Contract
Exhibit
99.13
|
Toronto
Real
Estate
Board
|
(FOR
USE IN THE PROVINCE OF
ONTARIO)
|
| PURCHASER, |
1330629
ONTARIO INC.
|
agrees
to purchase from
|
|
(full
legal names of all Purchasers)
|
| VENDOR, |
DOMGROUP
LTD.
|
the
following
|
|
(full
legal names of all Vendors)
|
REAL
PROPERTY: ALSO SOMETIMES CALLED THE "LANDS"
Address fronting
on
the North side
of The
Queensway
In
the CITY
OF TORONTO
| and having a frontage of | 550 feet | more or less by a depth of | 142 feet more or less and legally described as |
as
per
Sketch attached and being Lot 219 on Registrar's Compiled Plan 9875
|
(Legal
description of land including easements
not described elsewhere)
|
(the
"property")
|
|
| PURCHASE PRICE: |
THREE
MILLION FIVE-HUNDRED THOUSAND
|
Dollars
(CDN$3,500,000.00)
|
DEPOSIT:
| Purchaser submits ( within 24 hours of ) |
TWENTY-FIVE
THOUSAND
|
Dollars
(CDN$25,000.00)
|
|
acceptance
|
||
|
(herewith
upon acceptance)
|
| cash or negotiable cheque payable to |
THE
Vendor's solicitors
|
to
be held in trust pending completion or
|
other
termination of this Agreement and to be credited toward the Purchase Price
on
completion. Purchaser agrees to pay the balance as follows:
1.
Purchaser
to pay the sum of SEVENTY-FIVE THOUSAND ($75,000.00) CANADIAN DOLLARS by
cash or
certified cheque, to the Vendor's solicitors, as a further deposit to be
held by
the Vendor's solicitors, in trust, pending completion or other termination
of
this agreement and to be credited on account of the purchase price on
completion, such further deposit to be paid within twenty-four (24) hours
of the
waiver by the Purchaser of the condition contained in paragraph 3 of Schedule
"A" hereto;
2.
Purchaser
to pay on closing by certified cheque to the Vendor, subject to the usual
adjustments, a sum, which together with the two deposits noted above equals
twenty-five (25%) percent of the Purchase Price; and
3.
For
the
balance of the purchase price the Vendor shall take back and the Purchaser
shall
give back a first mortgage having a term of three (3) years and otherwise
on the
terms and conditions as set out in Schedule "B" hereto.
|
|
SCHEDULE(S)
"A", "B" and Sketch attached hereto form(s) part of this
Agreement.
|
| 1. | CHATTELS INCLUDED: n/a |
| 2. | FIXTURES INCLUDED: n/a |
| 3. | RENTAL ITEMS: The following equipment is rented and not included in the Purchase Price. The Purchaser agrees to assume the rental contract(s), if assumable: |
|
4.
|
IRREVOCABILITY:
This Offer shall be irrevocable by VENDOR until 6:00 p.m. on the
13th
day of
March, 2002, after which time, if not accepted, this Offer shall
be null
and void and the deposit shall be returned to the Purchaser in
full
without interest (the "Effective
Date").
|
|
5.
|
COMPLETION
DATE: This Agreement shall be completed by no later than 6:00
p.m. on the ________ day of (see paragraph 8 Schedule A)_____,
20_____. Upon completion, vacant possession of the property
shall be given to the Purchaser unless otherwise provided for in
this
Agreement.
|
|
6.
|
NOTICES:
Vendor hereby appoints the Listing Broker as Agent for the purpose
of
giving and receiving notices pursuant to this
Agreement. Only if the Co-operating Broker
representsthe interests of the Purchaser in this
transaction, the Purchaser hereby appoints the Co-operating
Broker as Agent for the purpose of giving and receiving notices
pursuant
to this Agreement. Any notice relating hereto or provided for
herein shall be in writing. This Offer, any counter offer,
notice of acceptance thereof, or any notice shall be deemed given
and
received, when hand delivered to the address for service provided
in the
Acknowledgement below, or where a facsimile number is provided
herein,
when transmitted electronically to that facsimile
number.
