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EXHIBIT 10.32
AGREEMENT OF PURCHASE AND SALE
This agreement (the "Agreement") dated as of the 7th day of March, 2003 between
MARCOMM FIBRE OPTICS, INC. (the "Purchaser") and GSI LUMONICS INC. (the
"Vendor") provides for the purchase of the land and premises (the "Property")
known as 29 Antares Drive, Ottawa, Ontario, as more particularly described in
Schedule "A" to this Agreement. For good and valuable consideration, the receipt
and adequacy of which are acknowledged, the Purchaser and Vendor agree as
follows:
1. PURCHASE, PURCHASE PRICE AND CLOSING DATE. The Purchaser agrees to
purchase and the Vendor agrees to sell the Property on the terms and conditions
set out in this Agreement and for the purchase price (the "Purchase Price") of
ONE MILLION THREE HUNDRED AND TEN THOUSAND CANADIAN DOLLARS (CDN $1,310,000.00)
payable as to SIXTY_FIVE THOUSAND DOLLARS ($65,000.00) by cheque to be delivered
by the Purchaser within 24 hours of the execution and acceptance of this
Agreement to the Vendor's agent, namely Colliers Macaulay Nicolls (Ontario) Inc.
"In Trust" to be held as a deposit (the "Deposit"), and the balance, subject to
adjustment, payable to the Vendor, or as it may direct, by cash or certified
cheque on the completion of this Agreement. This transaction will be completed
on the 31st day of March, 2003 (the "Closing Date").
2. CONDITIONS.
a. Purchaser's Conditions. The Purchaser's obligation to carry out the
transactions contemplated by this Agreement is subject to the satisfaction or
waiver by the Purchaser of each of the following conditions by the date
specified, which conditions are for the sole benefit of the Purchaser and which
may be waived by the Purchaser in its sole discretion:
i. Due Diligence. This Agreement is conditional upon the
Purchaser inspection and approval of the physical property by its
agents, consultants or any other persons as the Purchaser deems
necessary. The physical inspection shall include but not be limited to
roof, mechanical, environmental, and structural space inspections, the
examination of any legal restrictions, rights of way or easements which
the Vendor is not obliged to discharge on or before the Closing Date,
and the obtaining of reports satisfactory to the Purchaser at its own
expense. The Vendor agrees to co-operate with the Purchaser in
providing reasonable access to the Property for the purpose of this
inspection and Purchaser agrees that Vendor will have the right to have
one or more representatives of Vendor accompany Purchaser's
representatives, agents or designees while they are on the Property.
Unless the Purchaser gives notice in writing delivered to the Vendor
not later than 5:00 P.M. Ottawa Time on the 21st day of March 2003 (the
"Condition Date") that this condition is fulfilled, this Agreement
shall be null and void and the deposit shall be returned to the
Purchaser in full (without interest). This condition is included for
the sole benefit of the Purchaser and may be waived at their option in
writing to the Vendor within the time period stated herein. Any damage
resulting from the Purchaser's tests or investigations will be promptly
repaired at its sole expense.
ii. Financing. This Agreement is conditional upon the Purchaser
arranging, at its own expense, a new first mortgage/charge of the
Property for not more than Nine Hundred and Eighty-two Thousand
Canadian Dollars (CAD$982,000.00) at market terms and conditions.
Purchase shall pay for all costs relating to any financing obtained by
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Purchaser in connection with the purchase of the Property and all costs
incurred by Purchaser in performing any related tests and
investigations. Unless the Purchaser gives notice in writing delivered
to the Vendor not later than 5:00 P.M. Ottawa Time on the Condition
Date that this condition is fulfilled, this Agreement shall be null and
void and the deposit shall be returned to the Purchaser. This condition
is included for the sole benefit of the Purchaser and may be waived at
their option in writing to the Vendor within the time period stated
herein.
iii. Closing Date. As of the Closing Date, the representations and
warranties of the Vendor set out in this Agreement will be true and
accurate and of the same effect as if made on and as of the Closing
Date and all the terms, covenants and conditions of this Agreement to
be complied with or performed by the Vendor on or prior to the Closing
Date will have been complied with or performed.
iv. Purchaser's Board Approval. This Agreement is conditional upon
the Purchaser obtaining final approval from the Board of Directors of
Marcomm Fibre Optics, Inc. Unless the Purchaser gives notice in writing
delivered to the Vendor not later than 5:00 P.M. Ottawa Time on the
14th day of March, 2003 that this condition is fulfilled, this
Agreement shall be null and void and the deposit shall be returned to
the Vendor in full together with accrued interest. This condition is
included for the sole benefit of the Purchaser and may be waived at
their option in writing to the Vendor within the period stated herein.
