HomeMy WebLinkAboutCAO 09-18--C:~of--p](KERJNG From: Tony Prevedel Chief Administrative Officer Subject: Land Acquisition and Disposal -Pickering Innovation Corridor -Seaton -Purchase of 22 acres from Infrastructure Ontario -File: L-4610-009-18 Recommendation: Report to Council Report Number: CAO 09-18 Date: October 1, 2018 1. That Council approve the Agreement of Purchase and Sale dated May 31, 2018 between Ontario Infrastructure and Land Corporation, as vendor, and the City, as purchaser; 2. That Council approve the Agreement of Purchase and Sale dated March 19, 2018 between the City, as vendor, and Kubota Canada Ltd., as purchaser; 3. That Council authorize the Chief Administrative Officer to waive the City sale condition contained in Section 6.04(a) of the Agreement of Purchase and Sale with Ontario Infrastructure and Land Corporation, provided that the Chief Administrative Officer shall not waive the said condition unless and until Kubota Canada Ltd. has waived all conditions in its Agreement of Purchase and Sale with the City dated March 19, 2018; 4. That, upon waiver of the above-noted conditions, City staff be directed to proceed with completion of both the said Agreements of Purchase and Sale; and 5. That the appropriate City of Pickering officials be authorized to take the necessary actions as indicated in this Report. Executive Summary: The City has entered into an Agreement of Purchase and Sale (the "22 Acre Purchase Agreement") dated May 31, 2018, whereby it has agreed to purchase approximately 22 acres (the "22 acre parcel") of Seaton employment lands from Ontario Infrastructure and Land Corporation (the "Province"). The Agreement is conditional upon the approval of City Council prior to October 12, 2018. The City has also entered into a separate Agreement of Purchase and Sale (the "50 Acre Sale Agreement") whereby it has agreed to sell approximately 50 acres (the "50 acre parcel") of Seaton employment lands to Kubota Canada Ltd. ("Kubota"). The 50 acre parcel being sold to Kubota includes the 22 acre parcel being purchased from the Province. The 50 Acre Sale Agreement is conditional for Kubota's benefit until October 5, 2018. At the present time, Kubota is completing its various due diligence searches. Kubota has until October 5th to complete its searches, however, the last scheduled Council meeting prior to the
CAO 09-18 Subject: Pickering Innovation Corridor -Seaton October 1, 2018 Page 2 2018 municipal election will be held on October 1st. Staff therefore recommend that Council authorize the Chief Administrative Officer to waive the City sale condition in the 22 Acre Purchase Agreement provided that Kubota waives its condition in the 50 Acre Sale Agreement. This will enable the City to proceed with both Agreements of Purchase and Sale without the need for an additional special meeting. This will also ensure that the City buys the 22 acre parcel only if Kubota has unconditionally agreed to buy it in turn from the City as part of the 50 acre sale. Financial Implications: The financial plan for the 22 Acre Purchase Agreement is for the purchase cost, including associated fees, to be recovered from the imminent sale of the 50 acre parcel to Kubota. The closing of the 22 Acre Purchase Agreement will be scheduled to occur within 30 days of the closing of the 50 Acre Sale Agreement, such that the City's cash flow will not be materially impacted. The initial cost of the purchase is approximately $2.2 million plus HST, Land Transfer Tax and Provincial Top-up payment shortfall. During the period of the City's ownership of the lands, the City will be responsible for any development-related cash calls pursuant to the Seaton Landowners' Cost Sharing Agreement. Pursuant to Report CAO 02-17, Council has already provided pre-capital 2018 budget approval in the amount of $6.0 million to meet any of these obligations as they relate to the purchase of the 22 acre parcel. All of the City's costs will be passed onto Kubota at the time it completes its purchase of the 50 acre parcel. Discussion: The Seaton employment lands (Pickering's Innovation Corridor) are designated as prestige employment, and consist of approximately 323 hectares (800 acres) owned by the Province. The City's Official Plan designates this land as being suitable for light manufacturing, assembly and processing of goods, research and development facilities, business services, graphics and design, data and communications, offices and ancillary retail uses. On March 31, 2018, the City completed its purchase of 28 acres of Seaton employment lands from the Province. Pursuant to Council direction, the Chief Administrative Officer executed the 22 Acre Purchase Agreement dated May 31, 2018 between the Province, as vendor, and the City, as purchaser. A copy of the 22 Acre Purchase Agreement is Attachment No. 1 to this Report. Upon completion of the 22 Acre Purchase Agreement, the City's total inventory of Seaton employment land will be 50 acres. Pursuant to Council's direction in Report CAO 02-17, the City has also entered into the 50 Acre Sale Agreement whereby it has agreed to sell its 50 acre parcel of Seaton employment lands to Kubota. A copy of the 50 Acre Sale Agreement is Attachment No. 2 to this Report. The 50 Acre Sale Agreement is conditional for Kubota's benefit until October 5, 2018. At the present time, Kubota is completing its various due diligence searches. Kubota has until October 5th to complete its searches, however, the last scheduled Council meeting prior to the 2018 municipal election will be held on October 1st. Staff therefore recommend that Council authorize the Chief Administrative Officer to waive the City sale condition in the 22 Acre Purchase Agreement provided that Kubota waives its condition in the 50 Acre Sale Agreement. This will
CAO 09-18 Subject: Pickering Innovation Corridor -Seaton October 1, 2018 Page 3 enable the City to finalize both Agreements of Purchase and Sale without the need for an additional special meeting. This will also ensure that the City buys the 22 acre parcel only if Kubota has unconditionally agreed to buy it in turn from the City as part of the 50 acre sale. Attachments: 1. 22 Acre Purchase Agreement dated May 31, 2018 2. 50 Acre Sale Agreement dated March 19, 2018 orate Services & City Solicitor Recommended for the consideration of Pickering City Council
, · "d._o o;-t<o' · ATTACHMENT#_J__TO REPORT# '-T' Execution Version 1 .of. 5~ HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF INFRASTRUCTURE as "Vendor" and THE CORPORATION OF THE CITY OF PICKERING · as ·"Purchaser" AGREEMENTOFPURCHASEANDSALE 38997-200125351416.7
TABLE OF CONTENTS SECTION 1 DEFINITIONS-......................................................................................................... 2 SECTION 2 AGREEMENT OF PURCHASE AND SALE ............................................................ 8 SECTION 3 DEPOSIT I PAYMENT OF PURCHASE PRICE ...................................................... 9 SECTION 4 HARMONIZED SALES TAX ................................................................................ 10 SECTION.5 "AS IS WHERE IS", PURCHASER'S INSPECTION PERIOD, AND ENVIRONMENTAL INDEMNITY ........ ; ................................................................................... 11 .SECTION 6. CLOSING CONDITIONS ...... : ..................................................... : ......................... 15 SECTION 7 SALE APPROVAL ................................................................................................. 16 SECTION 8 CLASS EA REQUIREMENTS I ABORIGINAL CLAIMS ................. · ..................... 17 SECTION 9 RISK ........................ , .............................................................................................. 19 SECTION 10 VENDOR'S.WARRANTIES, REPRESENTATIONS AND COVENANTS .. ; .......... 20 SECTION 11 PURCHASER'S WARRANTIES, REPRESENTATIONS AND COVENANTS ...... 20 SECTION 12 SEVE.RANCE ....................................................... ; ................... ; .. : ........................ 21 SECTION l3 REFERENCE PLAN ............................................................................................. 21 SECTION 14 TITLE ................................................................................................. : .....•......... 22 . SECTION 15 NO ASSIGNMENT ETC .......................................... · ............................................ 22 SECTION 16 DEVELOPMENT AGREEMENTS .................... : ................................................ :. 23 SECTION 17 PREP ARATIO:N OF TRANSFER/DEED DOCUMENTS AND FEES/COSTS ........ 25 SECTION 18 TENDER ..................... , ....................... : ............................................................... 25 SECTION 19 ADJUSTMENTS .................................................................................................. 25 SECTION 20 ELECTRONIC REGIST.RATIO:l'j: ........ ; ......................................................... ,,. .... 26 SECTION 21 CLOSING DELIVERABLES ............................................................................ , .... 26 SECTION 22 NOTICE .............................................................................................................. 28 SECTION 23 CONFIDENTIALITY .................................... ; ..................................................... 29 SECTION 24 GENERAL ............................ if .... ,. .... ,. ••••••••• ,, .......... , ..................... ~ ••• "' •• ,,", ....... "."'"''~··~-···--···30 SECTION 25 IRREVOCABLE PERI9D .......................................... ~ ........................................ 31 38997-200125351416.7
AGREEMENT OF PURCHASE AND SALE BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF INFRASTRUCTURE (hereinafter collectively called the "Vendor") RECITALS: -and-THE CORPORATION OF THE CITY OF PICKERING (hereinafter called the "Purchaser") OF THE FIRST PART OF THE SECOND PART A. The Vendor is the owner in fee simple of the property defined as the "Lands" in Section • l.Ol(ww) of this Agreement. R. Vendor and OILC hereby confirm that OILC is the designated agent of the Vendor. C. The Lands are within the area covered by the "Central Pickering Development Plan" issued pursuant to the Ontario Planning and Development Act, 1994, S.O. 1994, c.23. D. The Purchaser and the Vendor did enter into an Option Agreement dated March 26, 2018 which provides that the Purchaser may acquire certain lands, including the Lands at a price to be agreed upon during the term of such Option Agreement. E. The Lands are subject to the Development Agreements, and the Purchaser has agreed to assume the Development Agreements as they relate to the Lands. F. The Lands are "Phase 1 Prestige Employment Lands" as such term is defined by the Phase 1 RFEA. G. The Lands are subject to the Lease, and the Purchaser-has agreed to assume the Lease as they relate to the Lands. · H. The Purchaser has offered to purchase the Property from the Vendor mi the terms and conditions hereinafter set forth. -NOW THEREFORE in consideration of the mutual covenants hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agr~e as follows: 38997-20'01 25351416.7
1.01 Definitions SECTION 1 DEFINITIONS Unless the context expressly or by necessary implication indicates a contrary meaning, the terms defo:i.ed in this Section 1.01 for all purposes of this Agreement, shall have 1he meanings set out below: (a) "Adjustments" means the adjustments to the Purchase Price provided for and detennined pmsuant to this Agreement. (b) "Affiliate" has the meaning set out in the Business Corporations Act, R.S.O. 1990, c. B. 16. (c) "Agreement:' means collectively, this agreement of purchase and sale, all Schedules attached hereto and every properly executed instrument which by its teims amends, modifies or supplements this Agreement. (d) "Applicable Laws" means, collectively, all statutes, laws, by~laws, regillations, ordinances and orders of any · governmental Authority, including without· limitation all Land Use Regulations. (e) "Approval Term" has the meaning ascribed to it in Section 7.03. (f) "As Is Where Is" has the meaning ascribed to it in Section 5.01. (g) "Assignee" has the meaning ascribed to it in Section 15.02. · (h) "Assignment and Assumption Agre(;)ment" means an agreement by which the Vendor shall assign and thy Purchaser shall become a party to a Development Agreement, Lease or Permitted Encumbrance and whereby the Purchaser assumes the responsibility of the Vendor with regard to the Property pursuant to such Development Agreement, Lease or Pennitted Encumbrance. (i) "Attribution Development Charges" means the Regional Attribution Water Supply DC and the Regional Attribution Sanitary Sewerage DC (a~ such terms are defined in the Phase 1 RFEA) from time to time. · (j) "Attribution Prepayment" means the sum of the "Regional Attribution Water Supply DC Prepayment" and the "Regional Attribution Sanitary Sewerage DC Prepayment" (as such terms are defined in the Phase 1 RFEA) from time to time. (k) "Authority" means any governmental or quasi-governmental authority, regulatory authority, government department, agency, commission, board, tribunal, body or department, or any court1 -whether federal; provincial or municipal, having jurisdiction over the Property, or the use thereof, and includes the City and the Region.