|
| FAX No. | 000-000-0000 (For delivery of notices to Vendor) | Fax No. | 000-000-0000 (For delivery of notices to Purchaser |
|
7.
|
GST:
If this transaction is subject to Goods and Services Tax (G.S.T.),
then
such tax shall be ______________________
the
|
| (included in/in addition to) |
|
|
Purchase
Price.
|
If
this
transaction is not subject to G.S.T., Vendor agrees to certify on or before
closing, that the transaction is not subject to G.S.T.
|
8.
|
TITLE
SEARCH: Purchaser shall be allowed until thirty
(30) days before Closing , (Requisition Date) to examine the
title to the property at his own expense and until the earlier
of (i)
thirty days from the later of the Requisition Date or the date
on which
the conditions in this Agreement are fulfilled or otherwise waived
or,
(ii) five days prior to completion, to satisfy himself that there
are no
outstanding work orders or deficiency notices affecting the property,
that
its present use
( )
may be lawfully continued and that the principal building may be
insured
against risk of fire. Vendor hereby consents to the
municipality or other governmental agencies releasing to Purchaser
details
of all outstanding work orders affecting the property, and Vendor
agrees
to execute and deliver such further authorizations in this regard
as
Purchaser may reasonably require.
|
|
9.
|
FUTURE
USE: Vendor and Purchaser agree that there is no representation
or warranty of any kind that the future intended use of the property
by
Purchaser is or will be lawful except as may be specifically provided
for
in this Agreement.
|
|
10.
|
TITLE:
Provided that the title to the property is good and free from all
registered restrictions, charges, liens, and encumbrances except
as
otherwise specifically provided in this Agreement and save and
except for
(a) any registered restrictions or covenants that run with the
land
providing that such are complied with; (b) any registered municipal
agreements with publicly regulated utilities providing such have
been
complied with, or security has been posted to ensure compliance
and
completion, as evidenced by a letter from the relevant municipality
or
regulated utility; (c) any minor easements for the supply of domestic
utility or telephone services to the property or adjacent properties;
and
(d) any easements for drainage, storm or sanitary sewers, public
utility
lines, telephone lines, cable television lines or other services
which do
not materially affect the present use of the property. If
within the specified times referred to in paragraph 8 any valid
objection
to title or to any outstanding work order or deficiency notice,
or to the
fact the said present use may not lawfully be continued, or that
the
principal building may not be insured against risk of fire is made
in
writing to Vendor and which Vendor is unable or unwilling to remove,
remedy or satisfy or obtain insurance save and except against risk
of fire
in favour of the Purchaser and any mortgagee (with all related
costs at
the expense of the Vendor, and which Purchaser will not waive,
this
Agreement notwithstanding any intermediate acts or negotiations
in respect
of such objections, shall be at an end and all monies paid shall
be
returned without interest or deduction and Vendor, Listing Broker
and
Co-operating Broker shall not be liable for any costs or
damages. Save as to any valid objection so made by such day and
except for any obligation going to the root of the title, Purchaser
shall
be conclusively deemed to have accepted Vendor's title to the
property.
|
|
11.
|
CLOSING
ARRANGEMENTS: Where each of the Vendor and Purchaser retain a
lawyer to complete the Agreement of Purchase and Sale of the property,
and
where the transaction will be completed by electronic registration
pursuant to Part III of the Land Registration Reform Act, R.S.O.
1990,
Chapter L4 and any amendments thereto, the Vendor and Purchaser
acknowledge and agree that the delivery of documents and the release
thereof to the Vendor and Purchaser may, at the lawyer's discretion:
(a)
not occur contemporaneously with the registration of the transfer/deed
(and other registrable documentation), and (b) be subject to conditions
whereby the lawyer receiving documents and/or money will be required
to
hold them in trust and not release them except in accordance with
the
terms of a written agreement between the
lawyers.
|
|
12.
