EXHIBIT 2.7
FORM OF AGREEMENT OF PURCHASE AND SALE
Agreement of Purchase and Sale dated as of the [-] day of [-], 2004
(the "EFFECTIVE DATE") between 1387746 Ontario Inc. an Ontario corporation (the
"VENDOR") and BST Acquisition Ltd., a New Brunswick corporation (the
"PURCHASER").
RECITALS:
(a) Bolton Steel Tube Co., Ltd. ("BOLTON") and the Purchaser entered
into an Asset Purchase Agreement dated as of June [-], 2004 (the
"ASSET PURCHASE AGREEMENT") pursuant to which Xxxxxx agreed to sell
and the Purchaser agreed to purchase as a going concern the Business
of Xxxxxx (as defined in the Asset Purchase Agreement) which is
carried on by Xxxxxx from the Property, all on the terms and
conditions of the Asset Purchase Agreement;
(b) It is a condition of the completion of the Asset Purchase Agreement
that the Purchaser enter into this Agreement to acquire the Property
directly from the owner thereof, namely, the Vendor, all on the
terms and conditions hereof;
(c) It is also a condition of the completion of the Asset Purchase
Agreement that Xxxxxx cause the Vendor as landlord to enter into an
interim lease with the Purchaser as tenant in respect of the
Property (the "INTERIM LEASE") effective as of the Closing Date (as
defined in the Asset Purchase Agreement) in order to permit the
Purchaser to operate the Business therefrom pending completion of
the transaction of purchase and sale contemplated herein.
In consideration of the foregoing and the mutual agreements contained
herein (the receipt and adequacy of which are acknowledged), the parties agree
as follows:
ARTICLE 1
INTERPRETATION
SECTION 1.1 DEFINED TERMS.
As used in this Agreement, the following terms have the following
meanings:
"BUILDING" means the buildings situate on the Land, together with all
other structures situate on the Land and municipally known as 0000 Xxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxx, including all improvements thereto and to the
Land and all fixtures forming a part thereof.
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"CHATTELS" means collectively, all the goods, chattels, equipment,
furnishings and other personal property of the Vendor, customarily located
on the Land or in the Building and used in connection with the operation,
maintenance, repair, management or occupancy thereof, excluding any and
all property and assets which are the subject matter of the Asset Purchase
Agreement. [NTD: VENDOR TO ADVISE IF THERE ARE ANY AND LIST THEM IN
SCHEDULE -.]
"EFFECTIVE DATE" means the date of the Agreement first written above.
"LAND" means those certain lands situate in the City of Mississauga,
Regional Municipality of Peel, Province of Ontario, being more
particularly legally described in Schedule "1.1" hereto.
"PERMITTED ENCUMBRANCES" has the meaning ascribed in Section 4.5.
"PROPERTY" means, collectively, the Land, the Building and the Chattels.
"PURCHASE PRICE" has the meaning ascribed in Section 2.2.
"REAL ESTATE CLOSING" means the completion of the transaction of purchase
and sale in respect of the Property provided for in this Agreement and,
where the context so requires, the time and date at which the same shall
be effected pursuant to Section 8.1 hereof and "TIME OF CLOSING" shall
have a corresponding meaning.
"REAL ESTATE CLOSING DATE" means the 90th day immediately following the
Effective Date or such earlier date as is at least 10 business days
following Vendor's receipt of a written notice of the Purchaser specifying
an earlier closing date.
"REQUISITION PERIOD" means that period commencing on the date of this
Agreement and ending at 4:59 p.m. on the date which is thirty (30) days
thereafter.
SECTION 1.2 GENDER AND NUMBER.
Any reference in this Agreement to gender shall include all genders, and
words importing the singular number only shall include the plural and vice
versa.
SECTION 1.3 HEADINGS, ETC.
The division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and shall not affect
or be utilized in the construction or interpretation of this Agreement.
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SECTION 1.4 CURRENCY.
All references in this Agreement to dollars, unless otherwise specifically
indicated, are expressed in Canadian currency.
SECTION 1.5 SEVERABILITY.
Any Article or Section of this Agreement or any other provision of this
Agreement which is, or becomes, illegal, invalid or unenforceable shall be
severed from this Agreement and be ineffective to the extent of such illegality,
invalidity or unenforceability and shall not affect or impair the remaining
provisions hereof.
SECTION 1.6 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties. There are no representations, warranties, conditions or other
agreements, express or implied, statutory or otherwise, between the parties
hereto in connection with the subject matter of this Agreement, except as
specifically set forth herein and in the Asset Purchase Agreement.
SECTION 1.7 AMENDMENTS.
This Agreement may only be amended, modified or supplemented by a written
agreement signed by all of the parties hereto.
SECTION 1.8 WAIVER.
