DOMGROUP LTD. VENDOR – and – CHARIS DEVELOPMENTS LTD. PURCHASER AGREEMENT OF PURCHASE AND SALE 280 HURONTARIO STREET, COLLINGWOOD, ONTARIO
Exhibit
99.11
DOMGROUP
LTD.
VENDOR
–
and –
CHARIS
DEVELOPMENTS LTD.
PURCHASER
_________________________________________________________________________________
000
XXXXXXXXXX XXXXXX, XXXXXXXXXXX, XXXXXXX
____________________________________________________________________________________________
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TABLE
OF CONTENTS
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Page
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ARTICLE
1
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INTERPRETATION
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1
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1.1
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Definitions
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1
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ARTICLE
2
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6
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2.1
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Agreement
of Purchase and
Sale/Allocation of Purchase Price
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6
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2.2
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Initial
Deliveries by
Vendor
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7
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2.3
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Tenant
Estoppels
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7
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2.4
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Access
to
Property
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7
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2.5
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Purchaser’s
Investigations
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8
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2.6
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Confidentiality
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9
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2.7
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Settlement
of
Documents
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10
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2.8
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Subsequent
Deliveries
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11
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ARTICLE
3
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PURCHASE
PRICE
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11
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3.1
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Deposit
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11
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3.2
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Method
of Payment of Purchase
Price
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12
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3.3
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Adjustments
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13
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ARTICLE
4
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CONDITIONS
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17
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4.1
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Conditions
for
Vendor
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17
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4.2
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Conditions
for
Purchaser
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17
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4.3
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Non-Satisfaction
of
Conditions
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18
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4.4
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Efforts
to Satisfy
Conditions
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19
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ARTICLE
5
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CLOSING
DOCUMENTS
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19
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5.1
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Closing
Arrangements
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19
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5.2
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Vendor’s
Closing
Deliveries
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19
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5.3
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Purchaser’s
Closing
Deliveries
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20
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5.4
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Registration
and Other
Costs
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21
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5.5
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Electronic
Registration
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22
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5.6
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Single
Transaction.
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23
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ARTICLE
6
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PRESENTATIONS,
WARRANTIES AND
COVENANTS
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23
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6.1
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Vendor’s
Representations
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23
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6.2
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Purchaser’s
Representations
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24
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TABLE
OF CONTENTS
(continued)
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Page
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6.3
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Survival
of
Representations
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25
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6.4
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“As-Is”
Purchase
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26
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6.5
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Bulk
Sales
Legislation
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28
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6.6
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Third
Party
Claims
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28
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ARTICLE
7
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OPERATION
UNTIL
CLOSING
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29
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7.1
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Operation
Before
Closing
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29
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7.2
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Damage
Before
Closing
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29
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7.3
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Leasing
and
Contracts
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30
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7.4
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Assignment
of
Contracts
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31
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7.5
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Trade-Marks
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32
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ARTICLE
8
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GENERAL
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32
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8.1
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Gender
and
Number
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32
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8.2
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Captions
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32
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8.3
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Obligations
as
Covenants
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32
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8.4
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Applicable
Law
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32
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8.5
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Currency
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33
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8.6
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Invalidity
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33
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8.7
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Amendment
of
Agreement
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33
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8.8
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Time
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33
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8.9
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Further
Assurances
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33
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8.1
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Entire
Agreement
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33
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8.11
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Waiver
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34
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8.12
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Solicitors
as Agents and
Tender
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34
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8.13
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Survival
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34
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8.14
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Successors
and
Assigns
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34
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8.15
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Assignment
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34
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8.16
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Real
Estate
Commissions
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35
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8.17
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Notice
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35
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8.18
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Effect
of Termination of
Agreement
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36
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8.19
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No
Registration of
Agreement
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36
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TABLE
OF CONTENTS
(continued)
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Page
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8.2
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Planning
Act
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36
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8.21
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Counterparts
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36
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SCHEDULES
| Schedule A | Lands | |
| Schedule B | Purchaser’s Declaration and Indemnity Re: Goods and Services Tax | |
| Schedule C | List of Certain Permitted Encumbrances | |
| Schedule D | Form of Satisfaction Notice | |
| Schedule E | Form of Assignment and Assumption of Contracts | |
| Schedule F | Form of Assignment and Assumption of Leases | |
| Schedule G | Form of Xxxx of Sale | |
| Schedule H | Form of Assignment and Assumption of Permitted Encumbrances | |
| Schedule I | Form of Deposit Authorization | |
| Schedule J | Form of Tenant Estoppel | |
THIS
AGREEMENT OF PURCHASE AND SALE made as of the 7th
day of November,
2006.
BETWEEN:
DOMGROUP
LTD.
(hereinafter
referred to as the “Vendor”)
OF
THE
FIRST PART,
–
and
–
CHARIS
DEVELOPMENTS LTD.
(hereinafter
referred to as the “Purchaser”)
OF
THE
SECOND PART.
WHEREAS
the Vendor has agreed to sell, transfer and assign the Subject Assets to
the
Purchaser and the Purchaser has agreed to purchase and acquire the Subject
Assets from the Vendor on the terms and conditions set forth in this
Agreement.
NOW
THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement and the sum of Ten ($10.00) Dollars paid by each
of the
Vendor and the Purchaser to the other and for good and other valuable
consideration (the receipt and sufficiency of which is hereby acknowledged),
the
parties hereto covenant and agree as follows:
ARTICLE
1
INTERPRETATION
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1.1
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Definitions
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The
terms
defined in this Section 1.1 shall have, for all purposes of this Agreement,
the following meanings, unless the context expressly or by necessary implication
otherwise requires:
“Additional
Deposit” has the meaning ascribed thereto in Subsection
3.1(b);
“Adjustments”
means the adjustments to the Purchase Price provided for and determined pursuant
to Section 3.3;
“affiliate”
has the meaning ascribed thereto in the Business Corporations Act
(Ontario);
“Agreement”
means this Agreement of Purchase and Sale and the Schedules attached hereto,
as
amended from time to time;
“Applicable
Laws” means all statutes, laws, by-laws, regulations, ordinances and
orders of Governmental Authorities;
“Approved
Contracts” means Contracts created after the date hereof without
contravening Section7.3;
"Approved
Leases" means Leases created after the date hereof without contravening
Section 7.3;
“Article”,
“Section” and “Subsection” mean and refer to
the specified article, section and subsection of this Agreement;
“Assignment
and Assumption of Contracts” means an assignment by the Vendor and
assumption by the Purchaser of all of the Vendor’s right, title and interest in
all Contracts in force at the Closing, such document to be in the form attached
hereto as Schedule E;
"Assignment
and Assumption of Leases" means an assignment and assumption of the
Vendor's interest in all Leases in force at the Closing, such document to
be in
the form attached hereto as Schedule F;
“Assignment
and Assumption of Permitted Encumbrances” means an assignment by the
Vendor and an assumption by the Purchaser of (and full indemnification by
the
Purchaser of the Vendor from all Claims which arise or accrue during, or
relate
to, the period after the Closing Date in respect of) all of the Vendor’s right,
title and interest in and to all Permitted Encumbrances, such document to
be in
the form attached hereto as Schedule H;
“Balance”
has the meaning ascribed thereto in Subsection 3.2(b);
“Xxxx
of Sale” means a xxxx of sale for the Chattels in the form attached
hereto as Schedule G;
"Buildings"
means, collectively, all buildings, structures and fixed improvements located
on, in or under the Lands, and improvements and fixtures contained in or
on such
buildings and structures used in the operation of the Buildings, but excluding
(i) improvements and fixtures not owned by the Vendor and (ii) those
used by any Tenant in carrying on its business and those improvements and
fixtures, which, in each case, are removable by any Tenant pursuant to its
Lease, and "Building" means any one of the
Buildings;
“Business
Day” means any day other than a Saturday, Sunday or a statutory holiday
in Toronto;
“Chattels”
means all building systems (including security systems), light fixtures,
window
coverings, and supplies located in the Building which are owned or leased
by the
Vendor and used in the maintenance, repair and/or operation of the
Property;
“Claiming
Party” has the meaning ascribed thereto in Subsection 6.3(b)(ii) of
this Agreement;
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“Claims”
means all past, present and future claims, suits, proceedings, liabilities,
obligations, losses, damages, penalties, judgments, costs, expenses, fines,
disbursements, legal fees on a solicitor and clients basis, interest, demands
and actions of any nature or any kind whatsoever;
“Closing”
means the closing of this Agreement, including without limitation the payment
of
the Purchase Price and the delivery of the Closing Documents;
“Closing
Date” means January 31, 2007, or such earlier or later date as the
Purchaser and the Vendor may mutually agree;
“Closing
Documents” means the agreements, instruments and other deliveries to be
delivered to the Purchaser or the Purchaser’s Solicitors pursuant to
Section 5.2 and the agreements, instruments and other deliveries to be
delivered to the Vendor or the Vendor’s Solicitors pursuant to
Section 5.3;
“Confidential
Information” means all information with respect to the Subject Assets,
the Property or the Vendor furnished to the Purchaser or its Representatives
by
the Vendor or the Vendor’s Representatives plus all information with respect to
the Purchaser, or the Purchaser’s principals or affiliates furnished to the
Vendor or its Representatives by the Purchaser or its Representatives in
connection with the Transaction, in each case whether furnished before or
after
the Execution Date, whether oral or written, and regardless of the manner
in
which such information is furnished, and includes, without limiting the
generality of the foregoing, all notes, analyses, compilations, studies,
interpretations or other documents which contain, reflect or are based upon,
in
whole or in part, such information;
“Contracts”
means any and all contracts and agreements (other than policies of insurance)
relating to the Property to which the Vendor is a party or by which the Vendor
or the Property is bound, in its capacity as owner of the Subject Assets,
in
respect of the ownership, development, maintenance, operation, cleaning,
security, fire protection or servicing of the Property and all contracts
and
agreements relating to any equipment or other assets leased by the Vendor
and
located on or in the Property;
“Deposit”
has the meaning ascribed thereto in Section 3.1;
“Disclosed
to the Purchaser” means written information which:
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(a)
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is
Previously Disclosed Information;
or
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(b)
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is
made available for the Purchaser’s review pursuant to Sections 2.2 and/or
2.7 hereof; or
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(c)
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is
otherwise communicated in writing by the Vendor or its advisors
or
Representatives to the Purchaser;
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“Document
Registration
Agreement” and “DRA” have the respective
meaningsascribed thereto in Subsection 5.5(a);
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“Due
Diligence” has the meaning ascribed thereto in Subsection
2.4(a);
“Due
Diligence Date” means the date which is thirty Days after the Execution
Date, or if such date is not a Business Day, then the next following Business
Day;
“Encumbrances”
means, in the case of any given Subject Assets, all mortgages, pledges, charges,
liens, debentures, trust deeds, assignments by way of security, security
interests, conditional sales contracts or other title retention agreements
or
similar interests or instruments charging, or creating a security interest
in,
or against title to, such Subject Assets or any part thereof or interest
therein, and any agreements, leases, options, easements, servitudes, rights
of
way, restrictions, executions or other charges or encumbrances (including
notices or other registrations in respect of any of the foregoing) against
title
to the Subject Assets or any part thereof or interest therein;
“Encumbrances
to be Discharged” means any Encumbrances, other than Permitted
Encumbrances, registered against any Subject Assets or entered into or consented
to by the Vendor after the date hereof;
“Execution
Date” means the date upon which this Agreement is executed and
delivered by each of the parties hereto;
“Existing
Contracts” means all Contracts in existence as of the date
hereof;
"Existing
Leases" means all Leases in existence as of the date
hereof;
“Final
Adjustment Date” has the meaning ascribed thereto in Subsection
1.1(b);
“Governmental
Authority” means any government, regulatory authority, government
department, agency, commission, board, tribunal or court having jurisdiction
on
behalf of any nation, province or state or other subdivision thereof or any
municipality, district or other subdivision thereof;
“GST
Undertaking and Indemnity” means the GST undertaking and indemnity
attached as Schedule B hereto;
“Initial
Deposit” has the meaning ascribed thereto in Subsection
3.1(a);
“ITA”
means the Income Tax Act (Canada), as amended;
“Lands”
means the lands and premises described in Schedule A attached
hereto;
"Leases"
means all agreements to lease, leases, renewals of leases and other rights
(including licences) granted by or on behalf of the Vendor or its predecessors
in title as owner or ground lessee of the Property which entitle any Person
to
possess or occupy any space within the Property, together with all security,
guarantees and indemnities relating thereto, in each case as amended, renewed
or
otherwise varied to the date hereof; and "Lease" means any one
of the Leases;
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“Lender
Representatives” has the meaning ascribed thereto in Subsection
2.5(a);
“Non-Assignable
Rights” has the meaning ascribed thereto in Section 7.4;
“Permitted
Encumbrances” means, with respect to the Property or the Subject
Assets:
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(a)
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those
Encumbrances which, or notice of which, are registered against
the title
to the Property, the Subject Assets or the Vendor at 5:00 p.m.
on the
Business Day immediately prior to the date of this Agreement, other
than
registrations under the Personal Property Security Act (Ontario)
that do not relate to any of the leased Chattels pursuant to any
of the
Contracts;
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(b)
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all
those Encumbrances described on Schedule C;
and
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(c)
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all
other Encumbrances which, or notice of which, are registered against
the
title to the relevant Subject Assets after 5:00 p.m. on the Business
Day
immediately prior to the date of this Agreement and all unregistered
Encumbrances in respect of the Subject Assets entered into by the
Vendor
after such time, in each case as approved by the Purchaser, acting
reasonably;
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“Person”
means an individual, partnership, corporation, trust, unincorporated
organization, government, or any department or agency thereof, and the
successors and assigns thereof or the heirs, executors, administrators or
other
legal representatives of an individual;
“Post
Closing Adjustments” has the meaning ascribed thereto in Subsection
1.1(b);
“Previously
Disclosed Information” means: (i) issues, matters and/or information
set out in or revealed by or in written documentation previously disclosed
or
made available to the Purchaser and/or its Representatives prior to the date
of
this Agreement in contemplation of the transactions contemplated hereby;
(ii)
issues, matters and/or information set out in this Agreement; and/or (iii)
issues, matters and/or information which a sophisticated purchaser could
reasonably be expected to have ascertained or derived from the issues, matters
and/or information disclosed or made available pursuant to (i) and/or (ii)
above;
“Property”
means, collectively, the Lands and the Buildings;
“Property
Conditions” has the meaning ascribed thereto in Subsection
6.4(b);
“Purchase
Price” means CDN $2,810,000;
“Purchaser’s
Solicitors” means Baulke Xxxxxxxx Xxxxx LLP or such other firm or firms
of solicitors as are appointed by the Purchaser from time to time and notice
of
which is provided to the Vendor;
"Rechargeable
Sum Estimates" and "Rechargeable Sums" have the
meanings ascribed thereto in Subsection 3.3(c);
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“Representatives”
has the meaning ascribed thereto in Subsection 2.5(a);
“Responding
Party” has the meaning ascribed thereto in Subsection 6.3(b)
hereof;
“Requisition
Notice” has the meaning ascribed thereto in Subsection
2.4(c);
“Satisfaction
Notice” has the meaning ascribed thereto in Subsection
2.4(b);
“Subject
Assets” means all of the Vendor’s right, title and interest in and
to:
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(a)
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the
Property;
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(b)
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the
Existing Leases and any Approved
Leases;
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(c)
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the
Existing Contracts and any Approved Contracts;
and
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(d)
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the
Chattels.
