documents. At least two (2) Business Days prior 10.1 The Vendor agrees to the Closing Date, subject to the provisions of this Agreement, the Vendor shall deliver, execute or cause to be executed, where appropriate, and at its expense, and delivered, the following to the Purchaser’s Solicitors , unless otherwise provided, on or before the following, duly executed by the Vendor, the Vendor Nominee Closing Date or the Master Lease Tenant, in each case where it is to be a party theretosuch earlier date as specified below:
(a) a registrable Form A freehold transfers (the “Transfer Documents”) of all transfer of the Lands but for the Cascades Lands Freehold Lot in favour Xxxxxxxxx Lands, including completion of the Purchaser, Designee or nominee as directed compliance statements pursuant to Section 50 of the Planning Act (Ontario) by the Purchaser, subject only to Permitted EncumbrancesVendor’s Solicitors;
(b) a registrable transfer of beneficial interest agreement the Xxxx Lands, including completion of the Subject Assets in favour compliance statements pursuant to Section 50 of the Purchaser or DesigneePlanning Act (Ontario) by the Vendor’s Solicitors;
(c) the Grand Villa Master Lease;
(d) the Grand Villa Master Lease Beneficial Covenant;
(e) the Grand Villa Nominee Agreement;
(f) the Starlight Master Lease;
(g) the Starlight Master Lease Beneficial Covenant;
(h) the Starlight Nominee Agreement;
(i) the Cascades Master Lease;
(j) the Cascades Master Lease Beneficial Covenant;
(k) the Cascades Nominee Agreement;
(l) the Landlord BCLC Agreement(s);
(m) an assignment and assumption of Permitted Encumbrances, in form and substance reasonably acceptable to the Vendor and the Purchaser, with respect to all applicable contractual Permitted Encumbrances, for which the applicable Permitted Encumbrances shall be agreed upon by the Vendor and the Purchaser prior to the Purchaser’s Condition Date;
(n) any specific assignment and/or assumption and/or non-disturbance or landlord acknowledgement agreements or replacement agreements which may be required under any of the Permitted Encumbrances or any hotel management or hotel license agreement governing a Property or by any Gaming Authority in respect of the Transaction;
(o) an assignment of the Vendor’s interest in all Warranties, licenses and permits (to the extent that such licenses and permits are assignable) to the extent that they relate to the Subject Assets and not to the operation of the Business;
(p) statutory declaration from a statement of adjustments;
(q) a mutual undertaking to readjust;
(r) the Corporate Certificate re: Vendor;
(s) a direction as to the payee or payees of the Balance;
(t) a certificate of an senior officer of the Vendor confirming stating that the Vendor is not a “non-resident” resident of Canada within the meaning pursuant to Section 116 of the Income Tax Act (Canada);
(ud) any documents or deliveries contemplated a statement of adjustments (the first draft of which is to be delivered to the Purchaser at least seven business days before Closing);
(e) an executed copy of each of the Leases;
(f) original, fully completed, signed Tenant Estoppels;
(g) an assignment by the Master Lease Tenant Vendor and assumption by the Purchaser of the Warranties (the “Assignment of Warranties”);
(h) an undertaking to pay all metered utilities and realty taxes to Closing and to readjust all items on or omitted from the statement of adjustments, which undertaking will include an undertaking to execute and deliver any documents reasonably requested in relation to the Purchaser, as landlord, pursuant Transaction which were inadvertently not requested prior to any and/or delivered at Closing;
(i) a certified copy of a resolution of the Grand Villa Master Lease, directors and shareholders of the Cascades Master Lease, Vendor authorizing the Transaction;
(j) an officer’s certificate and certificate of incumbency for the Starlight Master Lease, including without limitation, evidence Vendor;
(k) a declaration of insurance possession setting forth the Vendor's history of occupation of the Lands;
(l) such statutory declarations or certificates relating to the Lands and/or Building as are reasonably required thereby, estoppel certificates and a subordination, non-disturbance and attornment agreement to by the Purchaser’s mortgagee as contemplated therebytitle insurer to issue a title insurance policy relating to the Lands and Building;
(m) discharges and/or releases of all agreements, or documents, encumbrances, leases, mortgages and security interests affecting the Purchased Assets other documents specifically contemplated thereby that may be required in connection with the Purchaser’s financing, provided that, in each case, than Permitted Encumbrances and those the Purchaser provides written Notice has agreed in writing to assume;
(n) a bringdown certificate from a senior officer of the Vendor stating that the Vendor’s representations and warranties contained in this Agreement are materially true, complete and effective as at the Closing Date;
(o) an undertaking to forthwith reimburse the Purchaser for all payments made by the Purchaser on or after Closing on account of any expenses with respect to the Vendor specifically requiring same, no later than ten (10) Business Days Lands and Buildings that relate to the period prior to Closing;