.. 3 -(1) "Buildings" means, individually or collectively, as the context requires, all buildings, structures and fixed improvements located on, upon or under the Lands, and all improvements and fixtures of the Vendor contained in, upon or on such ]:mildings and structures which are used in the operation of same, and "Building" ni.eans any one of the Buildings .. (rh) "Business Day" means any day on which the Government of Ontario normally conducts business. (n) "City" m.eans the City of Pickering. (o) "City Sale Approval" means the necessary internal approvals required for the Transaction by the Council for th~ City. (p) "Class EA" means the Class Environmental Assessment. Process for the Ministry of Infrastructure as it applies to OILC realty activities (being as at the Execution Date, the "Ministry of Infrastructure Public Work Class Environmental Assessment (Office Consolidation)", as approved April 28, 2004 and amended on September 11, 2008 and on October 31, 2012), as approved, amended, or renewed from time to time by the Minister of the Environment and Climate Change pursuant to Section 14 of the Environmental Assessment Act, R.S.O. 1990, c. E.18. (q) "Class EA Requirements" has the meaning ascribed to it in Section 8.01. (r) · "Closing" means the closing of the Transaction, including without limitation, the payment of the Purchase Price and the delivery of the closing documents in accordance with the provisions of this Agreement. (s) "Closing Date" means the day which is thirty (30) Business Days next following the date the Purchaser waives or satisfies its condition(s) contained in Section 5 and Section 6.04 of this Agreement. (t) "Community Use Land" has the meaning ascribed to it in the Seaton CSA. (:u) "Contaminant" has, for the purposes of this Agreement, the same meaning as that contained in the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended, and shall include the requirements of any and all guidelines and/or policies issued by the Ontario Min1stry of the Environment and Climate Change and/or the Ministry of.Labour. (v) "Cost Shared Service" has the meaning ascribed to it in the Seaton CSA. (w) "Crown Right Request" has the meaning ascribed to it in Section 12.01. (x) "DC Credit Recovery Payment" has the meaning ascribed to it in Section 16,03. (y) "Deposit" has the meaning ascribed to it in Section 3.01.
-4-(z) "Developable Area Share" has the meaning ascribed to it in the Seaton CSA. (aa) "Development Agreements" means, collectively, the Phase 1 RJ<'EA, the Seaton CSA, the Pickering FIA, the Seaton-Durham CSA and the Master Parks Agreement, and "Devel9pment Agreement" means any one of such agreements, (bb) "Development Agreement Payment" means any paymerit required to be made, or security to be provided, to an Authority, to the Vendor, or to a trustee named under a Development Agreement, by the Purchaser at Closing hereunder and whether required by an Assignment and Assumption Agreement or otherwise, and includes, but is not limited to, the DC Credit Recovery Payment; Attribution Prepayment, Development Agreement Security, Development Charge Payments, and Private Land Landowner Equivalency Payment. (cc) "Development Agreemertt Security" means any security required to be delivered by a Private Landowner pursuant to a Development Agreement, whether by letter of cr~dit•or otherwise. (dd) "Development Charge Credits" means the development charge credits earned pursuant to the Phase 1 RFEA. (ee) "Development Charge Prepayments" means the prepayments on account of the Regional Attributions Development Charges required to be paid to the Region .pursuant to the Phase 1 RFEA upoh the development of Employment Lands. (ff) "Drainage Area Share" has the meaning ascribed to such term in the Seaton CSA. (gg) "J)urham Owners" has the meaning ascribed to it in the Seaton-Durham CSA. (hh) "Employment Lands" means those lands designated as "Prestige Employment Lands" in the 'Central Pickering Development Plan'. (ii) "Environmental Law" means, collectively, all Applicable Laws and agreements with governmental Authorities and all other applicable federal and provincial statutes, municipal and local laws, common law and deed restrictions, all by-laws, regulations, codes, licences, permits, orders, directives, guidelines, decisions rendered by any governmental Authority relating to the protection of the environment, natmal resources, public health, occupational health and safety or the manufacture, processing, distribution, use, treatment, storage, disposal, packaging, transport, handling, .containment, clean-up or other remediation or corrective action of any Hazardous Substance, and all authorizations issued pursuant to such Applicable Laws, agreements or statutory requirements. (ij) "Environmental Objection" has the meaning ascribed to it in Section 5.02. (kk) "Environmental Reports" means the reports relating to the environmental condition of the Lands as identified in Schedule C.
(11) (mm) (nn) (oo) (pp) (qq) (rr) (ss) (tt) (uu) (vv) (ww) (xx) (yy) (zz) (aaa) "5" "Execution Date" means the date on which this. Agreement has been executed and · delivered by all parties hereto. "Existing Participation Agreement" has the meaning ascribed to it in Secti01Y2J .01. "Expiry Date" has the meaning ascribed to it in Section 7.03. "Further Class EA Extension Period" has the meaning ascribed to it m Section 8.02(d)(i). "Further Extension Period" has the meaning ascribed to it in Secticm 8.03(b). "Hazardous Substance" includes, but is not limited to any hazardous or toxic chemical, waste, by-product, pollutant, contaminant, compound, product or substance, including without limitation, any Contaminant, asbestos, polychlorinated biphenyls, peh·oleum and its derivatives, by-products or other hydrocarbons and any other liquid, solid or gaseous material the exposure to, or manufacture, possession, presence, D;Se, generation, storage, transportation, treatment, release, disposal, abatement, cleanup, remoyal, remediation or handling of, which is prohibited, controlled or regulated by any and is defined in or pursuant to any Environmental Law. "Heritage Requirements" has the meaning ascribed to it in Section 8.0l(b). "HST" has the meaning ascribed to it in Section 4.01 of_this Agreement. "Initial Class EA. Extension Period" has the meaning ascribed to it in Section 8.02. "Initial Extension Period" has the meaning ascribed to it in Section 8.03. "Inspection Period" means that period of time which is seventy (70) Business Days following the Execution Date. · "Lands" means the land(s) described in schedule A-1 and outlined in red on the sketch plan attached hereto as Schedule A-2. · "Land Use Regulations" means collectively, any land use policies, regulations, by-laws, or plans of any Authority that apply to the use of the Property; including the existing Official Plans, zoning by-lav.-:s and zoning orders. "Land Transfer Tax Affidavit" has the meaning ascribed to it in Section 17 :o 1. "Lease" means the lease dated January 22; 2016 made between the Vendor, as landlord and 1018105 Ontario Inc o/a Hunter Farms, as tenant. "Master Parks Agreement" means the Master Parks Agreement dated May 1, 2017 entered into by the City, and the owners of other develop~ent land in the Seaton
-6 -Community for the purpose of establishing arrangements pertaining to the satisfaction of the park dedication requirements for the Seaton Community. (bbb) "Municipality" means the municipality ( or municipalities) where the Property is located. (ccc) "Offer Date" means the date the offer herein is submitted to the Vendor by the Purchaser. (ddd) (eee) (fff) (ggg) (hhh) (iii) (jjj) (kkk) (111) "OILC" means Ontario Infrastructure and Lands Corporation. "Open Data" means data that is required to be released to the public pursuant to the Open Data Directive; · "Open Data Directive" means the Management Board of Cabinet's Open Data Directive, updated on April 29, 2016, as same may be amended from time to time; "Participation Agreement" means the Participation Agreement attached hereto as schedule G and to be entered into between the Vendor and the Purchaser at Closing. "Permitted Encumbrances" means, collectively, the encumbrances listed in Schedule B and any encumbrances created under the terms of this Agreement.' · "Phase 1 RFEA" has the meaning ascribed to such term in the Seaton CSA. · "Phase 1 RFEA Lands" has the meaning ascribed to such term in the Phase 1 RFEA. "Phase 1 Development" has the meaning ascribed to such term in the Seaton CSA. J "Pickering FIA" means the Financial Impacts Agreement dated November 26, 2015 .entered into by the City, and the owners of other development land in the Seaton Community for the purpose of confirming arrangements pertaining to the financing and construction of certain infrastructure and other related matters affecting the development of lands in Seaton. (mmm) "Prior Purchased Lands" has the meaning ascribed to it in Section 2.02(b). (nnn) "Private Landowner" has the meaning ascribed to such term in the Seaton CSA. ( ooo) "Private Landowner Equivalency Payment" has the meaning ascribed to it in Section 16.06. (P.PP) "Property" means, collectively, all of the right, title and interest of the Vendor in and to the Lands and the Buildings. (qqq) "Property Documents" means the documents in OILC's current possession and related to the Property, as set out in Schedule C, and shall include, but shall not be limited to:
