EXHIBIT 10.28
AGREEMENT OF PURCHASE AND SALE
PURCHASER............GIFFELS DEVELOPMENTS INC............, agrees to purchase
from
(Full legal names of all Purchasers)
VENDOR............EGL EAGLE GLOBAL LOGISTICS (CANADA) CORP.........the following
(Full legal names of all Vendors)
REAL PROPERTY:
Fronting on the...NORTH......side of...MATHESON BOULEVARD......in the......CITY
OF MISSISSAUGA......., Regional Municipality of...PEEL..... and having a
frontage of.........1,668 FEET.........more or less and legally described aS:
.............PART OF LOT 2, CONCESSION 4 EAST OF HURONTARIO STREET (DESIGNATED AS
PARTS 10,11,12,13,14,15,16,17, AND 20 ON REFERENCE PLAN 43R-25100), CITY OF
MISSISSAUGA, REGIONAL MUNICIPALITY OF PEEL............(the "PropERTY").
PURCHASE PRICE:....SEVEN MILLION FIVE HUNDRED AND FIFTY SEVEN THOUSAND ONE
HUNDRED AND THREE Thousand................Dollars (CDN$......7,557,103.00)
DEPOSIT:
Purchaser agrees to submit within 3 business days of mutual acceptance of this
offer ONE HUNDRED THOUSAND Dollars (CDN$......100,000.00)
cash or negotiable cheque payable to ......GOWLING LAFLEUR AND HENDERSON
LLP..... to be held in trust in an interest bearing account OR term deposit
pending completion or other termination of this Agreement and to be credited
together with interest thereon toward the Purchase Price on completion.
Purchaser agrees to pay the balance of the Purchase Price, subject to the usual
adjustments, by certified cheque to the Vendor on closing.
Schedules(s)........................A,B....................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:
......................................N/A.......................................
4. IRREVOCABILITY: This Offer shall be irrevocable by Purchaser until...5:00
PM.... on the...27th....day of........DECEMBER......, 2002 after which time, if
not accepted, this Offer shall be null and void.
5. COMPLETION DATE: See Schedule A. Upon completion, vacant possession of the
Property shall be given to the Purchaser unless otherwise provided for in this
Agreement.
6. TITLE SEARCH: Purchaser shall be allowed until December 30, 2002 (Requisition
Date) to examine the title to the Property at his own expense to satisfy himself
that there are no outstanding work orders or deficiency notices affecting the
Property, that its present use (......VACANT LAND ZONED INDUSTRIAL M-2........)
may be lawfully continued.. 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.
7. 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.
8. TITLE: Provided that the title to the Property is good and free from all
registered restrictions, charges, liens, and encumbrances except as otherwise
specially provided in this Agreement and save and except (a) any registered
municipal agreements and registered agreements with publicly regulated utilities
providing such have been compiled with, or security has been posted to ensure
compliance and completion, as evidenced by a letter from the relevant
municipality or regulated utility; (b) any minor easements for the supply of
domestic utility or telephone services to the Property or adjacent properties;
(c) 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; and (d) in cases (a) to (c)
above either individually or in the aggregate, do not in the Purchaser's sole
and unfettered opinion materially interfere with the Purchaser's intended use of
the Property. If within the specified times referred to in paragraph 6 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 is made in writing
to Vendor and which Vendor is unable or unwilling to remove, remedy or satisfy
and which Purchaser will not waive, this Agreement notwithstanding any
intermediate acts or negotiations in respect to such objections, shall be at an
end and all monies paid shall be returned with interest and without 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 objection going to the root of the title, Purchaser shall be
conclusively deemed to have accepted Vendor's title to the Property.
9. DOCUMENTS AND DISCHARGE: Purchaser shall not call for the production of any
title deed, abstract, or other evidence of title excepting a survey to the
Property except such as are in the possession or control of Vendor. If a
discharge of 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 completion, is not available in registerable form on completion,
Purchaser agrees to accept Vendor's lawyer's personal undertaking to obtain, out
of the closing funds, a discharge in registerable 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.
10. INSURANCE: All buildings on the Property and all other things
being purchased shall be and remain until completion at the risk of the 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.
11. 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.
12. DOCUMENT PREPARATION: The Transfer/Deed shall, save for the Land Transfer
Affidavit, be prepared in registerable 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.
13. 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 provision 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 Ontario.
14. 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 the Purchaser.
15. 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.
16. SUCCESSORS AND ASSIGNS: The heirs, executors, administrators, successors and
assigns of the undersigned are bound by the terms herein.
20. FAMILY LAW ACT: Vendor warrants that spousal consent is not necessary to
this transaction under the provisions Of the Family Law Act.