(vp) estoppel certificates the holdback direction and Escrow Agreement provided for the Nominee Ground Leases, executed by the landlord and the tenant thereunder, confirming that such Nominee Ground Leases are in full force and effect and that there are no defaults by either party thereunder;Section 6.7; and,
(wq) estoppel certificates for all the Leases (each, an “Existing Lease Estoppel Certificate”), in the Purchaser’s form or such form as may be prescribed by the Leases. To the extent that the Vendor is unable to obtain other documents which are required and deliver to which the Purchaser has reasonably requested on or before the Closing Date Existing Lease Estoppel Certificates from those tenants not to give effect to the Transaction. Where applicable, drafts of the items referred to above will be prepared by the Purchaser’s Solicitors and delivered to the Vendor’s Solicitors. All documentation will be in the preceding sentence despite using all reasonable commercial efforts to obtain the same, the Vendor will execute form and deliver substance acceptable to the Purchaser and the Purchaser’s lender or lenders on the Closing Date a certificate Vendor each acting reasonably and in good faith. Within one day of the Vendor for all such tenants (the “Replacement Estoppel Certificate”) certifying the information contemplated in the Purchaser’s form of Existing Lease Estoppel Certificate. The Replacement Estoppel Certificate will be deemed for all purposes to be a representation and warranty by the Vendor, subject to the limitations in Article 6, of the truth and accuracy of the matters set out in the Replacement Estoppel Certificate;
(x) registrable discharges of all Encumbrances registered against the Lands in the LTO which are not Permitted Encumbrances. However, if discharges of such Encumbrances are not available on the Closing Date, the Vendor shall be entitled to register a discharge of same within sixty (60) days after the Closing Date so long as the Encumbrance is in favour of a Canadian Schedule I chartered bank pursuant to the Bank Act (Canada), other British Columbia credit union, BNY Trust Company of Canada or Computershare Company of Canada (the “Existing Chargees”) and commercially reasonable undertakings regarding the discharge of such Encumbrances post-closing are complied with, including the provision to the Purchaser prior to the Closing Date of a payout statement for discharge purposes in respect of the Encumbrances to be paid out and an undertaking of the Vendor’s Solicitors satisfactory to the Purchaser’s Solicitors to pay the balance due under the Encumbrances out of the Balance once received by the Vendor’s Solicitors and provided that the Title Insurer has agreed to “insure over” and remove such Encumbrance as an exception on Purchaser’s Title Policies. For clarity, on or before the Closing DateClosing, the Vendor shall deliver all keys to the Purchaser registrable discharges Buildings and a list all applicable passwords for any financial Encumbrances and financing statements registered under personal property security legislation affecting the Subject Assets in favour of any entity that is not a Canadian Schedule I chartered bank pursuant to the Bank Act (Canada), other British Columbia credit union, BNY Trust Company of Canada or Computershare Company of Canada;
(y) where applicable, registrable discharges in respect of all financing statements registered under personal property security legislation affecting the Subject Assets which are in respect of Encumbrances other than Permitted Encumbrances (subject to any provisions as to the release and registration of such discharges otherwise set out herein) or, alternatively, provided that such financing statements registered under personal property security legislation affecting the Subject Assets are in favor of a Canadian Schedule I bank pursuant to the Bank Act (Canada) or other British Columbia credit union, a certificate or “no interest” letter from such bank or credit union as the secured party in respect of such financing statement (which shall survive Closing) certifying that none of the financing statement(s) registered under personal property security legislation against the Vendor, the Cascades Freehold Nominee or the Vendor Nominee, affect the Subject Assets, such certificate or letter to be satisfactory Buildings to the Purchaser’s office in Guelph, acting reasonably;
(z) the Cascades Lands Strata Lots Landlord’s Assignment;
(aa) the Cascades Lands Strata Lots Notice of Landlord’s Assignment;
(bb) the Comfort LettersON, executed by Vendor and the applicable property manager or franchisor;
(cc) legal opinions as to the due authorization, execution and delivery of the Master Leases and the Master Lease Beneficial Covenants and as to matters of Gaming Law in a form settled by attention the Purchaser’s Condition Date ('s Solicitors, the address for which opinions shall be addressed to the Purchaser and the Purchaser’s lenders), as may be requested by the Purchaser or the Purchaser’s lenders, acting reasonably, or as requested by the Title Insurer is set forth in order to issue the Title Policies;