-7. (A) executed copies of any assignable service contracts, operating . agreements and management agreements; (B) copies of assignable guarantees and warranties of materials, workmanship, labour and materials relating to the Property that are still in effect; (C) copies of the Environmental Reports, heritage reports, arcliaeological reports or any other reporJ: relating to the physical, geotechnical or environmental condition of the Property; (D) a copy of the Lease; (E) copies of all Permitted Encumbrances which are not registered against title to the Property; and (F) any plan of survey of the boundaries of the Property. (m) "Provincial Successor" has the meaning ascribed to such term in the Seaton CSA. (sss) "Purchase Price" means the total amount dete1mined by Section 2.02 that shall be paid by the Purchaser to the Vendor for the Property, exclusive of HST and subject to the Adjustments. (ttt) . "Purchaser's Reports" has the meaning ascribed to it in Section 5.06, (uuu) "Region" means the Regional Municipality of Durham. (vvv) "Regional Infrastructure'' has the meaning ascribed to it in the Seaton CSA. (www) "Requisition Date" has the meaning ascribed to it in Section 14.01. (xxx) "Sale Approval" means the necessary internal governmental approvals required for the Transaction including, but not limited to, the approval of the Lieutenant Govemor-in-Council pursuant to Section 9 of the Ministry of Irifrastructure Act, 2011 S.O. 2011, C. 9,. Sched. 27. (yyy) "Sale Approval Date" means the date. that the Sale Approval was granted. (zzz) "Seaton · Community" means the developable land as determined by the Central Pickering Development Plan, as may be further refined, and as determined by the Seaton CSA. (aaaa) "Seaton CSA" means the Amended and Restated Cost Sharing Agreement dated . November 26, 2015 between the Vendor and other owners of development land in the Seaton Conuimnity to provide for the sharing of the costs of development in the Seaton Community.·
-8 -(bbbb) "Seaton-Durham CSA" means an agreement dated November 26, 2015 between the Vendor, the Private Landowners and the Durham Owners to provide for the recovery of certain costs of construction of Regional Infrastructure to be incurred by the Vendor and the Private Landowners pursuant to the Phase 1 RFEA from the Durham Owners. (cccc) "Seaton Trustee" means the trustee as provid~d for in the Seaton CSA, as it is from time to time. As of the Execution Date, the Seaton Trustee is North Pickering Community Man?,gement Inc. (dddd) "Servicing Costs" has the meaning ascribed to it in Section 16.07. ( eeee) "SWM Facilty" has the meaning ascribed to it in Section 2.02(b ). (ffff) "SWM Price Reduction" has the meaning ascribed to it in Section 2.02(b). (gggg) "Subsequent Phase" means development of land in the Seaton Community, the development of which is not covered by the Phase 1 RFEA, and for which no allocation of sewer or water capacity has cun:ently be granted by ~ny Authority. (hhhh) "Transaction" means, collectively, the purchase and sale of the Property provided for in this Agreement and all other matters contemplated in this Agreement. (iiii) "Vendor" means Her Majesty the Queen in right of Ontario as represented by the Minister of Infrastructure and includes, for the purpose of any exculpatory clause and indemnity included in this Agreement in favour of the Vendor, OILC, any ministries, agencies, representatives, servants, employees, agents, .invitees, officers, directors, contractors and licensees of Her Majesty the Queel'). iri right of Ontario and OILC, and their brokers, service provider(s) and any other entity over whom the Vendor or OILC may reasonably be expected to exercise control. SECTION2 AGREEMENTOFPURCHASEANDSALE 2.01 The Vendor agrees to sell, transfer and assign to the Purchaser all of the right, title and interest of the Vendor in the Property and the Purchaser agrees to purchase, acquire and assume the Property from the Vendor for the Purchase Price which shall be paid by the Purchaser to the Vendor for the Property, exclusive of HST and subject to the Adjustments on the Closing Date.' 2.02 (a) Subject to Section 2.02(b ), the Purchase Price shall be calculated by multiplying the area of the Lands in acres by a per acre price of ONE HUNDRED thousand dollars ($100,000.00) per acre,•subject to the SWM Price Reduction. It is estimated that the area of the Lands is 22.0 acres more or less, which wollld result in a Purchase Price of TWO MILLION TWO HUNDRED THOUSAND DOLLARS ($2,200,000.00) subject to the
-9 -SWM Price Reduction. Prior to Closing the area of the Lands shall be conclusively determined by the reference plan to be prepared in accordance with Section 13.01 hereof. (b) The Purchaser has purchased an abutting parcel ofland, being Part of Lots 23 and 24, Concession 5 Pickering, designated as Part 1 on Plan 40R-29998 (the "Prior Purchased Lands"). The parties acknowledge that the Prior Purchased Lands included lands that .show on Seaton Neighbourhood Plan 21 -Phase 1 to be required for a storm water. management facility with an area of 2.94 acres (the "SWM Facility"). The Purchaser and the Vendor agree to reduce the Purchase Price of the Property by an amount equal to the area of the SWM Facility multiplied by $50,000/acre for a product of $147,000 (the "SWM Price Reduction"). 2.03 The Purchaser shall NOT be entitled to direct title of the Property to any other person 0r entity at Closing. SECTION3 DEPOSIT /PAYMENT OFPURCHASEPRICE 3.01 The Purchaser will pay to Vendor's solicitor in trust, by certified cheque or wire transfer: (a) Upon the submission of this offer to purchase, a sum equal to five percent (5%) of the Purchase Price, as estimated at Section 2. 02 hereof, as a deposit to be credited towards the Purchase Price .on the Closing Date; and (b) Within forty-eight ( 48) hours of the Execution Date a further sum equal to five percent (5%) of the Purchase Price, as estimated at Section 2.02 hereof, as a further deposit to be credited towards the Purchase Price on the Closing Date (collectively, the "Deposit"). 3.02 The parties authorize OILC to invest the Deposit with a Canadian bank as identified in Schedule I of the Bank Act, R.S., 1991, c. B.46 (Canada) in a term or certificate of deposit (such investment to be available to OILC through its trust account bank and which investment allows liq1lidation of the investment as necessary for the anticipated Closing Date or earlier termination of this Agreement as herein provided) if OILC determines, acting reasonably, that anticipated interest to be earned will justify any related expenses, considering the rate of interest to be earned and the anticipated time the Deposit will be held before Closing. Any and all interest earned thereon shall accrue to the benefit of and, subject to Sections 3.03 and 5.03, be paid to the Purchaser forthwith following the Closing Date or earlier termination of this Agreement. 3.03 In the event that this Agreement is terminated due to a specific default by the Purchaser, then the Deposit, together with all interest accrued thereon, shall be forfeited to the Vendor as liquidated damages. 3.04 If the Transaction is completed, the Deposit shall be credited against the Purchase Price due on Closing and all interest accrued thereon shall be paid to the Purchaser or as it may direct forthwith following Closing.
-10 -3.05 On Closing the Purchase Price shall be paid and satisfied as follows: ' (a) by release of the Deposit to the Vendor; and (b) the balance of the Purchase Price, as adjusted pursuant to this Agreement shairbe paid on the Closing Date by the Purchaser to OILC in trust by way of wire transfer, such payment being deemed to have been made when OILC's financial institution confirms receipt of such wire transfer. 3.06 In addition to the P_urchase Price, at Closing the Purchaser shall pay, or cause to be paid, all Development Agreement Payments to the Vendor, to the applicable Authority, or to the applicable trustee under a Development Agreement, as applicable. 3.07 The Purchaser acknowledges that at Closing it wiil be required to provide, or cause to be provided, Development Agreement Security to the appropriate Authority pursuant to one or more of the Development Agreements. 3.08 The Transaction shall be completed on the Closing Date at the offices of the Vendor's solicitors. SECTION 4 HARMONIZED SALES TAX 4.01 The Purchase Price does not include the Harmonized Sales Tax ("HST") payable by the Purchaser in respect pf the purchase of the Property pursuant to the Excise Tax Act, R.S.C. 1985, c. E.15 (Canada) (the "Act"). Subject to Section 4.02, the Purchaser agrees to pay to the Vendor, on the Closing Date, as a condition of completion of this Transaction by wire transfer, certified cheque or bank draft, all HST payable as a result of this Transaction in accordance with the Act. 4.02 Notwithstanding Section 4.01 above, the Vendor shall not collect HST from the Purchaser in this Transaction if, on Closing, the Purchaser is registered under the Act and in that event, the Purchaser shall: (a) file returns and remit such HST to the Receiver General for Canada when and to the extent required by the Act; and (b) . provide to the Vendor, on the Closing Date, a certificate confoming that the Purchaser is registered under the Act for the purposes of collecting and remitting HST, and confirming its HST registration number under the Act, together with an indemnity in favour of the Vendor for any and all HST, fines, penalties, actions, costs, losses, claims, damages or expenses and/or interest which may become payable by, or assessed against, the Vendor as a result of the Vendor's failure to collect HST from the Purchaser on the Closing Date, such ce1tificate and indemnity to be in a form satisfactory to the Vendor's solicitor, acting reasonably, failing which the Purchaser shall pay to the Vendor on Closing the HST payable by the Purchaser with respect to this Transaction and the Vendor shall remit such HST to the appropriateAuthority in accordance with the Act.