|
DOCUMENTS
AND DISCHARGE: Purchaser shall not call for the production of any
title deed, abstract, survey or other evidence of title to the
property
except such as are in the possession or control of Vendor. If requested
by
Purchaser, Vendor will deliver any sketch or survey of the property
within
Vendor's control to Purchaser as soon as possible and prior to
the
Requisition Date. If a discharge or any Charge/Mortgage held by
a
corporation incorporated pursuant to the Trust And Loan Companies
Act
(Canada), Chartered Bank, Trust Company, Credit Union, Caisse Populaire
or
Insurance Company and which is not to be assumed by Purchaser on
funds, a
discharge in registrable form and to register same on title within
a
reasonable period of time after completion, provided that on or
before
completion Vendor shall provide to Purchaser a mortgage statement
prepared
by the mortgagee setting out the balance required to obtain the
discharge,
together with a direction executed by Vendor directing payment
to the
mortgagee of the amount required to obtain the discharge out of
the
balance due on completion.
|
|
13.
|
INSPECTION:
Purchaser acknowledges having had the opportunity to inspect the
property
and understands that upon acceptance of this Offer there shall
be a
binding agreement of purchase and sale between Purchaser and
Vendor.
|
|
14.
|
INSURANCE:
All buildings on the property and all other things being purchased
shall
be and remain until completion at the risk of Vendor. Pending completion,
Vendor shall hold all insurance policies, if any, and the proceeds
thereof
in trust for the parties as their interests may appear and in the
event of
substantial damage, Purchaser may either terminate this Agreement
and have
all monies paid returned without interest or deduction or else
take the
proceeds of any insurance and complete the purchase. No insurance
shall be
transferred on completion. If Vendor is taking back a Charge/Mortgage,
or
Purchaser is assuming a Charge/Mortgage, Purchaser shall supply
Vendor
with reasonable evidence of adequate insurance to protect Vendor's
or
other mortgagee's interest on
completion.
|
|
15.
|
PLANNING
ACT: This Agreement shall be effective to create an interest
in
the property only if Vendor complies with the subdivision control
provisions of the Planning act by completion and Vendor covenants
to
proceed diligently at his expense to obtain any necessary consent
by
completion.
|
|
16.
|
DOCUMENT
PREPARATION: The Transfer/Deed shall, save for the Land Transfer
Tax Affidavit, be prepared in registrable form at the expense of
Vendor,
and any Charge/Mortgage to be given back by the Purchaser to Vendor
at the
expense of the Purchaser. If requested by Purchaser, Vendor covenants
that
the Transfer/Deed to be delivered on completion shall contain the
statements contemplated by Section 50(22) of the Planning Act,
R.S.O.
1990.
|
|
17.
|
RESIDENCY:
Purchaser shall be credited towards the Purchase Price with the
amount, if
any, necessary for Purchaser to pay to the Minister of National
Revenue to
satisfy Purchaser's liability in respect of tax payable by Vendor
under
the non-residency provisions of the Income Tax Act by reason of
this sale.
Purchaser shall not claim such credit if Vendor delivers on completion
the
prescribed certificate or a statutory declaration that Vendor is
not then
a non-resident of Canada.
|
|
18.
|
ADJUSTMENTS:
Any rents, mortgage interest, realty taxes including local improvement
rates and unmetered public or private utility charges and unmetered
cost
of fuel, as applicable, shall be apportioned and allowed to the
day of
completion, the day of completion itself to be apportioned to
Purchaser.
|
|
19.
|
TIME
LIMITS: Time shall in all respects be of the essence hereof
provided that the time for doing or completing of any matter provided
for
herein may be extended or abridged by an agreement in writing signed
by
Vendor and Purchaser or by their respective lawyers who may be
specifically authorized in that
regard.
|
|
20.
|
TENDER:
Any tender of documents or money hereunder may be made upon Vendor
or
Purchaser or their respective lawyers on the day set for completion.
Money
may be tendered by bank draft or cheque certified by a Chartered
Bank,
Trust Company, Province of Ontario Savings Office, Credit Union
or Caisse
Populaire.
|
|
21.
|
FAMILY
LAW ACT: Vendor warrants that spousal consent is not necessary
to
this transaction under the provisions of the Family Law Act, R.S.O.