(dd) certified copies of resolutions of the directors or shareholders, as applicable, of the Cascades Freehold Nominee authorizing the transfer of the Nominee Shares to the Purchaser;
(ee) an assignment of the Nominee Shares to Purchaser, which assignment shall include an indemnity from the Vendor to the Purchaser and the Cascades Freehold Nominee against all losses, claims, actions, damages, liabilities and expenses arising from the existence or occurrence of any facts or circumstances whatsoever relating to the Nominee Shares or the Cascades Freehold Nominee that existed or occurred prior to the Closing Date, including without limitation, any known or unknown liabilities of the Cascades Freehold Nominee existing on or before the Closing Date;
(ff) registration of the Nominee Shares in the name of the Purchaser and issuance of a new share certificate to the Purchaser in respect of the Nominee Shares;
(gg) resignations executed by all persons holding positions as directors or officers of the Cascades Freehold Nominee and indemnities from the Purchaser in favour of such directors and officers;
(hh) all minute books and other corporate records of the Nominees in the possession of the Cascades Freehold Nominee or the Vendor;
(ii) an assignment and assumption of the Nominee Ground Leases;
(jj) the Option Agreements;
(kk) the Easement;
(ll) such other documents and certificates, including without limitation an officer’s certificate as to the continued accuracy of the surveys provided in the Property Information, as may be reasonably requested by the Title Insurer in order to issue the Title Policies; and
(mm) any other closing documents, certificates and assurances as may be requisite in the reasonable opinion of the Purchaser’s solicitors for more perfectly and absolutely assigning, transferring, conveying and assuring to and vesting in the Purchaser, title to the Subject Assets free and clear of any lien, charge, encumbrance or legal notation other than the Permitted Encumbrances as contemplated hereinSection 14.5.
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Vendor’s Closing Documents. At least two (2) Business Days prior to Before the Closing Date, subject to the provisions of this Agreement, the Vendor shall deliver, or cause to be delivered, QLT will deliver to the Purchaser’s Solicitors Solicitors, to be held in escrow as hereinafter provided, the following, duly executed by the Vendor, the Vendor Nominee or the Master Lease Tenant, in each case where it is to be a party thereto:
(a) registrable Form A freehold transfers (a transfer to the “Transfer Documents”) Purchaser of all of QLT’s beneficial interest in the Lands but for the Cascades Lands Freehold Lot in favour of the Purchaser, Designee or nominee as directed Properties duly executed by the Purchaser, subject only to Permitted EncumbrancesQLT;
(b) transfer of beneficial interest agreement of the Subject Assets in favour of the Purchaser or Designee[not used]
(c) the Grand Villa Master LeaseAssignment of Leases, duly executed by QLT;
(d) the Grand Villa Master Lease Beneficial CovenantAssignment of Approved Service Contracts, duly executed by QLT;
(e) the Grand Villa Nominee AgreementQLT Lease, duly executed by QLT as tenant;
(f) a xxxx of sale absolute conveying to the Starlight Master LeasePurchaser the Included Chattels and the interest of QLT in the Project Documents to the extent such interest is transferrable, duly executed by QLT;
(g) a certificate dated the Starlight Master Lease Beneficial CovenantClosing Date of a responsible officer of QLT having knowledge of the facts certifying that to the knowledge of such officer the representations and warranties set out in Section 8.1 are true and correct as at the Closing Date in all material respects and that the Vendors’ covenants and agreements to be observed or performed before the closing on the Closing Date pursuant to this Agreement have been duly observed and performed in all material respects, in each case with particulars of any applicable exceptions;
(h) the Starlight Nominee Agreementa statement of adjustments approved by QLT;
(i) agreements between QLT and the Cascades Master LeaseNominees as follows:
(i) an agreement between QLT and the Lot F Nominee, duly executed by QLT and the Lot F Nominee, containing a written direction from QLT to the Lot F Nominee that, from and after the Closing Date, the Lot F Nominee will hold legal title to the Lot F Property in trust for the Purchaser, containing a release by the Lot F Nominee of all claims against QLT under the Lot F Declaration of Trust, and terminating the Lot F Declaration of Trust; and
(ii) an agreement between QLT and the Lot 1 Nominee, duly executed by QLT and the Lot 1 Nominee, containing a written direction from QLT to the Lot 1 Nominee that, from and after the Closing Date, the Lot 1 Nominee will hold legal title to the Lot 1 Property in trust for the Purchaser, containing a release by the Lot 1 Nominee of all claims against QLT under the Lot 1 Declaration of Trust, and terminating the Lot 1 Declaration of Trust;”;
(j) the Cascades Master Lease Beneficial Covenant;
(k) the Cascades Nominee Agreement;
