PURCHASE AND SALE AGREEMENT
This Agreement is dated as of December 7, 2005.
B E T W E E N:
AMRAM'S DISTRIBUTING LTD.
(the "VENDOR")
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BENTALL INVESTMENT MANAGEMENT LP
(the "PURCHASER")
For good and valuable consideration, the receipt and adequacy of which are
acknowledged, the parties covenant and agree as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
Certain words and phrases which are used in this Agreement have the meanings
which are ascribed to them, respectively, in this Section 1.1.
"ABN SECURITY" means the Charge/Mortgage of land in favour of ABN AMRO BANK
N.V., Canada Branch registered against the Property, and charging, inter-alia,
the Purchase Assets, as Instrument No. PR878823 on June 30, 2005 and any
documents and collateral security relating thereto.
"AGREEMENT", "hereto", "hereof", "herein", "hereby", "hereunder" and similar
expressions refer to this Purchase Agreement and the attached Schedules, as
amended from time to time, and "Article", "Section" "Subsection", "Paragraph",
"Subparagraph" and "Schedule" followed by a number or letter refer to the
specified article, section, subsection, paragraph, subparagraph or schedule, as
the case may be, of this Agreement.
"AMRAM'S LEASE" means a lease of the entire Property between the Purchaser as
landlord and the Vendor as tenant that provides for occupancy of the Property by
the Vendor from the Closing Date, and includes provisions consistent with the
terms in Schedule "A".
"BUILDING" means all buildings, structures, fixtures, erections and fixed
improvements, servicing, parking areas, parking facilities and other
improvements located on, in or under the Lands, including without limitation the
Fixtures, but expressly excluding the Excluded Assets.
"BUSINESS DAY" means any day other than a Saturday, Sunday or statutory holiday
in Ontario.
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"CLOSING" means the closing of the purchase and sale of the Purchase Assets
contemplated by this Agreement, including without limitation, the payment of the
Purchase Price and the delivery of the documents to be delivered on the Closing
Date.
"CLOSING DATE" means December 22, 2005, or such other date as is agreed to by
the Vendor and the Purchaser.
"CONTRACTS" means all contracts and agreements entered into by or on behalf of
the Vendor with third parties in respect of the maintenance, repair and
operation of the Property.
"DEPOSIT" has the meaning ascribed thereto in subsection 2.2(d).
"DUE DILIGENCE DATE" means December 21, 2005.
"DUE DILIGENCE DOCUMENTS" means the following documents relating to the
Property, in each case to the extent in the possession or control of the Vendor:
all Warranties; all Surveys; copies of all litigation files and work
orders/deficiency notices relating to the Property, if any; all Plans and
Permits; copies of all soil tests, environmental studies, engineering studies
and building condition reports; copies of operating statements and budgets for
the Property for 2004 and 2005; copies of any contracts or invoices for capital
expenditures made in 2004 or 2005 in respect of the Property by the Vendor;
copies of the 2004 and 2005 realty tax bills and any and all files or
information in respect of any business or realty tax contestations for such
taxation years.
"ENVIRONMENTAL LAW" means all applicable federal, provincial, municipal and
local laws, including without limitation, all statutes, by-laws and regulations
and all orders, directives and decisions rendered by, and policies,
instructions, guidelines and similar guidance of, any ministry, department or
administrative or regulatory agency relating to the protection of the
environment, occupational health and safety or the manufacture, processing,
distribution, use, treatment, storage, disposal, packaging, transport, handling,
containment, clean-up or other remediation or corrective action of any Hazardous
Material.
"EXCLUDED ASSETS" means the warehouse conveyor systems, the warehouse racking,
the warehouse compactor and the showroom track lighting, all of which are
located on or in the Building or elsewhere in, on or under the Lands, the
parties acknowledging that the Excluded Assets shall not form part of the
Purchase Assets hereunder and shall remain the property of the Vendor.
"FIXTURES" means all fixtures located on or in the Building or elsewhere in, on
or under the Lands (excluding the Excluded Assets), including, without
limitation, all structures, erections, fixed improvements, facilities,
installations, electric light fixtures, plumbing fixtures, furnace burner
equipment, oil tanks, heating and ventilating and air-conditioning equipment,
air handling equipment, boiler machinery and equipment, sprinklers, drainage and
other mechanical and electrical systems, water, gas, sewage, telephone and other
communication facilities and electric power and all interior fixed partitions
and all rugs, carpeting and floor coverings attached in any way.
"GOVERNMENTAL AUTHORITY" means any federal, provincial or municipal government,
parliament, legislature, or any regulatory authority, agency, ministry,
department, commission or board or other representative thereof, or any
political subdivision thereof, or any court or (without limitation to the
foregoing) any other law, regulation or rule-making entity, having jurisdiction
over the relevant circumstances, or any person acting under the authority of any
of the foregoing (including, without limitation, any arbitrator).
"GST" means goods and services tax under the Excise Tax Act (Canada).
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"GST DECLARATION AND INDEMNITY" means the GST Declaration and Indemnity attached
hereto as Schedule "B".
"HAZARDOUS MATERIAL" means any hazardous substances or any pollutant or
contaminant, toxic or dangerous waste, substance or material (including, without
limitation, asbestos and poly-chlorinated biphenyls), natural or man made,
dangerous to public health, crops, water supplies or soil quality, and includes,
without restricting the generality of the foregoing, substances declared to be
hazardous or toxic (including without limitation, substances which if found in
certain minimum quantities are declared to be hazardous or toxic) under any
Environmental Law.
"LANDS" means the lands in the City of Brampton, in the Province of Ontario
municipally known as 00 Xxxxxxxxx Xxxxx, and described as PIN Nos.
14021-0257(LT) and 14021-0155(LT).
"LEASES" means offers to lease, agreements to lease, leases, subleases, renewals
of leases, and other rights or licenses granted to possess or occupy space
within the Property together with all security, guarantees and indemnities of
the tenants', subtenants' and licensees' obligations thereunder, in each case as
amended, renewed or otherwise varied.
"NOTICE" has the meaning set out in Section 6.8.
"PERMITS" means, to the extent in the possession or control of the Vendor, all
permits, consents, licences, certificates, approvals, authorizations,
registrations, agreements or any item with similar effect issued or granted to
the Vendor by any Governmental Authority respecting environmental matters
concerning the Property or otherwise relating to the operation or occupancy of
the Property.
"PERMITTED ENCUMBRANCES" means those encumbrances listed in Schedule "C".
"PERSON" means an individual, a partnership, a corporation, a trust, an
unincorporated organization, a government or any department or agency thereof
and the heirs, executors, administrators or other legal representatives of an
individual.
"PLANS" means, to the extent in the possession or control of the Vendor, all
plans, drawings, site plans, specifications and other similar documentation
relevant to the Property.
"PROPERTY" means, collectively, the Lands and the Building.
"PURCHASE ASSETS" means, collectively: the freehold interest in the Property;
the right, title and interest of the Vendor, if any, in the Plans, Permits and
Survey; the Warranties; and the Fixtures , but expressly excluding the Excluded
Assets which for greater certainty, notwithstanding any provision contained
herein or in the Amram's Lease or any legal doctrine to the contrary, shall
remain the property of the Vendor. For greater certainty, the parties
acknowledge that the Purchase Assets shall not include any of the Vendor's
personal property and assets (including, without limitation, inventory,
equipment, consumer goods, accounts and proceeds, but which personal property
and assets shall not include any Fixtures), all of which shall remain the
property of the Vendor.