3. VENDOR'S REPRESENTATIONS. The Vendor covenants, represents and warrants
to and in favour of the Purchaser that:
a. Environmental. To the best of the Vendor's knowledge and belief, the
Property has never been used at any time as a landfill or waste disposal site
and that the use and occupation of the Property and condition of the Property do
not contravene any law, by-law, order, ordinance, ruling, regulation, guideline,
policy, certificate, approval, consent or directive of any applicable federal,
provincial or municipal government, department, agency or authority or any court
relating to any environmental matters relating to the Property and the Property
does not contain any contaminant, pollutant, dangerous, noxious or toxic
substance, hazardous waste, flammable, explosive or radioactive material,
ureaformaldehyde foam insulation, asbestos, polychlorinated biphenyls or any
other substance or material ("Hazardous Substance") that may be detrimental to
the environment, including the air, soil, subsoil or surface or ground water at
the Property. The Vendor has not emitted, released, discharged or disposed or
deposited any Hazardous Substance at or near the Property and there are no
claims, actions, prosecutions, charges or any other proceedings, and the Vendor
has received no notice of any such proceedings, which relate to the
environmental status of the Property.
b. Section 116. The Vendor is not now, and will on the Closing Date not
be, a non-resident of Canada within the meaning of Section 116 of the Income Tax
Act (Canada).
c. Liabilities. There are no contracts, agreements or employees associated
with the Property in respect of which the Purchaser will incur any liability as
a result of becoming the owner of the Property.
d. Charges and Levies. There are no local improvement charges, development
charges or special levies outstanding against the Property and there will be no
such charges or levies outstanding against the Property as of the Closing Date.
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e. Work Orders. If any work order, deficiency notice, notice of violation
or other communication from any governmental authority or other regulating
entity is received by the Vendor or the Purchaser on or prior to the Closing
Date, the Vendor will, at its expense, perform any required work or other
actions required pursuant to such communication on or prior to the Closing Date.
f. No Litigation. There are no actions, suits or proceedings pending or,
to the knowledge of the Vendor, threatened against or affecting the Vendor, the
Property or the occupancy or use of the Property by the Vendor or by the Tenant,
in law or in equity, which could affect the validity of this Agreement or any
transaction provided for in this Agreement, the title to the Property or any
part of the Property, the conveyance of the Property to the Purchaser, the right
of the Purchaser from and after the Closing Date to own, occupy and obtain the
revenue from the Property or any action taken or to be taken in connection with
this Agreement.
g. No Indebtedness Constituting a Lien. The Vendor will not on the Closing
Date have any indebtedness to any person that might by operation of law or
otherwise constitute a lien, charge or encumbrance on the Property or any part
of the Property or which could affect the right of the Purchaser, from and after
the Closing Date, to own occupy and obtain the revenue from the Property.
h. Licenses, Approvals & Permits. All necessary licenses, approvals and
permits for the construction, occupancy and operation of the Property and for
its existing use have been obtained.
i. Vacant Possession. The Property is not subject to any lease or
agreement to lease and the Purchaser shall have vacant possession of the
Property on the Closing Date.
4. PURCHASER'S REPRESENTATIONS. The Purchaser covenants, represents and
warrant to and in favour of the Vendor that:
a. Authority to Execute; Organization. Purchaser is validly organized and
in good standing under the laws of the province of its organization, and the
execution of this Agreement, delivery of money and all required documents,
Purchaser's performance of this Agreement and the transaction contemplated
hereby have been duly authorized by the requisite action on the part of the
Purchaser and Purchaser's directors, partners, members, managers or trustees.
b. Purchaser Acknowledgement. As of the expiration of the Condition Date
Purchaser acknowledges that it has been given a reasonable opportunity to
inspect and investigate the Property, all improvements thereon and all aspects
relating thereto, either independently or through agents and experts of
Purchaser's choosing and that Purchaser is acquiring the Property based upon
Purchaser's own investigation and inspection thereof, but subject to its
reliance on the representations and warranties of the Vendor contained in this
Agreement.