21. AGREEMENT IN WRITING: If there is a conflict between any provision added to
this Agreement (including any Schedules attached hereto) and any provision in
the standard preset portion hereof, the added provision shall supercede the
standard preset provision to the extent of such conflict. This Agreement shall
be read with all changes of gender or number required by the context.
DATED at...............................................this...............day
of................................................., 2002 SIGNED, SEALED AND
DELIVERED in the presence of IN WITNESS whereof I have hereunto set my hand and
seal:
GIFFELS DEVELOPMENTS INC.
.................................... per:..................................
(Witness) (Purchaser)
DATED at...............................................this................day
of................................................, 2002 SIGNED, SEALED AND
DELIVERED in the presence of IN WITNESS whereof I have hereunto set my hand and
seal:
EGL EAGLE GLOBAL LOGISTICS (CANADA) CORP.
.................................... ........................................
(Witness) (Vendor)
SCHEDULE "A"
Attached hereto and forming part of this Agreement of Purchase and Sale between
Giffels Developments Inc. as Purchaser and EGL Eagle Global Logistics (Canada)
Corp. as Vendor.
1. ACREAGE
The parties agree that the Property to be purchased has an area of
20.007 acres, more or less as depicted on the survey of the Property
by I.M. Pastuchak Limited deposited as Reference Plan 43-25100.
2. PURCHASER'S CONDITION AND ACCESS
This Purchaser's obligation to proceed with the transaction
contemplated by this Agreement is conditional upon the Purchaser and
Vendor executing a lease, satisfactory to the Purchaser in the form
as attached to this Agreement as Schedule "B" and subject to the
terms and the rates outlined in this Paragraph 2, on or before
December 30, 2002 (the "Lease Execution Date").
The lease shall be for approximately 214,321 square feet of a 387,407
square foot industrial multiple facility to be constructed on the
Property on a triple net basis for a term of fifteen (15) years at
the following rental rates:
Years 1-5: $8.70 per square foot
Years 6-10: $9.92 per square foot
Years 11-15: $11.31 per square foot
GST will be in addition to these rates.
The foregoing condition is for the sole benefit of the Purchaser and
may be waived by the Purchaser in its sole discretion in whole or in
part by written Notice to the Vendor. In the event that the condition
contained herein has not been fully satisfied or otherwise waived in
writing by the Purchaser by the Lease Execution Date, this agreement
shall come to an end and the deposit and all interest earned thereon
shall be returned to the Purchaser without deduction upon which it is
agreed that neither party shall have any further rights or
obligations hereunder.
Upon mutual acceptance of this Agreement the Purchaser shall have
complete access to the Property at its own risk for the purposes of
completing its due diligence provided that it shall not commit waste.
The Purchaser shall indemnify, defend and hold harmless the Vendor,
from and against any and all claims, demands, losses, or liabilities
of any kind whatsoever, which may be incurred by the Vendor arising
out of or in connection with the performance of any due diligence
activities relating to or inspections of the Property by the
Purchaser or any of its agents, employees, representatives or
contractors.
3. VENDOR REPRESENTS AND WARRANTS
The Vendor hereby represents and warrants to and covenants with the
Purchaser, that, as at the date of this Agreement, which
representations, warranties and covenants shall also be true on the
closing date (acknowledging that the Purchaser is entering into this
Agreement in reliance upon such representations, warranties and
covenants):
a) Except as disclosed in the August 2000 Report of Golder
Associates Limited or in the October 2000 Report of Soil-Eng
Ltd., to the Vendor's knowledge and belief, having made no
inquiries, during the period in which the Vendor has owned the
Property, Vendor has not released in the environment or
deposited, discharged, placed or disposed at, on or near the
Property, nor has the Property ever been used as a land fill or
waste disposal site, and that no orders or directions relating
to environmental matters have been issued pursuant to any
environmental legislation which would require any work, repairs,
construction or capital expenditures with respect to the
Property. The phrase "Vendor's knowledge and belief" as used
herein shall mean the actual knowledge of Jon R. Kennedy, in his
capacity as Senior Vice President of Corporate Administration on
behalf of the Vendor, having made no inquiries.
4. CLOSING
Unless the Agreement is otherwise terminated in accordance with its
terms, closing shall be on December 30, 2002.
5. DUE DILIGENCE DELIVERIES
The Vendor agrees to deliver a good and valid assignment to the
Purchaser of any and all planning studies, environmental reports,
soil tests, surveys, engineering reports and all other planning,
engineering and survey material relating to the Property that the
Vendor has in its possession or control, on or before completion, in
form satisfactory to the Purchaser's solicitors, but only to the
extent that they are assignable and transferable to the Purchaser and
the Vendor makes no warranty or representation of any kind with
regard to the accuracy, content or conclusions set forth therein.