No waiver of any of the provisions of this Agreement shall be deemed to
constitute a waiver of any other provision (whether or not similar), nor shall
such waiver constitute a waiver or continuing waiver unless otherwise expressly
provided in writing duly executed by the party to be bound thereby.
SECTION 1.9 GOVERNING LAW.
This Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
SECTION 1.10 INCORPORATION OF SCHEDULES.
The following are the schedules attached to and incorporated in this
Agreement:
Schedule "1.1" - Legal Description of the Land
Schedule "2.2(c)" - Form of Second Mortgage
Schedule "4.5(f)" - Permitted Encumbrances
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ARTICLE 2
PURCHASE AND PURCHASE PRICE
SECTION 2.1 PURCHASE.
On and subject to the terms and conditions herein contained, the Vendor
agrees to sell, assign and transfer the Property to the Purchaser and the
Purchaser agrees to purchase the Property from the Vendor, as, at and from the
Time of Closing on the Real Estate Closing Date.
SECTION 2.2 PRICE AND PAYMENT.
The purchase price (the "PURCHASE PRICE") for the Property shall be the
sum of FIVE MILLION SEVEN HUNDRED THOUSAND DOLLARS ($5,700,000.00) and shall be
payable by the Purchaser to the Vendor as follows:
(a) Two Hundred Thousand Dollars ($200,000.00) by way of a deposit (the
"DEPOSIT") to be paid by the Purchaser to the Vendor's solicitors,
in trust, by certified cheque or bank draft drawn upon a Schedule 1
Canadian chartered bank made payable to the Vendor's solicitors, in
trust, within one (1) business day after the Effective Date, to be
held in trust pending completion or other termination of this
Agreement and credited on account of the Purchase Price upon
successful completion of the transaction of purchase and sale
contemplated hereby;
(b) Four Million Three Hundred Thousand Dollars ($4,300,000.00) of the
Purchase Price, subject to any adjustments made in accordance with
Section 8.2, shall be paid by the Purchaser to the Vendor on the
Real Estate Closing by way of certified cheque or bank draft drawn
upon a Schedule 1 Canadian chartered bank made payable to the Vendor
or as it may otherwise direct in writing; and
(c) Provided that (i) the Purchaser's equity in the Property as at the
Real Estate Closing Date is at least Five Hundred Thousand Dollars
($500,000.00), and (ii) any first mortgage of the Property does not
exceed Four Million Dollars ($4,000,000.00), the balance of the
Purchase Price, namely, One Million, Two Hundred Thousand Dollars
($1,200,000.00), shall be paid by way of a promissory note issued in
favour of the Vendor (the "PROMISSORY NOTE") and secured by a second
mortgage or charge in favour of the Vendor (the "SECOND MORTGAGE")
(subordinate only to a first mortgage in favour of a financial
institutional lender not to exceed $4,000,000.00), each in the
original principal amount of One Million Two Hundred Thousand
Dollars ($1,200,000.00) maturing on the 15th month anniversary of
the Real Estate Closing Date and bearing interest at the rate of 8%
per annum, calculated and payable monthly, such Promissory Note and
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Second Mortgage to be in the form or substantially in the form of
Schedule "2.2(c)" annexed hereto.
(d) In the event that each of the conditions set out in Section
2.2(c)(i) and (ii) above are not satisfied, the balance of the
Purchase Price, namely, One Million Two Hundred Thousand Dollars
($1,200,000.00) shall be paid by the Purchaser to the Vendor on the
Real Estate Closing by way of certified cheque or bank draft drawn
upon a Schedule 1 Canadian chartered bank made payable to the Vendor
or as it may otherwise direct in writing.
SECTION 2.3 ALLOCATION.
The Vendor and the Purchaser agree that for accounting, income tax and
other purposes, the Purchase Price shall be allocated among the Land, the
Building and the Chattels as follows:
Land $1,600,000
Building $4,100,000
Chattels Nominal
----------
Total $5,700,000
==========
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF VENDOR.
The Vendor represents and warrants to the Purchaser as follows and
acknowledges and confirms that the Purchaser is relying upon such
representations and warranties for the purposes of entering into this Agreement:
(a) The Vendor is a corporation duly incorporated and organized under
the laws of the Province of Ontario, is validly subsisting, has the
corporate power to own and sell to the Purchaser the Property;
(b) The Vendor is not now and will not at the Time of Closing be a
non-resident of Canada within the meaning of the Income Tax Act
(Canada);
(c) The Vendor is not aware of any conditions at the Property which
violate any environmental laws or regulations, other than as
disclosed in the Reports (as that term is defined in the Asset
Purchase Agreement);
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(d) No person, firm or corporation, other than the Purchaser, has any
agreement or right capable of becoming an agreement for the purchase
of the Property or any part thereof;
(e) There are no actions, suits or proceedings currently affecting the
Property or to the actual knowledge of the Vendor, pending or
presently outstanding at law or in equity or before or by any
federal, provincial, municipal or other governmental department,
commission, board, bureau, tribunal or agency which, if successful,
would have a material adverse effect on title to the Property or the
economic value thereof; and
(f) No part of the Land or the Building has been taken or expropriated
by any federal, provincial, municipal or other competent authority
nor has the Vendor received any notice that a proceeding in respect
thereof has been commenced.