"PURCHASE PRICE" means the purchase price for the Property as set out in Section
2.2.
"PURCHASER" means Bentall Investment Management LP.
"PURCHASER'S CONDITIONS" has the meaning set out in Section 3.1.
"PURCHASER'S SOLICITOR" means XxXxxxxx, Xxxxxxxx XXX, Xxxxxxx, Xxxxxxx, Suite
4700, 00 Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxxx-Xxxxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxx,
X0X 0X0, Attention:
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Xxxxx Xxxxxxxxx, or such other firm or firms of solicitors or agents as are
appointed by the Purchaser from time to time and notice of which is provided to
the Vendor.
"SURVEY" means, collectively, to the extent in the possession or control of the
Vendor, all surveys, site plans and building location plans of the Property.
"VENDOR" means Amram's Distributing Ltd.
"VENDOR'S CONDITIONS" has the meaning set out in Section 3.2.
"VENDOR'S SOLICITOR" means Osler, Xxxxxx & Harcourt LLP, Suite 6600, First
Canadian Place, X.X. Xxx 00, Xxxxxxx, Xxxxxxx X0X 0X0, Attention: Xxxxxxx X.
Xxxx or such other firm or firms of solicitors or agent as are appointed by the
Vendor from time to time and notice of which has been provided to the Purchaser.
"WARRANTIES" means all existing warranties and guarantees in respect of part or
parts of the Building, if any, including for the construction and the operation
of the Building.
ARTICLE 2
PURCHASE AND SALE
2.1 PURCHASE AND SALE
The Vendor hereby offers to sell, transfer, assign, set over and convey the
Purchase Assets to the Purchaser and the Purchaser hereby agrees to purchase,
acquire and assume the Purchase Assets from the Vendor, at the Purchase Price,
subject to adjustments as provided in this Agreement. The respective agreements
of the Vendor and the Purchaser set out in this Section 2.1 create and
constitute a binding agreement of purchase and sale of the Purchase Assets on
and subject to the provisions of this Agreement.
2.2 PURCHASE PRICE
The Purchase Price for the Purchase Assets shall be Ten Million, Two Hundred
Thousand Dollars ($10,200,000), and shall be paid as follows:
(a) $100,000 (the "FIRST DEPOSIT"), by cheque to be delivered to the
Vendor's Solicitor, in trust, on the second Business Day after the
date hereof;
(b) $500,000 (the "SECOND DEPOSIT"), by cheque to be delivered to the
Vendor's Solicitor, in trust, on the Due Diligence Date if the
Purchaser has waived or otherwise is satisfied with those
Purchaser's Conditions that are to be satisfied or waived by the Due
Diligence Date;
(c) The First Deposit and the Second Deposit shall be held by the
Vendor's Solicitor as a deposit in trust and invested in a term
deposit or daily interest savings account pending completion or
other termination of this Agreement with interest accruing to the
Purchaser to be credited on account of the Purchase Price on
Closing, unless otherwise stated herein;
(d) In the event this Agreement is not completed for any reason other
than the failure of the Purchaser to perform any of the covenants
and agreements on the Purchaser's part to be performed hereunder,
the First Deposit and Second Deposit, together with
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any interest accrued thereon, shall be immediately returned to the
Purchaser without deduction. In the event this Agreement is not
completed by reason of the failure of the Purchaser to perform any
of the covenants and agreements on the Purchaser's part to be
performed hereunder, then, except as expressly provided for herein,
the First Deposit and the Second Deposit (collectively the
"DEPOSIT") and the interest accrued on the Deposit shall be paid by
the Vendor's Solicitor to the Vendor as liquidated damages as a
genuine pre-estimate of the Vendor's damages;
(e) The balance of the Purchase Price (the "BALANCE") and any amount
held in trust by the Vendor's Solicitor on account of the Deposit,
subject to adjustments pursuant to this Agreement, shall be paid
either by solicitor's certified trust cheque or by wire transfer
from such solicitor's trust account, on the Closing Date.
2.3 ADJUSTMENTS
(a) General. Adjustments shall be made as of the Closing Date and shall
be paid on the Closing Date. The Vendor shall be responsible for all
expenses and entitled to all revenue accrued from the Purchase
Assets for that period ending on the day prior to the Closing Date.
The Purchaser shall receive all of the revenue and (save as
otherwise provided by the terms of the Amram's Lease) be responsible
for all of the expenses in respect of the Purchase Assets from and
after the Closing Date.
(b) Statement of Adjustments. A statement of adjustments shall be
delivered to the Purchaser by the Vendor at least five (5) Business
Days prior to the Closing Date and shall have annexed to it details
of the calculations used by the Vendor to arrive at all debits and
credits on the statement of adjustments, and shall be approved by
the Purchaser. The Vendor shall give the Purchaser and its
representatives reasonable access to the Vendor's working papers and
back-up materials in order to confirm the statement of adjustments.
(c) Adjustments. The Vendor shall cause all providers of utilities to
render their accounts to the Vendor for the period commencing on the
Closing Date. Save as otherwise provided by the terms of the Amram's
Lease, the adjustments shall include income and operating expenses,
prepaid expenses relating to the Property, amounts paid and payable
under the Permitted Encumbrances, lot levies, taxes (including local
improvement charges and assessments and business taxes) and other
adjustments established by the usual practice in Brampton, Ontario
for the purchase and sale of a property similar to the Property. In
addition, the adjustments shall include the other matters referred
to in this Agreement which are stated to be the subject of
adjustments, and shall exclude the other matters in this Agreement
which are stated not to be the subject of an adjustment.
(d) Insurance. It is agreed that no adjustments shall be made with
respect to insurance premiums. The Purchaser shall not assume the
Vendor's insurance policy. Insurance shall remain the responsibility
of the Vendor until the Closing Date and shall be maintained by the
Vendor as provided in the Amram's Lease from and after the Closing.
(e) Tax Appeals. In the event that there are any realty or business tax
appeals for the period prior to the Closing Date, the Vendor may, at
its option and its sole expense,
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continue such appeals and shall be entitled to receive any payment
resulting therefrom.
(f) Post-Closing Adjustments. 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 and approved by Purchaser, each
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 the Post-Closing Adjustments
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 absence of agreement by the parties hereto, the final amount of
any Post-Closing Adjustment shall be determined pursuant to Section
2.3(i).
(g) Undertaking to Readjust. The Vendor and Purchaser shall execute and
deliver on the Closing Date an undertaking to readjust and pay the
amount of any adjustments or other Post-Closing Adjustments as may
be owing pursuant to the provisions of this Agreement.
(h) Other Errors, Omissions and Changes. The Vendor and the Purchaser
agree to readjust after the Closing Date, any errors, omissions or
changes in the final statement of adjustments delivered by the
Vendor on the Closing Date and not otherwise provided for in this
Section 2.3, upon either party delivering to the other a complete
statement proving such error, omission or change, provided that, in
any event, such final adjustment and all Post-Closing Adjustments
shall be made no later than 365 days after the Closing Date (the
"FINAL ADJUSTMENT DATE") and no claim for any re-adjustment may be
made by either party thereafter.
(i) Auditor. In the absence of agreement by the parties hereto in
respect of any adjustments or Post-Closing Adjustments to be made
pursuant to Article 2, the amount of any such adjustments or
Post-Closing Adjustments shall be determined by a firm of auditors
selected by the parties, acting reasonably, which determination
shall be final and binding on the parties hereto. The cost of such
determination by such auditors shall be shared equally between the
parties hereto.