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“Substantial
Damage” has the meaning ascribed thereto in Subsection
7.2(a);
“Tenant
Estoppels” has the meaning ascribed thereto in Section
2.3;
“Tenants”
means Persons having a right to possess or occupy space in the Property now
or
hereafter pursuant to an Existing Lease or an Approved Lease;
“Teraview
Electronic Registration System” and “TERS” have the
respective meanings ascribed thereto in Section 5.5;
“Third
Party Claim” has the meaning ascribed thereto in Subsection 6.6(a)
hereof;
“Transaction”
means the purchase and sale of the Subject Assets provided for in this
Agreement;
“Unsatisfied
Condition” has the meaning ascribed thereto in Section 4.3;
and
“Vendor’s
Solicitors” means Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, or such
other firm or firms of solicitors as are appointed by the Vendor from time
to
time and notice of which is provided to the Purchaser.
ARTICLE
2
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2.1
|
Agreement
of Purchase and Sale/Allocation of Purchase
Price
|
The
Vendor hereby agrees to sell, transfer and assign the Subject Assets to the
Purchaser, free and clear of all Encumbrances, other than Permitted
Encumbrances, and the Purchaser hereby agrees to purchase and acquire the
Subject Assets from the Vendor for the Purchase Price, on and subject to
the
terms and conditions of this Agreement.
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2.2
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Initial
Deliveries by Vendor
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To
the
extent available and in the possession or control of the Vendor, the Vendor
will
make available to the Purchaser for the Purchaser’s review copies of the
following until the Due Diligence Date and after such date at the Purchaser’s
written request:
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(a)
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existing
surveys or certificates of location for the Property, if
any;
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(b)
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all
Existing Contracts;
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(c)
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the
current rent roll for the Property and copies of all Existing
Leases;
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(d)
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written
soil tests, engineering reports, structural reports and environmental
reports, if any, pertaining to the Property prepared by independent
third
parties for the Vendor;
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(e)
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all
outstanding written directives and orders (including, without limitation,
all work orders), if any, issued by any Governmental Authority
pertaining
to the Property;
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(f)
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realty
tax bills with respect to the Property for the two most recent
tax years,
and the most current tax assessment together with all assessment
appeals,
if any, and material filed in support thereof;
and
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(g)
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such
other documents, plans, reports, bills, statements and other information
relating to Subject Assets as the Purchaser may reasonably
require.
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The
Vendor will execute and deliver to the Purchaser within three (3) Business
Days
after receipt of a written request from the Purchaser, authorizations to
Governmental Authorities necessary to permit the Purchaser to obtain information
from their files, provided each such authorization expressly states that
there
shall not be any inspections by a Governmental Authority with respect to
the
Property and none is authorized or requested and such authorization must
otherwise be satisfactory to the Vendor, acting reasonably. The
Purchaser shall not request any Governmental Authority to inspect any of
the
Property.
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2.3
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Tenant
Estoppels
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The
Vendor shall use its best efforts to obtain and deliver to the Purchaser
estoppel certificates substantially in the form attached hereto as Schedule
J
from each of the Tenants (or from the Vendor as agent for a Tenant in the
event
that the Vendor has a right under the relevant Lease if such Tenant fails
to
deliver such estoppel certificate within the time prescribed in such Lease)
(the
"Tenant Estoppels"). The Vendor shall prepare and
deliver the proposed Tenant Estoppels to the Purchaser for review and approval
as soon as possible following the execution and delivery of this
Agreement. The Vendor shall make any changes to the proposed Tenant
Estoppels requested by the Purchaser, acting reasonably, and shall deliver
the
revised Tenant Estoppels to the Tenants as soon as reasonably possible
thereafter. The Vendor shall not be required to spend any monies to obtain
such
Tenant Estoppels, other than its own costs of preparing and distributing
the
forms.
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2.4
|
Access
to Property
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(a) Subject
to the Purchaser complying with each of its obligations herein and the rights
of
the Tenants under the Leases, from and after the Execution Date to and including
the Due Diligence Date, the Purchaser and its agents, consultants and employees
have had and shall continue to have access to the Property during the Vendor's
normal business hours upon reasonable notice to the Vendor, at the Purchaser's
sole risk and expense, for the purpose of inspecting the Property, including
without limitation performing physical and structural inspections, soil tests
and environmental audits. Such inspections, tests and audits shall be
conducted in a manner that minimizes interference with the use of the Property
and does not contravene any Leases or unreasonably interfere with any
Tenants. The Purchaser and its agents, consultants and employees
shall not have any communications with Tenants or their
employees. The Vendor shall have the right to accompany the Purchaser
and its agents, consultants and employees on any inspections and shall have
the
right, acting reasonably, to approve, or to refuse approval for, invasive
or
intrusive inspections, tests and audits, if any are proposed by the Purchaser,
prior to such inspections, tests and audits being undertaken. No such
inspections, tests or audits shall occur unless the Purchaser has given the
Vendor at least one complete Business Day’s prior written notice and complies
with the foregoing requirements;
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(a)
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The
Purchaser shall repair any damage caused by inspections, tests
and audits
performed by the Purchaser or its agents, consultants or employees
and
fully indemnify the Vendor from all costs of repairing any damage
caused
by such inspections, tests or audits and all Claims relating to
any such
inspections, tests and audits and from all Claims incurred by the
Vendor
as a result thereof. This indemnity shall survive termination
of this Agreement regardless of the cause of such
termination.
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2.5
|
Purchaser’s
Investigations
|
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(a)
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On
or before 5:00 p.m. on the Due Diligence Date, the Purchaser shall
conduct
(subject to compliance with other relevant provisions of this Agreement)
all investigations, inspections, reviews, tests and audits relating
to the
Subject Assets and the Property (including, without limitation,
title to
the Subject Assets and the Property and compliance with Applicable
Laws)
and the transactions provided for herein (collectively referred
to herein
as the “Due Diligence”) which the Purchaser deems
necessary or desirable.
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(b)
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The
Purchaser shall be entitled, on or before 5:00 p.m. on the Due
Diligence
Date, in its sole and absolute discretion, to determine whether
it is
satisfied with the results of its Due Diligence. The Purchaser
shall be deemed to not be satisfied with the result of its Due
Diligence
unless it delivers to the Vendor on or before 5:00 p.m. on the
Due
Diligence Date a written notice in the form attached hereto (with
the
relevant details inserted therein) as Schedule D (the
"Satisfaction Notice") stating that it is satisfied with
the results of its Due Diligence including, without limiting the
generality of the foregoing, the contents of the Tenant
Estoppels. If the Purchaser fails to give the Vendor a
Satisfaction Notice by such time, then this Agreement shall terminate
automatically at such time and,
upon
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such
termination, the Purchaser and Vendor shall be released from all
obligations under this Agreement (except for those obligations
which are
expressly stated to survive the termination of this Agreement)
and the
Deposit and all interest earned on it shall be returned to the
Purchaser.
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|
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(c)
|
If
the Purchaser does deliver the Satisfaction Notice to the Vendor
by such
time, notwithstanding any other provisions of this Agreement (including,
without limitation, Section 2.1), the Purchaser shall be deemed
to have
irrevocably waived its right to raise any objection to, or to have
or make
any Claim regarding, any circumstance, defect, matter or issue
in respect
of the Subject Assets or the Property, or any other aspect thereof
of any
nature whatsoever (including, without limitation, any objection
or Claim
relating to the Vendor’s title to the Subject Assets or any matter
relating to title to the Property or the existence of any Encumbrances
(other than Encumbrances to be Discharged), as such title and Encumbrances
exist on the Due Diligence Date, any non-compliance with Applicable
Laws,
or any Contract, Encumbrance or other instrument). The
Purchaser retains the right to make valid objections to title or
other
requisitions, in each case, in writing to the extent that any document
or
instrument that is not a Permitted Encumbrance is registered against
title
to the Property or any work order or deficiency notice or other
similar
notice of non-compliance is otherwise issued or filed after the
Due
Diligence Date and before the Closing Date. If, within ten (10)
Business Days following the receipt of such written requisition
from the
Purchaser, the Vendor advises the Purchaser in writing (the
“Requisition Notice”) that the Vendor is unwilling or
unable to remove or satisfy the Purchaser’s objections, then,
notwithstanding any other provision contained herein or any intermediate
acts or negotiations in respect of such objections, the Purchaser
shall
have the right to terminate this Agreement by written notice to
the Vendor
to be delivered by the earlier of (i) the date on which Closing
is
scheduled to occur, and (ii) the tenth Business Day after the Requisition
Notice is received by the Purchaser. In such event, the
Deposit, together with all interest accrued thereon, shall be returned
to
the Purchaser forthwith without deduction. Without limiting the
generality of the foregoing, the Purchaser also agrees that the
Purchaser
shall not have the right to seek an abatement to the Purchase Price
or any
other remedy by virtue of any matters Disclosed to the Purchaser
prior to
the Due Diligence Date or as a result of any circumstance, defect,
matter
or issue in respect of the Subject Assets or the Property in respect
of
the Subject Assets or the Property, or any other aspect thereof
of any
nature whatsoever, in existence at the Due Diligence Date.
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|
2.6
|
Confidentiality
|
|
|
(a)
|
The
Vendor and Purchaser agree that each
party:
|
|
|
(i)
|
shall
keep all provisions of this Agreement confidential and shall not
disclose
any of its provisions to any Person;
and
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|
(ii)
|
shall
keep confidential all Confidential Information and shall not disclose
any
Confidential Information to any Person, except as required by Applicable
Laws or as permitted pursuant to Subsection 2.5(b) hereof and except
(A)
to those trustees, directors, officers, employees and advisors
of each of
the parties who are participating in the Transaction or are otherwise
specifically in writing approved by the other party (all such Persons
being referred to as “Representatives”), and (B) to the
officers, employees and solicitors of any lender to the Purchaser
(all
such Persons being referred to as “Lender
Representatives”) in connection with any financing to be
undertaken by the Purchaser in connection with the Subject
Assets. The Vendor and the Purchaser shall cause all
Representatives, and the Purchaser shall cause all Lender Representatives,
who, in each case, receive any information of the nature referred
to above
to comply with the requirements of this Section
2.5.
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(b)
|
Neither
the Vendor nor the Purchaser shall issue any press release or other
public
announcement or release information with respect to this Agreement
to the
press or the public unless the same has been mutually approved
by the
Vendor and the Purchaser or such disclosure is in the good faith
opinion
of the Purchaser or the Vendor, as the case may be, required in
order to
comply with any Applicable Laws, with any agreement between any
affiliate
of the Vendor and any inspector in respect of Xxxxxxxxx Inc. appointed
under the Canada Business Corporations Act, or the rules, orders
or regulations of any stock exchange or to satisfy the obligations
of the
Vendor under Permitted Encumbrances, and then only after prior
consultation with the other party hereto, if
possible.
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(c)
|
It
is agreed that if this Agreement is terminated for any reason,
each party
shall promptly return, or cause to be returned, to the other party
all
written Confidential Information in the possession or control of
the other
party or any other Person to whom Confidential Information has
been
provided and shall destroy, or cause to be destroyed, any Confidential
Information stored in or on any computer memory, disk, tape or
other
contrivance whatsoever in the possession or control of the other
party or
any other Person to whom the other party has provided Confidential
Information. On request of a party, the other party shall
certify that it has complied with its obligation under this
Section.
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(d)
|
The
provisions of this Section 2.5 shall survive the Closing or any
termination of this Agreement, regardless of the cause of such
termination.
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2.7
|
Settlement
of Documents
|
The
parties shall proceed diligently and in good faith to attempt to agree, on
or
before the Due Diligence Date, upon the contents of all Closing Documents
to be
executed and delivered by the Vendor and the Purchaser; provided that in
the
case of any Closing Documents to be executed and delivered in the form set
out
in a schedule to this Agreement, such form shall not be subject to further
negotiations and the Vendor shall provide all details and/or
information
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10 -
necessary
to complete such documents, subject to the Purchaser’s approval of the accuracy
of such details and information, such approval not to be unreasonably
withheld.
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2.8
|
Subsequent
Deliveries
|
Any
documentation or other information provided by the Vendor to the Purchaser
pursuant to Section 2.2 may be amended or supplemented by the Vendor as
necessary from time to time until the third Business Day prior to the Due
Diligence Date. If the Purchaser delivers a Satisfaction Notice
pursuant to Section 2.5 prior to 5:00 p.m. on the Due Diligence Date, the
Purchaser shall be deemed to have accepted for all purposes all matters set
out
in the Tenant Estoppels and all matters which have been Disclosed to the
Purchaser on or before third Business Day prior to the Due Diligence Date
and if
any representation or warranty of the Vendor is incorrect or inaccurate but
the
Purchaser has received written notice from the Vendor or its Representatives
in
the Tenant Estoppels on or before the third Business Day prior to the Due
Diligence Date of the instrument, circumstance, action, omission, matter
or
issue which causes such representation or warranty to be incorrect or
inaccurate, then such representation and warranty shall be deemed to have
been
qualified by reference to such instrument, circumstance, matter or
issue.
ARTICLE
3
PURCHASE
PRICE
|
3.1
|
Deposit
|
|
|
(a)
|
Prior
to 11:00 a.m. on the first Business Day following the date this
Agreement
is executed and delivered by both parties hereto the Purchaser
shall pay
$25,000 (the “Initial Deposit”) by certified cheque or
negotiable bank draft to the Vendor’s Solicitors to be invested by the
Vendor’s Solicitors in trust, as the Purchaser directs, in a term deposit
or other similar certificate of deposit with a Canadian Schedule I
chartered bank maturing on the Closing Date. Contemporaneously
with the payment of the Initial Deposit by the Purchaser to the
Vendor’s
Solicitors, the Purchaser shall deliver to the Vendor’s Solicitors a
deposit authorization in the form attached hereto as Schedule
I.
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(b)
|
Unless
this Agreement has terminated pursuant to Section 2.5, prior to
11:00 a.m.