5. VENDOR'S DELIVERIES/COVENANTS. The Vendor will provide to the Purchaser
the following:
a. Survey and other Documentation. The Vendor covenants to make available
to the Purchaser any plan of survey and construction drawings that are in the
possession of the Vendor. For clarity, the Vendor shall have no responsibility
to provide any new or up to date survey except as may be in the Vendor's
possession as of the date of this Agreement. Any surveys,
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tests, investigations, or studies performed by or at the direction of Purchaser
shall be at Purchaser's sole cost and expense.
b. Miscellaneous Documentation. Between the date of this Agreement and the
Condition Date, the Vendor shall, upon reasonable written request in advance by
the Purchaser, provide the Purchaser with reasonable access to pertinent files,
documents, inspection reports and historical building operating statements that
are in the possession of the Vendor. In addition, the Vendor shall cooperate in
providing reasonable access to Purchaser and its contractors for the purpose of
completing roof, mechanical, environmental, and structural space inspections.
All costs of such inspections shall be the responsibility of Purchaser and shall
be at Purchaser's sole cost and expense. Purchaser shall restore any damage
caused to the Property by Purchaser's entry on the Property for inspection
purposes at Purchaser's sole cost and expense if the transaction contemplated
under this Agreement is not completed.
c. Material Change(s). The Vendor covenants that until the successful
completion of this transaction, the Vendor will give the Purchaser prompt
written notice of any material change of which the Vendor becomes aware in
respect of any of the documentation delivered pursuant to this Agreement, or any
change of which the Vendor becomes aware in respect of the Property.
d. Commissions. The Vendor shall pay any real estate commissions payable
in connection with the sale of the Property and indemnify the Purchaser, if
necessary, only for the amount of such commissions.
6. PURCHASER EXCLUSIVITY. The Purchaser covenants to maintain full
exclusivity and not enter into negotiations or submit Agreements to obtain
economic interest in any other property until this Agreement has been formally
completed or terminated.
7. TITLE. Provided that title to the Property will be marketable and free
and clear of all liens, charges, encumbrances, easements, encroachments,
rights-of-way, dower or spousal claims, restrictive covenants, reservations and
defects of every nature or kind other than any building or other restrictions
registered on title to the Property, and any easements or rights-of-way for the
installation of and/or maintenance of services, utilities, provided same have
been complied with to the Closing Date. The Purchaser will be allowed until the
21st day of March 2003 to examine the title to the Property at its own expense.
If within that time the Purchaser provides any valid objection to title or
description in writing to the Vendor which the Vendor is unable or unwilling to
remove or satisfy and which the Purchaser will not waive, this Agreement will,
at the option of the Purchaser, and notwithstanding any intermediate acts or
negotiations in respect of such objection, terminate and the Deposit and other
monies paid under this Agreement by the Purchaser, together with accrued
interest, will be returned to the Purchaser immediately. The Vendor covenants to
discharge all liens, charges, and other encumbrances on or prior to the Closing
Date and will deliver up vacant possession of the Property on the Closing Date.
8. ADJUSTMENTS.
a. Utilities. The amount due on any gas, electric, water, sewer, or other
utility bill relating to the Property shall be paid by Vendor as of the Closing
Date (the day itself to be apportioned to the Purchaser). Any utility deposits
made by Vendor shall be and remain the property of Vendor. Vendor shall
terminate all such utilities in its name as of March 30, 2003 and shall have no
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further obligation to pay any such utilities. Purchaser shall be responsible for
notifying all utilities and commencing their own service as of March 31, 2003 in
their name. Purchaser shall be responsible for paying all utilities commencing
March 31, 2003.