SCHEDULE "A"
Attached hereto and forming part of this Agreement of Purchase and Sale between
Giffels Developments Inc. as Purchaser and EGL Eagle Global Logistics (Canada)
Corp. as Vendor.
6. FACSIMILE AND COUNTERPART TRANSMISSION
It is agreed by the parties hereto that this Agreement (and any other
agreements, notices or documents contemplated thereby) may be signed
in counterpart and delivered by facsimile transmission, and that such
facsimile copy shall be legal and binding on and enforceable by and
against the parties hereto as if it were an original hereof.
7. TIME OF ESSENCE
Time shall be of the essence of this Agreement and the transactions
contemplated herein, provided that the time for doing or completing
any matter herein may be amended by an agreement in writing, signed
by both parties.
8. G.S.T.
The Purchaser acknowledges that GST is not included in the Purchase
Price.
The Purchaser represents that it is now, or will be no later than
Closing, registered for the purposes of the Goods and Services tax
("GST") in accordance with the applicable provisions in that regard
pursuant to the Excise Act of Canada, as amended. The Purchaser
covenants to deliver a Statutory Declaration in form satisfactory to
the Vendor's solicitors, acting reasonably, on Closing confirming its
GST registration number, which shall be conclusive of such GST
registration, and shall preclude the Vendor from collection of GST
from the Purchaser on Closing.
The Purchaser shall provide an indemnification to the Vendor in a
form and substance acceptable to the Vendor, acting reasonably, for
any GST payable by it in respect of the transaction contemplated by
this Agreement
9. ASSIGNMENT
Up until closing, the Purchaser shall have the right to direct that
title to the Property, to be taken in the name of another person,
entity, or corporation (presently in existence or to be
incorporated), including, without limitation, Giffels Developments
Inc, provided the Purchaser has an ownership interest in such person,
entity, or corporation or is a joint venture in which the Purchaser
holds an ownership interest and provided that the assignee shall, in
writing, agree to be bound by the terms and conditions of this
Agreement and a copy of such agreement is delivered to the Vendor
forthwith after having been entered into.
10. CLOSING CONDITIONS
The obligation of the Purchaser to complete the transaction
contemplated by this Agreement shall be subject to the satisfaction
of or compliance with, at or before the closing date, of each of the
following closing conditions:
a) Performance
The Vendor shall have performed and complied in all material
respects with all forms, covenants, agreements and conditions
required by this Agreement, to be performed or complied with by
the Vendor.
In the event that any or all the conditions which are for the sole
and exclusive benefit of the Purchaser have not been fully satisfied,
or waived by the Purchaser on or before closing, this Agreement, at
the option of the Purchaser, shall come to an end and the deposit and
all interest earned thereon shall be returned to the Purchaser
without deduction and the Purchaser shall have no further obligations
to the Vendor under this Agreement.
11. CLOSING DOCUMENTS
On completion, the Vendor shall deliver the following (the "Vendor's
documents") to the Purchaser (in addition to all usual closing
documents) which shall be in form and content, satisfactory to the
Purchaser acting reasonably:
a) A Transfer/Deed of land in registerable form in favour of the
Purchaser, or as it may otherwise direct in writing (with the
Planning Act statements to be extended by the Vendor and its
Solicitors).
b) A statement of adjustments, which is to be delivered at least 5
days prior to closing.
c) Discharges of all liens, charges and encumbrances required
hereunder.
SCHEDULE "A"
Attached hereto and forming part of this Agreement of Purchase and Sale between
Giffels Developments Inc. as Purchaser and EGL Eagle Global Logistics (Canada)
Corp. as Vendor.
d) An undertaking to readjust.
e) A good and valid assignment of any documents and reports
relating to Property.
f) Such further documents and assurances as the Purchaser or its
solicitors shall reasonably require, or as may be required under
the laws of the Province of Ontario.
12. SITE PLAN/BUILDING PERMIT APPLICATIONS
It is understood and agreed that the Purchaser may make application
to all governmental bodies or agencies having jurisdiction for the
purpose of obtaining site plan approval and /or building permits for
the development of the Property. The Vendor shall co-operate with the
Purchaser and execute any and all documents that may be required by
the Purchaser with respect to such applications in a prompt manner
without payment of additional consideration. All such costs
associated with the execution and submission of said applications and
supporting documents shall be paid by the Purchaser.
13. LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable
therein.
14. UTILITIES
The Purchaser shall be responsible for all costs relating to the
provision of services from the lot line of the Property, including
without limitation storm and sanitary sewer, water, hydro, telephone
and gas.