(Toronto time) on the first Business Day following the Due Diligence
Date,
the Purchaser shall pay $125,000 (the “Additional
Deposit”) as a further deposit to the Vendor’s Solicitors to be
invested, as the Purchaser directs, by the Vendor’s Solicitors on the same
terms as referred to in Subsection 3.1(a). In this
Agreement, “Deposit” means the Initial Deposit and, if
applicable, the Additional Deposit. Contemporaneously with the
payment of the Additional Deposit by the Purchaser to the Vendor’s
Solicitors, the Purchaser shall deliver to the Vendor’s Solicitors a
deposit authorization in the form attached hereto as Schedule
I.
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|
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(c)
|
If
the Transaction is not completed for any reason other than the
default of
the Purchaser (and for greater certainty the failure to submit
a
Satisfaction Notice is not a default of the Purchaser), the Deposit
(together with all interest accrued
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|
|
thereon)
shall be returned to the Purchaser forthwith thereafter without
deduction. If the Transaction is not completed as a result of
the default of the Purchaser, the Deposit, together with interest
thereon,
shall be forfeited to the Vendor and thereupon be paid to the Vendor,
without prejudice to the rights and remedies of the Vendor at law
or in
equity as a result of such default.
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(d)
|
If
the Transaction is completed, the Deposit and accrued interest
shall be
credited against the Purchase Price due on
Closing.
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|
(e)
|
In
holding and dealing with the Deposit pursuant to this Agreement,
the
Vendor’s Solicitors are not bound in any way by any agreement other than
this Agreement, and Vendor’s Solicitors shall not be considered to assume
any duty, liability or responsibility other than to hold the Deposit
in
accordance with the provisions of this Agreement and to pay the
Deposit to
the Person becoming entitled thereto in accordance with the terms
of this
Agreement except in the event of a dispute between the parties
as to
entitlement to the Deposit; in the case of such dispute, the Vendor’s
Solicitors may, in their discretion, pay the monies in dispute
into court,
whereupon the Vendor’s Solicitors shall have no further obligations
relating to the Deposit and interest earned thereon. The
Vendor’s Solicitors will not, under any circumstances, be required to
verify or determine the validity of any notice or other document
whatsoever delivered to the Vendor’s Solicitors and the Vendor’s
Solicitors are hereby relieved of any liability or responsibility
for any
loss or damage which may arise as the result of the acceptance
by the
Vendor’s Solicitors of any such notice or other document in good faith
(provided that the Vendor’s Solicitors shall not be relieved of any
liability or responsibility for any loss or damage which may arise
if the
Vendor’s Solicitors release the Deposit to a party hereto after having
received prior written notice from the other party hereto claiming
entitlement to such Deposit or a dispute to such
entitlement).
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|
3.2
|
Method
of Payment of Purchase
Price
|
On
Closing the Purchase Price shall be satisfied as follows:
|
|
(a)
|
by
application of the Deposit and interest earned thereon held by
the
Vendor’s Solicitors; and
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|
|
(b)
|
by
payment to the Vendor, or as the Vendor directs in writing, of
an amount
(the “Balance”) equal to the Purchase Price, as adjusted
pursuant to Section 3.3, less the aggregate of the amounts referred
to in
paragraph 3.2(a). The Balance shall be paid on Closing by the
Purchaser by certified cheque or negotiable bank draft of one of
the five
largest (by asset size) Schedule I Canadian chartered
banks.
|
If
at any
time the Vendor delivers to the Purchaser a direction in writing in respect
of
the payment of the Balance the Purchaser shall forthwith provide, at the
Vendor’s request, in favour of any lender to the Vendor and/or affiliates of the
Vendor an irrevocable
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12 -
acknowledgement
of such direction and an agreement to act in accordance therewith unless
otherwise agreed to by such lender.
|
3.3
|
Adjustments
|
|
|
(a)
|
Except
as otherwise provided herein, the Vendor shall be responsible for
all
expenses and liabilities, including, without limitation, the expense
of
paying and radiating all Encumbrances to be Discharged, and be
entitled to
receive all revenues, accrued in respect of the Subject Assets
up to and
including the Closing Date. After the Closing Date, the
Purchaser shall be responsible for all expenses and liabilities
accruing
in respect of the Subject Assets after the Closing Date and shall
be
entitled to all revenues accruing in respect of the Subject Assets
after
the Closing Date. Except as otherwise provided herein, all
adjustments for basic rent, additional rents, percentage rents,
ground
lease rents, parking income, damage/security deposits and interest
thereon, if any, prepaid rents and interest thereon, if any, and
other
income and operating expenses, utilities, taxes (including local
improvement charges and assessments and business taxes) and other
adjustments established by the usual practice in the Town of Collingwood,
shall be made as of the Closing Date and shall be paid on the Closing
Date
pursuant to a statement of adjustments to be prepared by the Vendor
and
approved by the Purchaser, each acting
reasonably.
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|
|
(b)
|
If
the final cost or amount of any item which is to be adjusted cannot
be
determined at Closing, then an initial adjustment for such item
shall be
made at Closing, such amount to be estimated by the Vendor, acting
reasonably, as of the Closing Date on the basis of the best evidence
available at the Closing as to what the final cost or amount of
such item
will be. All amounts which have been estimated as at the
Closing Date because they have not been finally determined at that
date
(the “Post Closing Adjustments”) shall be finally
adjusted on a post-closing basis once they have been determined
and
finalized. In each case when a Post Closing Adjustment is
determined, the Vendor or the Purchaser, as the case may be, shall
within
thirty (30) days of determination, provide a complete statement
thereof,
together with particulars relating thereto in reasonable detail,
to the
other and within thirty (30) days thereafter the parties hereto
shall make
a final adjustment as of the Closing Date for the Post Closing
Adjustment
in question. In the case of any dispute between the parties
hereto with respect to any Post Closing Adjustments, the final
amount of
such Post Closing Adjustments shall be determined by the audit
firm of
Deloitte & Touche LLP and the cost of such determination shall be
shared equally between the parties hereto. Either party may
refer any such dispute to Deloitte & Touche LLP for such determination
and such determination shall be final and binding on the parties
hereto. The Vendor and Purchaser agree to execute and deliver
on the Closing Date an undertaking to re-adjust and pay the amount
of any
Post Closing Adjustments as may be owing pursuant to the provisions
of
this Agreement. Such undertaking shall include an undertaking
by the Vendor to make available its records regarding the calculation
of
its capital tax and large corporation tax required pursuant to
the Leases
and all such information as may be necessary to allow the Purchaser
and
Vendor to
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|
|
proceed
to Post-Closing Adjustments. Notwithstanding the foregoing, all
adjustments and Post Closing Adjustments to be made pursuant to
this
Subsection 3.3(b) shall, in any event, be completed on or before
the date
which is the first anniversary of the Closing Date (the "Final
Adjustment Date") and no claim for any re-adjustment may be made
by either party thereafter, unless such claim is a claim contemplated
by
the provisions of Section 6.3, in which case such provisions shall
apply. It is agreed that no adjustments shall be made with
respect to insurance premiums and that the Purchaser shall not
assume or
take an assignment of the Vendor's insurance
policies.
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|
|
(c)
|
The
parties acknowledge that under the terms of Leases and Approved
Leases,
portions of certain payments, such as realty taxes and operating
costs,
(including, where recoverable, taxes on capital and large corporation
taxes) although paid by the landlord, are charged to and payable
by the
Tenants under such Leases and Approved Leases (the "Rechargeable
Sums") and are collected from such Tenants in monthly instalments
on the basis of the landlord's estimates (the "Rechargeable Sum
Estimates"). The Rechargeable Sum Estimates are
subject to adjustment with the Tenants when the total amounts of
the
Rechargeable Sums are finally determined. For greater
certainty, Rechargeable Sums shall not include any expenditures
or any
portion thereof which are not recoverable from the Tenants by the
terms of
the Leases and Approved Leases. It is agreed that, with respect
to the Rechargeable Sums and the Rechargeable Sum Estimates, adjustments
shall be made not at Closing but forthwith after the actual amount
of the
Rechargeable Sums has been ascertained for the relevant fiscal
year,
calendar year or tax year, as appropriate, for the
Property. Such adjustments shall be made as
follows:
|
|
|
(i)
|
the
Purchaser shall provide to the Vendor a statement which sets out
the
amounts collected from each Tenant on account of Rechargeable Sums,
as
well as the Rechargeable Sums for the relevant fiscal year, calendar
year
or tax year, as appropriate, for the
Property;
|
|
|
(ii)
|
if
such statement indicates that the Vendor has collected pursuant
to the
Rechargeable Sum Estimates more than the Vendor's share (as hereinafter
defined) of the Rechargeable Sums for the relevant fiscal year,
calendar
year or tax year, as appropriate, the amount of such difference
shall be
paid by the Vendor to the Purchaser within ten Business Days after
the
amount of such difference has been finally determined pursuant
to this
Agreement in accordance with Subsection 3.3(b) and the Purchaser
shall be
responsible for, and make, the required adjustments with the Tenants
in
respect of such over-collection in accordance with the terms of
the
Leases; the "Vendor's share" of the Rechargeable Sums means the
amount
obtained by multiplying the Rechargeable Sums by a fraction, the
numerator
of which is the number of days in the relevant fiscal year, calendar
year
or tax year, prior to and including the Closing Date and the denominator
of which is the total number of days in such fiscal, calendar or
tax year;
and
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14 -
|
|
(iii)
|
if
such statement indicates that the Vendor has collected pursuant
to the
Rechargeable Sum Estimates less than the Vendor's share of the
Rechargeable Sums, the amount of such difference shall be paid
by the
Purchaser to the Vendor within ten Business Days after the amount
of such
difference has been finally determined pursuant to this Agreement
in
accordance with Subsection 3.3(b) and such amount has been collected
from
the Tenants and the Purchaser shall be entitled to the amount collected
in
respect of such difference.
|
It
is
agreed that the Purchaser shall be responsible to conclude all final
reconciliations and to make all payments and satisfy all obligations with
all
Tenants relating to the Rechargeable Sums and Rechargeable Sum
Estimates.
|
|
(d)
|
The
Vendor and the Purchaser hereby acknowledge and agree
that:
|
|
|
(i)
|
the
Purchaser shall not be entitled to be paid or receive the benefit
of any
amount payable or owing under the Leases for rent or any other
amounts for
any period prior to Closing, including without limitation accounts
receivable under and pursuant to the Leases as at Closing, and
the
Purchaser shall use reasonable commercial efforts to collect such
amounts
following Closing (which amounts shall remain the property of the
Vendor
after Closing) provided that the Purchaser shall not be obliged
to seize
for rent, terminate any Lease or bring any action for payment of
indebtedness and to the extent the Purchaser does receive any of
the
aforementioned amounts after Closing, they shall be applied as
follows:
|
|
|
(A)
|
first,
against any rent (including arrears of rent) and other amounts
owing to
the Purchaser by a Tenant or assumed by the Purchaser hereunder
or arising
after the Closing Date;
|
|
|
(B)
|
second,
against any reasonable third party costs (including accounting
costs)
incurred by the Purchaser in respect of the collection of such
arrears in
rent; and
|
|
|
(C)
|
thereafter,
the excess, if any, against the arrears in rent for periods prior
to
Closing, which the Purchaser shall pay to the Vendor within ten
(10)
Business Days after collection thereof, together with a statement
as to
the amount of such arrears and the application of the proceeds
thereof;
|
|
|
(ii)
|
in
the event that there are any realty or business tax appeals for
the period
prior to Closing, the Vendor may, at its option, continue such
appeals and
shall be entitled to receive any payment resulting therefrom except
to the
extent that such payment is properly payable to any Tenants; provided
that
the Vendor shall consult with the Purchaser with respect to, and
the
Purchaser acting reasonably shall have the right to approve, any
final
settlement or disposition of any such appeal. Any refund or
reassessment
|
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|
|
for
the 2006 calendar year (after deduction of out-of-pocket expenses
in
conducting any such appeal or reassessment, including any commissions
payable to agents or consultants) shall be readjusted as of the
Closing
Date after the conclusion of any assessment appeal and notwithstanding
such readjustment occurs after the Final Adjustment Date. The
Purchaser agrees to co-operate with the Vendor with respect to
all such
appeals or reassessments and to provide the Vendor with access
to any
necessary documents or materials required to continue any such
appeals or
reassessments. To the extent the Purchaser receives payment of
any refund or reassessment for the period prior to the Closing
Date, the
Purchaser shall hold such refund or reassessment payment in trust
for the
Vendor and shall endorse (without recourse) in favour of the Vendor
and
deliver to the Vendor all such payment cheques forthwith upon receipt;
provided that in all cases, readjustments with the Tenants as the
result
of any refunds or reassessments may be effected by the Purchaser
prior to
the payment of any refund or reassessment to the Vendor or to the
Purchaser and the amount otherwise owing to the Vendor in accordance
with
the foregoing shall be reduced by any amount payable to any Tenants
as a
result of any such adjustments.
|
|
|
(e)
|
The
Purchaser shall provide the Vendor and its auditors, during normal
business hours at any time and from time to time after Closing
upon
reasonable prior notice to the Purchaser, access to the books,
files and
records of the Purchaser relating exclusively to the Subject Assets,
for
the purpose of calculating or verifying the amount of any Adjustments,
Rechargeable Sums and Rechargeable Sum Estimates and dealing with
any tax
appeals.
|
|
|
(f)
|
On
the Closing Date, the Purchaser shall issue replacement letters
of credit
and/or security deposits for the letters of credit and/or security
deposits with respect to the Property, if any, (all of which shall
be
Disclosed to the Purchaser at least twenty (20) days prior to the
Due
Diligence Date) and shall use its reasonable commercial efforts
to cause
the Vendor's letters of credit and/or security deposits with respect
to
the Property to be released and returned to the
Vendor. Provided that to the extent that the Purchaser is
unable to cause such letters of credit and/or security deposits
to be
released and returned to the Vendor, in lieu of issuing the replacement
letters of credit and/or security deposits referred to above, the
Purchaser shall cause matching letters of credit and/or security
deposits
to be provided to the Vendor, which matching letters of credit
and/or
security deposits may be drawn upon by the Vendor if and to the
extent
that the Vendor's letters of credit and/or security deposits are
drawn
upon.
