Contract
Exhibit
99.23
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT is made as of the 7th
day of June,
2007
BETWEEN
DOMGROUP
LTD. (the "Seller")
OF
THE FIRST
PART
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and -
BREOF
VTB L. P. (the "Buyer")
OF
THE SECOND
PART
WHEREAS:
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A.
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The
Seller is the sole beneficial and registered owner of the Loan;
and
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B.
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The
Buyer desires to purchase the Loan from the Seller and the Seller
desires
to sell the Loan to the Buyer upon the terms and conditions set
forth
herein.
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NOW
THEREFORE in consideration of the sum of TEN ($10.00) DOLLARS paid by
the Buyer to the Seller, the mutual promises and agreements hereinafter
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, each of the Seller and the Buyer hereby
agree
as follows:
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1.
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Definitions.
In this Agreement, the following capitalized words have
the
following meanings:
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(a)
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"Agreement"
means this Assignment and Assumption Agreement, including all attached
schedules and as it may be amended in writing from time to
time;
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(b)
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"Borrower"
means Duflaw Realty Ltd., in its capacity as general partner
for
and on behalf of Duflaw Limited
Partnership;
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(c)
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"Business
Day" means any day which is not a Saturday, Sunday or a day
observed as a holiday under the laws of
Ontario;
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(d)
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"Charge"
means the mortgage in respect of the Charged Property,
made as of
October 31, 2006; by the Borrower, as chargor, in favour of the
Seller, as
chargee, registered in the Land Titles Division of the Toronto
Registration Office as Instrument No.
AT1296206;
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(e)
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"Charged
Property" means, the real property mortgaged, pursuant to the
Charge, as security for repayment of the Loan as more particularly
described in Schedule "A" hereto;
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(f)
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"Closing
Date" means June 7, 2007;
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(g)
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"Xxxxxxx/Xxxxxx
Charge" means the mortgage registered in the Land Titles Office
for the Toronto Registration Office against the Charged Property
as
Instrument No. AT419668;
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(h)
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"Loan"
means the.:loan
described
in Schedule "B" hereto;
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(i)
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"Postponement
of Interest" means the postponement of the Charge to the
Golan/Xxxxxx Charge, by the Seller in favour of Xxxxxxx Investments
Limited and The Estate of Xxx Xxxxxx, registered m the Land Titles
Division of the Toronto Registration Office as Instrument No.
AT1419670;
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(j)
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"Purchase
and Sale Agreement" means the. agreement of purchase and sale
made as of June 28, 2006 between the Seller and Lanterra Realty
Inc., as
amended by an amending letter agreement dated August 31, 2006,
made
between the Seller and Lanterra Realty: Inc., and by an agreement
re VTB
mortgage dated August 31, 2006 made between the Seller and Lanterra
Realty
Inc., and as assigned by Lanterra Realty Inc. to the
Borrower;
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(k)
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"Purchase
Price" means the purchase price for the Loan being the sum of
$8,433,300.00; and
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(l)
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"Side
Agreement re: VTB" means the agreement dated October 31, 2006
pursuant to which the Seller agreed to execute and deliver the
Postponement of Interest.
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2.
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Representations
and Warranties of the Seller. Each of the following
representations and warranties by the Seller is true and correct
as of the
Closing Date:
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(a)
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The
Seller is a company incorporated in accordance with the Iaws of
Canada,
xx.xx
good standing thereunder and has the necessary power and
authority to hold the Loan and enter this Agreement. The
Seller has taken all necessary action to authorize the execution,
delivery
and performance of this Agreement and has the power and authority
to
execute, deliver and perform its obligations under this Agreement
and all
related documents and all the transactions contemplated hereby,
including,
but not limited to the authority to sell and assign the Loan and
the
Charge in accordance.