(j) Lease. Notwithstanding the foregoing provisions of this Section 2.3,
to the extent the Vendor would be entitled to a credit on the
statement of adjustment for an item for which it would then be
responsible to pay as tenant under the Amram Lease, no adjustment
shall be given to the Vendor for such item.
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ARTICLE 3
CONDITIONS
3.1 CONDITIONS OF THE PURCHASER
The Purchaser's obligation to carry out the transactions contemplated by this
Agreement is subject to fulfilment of each of the following conditions, which
conditions are for the sole benefit of the Purchaser and which may be waived by
the Purchaser in its sole and absolute discretion (the "PURCHASER'S
CONDITIONS"):
(a) Amram's Lease. By December 13, 2005, the Vendor and the Purchaser
shall have settled the form and content of the Amram's Lease that is
to be executed on the Closing Date on terms and conditions
acceptable to the Purchaser, acting reasonably. The Purchaser will
prepare an initial draft of the Amram's Lease forthwith and shall
deliver a copy thereof to the Vendor no later than two (2) Business
Days following the date hereof.
(b) Approval. By December 16, 2005, the investment committee of the
Purchaser shall have approved this transaction, which approval shall
be given or withheld in such committee's sole, absolute and
subjective discretion;
(c) Due Diligence. (i) By the Due Diligence Date, but subject to
subparagraph (c)(ii), the Purchaser shall have conducted whatever
investigations and searches the Purchaser, acting reasonably, deems
advisable with respect to the Purchase Assets, including, without
limitation, all investigations, inspections, searches, inquiries and
tests relating to title to the Property, compliance by the Property
with work orders and zoning, plans of surveys, physical and
engineering inspections of the Property, compliance with all
applicable laws and regulations (including, but not limited to,
"applicable laws" within the meaning of the Building Code Act), any
agreements with third parties affecting the Property, environmental
audits, soil tests, financial audits, operating costs analysis,
review of the Due Diligence Documents, Permitted Encumbrances, and
any other matters of interest to the Purchaser with respect to the
Property (collectively the "DUE DILIGENCE") and shall have been
satisfied, in its sole, absolute and subjective discretion, with the
results of the Due Diligence. If the Purchaser is so satisfied with
its due diligence, it shall give notice in writing of such approval
to the Vendor on or prior to the Due Diligence Date. If such notice
is not given by the Purchaser on or prior to such time, then this
Agreement shall terminate, be null and void and of no further force
and effect whatsoever, the Purchaser and the Vendor shall be
released from all obligations under this Agreement (except for those
obligations which survive the termination of this Agreement) and the
First Deposit shall be immediately returned to the Purchaser,
without deduction, with any accrued interest thereon;
(ii) Notwithstanding the provisions of subparagraph (c)(i), if the
Purchaser's Due Diligence identifies any issue or issues which, in
the aggregate, may be remedied for a cost not in excess of $250,000
(which cost shall be determined by the Purchaser's consultants,
acting reasonably), the Purchaser shall not be entitled pursuant to
subparagraph (c)(i) to terminate this Agreement, but at Closing, (i)
the Vendor shall provide its undertaking to remedy all such issues,
at its cost, no later that March 31,
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2006, and (ii) in respect of any such remedial cost in excess of
$100,000, the amount of such excess shall be held back from the
Purchase Price until such time as the Vendor has complied with its
undertaking, at which time such holdback funds shall be paid
forthwith to the Vendor.
(d) Representations and Warranties. On Closing, the representations or
warranties of the Vendor set out in Section 4.1 shall be true and
accurate in all material respects as if made on and as of the
Closing Date and there shall have been no material changes as of the
Closing Date to any of such representations and warranties;
(e) Delivery of Documents. All other documents or copies of documents
required to be executed or delivered to the Purchaser pursuant to
this Agreement shall have been so executed or delivered or both when
required pursuant to this Agreement.
(f) Performance of Terms, Covenants and Conditions. On Closing, 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.
(g) Title to the Property. On Closing, the Vendor shall deliver to the
Purchaser good and marketable title to the Property in fee simple,
free and clear of all mortgages, liens, charges, encumbrances,
restrictions, leases and any other claims and interests whatsoever
except for the Permitted Encumbrances and the Amram's Lease.
If the Purchaser does not deliver to the Vendor notice in writing of
satisfaction or waiver of the Purchaser's Conditions within the time required,
this Agreement shall be automatically terminated, neither party shall be under
any further obligation to the other to complete the transaction contemplated by
this Agreement and any Deposits paid by the Purchaser together with interest
accrued thereon shall be forthwith returned to the Purchaser. The Purchaser's
Conditions listed in subparagraphs 3.1(d), (e), (f) and (g) shall be deemed to
be satisfied if Closing occurs.
3.2 CONDITIONS OF THE VENDOR
The Vendor's obligations to carry out the transactions contemplated by this
Agreement is subject to fulfilment of each of the following conditions, which
conditions are for the sole benefit of the Vendor and which may be waived by the
Vendor in its sole and absolute discretion (the "VENDOR'S CONDITIONS"):
(a) Amram's Lease. By December 13, 2005, Vendor and Purchaser shall have
settled the form and content of the Amram's Lease that is to be
executed on the Closing Date on terms and conditions acceptable to
the Vendor, acting reasonably;
(b) Representations and Warranties. On Closing, the representations and
warranties of the Purchaser set out in Section 4.2 shall be true and
accurate in all material respects as if made on and as of the
Closing Date and there shall be no material changes as of the
Closing Date to any of such representations and warranties;
(c) Delivery of Documents. All other documents or copies of documents to
be executed or delivered to the Vendor pursuant to this Agreement
shall have been so executed or delivered or both when required
pursuant to this Agreement.
(d) Performance of Terms, Covenants and Conditions. On Closing, all of
the 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.
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If the Vendor does not deliver to the Purchaser notice in writing of
satisfaction or waiver of the Vendor's Conditions within the time required, this
Agreement shall be automatically terminated, neither party shall be under any
further obligation to the other to complete the transaction contemplated by this
Agreement and any Deposits paid by the Purchaser together with interest accrued
thereon shall be forthwith returned to the Purchaser. The Vendor's Conditions
listed in subparagraphs 3.2(b), (c) and (d) shall be deemed to be satisfied if
Closing occurs.
3.3 REASONABLE EFFORTS TO SATISFY CONDITIONS
Except for the Purchaser's Condition listed in subparagraph 3.1(b), the
Purchaser and the Vendor shall use reasonable efforts to satisfy the conditions
set forth in Sections 3.1 and 3.2, respectively.
3.4 ABN SECURITY
In the event a discharge of the ABN Security as against the Purchase Assets is
not available on Closing, the Vendor agrees to deliver, and the Purchaser agrees
to accept on Closing (a) an undertaking of the Vendor's Solicitors to obtain
from the Purchase Price payable on Closing, and to register within ninety (90)
days following Closing time, a discharge of the ABN Security as against the
Purchase Assets in registrable form, (b) a statement prepared by ABN AMRO BANK
N.V., Canada Branch setting out the balance required to obtain such discharge,
(c) a direction executed by the Vendor directing payment to ABN AMRO BANK N.V.,
Canada Branch of the amount set out in such statement from the Purchase Price
payable on Closing, and (d) an undertaking by the Vendor to pay to ABN AMRO any
further amounts required in order to obtain such discharges. All undertakings
and directions shall be in the form required by the Purchaser, acting
reasonably.