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16 -
ARTICLE
4
CONDITIONS
|
4.1
|
Conditions
for Vendor
|
The
obligation of the Vendor to complete the Transaction shall be subject to
fulfilment of each of the following conditions on or before the Closing Date
or
such earlier date or time as may be herein specified:
|
|
(a)
|
payment
by the Purchaser of the Purchase Price and all of the other terms,
covenants and conditions of this Agreement to be complied with
or
performed by the Purchaser shall have been complied with or performed
in
all material respects;
|
|
|
(b)
|
Royal
Bank of Canada shall not, within the time prescribed in its Lease
in
respect of the Property, have elected to purchase the Property
pursuant to
the right of first refusal contained
therein;
|
|
|
(c)
|
on
Closing, the representations or warranties of the Purchaser set
out in
Section 6.2 shall be true and accurate as if made as of the Closing;
and
|
|
|
(d)
|
by
the Closing Date no action or proceeding, at law or in equity,
shall have
been commenced by any Person to enjoin, restrict or prohibit the
Closing
which has not, by the Closing Date, been dismissed, quashed or
permanently
stayed without any further right of appeal or right to seek leave
to
appeal.
|
The
conditions set forth in this Section 4.1 are for the benefit of the Vendor
and may be waived in whole or in part by the Vendor by notice to the
Purchaser.
|
4.2
|
Conditions
for Purchaser
|
The
obligations of the Purchaser to complete the Transaction shall be subject
to
fulfilment of each of the following conditions on or before the Closing Date
or
such earlier date or time as may be herein specified:
|
|
(a)
|
all
of the terms, covenants and conditions of this Agreement to be
complied
with or performed by the Vendor shall have been complied with or
performed
in all material respects;
|
|
|
(b)
|
on
Closing, the Vendors shall (subject to the Vendors’ right to deliver,
pursuant to Subsection 5.2(f), discharge statements and undertakings
in
respect of Encumbrances to be Discharged, rather than discharge
such
Encumbrances to be Discharged on Closing) transfer all of the Vendors’
right, title and interest in and to the Subject Assets to the Purchaser
free and clear of all Encumbrances, other than Permitted Encumbrances;
|
|
|
(c)
|
Royal
Bank of Canada shall not, within the time prescribed in its Lease
in
respect of the Property, have elected to purchase the Property
pursuant to
the right of first refusal contained
therein;
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17 -
|
|
(d)
|
on
Closing, the representations and warranties of the Vendor set out
in
Section 6.1, as supplemented or amended by information Disclosed
to the
Purchaser no later than 5:00 p.m. on the last Business Day prior
to the
Due Diligence Date, shall be true and correct in all material
respects;
|
|
|
(e)
|
by
the Closing Date no action or proceeding, at law or in equity,
shall have
been commenced by any Person to enjoin, restrict or prohibit the
Closing
which has not, by the Closing Date, been dismissed, quashed or
permanently
stayed without any further right of appeal or right to seek leave
to
appeal; and
|
|
|
(f)
|
on
or before 5:00 p.m. on the second Business Day prior to the Due
Diligence
Date, the Vendor shall have delivered to the Purchaser in accordance
with
Section 2.3, the Tenant Estoppels, substantially in the form attached
hereto on Schedule J and otherwise in a form and containing content
satisfactory to the Purchaser, acting
reasonably.
|
The
conditions set forth in Section 4.2 are for the benefit of the Purchaser,
and may be waived in whole or in part by the Purchaser by notice to the
Vendor. For greater certainty, it is agreed that for the purposes of
Subsection 4.2(d), representations and warranties of the Vendor shall be
deemed
to be true and accurate in all material respects unless the effect of the
falsity or inaccuracy of such representations and warranties is that there
is a
material adverse effect upon the value of the Subject Assets, taken as a
whole.
|
4.3
|
Non-Satisfaction
of Conditions
|
(a) Subject
to Subsection 4.3(b), in the event any condition set forth in Section 4.1
or
Section 4.2 is not satisfied or waived as therein provided on or before the
applicable date or time referred to in Section 4.1 or Section 4.2, as the
case
may be (such condition being referred to as the “Unsatisfied
Condition”), this Agreement shall, upon notice by the party having the
benefit of the Unsatisfied Condition to the other party, be terminated and
both
parties hereto shall be released from all of their liabilities and obligations
under this Agreement (other than the obligations referred to in Subsection
2.3(b) and Section 2.6) unless the reason for the Unsatisfied Condition not
being satisfied is the breach by a party hereto of an obligation under this
Agreement or a representation and warranty made by such party being incorrect
or
inaccurate, in which case a claim may be made against such party. In
the event of any such termination hereunder, the Deposit and all interest
accrued thereon shall be disbursed in accordance with the provisions of Section
3.1(c). Notwithstanding any other provisions of this Agreement, if by
the applicable time or date referred to in Section 4.1 or Section 4.2, as
the
case may be, the party having the benefit of any given condition has not
given
notice to the other party that such condition has been waived or satisfied,
such
condition shall be deemed not to have been waived or satisfied.
(b) Notwithstanding
the provisions of Section 4.3(a), in the event the conditions set out in
Subsection 4.1(d) and/or 4.2(e) are not satisfied or waived, either party
may,
by written notice to the other, extend the date of the Closing by ninety
(90)
days following the then scheduled Closing Date in order to permit the Vendor
additional time to attempt to satisfy the conditions set out in Subsection
4.1(d) and/or 4.2(e).
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4.4
|
Efforts
to Satisfy Conditions
|
Without
derogating from any party’s other obligations under this Agreement, it is agreed
that the Purchaser shall act in good faith and use reasonable efforts to
satisfy, or cause to be satisfied, the conditions set forth in Section 4.1,
and
the Vendor shall act in good faith and use reasonable efforts to satisfy,
or
cause to be satisfied, the conditions set out in Section
4.2. Provided that, unless the Vendor has otherwise in
this Agreement specifically agreed to do so, nothing in this Agreement shall
be
interpreted as requiring the Vendor to spend money (other than fees to its
own
professionals) to satisfy any conditions, or to address any defects,
deficiencies or concerns identified by the Purchaser with respect to the
Property, the Subject Assets or any other matter or aspect of the Transaction
whatsoever. Each of the Purchaser and the Vendor shall act in good
faith in determining whether or not a condition in its favour has been
satisfied.
ARTICLE
5
CLOSING
DOCUMENTS
|
5.1
|
Closing
Arrangements
|
The
Closing shall commence at 10:00 a.m. on the Closing Date at the office of
the
Vendor’s Solicitors or at such other time or place as the parties shall mutually
agree upon in writing and shall continue until the Closing is completed or
this
Agreement is validly terminated in accordance with the terms
hereof.
|
5.2
|
Vendor’s
Closing Deliveries
|
On
or
before Closing, subject to the provisions of this Agreement, the Vendor shall
deliver, or cause to be delivered, to the Purchaser’s Solicitors the
following:
|
|
(a)
|
a
registrable transfer (other than a land transfer tax affidavit)
of the
undivided 100% ownership interest of the Vendor in the Property
in favour
of the Purchaser, which shall exclude any representation or warranty,
express or implied, of any nature
whatsoever;
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|
|
(b)
|
the
Assignment and Assumption of
Contracts;
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|
|
(c)
|
the
Assignment and Assumption of
Leases;
|
|
|
(d)
|
the
Xxxx of Sale;
|
|
|
(e)
|
the
Tenant Estoppels received by the Vendor pursuant to Section
2.3;
|
|
|
(f)
|
notices
to Tenants advising of the sale of the Subject Assets in a form
approved
by the Purchaser, acting
reasonably;
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|
|
(g)
|
registrable
discharges of the Encumbrances to be Discharged, if any, in respect
of the
Subject Assets which have not been discharged as at the Closing
Date or,
in each case as an alternative to delivering such registrable discharges,
discharge
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19 -
|
|
statements
from the holder of the Encumbrances to be Discharged together with
an
irrevocable direction to pay in respect of the amounts secured
by such
Encumbrance and a solicitor’s undertaking to obtain and register a
discharge of such Encumbrance as soon as reasonably practicable
following
Closing;
|
|
|
(h)
|
the
Assignment and Assumption of Permitted
Encumbrances;
|
|
|
(i)
|
a
direction as to the payee or payees of the Purchase
Price;
|
|
|
(j)
|
an
undertaking by the Vendor to re-adjust the Adjustments in accordance
with
Section 3.3;
|
|
|
(k)
|
all
third party consents, if any, with respect to any of the Contracts
or
Permitted Encumbrances that the Vendor is required to obtain pursuant
to
this Agreement;
|
|
|
(l)
|
a
statutory declaration or other evidence satisfactory to the Purchaser,
acting reasonably, that the Purchase Price is not subject to withholding
tax pursuant to the non-residency provisions of the ITA by reason
of the
fact that the Vendor is not a non-resident of Canada, as defined
by
Section 116 of the ITA and that the Property has never been occupied
by
any officer, director or shareholder of the Vendor or by any spouse
of any
officer, director or shareholder of the Vendor as a matrimonial
home
within the meaning of the Family Law Act (Ontario); and a
certificate of the Vendor certifying that the representations and
warranties of the Vendor contained in Section 6.1 are true and
correct in
all material respects as of the Closing
Date;
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|
|
(m)
|
an
indemnity regarding the Bulk Sales Act;
and
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|
|
(n)
|
all
keys, combinations and codes to all locks, safes, vaults and security
systems located at the Buildings.
|
All
documentation shall be in form and substance acceptable to the Purchaser’s
Solicitors and the Vendor’s Solicitors, each acting reasonably and in good
faith.
|
5.3
|
Purchaser’s
Closing Deliveries
|
On
or
before Closing, subject to the terms and conditions of this Agreement, the
Purchaser shall execute (where it is a party thereto) and shall deliver or
cause
to be delivered to the Vendor’s Solicitors the following:
|
|
(a)
|
the
Balance of the Purchase Price in accordance with Section
3.2;
|
|
|
(b)
|
the
Assignment and Assumption of
Contracts;
|
|
|
(c)
|
the
Assignment and Assumption of
Leases;
|
|
|
(d)
|
the
Assignment and Assumption of Permitted Encumbrances; and such assumption
or other agreements, undertakings and other instruments in favour
of
|
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20 -
|
|
other
parties as may be required pursuant to the terms of any such Permitted
Encumbrances or as the Vendor may
require;
|
|
|
(e)
|
an
undertaking by the Purchaser to re-adjust the Adjustments in accordance
with Section 3.3;
|
|
|
(f)
|
the
GST Undertaking and Indemnity;
|
|
|
(g)
|
a
certificate of the Purchaser certifying that the representations
and
warranties contained in Section 6.2 are true and correct in all
material
respects as of the Closing Date;
and
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|
|
(h)
|
assumption
agreements or other agreements, notices, undertakings or other
instruments
required to be delivered by the Purchaser in favour of any other
Persons
with an interest in the Property.
|
All
documentation shall be in form and substance acceptable to the Purchaser’s
Solicitors and the Vendor’s Solicitors, each acting reasonably and in good
faith.
|
5.4
|
Registration
and Other Costs
|
|
|
(a)
|
The
Vendor and the Purchaser shall be responsible for the costs of
the
Vendor’s Solicitors and the Purchaser’s Solicitors, respectively, in
respect of the Transaction. The Purchaser shall be responsible
for and pay, in addition to the Purchase Price, any land transfer
taxes
payable on the transfer of the Subject Assets, all registration
fees
payable in respect of registration by it of any documents on Closing
and
all federal and provincial sales and other taxes, if any, payable
by a
purchaser upon or in connection with the conveyance or transfer
of the
Subject Assets, including provincial retail sales tax and goods
and
services tax.
|
|
|
(b)
|
The
Purchaser shall indemnify and save harmless the Vendor and its
shareholders, directors, officers, employees and agents from all
Claims
incurred, suffered or sustained as a result of a failure by the
Purchaser:
|
|
|
(i)
|
to
pay any federal, provincial or other taxes payable by the Purchaser
in
connection with the conveyance or transfer of the Subject Assets
whether
arising from a reassessment or otherwise, including provincial
retail
sales tax and goods and services tax, if applicable;
or
|
|
|
(ii)
|
to
file any returns, certificates, filings, elections, notices or
other
documents required to be filed by the Purchaser with any federal,
provincial or other taxing authorities in connection with the conveyance
or transfer of the Subject Assets.
|
This
indemnity shall survive and shall not merge on Closing.
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21 -
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5.5
|
Electronic
Registration
|
The
Vendor and the Purchaser acknowledge that the electronic registration system
(the “Teraview Electronic Registration System” or
“TERS”) is operative in the land registry office
where the
Lands are located and, accordingly, the following provisions shall prevail,
namely:
|
|
(a)
|
the
Vendor’s Solicitors and the Purchaser’s Solicitors shall each be obliged
to be authorized TERS users and in good standing with the Law Society
of
Upper Canada, and they are hereby authorized by the parties hereto
to
enter into a document registration agreement in the form adopted
by the
Joint LSUC-CBAO Committee on Electronic Registration of Title Documents
on
March 29, 2004 or any successor version thereto (the “Document
Registration Agreement” or “DRA”), together with
the additional requirement that the registering solicitor shall
also be
obliged to provide the non-registering solicitor with a copy of
the
registration report printed by TERS upon the submission and receipt
for
registration of the electronic documents, as evidence of the registration
thereof, within one Business Day following the Closing Date. It
is understood and agreed that the DRA shall outline or establish
the
procedures and timing for completing the transaction contemplated
by this
Agreement electronically, and shall be executed by both the Vendor’s
Solicitors and the Purchaser’s Solicitors and exchanged by courier or
facsimile transmission or e-mail between such solicitors (such
that each
solicitor has a photocopy or faxed copy of the DRA duly executed
by both
solicitors) by no later than one Business Day before the Closing
Date;
|
|
|
(b)
|
the
delivery and exchange of the Closing Documents and the balance
of the
Purchase Price, and the release thereof to the Vendor and the Purchaser,
as the case may be:
|
|
|
(i)
|
shall
not occur contemporaneously with the registration of the transfer/deed
for
the Lands and other Closing Documents, if any, to be registered
electronically; and
|
|
|
(ii)
|
shall
be governed by the DRA, pursuant to which the solicitor receiving
any
Closing Documents, or the balance of the Purchase Price, will be
required
to hold the same in escrow, and will not be entitled to release
the same
except in strict accordance with the provisions of the
DRA;
|
|
|
(c)
|
each
of the parties agrees that the delivery of any of the Closing Documents
not intended or required to be registered against title to the
Lands
shall, unless the parties otherwise agree, be by way of delivery
of
originally signed copies thereof on the Closing Date to the other
party or
its solicitor;
|
|
|
(d)
|
notwithstanding
anything contained in this Agreement or in the DRA to the contrary,
it is
expressly understood and agreed by the parties hereto that an effective
tender shall be deemed to have been validly made by either party
(in
this
|
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22 -
|
|
Section
called the “Tendering Party”) upon the other party (in
this Section called the “Receiving Party”) when the
solicitor for the Tendering Party
has:
|
|
|
(i)
|
delivered
all applicable Closing Documents and/or the balance of the Purchase
Price
to the Receiving Party’s solicitor in accordance with the provisions of
this Agreement and the DRA;
|
|
|
(ii)
|
advised
the solicitor for the Receiving Party in writing that the Tendering
Party
is ready, willing and able to complete the transaction contemplated
by
this Agreement in accordance with the terms and provisions of this
Agreement; and
|
|
|
(iii)
|
completed
all steps required by TERS in order to complete the transaction
contemplated by this Agreement that can be performed or undertaken
by the
Tendering Party’s solicitor without the co-operation or participation of
the Receiving Party’s solicitor, and specifically when the Tendering
Party’s solicitor has electronically “signed” the transfer/deed(s) and any
other Closing Document, if any, to be registered electronically
for
completeness and granted “access” to the Receiving Party’s solicitor (but
without the Tendering Party’s solicitor releasing the same for
registration by the Receiving Party’s
solicitor).
|
|
5.6
|
Single
Transaction.
|
Subject
to Section 5.5, all documents
and cheques shall be delivered in escrow as specified in Section 5.5 on the
Closing Date pending submission and receipt for registration of the Closing
Documents as reasonably required by the solicitors for the parties and receipt
of such evidence as they shall reasonably request that all conditions of
this
Agreement have been satisfied. It is a condition of Closing that all
matters of payment, execution and delivery of documents by each party to
the
other and the submission and receipt for registration of the appropriate
documents in the appropriate offices of public record shall be deemed to
be
concurrent requirements and it is specifically agreed that nothing will be
complete at the Closing until everything required at the Closing has been
paid,
executed and delivered and until all documents have been submitted and receipted
for registration.
