EXHIBIT 10.1
AGREEMENT OF PURCHASE AND SALE
This agreement (the "Agreement") dated as of the 17th day of March, 2005 between
OTTAWA COMMUNITY HOUSING CORPORATION (the "Purchaser") and GSI LUMONICS INC.
(the "Vendor") provides for the purchase of the land and premises (the
"Property") comprising approximately 3.18 acres and municipally known as 39
Auriga Drive, Ottawa, Ontario. The Property is more particularly described as
Parts 1 and 2 on the draft reference plan attached as 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
TWO MILLION AND SEVENTY-FIVE THOUSAND DOLLARS (CDN $2,075,000.00) payable as to
SEVENTY-FIVE THOUSAND DOLLARS ($75,000.00) 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 earlier
of the 27th day of May, 2005 or fifteen (15) days after satisfaction of the
condition set out in paragraph 2(b)(i) (the "Closing Date").
2. CONDITIONS:
a. PURCHASER'S CONDITIONS: The Purchaser's obligation to carry out the
transaction contemplated by this Agreement is subject to the satisfaction or
waiver by the Purchaser of each of the following conditions by the dates
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 inspection and
approval of the physical property by the Purchaser, its agents,
consultants or any other persons as the Purchaser deems necessary.
The physical inspection
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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 pm Ottawa Time on the 30th day of April, 2005
(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. 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.
b. Vendor's Conditions: The Vendor's obligation to carry out the transaction
contemplated by this Agreement is subject to the satisfaction or waiver by the
Vendor of each of the following conditions by the dates specified, which
conditions are for the sole benefit of the Vendor and which may be waived by the
Vendor in its sole discretion:
i. SEVERANCE: The completion of this transaction is conditional for a
period of four (4) months from the date of execution of this
Agreement (the "Conditional Period"),
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upon the Vendor obtaining the consent of the Committee of
Adjustment/Land Division Committee for the City of Ottawa to the
severance of the subject Property, with all conditions imposed in
connection therewith having been fully satisfied or completed prior
to the expiry of the Conditional Period, and there being no appeal
therefrom. The Vendor shall be responsible for all costs in respect
of filing the severance application with the Committee of
Adjustments. The Vendor agrees to proceed diligently to procure such
consent, and to satisfy all conditions imposed in connection
therewith, all at the Vendor's sole cost and expense. This condition
is included for the sole benefit of the Vendor and may be waived at
its option in writing to the Purchaser within the time period stated
herein. Unless the Vendor gives written notice to the Purchaser
prior to the expiration of the Conditional Period that the foregoing
condition has been satisfied, this Agreement shall be null and void,
and the deposit shall be returned to the Purchaser, without interest
or deduction.
ii. CLOSING DATE: As of the Closing Date, the representations and
warranties of the Purchaser 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 Purchaser on or
prior to the Closing Date will have been complied with or performed.
iii.VENDOR'S BOARD APPROVAL: This Agreement is conditional upon the Vendor
obtaining final approval from its Board of Directors. Unless the
Vendor gives notice in writing delivered to the Purchaser not later
than 5:00 pm Ottawa Time on the 31st day of March, 2005 that this
condition is fulfilled, this Agreement shall be null and void and
the deposit shall be returned to the Purchaser without interest or
deduction. This condition is included for the sole benefit of the
Vendor and may be waived at their option in writing to the Purchaser
within the period stated herein.
3. VENDOR'S REPRESENTATIONS: The Vendor covenants, represents and warrants to
and in favour of the Purchaser that:
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a. ENVIRONMENTAL: To the best of the Vendor's knowledge and belief and
without investigation and subject to the provisions contained in section
5.e below, 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, urea
formaldehyde 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.
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
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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, 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
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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 independably 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 within three (3) Business Days after acceptance hereof,
any plan of survey and structural, mechanical, electrical and
architectural 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, 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 entry on the Property for
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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 to any agent or broker
retained by the Vendor in connection therewith.
e. UNDERGROUND STORAGE TANK: A 2000-litre underground storage tank ("UST")
is presently located outside the south-east corner of the building located
on the Property and is connected to a room within the building designated
as the "Chemical Storage" room. The Vendor covenants and agrees with the
Purchaser that on or before the Closing Date the Vendor shall, at its
expense:
i. engage the services of a qualified, licensed contractor to excavate
and remove from the Property the UST and all associated piping which
connects the UST to the "Chemical Storage" room and reinstate the
Property; and
ii. provide to the Purchaser a report addressed to the Purchaser (and
its lenders) from an environmental consultant acceptable to the
Purchaser, acting reasonably, to the effect that the UST and
associated piping have been removed from the Property and that the
soil in the immediate vicinity of the UST is free of any Hazardous
Substances.