-11 C 4.03 The Purchaser's obligations under this Section 4 shall survive and not merge on Closing. SECTIONS ''AS IS WHERE IS'', PURCHASER'S INSPECTION PERIOD, AND ENVIRONMENTAL INDEMNITY 5.01 The Purchaser acknowledges and agrees that: (a) in entering into this Agreement, the Purchaser has relied and will continue to rely entirely and solely upon its own inspections and investigations with respect to the Properly, including, without limitation, the physical and environmental eondition of the Property and a review of any documentation respecting the Property, and the Purchaser acknowledges it is not relying on any information furnished by the Vendor or any other person on behalf of, or at the direction of, the Vendor in connection therewith; (b) the };'.urchaser is purchasing and shall accept, assume and take title to the Property and any improvements thereon in an "As Is, Where Is" condition. The term "As Is, Where ls" means in its condition or state on the Offer Date, without any agreement, representation or warranty of any kind whatsoever, either express or implied on the part of the Vendor, as to the condition of the soil, the subsoil, the ground and surface water or any other environmental matters, the condition of the Lands, suitability for development, physical characteristics, profitability, the condition of the Buildings, or any other matter respecting the Property whatsoever, including without limitation, compliance with Environmental Law, the existence of any Hazardous Substance or Contaminant, the use to ·which the Property may be put and its zoning, the development potential of the Property or the ability of the Purchaser to obtain approvals with respect to the Purchaser's intended development of the Property, or as to the accuracy, currency or completeness of any · information or documentation supplied to the Purchaser in connection with the Property; and ( c) the Vendor shall have no obligation~ or responsibility to the Purchaser after Closing with respect to any matter relating to the Property or the condition thereof. The provisions of this Section 5.01 shall survive and not merge on Closing. Without limiting the foregoing, the Purchaser accepts, assumes and takes title to the Property subject to the land uses currently permitted on the Property by the applicable Land Use Regulations and the Purchaser shall not make and is not authorized by the Vendor to make, prior to completion of this Transaction, any applications to the Municipality or any governmental Authority for changes or variances to the uses currently permitted on the Property, including without limitation changes or variances to official plans and/or zoning by-laws applicable to the Properly. 5.02 During the. period of time commencing 011 the Execution Date and expiring 011 the expiration of the Inspection Period, the Purchaser may carry out whatever investigations it considers necessary to satisfy itself with respect to the condition of the soil, the subsoil, the ground and ·surface .water
-12 -or any other environmental matter relating to the Property, including, without limitation, compliance with Environmental Law, the existence of any Hazardous Substance or Contaminant. If as a result of such investigations the Purchaser has or acquires evidence within the Inspection Period that there exists a condition of non-compliance with Environmental Law or the presence of a Hazardous Substance or Contaminant on, in, at, under, emanating from or onto the Property that would be in excess of the guidelines for any of the permitted uses under the current zoning by-law affecting the Property, foe risk or presence of which the Purchaser is not prepared to assume, then the Purchaser shall, by written notice, provide such evidence to the Vendor within the Inspection Period by way of a report of a recognized and qualiffod environmental consultant who shall specify in detail the r.iature of the non-compliance, Hazardous Substance or Contaminant and quantify the remediation cost (collectively, an "Environmental Objection"). Upon receipt of an Environmental Objection, the Vendor may, at its option and in its sole discretion: (a) undertake, as the Purchaser's sole and exclusive remedy, to take such actions, complete such work and/or impleme11t such measures, in the Vendor's sole discretion as to means and methods, as may be necessary to correct the matter of non-compliance prior to the Closing Date or as soon as reasonably possible after the Closing Date if compliance prior to Closing is not, in the Vendor's opinion, reasonably possible; (b) credit the Purchaser, as the Purchaser's sole and exclusive remedy, the quantified cost of correcting the matter of non-compliance as ru1 adjustment to the Purchase Price, in which event the Purchaser shall, on Closing, expressly assume the obligation ancl undertake to c01rect the matter of non-compliance as soon as possible after the Closing Date and shall indemnify and save harmless the Vend or from and against ai1y and all claims, demands, costs, damages, expenses and liabilities whatsoever arising from the Purchaser's failure to remediate the Hazardous Substance, Contaminant and/or matter of non-compliance; ·(c) terminate this Agreement in which event the Deposit shall, subject to Section 5.03, be returned to the Pmchaser with 'accrued interest, and without further liability to the Vendor; or · · (d) re±'use to do either (a), {b), or (c) above in which event the Purchaser shall have the option of either: (i) completing the Transaction without adjustment to the Purchase Price; or (ii) terminating this Agreement in which event the Deposit shall, subject to Section 5.03, be returned to the Purchaser with accrued interest, and without further liability to the Vendor. The Vendor shall have ten (10) Bt1siness Days from receipt of the Environmental Objection to make its election under (a), (b), (c) or (d) above by notice in writing to the Purchaser and in the event the Vendor fails to make ai:i electio1:i within said ten (10) Business Day period, the Vendor will be deemed to have elected option (d) above .. The Purchaser shall have ten (10) days from the date of the Vendor's election or deemed election under (d) above to elect, by notice in writing to the Vendor, to terminate or complete as per paragraph ( d) above and in the event the Purchaser
-13 -. fails to µiake an election within said .ten ( I 0) day period the Purchaser shall be deemed to have elected to complete the Transaction without adjustmentto the Purchase Price. 5.03 During the Inspection Period, the Vendor will permit the Purchaser together with its employees, agents or consultants access to the Property, at reasonable times and upon a minimum of two (2) Business Days' prior written notice to the Vendor, to carry out, at the Purchaser's sole expense and risk, such investigations, tests and inspections as the Purchaser deems necessary, provided that the Purchaser takes all reasonable care in the conduct of such investigations, tests and inspections. All tests, investigations and inspections conducted by the Purchaser or its representatives shall be commenced and completed prior to the expiratio11 of the Inspection Period and shall be carried out as expeditiously as possible and at times and in such manner so as to not interfere with any tenants, occupants or licensees on the Properly or the operation and maintenance of the Property. The Purchaser covenants and agrees to· promptly repair or pay the cost of repair of any damage occasioned during or resulting from such investigations, tests and inspections of the Property conducted by the Purchaser or its representatives and to return the Property to substantially the same condition it was in prior to such investigations, tests and inspections. The Vendor assumes no responsibility for and the Pui'chaser shall indemnify and save harmless the Vendor frorn and against any and all claims, demands, costs, damages, expenses and liabilities whatsoever arising from the Purchaser's and/or its agents' or consultants' presence on the Property or the Purchaser's and/or its agents' or consultants' activities on or in connection with the Property. The Vendor shall be entitled to deduct from the Deposit paid by the Purchaser hereunder the amount of any losses, costs, claims, third party actions, damages and expenses which the Vendor may suffer as a result of a breach of this Section 5.03. The obligations in this Section 5.03 shall survive termination of this Agreement for a period of two (2) · years and shall not merge on Closing. 5.04 Intentionally Deleted. 5,05 The Vendor agrees to provide to the Purchaser, within five (5) days of the Execution Date, the Property Documents listed in Schedule C. The Purchaser acknowledges and agrees that: (i) the Property Documents are being provided to the Purchas~r for informational purposes only and the Vendor makes no·. representations or warranties whatsoever with respect to the conttmt, completeness or accuracy of the Property Documents, or the environmental or any other condition of the Property; (ii) the Vendor shall not be liable to the Purchaser, its agents, employees or lending institution in any way for any error, omission or inaccuracy contained in any Property Document; and (iii} as of the Closing Date, the Purchaser shall become solely· liable for all conditions· and Hazardous Substances and/or Contaminants existing at the Properly, whether known or unlmown by the Purchaser, and whether or not such conditions or Hazardous Substances and/or Contaminants are disqlosed in the Property Documents 9r have been discovered by Pmchaser in the course of its due diligence or other investigations or inspections of the Property. 5.06 The Purchaser covenants and agrees that the Properly Documents provided by the Vendor and any and all third party reports, findings, recommendations, opinions and information resulting from the Purqhaser' s · due diligence ("Purchaser's Reports") and the information contained therein shall be held in accordance with the confidentiality provisions set out in section 23. If this