SECTION 3.2 QUALIFICATIONS TO REPRESENTATIONS AND WARRANTIES OF VENDOR
Notwithstanding the representations and warranties of the Vendor set out
in Section 3.1 above (the "VENDOR'S REPRESENTATIONS AND WARRANTIES"), same are
hereby qualified to the extent any such Vendor's Representations and Warranties
fail to be true and correct in any material respect as a result of, or in any
way caused by or connected with, directly or indirectly, the Purchaser's use and
occupation of the Property and operation of the Business therefrom pursuant to
the Interim Lease.
SECTION 3.3 REPRESENTATIONS AND WARRANTIES OF PURCHASER.
The Purchaser represents and warrants to the Vendor as follows and
acknowledges and confirms that the Vendor is relying upon such representations
and warranties for the purposes of entering into this Agreement:
(a) The Purchaser is a corporation duly incorporated and organized under
the laws of the Province of New Brunswick, is validly subsisting,
has the corporate power to own and sell to the Vendor the Property;
(b) The Purchaser is not now and will not at the Time of Closing be a
non-resident of Canada within the meaning of the Income Tax Act
(Canada); and
(c) No governmental or regulatory authorizations, consents, approvals,
filings or notices pertaining to the Purchaser are required to be
obtained or given or waiting period is required to expire in order
that the purchase and sale of the Property may be consummated by the
Purchaser or for the Purchaser to carry out its obligations set out
in this Agreement save and except for any required notification
filing under
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the Investment Canada Act. The Purchaser hereby agrees to make the
required notification filing under the Investment Canada Act within
the prescribed time period.
SECTION 3.4 AS IS, WHERE IS.
Subject to Sections 3.1 and 3.2 above, the Purchaser acknowledges and
agrees that 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, size, merchantability or fitness for purpose, quantity or quality thereof,
the existence or non-existence of any hazardous materials, compliance with any
or all environmental laws or in respect of any matter or thing whatsoever
concerning the Property. The Purchaser acknowledges and agrees that it is
responsible to satisfy itself, and is relying solely upon its own inspections
and investigations with respect to the Property in this regard.
ARTICLE 4
TITLE AND INSPECTIONS
SECTION 4.1 DOCUMENTS.
The Vendor shall forthwith make available to the Purchaser, its solicitors
and other authorized representatives, all title documents, abstracts of title,
deeds, engineering and architectural drawings, records containing information
relating to any environmental matters affecting the Property or its use
including any permits, licences, or approvals and results of any environmental
tests and surveys, and all other documents relating to the Property in the
Vendor's possession or under its control, all of which shall become the property
of the Purchaser at the Time of Closing.
SECTION 4.2 SURVEY.
Forthwith after the execution of this Agreement by both parties, the
Vendor shall provide the Purchaser with (i) a copy of an existing survey of the
Land prepared by X.X. Xxxxxx Limited, O.L.S. dated May 2, 2000 (the "SURVEY"),
and (ii) a full set of the plans and specifications for the Building and all
other structures situate on the Land to the extent in the Vendor's possession or
control, in both cases, to the extent not previously delivered to the Purchaser
or its solicitors.
SECTION 4.3 TITLE EXAMINATION.
The Purchaser shall have until the expiration of the Requisition Period to
examine the title to the Property, to satisfy itself that there are no
outstanding municipal work orders, deficiency notices, orders, directives,
orders of non-compliance or other requirements in connection with the Property,
to satisfy itself
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that the present use of the Property may be lawfully continued. If within such
Requisition Period, any valid objection to title (other than a Permitted
Encumbrance) or to any outstanding work order, deficiency notice, order,
directive, notice of non-compliance or other requirement in connection with the
Property or to the fact that the present use may not be lawfully continued
(including legal non-conforming use, if applicable) is made in writing to the
Vendor and which the Vendor is unable to remove, remedy or satisfy and which the
Purchaser will not waive, then this Agreement, notwithstanding any intermediate
acts or negotiations in respect of such objections, shall be at an end. Save as
to any valid objections so made prior to the expiration of the Requisition
Period and except for any objection going to the root of the title to the
Property, the Purchaser shall be conclusively deemed to have accepted the
Vendor's title to the Property, provided that the Purchaser shall have the right
to make further objections arising out of or in respect of any registration
against title to the Property after the expiration of the Requisition Period but
before the Real Estate Closing. Notwithstanding the foregoing, for greater
certainty, the parties acknowledge and agree that the Purchaser shall not be
entitled to requisition nor shall the Vendor be responsible or liable to satisfy
any requisition resulting from or in any way caused by or connected with,
directly or indirectly, the Interim Lease, nor the Purchaser's use and
occupation of the Property and operation of the Business therefrom pursuant to
the Interim Lease.