b. Realty Taxes. All real estate taxes in respect to any calendar year
prior to the year in which the Closing Date occurs, including penalties,
interest and deferred payments, shall be paid by Vendor on or before the Closing
Date. Purchaser shall have the same obligation for the period of time subsequent
to the calendar year in which the Closing Date occurs. All real estate taxes
attributable to the Property due and payable in the calendar year in which the
Closing Date occurs shall be prorated as of the Closing Date (the day itself to
be apportioned to the Purchaser). If the Closing Date shall occur before the
actual real estate taxes for the year of the Closing Date (i.e., taxes due and
payable in 2003) are known, the apportionment of real estate taxes shall be upon
the basis of the real estate taxes for the immediately preceding year, provided
that if the taxes for the current year are thereafter determined to be more or
less than the real estate taxes for the preceding year (after any appeal in
assessed valuation thereof is concluded) Vendor and Purchaser promptly shall
adjust the proration of such real estate taxes and Vendor or Purchaser, as the
case may be, shall pay to the other any amount required as a result of such an
adjustment. If there is any refund, this shall be prorated between Vendor and
Purchaser based on the Closing Date. For purposes of calculating prorations, all
prorations shall be made on the basis of the actual number of days of the year
and month which have elapsed as of the Closing Date.
c. Insurance. Any insurance maintained by the Vendor will not be
transferred as of the Closing Date but will remain the responsibility of the
Vendor until the Closing Date. All risk of loss or damage with respect to the
Property shall pass from Vendor to Purchaser on the Closing Date.
9. GST. No goods and services tax will be paid by the Purchaser to the
Vendor with respect to the purchase by the Purchaser of the Property if the
Purchaser provides to the Vendor on or prior to the Closing Date a certificate
of the Purchaser indicating the Purchaser's registration number for the purposes
of the Goods and Services Tax imposed under the Excise Tax Act (Canada).
10. CLOSING ARRANGEMENTS AND VENDOR'S DELIVERIES. This Agreement will be
completed at or prior to 5:00 p.m. (Ottawa time) on the Closing Date at the
offices of the Vendor's Solicitors in Ottawa, Ontario. On the Closing Date the
Vendor will deliver to the Purchaser the following documents:
a. Deed. A registrable transfer/deed to the Property in fee simple;
b. Certificate. A Certificate of the Vendor certifying that it is not a
non-resident within the meaning of S. 116 of the Income Tax Act (Canada) and
that the representations and warranties of the Vendor contained in this
Agreement are true and accurate as of the Closing Date;
c. Undertaking. An undertaking to adjust and readjust any items properly
adjustable pursuant to this Agreement.
d. Keys. All keys and entry devices with respect to the property and the
combination of any locks or vaults.
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e. Other. Such other bills of sale, transfers, assignments, declarations,
discharges, if any, and documents relating to the completion of this Agreement
as may be reasonably necessary and appropriate to complete the transaction
contemplated in this Agreement.
11. CLOSING DELIVERIES OF THE PURCHASER. The Purchaser will on the Closing
Date deliver to the Vendor the balance of the Purchase Price by a certified
cheque or bank draft payable to the Vendor, or as the Vendor may in writing
direct; an undertaking to readjust; the GST certificate referred to in Section 8
and such other documentation as may be reasonably necessary and appropriate to
complete the transaction contemplated in this Agreement.
12. RISK. All buildings and improvements on the Property will be and remain
until the Closing Date at the risk of the Vendor. Until completion of this
Agreement, the Vendor will maintain insurance on the Property in such amounts as
a careful and prudent owner of similar property and premises would maintain.
Pending completion, the Vendor will hold all insurance policies, if any, and the
proceeds from any such policies in trust for the parties as their interests may
appear and in the event of damage, the Purchaser may either terminate this
Agreement and have the Deposit and other monies paid under this Agreement by the
Purchaser returned together with any accrued interest or, at its option, take
the proceeds of any insurance and complete the purchase.
13. LIABILITY OF PURCHASER. If the Purchaser will default in the
performance of any obligation under this Agreement and such default entitles the
Vendor to terminate this Agreement, such right of termination will be the
Vendor's only remedy and the Vendor will be entitled to retain the Deposit as
liquidated damages and not as a penalty.