ARTICLE
6
REPRESENTATIONS,
WARRANTIES AND COVENANTS
|
6.1
|
Vendor’s
Representations
|
The
Vendor hereby represents and warrants to and in favour of the Purchaser that
as
of the date of this Agreement (unless otherwise specified) and as of the
Closing
Date:
|
|
(a)
|
the
Vendor is (and will be at Closing) a corporation existing and governed
by
the laws of the Province of Ontario and has the necessary authority,
power
and capacity to own the Property and the other property constituting
the
Subject Assets and to enter into this Agreement and the documents
and
transactions contemplated herein and to complete the Transaction
and
perform its obligations
|
-
23 -
|
|
under
the documents and transactions contemplated herein on the terms
and
conditions herein contained;
|
|
|
(b)
|
the
agreement of purchase and sale constituted on the execution and
delivery
of this Agreement and the obligations of the Vendor hereunder and
the
documents and transactions contemplated herein have been duly and
validly
authorized by all requisite proceedings of the Vendor and constitute
and
will constitute at Closing, legal, valid and binding obligations
of the
Vendor enforceable against such Vendor in accordance with its and
their
terms;
|
|
|
(c)
|
neither
the execution and delivery of this Agreement by the Vendor and
the
completion by the Vendor of the Transaction will not, subject to
Section
6.5, result in the breach or violation of any of the provisions
of, or
constitute a default under, or conflict with or cause the acceleration
of
any obligation of the Vendor under:
|
|
|
(i)
|
any
provision of the constating documents, by-laws or resolutions of
the board
of directors of the Vendor; or
|
|
|
(ii)
|
any
Applicable Laws;
|
|
|
(d)
|
no
approval or consent of any Governmental Authority is required in
connection with the completion of the Transaction by the Vendor
other than
as referred to in Section 4.1(e)(ii) above;
and
|
|
|
(e)
|
the
Vendor is a resident of Canada for the purposes of the
ITA.
|
|
6.2
|
Purchaser’s
Representations
|
The
Purchaser hereby represents and warrants to and in favour of the Vendor that
as
of the date of this Agreement (unless otherwise specified) and as of the
Closing
Date:
|
|
(a)
|
the
Purchaser is (or if an affiliate of the Purchaser will be taking
title to
the Subject Assets at Closing, such affiliate will be at Closing)
a
corporation existing and governed by the laws of the Province of
Ontario
and has, or will have, as the case may be, the necessary corporate
authority, power and capacity to own the Subject Assets and to
enter into
this Agreement and the documents and transactions contemplated
herein and
to complete the Transaction and perform its obligations under the
documents and transactions contemplated herein on the terms and
conditions
herein contained;
|
|
|
(b)
|
the
agreement of purchase and sale constituted on the execution and
delivery
of this Agreement and the obligations of the Purchaser hereunder
and the
documents and transactions contemplated herein have been duly and
validly
authorized by all requisite corporate proceedings of the Purchaser
and
constitute (and will constitute at Closing), legal, valid and binding
obligations of the Purchaser enforceable against the Purchaser
in
accordance with its and their terms; and neither the entering into
nor
delivery of this Agreement nor the completion by
the
|
-
24 -
|
|
Purchaser
of the Transaction will conflict with or constitute a default under
any
Applicable Laws; and no approval or consent of any Governmental
Authority
is required in connection with the execution and delivery of this
Agreement by the Purchaser and the completion of the Transaction
by the
Purchaser;
|
|
|
(c)
|
the
Purchaser is duly registered, and if an affiliate of the Purchaser
will be
taking title to the Subject Assets at Closing, such affiliate will
be duly
registered, in virtue of Subsection (d) of Section V of Part IX
of the
Excise Tax Act (Canada), and in consequence, in virtue of
paragraph 221(2)(b) of such law, the Vendor is not obliged to collect
the
tax known as the goods and services tax from the Purchaser or such
affiliate, as the case may be;
|
|
|
(d)
|
the
Purchaser is purchasing the Subject Assets as principal for its
own
account and same are not being purchased by the Purchaser as an
agent,
trustee or otherwise on behalf of or for another Person and, the
Purchaser
is not Purchasing the Subject Assets, in whole or in part, on behalf
of,
nor is it in a partnership, co-ownership, or joint venture with,
in
connection with the purchase of the Subject Assets, any Person
that is an
affiliate of the Vendor, and/or any officer, director, shareholder
or
employee of any such Person;
|
|
|
(e)
|
except
for this Agreement and the Closing Documents to be delivered in
connection
therewith, the Purchaser has not, with respect to the Subject
Assets, entered into any contractual arrangements with any
former or current director, officer, and/or employee of the Vendor,
any
affiliate of the Vendors, or any Person controlled by any of the
foregoing;
|
|
|
(f)
|
the
Purchaser is not a non-Canadian within the meaning of the Investment
Canada Act (Canada); and
|
|
|
(g)
|
the
Purchaser has not retained the services of any real estate broker
or agent
in connection with the transactions contemplated by this
Agreement.
|
|
6.3
|
Survival
of Representations
|
|
|
(a)
|
The
representations, warranties and certifications contained in this
Agreement
or in any Closing Documents shall not merge on Closing but shall
survive
until the Final Adjustment Date. The party which has received a
representation, warranty or certification, whether in this Agreement
or in
any Closing Document, shall give written notice to the other party
of each
breach of the representation, warranty or certification, together
with
details thereof, promptly after becoming aware of the breach and
no later
than the Final Adjustment Date. Notwithstanding any other
provision of this Agreement or of any Closing Document, no claim
may be
asserted or pursued against any party hereto, or any action, suit
or other
proceedings commenced or pursued, for or in respect of any breach
of any
representation, warranty or certification made by such party in
this
Agreement or in any Closing Document unless written notice of such
Claim
is received by such party describing in detail the facts and circumstances
with respect to the subject
|
-
25 -
|
|
matter
of such Claim on or prior to the Final Adjustment Date, irrespective
of
whether the subject matter of such Claim shall have occurred before
or
after the Final Adjustment Date; and following the Final Adjustment
Date
all such representations, warranties and certifications shall cease
to
have any effect except to the extent a written notice of Claim
has been
previously given in respect thereof in accordance with this
Subsection.
|
|
|
(b)
|
Notwithstanding
the foregoing provisions of this Section or any other provisions
of this
Agreement or any Closing Documents, the liability of any party
to this
Agreement (herein referred to as the “Responding Party”)
after Closing in respect of any representation, warranty or certification
made by such Responding Party in or pursuant to this Agreement
or in any
Closing Document shall be subject to and limited by the
following:
|
|
|
(i)
|
the
limitations contained in Subsections 6.3(a) and
(b);
|
|
|
(ii)
|
no
Claim shall be brought against the Responding Party by the other
party to
this Agreement (the “Claiming Party”) until the aggregate
of all the amounts claimed pursuant to such Claim or Claims that
have then
been made by the Claiming Party against the Responding Party exceed
$25,000; provided that if the aggregate of all such Claims exceeds
$25,000, the Purchaser shall be entitled to recover the full amount
of the
Claim or Claims, including the initial $25,000 if such Claims are
successful;
|
|
|
(iii)
|
if
any breach of a representation, warranty or certification can be
remedied
within a reasonable period of time (not to exceed ninety (90) days
after
written notice thereof is given) the Responding Party shall be
given a
reasonable opportunity to remedy any such breach, provided it is
capable
of being remedied;
|
|
|
(iv)
|
the
Responding Party shall not be responsible for any Claim to the
extent, if
any, that the Claiming Party is otherwise indemnified for such
Claim under
insurance policies in the absence of any such
Claim;
|
|
|
(v)
|
to
the extent that a Responding Party becomes liable to pay any amount
for
the breach of a representation, warranty or certification, and
such amount
is deductible by the Claiming Party for income tax purposes, the
Responding Party shall, notwithstanding any other provision hereof,
be
obligated to pay the Claiming Party only the loss that the Claiming
Party
actually suffers after having regard to the effect of such deductions;
and
|
|
|
(vi)
|
the
provisions of Section 6.6, if
applicable.
|
|
6.4
|
“As-Is”
Purchase
|
|
|
(a)
|
The
Purchaser acknowledges and agrees that the Subject Assets and all
other
aspects of the Transaction are being sold and purchased “as-is, where-is”,
without any representation, warranty or covenant except as expressly
set
forth in this
|
-
26 -
|
|
Agreement. The
Purchaser agrees to exercise its rights to perform Due Diligence
on or
before the Due Diligence Date and shall rely solely upon its own
findings
resulting therefrom and not upon any information, documentation,
statement
or opinion, written or oral, provided by the Vendor or any agent
of the
Vendor other than the representations and warranties set out in
Section 6.1.
|
|
|
(b)
|
Except
as expressly provided in Section 6.1, the Vendor makes no representations
or warranties of any nature whatsoever with respect to any information
or
documentation Disclosed to the Purchaser, nor with respect to the
Subject
Assets (including, without limitation, the Vendor's title thereto
and any
Encumbrances), the Property or any other assets or the Transaction
including, without limitation, (i) the structural integrity or
any other
aspect of the physical condition of the Buildings, (ii) the conformity
of
the Buildings to any plans or specifications for the Property (including,
but not limited to, any plans and specifications that may have
been or
which may be provided to the Purchaser), (iii) the conformity of
the
Property to past, current or future applicable zoning or building
code
requirements or other Applicable Laws, (iv) the existence of soil
instability, past soil repairs, soil additions or conditions of
soil fill
or any other matter affecting the stability or integrity of the
Lands, or
any Building situated on or as part of the Property, (v) the sufficiency
of any drainage, (vi) whether the Property is located wholly or
partially
in a flood plain or a flood hazard boundary or similar area, (vii)
the
existence or non-existence of underground storage tanks, (viii)
the
availability of public utilities and services for the Property,
(ix) the
fitness or suitability of the Property for occupancy or any intended
use
(including matters relating to health and safety and the environment),
(x)
the potential for further development of the Property, (xi) the
existence
of land use, zoning or building entitlements affecting the Property,
(xii)
the existence of any unused density that would permit a redevelopment
of
the Property, (xiii) the status of any of the Leases, Contracts
or
Permitted Encumbrances, and or that any of the Leases, Contracts
or
Permitted Encumbrances is assignable or in good standing, (xiv)
the
presence of toxic wastes, hazardous materials or contaminants in,
on or
about the Property or any other environmental issue or condition,
or (xv)
the conformity of the Property to the Heritage Act (Ontario) or
to any municipal by-laws relating to the preservation of heritage,
cultural or historical properties (collectively, the "Property
Conditions").
|
|
|
(c)
|
As
part of the Purchaser’s agreement to purchase the Subject Assets and
accept the Subject Assets and the Property “as-is, where-is”, and not as a
limitation on such agreement, the Purchaser hereby unconditionally
and
irrevocably waives any and all actual or potential rights or claims
the
Purchaser might have against the Vendor pursuant to any warranty,
express
or implied, of any kind or type, other than those representations
and
warranties expressly set forth in this Agreement, or in any of
the Closing
Documents relating to the Property or any other assets, the Subject
Assets, the Property Conditions or any other aspect of the
Transaction. Such waiver is absolute, unlimited and includes,
but is not limited to, waiver of express warranties, implied warranties,
warranties of fitness for a particular use, warranties of merchantability,
warranties of occupancy, strict liability and
claims
|
-
27 -
|
|
of
every kind and type, including, but not limited to, claims regarding
defects, whether or not discoverable, product liability claims,
or similar
claims, and to all other extent or later created or conceived of
strict
liability or strict liability type claims and
rights.
|
|
|
(d)
|
Except
as otherwise expressly provided in Section 6.1, the Vendor shall
not be
responsible or liable for any misrepresentation, lack of disclosure
or
incorrect or incomplete disclosure of any nature whatsoever or
failure to
investigate the Property on the part of any real estate broker
or sales
agent, or any other purported or acknowledged agent, representative,
contractor, consultant or employee of the Vendor or any third
party.
|
|
6.5
|
Bulk
Sales Legislation
|
The
Purchaser agrees that it shall not require that the Vendor comply with the
provisions of any statutes governing bulk sales or similar legislation
applicable to the Transaction. The Vendor agrees to indemnify and
save harmless the Purchaser from and against all Claims which the Purchaser
may
suffer or incur as a result of or arising out of such non-compliance by the
Vendor except those that are attributable to the Purchaser’s breach after
Closing of its obligations under any Contracts, or other obligations that
have
been assigned to it, or assumed by it, on Closing pursuant to this
Agreement. This Section 6.5 shall survive Closing.
|
6.6
|
Third
Party Claims
|
|
|
(a)
|
In
the case of Claims made by a third party after the Closing (a
“Third Party Claim”) with respect to which the Claiming
Party seeks to make a Claim against the Responding Party as a result
of
the breach by the Responding Party of any representation, warranty,
certification or covenant made by such Responding Party in or pursuant
to
this Agreement or any Closing Document, the Claiming Party shall
give
written notice to the Responding Party of any such Third Party
Claim
forthwith after receiving notice thereof. If the Claiming Party
fails to give such written notice to the Responding Party, such
failure
shall not preclude the Claiming Party from making such Claim against
the
Responding Party, but its right to indemnification may be reduced
to the
extent that such delay prejudiced the defence of the Third Party
Claim or
increased the amount of liability or the cost of the
defence.
|
|
|
(b)
|
The
Responding Party shall have the right, by written notice to the
Claiming
Party given not later than thirty (30) days after receipt of the
notice
referred to in Subsection 6.6(a), to assume the control of the
defence,
compromise or settlement of the Third Party
Claim.