SECTION 4.4 RELEASE OF INFORMATION.
The Vendor hereby consents to the release to the Purchaser and its
authorized representatives by all appropriate governmental and municipal
authorities of all information on record relating to the Property and the Vendor
further agrees to execute such written consents, in a form satisfactory to the
Purchaser, within five (5) days of request therefor, provided that the Purchaser
shall deliver to the Vendor copies of any and all responses received from such
authorities and, furthermore, provided that all such information shall be
subject to the confidentiality provisions of Section 12.2 of the Asset Purchase
Agreement which are hereby incorporated by reference to form an integral part
hereof. Such consents shall not authorize any on-site or physical inspections of
the Property which are specifically prohibited hereunder and excluded herefrom.
SECTION 4.5 PERMITTED ENCUMBRANCES.
Notwithstanding the provisions of Section 4.3, the Purchaser acknowledges
and agrees that title to the Property may, at the Time of Closing, be subject to
any or all of the following encumbrances ("PERMITTED ENCUMBRANCES") and the
Purchaser agrees to accept a transfer of the Property from the Vendor subject
thereto:
(a) minor easements for the supply of utility services to the Land and
the Building, provided that no such easement materially interferes
with the use of the Land or the Building as currently used;
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(b) all registered development, subdivision and site plan agreements,
provided that the same are complied with insofar as they affect or
relate to the Land or the Building and provided that no such
agreement materially interferes with the use of the Land and the
Building as currently used;
(c) the reservations, limitations, provisos and conditions expressed or
contained in the original grant of the Land from the Crown;
(d) the Interim Lease and all matters otherwise subject to requisition
pursuant to Section 4.3 above but for the exceptions and caveats set
out therein;
(e) all easements, rights-of-ways, encroachments and defects and
irregularities disclosed in the Survey; and
(f) the items listed in Schedule "4.5(f)" hereto.
ARTICLE 5
COVENANTS OF THE VENDOR
SECTION 5.1 COVENANTS.
The Vendor covenants with the Purchaser as follows and acknowledges that
such covenants are being relied upon by the Purchaser:
(a) The Vendor shall do nothing to encumber the Property after the date
of this Agreement and while the same is in effect and shall
discharge all mortgages, charges, liens and encumbrances on the
Property on or before the Real Estate Closing, other than Permitted
Encumbrances;
(b) Without limiting the generality of Section 5.1(a), the Vendor shall
not, without the prior written consent of the Purchaser, which
consent may be arbitrarily withheld, enter into any lease of the
Property or any part thereof after the date of this Agreement and
while the same is in effect, other than the Interim Lease;
(c) Without limiting the generality of Section 5.1 (a), the Vendor shall
not market, advertise, offer for sale, agree to sell or sell the
Property or any part thereof to any other person, firm or
corporation after the date of this Agreement and while the same is
in effect; and
(d) The Vendor shall execute such further assurances as may be
reasonably requested by the Purchaser.
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ARTICLE 6
CONDITIONS
SECTION 6.1 CLOSING CONDITIONS OF PURCHASER.
The obligation of the Purchaser to complete the transaction of purchase
and sale of the Property contemplated herein shall be subject to the fulfilment
of the following terms and conditions, on or before the Real Estate Closing,
which terms and conditions are for the exclusive benefit of the Purchaser and
which may be waived, in whole or in part, only by the Purchaser:
(a) The representations and warranties of the Vendor set forth herein
shall be true, correct and complete in every material respect as if
given at the Time of Closing;
(b) All of the covenants of the Vendor to be complied with or performed
by the Vendor on or before the Real Estate Closing shall have been
duly complied with or performed; and
(c) Each of the deliveries required to be made by the Vendor to the
Purchaser under Section 8.3 hereof shall have been duly made.
SECTION 6.2 CLOSING CONDITIONS OF VENDOR.