with this
Agreement. This Agreement and all the obligations of the Seller
hereunder
and all agreements, instruments and documents executed by the Seller
in
connection with the assignment of the Loan and the Charge to the
Buyer
have been duly authorized, executed and delivered and constitute
legal,
valid and binding obligations of the Seller, enforceable in accordance
with the terms of this Agreement;
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2 -
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(b)
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the
Charge constitutes a good and valid second charge on the Charged
Property
subject to the Xxxxxxx/Xxxxxx
Charge;
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(c)
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the
execution and delivery of this Agreement and the performance of
its
obligations hereunder by the Seller will not result in the creation
or
imposition of any lien or encumbrance on any of its assets or property
which would materially and adversely affect the ability of the
Seller to
carry out the terms of this Agreement; and the Seller has obtained
all
consents, approvals, authorizations and orders, if any, of any
court or
governmental agency or body required for the execution and delivery
of
this Agreement by the Seller and performance by the Seller of its
obligations hereunder and under the documents to be delivered by
the
Seller in connection with the assignment of the Loan and Charge
to the
Buyer;
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(d)
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the
Loan is the only loan and indebtedness outstanding between the
Seller and
the Borrower and the Charge, the Side Agreement re:VTB and the
Postponement of Interest contain all of the terms and conditions
relating
to the Loan and there are no other agreements between the Borrower
and the
Seller in connection with the Loan or the Charged Property, other
than the
Purchase and Sale Agreement;
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(e)
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the
Borrower has not made any claim, defence, set-off or counterclaim
against
the Seller as Chargee under the Charge or otherwise (including,
without
limiting the generality of the foregoing, under the Purchase and
Sale
Agreement and/or any documents delivered in connection with the
consummation of the transaction described therein), and the Borrower
has
no present or future right to set-off under the Charge, the Loan
or
otherwise and the Seller is not aware of any present facts that
would give
rise to any such claim, defence, set-off or counterclaim or otherwise
(including, without limiting the generality of the foregoing, under
the
Charge, the Purchase and Sale Agreement and/or any documents delivered
in
connection with the consummation of the transaction described
therein);
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(f)
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as
at the Execution Date, the outstanding Principal owing in respect
of the
Loan is $9,800,000.00 and the particulars of the Loan set out in
Schedule
"B" are true and correct;
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(g)
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the
Seller has not compromised or settled any claim it has in respect
of the
Loan and has not modified the
Charge;
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(h)
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the
Borrower is not entitled to the disbursement ,of additional proceeds
of
the Loan or future advances under the
Loan;
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3 -
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(i)
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at
the time the Charge was granted the Borrower obtained the insurance
coverage set out on insurance certificate from Aon Xxxx Xxxxxxxxx
Inc.,
dated October 31, 2006 and bearing reference number 320005588758,
and to
the best of the Seller's knowledge such insurance coverage is still
in
effect, a copy of which certificate has been delivered to the
Buyer;
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(j)
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neither
the Loan nor the Charge is subject to my sale, assignment or security
interest and/or any lien, claim or
encumbrance;
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(k)
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the
Seller is the sole beneficial and registered owner and holder of
all
beneficial right, title and interest in the Loan and the Charge;
and
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(l)
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there
is no action, suit or proceeding pending, or to the Seller's knowledge,
threatened, against the Seller by the Borrower relating to the
Loan and/or
the Charge in any court or before any other governmental
agency.
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3.
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Representations
and Warranties of the Buyer. Each of following
representations and warranties by the Buyer is true and correct
and shall
be deemed restated as true and correct at
Closing:
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(a)
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the
Buyer has taken all necessary action to authorize its execution,
delivery
and performance of this Agreement and has the power and authority
to
execute, deliver and perform its -obligations under this Agreement
and all
related documents and all the transactions contemplated hereby,
including,
but not limited to the authority to purchase and acquire the Loan
in
accordance with this Agreement. This Agreement and all the obligations
of
the Buyer hereunder are legal, valid and binding obligations of
the Buyer,
enforceable in accordance with the terms of this
Agreement;
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(b)
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the
execution and delivery of this Agreement and the performance of
its
obligations hereunder by the Buyer will not result in the creation
or
imposition of any lien or encumbrance on any of its assets or property
which would materially and adversely affect the ability of the
Buyer to
carry out the terms of this Agreement; and the Buyer has obtained
all
consents, approvals, authorizations and orders, if any, of any
court or
governmental agency or body required for the execution and delivery
of
this Agreement by the Buyer and performance by the Buyer of its
obligations hereunder and under the documents to be delivered by
the Buyer
hereunder; and
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(c)
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the
Buyer has not dealt with any person, firm or corporation that is
or may be
entitled to seek from the Seller any finder's fee, brokerage commission,
loan commission or other sum in connection with the execution of
this
Agreement or the consummation of the transactions contemplated
hereby.
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4.