3.5 DISCHARGES
On or before Closing, and subject to section 3.4, the Vendor shall discharge all
liens, charges, mortgages, security interests and other encumbrances affecting
the Purchase Assets, other than Permitted Encumbrances, at its sole cost and
expense.
ARTICLE 4
COVENANTS, REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES
The Vendor represents and warrants to and in favour of the Purchaser that, as of
the date of this Agreement:
(a) Status. Vendor is a corporation duly incorporated and subsisting
under the laws of Canada and has the corporate power, authority,
right and capacity to enter into, execute and deliver this Agreement
and to carry out the transactions and enter into the other
agreements contemplated by this Agreement and to own the Purchase
Assets;
(b) Authorization. The transactions and other agreements contemplated by
this Agreement have been duly and validly authorized by all
requisite corporate proceedings of the Vendor;
(c) No Default under Other Agreements. Neither the execution of this
Agreement or the Amram's Lease nor the performance thereof by the
Vendor will result in a breach of any term or provision or
constitute a default under: the constating documents, or by-
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laws of the Vendor; or any indenture, mortgages, deed of trust or
any other agreement to which the Vendor is a party or by which it is
bound.
(d) No Litigation. There are no actions, suits or proceedings commenced
or, to the knowledge of the Vendor, threatened against or affecting
the Purchase Assets or the occupancy or use of the Property by the
Vendor, in law or in equity, which do or will affect the validity of
this Agreement or the Amram's Lease or any transaction or other
agreement provided for in this Agreement, the title to the Purchase
Assets or the conveyance of the Purchase Assets to the Purchaser;
(e) Consents. There are no consents or approvals necessary to the
transfer, assignment and conveyance of the Purchase Assets that have
not been (or will not as at Closing be) obtained and provided to the
Purchaser and no Person has any option or right of first refusal to
purchase the Purchase Assets or any part thereof;
(f) Leases. On the Closing Date, the only Lease affecting or registered
against title to the Property shall be the Amram's Lease;
(g) Contracts. On the Closing Date, there shall be no Contracts that
affect the Purchase Assets (other than the Permitted Encumbrances)
which the Purchaser shall be obligated to assume;
(h) No Expropriation. Neither the Property nor any part thereof has been
expropriated and the Vendor has not received written notice of any
contemplated expropriation proceedings affecting the Property or any
part of the Property;
(i) Claims re: Environmental Matters. The Vendor has not received any
written notice which remains outstanding of any violation of any
Environmental Laws in respect of the Property and there are no
writs, injunctions, orders or judgements outstanding, or lawsuits,
claims, proceedings, actions, prosecutions, charges, or hearings
against the Vendor, relating to the discharge, deposit, escape or
release by the Vendor of any hazardous waste or contaminant (as
identified in the Environmental Laws) into the natural environment
in, on, over, under or at the Property, and there are no outstanding
orders or directions issued against the Vendor relating to
environmental matters requiring any work, repairs, construction or
capital expenditures with respect to the Property and the conduct of
the Vendor's business at the Property, nor has the Vendor received
any notice of any of the foregoing matters;
(j) Work Orders, etc. No written notice has been received by the Vendor
which remains outstanding from any Governmental Authority advising
of any defects in the construction of the Building or any
installations therein, or relating to any work order, deficiency or
non-compliance with any building restrictions, zoning bylaws, fire
codes, environmental protection legislation, or other regulation;
(k) Realty or Business Tax Appeals. Other than as may be disclosed in
writing to the Purchaser as part of the Due Diligence Documents,
neither the Vendor nor any person on behalf of the Vendor has
commenced any realty or business tax appeals in respect of any of
the Property;
(l) Non-Resident. The Vendor is not a non-resident of Canada within the
meaning of section 116 of the Income Tax Act (Canada); and
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(m) Environmental. To the best of the Vendor's knowledge, the
environmental materials provided as part of the Due Diligence
Documents (i) do not contain any material inaccuracies or omissions
and (ii) comprise all materials in the Vendor's possession or
control relating to the environmental condition of the Property. To
the best of the Vendor's knowledge, the Vendor has not released any
Hazardous Materials into the environment in, over, on, under, at or
adjacent to the Property and has not used the Property for the
treatment, handling, manufacturing, storage or disposal of Hazardous
Materials.
For the purposes of this section 4.1, "to the best knowledge of the Vendor" or
similar words means to the actual knowledge of the Vendor, after having made
enquiries solely of those employees of the Vendor who, in the normal course,
would have direct knowledge of the subject matter of the particular
representation or warranty.
4.2 REPRESENTATIONS AND WARRANTIES
Purchaser covenants, represents and warrants to the Vendor that, as of the date
of this Agreement:
(a) Status. the Purchaser is a limited partnership subsisting under the
laws of Ontario and has the necessary power, authority, right and
capacity to enter into, execute and deliver this Agreement and to
carry out the transactions and enter into the other agreements
contemplated by this Agreement and to own the Purchase Assets;
(b) Authorization. Subject to Section 3.1(b), the transactions and other
agreements contemplated by this Agreement have been duly and validly
authorized by all requisite proceedings of the Purchaser;
(c) No Default under Other Agreements. Neither the execution of this
Agreement or the Amram's Lease nor the performance thereof by the
Purchaser will result in a breach of any term or provision or
constitute a default under: the constating documents or by-laws of
the Purchaser; or any indenture, mortgages, deed of trust or any
other agreement to which the Purchaser is a party or by which it is
bound.
(d) Real Estate Agents. The Purchaser has not dealt with any broker or
agent in respect of the Property other than CB Xxxxxxx Xxxxx
Limited.
4.3 SURVIVAL OF REPRESENTATIONS
The representations and warranties contained in Sections 4.1 and 4.2 shall not
merge on Closing but shall survive beyond the Closing Date for a period of six
months. The party which has received a representation or warranty shall give
written notice to the other of each material breach of any representation or
warranty, together with details thereof, promptly after becoming aware of the
breach (whether before or after Closing) and in any event by no later than six
months after the Closing Date.
The Purchaser hereby agrees that if, at any time prior to Closing, it has actual
knowledge that any of the Vendor's representations or warranties contained
herein are untrue or inaccurate in any material respect, the Purchaser shall
forthwith give written notice thereof to the Vendor. Within three (3) Business
Days following receipt of any such notice, the Vendor shall provide the
Purchaser with written notice of the actions, if any, which the Vendor proposes
to take in respect of any such materially untrue or inaccurate representation or
warranty. If the Purchaser is not prepared to waive any such materially untrue
or inaccurate representation or warranty of which it has actual knowledge
- 12 -
prior to the Closing Date, the Purchaser's sole remedy shall be limited to
terminating this Agreement and the Purchaser shall have no right to claim for
any damages or other recourse or remedy whatsoever. The Purchaser acknowledges
and agrees that it shall not be entitled to rely on representations or
warranties of which the Purchaser has actual knowledge prior to Closing are
untrue or inaccurate or will be untrue or inaccurate at Closing. Accordingly, if
the Purchaser has actual knowledge that any representations or warranties of the
Vendor are or will be untrue or inaccurate and elects to complete the
transaction, the Purchaser shall be conclusively deemed to have waived such
representation or warranty, as the case may be.
4.4 AGENT'S FEES OR COMMISSIONS
On or after Closing, the Vendor will pay any real estate agent's fees or
commissions to CB Xxxxxxx Xxxxx Limited incurred by the Vendor in respect of the
sale of the Purchase Assets pursuant to this Agreement.