15. COVENANT AGAINST ENCUMBRANCE
The Purchaser shall not register against title to the Property this
Agreement or any notice of this Agreement or any caution, and any
such registration shall be deemed to be a breach by the Purchaser of
the Agreement and entitling the Vendor to terminate same and to
retain any deposit paid by the Purchaser, together with any interest
accrued thereon, in addition to any other remedy which the Vendor may
have.
16. DEFAULT BY PURCHASER
In the event the Purchaser's Conditions set forth in Section 2 of
Schedule "A" and the Closing Conditions set forth in Section 10 of
Schedule "A" are satisfied or waived and thereafter the Purchaser
fails to complete the transaction contemplated by this Agreement in
accordance with its terms the deposit money, together with any
interest thereon shall be forfeited to the Vendor as liquidated
damages and in full satisfaction of any and all claims of the Vendor
against the Purchaser arising from the Purchaser's failure to close
the transaction contemplated by this Agreement, and this Agreement
shall be terminated and of no further force or effect.
17. "AS IS, WHERE IS"
Subject to the provisions of Section 3 of Schedule "A" of this
Agreement the Purchaser shall accept the Property on an entirely "as
is, where is" basis as of the completion of this Agreement without
regard for the state of repair or condition of the Property, location
of structures, walls, fences, wires, lines, pipes or conduits in, on
or outside of the Property, including, without limitation, the
presence or existence of any contaminant in, on, or under, or flowing
onto or from the Property or in the groundwater flowing through,
onto, or from the Property, and subject to any laws, regulations,
by-laws, notices, agreements, covenants, restrictions or orders
affecting or regarding the status, state of repair, condition or use
of the Property, including deficiency and other notices, work or
other orders, and any rights-of-way or easements, whether or not same
have been complied with. The Vendor has made no representation or
warranty in respect of any of the documents delivered in accordance
of with the provisions of this Agreement, to the title of the
Property or any part thereof, the physical condition, zoning or use
(past or present) of the Property, except as expressly provided
herein. Except for the provisions of Section 3 of Schedule "A" of
this Agreement the Vendor has not made and makes no representation
whatsoever as to the existence or non-existence of any contaminants
in, on or under or flowing from or onto the Property or in the
groundwater in or under or flowing through, from or onto the
Property.
Provided the Vendor is in compliance with its representation and
warranty contained in Section 3 of Schedule "A" of this Agreement,
the Purchaser shall not be entitled to a purchase price abatement or
adjustment by reason of the Vendor failing to rectify any
environmental defect,
SCHEDULE "A"
Attached hereto and forming part of this Agreement of Purchase and Sale between
Giffels Developments Inc. as Purchaser and EGL Eagle Global Logistics (Canada)
Corp. as Vendor.
comply with any governmental notice or order or complete any
environmental remediation work on the Property. As between the Vendor
and Purchaser only, and not for the benefit of any other person, the
Purchaser agrees, as of the closing of the transaction contemplated
by this Agreement, to remediate or otherwise address in accordance
with applicable law any environmental condition on the Property that
the Purchaser is required by applicable law to address in order to
complete the construction of the building contemplated by the Lease
attached as Schedule "B" to this Agreement (the "Lease") including,
without limitation the obligation to remediate any soil and ground
water contamination if required by, and in accordance with,
applicable laws ( collectively the" Purchaser's Obligation " ).
Vendor agrees that the obligation of the Purchaser is limited to
remediating or otherwise addressing environmental conditions on the
Property in accordance with applicable law that affect the
construction of the building in accordance with the terms of the
Lease, and does not extend to any impacts or conditions off the
Property whether or not such impacts or conditions are or were caused
or related to environmental conditions on the Property. The Purchaser
shall not be required to indemnify and hold the Vendor harmless from
any claims asserted against the Vendor by third parties, including
governmental authorities. At closing the Purchaser shall release the
Vendor from any claims that the Purchaser may have as at the time of
closing with respect to on site environmental conditions except those
arising from (i) claims by third parties including governmental
authorities, provided that such claims do not arise from a failure by
the Purchaser to comply with the Purchaser's Obligation ; or (ii) a
breach of the Vendor's representation and warranty contained in
Section 3 of Schedule "A" of this Agreement. The form of such release
to be agreed upon by the Parties acting reasonably. The obligation
herein provided for and the release to be delivered at closing shall
survive closing and shall enure to the benefit of the Vendor, the
Vendor's parent, subsidiary and affiliated corporations and to all of
their respective successors and to all of the officers, directors,
employees and agents of each of the foregoing.
SCHEDULE "B"
Attached hereto and forming part of this Agreement of Purchase and Sale between
Giffels Developments Inc. as Purchaser and EGL Eagle Global Logistics (Canada)
Corp. as Vendor.