1990
unless Vendor's spouse has executed the consent hereinafter
provided.
|
|
22.
|
UFFI:
Vendor represents and warrants to Purchaser that during the time
Vendor
has owned the property, Vendor has not caused any building on the
property
to be insulated with insulation containing ureaformaldehyde, and
that to
the best of the Vendor's knowledge no building on the property
contains or
has ever contained insulation that contains ureaformaldehyde. This
warranty shall survive and not merge on the completion of this
transaction
and if the building is part of a multiple unit building, this warranty
shall only apply to that part of the building which is subject
of this
transaction.
|
|
23.
|
CONSUMER
REPORTS: The Purchaser is hereby notified that a consumer report
containing credit and/or personal information may be referred to
in
connection with this transaction.
|
|
24.
|
AGENCY:
It is understood that the brokers involved in the transaction represent
the parties as set out in the Confirmation of Representation
below.
|
|
25.
|
AGREEMENT
IN WRITING: If there is conflict or discrepancy between any
provision added to this Agreement (including any Schedule attached
hereto)
and any provision in the standard pre-set portion hereof, the added
provision shall supersede the standard pre-set provision to the
extent of
such conflict or discrepancy. This Agreement including any Schedule
attached hereto, shall constitute the entire Agreement between
Purchaser
and Vendor. There is no representation, warranty, collateral agreement
or
condition, which affects this Agreement other than as expressed
herein.
This Agreement shall be read with all changes of gender or number
required
by the context.
|
|
26.
|
SUCCESSORS
AND ASSIGNS: The heirs, executors, administrators, successors and
assigns of the undersigned are bound by the terms
herein.
|
SPOUSAL
CONSENT: The Undersigned Spouse of the Vendor hereby
consents in the disposition evidenced herein pursuant to the
provisions of the family Law Act, R.S.O. 1990, and hereby agrees with the
Purchaser that he/she will execute all necessary or incidental documents
to give
full force and effect to the sale evidenced herein.
| (witness) |
(Spouse)
|
(seal) DATE
|
CONFIRMATION
OF EXECUTION: Notwithstanding anything contained herein to
the contrary, I confirm this Agreement with all changes both typed and
written
was finally executed.
by
all
parties a.m./p.m..
this day
of ,20
at (Signature
of Vendor or
Purchaser)
ACKNOWLEDGEMENT
|
I
acknowledge receipt of my signed copy of this accepted Agreement
of
Purchase and Sale and I authorize the Agent to forward a copy to
my
lawyer:
(Name) DATE
(Vendor) DATE
Address for
Service
Tel.
No.
( )
Vendor's Fraser,
Milner, (Xxxxx Xxxx)
Lawyer
Address 1
First Canadian Place, 000 Xxxx Xx. Xxxx, Xxxxxxx,
Xxxxxxx
X0X 0X0
(000) 000-0000
(000) 000-0000
Tel
No. FAX
No.
|
I
acknowledge receipt of my signed copy of this accepted Agreement
of
Purchase and Sale and I authorize the Agent to forward a copy to
my
lawyer.
(Purchaser) DATE
(Purchaser) DATE
Address
for Service 000 Xxxxxx Xxxxxx, Xxxxxxx, X0X 0X0
Tel
No.
000 000-0000
Purchaser's
Lawyer Owens, Wright, LLP, (Xxxxxx X. Xxxxxxx
Address
00 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, X0X 0X0
( 000 )
000-0000 ( 000)
000-0000
Tel
No. FAX
No.
|
SCHEDULE
"A"
CO-OPERATION
1. From
and
after the date of acceptance herein, the Vendor agrees to co-operate with
the
Purchaser, and to execute, and deliver without payment except for reasonable
solicitor's fees, any and all plans, applications and documents which may
in the
Purchaser's opinion be necessary or desirable in order to facilitate the
development and servicing of the Property, and it shall consent in writing
to
any submission of draft plan of condominium, site plan applications or to
any
official plan amendment, zoning application, severance or minor variance
application or applications which the Purchaser may make.
SALES
CENTRE
2. The
Vendor agrees that the Purchaser, immediately upon waiver of the condition
contained in paragraph 3 of this Schedule "A", may have access to the Property
and thereafter upon 45 days written notice to the Vendor, may use the existing
building (which shall be vacant and in a broom-swept condition) on the Property,
as a sales centre and may erect all signage in connection therewith and conduct
its sales program therefrom. The Vendor also agrees to allow the Purchaser,
if
required, to hook up to any existing hydro, at the Purchaser's sole cost
and
expense. The Purchaser shall comply with all municipal by-laws and obtain
all
appropriate consents and insurance.