-14 -Agreement is terminated for any reason, the Purchaser will promptly return to the Vendor all Purchaser's Reports and Property Documents without keeping copies. The Purchaser shall deliver to the Vendor forthwith following receipt, copies of any and all ~urchaser's Reports the Purchaser commissions or obtains during the course of its investigations. 5.07 In the absence of the Purchaser .delivering: (i) an Environmental Objection; and (ii) a notice to terminate the Agreement under Section 5.02(d), the Purchaser shall be conclusively deemed to accept the Property in its As Is, Where Is condition, having waived all requisitions concerning any matters relating to the Property, save for any valid requisition on title made prior to the expiry of.the Requisition Date, and the Purchaser shall accept full responsibility for all conditions related to the Property, and the Purch!lSer shall comply, at its sole cost, with all orders relating to the condition of the Property issued by any competent government Authority, court or administrative tribunal, including any order issued aga:inst the Vendor including without limitation, ahy non-compliance with Environmental Law or relating to the existence of any Hazardous Substance or Contaminant. 5.08 As an inducement to, and as further consideration for, the Vendor agreeing to sell the Property to the Purchaser upon the terms and conditions set forth in this Agreement, the Purchaser covenants and agrees that, effective as of the Closing Date, the Purchaser shall forever release and covenant not to sue the Vendor and its affiliates, subsidiaries, related legal entities, employees, directors, officers, appointees and agents with respect to anything arising out of the environmental or any other condition of the Property or the presence of Hazardous Substances or Contaminants in, on, linder, or emanating from or onto the Property, regardless of whether such environmental conditions or the presence of Hazardous Substances or Contaminants is known or unknown by the Purchaser and regardless of whether such condition is set forth in the Property Documents, the Purchaser's Reports or any other report, document or information discovered during the course of the Purchaser's due diligence or otherwise. The foregoing release and covenant not to sue shall apply to all claims at law or 111 equity, including·, but not limited to, claims or causes of action for personal injury or death, propeity damage, statutory claims under Environmental Laws. and claims for contribution. 5.09 From and after the Closing Date, the Purchaser shall be responsible for, ~d hereby agrees to indemnify, defend and save harmless the Vendor and its employees, directors, officers, appointees and agents from, any and all costs (including legal, consultant and witness costs and fees), claims, demands, actions, prosecutions, 'administrntive hearings, fines, losses, damages, penalties, judgments, awards (including awards of costs) and liabilities (including sums paid in settlement of claims), that may arise as a result of the condition of the Property, th~ presence of Hazardous Subsumces or Contaminants in, on or under the Lands, the Buildings or any structure or paved surface, or in any environmental medium (including, but not limited to, the soil, groundwater, or soil vapour on or under, or emanating from the Property), any order issued by any Authority in connection with the condition of the Property, or any loss, damage, or injury caused either directly or indirectly as a result of the condition of the Prope1ty including, without · limitation, non-compliance with Environmental Law or the existence of any Hazardous Substance or Contmninant. Without limiting the generality of the foregoing, this indemnification shall specifically cover costs incurred, from and after the Closing Date, in connection with any claim for personal injury and/or death, property damage, investigation of site conditions and/or any
-15 -clean-up, remedial, removal, monitoring or restoration work required by any federal, provincial, or local government agency or political subdivision because· of the presence of Hazardous Substances, in, on or under the Lands, the Buildings or any environmental medium, structure or paved surface or emanating therefrom. 5.10 The parties agree to execute and exchange at the time of Closing such further documentation as either party reasonably requests, including, but not limited to; an agreement whereby the Pru-chaser shall reaffirm the release, covenant not to sue and indemnifications regarding the condition of the Property and environmental matters set forth in this Section 5 in the form attached hereto as schedule F. Notwithstanding the foregoing, the release, covenant not to sue and indemnifications set forth in this Section 5 shall become effective and enforceable automatically upon the registration of the Transfer/Deed of Land in respect of the Property in favour of the Purchaser, and Purchaser shall be bound by them, regardless of whether or not Purchaser executes any separate instrument at the time of Closing. 5.11 Unless otherwise expressly set out herein, this Section 5 shall not merge but shall surviv·e the· Closing Date and shall be a continuing obligation of the Purchaser. SECTION6 CLOSING CONDITIONS 6.01 The obligation of the Vendor to complete the Transaction is conditional upon fulfillment of each of the following conditions on or before the Closing Date or any earlier date or time specified in this Agreement: (a) the Vendor shall have obtained the Sale Approval pursuant to Section 7 of this Agreement; (b) all of the tem1s, covenants and conditions of this Agreement to be complied with .or performed by the Purchaser shall have been complied with or perfonned in all material respects at the times contempiated in this Agreement; ( c) the representations ruid warranties of the Purchaser set forth h1 this Agreement shall be true and accurate in all material respects as if made as of the Closing; ( d) the Purchaser shall have executed all documents required to assume the obligations of the Vend01: pursuant to the Development Agreements, including all required Assignment and Assumption Agreements; and ( e) all documents and deliveries required to be executed and/or delivered by the Purchaser shall have been executed and delivered to the Vendor in, accordance to this Agreement. 6.02 · The conditions set forth in Section 6.01 are for the sole benefit of the Vendor ai~d may be waived in whole or in part by the Vendor, or by its solicitors on its behalf, in the sole and absolute
-16 -discretion of the Vendor by written notice to the Purchaser. The conditions are conditions precedent to the obligation of the Vendor to complete the herein Transaction on the Closing Date. 6.03 . ffa condition set forth in Section 6.01 is not fulfilled within the applicable time period, if any, and the Vendor fails to notify the Purchaser or the Purchaser's solicitors that such conditi011 has been waived or the time period for compliance has been extended within the applicable time period allowed, if any (save and except for any condition which is to be satisfied on the Closing in connection with which it is hereby agreed that upon successful completion of the Transaction, such condition shall be deemed to have been satisfied), at the Vendor's sole option, this Agreement shall be null and void, notwithstanding any intermediate act or negotiations, and (i) in the event the Agreement is terminated as a result of the non-fulfilment of the condition set forth in Section 6.0l(a), neither the Vendor nor the Purchaser shall, subject to Section; 5.03, be liable to the other for any loss, costs or damages, and the Deposit shall, subject to Section 5.03, be returned to the Purchaser with interest and without deduction, and (ii) in the event the Agreement is terminated as a result of the non-fulfilment of any of the conditions set forth in Section 6.01 (b), 6.0l(c) or 6.0l(d), the Deposit shall be forfeited to the Vendor as liquidated damages and without derogating from any claims or causes of action the Vendor may have pursuant to tpis Agreement and at law against the Purchaser arising from the Purchaser's default therein. 6.04 The obligation of the Purchaser to complete the Transaction is conditional upon fulfillment of the following conditions on or before the expiration of the Inspection Period: (a) the City has obtained the City Sale Approval, which approval·may be provided in the sole and unfettered discretion of the City and which the Vendor acknowledges may be arbitrarily and unreasonably withheld. · 6.05 The condition set forth in Section 6.04 is for the sole benefit of the Purchaser. and may be waived in whole or in part by the Purchaser, or by its solicitors on its behalf, in the sole and absolute discretion of the Purchaser by written notice to the Vendor. The condition is a condition precedent to the obligation of the Purchaser to complete the herein Transaction on the Closing Date. 6.06 If the condition set fo1th in Section 6.04 is not fulfilled within the applicable time period and/or the Purchaser fails to notify the Vendor or the Vendor's solicitors that such condition has been waived, this Agreement shall be null and void, and the Deposit shall, subject to Section 5.03, be returned to the Purchaser with interest and without deduction. SECTION?· SALE APPROVAL 7;01 The obligation of the Vendor to complete the. Transaction is conditional upon fulfillment of the following condition: within ninety (90) days from the Offer Date, the Vendor shall have obtained the Sale Approval, which approval the Purchaser acknowledges may be arbitrarily and unreasonably withheld. The Vendor shall notify the Purchaser if and when such approval is
-17 -obtained, and the date of sµch notification if obtained shall be the date of commencement of the Inspection Period. 7.02 The Purchaser agrees that should the Vendor be unable to satisfy the condition set out in Section 7.01 within the said ninety (90) day period, then the Vendor may, at its option and in its sole discretion, extend this time period for an additional sixty (60) days by notice in writing to the Purchaser within the initial ninety (90) day period. 7.03 The Purchaser acknowledges that any Sale Approval that the Vendor obtains with respect to the Property may _be subject to the limitations stated therein, including but not limited to a limitation that such approval shall be valid for a specified period of time from the date of such Sale Approval (the "Approval Term"), in which event such Sale Approval shall cease to be valid on the date upon which the Approval Tenn concludes (the "Expiry Date"), or on such date that such other limitation(s), if any, is/are not met and satisfied. In the event that the Vendor shall have obtained a Sale Approval for the Property in satisfaction of the condition set out i_n Section 7.01, and in the event that the completion of the Transaction has not occurred on or before the Expiry Date set out in such Sale Approval or such date that such other limitation(s), if any, is/are not met and satisfied, notwithstanding any waiver of the condition set out in Section 7.01, this Agreement shall then be null and void, the Deposit and any interest accrued thereon shall, subject to Section 5.03, be returned to the Purchaser and neither the Vendor nor the Purchaser shall, subject to Section 5.03, be liable to the other for any loss, costs or damages. SECTIONS CLASS EA REQUIREMENTS / ABORIGINAL CLAIMS 8.01 The obligation of the Vendor to complete the Transaction is conditional upon fulfillment of the following condition on or before the Closing Date: the Vendor shall have completed the Class EA for the Property and the Transaction (collectively, the "Class EA Requirements"). For purposes of this condition, the Class EA Requirements shall, without limitation, include and be deemed to include the following specific requirements: (a) the requirements of the Environmental Assessment Act; R.S.O. 1990, c.E. 18, as approved, amended, or renewed from time to time, as they apply to the Property and the Transaction (the "Environmental Requirements"); and (b) the requirements of the Standards & Guidelines for Conservation of Provincial Heritage Proper:ties issued by the Ministry of Tourism, Culture and Sport pursuant to Section 25.2 of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as approved, amended, or renewed from time to time, as they apply to the Property and the Transaction (the "Heritage Requirements"). 8.02 Notwithstanding any other provision of this Agreement, the completion of the Transaction is subject to continuing compliance to the Closing Date with all Class EA Requirements. In the event that prior to·the Closing Date: (a) any governing Authority makes or issues, or the Vendor receives any notice or communication from any governing Authority that it is considering whether to make or
