1
PUT/CALL AGREEMENT
THIS AGREEMENT made the 24th day of March, 2004.
B E T W E E N:
FAIRCOVE INVESTMENTS INC.,
a corporation incorporated under the
laws of the Province of Ontario,
(hereinafter called the "Vendor")
OF THE FIRST PART;
- and -
HAWKLANE DEVELOPMENTS INC.,
a corporation incorporated under the
laws of the Province of Ontario,
(hereinafter called the "Purchaser")
OF THE SECOND PART;
WHEREAS the
Vendor is the registered and beneficial owner of that certain
real property municipally
known as 330 Humberline Drive, Etobicoke, Ontario (the
"Property");
AND WHEREAS the
parties hereto have
entered into this
Agreement for the
purpose of providing for the
circumstances in which
the Vendor or the Purchaser
may compel the purchase by
the Purchaser and sale
by the Vendor of the Property
pursuant to the terms and
conditions herein contained;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises and the mutual
covenants herein
contained,
the parties hereto
hereby
covenant and agree with each
other as follows:
ARTICLE 1: ACKNOWLEDGEMENT
1.01 Acknowledgement. The parties hereto acknowledge and declare that the
statements contained in the
foregoing recitals are true and correct in substance
and in fact and are hereby
incorporated into and form part of this Agreement.
ARTICLE 2: TRANSFER RESTRICTIONS
2.01 Restriction on Transfer. The Vendor agrees that it will not in any
way
further encumber, sell, agree to sell or otherwise dispose of or agree to
dispose of the Property or any interest therein to any third party without
giving thirty (30) days prior
written notice of its intention to the
Purchaser
during which time the Purchaser shall be free to exercise its rights under
paragraph 3.01 of this Agreement. In the event of sale or
disposition by
the
Vendor to a third party upon notice as aforesaid, such sale may only be
completed by the Vendor if
the transferee
agrees in writing to
be bound by the
provisions of the Put/Call
Agreement herein by executing a counterpart hereof.
ARTICLE 3: PUT/CALL ARRANGEMENTS
3.01 Notice of Purchase and Sale. In the event that either the
Vendor or the
Purchaser elects, at any time on or before the 24th day of March,
2005, to
compel the sale by the Vendor
and the purchase by the Purchaser of the Property,
then the party so electing
shall notify the other party in writing (which notice
is hereinafter referred to as a "Notice of
Purchase and Sale") and the purchase
and sale of the Property
shall be completed in accordance with this Agreement.
3.02 Effect of Notice. In the
event of delivery of a Notice of Purchase and Sale
by either party pursuant to
paragraph 3.01,
(a) the Notice of Purchase and Sale
shall not be revocable except with the
sanction of both parties; and
(b) the Vendor shall be bound to sell
and the Purchaser shall be obligated
to purchase the Property in accordance with the provisions
hereof.
3.03 Closing and Default.
Any transaction
between the Vendor and
the Purchaser
effected pursuant to the provisions of this
Article 3 shall be completed on the
30th day from the date of
delivery of the Notice of Purchase and Sale (the
"Closing Date"). In the event the applicable Registry Office is not open to
public for business
the Closing Date shall
be the next day that the applicable
Registry Office is open to the public or
such date as may be mutually agreed to
by the Vendor and
Purchaser.
3.04 Purchase Price and
Terms. The purchase price for the Property and the terms
and conditions of the
purchase and sale transaction shall be upon the terms
and
conditions pursuant to the
form of purchase and sale agreement annexed hereto as
Schedule "A".
3.05 Environmental Remediation. The Purchaser shall be responsible for all
environmental remediation obligations upon the
Property as required by law from
the Closing Date onwards. The Vendor agrees not to perform or cause to
be
performed any environmental
remediation work upon the Property without notice to
the Purchaser and the Purchaser
having approved of such work,
except if
such
environmental remediation is required by law in which
case, the Purchaser's
approval shall not be
required.
3.06 Costs. Each party hereto
shall be responsible for its own legal, accounting
and other professional costs
in relation to the transaction of purchase and sale
herein.
ARTICLE 4: CONDITIONS
This
Agreement is conditional for a period of thirty (30) days
from the
date of execution upon the
following:
(a) The Vendor obtaining all requisite
Board of Directors approval for the
transaction contemplated in this Agreement; and
(b) The Vendor obtaining a formal
appraisal of the
Property
satisfactory
to the Vendor in its sole and absolute discretion.
ARTICLE 5: GENERAL CONTRACT PROVISIONS
5.01 Time to be of the
Essence. Time shall be
of the essence of this
Agreement
and of every part
hereof.