(l) the Landlord BCLC Agreement(s);
(m) an assignment and assumption of Permitted Encumbrances, in form and substance reasonably acceptable to the Vendor and the Purchaser, with respect to all applicable contractual Permitted Encumbrances, for which the applicable Permitted Encumbrances shall be agreed upon by the Vendor and the Purchaser prior to the Purchaser’s Condition Date;
(n) any specific assignment and/or assumption and/or non-disturbance or landlord acknowledgement agreements or replacement agreements which may be required under any of the Permitted Encumbrances or any hotel management or hotel license agreement governing a Property or by any Gaming Authority in respect of the Transaction;
(o) an assignment of the Vendor’s interest in all Warranties, licenses and permits (to the extent that such licenses and permits are assignable) to the extent that they relate to the Subject Assets and not to the operation of the Business;
(p) a statement of adjustments;
(q) a mutual undertaking to readjust;
(r) the Corporate Certificate re: Vendor;
(s) a direction as to the payee or payees of the Balance;
(t) a certificate of an officer of the Vendor confirming that the Vendor is not a “non-resident” of Canada within the meaning of the Income Tax Act (Canada);
(u) any documents or deliveries contemplated to be delivered by the Master Lease Tenant to the Purchaser, as landlord, pursuant to any of the Grand Villa Master Lease, the Cascades Master Lease, and the Starlight Master Lease, including without limitation, evidence of insurance as required thereby, estoppel certificates and a subordination, non-disturbance and attornment agreement to the Purchaser’s mortgagee as contemplated thereby, or other documents specifically contemplated thereby that may be required in connection with the Purchaser’s financing, provided that, in each case, the Purchaser provides written Notice to the Vendor specifically requiring same, no later than ten (10) Business Days prior to Closing;
(v) estoppel certificates for the Nominee Ground Leases, executed by the landlord and the tenant thereunder, confirming that such Nominee Ground Leases are in full force and effect and that there are no defaults by either party thereunder;
(w) estoppel certificates for all the Leases (each, an “Existing Lease Estoppel Certificate”), in the Purchaser’s form or such form as may be prescribed by the Leases. To the extent that the Vendor is unable to obtain and deliver to the Purchaser on or before the Closing Date Existing Lease Estoppel Certificates from those tenants not referred to in the preceding sentence despite using all reasonable commercial efforts to obtain the same, the Vendor will execute and deliver to the Purchaser and the Purchaser’s lender or lenders on the Closing Date a certificate of the Vendor for all such tenants (the “Replacement Estoppel Certificate”) certifying the information contemplated in the Purchaser’s form of Existing Lease Estoppel Certificate. The Replacement Estoppel Certificate will be deemed for all purposes to be a representation and warranty by the Vendor, subject to the limitations in Article 6, of the truth and accuracy of the matters set out in the Replacement Estoppel Certificate;
(x) registrable discharges of all Encumbrances registered against the Lands in the LTO which are not Permitted Encumbrances. However, if discharges of such Encumbrances are not available on the Closing Date, the Vendor shall be entitled to register a discharge of same within sixty (60) days after the Closing Date so long as the Encumbrance is in favour of a Canadian Schedule I chartered bank pursuant to the Bank Act (Canada), other British Columbia credit union, BNY Trust Company of Canada or Computershare Company of Canada (the “Existing Chargees”) and commercially reasonable undertakings regarding the discharge of such Encumbrances post-closing are complied with, including the provision to the Purchaser prior to the Closing Date of a payout statement for discharge purposes in respect of the Encumbrances to be paid out and an undertaking of the Vendor’s Solicitors satisfactory to the Purchaser’s Solicitors to pay the balance due under the Encumbrances out of the Balance once received by the Vendor’s Solicitors and provided that the Title Insurer has agreed to “insure over” and remove such Encumbrance as an exception on Purchaser’s Title Policies. For clarity, on or before the Closing Date, the Vendor shall deliver to the Purchaser registrable discharges for any financial Encumbrances and financing statements registered under personal property security legislation affecting the Subject Assets in favour of any entity that is not a Canadian Schedule I chartered bank pursuant to the Bank Act (Canada), other British Columbia credit union, BNY Trust Company of Canada or Computershare Company of Canada;