|
|
|
(c)
|
Upon
the assumption of control of any Third Party Claim by the Indemnifying
Party as contemplated by Subsection 6.6(b), the Responding Party
shall
diligently proceed with the defence, compromise or settlement of
the Third
Party Claim at its sole expense, including, if necessary, employment
of
counsel reasonably satisfactory to the Claiming Party and, in connection
therewith, the Claiming
|
-
28 -
|
|
Party
shall co-operate fully (but at the expense of the Responding Party
with
respect to any reasonable out-of-pocket expenses incurred by the
Claiming
Party) to make available to the Responding Party all pertinent
information
and witnesses under the Claiming Party’s control, make such assignments
and take such other steps as in the opinion of counsel for the
Responding
Party, acting reasonably, are reasonably necessary to enable the
Claiming
Party to conduct such defence. The Claiming Party shall have
the right to participate in the negotiation, settlement or defence
of any
Third Party Claim at its own expense and no Third Party Claim shall
be
settled, compromised or otherwise disposed of without the prior
written
consent of the Claiming Party, such consent not to be unreasonably
withheld or delayed. If the Responding Party elects to assume
control of the Third Party Claim as contemplated by Subsection
6.6(b), the
Claiming Party shall not pay, or permit to be paid, any part of
the Third
Party Claim unless the Responding Party consents in writing to
such
payment or unless the Responding Party, subject to the last sentence
of
Subsection 6.6(d), withdraws from the defence of such Third Party
Claim or
unless a final judgment from which no appeal may be taken by or
on behalf
of the Responding Party is entered against the Claiming Party in
respect
of such Third Party Claim.
|
|
|
(d)
|
If
the Responding Party fails to give written notice to the Claiming
Party as
contemplated by Subsection 6.6(b), the Claiming Party shall be
entitled to
make such settlement of the Third Party Claim, or otherwise deal
therewith, as it deems appropriate, acting reasonably, and such
settlement
or any other final determination of the claim or demand shall be
binding
upon the Responding Party. If the Responding Party fails to
defend or, if after commencing or undertaking such defence, fails
to
prosecute or withdraws from such defence, the Claiming Party shall
have
the right to undertake the defence or settlement thereof. If
the Claiming Party assumes the defence of any Third Party Claim
and
proposes to settle it prior to a final judgment thereon or to forego
any
appeal with respect thereto, then the Claiming Party shall give
the
Responding Party prompt written notice thereof, and the Responding
Party
shall have the right to participate in the settlement or assume
or
reassume the defence of such Third Party
Claim.
|
ARTICLE
7
OPERATION
UNTIL CLOSING
|
7.1
|
Operation
Before Closing
|
From
the
date hereof until Closing, the Vendor shall operate the Property in accordance
with its current management practices applicable to the Property.
|
7.2
|
Damage
Before Closing
|
The
interest of the Vendor in and to the Property shall be at the risk of the
Vendor
until Closing, subject to the terms and conditions of this
Agreement. If loss or damage to the Property occurs,
then:
-
29 -
|
|
(a)
|
if
the cost of repair or restoration, in the opinion of the Vendor’s
architect or engineer, will exceed an amount equal to 35% of
the Purchase
Price (such damage being referred to herein as “Substantial
Damage”), then the Vendor or the Purchaser may by notice to
the
other party within ten (10) Business Days after the occurrence
of such
Substantial Damage, elect to terminate this Agreement in which
event this
Agreement shall automatically terminate, be null and void and
of no
further force and effect whatsoever, the Purchaser and Vendor
shall be
released from all obligations under this Agreement (except those
which are
expressly stated to survive any termination of this Agreement)
and the
Deposit and all interest earned thereon shall be returned to
the Purchaser
forthwith without deduction;
and
|
|
|
(b)
|
if
such loss or damage is not Substantial Damage, or is Substantial
Damage
but neither party has elected to exercise the termination right
with
respect to the Agreement, pursuant to Subsection 7.2(a), then neither
party shall have any right to terminate this Agreement by virtue
thereof,
the Vendor shall pay any insurance deductibles in respect of such
loss or
damage, the Purchaser shall be entitled to all proceeds of property
insurance in respect of such loss or damage (except that portion,
if any,
required to reimburse the Vendor for repair or restoration work
it has
done prior to Closing and insurance for loss of income prior to
Closing,
all of which shall be paid to the Vendor), the parties shall complete
the
Transaction and the Purchaser shall promptly and diligently repair
such
damage at its own expense following
Closing.
|
If
the
damage or destruction occurs at such time that there is insufficient time
for
the Vendor or the Purchaser to make its election hereunder, the Closing Date
shall be postponed to a date which is five (5) Business Days after the earlier
of the date such election is made or the period for making such election
has
expired, or if such date is not a Business Day, then the next Business Day
thereafter.
|
7.3
|
Leasing
and Contracts
|
(a) The
Vendor shall not enter into any new Lease after the date hereof without the
prior approval of the Purchaser (which approval may be unreasonably withheld
or
delayed) provided that the requirement for the approval of the Purchaser
shall
not apply in the event that the Vendor is bound to enter into the relevant
new
Lease on specified terms and conditions pursuant to a lease, agreement or
offer
in existence prior to the date hereof. The Vendor shall not enter
into any new material Contract (unless such Contract is terminable without
penalty upon notice of not more than 180 days) after the date hereof without
the
prior approval of the Purchaser, which approval shall not be unreasonably
withheld or delayed. In the case of each such Lease or Contract where
the approval of the Purchaser is required, such approval shall be deemed
to have
been given if no response is received from the Purchaser within five (5)
Business Days following written request therefor sent in accordance with
the
provisions hereof.
(b) At
any time after the date hereof, the Vendor shall not voluntarily amend,
terminate or accept a surrender of any Lease, and or release any Tenant from
its
liability under its Lease or any Approved Lease (other than the Lease excepted
as set out above) or voluntarily materially amend or terminate any material
Contract without the prior written consent of the Purchaser, such consent
not to
be unreasonably withheld or delayed. In each such case where
the
-
30 -
approval
of the Purchaser is required, such approval shall be deemed to have been
given
if no response is received from the Purchaser within five (5) Business Days
following written request therefor sent in accordance with the provisions
hereof.
(c) If
any Contracts involving the provision of services to the Property, or other
similar Contracts, also apply to any other properties, the Vendor shall be
entitled, with the consent of the Purchaser, prior to the Due Diligence Date,
to
amend each such Contract, or replace it with a new or restated agreement,
in
order to provide that the Contract, as so amended or replaced (it being agreed
that the Contract as so amended or replaced is the Contract for all purposes
of
this Agreement), shall not apply to any properties other than the
Property. The provisions of Subsection 7.3(b) shall be applicable in
respect of any such amendment or replacement of such Contract, if (but only
if)
such Contract is a material Contract and changes are being made thereto other
than for the purpose described above (and all necessary conforming changes)
or
if the amount payable for such services is not currently allocated to each
property covered by such Contract on a discrete basis.
(d)
Notwithstanding any other provision of this Agreement, no default by any
Person
other than the Vendor under any Lease, Permitted Encumbrances or Contract
(including, without limitation, any bankruptcy or event of insolvency) or
repudiation or termination thereof, or proceeding for relief therefrom, at
any
time after the Due Diligence Date, and no other change adverse to the Subject
Assets or the Property or their value at any time after the Due Diligence
Date
(it being acknowledged that the Purchaser has a right of termination prior
to
the Due Diligence Date pursuant to Section 2.4 hereof), other than a change
caused by the wrongful act of the Vendor, shall entitle the Purchaser to
terminate this Agreement or to an abatement of the Purchase Price or any
other
right or remedy whatsoever, the Purchaser agreeing to accept the risk of
the
foregoing. The foregoing does not relieve, however, the Vendor from
any consequences of any default by the Vendor under any such Lease, Permitted
Encumbrance or Contract where the result of such default would be the breach
by
the Vendor of any of its representations or warranties or non-satisfaction
of
the conditions set out in Section 4.2, it being agreed that in the case of
any
such default, if it has a material adverse effect on the Property, the Purchaser
shall be entitled to an adjustment of the Purchase Price by the amount of
the
diminution in value of the Property caused by such default, if any, but no
other
remedy.
|
7.4
|
Assignment
of Contracts
|
Nothing
in this Agreement shall be construed as an assignment of, or an attempt to
assign to the Purchaser, any Contract or Permitted Encumbrance which is (i)
not
assignable, or (ii) not assignable without the approval or consent of the
other
party or parties thereto, without first obtaining such approval or consent
(collectively “Non-Assignable Rights”). The failure
to obtain any such approval or consent, or the fact that a Contract or Permitted
Encumbrance is not assignable, shall not entitle the Purchaser to terminate
this
Agreement or to any other right or remedy whatsoever (without prejudice to
the
right of the Purchaser to terminate this Agreement prior to the Due Diligence
Date pursuant to and in accordance with Section 2.5 if the Purchaser is not
satisfied with its Due Diligence). In connection with such
Non-Assignable Rights the Vendor shall, at the request of the Purchaser and
in
each case at the Purchaser’s expense:
-
31 -
|
|
(a)
|
apply
for and use all reasonable efforts to obtain all such consents
or
approvals, in a form satisfactory to the Purchaser acting reasonably,
provided that nothing herein shall require the Vendor to make any
payment
to any other party to any of the Contracts;
and
|
|
|
(b)
|
co-operate
with the Purchaser in any reasonable and lawful arrangements designed
to
provide the benefits of such Non-Assignable Rights to the Purchaser,
including without limitation, holding any such Non-Assignable Rights
in
trust for the Purchaser or acting as agent for the Purchaser, provided
that pursuant to such arrangements the Purchaser fully indemnifies
the
Vendor for all obligations or liabilities incurred thereunder or
in
connection therewith.
|
In
the
event of any conflict or inconsistency between this Section and any other
provision of this Agreement, this Section shall prevail. This
provision survives the Closing.
|
7.5
|
Trade-Marks
|
No
trade-marks, trade-names, logos, commercial symbols, business names or other
intellectual property rights are conveyed or intended to be conveyed to the
Purchaser as part of the Subject Assets.
ARTICLE
8
GENERAL
|
8.1
|
Gender
and Number
|
Words
importing the singular include the plural and vice
versa. Words importing gender include all genders.
|
8.2
|
Captions
|
The
captions and headings contained herein are for reference only and in no way
affect this Agreement or its interpretation.
|
8.3
|
Obligations
as Covenants
|
Each
agreement and obligation of any of the parties hereto in this Agreement,
even
though not expressed as a covenant, is considered for all purposes to be
a
covenant.
|
8.4
|
Applicable
Law
|
This
Agreement and all Closing Documents shall be construed and enforced in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable thereto and shall be treated in all respects as Ontario
contracts.
-
32 -
|
8.5
|
Currency
|
All
reference to currency in this Agreement shall be deemed to be reference to
Canadian dollars.
|
8.6
|
Invalidity
|
If
any
immaterial covenant, obligation, agreement or part thereof or the application
thereof to any Person or circumstance, to any extent, shall be invalid or
unenforceable, the remainder of this Agreement or the application of such
covenant, obligation or agreement or part thereof to any Person, party or
circumstance other than those to which it is held invalid or unenforceable
shall
not be affected thereby. Each covenant, obligation and agreement in
this Agreement shall be separately valid and enforceable to the fullest extent
permitted by law.
|
8.7
|
Amendment
of Agreement
|
No
supplement, modification, waiver or termination (other than a termination
pursuant to the terms of this Agreement) of this Agreement shall be binding
unless executed in writing by the parties hereto in the same manner as the
execution of this Agreement.
|
8.8
|
Time
|
Time
shall be of the essence of this Agreement. If anything herein is to
be done on a day which is not a Business Day, the same shall be done on the
next
succeeding Business Day. Unless otherwise provided hereto, all
references to time shall mean Toronto time.
|
8.9
|
Further
Assurances
|
Each
of
the parties hereto shall from time to time hereafter and upon any reasonable
request of the other, execute and deliver, make or cause to be made all such
further acts, deeds, assurances and things as may be required or necessary
to
more effectually implement and carry out the true intent and meaning of this
Agreement.
|
8.10
|
Entire
Agreement
|
This
Agreement and any agreements, instruments and other documents made as of
the
date hereof or herein contemplated to be entered into between, by or including
the parties hereto constitute the entire agreement between the parties hereto
pertaining to the agreement of purchase and sale provided for herein and
supersede all prior agreements, understandings, negotiations and discussions,
whether oral or written, with respect thereto, and there are no other warranties
or representations and no other agreements between the parties hereto in
connection with the agreement of purchase and sale provided for herein except
as
specifically set forth in this Agreement or the Schedules attached
hereto.
-
33 -
|
8.11
|
Waiver
|
No
waiver
of any of the provisions of this Agreement shall be deemed or shall constitute
a
waiver of any other provision (whether or not similar) nor shall any waiver
constitute a continuing waiver unless otherwise expressed or
provided.
|
8.12
|
Solicitors
as Agents and Tender
|
Any
notice, approval, waiver, agreement, instrument, document or communication
permitted, required or contemplated in this Agreement may be given or delivered
and accepted or received by the Purchaser’s Solicitors on behalf of the
Purchaser and by the Vendor’s Solicitors on behalf of the Vendor and any tender
of Closing Documents and the Balance may be made upon the Vendor’s Solicitors
and the Purchaser’s Solicitors, as the case may be.
|
8.13
|
Survival
|
Except
as
otherwise provided in this Agreement, no representations, warranties, covenants
or agreements of either the Vendor or the Purchaser shall survive
Closing. This provision survives the Closing.
|
8.14
|
Successors
and Assigns
|
All
of
the covenants and agreements in this Agreement shall be binding upon the
parties
hereto and their respective successors and assigns and shall enure to the
benefit of and be enforceable by the parties hereto and their respective
successors and their permitted assigns pursuant to the terms and conditions
of
this Agreement.
|
8.15
|
Assignment
|
The
Purchaser is not entitled to assign its rights under this Agreement without
the
prior written consent of the Vendor, which consent may be withheld in the
Vendor's sole and absolute discretion. The Purchaser may direct title
to the Property to be registered in the name of an Affiliate provided that:
(i)
the Purchaser shall not be released from its obligations and liabilities
under
this Agreement or any documents delivered pursuant to this Agreement, and
(ii)
the Purchaser shall be jointly and severally liable with the designated
Affiliate with respect to all covenants, obligations, liabilities and
indemnities in favour of the Vendor in this Agreement or any document delivered
at or relating to Closing.
The
Purchaser shall provide the Vendor with all information about any proposed
Affiliate to whom the Purchaser proposed to direct title to the Property
that
the Vendor requires, acting reasonably.
At
the
request of the Vendor, the Purchaser shall forthwith deliver to the Vendor,
in
writing, a list of all Persons that, directly or indirectly, own the shares
of
the Purchaser, including, for greater certainty, a list of all of Persons
that,
directly or indirectly, own the shares of holding body corporate(s) (as such
term is defined in the Business Corporations Act (Ontario)), if any, of
the Purchaser.