-18 -issue, any order or directive pursuant to the Class EA Requirenients that necessitates that the Vendor, in addition to the actions and measures taken aforesaid, take other or different actions or measru:es to c_omply with the Class EA Requirements (including, without limitation, an order or directive requiring the Vendor to comply with Part II of the Environmental Assessment Act); (b) a written request has been made to the Minister of the Environment, of which the Vendor has notice, that other or different measures be taken to comply with the Class EA Requirements; then the Vendor may, at its option and in its sole discretion, extend the Closing Date for at least an additional thirty (30) days (the "Initial Class EA Extension Period") by notice in writing to the Purchaser during which time the Vendor shall: ( c) use reasonable efforts to determine whether the request in -subsection (b) above has been satisfied or has been refused; and ( d) at its option and in its sole discretion, either: . (i) comply with such order or directive (as the same may be modified or withdrawn) at its own C;lXpense, in which event the Vendor may extend the Closing Date up to (but no more than) three times, for a further period of thirty (30) days each (for a maximum of ninety (90) days in the aggregate) (collectively, the "Further Class EA Extension Period"); or · (ii) within the Initial Class EA Extension Period or at any time within the Further Class EA Extension Period, terminate this Agreemenf by written notice to the Purchaser, in which case this Agreement shall be null and void and of no further force and effect and the Deposit and any interest accrued thereon shall, subject to Section 5 .03, be returned to the Purchaser and neither party shall be fu1thef liable to the other pursuant to this Agreement other than the Purchaser's obligations pursuant to Section 5 .03 of this Agreement. 8.03 Notwithstanding any other provision of this Agreement, if at any time prior to the Closing Date the Vendor receives notification or otherwise becomes aware of any claim or potential claim whatsoever for an interest in respect of the Property, by any First Nation or other aboriginal group or individual, in relation to any constitutional right, treaty right, land claim, surrender agreement or consultation right, including, without limitation, an interest in the title to the Property, a right to the use of the whole or any part of the Property, a restriction on the use of the Property or any part thereof for any purpose, a reshiction on access to the Property or any part thereof, a claim for compensation, arising out of any interest or claimed interest in the Properly or a right of consult_ation in relation to the Property, then the Vendor may at its option and in its sole and unfettered discretion extend the Closing Date for at least an additional thirty (30) days (the "Initial Extension Period") by notice in writing to Purchaser during which time the Vendor shall:
(a) (b) (c) -19 -determine in its sole and unfettered discretion if such claim, potential claim or interest is capable of being satisfied c\r whether appropriate releases can be obtained from all interested parties to enable the Vendor to complete the sale of the Property to the Purchaser by the C_losing Date free and clear of any such claim, potential claim or interest; enter into arrangements which enable the Vendor to complete the sale of the Property in accordance with Section 8.03(a), for which purpose it may extend the Closing Date up to (but no more than) three times, for a further thirty (3 0) days each (for a maximum of ninety (90) days in the aggregate) (collectively, the "Further Extensicm Period"); or· within the Initial Extension Period or at any time within the Further Extension Period, have the right to terminate this Agreement by written notice to the Purchaser in which case the Agreement shall be null and void and of no fmther force and effect and neither party shall be further liable to the other pursuant to this Agreement oth~r than the Purchaser's obligations pursuant to Section 5.03 of this Agreement. 8.04 If at any time prior to Closing, the Vendor receives notification or otherwise becomes aware of any requirements imp0sed by an Authority, including without limitation any additional Heritage Requirements, not otherwise contemplated in this Section 8 and with which the Vendor must comply as a condition of completing the Transaction, then the Vendor may at its option and in its-sqle and unfettered discretion extend the Closing Date up to three (3) times for a period of thirty (30) days each time (maximum ninety (90) days) by .notice in writing to Purchaser during which time the Vendor shall: (a) determine in its sole and unfettered discretion if such requirement can be satisfied so as to enable the Vendor to complete the sale of the Property to the Purchaser by the Closing Date; or (b) have the right, with or without a determination pursuant to subsection (a) above, to terminate this Agreement by written notice to the Purchaser in which case the Agreement shall be null and void and of no further force and effect and the Deposit plus any interest accrued thereon shall, subject to Section. 5.03, be returned to the Purchaser and neither party shall be further liable to the other pursuant to this Agreement other than the Purchasers obligations pursuant to Section 5.03 of this Agreement. SECTION9 RISK 9.01 Until completion of this Agreement on the Closing Date, the Properly shall be and remain at the risk of the Vendor, except as otherwise provided in Section 5. The Purchaser acknowledges that the Vendor, in respect of damage to the Property, is self-insured. In the event of damage to the Property on or before the Closing Date (other than damage occasioned during or resulting from the Purchaser's and/or its agents, consultants or representatives entries and/or activities on or to the Property, in which event Section 5.03 shall govern)(the "Pre-Closing Damage"), the Vendor may elect (i) to forthwith repair the Property to the same state and condition as it was in at the
-20 ~ Offer Date in which event the Purchaser will complete the Transaction without an abatement in the Purchase Price; or (ii) to reduce the Purchase Price by an amount equal to the cost required to complete the repair as estimated by an independent qualified architect or engineer jointly retained by the Vel)dor and the Purchaser, acting reasonably and at arm's length in which event .the Purchaser will complete the Transaction and accept a price reduction equal to such cost, or (iii) to terminate this Agreement in which case the Deposit shall, subject to Section 5.03, be immediately returned to the Purchaser, with interest and without deduction, and neither party shall, subject to Section 5.03, have any further rights or obligations hereunder. 9.02 From and including the Closing Date, the Property shall be entirely at the risk of the Purchaser and the Purchaser shall accept and assume any and all resp01~sibilities and liabilities arising out of or in· any way connected with the Property whether they arose before, on or after the Closing Date and, without being limited by the foregoing, any state, nature, quality or condition in, on, under or near the Property existing as of the Closing Date, whenever and however arising, whether known or unknown and whether enviro~mental or otherwise, and whether such responsibilities and liabilities are imposed by law, equity or any governing Authority. SECTION 10 VENDOR'S WARRANTIES, REPRESENTATIONS AND COVENANTS 10.01 The Vendor represents and warrants to the Purchaser that the Vendor is not a non-resident of Canada within the meaning and intended purpose of Section 116 of the Income Tax Act, R.S.C. 1985, c.1 (5th Supp.). . . 10.02 Any information provided by the Vendor or its agents, including the Property Documents, and any comments made by the Vendor, its employees, officers, directors, appointees, agents or consultants are for the assistance of the Purchaser in allowing it to make its own inquiries. The Vendor makes no representations or warranties as to, and takes no responsibility for, the accuracy or completeness of the Property Documents or any other information it has provided to the Purchaser. SECTION 11 PURCHASER'S WARRANTIES, REPRESENTATIONS AND COVENANTS 11.01 The Purchaser represents and warrants to the Vendor that the Purchaser does not have a conflict of interest with the Vendor or OILC or with any of their respective dir_ectors, officers, appointees, employees or agents. The Purchaser agrees to provide a Statutory Declaration in the form attached hereto as Schedule D at the time of execution by the Purchaser of this Agreement. The Purchaser acknowledges that in the event that the information upon which the Statutory Declaration was provided has changed, the Purchaser shall inform the Vendor of such change up to and including the Closing Date. 11.02 The Purchaser represents 'and warrants to the Vendor that the execution, delivery and performance by the Purchaser of this Agreement, and each agreement to be executed and delivered pursuant hereto at Closing, to which the Purchaser is a party are withih the Purchaser's
-21 -legal power and jurisdiction and, subject to the Purchaser obtaining the City Sale Approval in accordance with the condition set forth in Section 6.04; will have been duly authorized and approved by all necessaiy action on the part of the Purchaser. 11.03 The Purchaser represents and warrants to the Vendor that this Agreement has been; and, subject to the Purchaser obtaining the City Sale Approval in accordance with the condition set forth in Section 6.04, each agreement to be executed and delivered by the Purchaser pursua11t to this Agreement, will be.duly and validly executed and.delivered by the Purchaser, and this Agreement constitutes; and each agreement to be executed and delivered pursuant hereto at Closing, when so executed and delivered will constitute, the legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with their respective te1ms. 11.04 The Vendor shall deliver and the Purchaser shall accept possession of the Property on the Closing Date in an As Is Where Is condition, subject to: (i) the Lease; (ii) the Development Agreements; and (iii) the Pennitted Encumbran~es. · 11.05 As of the Clos1ng Date, the Purchaser shall assume and be responsible as owner for the management and administration of the Property a11d the Vendor shall have no further responsibility whatsoever therefor. 11.06 Without limiting the generality of the foregoing, the Purchaser shall comply with the terms of the Permitted Encumbrances, any agreement entered into by the Vendor with any Authority relating to the Property, all other agreements relating to public utilities and municipal services, the Land Use Regulations, all relevant municipal by-laws and all registered restrictions. The Purchaser further agrees and acknowledges that it shall be bound by any contractual obligations which the Vendor may have entered into concerning the Property prior to the Closing Date. SECTION 12 SEVERANCE 12.01 The Purchaser acknowledges that the Vendor will invoke "Crown Right" to sever property (i.e. the ability of the Crown to divide land referenced under the subdivision control provisions of the . Planning Act) in connection with the Transaction. SECTION 13 REFERENCE PLAN 13.01 The pru.ties acknowledge that the Property may not be conveyed until such tin1e as a reference plan has been deposited with the Durham Land Registry Office. The Purchaser agrees, at the Purchaser's sole expense, to prepare and deposit in the appropriate Land Registry Office; a referenc'e plan of survey of the Lands. The Purchaser shall provide the Vendor with a draft reference plan at least 10 Business Days prior to the Closing Date. All costs of prepii-ring the above described reference plan shall be borne by the Purchaser.