The obligation of the Vendor to complete the transaction of purchase and
sale of the Property contemplated herein shall be subject to the fulfilment of
the following terms and conditions, on or before the Real Estate Closing, which
terms and conditions are for the exclusive benefit of the Vendor and which may
be waived, in whole or in part, only by the Vendor:
(a) The representations and warranties of the Purchaser set forth herein
shall be true, correct and complete in every material respect as if
given at the Time of Closing;
(b) All of the covenants of the Purchaser to be complied with or
performed by the Purchaser on or before the Real Estate Closing
shall have been duly complied with or performed;
(c) Each of the deliveries required to be made by the Purchaser to the
Vendor under Section 8.3 hereof shall have been duly made;
(d) No breach or default by the Purchaser shall have occurred under the
Asset Purchase Agreement and the Purchase Transaction (as defined in
the Asset Purchase Agreement) shall have successfully closed in
accordance with the terms thereof; and
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(e) No default or breach by the Purchaser shall have occurred under the
terms of the Interim Lease.
SECTION 6.3 NON-FULFILMENT AND WAIVER BY PURCHASER.
In the event that any condition set forth in Section 6.1 shall not have
been satisfied on or before the Real Estate Closing, then the Purchaser may, at
its option, without prejudice to the exercise of any other right or remedy of
the Purchaser hereunder or otherwise at law or in equity, terminate this
Agreement by notice in writing to the Vendor; provided, however, that the
Purchaser shall be entitled to waive compliance with any of such conditions, in
whole or in part, if it sees fit to do so, without prejudice to any of its
rights of termination in the event of non-performance of any other covenant or
condition contained herein.
SECTION 6.4 NON-FULFILMENT AND WAIVER BY VENDOR.
In the event that any condition set forth in Section 6.1 shall not have
been satisfied on or before the Real Estate Closing, then the Vendor may, at its
option, without prejudice to the exercise of any other right or remedy of the
Vendor hereunder or otherwise at law or in equity, terminate this Agreement by
notice in writing to the Purchaser; provided, however, that the Vendor shall be
entitled to waive compliance with any of such conditions, in whole or in part,
if it sees fit to do so, without prejudice to any of its rights of termination
in the event of non-performance of any other covenant or condition contained
herein.
ARTICLE 7
GST
SECTION 7.1 GST ON LAND AND BUILDING.
The Purchaser hereby represents and warrants to the Vendor that (i) it is
registered for the purposes of Part IX of the Excise Tax Act (Canada) in
accordance with the requirements of Subdivision (d) of Division V thereof; (ii)
it will continue to be so registered at the time of the Real Estate Closing; and
(iii) it is buying the Property on its own account and not as agent. The
Purchaser covenants to deliver to the Vendor upon the Real Estate Closing (i) a
notarial copy of the certificate evidencing its registration for purposes of the
goods and services tax ("GST"), including the registration number assigned to
it; and (ii) the declaration and indemnity of the Purchaser confirming the
accuracy, as at the Real Estate Closing, of the representations and warranties
set out in this paragraph and agreeing to indemnify the Vendor for any amounts
for which the Vendor may become liable as a result of any failure by the
Purchaser to pay the GST payable in respect of the sale of the Land and Building
under Part IX of the Excise Tax Act (Canada). Provided that the Purchaser
delivers a notarial copy of the certificate and the declaration and indemnity as
set out above, then the Purchaser shall not be required to pay to the
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Vendor, nor shall the Vendor be required to collect from the Purchaser, the GST
in respect of the Land and Building. In the event that the Purchaser shall fail
to deliver the notarial copy of the certificate and the declaration and
indemnity as set out above, then the Purchaser shall pay to the Vendor, in
addition to the Purchase Price, in pursuance of the Purchaser's obligation to
pay and the Vendor's obligation to collect GST under the provisions of the
Excise Tax Act (Canada), an amount equal to seven percent (7%) of said Purchase
Price allocated to the Land and Building.
SECTION 7.2 SALES TAX AND GST ON CHATTELS.
The Purchaser shall be liable for and shall pay all land transfer taxes,
federal and provincial sales taxes and all other taxes, duties, registration
charges or other like charges, including GST, properly payable by the Purchaser
upon and in connection with the conveyance and transfer of the Property by the
Vendor to the Purchaser hereunder.
ARTICLE 8
CLOSING
SECTION 8.1 DATE AND PLACE OF CLOSING.
The closing of the transaction of purchase and sale of the Property
contemplated herein shall be effected on the Real Estate Closing Date, at the
offices of Stikeman Elliott LLP, Suite 5300, Commerce Court West, Toronto,
Ontario, or at such other time and place as may be agreed upon by the parties
hereto.
SECTION 8.2 ADJUSTMENTS.
All realty taxes, insurance premiums, hydro expenses, water expenses, gas
rates, fuel expenses and other outgoings or expenditures with respect to the
Property, to the extent that they are not the responsibility of the Purchaser as
tenant under the Interim Lease in which case there shall be no adjustment, shall
be apportioned as necessary and allowed to the Real Estate Closing.