APPROVAL
PERIOD
3. (a) The
Purchaser shall have a period of ninety (90) days from the Effective Date
(the
"Approval Period") to enter on the Property and to conduct such
physical and other inspections and tests of the Property as it deems necessary
and to conduct such studies and investigations of the Property or relating
to
the Property by such agents, consultants, engineers, surveyors or other persons
as it deems necessary, in order to determine in its sole, arbitrary and absolute
discretion the viability and suitableness of the Property for purchase and
development. The Vendor assumes no responsibility for the Purchaser
hereby indemnifies and saves harmless the Vendor from and against all claims,
demands, costs, damages, expenses and liabilities whatsoever arising out
of the
Purchaser's presence on the Property or of its activities on or in connection
with the Property. In the event that the Purchaser terminates this
Agreement in accordance with the provisions of paragraph 3(b) of this Schedule
"A", the Purchaser shall restore the Property at its expense such that the
Property is in the same condition as it was prior to the Purchaser conducting
any such physical and other inspections and tests of the Property.
(b) If
the Purchaser or its solicitors notifies the Vendor or its solicitors in
writing
on or before the end of the Approval Period that it is not satisfied in its
sole, arbitrary and absolute discretion with its physical and other examination
of the Property, or with the viability and suitableness of the Property for
purchase and development, then notwithstanding any intermediate acts or
negotiations, this Agreement shall be of no further force or effect and shall
thereupon be terminated and the deposit(s) shall forthwith be returned to
the
Purchaser, with interest and without deduction whatsoever and the Vendor
and the
Purchaser shall be relieved of any obligations or liabilities pursuant to
this
Agreement, except the aforesaid obligation to restore the Property.
PURCHASE
PRICE ADJUSTMENT
4. The
purchase price of $3,500,000.00 (the "Purchase Price") has been
arrived at on the basis of the Purchaser obtaining from the City of Toronto
the
right to build 000,000 xxxxxx xxxx xx xxxxx xxxxx xxxx of residential dwelling
units (being the total area of all residential floors above grade measured
between the outside surfaces of exterior walls or between the outside surfaces
of exterior walls and the center line of party walls dividing a residential
dwelling unit from any other residential dwelling unit or other portion of
a
building, but excluding any machinery and boiler rooms, stairwells and elevator
shafts). In the event, on or before closing, the Property is zoned in
final and binding form (with no appeals, appeal periods or references
outstanding) to allow for gross floor area (as previously defined) in excess
of
251,856 square feet, then the Purchase Price shall be increased by a sum
equal
to $12.30 times each square foot of gross floor area in excess of 251,856
including retail gross floor area. In no event shall the Purchase
Price be reduced should the residential gross floor area be less than 251,856
square feet.
REPRESENTATIONS
AND WARRANTIES
5.
The
Vendor represents and warrants to the Purchaser and hereby acknowledges and
confirms that the Purchaser is relying on such representations and warranties
in
connection with the purchase by it of the Lands, that:
|
(a)
|
Expropriation
|
no
notice
has been received by the Vendor, its agents or employees relating to any
threatened or impending condemnation or expropriation affecting the
Property;
|
(b)
|
No
Other Agreements
|
no
other
Person, other than the Purchaser has any written or oral agreement, option,
understanding or commitment for the purchase from the Vendor of any interest
in
the Property or any part thereof and the Vendor has full right, power and
authority to enter into this Agreement; and
|
(c)
|
Litigation
|
there
are
no actions, suits or proceedings to the knowledge of the Vendor or its servants,
agents or any of them, threatened against or affecting the Property or the
Vendor relating to the Property, at law or in equity before any
Authority.
COVENANTS
6.