14. CONFIDENTIALITY. Vendor and Purchaser hereby covenant and agree that,
at all times after the date of execution hereof and prior to the Closing Date,
unless consented to in writing by the other party, no press release or other
public disclosure concerning this transaction shall be made, and each party
agrees to use best efforts to prevent disclosure of this transaction, other than
(i) to directors and officers of the parties, and employees, prospective
mortgage lenders of Purchaser, solicitors, accountants, agents and affiliates of
the parties who are involved in the ordinary course of business with this
transaction, all of which shall be instructed to comply with the confidentiality
provisions hereof or (ii) as required by law. Upon termination of this Agreement
for any reason by either party, Purchaser shall have the obligation to return to
Vendor all documents and copies thereof and any other information received by
Purchaser from Vendor or Vendor's agents with respect to the Property
("Information")and shall not disclose to any third party the contents thereof.
Vendor shall have no obligation to return any sums due Purchaser until all
Information has been returned to Vendor.
15. GENERAL. Any tender of documents or money may be made upon the Vendor
or the Purchaser or upon their respective solicitors and money may be tendered
by certified cheque or bank draft drawn on a Canadian Chartered Bank. This
Agreement will be binding upon and inure to the benefit of the Vendor and the
Purchaser and their respective successors and assigns. This Agreement may be
executed in any number of counterparts, each of which will be deemed to be an
original and all of which taken together will be deemed to constitute one and
the same Agreement. Counterparts may be executed either in an original or fax
form and the parties agree to adopt any signature received by facsimile as
original signatures, provided however that any party providing its signature in
such manner promptly forwards to the other party an original of the signed copy
of the Agreement which was so faxed. This Agreement will be governed and
construed in accordance with the laws of the Province of Ontario and the laws of
Canada applicable to this Agreement and will be treated in all respects as an
Ontario contract. The use of
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headings in this Agreement is for convenience of reference only and will not
affect the meaning or construction of this Agreement. This Agreement constitutes
the entire Agreement between the parties pertaining to the subject matter of
this Agreement and supersedes all prior agreements, warranties or
representations, discussions and negotiations with respect to this Agreement,
whether oral or written. If the time limited for the performance or completion
of any matter in this Agreement does not fall on a day that the public offices
for registering documents to be delivered pursuant to this Agreement are open
for business (a "Business Day"), the time so limited will extend to the next
following Business Day. The parties will promptly do, execute, deliver or cause
to be done, executed and delivered all further acts, documents and things to
carry out the true intent of this Agreement.
16. PLANNING ACT. This Agreement will be effective to create an interest in
the Property only if the provisions of the Planning Act (Ontario) are complied
with.
17. NOTICE. Any notice, certificate, consent, waiver, amendment or other
written communication required or permitted to be given under the Agreement will
be in writing made by the parties or their respective solicitors and will be
effectively given and made if delivered personally or by facsimile
communication, in the case of the Vendor, addressed to it at:
GSI Lumonics Inc.
39 Manning Road
Bellerica, MA 01821
U.S.A
Attention: Mr. Charles Winston, President and Chief Executive Officer
Facsimile No.: (978) 663-9466
and in the case of the Purchaser, addressed to it at:
Marcomm Fibre Optics, Inc.
66 Colonnade Road North
Ottawa, Ontario
Attention: Mr. John South, President
Facsimile No.: (613) 226-6171.
Any communication given or made will be deemed to have been given or made on the
day it was received unless (i) it was received after 5 p.m.; or (ii) if such day
is not a Business Day, in each of which cases it will be deemed to have been
given and made and to have been received on the next following Business Day.
IN WITNESS WHEREOF the parties have executed this Agreement.
MARCOMM FIBRE OPTICS, INC. GSI LUMONICS INC.
By: /s/ John South By: /s/ C.D. Winston
Name: John South Name: C.D. Winston
Title: President Title: CEO & President
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SCHEDULE "A"
LEGAL DESCRIPTION OF THE PROPERTY
Parcel 26-2, Section Nepean-A Rideau Front; Part of lots 26 and 27, Concession
A, Rideau Front, designated as parts 1 and 2 on plan 4R4925, subject to LT
408622, LT409088; all in the City of Ottawa (formerly Nepean) including a
building of approximately 16,670 square feet.