-
34 -
|
8.16
|
Real
Estate Commissions
|
The
Vendor shall pay the commission payable or fee payable to Colliers
International, which is the only real estate agent or broker that the Vendor
has
used in connection with the Transaction. The Purchaser represents and
warrants to the Vendor that the Purchaser has
not
used the services of any real estate agent or broker in connection with the
purchase and sale of the Subject Assets contemplated hereby. This
Section shall not merge on, but shall survive, Closing.
|
8.17
|
Notice
|
Any
notice, demand, approval, consent, information, agreement, offer, payment,
request or other communication (hereinafter referred to as a
“Notice”) to be given under or in connection with this
Agreement shall be in writing and shall be given by personal delivery or
by
telecopier or other electronic communication which results in a written or
printed notice being given, addressed or sent as set out below or to such
other
address or electronic number as may from time to time be the subject of a
Notice:
|
|
(a)
|
Vendor:
|
DOMGROUP
LTD.
|
|
|
|
c/x
Xxxxxxxxx Inc.
|
|
|
|
00
Xxxxxxx Xxxxxx
|
|
|
|
Xxxxxxx,
XX X0X 0X0
|
|
|
|
Attention: |
Xxxxxxx
Xxxxxx, President and
Secretary
|
|
|
|
Telecopy: |
(000)
000-0000
|
with
a
copy to:
DAVIES
XXXX XXXXXXXX & XXXXXXXX LLP
X.X.
Xxx 00, Xxxxx 0000
0
Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx,
XX X0X 0X0
|
|
|
Attention: |
Xxxx
Xxxxxxx
|
|
|
|
Telecopy: |
(000)
000-0000
|
|
|
(b)
|
Purchaser:
|
CHARIS
DEVELOPMENTS LTD.
|
|
|
|
X.X.
Xxx 000
|
|
|
|
Xxxxxxxxxxx,
Xxxxxxx X0X 0X0
|
|
|
|
Attention: |
Xxxxx
Xxxxxx
|
|
|
|
Telecopy: |
(000)
000-0000
|
with
a
copy to:
-
35 -
BAULKE
XXXXXXXX XXXXX LLP
000
Xxxxxxxxxx Xxxxxx
X.X.
Xxx
000
Xxxxxxxxxxx,
XX X0X 0X0
|
|
|
Attention: |
Xxxxxx
X. Xxxxxx
|
|
|
|
Telecopy: |
(000)
000-0000
|
Any
Notice, if personally delivered, shall be deemed to have been validly and
effectively given and received on the date of such delivery and if sent by
telecopier or other electronic communication with confirmation of transmission,
shall be deemed to have been validly and effectively given and received on
the
Business Day next following the day it was received.
|
8.18
|
Effect
of Termination of
Agreement
|
Notwithstanding
the termination of this Agreement for any reason, the following provisions
shall
survive and shall remain in full force and effect: (i) the confidentiality
provisions contained in Section 2.6 including, without limitation, the
Purchaser’s obligations to return documents to the Vendor; (ii)
Subsection 2.5(b); and (iii) such other provisions (such as those relating
to return of the Deposit following termination) the survival of which following
termination are necessary to give practical effect thereto. For
greater certainty, it is confirmed that termination of this Agreement does
not,
for the purposes of this Section, include the Closing of this Agreement,
and
that Section 8.13 is relevant in respect of survival of provisions after
the
Closing.
|
8.19
|
No
Registration of
Agreement
|
The
Purchaser shall not register this Agreement or any notice of this Agreement
on
title to the Lands.
|
8.20
|
Planning
Act
|
This
Agreement shall be effective to create an interest in any part of the Lands
only
if the provisions of Section 50 of the Planning Act (Ontario) are
complied with by the Vendor at its own expense on or before the Closing
Date.
|
8.21
|
Counterparts
|
This
Agreement may be executed in counterparts by original or facsimile signature,
each of which shall constitute an original and each of which taken together
shall constitute one and the same instrument.
-
36 -
IN
WITNESS WHEREOF the parties hereto have executed this Agreement by
their properly authorized officers in that behalf as of the day and year
first
above written.
|
DOMGROUP
LTD.
|
|
|
By: /s/
X.X. Xxxxxx
Name: Xxxxxxx
X. Xxxxxx
Title: President
and Secretary
|
|
|
I
have authority to bind the Corporation
|
|
|
CHARIS
DEVELOPMENTS LTD.
|
|
|
By: /s/
Xxxxx Xxxxxx
Name: Xxxxx
Xxxxxx
Title: President
|
|
|
I
have authority to bind the Corporation
|
-
37
-
SCHEDULE
A
LANDS
LEGAL
DESCRIPTION
Property
Identifier
No.: Lots
43-46 58279-0116(LT)
Lot 47 58279-0115
(LT)
Lots
43,
44, 45, 46 and 00 Xxxx xx Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx Xxxx 00, Xxxx xx
Xxxxxxxxxxx, Xxxxxx of Simcoe.
SCHEDULE
B
PURCHASER’S
DECLARATION AND INDEMNITY
RE:
GOODS AND SERVICES TAX
TO: DOMGROUP
LTD.
AND
TO: DAVIES
XXXX XXXXXXXX & XXXXXXXX LLP, its solicitors herein
|
RE:
|
SALE
OF 000 XXXXXXXXXX XXXXXX, XXXXXXXXXXX, XXXXXXX
(the “Property”)
|
The
undersigned hereby declares, certifies and agrees as follows:
|
|
(a)
|
it
is purchasing the Property as principal for its own account and
same is
not being purchased by the Purchaser as an agent, trustee or otherwise
on
behalf of or for another person;
|
|
|
(b)
|
it
is registered under Subdivision d of Division V of Part IX of the
Excise Tax Act (Canada) (the “Act”) for the
collection and remittance of goods and services tax
(“GST”); its registration number is R·;
and such
registration is in good standing and has not been
revoked;
|
|
|
(c)
|
it
shall be liable, shall self-assess and remit to the appropriate
governmental authority all GST which is payable under the Act in
connection with the transfer of the Property all in accordance
with the
Act; and
|
|
|
(d)
|
it
shall indemnify and save harmless the Vendor from and against any
and all
GST, penalties, costs and/or interest which may become payable
by or
assessed against the Vendor as a result of any failure by the Purchaser
to
comply with the provisions of this Declaration and
Indemnity.
|
The
undersigned acknowledges and agrees that the foregoing declaration and indemnity
shall survive and not merge upon closing of the above-noted
transaction. Dated as of the · day of
·,
2007.
|
[NAME
OF PURCHASER]
|
|
|
By: ____________________
Name: ·
Title:
·
|
|
|
By: ____________________
Name: ·
Title:
·
I/We
have authority to bind the Corporation
|
- 2
-
SCHEDULE
C
LIST
OF CERTAIN PERMITTED ENCUMBRANCES
GENERAL
1. Encumbrances
for real property taxes (which term includes charges, rates and assessments,
and
other governmental charges or levies) or charges for electricity, power,
gas,
water and other services and utilities in connection with the Property that
(i)
have accrued but are not yet due and owing or, if due and owing, are adjusted
for pursuant to Section 3.3, or (ii) the validity of which is being
contested in good faith.
2. Registered
easements, rights-of-way, restrictive covenants and servitudes and other
similar
rights in land granted to, reserved or taken by any Governmental Authority
or
public utility; or any registered subdivision, development, servicing, site
plan
or other similar agreement with any Governmental Authority or public
utility.
3. Facility
sharing, cost sharing, tunnel, pedway, servicing, parking, reciprocal and
other
similar agreements with neighbouring landowners and/or Governmental
Authorities.
4. Restrictive
covenants, private deed restrictions, and other similar land use controls
or
agreements.
5. Minor
encroachments by the Property over neighbouring lands which are permitted
under
agreements with neighbouring landowners and minor encroachments over the
Property by improvements of neighbouring landowners.
6. Any
subsisting reservations, limitations, provisos, conditions or exceptions
contained in the original grants of the Property from the Crown.
7. All
Contracts and Approved Contracts and registered notices, memorials, caveats
or
other registrations with respect to such Contracts.
8. All
Leases and registered notices, memorials, caveats or other registrations
with
respect to such Leases.
9. Any
rights of expropriation, access, use or any other right conferred or reserved
by
or in any statute of Canada or the Province of Ontario.
10. The
provisions of Applicable Laws, including by-laws, regulations, ordinances
and
similar instruments relating to development and zoning.
11. Any
minor title defects, irregularities, easements, servitudes, encroachments,
rights-of-way or other discrepancies in title or possession relating to the
Property or the Subject Assets.
12. Encumbrances
of labourers, workmen, builders, contractors, suppliers of material or
architects or other similar Encumbrances incidental to construction, maintenance
or operations
which
have not at the time been registered or filed pursuant to Applicable Laws
against the Property.
13. Registrations
under the Personal Property Security Act (Ontario) relating to any of
the leased Chattels pursuant to any of the Contracts.
14. All
other Encumbrances which are Permitted Encumbrances.
- 2
-
SCHEDULE
D
FORM
OF SATISFACTION NOTICE
TO:
DOMGROUP LTD.
|
RE:
|
000
XXXXXXXXXX XXXXXX, XXXXXXXXXXX,
XXXXXXX
|
We
refer
to the Agreement of Purchase and Sale made between Domgroup Ltd. and Charis
Developments Ltd., made as of the 7th day of
November,
2006 (the “Purchase Agreement”). Pursuant to Section
2.5 of the Purchase Agreement, we hereby give you notice that we are satisfied
with the results of our Due Diligence (as defined in the Purchase
Agreement).
DATED
as
of the ___ day of , 2007.
|
CHARIS
DEVELOPMENTS LTD.
|
|
|
By:________________________
Name: ·
Title:
·
|
|
|
By:_________________________
Name: ·
Title:
·
I/We
have authority to bind the Corporation
|
SCHEDULE
E
FORM
OF ASSIGNMENT AND ASSUMPTION OF CONTRACTS
MEMORANDUM
OF AGREEMENT made as of the ·
day of ·, 2007.
B
E T W E
E N:
DOMGROUP
LTD.,
a
corporation incorporated under the laws of the Province of Ontario,
(hereinafter
referred to as the “Assignor”),
OF
THE
FIRST PART,
-
and
-
·,
a
corporation incorporated under the laws of ·,
(hereinafter
referred to as the “Assignee”),
OF
THE
SECOND PART.
WHEREAS
the Assignor and the Assignee have entered into an agreement of purchase
and
sale made as of the · day of
·,
2006 (such
agreement, as amended, supplemented and/or restated to the date hereof, the
“Purchase Agreement”) pursuant to which the Assignee has agreed
to purchase from the Assignor, and the Assignor has agreed to sell to the
Assignee, the Subject Assets;
AND
WHEREAS pursuant to the Purchase Agreement, the Assignor has agreed to execute
and deliver this assignment of its interest in the Assigned Contracts (as
defined below);
NOW
THEREFORE in consideration of the mutual covenants and agreements hereinafter
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby covenant
and
agree as follows:
1. Definitions. Unless
otherwise defined herein, all capitalized terms used in this agreement (the
“Agreement”) shall have the respective meanings ascribed to
them in the Purchase Agreement. In this Agreement,
“Property” means the property municipally known as 000
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx and more fully described in
Schedule A hereto.
2. Assignment. Subject
to Section 7.4 of the Purchase Agreement, the Assignor hereby assigns and
transfers unto the Assignee all of the Assignor’s right, title and interest in,
to and under the Contracts relating to the Property, all of the foregoing
being
listed in Schedule B hereto (collectively, the “Assigned
Contracts”). Except as provided in Section 6.1 of the
Purchase Agreement, the Assigned Contracts are being assigned to and accepted
by
the Assignee on an “as is - where is” basis as provided for in Subsection 2.5(c)
and Section 6.4 of the Purchase Agreement and without any representations
or warranties (express or implied) of any nature whatsoever with respect
to the
Assigned Contracts or any aspect thereof including, without limitation, the
Assignor’s interest therein, the Assignor’s ability to assign the Assigned
Contracts or the good standing of the parties thereunder. The
provisions of Subsection 2.5(c) and Sections 6.4 and 7.4 of the Purchase
Agreement are applicable to this Agreement and, without limiting the foregoing
provisions of this sentence, the Assignee hereby unconditionally and irrevocably
waives any and all actual or potential rights that the Assignee might have
against the Assignor regarding any form of warranty, express or implied,
of any
type, other than those expressly set out in Section 6.1 of the Purchase
Agreement relating to the Assigned Contracts.
3. Assumption
and Indemnity. The Assignee hereby accepts the
assignment and transfers contained in Section 2 hereof and covenants and
agrees
with the Assignor that, from and after the date hereof, the Assignee will
observe, perform and fulfill each and every covenant, proviso, obligation,
term
and condition of the Assignor in, to and under the Assigned Contracts that
is
applicable at any time from and including the date of this Agreement to the
same
extent as if it and the Assignor had both been originally jointly named as
a
party to the Assigned Contracts in the place of the Assignor (or the Assignor’s
predecessor in title, if applicable). The Assignee hereby agrees to
fully indemnify and save harmless the Assignor from and against any and all
liabilities, damages, costs, expenses, causes of action, suits, claims and
judgments arising from or in connection with, or resulting from, any breach
by
the Assignee of its obligations hereunder and/or any act or omission of the
Assignee or those for whom the Assignee is legally responsible with respect
to
the Assigned Contracts or the Property.
4. Successors
and Assigns. This Agreement shall enure to the benefit
of and shall be binding upon the parties hereto and their respective successors
and assigns.
5. Governing
Law. This Agreement shall be construed and enforced in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein and shall be treated in all respects as an Ontario
contract.
6. Counterparts. This
Agreement may be executed in several counterparts and by facsimile transmission
of an originally executed document, each of which shall be deemed to be an
original, and all such counterparts shall constitute one and the same
instrument.
7. Headings,
Extended Meanings. The headings in this Agreement are
inserted for convenience of reference only and shall not constitute a part
hereof and are not to be considered in the interpretation hereof. In
this Agreement, words importing the singular include the plural and vice
versa; words importing the masculine gender include the feminine and
vice versa; and words importing persons include firms or corporations
and vice versa.
- 3
-
IN
WITNESS WHEREOF the parties have executed this Agreement as of the date first
mentioned.
|
DOMGROUP
LTD.
|
|
|
By:____________________________
Name: ·
Title:
·
|
|
|
I have
authority to bind the Corporation
|
|
|
[NAME
OF ASSIGNEE]
|
|
|
By: ____________________________
Name: ·
Title:
·
|
|
|
By: ____________________________
Name: ·
Title:
·
I/We
have authority to bind the Corporation
|
- 4
-
SCHEDULE
F
FORM
OF ASSIGNMENT AND ASSUMPTION OF LEASES
MEMORANDUM
OF AGREEMENT made as of the n day
of n, 2007.