-22 -SECTION 14 TITLE 14.01 The Purchaser shall have until the day which is twenty (20) Business Days before the Closing Date (the "Requisition Date") to investigate title to the Property at the Purchaser's expense. The Purchaser agrees not to call for the production of any title deed, abstract, survey or other evidence of title to the Lands except such as are in the possession of OILC or the Vendor. 14.02 On the Closing Date, the Purchaser shall accept title to the Property in an As Is Where Is condition subject to the following: (a) the Land Use Regulations; (b) the Development Agreements and notices thereof; ( c) the Lease; ( d) all Community Use Land obligation pursuant to the Seaton CSA; and (e) the Permitted Encumbrances. The Purchaser agrees to satisfy itself with respect to compliance with all such agreements, easements, restrictions or covenants, encumbrances and regulations referred to herein and agrees that the Vendor shall not be required to provide any evidence of compliance with same. 14.03 If, prior to the expiry of the Requisition Date, the Purchaser furnishes the Vendor in writing with a valid objection to title which the Vendor is unwilling or unable to remove, remedy and satisfy and which the Purchaser will not waive, this Agreement shall be terminated notwithstanding any intennediate acts or negotiations with respect to such objection, the Deposit shall, subject to Section 5.03, be returned to the Purchaser with interest and without deduction and the Vendor shall not be liable for any costs or damages suffered by the Purchaser arising out of such tennination or otherwise out of this Agreement. 14.04 The Vendor hereby consents to the relevant Municipality releasing to the Purchaser any information in its records fn connection with the Property and the Vendor agrees to execute and deliver such necessary authorizations as the Purchaser may reasonably require in this regard but any such authorization shall specifically prohibit the right of or a request for an inspection of the· Prope1ty by the Municipality or any other Authority. SECTION 15 NO ASSIGNMENT ETC. 15.01 The Purchaser shall not assign or register this Agreement, or any assignnient of this Agreement, or any pa.it of either, or register a caution in relation thereto, without, in each instance, obtaining. the prior written consent of the Vendor, which consent may be arbitrarily and unreasonably withheld.
-23 -15.02 If the Vendor consents to an assignment of this Agreement to a third party (the "Assignee"), the Purchaser shall cause the Assignee and the Purchaser, to covenant in writing in favour of the Vendor to be jointly and severally bound by and to jointly and severally perform their respective obligations of this Agreement. The Purchaser shall not be released from its liabilities and obligations hereunder in the event of an assignment to an Assignee. 15.03. In the event of any assignment of thfa Agn~ement to an Assignee, ·such Assignee shall provide a similar representation, warranty and Statutory Declaration as l'equired of the Purchaser in Section 11..01 SECTION 16 DEVELOPMENT AGREEMENTS 16.01 The Purchaser-agrees that at Closing it shall, as part of its acquisition of the Property, assume the obligations of the Vendor regarding the Property pursuant to the Development Agreements, and it covenants to make all payments required by such Development Agreements and pr;)Vide any Development Agreement Security required pursuant to any such Development Agreement, whether such security is to be lodged with an Authority or otherwise, upon the execution of any applicable Assignment and Assumption Agreement with the intent that the Purchaser shall be treated equally with the other Private Landowners; except as explicitly provided in the Development Agreements. · 16.02 The Purchaser acknowledges that the Development Agreements may have been registered against title to the Property and further acknowledges that the development of the Property is subject to the Development Agreements. · 16.03 -The Purchaser acknowledges and agrees that the Vendor has made payments and incuned expenses which are subject to recove1y by the Vendor through the issuance of Development Charge Credits pursuant to the tenns and conditions of the Phase 1 Rl<'EA. The Purchaser agrees that at Closing, and as a condition of Closing, that it shall reimburse the Vendor for all costs that the Vendor has incurred which would -be recoverable by the V ~ndor in the fonn of Development Charge Credits to be issued pursuant to the Phase 1 RFEA in respect of the Lands. The Purchaser acknowledges and agrees that the Seaton Trustee shall determine the amount Development Charge Credits entitlement earned and attributable to the Lands based on the Developable Area Share of the Lands in the Seaton Community, whether or not the Lands are within the Phase 1 Lands, and shall take into account indexing as provided for in the Phase 1 R,FEA. The payment from the Purchaser to the Vendor pursuant to this section shall be referred to herein as the "DC Credit Recovery Payment''. 16.04 The Purchaser acknowledges that the Pickering FIA creates obligations with regard to the funding of certain infrastructure in Seaton under the jurisdiction of the City. The Purchaser covenants and agrees that it will abide by the terms and conditions of the Pickering FIA, and will execute any Assignment and Assumptkm Agreement as reasonably required by the Vendor or the City. Furthermore, the Purchaser acknowledges that the infrastructure projects to be funded pursuant to the Pickering FIA are Cost Shared Services under the Seaton CSA, and the costs of which are to · be cost shared pursuant to the terms of the Seaton CSA.
-24--16.05 The Purchaser acknowledges 1hat the Lands include Phase 1 RFEA Lands and, therefore, prior to the issuance of a building permit with respect to the development of such lands1 unless otherwise provided for in a front ending agreement relating to Subsequent Phase development, the Purchaser will have to pay, in addition to any Attribution Development Charges payable with respect to the development of the Lands, the Attribution Prepayment applicable to the Property. The Phase 1 RFEA provides that Development Charge Credits earned by virtue of the payment of the Attribution Prepayment are not able to be utilized to satisfy the Attributions Development Charges payable upon the issuance of building permits for lands that are Phase 1 RFEA Lands, and further such Development Charge Credits will be administered by the Seaton Trustee. 16.06 The Purchaser acknowledges that on Closing the Purchaser will be a Provincial Successor (as such term is defined in the Seaton CSA). Furthermore, by Virtue of being a Provincial Successor the Purchaser acknowledges and agrees that at Closing it will have to make a payment to the Seaton Trustee in an amount to be determined by the Seaton Trustee pursuant to the terms of the Seaton CSA, which will bring the Purchaser into a position in which the Purchaser will have funded the costs of Regional Infrastructure pursuant to the Phase 1 RFEA on the satl}.e basis as the other Private Landowners within the Seaton Community, this payment to be referred to herein as the "Private Landowner Equivalency Payment". 16.07 The Purchaser acknowledges and agrees that at Closing, it will make a payment to the Vendor in an amo1mt equal to the portion of the costs incurred by the Vendor for Cost Shared Services applicable to the Lands up to the Closing Date as confirmed by the Seaton Trustee, unless otherwise provided for herein, whether on a Developable Area Share or Drainage Area share. or otherwise as applicable (referred to herein as "Servicing Costs"). 16.08 The Purchaser acknowledges that the Lands include Commu11ity Use Lands and that such Community Use Lands are to be transferred to an Authority or the Seaton Trustee pursuant to the terms of the Seaton CSA. The Purchaser acknowledges and agrees that it will abide by the terms of the Seaton CSA with regard to such Community Use Lands which requires that they be conveyed to an Authority or the Seaton Trustee, and further that the Assignment and Assumption Agreement with regard to the Seaton CSA will specifically provide for such transfer of the Commm1ity Use Lands. 16.09 The Seaton-Durham CSA provides for the recovery of c_eitain costs of the construction of Regional Infrastructure that relate to the over-sizing of such services for which Development · Charge Credits are not available. The Purchaser acknowledges that the Vendor has not made and is not making any representations or warranties that any such consh·uction costs will be recovered from the Durham Owners.