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Assignment
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(a)
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The
Seller does hereby sell, convey, assign and transfer unto the Buyer,
its
successors and assigns, all of the Seller's right, title and interest
in
and to the Loan and the Charge, including, without limitation,
all amounts
owing to the Seller in connection with the Loan;
and
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4 -
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(b)
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the
Seller does hereby assign and transfer unto the Buyer, its successors
and
assigns, all of the Seller's right, title and interest in and to
any insurance policies covering the Charged Property and
the
proceeds thereof
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5.
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Absolute
Assignment. The sale, conveyance, assignment and transfer by the
Seller to the Buyer as set forth in Section 4. of this Agreement
(collectively, the "Transfer") is an absolute conveyance,
transfer and assignment of the Loan and the Charge, and not
a collateral
assignment, pledge or other hypothecation for security
purposes.
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6.
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Assumption
by the Buyer. To the extent originating after the Closing Date,
the Buyer hereby accepts the Transfer upon the terms set
out herein and
assumes, agrees to observe, perform, fulfill and be bound
by, all terms,
covenants, conditions, obligations relating to the Loan
and the Charge
which are to be observed, performed and fulfilled by the
owner and holder
of the Loan and the Charge in the same manner and to the
same extent as if
the Buyer were the lender named in the
Charge.
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7.
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Miscellaneous.
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Domgroup
Ltd
c/x
Xxxxxxxxx Inc.
00
Xxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention: Xxxxxxx
X. Xxxx
Fax: (000)
000-0000
with
a
copy to:
Xxxxxx
Xxxx :Xxxxxxxx
& Xxxxxxxx LLP
1
First
Canadian Place.
Toronto,
Ontario
M5X
IB1
Attention: Xxxx
X.
Xxxxxxx.
Fax: (416)
8:63-0871
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5 -
All
notices or demands to the Buyer shall be addressed as follows:
BREOF
VTB
L. P.
c/o
Brookfield Real Estate Opportunity Fund
BCE
Place, Suite 300
000
Xxx
Xxxxxx, X.X. Xxx 000
Xxxxxxx,
Xxxxxxx
X0X
0X0
Attention: Xxxxxx
X. Xxxxx
Fax:
(000) 000-0000
With
a
copy to:
Xxxxxxx
LLP
Barristers
& Solicitors
Suite
2400
000
Xxxxx
Xxxxxx
Xxxxxxx,
Xxxxxxx
X0X
0X0
Attention: Xxxxxx
X. Xxxxxxxxx
Fax: (000)
000-0000
Delivery
of any such notice or demand so made shall be deemed complete on the date
of
actual delivery provided that, if delivered on a day which is not a Business
Day
or on a Business Day after 5:00 p.m. Toronto time, then delivery shall be
deemed
complete on the next following Business Day. In the event of delivery by
Fax,
the sender agrees to deliver to the recipient original copies of such notice
or
demand as soon as possible thereafter. Any party hereto may, from time to
time,
by notice in writing delivered to the other party hereto as aforesaid, designate
a different mailing address to which all future notices or demands are to
be
addressed.
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(b)
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Waivers.
No delay or omission by either party hereto in exercising any right
or
power arising from any default by the other party hereto shall
be
construed as a waiver of such default or as an acquiescence there,
nor
shall any single or partial exercise thereof preclude any further
exercise
thereof or the exercise of any other right or power arising from
any
default by the other xxxxx hereto. No waiver of any breach of any
of the
covenants or conditions contained in this Agreement shall be construed
to
be a waiver of or an acquiescence in or a consent to any previous
or
subsequent breach of the same or of any other any other condition
or
covenant.
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(c)
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Survival
of Representations. The representations, warranties and
certifications contained in this Agreement or in any closing documents
shall not merge on closing but shall survive until the date which
is three
months after the Closing Date (the "Survival Date")
except that the representations and warranties contained in Sections
2(a),
(b), (c), (d) and (e) shall survive the Closing, indefinitely (the
"Surviving Representations and
Warranties"). 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
parry 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 Survival Date other than m connection with the Surviving
Representations and Warranties. Notwithstanding any other provision
of
this Agreement or of any closing document, no, claim may be asserted
or
pursued against either parry hereto, of any action, suit or other
proceedings commenced or pursued, for or in respect of any breach
of any
representation, warranty or certification made by any party in
this
Agreement or in any closing document unless written notice of such
claim
is received by the other party describing in detail the facts and
circumstances with respect to the subject matter of such claim
on or prior
to the Survival Date, other than in connection with the Surviving
Representations and Warranties, irrespective of whether the subject
matter
of such claim shall have occurred before or after the Survival
Date, other
than in connection with the Surviving Representations and Warranties;
and
following the Survival Date, other than in connection with the
Surviving
Representations and Warranties, 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 paragraph.