SECTION 8.3 VENDOR'S DELIVERIES ON CLOSING.
On the Real Estate Closing, the Vendor shall deliver to the Purchaser,
against payment by the Purchaser to the Vendor of the balance of the Purchase
Price and delivery to the Vendor of the Purchaser's Closing Documents, the
following (the "VENDOR'S CLOSING DOCUMENTS"):
(a) all conveyances, assignments, affidavits, certificates and other
documents necessary or reasonably required to transfer effectively
the Property to the Purchaser including, without limitation, a
transfer of the Land in statutory form with the Planning Act
(Ontario) statements thereof completed and a xxxx of sale for the
Chattels;
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(b) a statement of adjustments in accordance with Section 8.2;
(c) an undertaking to re-adjust, if necessary, in respect of any of the
items on the statement of adjustments, duly executed by the Vendor;
(d) a copy certified by a senior officer of the Vendor of a joint
resolution of the board of directors and shareholders of the Vendor
authorizing and approving the sale of the Property to the Purchaser
on the terms and conditions herein set forth;
(e) statutory declaration of a senior officer of the Vendor confirming
that as at the date of this Agreement and as at the date of the Real
Estate Closing, the Vendor was not and is not a non-resident of
Canada within the meaning of the Income Tax Act (Canada),
respectively;
(f) all books, files and records in the possession or control of the
Vendor (including keys) pertaining to the ownership, management,
operation or development of the Property or any part thereof, to the
extent not previously delivered to the Purchaser;
(g) vacant possession of the Land and the Building subject to the
Permitted Encumbrances; and
(h) such further documentation relating to the completion of the
transactions contemplated in this Agreement as shall be otherwise
referred to in this Agreement or as the Purchaser shall reasonably
require.
SECTION 8.4 PURCHASER'S DELIVERIES ON CLOSING.
On the Real Estate Closing, the Purchaser shall deliver to the Vendor,
against delivery to the Purchaser of the Vendor's Closing Documents, the
following (the "PURCHASER'S CLOSING DOCUMENTS"):
(a) a certified cheque or bank draft representing the Balance due on the
Real Estate Closing pursuant to Section 2.2 above;
(b) if applicable, the Promissory Note and Second Mortgage duly executed
by the Purchaser and, in the case of the Second Mortgage only, duly
registered on title to the Property as a good and valid second
charge thereof from the Purchaser in favour of the Vendor in
accordance with Section 2.2 above, together with such other
additional collateral security thereto as the Vendor may reasonably
request in order to better secure and perfect the security
contemplated thereby;
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(c) an undertaking to re-adjust, if necessary, in respect of any items
on the statement of adjustments, duly executed by the Purchaser;
(d) a copy certified by a senior officer of the Purchaser of a
resolution of the board of directors of the Purchaser authorizing
and approving the purchase of the Property by the Purchaser on the
terms and conditions herein set forth and execution, delivery and,
where applicable, registration on title to the Property, of the
Promissory Note and Second Mortgage, together with such other
additional collateral security thereto as the Vendor may reasonably
request in order to better secure and perfect the security
contemplated thereby;
(e) statutory declaration of a senior officer of the Purchaser
confirming that as at the date of this Agreement and as at the date
of the Real Estate Closing, the Purchaser was not and is not a
non-resident of Canada within the meaning of the Income Tax Act
(Canada), respectively;
(f) the G.S.T. declaration and indemnity contemplated pursuant to
Section 7.11 of this Agreement duly executed by the Purchaser; and
(g) such further documentation relating to the completion of this
transaction contemplated in this Agreement as shall be otherwise
referred to in this Agreement or as the Vendor shall reasonably
require.
SECTION 8.5 COMPLETION OF CLOSING.
Registration of all the requisite documents in all appropriate offices of
public record and all matters of payment and delivery of documents by each party
to the other shall be deemed to be concurrent requirements of the Real Estate
Closing so that the Real Estate Closing shall not be completed hereunder until
everything has been paid, delivered and registered.
SECTION 8.6 NEGOTIATION OF CLOSING DOCUMENTS.
Except as otherwise expressly provided herein, all closing documents and
other agreements to be entered into or delivered pursuant to this Agreement
shall be in form and substance satisfactory to the Vendor and Purchaser and
their respective counsel, each acting reasonably and in good faith.
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ARTICLE 9
PLANNING ACT
SECTION 9.1 PLANNING ACT COMPLIANCE.
All of the mutual covenants, conditions, agreements and payments contained
in this Agreement shall be conditional upon compliance with the Planning Act
(Ontario). The Vendor covenants with the Purchaser that the Vendor shall obtain
prior to the Real Estate Closing all necessary consents under the Planning Act
(Ontario) for the conveyance of the Property or any part thereof to the
Purchaser and shall comply with any conditions imposed with respect to any such
consents, all at the Vendor's expense.