Vendor's
Covenants
The
Vendor covenants and agrees with the Purchaser that:
|
(i)
|
except
for the encumbrances described on Schedule "B", the Vendor shall
discharge
by the Closing any and all mortgages, charges, security interests,
debentures, liens, easements, rights-of-way, licenses, leases,
tenancies,
or restrictions, options or any other encumbrance or cloud of any
nature
or kind whatsoever relating to or registered against the Property;
and
|
|
(ii)
|
each
of the representations and warranties of the Vendor made pursuant
to this
Agreement shall be true and correct and complied with fully in
all respect
at Closing.
|
CONDITIONS
7. (a) The
fulfillment of each of the following is a condition precedent to the Purchaser's
obligations to complete the purchase of the Property. The parties
acknowledge that these conditions are inserted for the Purchaser's benefit
only
and may be waived by the Purchaser or its solicitors in whole or in part,
by
notice to the Vendor or its solicitors at any time or times prior to the
date by
which the condition must be satisfied:
|
(i)
|
that
on or before the Condition Date: (a) the Purchaser has obtained
site plan
approval from the City of Toronto, pursuant to The Planning Act
(Ontario)for the Purchaser's Development, which site plan approval
is
final and there are no appeal periods, appeals or references outstanding,
all on terms and conditions satisfactory to the Purchaser in its
sole and
absolute discretion; and (b) the City of Toronto has passed a by-law,
in
final form, with no appeals, appeal periods or references outstanding,
zoning the Lands for the Purchaser's Development, with no holding
prefix
or holding designation whatsoever.
|
|
(b)
|
If
any of the conditions set forth in paragraph 7(a) shall not be
fulfilled
or complied with in accordance with their terms, the Purchaser
may,
subject to paragraph 7(c) hereof, at its option,
either:
|
|
(i)
|
rescind
this Agreement by notice to the Vendor and in such event deposits
shall
forthwith be returned to the Purchaser together with interest and
without
deduction and the Purchaser and the Vendor shall be relieved from
all
obligations hereunder; or
|
|
(ii)
|
complete
the transaction.
|
Provided
that any of the said conditions may be waived in whole or in part by the
Purchaser without prejudice to its rights, including without limitation the
right of rescission in the event of the non-fulfillment or non-performance
of
any other condition or conditions.
|
(c)
|
In
the event that the conditions contained in Paragraph 7(a) have
not been
complied with, in full, on or before the Condition Date, the Purchaser
shall have the option to be exercised in writing, on or before
that date,
of extending the Condition Date for: (i) a period of twelve (12)
months in
the event the zoning condition has not been satisfied; and (ii)
a period
of four (4) months in the event the zoning condition has been satisfied
but the site plan condition has not. In the event that neither
the zoning condition nor the site plan condition is satisfied on
or before
the Condition Date then the Purchaser's total extension rights
amount to
sixteen (16) months. During each extension period as provided
for herein, the provisions of paragraph 7 hereof shall continue
to
apply. In the event that the Condition Date is not extended by
the Purchaser from time to time or the conditions are not waived,
and in
any event, if the conditions have not been satisfied or waived
by the
expiry of the last of the extended periods, then thereupon this
Agreement
shall be null and void and the Vendor shall forthwith return to
the
Purchaser all deposit monies paid with interest and without deduction
whatsoever and the parties hereto shall have no rights, obligations
or
liabilities whatsoever with respect to this
Agreement.
|
|
(d)
|
The
Purchaser may accelerate the Closing Date on 10 days' written notice
to
the Vendor.
|
CLOSING
DATE
8. This
Agreement and the transaction arising therefrom shall be completed thirty
(30)
days after the conditions in paragraph 7 hereof have been satisfied or waived
by
the Purchaser (which date of completion shall be referred to as the "closing",
the "closing date", the "Closing" or the "Closing Date").
NON-MERGER
9. The
Vendor's representations, warranties, covenants and agreements contained
in this
Agreement shall not merge on the closing of this transaction or on the delivery
and registration of a transfer but shall survive the closing of this
transaction.
G.S.T.
10. If
this
transaction is subject to Goods and Services Tax ("G.S.T.") pursuant to The
Excise Tax Act (Canada), (the "Act"), then the Purchaser shall be liable
for,
shall self-assess and remit to the appropriate authority all G.S.T. which
is
payable under the Act in connection with the Lands. Provided that the
Purchaser has provided satisfactory evidence that it is a registrant under
the
Act, the Vendor shall not collect G.S.T. on closing and shall allow the
Purchaser to self-assess and remit G.S.T. in accordance with the
Act.