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.
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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
30th day of April 2005 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, electrical, water, sewer, or
other utility bill relating to the Property shall be paid by the 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
the Vendor. The Vendor shall terminate all such utilities in its name as
of the Closing Date and shall have no further obligation to pay any such
utilities. Purchaser shall be responsible for notifying all utilities and
commencing and paying for their own service as of the Closing Date.
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
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(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 2005) 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 monthly 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 the Property 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 the 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 purpose of the
Goods and Services Tax imposed under the Excise Tax Act (Canada).
10. CLOSING ARRANGEMENTS AND VENDOR'S DELIVERIES: This Agreement shall be
completed on the Closing Date between the hours of 9:30 a.m. and 4:30 p.m. 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 lll of the Land Registration Reform
Act, R.S.O., 1990, Chapter 14 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 of land or
other registrable documentation and (b) be subject to
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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. 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 and vaults.
e. TELEPHONES: A bill of sale of the telephone system and hand sets which
are located on the Property, excluding the telephone system and hand sets
currently being used by Vendor's employees, and which the Vendor warrants
are owned by it free from encumbrance.
f. OTHER. Such other bills of sale, transfers, assignments, declarations,
discharges if any, and documents relating to the completion of this
Agreement as may be reasonable necessary and appropriate to complete the
transaction contemplated in the 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
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referred to in Section 9 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 shall 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, accounts, 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 confidentially
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.
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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 enure 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 forward 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 the 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 the 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. RIGHT OF FIRST REFUSAL. If the Vendor shall obtain from a bona fide arm's
length person (the "Offeror") a bona fide arm's length offer (the "Offer") to
purchase from the Vendor (the "Selling Party") all or part of those lands more
particularly described as Parts 3 and 4 on the draft reference plan attached as
Schedule "A", (the "Surplus Property") at a price and on terms that the Selling
Party is prepared to accept, the Selling Party shall offer to sell the Surplus
Property to the Purchaser in accordance with the following provisions:
a. The Selling Party shall give to the Purchaser notice in writing (the
"Notice of Offer") accompanied by a copy of the Offer. The Notice of
Offer shall set out:
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i) the portion of the Surplus Property to which the Offer
relates;
ii) a statement that the Selling Party will accept the Offer of
the Offeror and complete the sale of the Surplus Property (or
if the Offer has been accepted subject to compliance with this
clause, that the Selling Party will complete the sale of the
Surplus Property) if the Surplus Property is not purchased by
the Purchaser pursuant to the following provisions of this
paragraph.
b. The Notice of Offer shall be deemed to be an offer by the Selling
Party to sell to the Purchaser the Surplus Property on the terms
contained in the Offer, except that the closing date shall be sixty
(60) days after the end of the fifteen (15) day period referred to
in c. below (unless an earlier or later closing date is agreed
upon).
c. The Purchaser shall be entitled, within fifteen (15) days following
the giving of the Notice of the Offer, to give to the Selling Party
written notice (the "Purchaser Notice") accepting the offer of the
Selling party represented by the Notice of Offer and the transaction
shall be completed accordingly.
d. If the Offer relates to part of the Surplus Property, the remaining
parts shall continue to be subject to the provisions of this
paragraph.
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
Billerica, MA 01821
U.S.A.
Attention: Corporate Counsel
Facsimile No.: (978) 663-9466
With a copy to:
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Colliers International
55 Metcalfe Street, Suite 240,
Ottawa, Ontario
K1P 6L5
Attention: Mr. Peter D. Saarty
Facsimile No. (613) 567-8035
And in the case of the Purchaser, addressed to it at:
2197 Riverside Drive, Suite 600,
Ottawa, Ontario
K1H 1A9
Attention: Mr. Ronald P. Larkin, General Manager
Facsimile No.: (613) 731-4463
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 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.
OTTAWA COMMUNITY HOUSING CORPORATION GSI LUMONICS INC.
By: ____________________________ By: ____________________________
Name: Ronald P. Larkin Name: Thomas R. Swain
Title: I/General Manager Title: Vice President, Finance and CFO
I have authority to bind the I have authority to bind the
Corporation. Corporation.