ARTICLE 10
SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTIES
SECTION 10.1 SURVIVAL.
The covenants, representations and warranties of the Vendor and Purchaser
contained in this Agreement or in the Schedules hereto or contained in
certificates or documents submitted pursuant to or in connection with the
transaction of purchase and sale herein provided for shall survive the Real
Estate Closing Date for a period of six (6) months thereafter (the "CLAIM
PERIOD") and, notwithstanding such Real Estate Closing, and regardless of any
investigation by or on behalf of the Purchaser or Vendor with respect thereto,
shall continue in full force and effect for the benefit of the Purchaser and
Vendor, respectively, during the Claim Period, provided that a written notice of
a claim hereunder is made on or before expiry of the Claim Period, failing which
the parties hereto should be forever released and discharged from any and all
further obligations hereunder.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 NO ASSUMPTION.
Save and except as contemplated under the Asset Purchase Agreement or this
Agreement, the Purchaser shall not be obliged to assume or perform any
obligation of the Vendor in respect of its ownership, management, operation or
development of the Property.
SECTION 11.2 NO REALTY FEES OR COMMISSIONS.
The Vendor acknowledges and agrees that the Purchaser shall not be
responsible for any real estate or brokerage commission or fee payable to the
Agent or to any person arising out of or in connection with the purchase and
sale transaction contemplated by this Agreement. The Purchaser acknowledges and
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agrees that the Vendor shall not be responsible for any real estate or brokerage
commission or fee payable to any person arising out of or in connection with the
purchase and sale transaction contemplated by this Agreement other than the
Agent.
SECTION 11.3 NOTICE.
(1) Any notice, direction or other instrument required or permitted to be
given hereunder shall be in writing and given by delivering it or sending
it by facsimile addressed as follows:
(a) to the Vendor at:
1387746 Ontario Inc.
c/o Bolton Steel Tube Co. Ltd.
000X Xxxxxxx Xx.
Xxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxxx Xxxxx
with a copy to:
Xxxx Xxxxxx XXX
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
P.O. Box 480, 130 King Street West
Toronto, Ontario
M5X 1J5
Attention: Xxxxxx X. Xxxxxxxx
(b) to the Purchaser at:
BST Acquisition Ltd.
X.X. Xxx 00000
Xxxxx Xxxxxx, Xxxxxxxx
X.X.X. 00000
Attention: President
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with a copy to:
Stikeman Elliott LLP
000 Xxx Xxxxxx
0000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxxx X. Xxxxx
(2) Any such notice, direction or other instrument given as aforesaid shall be
deemed to have been effectively given, if sent by facsimile or other
similar form of electronic telecommunications on the next business day
following such transmission or, if delivered, to have been received on the
date of such delivery. Any party may change its address for service from
time to time by notice given in accordance with the foregoing and any
subsequent notice shall be sent to the party at its changed address.
SECTION 11.4 SOLICITORS AS AGENTS.
Notices, approvals, waivers and other documents permitted, required or
contemplated by this Agreement may be given or delivered by the parties hereto
or by their respective solicitors on their behalf.
SECTION 11.5 TENDER.
The Vendor and Purchaser acknowledge that the "Teraview Electronic
Registration System" ("TERS") is operative in the applicable Land Titles Office
in which the Property is registered, and agree that the following provisions
shall govern closing, namely:
(a) Each of the Purchaser and the Vendor shall be obliged to retain a
solicitor who is both an authorized TERS user and in good standing
with the Law Society of Upper Canada, and who are hereby authorized
by the parties hereto to enter into a document registration
agreement in the form adopted by the Joint LSUC-CBAO Committee on
Electronic Registration of Title Documents on July 5, 2002 or any
successor version thereto (hereinafter referred to as the "DOCUMENT
REGISTRATION AGREEMENT"), together with the additional requirement
that the registering solicitor shall also be obliged to provide the
non- registering solicitor with a copy of the registration report
printed by TERS upon the 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 Document
Registration
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Agreement 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 by courier or telefax between said solicitors (such that
each solicitor has a photocopy of telefaxed copy of the Document
Registration Agreement duly executed by both solicitors) by no later
than five (5) days before the Closing Date;
(b) The delivery and exchange of documents, monies and keys to the
Property, and the release thereof to the Vendor and the Purchaser,
as the case may be:
(i) may not occur contemporaneously with the registration of the
Transfer (and other registerable documentation); and
(ii) shall be governed by the Document Registration Agreement,
pursuant to which the solicitor receiving any documents, keys
and/or certified funds will be required to hold same in
escrow, and will not be entitled to release same except in
strict accordance with the provisions of the Document
Registration Agreement;
(c) Notwithstanding anything contained in this Agreement or in the
Document Registration Agreement to the contrary, it is expressly
understood and agreed by the parties hereto that an effective tender
shall be deemed to have been validly made by either party (in this
paragraph called the "TENDERING PARTY") upon the other party (in
this paragraph called the "RECEIVING PARTY") when the solicitor for
the Tendering Party has:
(i) delivered all applicable closing documents, keys and funds to
the Receiving Party's solicitor in accordance with the
provisions of the Document Registration Agreement;
(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) has completed all steps required by TERS in order 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"
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the Transfer/Deed and (any other registerable documentation)
for completeness and granted "access" to the Receiving Party's
solicitor (but without the Tendering Party's solicitor
releasing same 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 aforementioned
documents, keys and/or funds, and without any requirement to have an
independent witness evidencing the foregoing.