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(d)
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Limitation
of Liability. No past, present or future officer, director, agent
or employee of the Seller or the Buyer shall have any personal
liability,
direct or indirect, under or in connection with this Agreement
including,
without limitation, all documents and matters contemplated by this
Agreement, and the Buyer and the Seller hereby respectively waives
any and
all such personal liability.
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(e)
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Further
Agreements and Assurances. The Seller and the Buyer each agrees
to use reasonable efforts to execute, acknowledge and deliver to
the other
or otherwise facilitate such further acts or assurances or additional
documents, instruments or agreements and to take such other steps
or
actions to confirm or better or more fully evidence or. effect
the
transaction described in this Agreement as may reasonably be necessary,
desirable or appropriate and within its
power.
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(f)
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Intention
of the Parties. It is the intention of the parties that the Buyer
is purchasing, and the Seller is selling, the Loan, rather than
entering
into a loan by the Buyer to the Seller secured by the Loan. Accordingly,
the parties hereto each intend to treat the transaction contemplated
herein for income tax purposes as a sale by the Seller, and a purchase
by
the Buyer, of the Loan.
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(g)
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Successors
and Assigns. This Agreement shall be binding upon, enure to the
benefit of, and be enforceable by, the Seller and the Buyer and
their
respective successors and permitted
assigns.
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(h)
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No
Partnership. This Agreement is not intended to
constitute, and shall not be construed to establish, a partnership,
joint
venture or any other relationship between, the Seller and the Buyer
other
than seller and buyer. Each party shall pay its own costs and
expenses in connection with the transaction contemplated by this
Agreement
except to the extent specified
herein.
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b
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Context.
When the context and construction so require, all words
used in
the singular herein shall be deemed to have been used in the plural,
and
the masculine shall include the feminine and the neuter and vice
versa.
References in this Agreement to "Sections" and "Schedules" shall
be
references to sections and schedules of this
Agreement.
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(j)
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Time
of the Essence. Time is of the essence of this Agreement and all
matters contained herein.
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(k)
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Governing
Law. This. Agreement is to be governed by and construed in
accordance with the laws of the Province of
Ontario:
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(l)
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Counterparts.
This Agreement may be executed in two or more counterparts,
each
of which shall be deemed an original and all of which together
shall
constitute one and the same
document.
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IN
WITNESS WHEREOF, the parties executed this Agreement with effect as of
the date first above written.
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Per: |
DOMGROUP
LTD.
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Per:
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/s/
Xxxxxxx X. Xxxx
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Name: Xxxxxxx
X. Xxxx
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Title:
Chief Financial Officer
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I
have authority to bind the Corporation.
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BREOF
VTB L.P.
by
its sole general partner, BREOF VTB G.P. LIMITED
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Per:
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/s/
Xxxxxx Xxxxx
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Name: Xxxxxx
Xxxxx
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Title:
Vice President
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I
have authority to bind the Partnership.
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SCHEDULE
"A"
LEGAL
DESCRIPTION
PIN
10230-0106 (LT)
Part
of
Xxx 0, Xxxxxxxxxx-0, XXX Xxxxxxxx xx Xxxx as in Instrument No. NY246263 except
NY569785, Toronto (Xxxxx Xxxx), Xxxx xx Xxxxxxx
PIN
10230-0108 (LT)
Part
of
Xxx 0, Xxxxxxxxxx 0, XXX Xxxxxxxx xx Xxxx as in Instrument No. NY277333,
NY358876, except NY267089 subject to NY358876, Toronto (North York), City
of
Toronto
SCHEDULE
"B"
LOAN
Loan
amount and Balance Outstanding as of Execution and Closing
Date: $9,800,000.00
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Interest
Rate:
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0%
October 31, 2006 – October 31, 2008
4.95%
per annum November 1, 2008 – October 31, 2009 calculated
semi-annually
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Payment:
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Interest
only, quarterly
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Charged
Property:
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0000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, legally described in Schedule
"A"
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Priority:
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Second
in priority to a first mortgage in favour of Xxxxxxx Investments
Limited
and The Estate of Xxx Xxxxxx in the original amount of
$3,750,000
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