4.5 EMPLOYEES
The Purchaser shall have no liability or obligation with respect to employees of
the Vendor (the "EMPLOYEES"), none of whom shall become or be deemed to be
employees of the Purchaser.
4.6 DUE DILIGENCE
Immediately after the date of this Agreement, the Vendor shall deliver to the
Purchaser at its offices in Toronto all of the Due Diligence Documents or
legible copies thereof (save and except an updated Phase I Environmental
Assessment in respect of the Property which shall be delivered as soon as
possible). The Purchaser shall return to the Vendor all such documentation so
provided or otherwise obtained by the Purchaser forthwith if the Purchaser's
Conditions or the Vendor's Conditions are not satisfied or waived and this
Agreement is terminated or the subject transaction is not closed. From and after
the date of this Agreement, and with prior notice to and in coordination with
the Vendor, the Purchaser and its agents and employees shall have reasonable
access to the Property from time to time during normal business hours, at the
Purchaser's sole risk and expense, for the purpose of making any of the
Purchaser's inspections, including, without limitation, physical and structural
inspections, soil tests and environmental audits. At the request of the
Purchaser, the Vendor shall promptly deliver to the Purchaser letters addressed
to such applicable governmental authorities having jurisdiction as may be
requested by the Purchaser or its solicitors authorizing each such authority to
release to the Purchaser such information on compliance matters that such
authority may have with respect to the Property, but expressly not permitting
any inspections with respect to the Property.
The Purchaser shall indemnify and hold the Vendor harmless from any and all
liabilities, actions, costs, damages and liens (including construction liens)
arising from the entry of the Purchaser or its representatives, consultants and
agents on the Lands and in the Building prior to the Closing Date. The Purchaser
shall repair any damage to the Lands and Building arising from such entry. The
foregoing indemnity and covenant to repair shall survive the closing or
termination of this transaction.
4.7 CONTRACTS
The parties acknowledge that the Purchaser shall not be assuming any of the
Contracts at Closing.
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4.8 RISK AND OPERATION UNTIL CLOSING
The parties agree that from the date of this Agreement until Closing:
(a) the Vendor shall operate the Property in accordance with sound
business and management practices as would a prudent owner of
comparable properties;
(b) the Vendor will not enter into any Lease, except the Amram's Lease;
(c) the Vendor shall maintain insurance on the Property in such amounts
as a careful and prudent owner of similar property and premises
would maintain;
(d) the Building shall be at the risk of the Vendor. If any loss or
damage to the Building occurs before that time and the cost to
repair such loss or damage is in excess of $500,000 as certified by
the architect of the Vendor (acting reasonably) (the "Repair Cost"),
the Purchaser, within three Business Days after disclosure to it by
the Vendor of the loss or damage, and receipt of the certificate of
the architect of the Vendor (subject to Purchaser's reasonable
verification) as to the extent thereof, at its option shall have the
right to terminate this Agreement by notice in writing to the
Vendor, in which case this Agreement shall be terminated, null and
void and of no further force or effect whatsoever and neither party
to this Agreement shall have a claim against the other party hereto
with respect to this Agreement (save and except the provisions of
Section 4.6) other than the Purchaser shall be entitled to a return
of the Deposit without deduction and with accrued interest thereon.
If the Purchaser does not elect to terminate this Agreement, then
the parties shall complete this Agreement in accordance with its
terms, in which event all proceeds of property insurance shall be
paid to the Purchaser to be used by the Purchaser to effect repairs
to the Property (the Vendor acknowledging that such event of loss or
damage shall not give the Vendor any right to terminate the Amram's
Lease or to receive an abatement of rent thereunder) and the
Purchaser shall complete all such repairs to the Property
expeditiously, at its sole cost and expense, in a good and
workmanlike manner, as would a prudent owner of the Property.
If the loss or damage is certified by the architect of the Vendor to
be less than $500,000, then all proceeds of insurance shall be paid
to the Purchaser to be used by the Purchaser to effect repairs to
the Property (the Vendor acknowledging that such event of loss or
damage shall not give the Vendor any right to terminate the Amram's
Lease or to receive an abatement of rent thereunder), and the
Purchaser shall complete all such repairs to the Property
expeditiously, at its sole cost and expense, in a good and
workmanlike manner, as would a prudent owner of the Property.
(e) the Vendor shall not enter into any obligation to construct any
capital improvements to the Property without the prior written
consent of the Purchaser.
4.9 CONFIDENTIALITY
(a) Until Closing or in the event this Agreement is terminated pursuant
to sections 3.1, 3.2 or 4.8, the Purchaser and its agents and
advisors shall keep in confidence all information obtained from the
Vendor with respect to the Purchase Assets.
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Nothing herein contained shall restrict or prohibit the Purchaser
from disclosing all such documentation, information and similar
material to its professional advisors, lenders (and their
professional advisors), and its investors, provided such parties
keep such material in confidence.
If this Agreement is terminated pursuant to sections 3.1, 3.2 or
4.8, the Purchaser shall promptly return to the Vendor all
documentation, information and similar material provided to the
Purchaser by the Vendor.
The information referred to in this subsection shall not include:
(i) public information or information that is already in the
public domain;
(ii) information which becomes public through no fault or act of
the Purchaser or its agents and advisors;
(iii) information in the possession of the Purchaser not provided by
the Vendor;
(iv) information required to be disclosed by law, provided that the
party so required to make such disclosure will promptly
provide the other party with written notice and, at the
request and expense of the other party, co-operate on a
reasonable basis to obtain a protective order or other remedy
to obtain assurances that confidential treatment will be
accorded the information so disclosed;
(v) information received in good faith from a third party lawfully
in possession of the information and not in breach of any
confidentiality obligations; and
(vi) information that the Purchaser is obligated to divulge
pursuant to any laws, regulations or guidelines governing the
Purchaser.
(b) Each of the Vendor and the Purchaser shall keep confidential, and
shall ensure that its agents and advisors keep confidential, the
provisions of this Agreement, subject to any obligations of either
party pursuant to applicable laws, regulations or guidelines.
(c) Nothing herein contained shall restrict or prohibit the issue of a
press release mutually approved by the Vendor and the Purchaser
which shall not be released prior to Closing.
4.10 AS IS, WHERE IS
(a) The Purchaser acknowledges and agrees that:
(i) subject to the representations and warranties of the Vendor
set out in section 4.1 hereof, it is acquiring the Property on
an "as is, where is" basis without any representations or
warranties, expressed or implied, as to title, encumbrance,
description, condition (physical, environmental or otherwise),
cost, merchantability or fitness for purpose, quantity or
quality thereof, the existence or non-existence of any
liabilities, hazardous materials, compliance with any or all
environmental laws or in respect of any matter or thing
whatsoever concerning the Property;
(ii) save as otherwise provided in this Agreement, the Due
Diligence Documents are provided to the Purchaser without
representation or warranty, and the
- 15 -
Purchaser will rely entirely and solely upon its own
inspections and investigations in respect of the Due Diligence
Documents and shall not rely on any information furnished by
the Vendor or any other Person or entities on behalf of or at
the direction of the Vendor in connection therewith; and
(iii) it is responsible to satisfy itself, and is relying solely
upon its own inspections and investigations, with respect to
the Property and the representations and warranties of the
Vendor set out in Section 4.1 hereof.
(b) The provisions of this section 4.10 shall survive closing. The
Amram's Lease shall contain provisions similar to subparagraphs
(a)(i), (a)(ii) and (a)(iii) as to acceptance of the demised
premises by the Vendor as tenant thereunder.