SECTION 11.6 DISCHARGE OF INSTITUTIONAL MORTGAGES.
If a discharge of any charge or mortgage held by a corporation
incorporated pursuant to the Loan Companies Act (Canada), Chartered Bank, Trust
Company, Credit Union, Caisse Populaire or Insurance Company is not available in
registrable form on completion, the Purchaser agrees to accept the Vendor's
lawyer's personal undertaking to obtain, out of the closing funds, a discharge
in registrable form and to register same on title to the Property within a
reasonable period of time after completion, provided that on or before
completion the Vendor shall provide to the Purchaser a mortgage statement
prepared by the mortgagee addressed to the Purchaser, Vendor and their
respective solicitors, setting out the balance required to obtain the discharge,
together with a direction executed by the Vendor directing payment to the
mortgagee of the amount required to obtain the discharge out of the balance due
on completion (all such documentation to be in accordance with the Law Society
of Upper Canada publication, The Advisor, with respect to the mortgage
discharges published in September, 1992). In this regard, the Purchaser
acknowledges and agrees that the security held by ABN AMBRO Bank in respect of
the Property qualifies as an institutional mortgage to be discharged, if
necessary, in accordance with the terms hereof.
SECTION 11.7 TIME OF ESSENCE.
Time shall be of the essence of this Agreement in all respects and any
waiver of any time provision shall not be effective unless in writing and signed
by both parties.
SECTION 11.8 ENUREMENT.
This Agreement shall be binding on and shall enure to the benefit of the
successors and permitted assigns of each party.
SECTION 11.9 ASSIGNMENT.
No party hereto may assign its rights and obligations under this Agreement
without the prior written consent of the other parties save and except that the
Purchaser, upon giving written notice to the Vendor at any time on or prior to
five (5) business days prior to the Real Estate Closing Date is entitled to
assign this
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Agreement or any of its rights or obligations under this Agreement to any
wholly-owned subsidiary of Purchaser, subject to the following conditions:
(a) The assignee will become jointly and severally liable with
Purchaser, as a principal and not as a surety, with respect to all
of the obligations of the Purchaser hereunder, including the
representations, warranties, covenants, indemnities and agreements
of Purchaser;
(b) The assignee must execute an agreement confirming the assignment and
the assumption by the assignee of all obligations of Purchaser under
this Agreement; and
(c) The Purchaser unconditionally and irrevocably guarantees the
obligations of the assignee under the Promissory Note and Second
Mortgage and any other collateral security delivered by the assignee
hereunder.
SECTION 11.10 COSTS AND EXPENSES.
Save and except as otherwise set out herein, each of the parties shall
bear their own costs and expenses incurred or to be incurred in negotiating and
preparing this Agreement and in completion of the Real Estate Closing.
SECTION 11.11 FURTHER ASSURANCES.
Each of the parties shall at all times hereafter execute and deliver, at
the request of another party, all such further documents and instruments and
shall do and perform all such further acts as may be reasonably required by that
other party to give full effect to the intent and meaning of this Agreement.
SECTION 11.12 LAND REGISTRY OFFICE.
If the Real Estate Closing Date shall fall upon a day upon which the
relevant Land Registry Office is not open for business, then the Real Estate
Closing Date shall be the next day when the Land Registry Office is open for
business.
SECTION 11.13 EXECUTION BY TELECOPY AND COUNTERPARTS.
This Agreement may be executed by the parties and transmitted by telecopy
and by counterpart and if so executed and transmitted, this Agreement shall be
for all purposes as effective as if the parties had delivered an executed
original Agreement and all counterparts shall together constitute one and same
Agreement.
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IN WITNESS WHEREOF each of the parties hereto have executed this Agreement
effective as of the Effective Date.
1387746 ONTARIO INC.
By: ___________________________________
Name: Xxxxxxx Xxxxx
Title: President
BST ACQUISITION LTD.
By: ___________________________________
Name:
Title: President