AGENTS
11. The
parties acknowledge and agree that the Purchaser has not been introduced
to the
Property by any broker or agent.
DEFINITIONS
12. The
following terms shall have, for all purposes of this Agreement, the following
meanings:
|
(a)
|
"Agreement"
means this agreement of purchase and sale as it may be amended
or
supplemented from time to time and all Schedules referred to
herein;
|
|
(b)
|
"Authorities"
means any municipal, regional, provincial or federal department,
commission, board, bureau, branch, agency, regulating authority
or other
authority or utility or quasi utility whatsoever having or purporting
to
have jurisdiction over the Lands. "Authority" has a
corresponding meaning;
|
|
(c)
|
"Condition
Date" means March 31, 2003;
|
|
(d)
|
"Lands"
has the same meaning as "Property";
|
|
(e)
|
"Person"
means an individual, partnership, corporation, trust or unincorporated
organization, a government or agency or political subdivision thereof
or
any combination of the foregoing;
and
|
|
(f)
|
"Purchasers
Development": means such mixed use commercial/residential development
relating to the Lands satisfactory to the Purchaser in its sole,
absolute
and arbitrary discretion.
|
SCHEDULE
"B"
MORTGAGE
CLAUSES
|
1.
|
The
Mortgagee agrees to co-operate with the Mortgagor, and to execute,
without
payment of any principal and/or interest, or any other monies,
any and all
plans, documents and agreements whatsoever which may be necessary
or
desirable in order to facilitate the development of the real property
including the registration of a plan or plans of condominium, or
the
construction of any building or dwelling unit upon the real property
and
it shall consent in writing to any condominium plan application,
site plan
agreement, official or district plan amendments, rezoning application
or
applications or to any severance or minor variance application
or
applications which the Mortgagor may make including the execution
of any
and all agreements or documents required by the appropriate municipality
or by any governing authority or public agency or utility as a
condition
of permitting or completing any such condominium, site plan, official
or
district plan amendment, rezoning, severance or minor variance,
provided
only that the Mortgagee incurs no costs, expenses or financial
obligation
in connection therewith.
|
|
2.
|
The
Mortgagee shall execute and deliver without payment of any principal
and/or interest, or other monies, such partial discharge or discharges
or
other assurances as may be required to convey to any municipality,
public
authority, other governmental body or authority, school board,
utility
(whether public or private), or conservation authority, any lands
required
for municipal, public or any other purposes, in order to permit
an
official or district plan amendment, zoning, severance or minor
variance
application to proceed or to comply with any conditions thereof
or to
complete, comply with or obtain the approval of any site plan agreement
or
the registration of a plan or plans of condominium, or for any
other
municipal or other public purpose, including but without limiting
in any
way the generality of the foregoing, such public or private purposes
as
roads, road widenings, highways, walkways, reserves and
parks.
|
|
3.
|
Subject
to the provisions of Section 6, the Mortgagee agrees to grant partial
discharges of any portion of the mortgaged lands upon payment in
reduction
of principal, of a sum prorated as based on the area of the lands
to be
discharged against the total area of the mortgaged property, together
with
interest accrued thereon and the Mortgagee's fees therefor, provided
that
the Mortgagor shall comply with the provisions of The Planning
Act.
|
|
4.
|
The
Mortgagee agrees to execute and deliver without any payment of
principal,
interest or other monies, such partial discharge or discharges
and any
consents, subordinations or postponements required in order to
create and
grant easements, rights-of-way, licences or reserves for governmental,
municipal or utility purposes, whether public, quasi public or
private and
whether for gas, water, electricity, telephone, sewer (sanitary
and
storm), cable television or similar services or purposes, provided
that
the Mortgagee incurs no costs, expenses or financial obligations
in
connection therewith. Furthermore, the Mortgagee agrees to
consent to and execute in writing any document required by the
Mortgagor
in connection with the entering into of any condominium, development,
site
plan, engineering or similar development agreement with the relevant
municipality, public or private utility or other governmental authority,
provided that the Mortgagee incurs no costs, expenses or financial
obligations in connection therewith. The Mortgagor shall have
the right to do grading, construct roads, install water mains,
sewers and
other services and utilities within the mortgaged property and
to remove
or demolish any buildings on the mortgaged property and to otherwise
develop the mortgaged property without being in default herein
or without
creating waste.