ARTICLE 5
CLOSING ARRANGEMENTS
5.1 CLOSING ARRANGEMENTS
This Agreement and the transactions contemplated hereby shall be completed on
the Closing Date at the office of the Vendor's Solicitor or at such other place
as the parties may mutually agree. Subject to Section 5.2 hereof, all documents
and monies shall be delivered at the offices of the Vendor's Solicitor, held in
escrow and released upon satisfaction of such terms as the parties shall
determine, acting reasonably (such terms shall include, without limitation,
registration in the Land Registry Office). In the event that the Land Registry
Office is not open for business on the Closing Date, then the Closing Date shall
be deemed to be the Business Day next following on which the Land Registry
Office is open for business.
5.2 TENDER: ELECTRONIC REGISTRATION
The parties acknowledge that the electronic registration system ("TERS") is
operative in the Land Registry Office in which the Lands are registered, and
agree that the following provisions shall apply in this regard:
(a) each of the Purchaser's Solicitor and the Vendor's Solicitor are
hereby authorized to enter into a document registration agreement in
the form adopted by the Joint LSUC-CBAO Committee on Electronic
Registration of Title Documents on September 19, 2000 or any
successor version thereto (the "DRA"), together with the requirement
that the registering solicitor shall be obliged to provide the
non-registering solicitor with a copy of the registration report
printed by TERS upon the registration of the electronic documents,
as evidence of the registration thereof, within one (1) Business Day
of the Closing Date. It is understood and agreed that the DRA shall
outline or establish the procedures and timing for completing this
transaction electronically, and shall be executed by both the
Vendor's Solicitor and the Purchaser's Solicitor and exchanged
between such solicitors (such that each solicitor has a copy of the
DRA duly executed by both solicitors) by no later than five (5) days
before the Closing Date;
(b) the delivery and exchange of documents and funds, and the release
thereof to the Vendor and the Purchaser, as the case may be, shall
be governed by the DRA, pursuant to which the solicitor receiving
any documents and/or funds will be required
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to hold them in escrow and will not be entitled to release
them except in strict accordance with the provisions of the
DRA;
(c) 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 (the "TENDERING PARTY") upon the other
party (the "RECEIVING PARTY") when the solicitor for the Tendering
Party has:
(i) delivered all applicable closing documents and funds to the
Receiving Party's solicitor in accordance with the provisions
of 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 in accordance with the terms and
provisions of this Agreement; and
(iii) completed all steps required by TERS to complete this
transaction that can be performed or undertaken by the
Tendering Party's solicitor without the cooperation or
participation of the Receiving Party's solicitor, and
specifically when the Tendering Party's solicitor has
electronically "signed" the Transfer/Deed of Land for
completeness and granted "access" to the Receiving Party's
solicitor (but without the Tendering Party's solicitor
releasing the Transfer/Deed of Land for registration by the
Receiving Party's solicitor),
without the necessity of personally attending upon the Receiving Party or the
Receiving Party's solicitor with the documents and/or funds, and without any
requirement to have an independent witness evidencing the foregoing.
5.3 DOCUMENTS OF THE VENDOR
The Vendor shall deliver to the Purchaser's Solicitors on or before the Closing
Date the following, fully executed by the Vendor, where applicable, or such
other parties as may be specified:
(a) a registerable transfer of the Property with the Planning Act
statements completed;
(b) the Amram's Lease and all monies required to be paid by the Vendor
thereunder, and all deliveries and conditions to be delivered,
performed or satisfied by the Vendor thereunder, on or by the
Closing Date;
(c) a direction from the Vendor to the Purchaser and the Purchaser's
Solicitor as to the payee or payees of the Balance and the Deposit;
(d) a statement of adjustments together with the details provided for in
Section 2.4(b);
(e) a certificate from the Vendor confirming that the representations
and warranties of the Vendor contained in this Agreement continue to
be true and correct in all material respects on the Closing Date
(save and except in respect of any matters arising after the date
hereof, as such matters are described with reasonable particularly,
with reference to the specific representation or warranty), as if
made on such date;
(f) original executed copies, if available, of all Due Diligence
Documents, and a duplicate set of all keys to the Building;
- 17 -
(g) subject to section 3.4, registered discharges in respect of all
filings against the Vendor under the Personal Property Security Act
(Ontario) ("PPSA") which state that they affect the Purchase Assets,
or any of them, and for any registrations where it cannot be
ascertained whether the filing pertains to the Purchase Assets, a
letter addressed to the Purchaser and its lender from the secured
party thereof confirming that such filing does not pertain to the
Purchase Assets;
(h) an undertaking by the Vendor to re-adjust the Adjustments as
provided in Section 2.3(g);
(i) good and valid registered discharges of all liens, charges,
mortgages, security interests and other encumbrances affecting the
Purchase Assets which are not Permitted Encumbrances or the Amram's
Lease;
(j) all other conveyances, assurances and other documents which the
Purchaser has reasonably requested, not later than three (3)
Business Days before the Closing Date;
(k) a certificate of the Vendor that it is not a non-resident pursuant
to the provisions of the Income Tax Act (Canada) and is receiving
the balance of the Purchase Price on its own account and not as
agent, trustee or nominee for another Person;
(l) a certificate of the Vendor confirming that the sale of the property
does not constitute a sale of all or substantially all of its assets
or, if it does, that a special resolution of its shareholders have
been obtained approving the sale (which resolution shall be attached
to such certificate);
(m) an assignment of Warranties, Plans and Permits;
(n) an indemnity of the Vendor saving the Purchaser harmless from and
against any and all costs, damages, claims and liabilities that may
be suffered or incurred by the Purchaser arising from or in respect
of (i) any lien under the Construction Lien Act (Ontario) that is
registered against the Property after Closing arising from any
activity by or on behalf of the Vendor; and (ii) any employees of
the Vendor or of any Person retained by the Vendor or on the
Vendor's behalf to render services to the Property;
(o) the undertakings, directions and mortgage discharge statements
referred to in Section 3.4;
(p) to the extent required by any lender of the Purchaser, an estoppel
certificate and subordination, non-disturbance and attornment
agreement;
(q) if any work order relating to the Property is issued prior to
Closing by any governmental authority having jurisdiction, an
undertaking to comply with such work order within a reasonable
period of time following Closing, provided however that the
Purchaser's consultants, acting reasonably, shall determine the cost
of compliance with such work order and an amount equal to such cost
shall be held back from the Purchase Price until such time as the
Vendor has complied with its undertaking, at which time such
holdback funds shall be paid forthwith to the Vendor.
All documentation shall be in form and substance reasonably acceptable to the
Purchaser.
- 18 -
5.4 DOCUMENTS OF THE PURCHASER
The Purchaser shall deliver to the Vendor's Solicitor on the Closing Date the
following documents, fully executed by the Purchaser:
(a) a certified cheque or wire transfer payable to the Vendor or as the
Vendor may in writing direct in the amount of the portion of the
Purchase Price payable in accordance with Section 2.2.
(b) a GST Declaration and Indemnity, if required pursuant to Section
5.5(b);
(c) the Amram's Lease, and all deliveries and conditions to be
delivered, performed or satisfied by the Purchaser thereunder on or
by the Closing Date;
(d) a certificate from the Purchaser confirming that the representations
and warranties of the Purchaser contained in this Agreement continue
to be true and correct in all material respects on the Closing Date
(save and except in respect of any matters arising after the date
hereof, as such matters are described with reasonable particularity,
with reference to the specific representation or warranty), as if
made on such date;
(e) an undertaking by the Purchaser to re-adjust the Adjustments as
provided in Section 2.3(f);
(f) an assumption of the Permitted Encumbrances (to the extent such
assumption is required by the terms of any such Permitted
Encumbrances);
(g) all other assurances and other documents which the Vendor has
reasonably requested not later than three (3) Business Days before
the Closing Date; and
(h) the waivers referred to in section 8 of Schedule "A".