(y) where applicable, registrable discharges in respect of all financing statements registered under personal property security legislation affecting the Subject Assets which are in respect of Encumbrances other than Permitted Encumbrances (subject to any provisions as to the release and registration of such discharges otherwise set out herein) or, alternatively, provided that such financing statements registered under personal property security legislation affecting the Subject Assets are in favor of a Canadian Schedule I bank pursuant to the Bank Act (Canada) or other British Columbia credit union, a certificate or “no interest” letter from such bank or credit union as the secured party in respect of such financing statement (which shall survive Closing) certifying that none of the financing statement(s) registered under personal property security legislation against the Vendor, the Cascades Freehold Nominee or the Vendor Nominee, affect the Subject Assets, such certificate or letter to be satisfactory to the Purchaser, acting reasonably;
(z) the Cascades Lands Strata Lots Landlord’s Assignment;
(aa) the Cascades Lands Strata Lots Notice of Landlord’s Assignment;
(bb) the Comfort Letters, executed by Vendor and the applicable property manager or franchisor;
(cc) legal opinions as to the due authorization, execution and delivery of the Master Leases and the Master Lease Beneficial Covenants and as to matters of Gaming Law in a form settled by the Purchaser’s Condition Date (which opinions shall be addressed to the Purchaser and the Purchaser’s lenders), as may be requested by the Purchaser or the Purchaser’s lenders, acting reasonably, or as requested by the Title Insurer in order to issue the Title Policies;
(dd) certified copies of resolutions of the directors or shareholders, as applicable, of the Cascades Freehold Lot F Nominee authorizing the transfer of the Shares in the capital stock of the Lot F Nominee Shares to the Purchaser;
(ee) an assignment of , the Nominee Shares to Purchaser, which assignment shall include an indemnity from the Vendor to the Purchaser and the Cascades Freehold Nominee against all losses, claims, actions, damages, liabilities and expenses arising from the existence or occurrence of any facts or circumstances whatsoever relating to the Nominee Shares or the Cascades Freehold Nominee that existed or occurred prior to the Closing Date, including without limitation, any known or unknown liabilities of the Cascades Freehold Nominee existing on or before the Closing Date;
(ff) registration of the Nominee such Shares in the name of the Purchaser and the issuance of a new share certificate representing such Shares in the name of the Purchaser;
(k) resolutions of the directors of the Lot 1 Nominee authorizing the transfer of the Shares in the capital stock of the Lot 1 Nominee to the Purchaser, the registration of such Shares in the name of the Purchaser and the issuance of a new share certificate representing such Shares in the name of the Purchaser;
(l) the share certificate(s) representing all the Shares in the capital stock of the Lot F Nominee, duly endorsed for transfer to the Purchaser and duly executed share certificates in respect the name of the Nominee Purchaser representing all such Shares;
(ggm) resignations executed by the share certificate(s) representing all persons holding positions as directors or officers the Shares in the capital stock of the Cascades Freehold Nominee and indemnities from Lot 1 Nominee, duly endorsed for transfer to the Purchaser and duly executed share certificates in favour the name of the Purchaser representing all such directors and officersShares;
(hhn) all minute books and other corporate records resignations in writing of the Nominees in the possession current directors and officers of each of the Cascades Freehold Nominee or the VendorNominees;
(iio) an assignment minute books for the Nominees (to the extent not previously delivered to the Purchaser’s Solicitors) and assumption the seals of the Nominee Ground LeasesNominees;
(jjp) a notice from QLT, the Option AgreementsLot F Nominee and the Purchaser to the Tenants giving notice of the sale of the Shares in the capital of the Lot F Nominee, the Lot F Property and the Building and directing that rent and all other amounts payable to the Landlord under the Leases be paid to the Purchaser or as the Purchaser may direct, duly executed by QLT;
(kkq) the Easement;
Estoppel Certificates required pursuant to Section 4.3 (ll) such other documents and certificatesand, including without limitation an officer’s certificate as to if required, the continued accuracy of the surveys provided in the Property Information, as may be reasonably requested by the Title Insurer in order to issue the Title PoliciesReplacement Estoppel Certificates); and
(mmr) any other closing such further documents, certificates and assurances of QLT as may be requisite in the reasonable opinion of the Purchaser’s solicitors Solicitors to complete the transactions contemplated by this Agreement and for more perfectly and absolutely assigning, transferring, conveying and assuring to and vesting in the Purchaser, title to the Subject Assets Purchased Assets, free and clear of any lienfrom all claims, chargeliens, encumbrance or legal notation charges, encumbrances and caveats other than the Permitted Encumbrances as contemplated hereinEncumbrances, provided that the Purchaser’s Solicitors have prepared and delivered them to the Vendors’ Solicitors at least five (5) Business Days prior to the Closing Date.
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