B
E T W E
E N:
DOMGROUP
LTD.,
a
corporation incorporated under the laws of the Province of Ontario,
(hereinafter
referred to as the “Assignor”),
OF
THE
FIRST PART,
-
and
-
·,
a
corporation incorporated under the laws of ·,
(hereinafter
referred to as the “Assignee”),
OF
THE
SECOND PART.
WHEREAS
the Assignor and the Assignee have entered into an agreement of purchase
and
sale made as of the · day of
·,
2006 (such
agreement, as amended, supplemented and/or restated to the date hereof, the
“Purchase Agreement”) pursuant to which the Assignee has agreed
to purchase from the Assignor, and the Assignor has agreed to sell to the
Assignee, the Subject Assets;
AND
WHEREAS pursuant to the Purchase Agreement, the Assignor has agreed to execute
and deliver this assignment of its interest in the Assigned Leases (as defined
below);
NOW
THEREFORE in consideration of the mutual covenants and agreements hereinafter
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby covenant
and
agree as follows:
1. Definitions. Unless
otherwise defined herein, all capitalized terms used in this agreement (the
“Agreement”) shall have the respective meanings ascribed to
them in the Purchase Agreement. In this Agreement,
“Property” means the property municipally known as 000
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx and more fully described in
Schedule A hereto.
2. Assignment. Subject
to Section 7.4 of the Purchase Agreement, the Assignor hereby assigns and
transfers unto the Assignee all of the Assignor's right, title and interest
in,
to and
under
the
Leases relating to the Property, all of the foregoing being listed in
Schedule B hereto (collectively, the "Assigned
Leases"). Except as provided in Section 6.1 of the
Purchase Agreement, the Assigned Leases are being assigned to and accepted
by
the Assignee on an "as is - where is" basis as provided for in Subsection
2.4(c)
and Section 6.4 of the Purchase Agreement and without any representations
or warranties (express or implied) of any nature whatsoever with respect
to the
Assigned Leases or any aspect thereof including, without limitation, the
Assignor's interest therein, the Assignor's ability to assign the Assigned
Leases or the good standing of the parties thereunder. The provisions
of Section 6.4 of the Purchase Agreement are applicable to this Agreement
and the Assignee hereby unconditionally and, without limiting the foregoing
provisions of this sentence, irrevocably waives any and all actual or potential
rights that the Assignee might have against the Assignor regarding any form
of
warranty, express or implied, of any type, other than those expressly set
out in
Section 6.1 of the Purchase Agreement relating to the Assigned
Leases.
3. Assumption. The
Assignee hereby accepts the assignment and transfers contained in Section
2
hereof and covenants and agrees with the Assignor that, from and after the
date
hereof, the Assignee will observe, perform and fulfill each and every covenant,
proviso, obligation, term and condition of the Assignor in, to and under
the
Assigned Leases that is applicable at any time from and including the date
of
this Agreement to the same extent as if it and the Assignor had both been
originally named as a party to the Assigned Leases in the place of the Assignor
(or the Assignor's predecessor in title, if applicable) including, without
limiting the generality of the foregoing, the covenant to pay, any real estate
or leasing commissions, tenant inducements, tenant allowances and/or early
termination fees, in each case if any, irrespective of when the obligation
to
pay same first arose. The Assignee hereby agrees to fully indemnify
and save harmless the Assignor from and against any and all liabilities,
damages, costs, expenses, causes of action, suits, claims and judgments arising
from or in connection with, or resulting from, any breach by the Assignee
of its
obligations hereunder and/or any act or omission of the Assignee or those
for
whom the Assignee is legally responsible with respect to the Assigned Leases
or
the Property.
4. Successors
and Assigns. This Agreement shall enure to the benefit
of and shall be binding upon the parties hereto and their respective successors
and assigns.
5. Governing
Law. This Agreement shall be construed and enforced in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein and shall be treated in all respects as an Ontario
contract.
6. Counterparts. This
Agreement may be executed in several counterparts and by facsimile transmission
of an originally executed document, each of which shall be deemed to be an
original, and all such counterparts shall constitute one and the same
instrument.
7. Headings,
Extended Meanings. The headings in this Agreement are
inserted for convenience of reference only and shall not constitute a part
hereof and are not to be considered in the interpretation hereof. In
this Agreement, words importing the singular include the plural and vice
versa; words importing the masculine gender include the feminine and
vice versa; and words importing persons include firms or corporations
and vice versa.
- 2
-
IN
WITNESS WHEREOF the parties have executed this Agreement as of the date first
mentioned.
|
DOMGROUP
LTD.
|
|
|
By:____________________________
Name: n
Title: n
|
|
|
I have
authority to bind the Corporation
|
|
|
[NAME
OF ASSIGNEE]
|
|
|
By: ____________________________
Name: n
Title:
n
|
|
|
By: ____________________________
Name: n
Title:
n
I/We
have authority to bind the Corporation
|
- 3
-
SCHEDULE
A
LANDS
LEGAL
DESCRIPTION
Property
Identifier
No.: Lots
43-46 58279-0116(LT)
Lot 47 58279-0115
(LT)
Lots
43,
44, 45, 46 and 00 Xxxx xx Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx Xxxx 00, Xxxx xx
Xxxxxxxxxxx, Xxxxxx of Simcoe.
SCHEDULE
B
LIST
OF ASSIGNED LEASES
1. Lease,
dated January 5, 1993 between
Domgroup Properties Ltd. (now Domgroup Ltd.), as landlord, and Royal Bank
of
Canada, as tenant, in respect of premises on the Property, as amended by
a lease
renewal agreement made as of the 1st
day of July, 2003.
2. Lease,
dated April 1, 1994, between
Domgroup Properties Ltd. (now Domgroup Ltd.), as landlord, and First Choice
Haircutters Ltd., as tenant, in respect of premises on the Property, as amended
by a lease renewal agreement made as of February 17, 1999 and as further
amended
by a lease extension agreement made December 3, 2003.
SCHEDULE
G
FORM
OF XXXX OF SALE
TO: ·
(the
“Purchaser”)
RE: 000
XXXXXXXXXX XXXXXX, XXXXXXXXXXX, XXXXXXX
In
consideration of the sum of $2.00 and for good and other valuable consideration
(the receipt and sufficiency of which are hereby acknowledged) the undersigned
hereby sells, assigns and transfers to the Purchaser all of the undersigned’s
right, title and interest in and to the Chattels.
The
Purchaser expressly acknowledges that the Chattels are being sold, assigned
and
transferred to and purchased and assumed by the Purchaser “as is-where is” and
without any representation or warranty (express or implied) of any nature
whatsoever except as provided in Section 6.1 of the Purchase Agreement (as
defined below), and the provisions of Subsection 2.5(c) and Sections 6.4
and
8.13 of the agreement of purchase and sale made as of the 7th day
of November, 2006 between the undersigned and the Purchaser, as
amended, supplemented and/or restated prior to the date hereof (the
“Purchase Agreement”) are applicable to this Xxxx of
Sale.
All
capitalized terms used herein have the meaning ascribed to them in the Purchase
Agreement.
DATED
this · day of
·,
2007.
|
DOMGROUP
LTD.
|
|
|
By: ____________________
Name: ·
Title:
·
|
|
|
I
have authority to bind the Corporation
|
|
SCHEDULE
H
FORM
OF ASSIGNMENT AND ASSUMPTION OF PERMITTED ENCUMBRANCES
MEMORANDUM
OF AGREEMENT made as of the ___ day of ______, 2007.
B
E T W E
E N:
DOMGROUP
LTD.,
a
corporation incorporated under the laws of the Province of Ontario,
(hereinafter
referred to as the “Assignor”),
OF
THE
FIRST PART,
-
and
-
·,
a
corporation incorporated under the laws of ·,
(hereinafter
referred to as the “Assignee”),
OF
THE
SECOND PART.
WHEREAS
the Assignor and the Assignee have entered into an agreement of purchase
and
sale made as of the · day of
·,
2006 (such
agreement, as amended, supplemented and/or restated to the date hereof, the
“Purchase Agreement”) pursuant to which the Assignee has agreed
to purchase from the Assignor, and the Assignor has agreed to sell to the
Assignee, the Subject Assets;
AND
WHEREAS pursuant to the Purchase Agreement, the Assignor has agreed
to execute and deliver this assignment of its interest in the Permitted
Encumbrances (as defined below);
NOW
THEREFORE in consideration of the mutual covenants and agreements hereinafter
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby covenant
and
agree as follows:
1. Definitions. Unless
otherwise defined herein, all capitalized terms used in this agreement (this
“Agreement”) shall have the respective meanings ascribed to
them in the Purchase Agreement. In this Agreement,
“Property” means the property described in Schedule A
hereto.
2. Assignment. The
Assignor hereby assigns absolutely and transfers unto the Assignee all of
the
Assignor’s right, title and interest in, to and under the Permitted
Encumbrances that relate to the Property. The Permitted
Encumbrances are being assigned to and assumed by the Assignee subject to,
and
in accordance with the terms of the Purchase Agreement, including, without
limitation, Sections 2.5 and 6.4 thereof.
3. Assumption
and Indemnity. The Assignee hereby accepts the
assignment contained in Section 2 hereof. The Assignee hereby agrees
to fully indemnify and save harmless the Assignor from and against any and
all
Claims arising from or in connection with, or resulting from, (i) any breach
by
the Assignee of its obligations under the Permitted Encumbrances from and
after
Closing and/or any act or omission of the Assignee or those for whom the
Assignee is legally responsible with respect to the Permitted Encumbrances
occurring from and after Closing, and (ii) the failure by the Assignee to
obtain
the necessary consents or approvals for the assignment of the Permitted
Encumbrances.
4. Successors
and Assigns. This Agreement shall enure to
the benefit of and shall be binding upon the parties hereto and their
respective successors and assigns.
5. Governing
Law. This Agreement shall be construed and enforced in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein and shall be treated in all respects as an Ontario
contract.
6. Counterparts. This
Agreement may be executed in several counterparts and may be delivered by
facsimile transmission, each of which shall be deemed to be an original,
and all
such counterparts shall constitute one and the same instrument.
7. Headings,
Extended Meanings. The headings in this Agreement are
inserted for convenience of reference only and shall not constitute a part
hereof and are not to be considered in the interpretation hereof. In
this Agreement, words importing the singular include the plural and vice
versa;
words importing the masculine gender include the feminine and vice versa;
and
words importing persons include firms or corporations and vice
versa.
- 2
-
IN
WITNESS WHEREOF the parties have executed this Agreement as of the date first
mentioned.
|
DOMGROUP
LTD.
|
|
|
By: ___________________
Name: ·
Title:
·
|
|
|
I
have authority to bind the Corporation
|
|
|
[NAME
OF ASSIGNEE]
|
|
|
By: ___________________
Name: ·
Title:
·
|
|
|
By: ___________________
Name: ·
Title:
·
I/We
have authority to bind the Corporation
|
- 3
-
SCHEDULE
A
LEGAL
DESCRIPTION OF THE PROPERTY
Property
Identifier
No.: Lots
43-46 58279-0116(LT)
Lot 47 58279-0115
(LT)
Xxxx
00,
00, 00, 00 xxx 00 Xxxx xx Xxxxxxxxxx Street, Registered Plan 73, Town of
Collingwood, County of Simcoe.
SCHEDULE
I
FORM
OF DEPOSIT AUTHORIZATION
TO:
DOMGROUP LTD.
AND
TO: DAVIES
XXXX XXXXXXXX & XXXXXXXX LLP
Unless
otherwise defined herein, all capitalized terms used herein shall have the
respective meanings ascribed to them in the agreement of purchase and sale
made
November 7, 2006, between Domgroup Ltd. as vendor and Charis Developments
Ltd. as purchaser with respect to the Subject Assets
referred to therein (the “Purchase Agreement”).
You
are
hereby directed to invest the amount of $· into a
redeemable
term deposit at the Canadian Imperial Bank of Commerce which comes due on
[insert Due Diligence Date], which amount together with accrued
interest is to be rolled over at maturity in an interest bearing account
until
the Closing Date, unless otherwise notified, with interest to be for the
exclusive benefit of Purchaser and otherwise held and released in accordance
with the terms of the Purchase Agreement.
DATED
the
· day of
·,
2006.
|
CHARIS
DEVELOPMENTS LTD.
|
|
|
By:
_____________________
Name: ·
Title:
·
|
|
|
By:
_____________________
Name: ·
Title:
·
I/We
have authority to bind the Corporation
|
SCHEDULE
J
FORM
OF TENANT ESTOPPEL
|
TO:
|
DOMGROUP
LTD. (the
"Landlord")
|
|
RE:
|
Lease
between the Landlord and [tenant] dated 9
for premises located at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx
(the
"Property") [insert details of all written and
executed amendments, assignments, subleases etc., if any] (the
"Lease").
|
|
1.
|
The
commencement date
was: _____________________________________.
|
|
2.
|
The
expiry date is _____________________________________ and there
is no
renewal option or other right to extend such date except as
follows: _______________. [If necessary, add statement
regarding right of first refusal/offer on
space.]
|
|
3.
|
The
gross leaseable area of the leased premises is ___________________
square
feet.
|
|
4.
|
The
undersigned is in possession of the leased premises, and has paid
all rent
payable pursuant to the Lease to ____________, 2006, subject to
any
applicable year end adjustments in respect of amounts other than
annual
minimum rent.
|
|
5.
|
Minimum
monthly rent is
_______________________________.
|
|
6.
|
The
undersigned has delivered to the Landlord $____________ representing
a
security deposit which amount has not been applied to any rent
payable
under the Lease.
|
|
7.
|
The
undersigned is not aware of any default by the Landlord in completing
all
construction, if any, required to be done by it in connection with
the
leased premises.
|
|
8.
|
There
are no tenant inducements, tenant allowances, lease takeover obligations,
or other incentives payable or to be performed by the Landlord
outstanding
in connection with the Lease and no future rent-free or rent abatement
periods under the Lease [except as
follows: 9].
|
|
9.
|
The
undersigned has no notice of any default by the Landlord under
the Lease,
including any default that will give rise to any claim to any deduction,
abatement or set-off of any rent or other amount due and payable
under the
Lease.
|
|
10.
|
The
undersigned has no options to purchase the Property or any part
thereof or
interest therein or any right of first refusal, first offer or
similar
rights relating to the purchase of the Property [except as
follows: 9].
|
|
11.
|
The
Lease is in full force and effect and is the entire agreement between
the
Landlord and the undersigned governing their respective rights
and
obligations in respect of the
leased
|
|
|
premises,
and there are no modifications or changes in, or assignments of,
the Lease
other than those listed above, if applicable, nor has all or any
part of
the leased premises been sublet by the undersigned other than as
listed
above.
|
|
12.
|
The
undersigned acknowledges that this document may be relied upon
by Landlord
and its successors and assigns and also any entity taking security
on the
above-noted property from the Landlord or its successors or
assigns.
|
DATED
this____ day of __________, 2006.
|
TENANT
|
|
|
By:
_____________________
Name:
Title:
|
- 2
-