All documentation shall be in the form and substance reasonably acceptable to
the Vendor.
5.5 TAXES AND FEES
(a) The Purchaser shall be responsible for registration fees payable in
connection with the registration of the transfer referred to in
Section 5.3(a) together with any land transfer taxes and provincial
sales taxes payable on the transfer of the Purchase Assets. The
Vendor shall be responsible for all costs and expenses relating to
the discharge of the ABN Security and the discharge of all
encumbrances that are not Permitted Encumbrances. Each party shall
pay its own legal fees with respect to this transaction.
(b) The Purchaser and the Vendor agree that if GST is exigible on this
transaction then, subject as is herein provided, it is the Vendor's
obligation to collect the GST, and the Purchaser's obligation to pay
the GST on Closing. The Purchaser and the Vendor acknowledge and
agree that the Purchase Price and all other amounts referenced
herein are exclusive of GST. The Purchaser covenants and agrees that
on Closing it shall either: provide to the Vendor the GST
Declaration and Indemnity; or pay, in addition to the Purchase
Price, by certified cheque payable to, or as directed by the Vendor,
the GST which shall be calculated as seven per cent (7%) of the
Purchase Price.
- 19 -
ARTICLE 6
MISCELLANEOUS
6.1 INTERPRETATION
Words importing the singular include the plural and vice versa. Words importing
the masculine gender include the feminine and neuter genders. The insertion into
this Agreement of headings and the inclusion of a table of contents are for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement. In this Agreement, all references to money
shall refer to Canadian funds.
6.2 ENTIRE AGREEMENT AND AMENDMENT OF AGREEMENT
This Agreement constitutes the entire agreement between the parties with respect
to the subject matter of this Agreement and, except as stated in this Agreement
and in the instruments and documents to be executed and delivered pursuant to
this Agreement, contains all of the representations, undertakings and agreements
of the parties. This Agreement supersedes all prior negotiations or agreements
between the parties, whether written or verbal, with respect to the subject
matter of this Agreement. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by the parties hereto in
the same manner as the execution of this Agreement.
6.3 SEVERABILITY
If any provision contained in this Agreement or its application to any Person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder of
this Agreement or the application of such provision to Persons or circumstances
other than those to which it is held invalid or unenforceable, shall not be
affected, and each provision of this Agreement shall be separately valid and
enforceable to the fullest extent permitted by law.
6.4 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the Province of Ontario and the applicable laws of Canada. References to
statutes shall be deemed to be references to such statutes as they exist on the
date of this Agreement.
6.5 TIME
Time shall be of the essence of this Agreement. Except as expressly set out in
this Agreement, the computation of any period of time referred to in this
Agreement shall exclude the first day and include the last day of such period.
If the time limited for the performance or completion of any matter under this
Agreement expires or falls on a day that is not a Business Day, the time so
limited shall extend to the next following Business Day.
6.6 TENDER
Any tender of documents or money may be made upon the party being tendered or
upon its solicitors and money may be tendered by certified cheque.
6.7 RELATIONSHIP OF THE PARTIES
Nothing in this Agreement shall be construed so as to make the Purchaser a
partner of the Vendor.
- 20 -
6.8 NOTICES
Any notice, request, consent, acceptance, waiver or other communication required
or permitted to be given under this Agreement (a "NOTICE") shall be in writing
and shall be given by personal delivery or written electronic communication
which results in a written or printed notice being given to the applicable
address set forth below: in the case of the Vendor addressed to it at: Amram's
Distributing Ltd., 00 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx, X0X 0X0, Attention:
Xxxxxxx Xxxxxx, President, Fax No. (000) 000-0000 and to the Vendor's Solicitor
and in the case of the Purchaser addressed to it at: 00 Xxxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx, X0X 0X0, Attention: Xxxx Xxxxx, Fax Number: (416)
000-0000, and to the Purchaser's Solicitor. Any Notice, if personally delivered,
shall be deemed to have been validly and effectively given and received on the
date of delivery if received prior to 5:00 p.m. (Toronto time) on a Business
Day, otherwise the date of deliver shall be deemed to be on the Business Day
next following such date. Any notice, if sent by fax communication, shall be
deemed to have been validly and effectively given and received on the date of
transmission if received prior to 5:00 p.m. (Toronto time) on a Business Day,
otherwise the date of delivery shall be deemed to be on the Business Day next
following such date. By giving to the other party at least 3 Business Days'
Notice, any party may, at any time and from time to time, change its address for
delivery or communication for the purposes of this Section 6.8.
6.9 LAWYERS AS AGENTS
Notices, approvals, waivers and other documents permitted, required or
contemplated by this Agreement may be given or delivered by the parties or by
their respective solicitors on their behalf.
6.10 NON-MERGER
Except as herein otherwise provided, none of the provisions of this Agreement
shall merge in the deed or transfer of the Property or any other document
delivered on the Closing Date and the provisions of this Agreement shall survive
the Closing Date.
6.11 COUNTERPARTS
This Agreement may be executed in any number of counterparts, and each of such
counterparts shall constitute an original of this Agreement and all such
counterparts together shall constitute one and the same agreement. This
Agreement or counterparts hereof may be executed by fax, and the parties adopt
any signatures provided or received by fax as original signatures of the
applicable party or parties, provided that any party providing its signature by
fax shall promptly forward to the other party a copy of this Agreement with an
original signature.
6.12 SUCCESSORS AND ASSIGNS
The Purchaser shall not be entitled to assign this Agreement, in whole or in
part, without the prior written consent of the Vendor, such consent not to be
unreasonably withheld; provided however that the Purchaser shall have the right,
without the consent but upon prior written notice to the Vendor, to assign this
Agreement to one or more of the pension fund entities to which the Purchaser
provides advisor or other services. Upon Closing, the Purchaser shall be
released from all obligations hereunder, the Vendor acknowledging that in the
event of any such assignment, only the assignee shall be bound by the
obligations of the landlord under the Amram's Lease. This Agreement shall enure
to the benefit of and shall be binding upon the parties and their respective
successors and permitted assigns.
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6.13 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.
6.14 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.
6.15 LIABILITY
The parties agree that any certificates to be provided on their behalf hereunder
shall be provided without personal liability on the part of the individuals
executing same on their behalf. If the Purchaser or its assignee is a limited
partnership, the recourse under this Agreement or any closing documents shall be
limited to the assets of the limited partnership and there shall be no recourse
to the limited partners nor their assignees nor shall the limited partners or
their assignees have any personal liability under this Agreement or any closing
documents.
6.16 PLANNING ACT
This Agreement and the transaction contemplated herein is subject to compliance
with Section 50 of the Planning Act (Ontario), which compliance the Vendor
covenants to obtain at its expense by Closing.
IN WITNESS WHEREOF the parties have executed this Agreement.
AMRAM'S DISTRIBUTING LTD.
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: President
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Treasurer
I/We have authority to bind the Corporation.
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BENTALL INVESTMENTS MANAGEMENT LP BY ITS
GENERAL PARTNER BENTALL INVESTMENT
MANAGEMENT G.P. LTD.