5.02 Notice. Any notice required or permitted
to be given hereunder shall be in
writing delivered or mailed by prepaid registered post to the parties as
follows:
to the vendor at:
258 Attwell Drive
Toronto, Ontario M9W
5B2
Attention: Mr. Henry
Schnurbach
to the purchaser
at:
106 Avenue Road
Toronto, Ontario M5R
2H3
Attention:
President
or to such other address or
person as each party may from time to time specify.
Any notices
aforesaid shall be deemed to have been received at the time
and
upon the day and date of it being so delivered and any notice mailed as
aforesaid shall be deemed to have been
received on the second business day next
following the posting thereof unless the party mailing the notice knows
that
postal service to the
addressee has been
interrupted or suspended due to strike
or otherwise, in which case
the notice shall be given by delivery only.
5.03 Gender and Number.
All words and personal
pronouns relating
thereto shall
be read and contrued as the number and gender
of the party or parties referred
to in each case require, and the verb agreeing with the required word and
pronoun.
5.04 Successors and Assigns.
This Agreement shall enure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors,
administrators, successors
and permitted assigns.
5.05 Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of
the Province of Ontario.
5.06 Headings. The headings of the Articles of
this Agreement are inserted for
convenience only and do not
constitute a part of this Agreement.
IN WITNESS
WHEREOF the parties
hereto have executed
this Agreement as
of
the day and year first above
written.
SIGNED, SEALED AND DELIVERED
)
FAIRCOVE INVESTMENTS INC.
in the presence of:
)
)
)
)
Per: _________________________
)
)
) Per:
_________________________
)
)
)
HAWKLANE DEVELOPMENTS INC.
)
)
)
)
Per: _________________________
)
)
)
Per: _________________________
)
f:\users\marcia\cantar-polyair\faircove\put
call agreement cln mar24 04.doc
Schedule "A"
AGREEMENT OF PURCHASE AND SALE
BUYER, HAWKLANE DEVELOPMENTS
INC. agrees of purchase from
SELLER, FAIRCOVE INVESTMENTS
INC. , the following
REAL PROPERTY:
Address 330 Humberline Drive in the City of Toronto and
legally described
as
Part Lot 38, Concession 4 Fronting the Humber designated as Part 2 on Plan
64R-11839 being P.I.N. 07368-0040 (LT) and further described in the Survey
attached hereto as Schedule "C" and subject
to the encroachments
set forth
on
the attached survey (the
"Property")
PURCHASE PRICE: THREE MILLION
Dollars (CDN$)3,000,000.00
DEPOSIT:
Buyer submits within 5 days of the Notice of
Purchase and Sale ( as defined in
the agreement that this Schedule "A" is attached to) ONE HUNDRED THOUSAND
Dollars (CDN $100,000.00) by
negotiable cheque payable to the Vendor's Solicitor
to be held in trust without
interest pending
completion or other termination of
this Agreement and to be
credited toward the Purchase Price on completion. Buyer
agrees to pay the balance as
follows:
See Schedule "A-1"
SCHEDULE(S) "A-1", "B-1", "C-1" and "D-1" attached
hereto form(s) part of this
Agreement
1. CHATTELS INCLUDED: All Chattels located at the property that are
not the
property of the tenant
2. FIXTURES EXCLUDED: Those
that belong to the tenant
3. RENTAL ITEMS: The following equipment is rented and not
included in the
Purchase
Price. The Buyer agrees to assume the rental contract(s). if
assumable:
***
4. COMPLETION DATE: This Agreement shall be completed by no later
than 6:00
p.m. on the date
that is set forth in the Put/Call agreement to which this
schedule is
attached. Upon
completion, vacant
possession of the
property
shall be given to the Buyer unless otherwise provided for in this
Agreement.
5. GST: If this transaction is subject to Goods and Services
Tax (G.S.T.),
then
such tax shall bein addition to the purchase Price. If this
transaction is
not subject to G.S.T., Seller agrees to certify on or
before
closing, that
the transaction is not subject to G.S.T.
6. TITLE SEARCH: Buyer shall be allowed
until 6:00 p.m. on the
date that is
five days prior
to the Closing
Date, (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, satisfy himself that there are no
outstanding work
orders or deficiency notices affecting the property, that
its present use ( industrial ) may be lawfully continued and that the
principal
building may be insured against risk of fire. Seller hereby
consents to the
municipality or other
governmental agencies
releasing
to
Buyer details of
all outstanding work
orders affecting the
property,
and
Seller
agrees to execute and
deliver such further
authorizations in
this
regard as Buyer
may reasonably require.
7. FUTURE USE: Seller and Buyer agree that there is no representation or
warranty of any
kind that the future
intended use of the property by Buyer
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
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
and registered
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;
(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
prop