|
|
5.
|
The
Mortgagee agrees to consent in writing to any application or document
that
may be required to register the mortgaged property as a plan of
subdivision pursuant to the Planning Act, or a plan of condominium
pursuant to the Condominium Act or to have the lands registered
under the
Land Titles Act or under any certification of titles procedure
under any
other statute, provided that the Mortgagee incurs no costs, expenses
or
financial obligations in connection
therewith.
|
|
6.
|
(a) Provided
that the Mortgagor is not in default of this Mortgage, the Mortgagee
agrees to grant partial discharges on a per unit (the "Unit") basis
for
registered and proposed plans of condominium on the following basis
of
payment of principal, together with all interest accrued thereon
and the
Mortgagee's fees therefor:
|
|
Number
of Unit(s)
to
be
discharged
Total
number of dwelling units
within
any registered and proposed
plan
of condominium
approved
for the charged property
|
Original
principal
amount
x of
mortgage
|
|
(b)
|
In
addition to the partial discharge privilege in paragraphs 3 and
6(a)
above, the Mortgagor shall pay to the Mortgagee with each partial
discharge, a further payment of $3,000.00 per dwelling
unit.
|
|
7.
|
The
Mortgagee agrees to postpone and subordinate, this charge, all
principal
and interest relating thereto, the security and debt thereby created,
to
any financings (including all and any replacements, renewals or
substitutions of any such financing) arranged by the Mortgagor,
for the
construction of buildings and dwelling units on the mortgaged property,
for securing purchaser deposits (whether for the initial $20,000.00
or
excess deposits, if applicable) under The Condominium Act, and
Ontario New
Home Warranty program and for the provision of necessary bonds
and letters
of credit to the Ontario New Home Warranty program, to secure deposits,
construction and warranties.
|
|
8.
|
The
Mortgagee shall upon written request execute any of the documentation
or
discharges as provided for in this mortgage, or do any other matter
or
thing as may be provided for or as the Mortgagee may have agreed
to
pursuant to this mortgage within seven (7) days of written request
therefor.
|
|
9.
|
The
Mortgagee, its successors and assigns, agrees to provide to the
Mortgagor's construction lender (the "Lender"), from time
to time, an acknowledgment of the Mortgagee confirming that the
Lender may
obtain partial discharges of this Mortgage, on the same terms and
conditions as herein contained.
|
|
10.
|
Interest
shall be calculated quarter-yearly, at the Bank of Nova Scotia
prime rate
of interest but interest shall be fully capitalized and not be
paid,
except upon a partial discharge as provided for in paragraphs 3
and 6
hereof or otherwise at the end of the term of this
Mortgage.
|
|
11.
|
Notwithstanding
anything above to the contrary, the Mortgagee shall not be required
to
provide a partial discharge where to do so would leave landlocked
any
undischarged lands.
|
|
12.
|
If
the Mortgagor is delayed or prevented from completion of the building(s)
to be erected on the mortgaged lands and the eventual closings
of the
dwelling units therein contained by reason of strikes, fire, storm,
flood,
earthquake, explosion, sabotage or other similar event beyond the
control
of the Mortgagor and as a result thereof, the Mortgage term matures
prior
to the closings of the dwelling units, then the Mortgagee agrees
that the
Mortgage term shall automatically be extended from time to time
for a
period or periods of time equivalent to the period of such
delay.
|
SCHEDULE
"B"
to
Agreement of Purchase and Sale between DOMGROUP LTD. as Vendor and
1330629
ONTARIO INC., as Purchaser
PERMITTED
ENCUMBRANCES
|
1.
|
Site
Control Agreement with the Borough of Etobicoke registered October
19,
1978 as Instrument No. EB501465.
|