By: /s/ Xxxx XxXxxxxx
-----------------------------------
Name: Xxxx XxXxxxxx
Title: Authorized Signing Officer
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Authorized Signing Officer
I/We have authority to bind the Corporation.
SCHEDULE "A"
CERTAIN AMRAM'S LEASE TERMS
1. Leased Premises: The entire Property; the Building comprises approximately
117,436 square feet of rentable area.
2. Term: 10 years.
3. Rent: the Minimum Rent for the Leased Premises shall be based on the
following net rental rates per square foot of the rentable area of the
Building per annum:
Years 1 - 3 $6.28
Years 4 - 6 $6.40
Years 7 - 10 $6.55
4. Management Fee: 2% of Minimum Rent per annum, payable monthly.
5. Net to Landlord: It is intended that the above rents shall be net and
carefree to the Landlord and the Tenant shall be solely responsible for
all costs (including property taxes, but excluding Landlord's capital tax)
associated with the operation, maintenance, management and repair of the
Property, excluding structural repairs.
6. Right of Extension: Provided that the Tenant is not then in default, the
Tenant shall have the option of extending the term on 9 months notice for
one additional term of five (5) years (subject to section 7), upon the
same terms and conditions, except as to rent which shall be at market.
7. Right to Expand: Provided that the Tenant is not then in default and has
not been habitually in default throughout the Term, the Tenant shall have
the right to expand into, and the Landlord shall have an obligation to
build, the Expansion Premises shown on Schedule "A-1" containing a
leaseable area of approximately 48,000 square feet. Alternatively, the
Tenant shall have the right to exercise its expansion rights only in
respect of the warehouse portion of the Expansion Premises comprising
approximately 38,000 square feet. The annual rental rate for the Expansion
Premises shall be determined by multiplying the cost of the Expansion
Premises by eight (8%) percent. The costs of the Expansion Premises will
be agreed to by both the Landlord and the Tenant, prior to the
commencement of construction, both acting reasonably which costs shall, in
any event, include all hard, soft and development fees of the Landlord.
The right to expand can only be exercised during the first seven (7) years
of the original term and then only if the Tenant concurrently exercises
its right of extension for the original premises; provided however that if
the right to expand is exercised following the expiry of the fifth year of
the original term, the extension term shall be deemed to be increased by
the number of days in the period between the first day of the sixth year
of
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the original term and the date upon which the right to expand is exercised
by the Tenant. Notwithstanding the foregoing, the Landlord's obligation to
construct the expansion shall be conditional on: (i) the Tenant's
financial covenant and standing being substantially as good as it was on
the commencement date of the Amram's Lease; (ii) the Landlord being able
to obtain a building permit and all development approvals; and (iii) the
Landlord being able to obtain the consent of its lender, which consent the
Landlord shall use reasonable commercial efforts to obtain.
8. Landlord Waiver: At Closing, the Landlord will provide a waiver of its
rights in favour of ABN AMRO BANK N.V., Canada branch in respect of all of
the Tenant's personal property and assets (including, without limitation,
inventory, equipment, consumer goods, accounts and proceeds) and the
Excluded Assets, which remain the property of the Tenant and do not
comprise Purchase Assets, such waiver to be in the form required by the
holder of the ABN Security.
9. Security Deposit: On Closing, the Tenant shall provide, at its option,
either cash (by way of a holdback from the Purchase Price) or a letter of
credit, in the amount of $470,000, to be held by the Landlord as a
security deposit until the last thirty-six months of the original Term of
the Lease, at which time (a) if cash, from such amount the sum of $13,055
shall be applied on a monthly basis towards the Rent due under the Amram's
Lease and (b) if letter of credit, the principal amount of the letter of
credit shall be reduced by the amount of $13,055 per month until the end
of the original Term.
10. Undertaking: To the extent the Vendor has provided the Purchaser with an
undertaking pursuant to Section 3.1(c)(ii) of this Agreement, the breach
of that undertaking shall constitute a default under the Lease.
SCHEDULE "A-1"
EXPANSION PREMISES
(MAP GRAPHIC)
SCHEDULE "B"
GST DECLARATION AND INDEMNITY
TO: Amram's Distributing Ltd. (the "VENDOR")
RE: Sale by the Vendor to the undersigned of the Vendor's interest in the
lands set out in the Agreement of Purchase and Sale dated December -, 2005
between the Vendor and the undersigned (the "Property")
The undersigned hereby declares, certifies, and agrees as follows:
(a) it is purchasing its interest in the Property as principal for its
own account and same is not being purchased by it 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 to it of its interest in 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 or any of them as a result
of any failure by it to comply with the provisions of this
Declaration and Indemnity.
DATED as of this day of , 2005.
-
Per:
-----------------------------------
Name
Title
Per:
-----------------------------------
Name
Title
I/We have authority to bind the Corporation.
SCHEDULE "C"
PERMITTED ENCUMBRANCES
1. Liens for municipal taxes, charges, rates and assessments or utilities
(including levies or imposts for sewers and other municipal utility
services) not yet due as of the Closing Date.
2. The rights of expropriation reserved to or vested in any municipality or
governmental or other public authority by any statutory provision.
3. Any subsisting reservations, limitations, provisions and conditions
contained in any original grants from the Crown provided same are complied
with.
4. Statutory reservations and exceptions to title set forth in section 44(1)
of the Land Titles Act (Ontario), save and except paragraph 11 thereof
relating to the Planning Act.
5. Undetermined or inchoate liens and charges incidental to current
construction or current operations which have not yet been filed or
registered according to applicable law against the Vendor or the Property
and which relate to obligations neither due nor delinquent.
6. Title defects or irregularities which are of a minor nature and either
individually or in the aggregate do not and will not impair the value, use
or marketability of the Property.
7. Any discrepancies, defects or encroachments which might be disclosed by an
up-to-date survey.
8. Instrument No. LT851641 registered February 22, 1988, is a Notice of an
Industrial Subdivision Agreement between The Corporation of the City of
Brampton, The Regional Municipality of Peel and Kenfask Developments
Limited;
9. Instrument No. LT1161719 registered October 3, 1990, being is a Notice of
an Industrial Subdivision Agreement between The Corporation of the City of
Brampton, The Regional Municipality of Peel and Kenfask Developments
Limited which agreement amends the terms of Instrument No. LT851641;
10. Instrument No. LT1683516 registered December 3, 1996, is a Notice of a
Re-Zoning Agreement between Kenfask Developments and The Corporation of
the City of Brampton;
11. Instrument No. LT1808099 registered February 20, 1998, being By-Law No.
2-98 of The Corporation of the City of Brampton exempting lands from Part
Lot Control (applies to PIN No. 14021-0257(LT) only);
12. Instrument No. LT1836168 registered June 4, 1998, is a Notice of a Site
Plan Agreement between Amram's Distributing Ltd. and The Corporation of
the City of Brampton;
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13. Instrument No. LT2057426 registered March 27, 2000, is a Notice re Xxxxxxx
Airport Zoning Regulations;
14. Instrument No. PR785629 registered January 7, 2005, being Bylaw No.
291-2004 of The Corporation of the City of Brampton repealing by-laws
exempting lands from Part Lot Control (applies to PIN No. 14021-0257(LT)
only);
15. Instrument Xx. XX000000 registered June 30, 2005 is a Charge/Mortgage of
land in the original principal amount of $20,000,000 in favour of ABN AMRO
BANK N. V., CANADA BRANCH, subject to section 3.4.
16. The Amram's Lease.