-25 -SECTION 17 PREPARATION OF TRANSFER/DEED DOCUMENTS AND FEES/COSTS 17.01 The Transfer/Deed of the Lands will be prepared by the Vendor, except for the Affidavit of Residence and Value of the Consideration ("L~nd Ti:ansfer Tax Affidavit"), which wil,l be prepared by the Purchaser. 17 .02 The Purchaser shall pay its own legal costs and registration costs. The Purchaser shall be r~sponsible for the payment of any applicable Land Transfer Tax and registration fees and any other taxes and fees which may be payable in connection with the registt'ation of the transfer/deed of the Property, SECTION18 TENDER 18.01 Any tender of money or documents pursuant to this Agreement may be made on the Vendor or the Purchaser. or their respective solicitors. Money must be tendered in Canadian funds by elee.tronic wire, bank draft or negotiable cheque certified by a Canadian cha1tere.d bank, trust company, or credit union. The Vendor and the :futchaser acknowledge and agree that insofar as the tender of any documents to be electronically registered is· concemed, the tender of same will be deemed to be effective and proper when the solicitor for the party tendering has completed all steps required by Teraview 'in order to complete this Transaction that can be performed or undertaken by the tendering party's solicitor without the cooperation or participation of the other party's solicitor, and specifically when the tendering party's solicitor has electronically "signed" the Transfer/Deed of Land and any other closing document, if any, to be electronically registered for completeness and granted access to the other patty's solicitors to same, but without the necessity for the tendering party's solicitor actually releasing such documents to the other pa1ty's solicitor for registration. SECTION19 ADJUSTMENTS 19.01 Adjustments between the Vendor and the Purchaser shall he made·on the Closing bate for taxes, local improv_ement rates, utility costs, rents, legal costs and other matters or items which are ordinarily the subject of adjustment for the purchase and sale of a property similar to the Property in the Province of Ontario. Such Adjustments shall be made on the basis that, except as may be otherwise expressly provided for in this Agreement: (a) the Vendor shall be responsible for all expenses and liabilities and entitled to all income from the Property up to the Closing Date; and · (b) the Purchaser shall be responsible for all expenses and liabilities and entitled to all income from the Property from and including the Closing Date. 19.02 Adjustments that cannot be determined on the Closing Date shall be determined by the parties as soon after the Closing Date as is reasonably possible. At).y a_mounts payable by one party to the other, as detennined by the parties, acting reasonably, shall be paid within thirty (30) days of the
-26 -request for such payment. On the Closing Date, the Vendor and the Purchaser shall exchange undertakings to re-adjust the foregoing items, if n·ecessary. 19.03 All Adjustments to be made under Section 19.01 shall be completed on or before the date which is no later than six (6) months from the Closing Date and· no re-adjustment may be made by either party thereafter. SECTION20 ELECTRONIC REGISTRATION 20.01 Where the Property is in an area where electronic registration is mandatory and the Transaction will be completed by electronic registration pursuant to Part III of the Land Registration Reform Act, RS.O. 1990, c. L.4, and the Electronic Registration Act, S.O. 1991, c.44, and any amendments thereto, the Vendor and Purchaser acknowledge and agree that the exchange of closing funds, non-registrable documents and other closing deliverables provided for herein and the release thereof to the Vendor and Purchaser will: (a) not occur at the same time as the registration of the transfer/deed (and any other documents intended to be registered in connection with the completion of this Transaction); and (b) be subject to conditions whereby the lawyer(s) receiving any of the closing deliverables will be required to hold same in escrow and not release same except in accordance with the terms of a document registration agreement between the said lawyers, the form of which is as recommended from time to time by the Law Society of Upper Canada (the "Document Regi&tration Agreement"). SECTION21 CLOSING DELIVERABLES 21.01 Subject to the provisions ofthis Agreement, the Vendor covenants that it shall execute or cause to be executed and shall deliver or cause to be delivered to the Purchaser or the Purchaser's solicitors on or before the Closing Date, each of the following: (a) possession of the Property in an As Is Where Is condition, subject to the Lease, ·and subject to the rights of others as set out in the Permitted Encumbrances; (b) an assignment of the Lease, whether complete or partial, the Development Agreements and Penriitted Encu111brances, as applicable; ( c) notice to the tenant pursuant to the Lease informing it of the sale of the Lands and directing it to make future rent payments to the Purchase_r; ( d) an executed Transfer/Deed of Land in registrable form duly executed by the Vendor in favour of the Purch.aser (save for any Land Transfer Tax Affidavit);
-27 -(e) an undertaking to re-acljust the statement of Adjustments, if necessary, upon written demand; (f) a direction regarding the payment of funds; (g) statement of Adjustments; (h) an authorization and direction together with a registrable discharge of the notice of participation agreement dated March 26, 2018 (the "Existing Participation Agreement") notice of which was registered on title to the Prior Purchased Lands as Instrument No. DR1696619 on April 19, 2018; (i) Document Registration Agreement as set out in Schedule E; and (j) such other deeds, conveyances and other documents as the Purchaser or its solicitors may reasonably require in ord~r to implement the inte.r:i-t of this Agreement. 21.02 Subject to the provisions of this Agreement, the Purchaser covenants that it shall execute or cause to be executed and shall deliver or cause to be delivered to the Vendor or the Vendor's Solicitors on or before the Closing Date: (a) (b) (c) (d) (e) (f) (g) (h) confirmation of wire transfer for the balance of the Purchase Price and Adjustments due on the Closing Date; confirmation of wire transfer for any Development Agreement Payment payable to the Vendor, including the DC Credit Recovery Payment, the Private Landowner Equivalency Payment, and Servicing Costs; a certified cheque, bank draft or confirmation of wire transfer f9r any Development Agreement Payment payable to the applicable trustee under a Development Agreement; confirmation of delivery of Development Agreement Security to any applicable authority or trustee under a Development Agreement, if applicable an undertaking to re-adjust the statement of Adjustments, if necessary, upon written demand; HST Declaration and Indemnity, as contemplated in Section 4, if applicable; an updated Statutory Declara,tion in the form set out in Schedule D is required in the event thii.t there have been any changes to the information contained in the Statutory Declaration provided to the Vendor prior to the Execution Date pursuant to Section 11.01; an updated Statutory Declaration in the form set out in Schedule D is required in the event that there have been any changes to the information contained in the Statutory
-28 -Declaration provided to the Vendor prior to the date of execution of this Agreement pursuant to Section 11.01; (i) Document R~gistration Agreement in the form attached as Schedule E; . (i) an Assignment and Assumption Agreement for the Lease; (k) an Assignment and Assumption Agreement for each of the Development Agreements, in substantially the same forms as were delivered as part of the closing of the Prior Purchased Lands; (1) a Participation Agreement in form attached hereto as schedule G; (111) an Assumption Agreement for the Permitted Encumbrances, as applicable; (n) the Purchaser's Closing Agreement in the form attached hereto as schedule F; ( o) a certificate of the Purchaser certifying that the Purchaser's planned sale of the Prior Purchased Lands does not result in any "Profit'' to the Purchaser, as such term is defined in the Existing Participation Agreement; (p) such other deeds, conveyances, resolutions and other documents as the Vendor or its solicitors may reasonably require in order to implement the intent oftl).is Agreement. SECTION22 NOTICE 22.01 Any notice under this Agreement is sufficiently given if delivered personally or if sent by ordinary prepaid mail or prepaid courier or electronic facsimile machine (including e-mail) addressed to the Purchaser at: The Corporation of the City pf Pickering One The Esplanade Pickering Ontario, LlV 6K7 Attention: Paul Bigioni, Director, Corporate Services and City Solicitor Telephone: (905) 420-4660 ext. 2048 Email: R.hlwni@~fil:;11ll.&..Qfl and to the Purchaser's Solicitors at: Torys LLP 79 Wellington Street West
Suite 3000 Box 270, TD Centre Toronto Ontario, MSK 1N2 -29 -Attention: Dan Ford/ Andy Gibbons . Telephone: (416) 865-7372 / (416) 865-8226 Email: dfbnj@1:orys,com / agibbons@tmys;com and to the Vendor at: c/o Ontario Infrastructure and Lands Corporation Sales and Acquisitions 1 Dundas Street West Suite 2000 Toronto, QN MSG 2L6 Attention: Vice President, Sales and Acquisitions Facsimile: 416-327-3942 And: Attention: Director, Legal Services (Real Estate and Leasing) 777 Bay Street, Suite 900 Toronto, ON MSG 2C8 Facsimile: 416-326-2854 or at such other addresses as the Vendor and the Purchaser may designate from time to time. Any such notice shall be conclusively deemed to have been giv_en and received upon the same day if personally delivered or sent by facsimile or email, or, if ma,iled, three (3) Business Days after the same is mailed. Any party may, at any time by notice given in writing to the other party, change the address for service of notice on it. SECTION23 CONFIDENTIALITY 23.01 The Vendor and Purchaser agree to take all necessary precautions to maintain the confidentiality of the terms and conditions contained herein. The parties aclmowledge that this Agreement and any info:t'mation or documents that are provid~d hereunder may be released pursuant to the applicable provisions of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as amended and the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, as amended and Open Data may be released pursuant to the Open Data
-30 -Directive. This acknowledgment shall not be construed as a waiver'°of any right to object to the release of this Agreement or of any information or documents. 23.02 The Purchaser agrees to ensure that the Purchaser, its officers, employees, agents and sub-contractors shall, subject to Section 23.01, maintai11 the confidentiality and security of all materials and information which is the property of the Vendor and in the possession or under the control of the Purchaser pursuant to this Agreement. The Purchaser agt'ees to ensure that the · Purchaser, its officets, employees, agents and sub-contractors shall 1iot directly or indirectly disclose or use, either during or following the term of this Agreement, except where required by law, any material or information belonging to the Vendor pursuant to this Agreement, without first obtaining the prior written consent of the Vendor for such disclosure or use and in _the event of termination of this Agreement, the Purchaser will be responsible for returning all such. documentation and information to the Vendor without making copies. SECTION24 GENERAL 24.01 Time shall in all respects be of the essence of this Agreement, provided that the time for doing or completing any matter provided for in this Agreement may be extended or abridged by an agreement in writing, signed by the Vendor and the Purchaser or by an agreement between their respective solicitors who are hereby expressly authorized in this regard. If anything in this Agreement is to be done on a day which is not a Business Day, the same shall be done on the next succeeding Business Day. 24.02 This Agreement shall be binding upon, and enure to the benefit of, the Vendor and the Purchaser and their respective successors and permitted assigns. Th\:l Vendor and the Purchaser acknowledge and agree that the representations, covenants, agreements, rights and obligations of the Vendor and the Purchaser under this Agreement shall not merge on the completion of this Transaction, but shall survive completion and remain in full force and effect and be binding upon the parties, save and except as may be otherwise expressly prov:ided for in this Agreement. 24.03 Whenever the singular is used in this Agreement, it shall mean and include the plural and whenever the rpasculine gender is used in this Agreement it shall mean and include the feminine gender if the context so requires. · 24.04 This Agreement constitut~s the ef\tire agreement between the parties and there is no representation, wan-anty, collateral agreement or condition affecting this Agreement or the Properly, except as specifically set forth in this Agreement. This Agreement may not be modified or amended except by an instrument in writing signed by the parties hereto. 24.05 · This Agreement and the rights and obligations of the Vendor and the Purchaser shall be determined in accordance with the laws of the Province of Ontario.
-31 • 24.06 Wherever this Agreement makes reference to a requirement for the consent or approval of the Vendor, such consent must be prior written consent 'and may be arbitrarily and unreasonably withheld in the sole and absolute discretion of the Vendor. 24.07 No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision (whether or not similar) nor shall any waiver constitute a continuing waiver unless otherwise expressed or provided. , 24.08 If any provision of this Agreement or part thereof or the application thereof to any person or circumstance, to any extent, shall be determined to be-invalid or unenforceable, the remainder of this Agreement or the application of such provisions or part thereof to any person, party or circumstance other than those to which it is held invalid or unenforceable shall not be affected thereby. Each covenant, obligation and agreement in this Agreement shall be separately valid and enforceable to the fullest extent permitted by law. 24.09 Each of the parties hereto shall from time to time hereafter and upon any reasonable request of the other and in such form as may be satisfactory to both patties hereunder, execute and deliver, make or cause to be made all such fuf!:h~r acts, deeds, assurances and things as may be required or necessary to more effectually implement and carry out the true intent and meaning of this Agreement. SECTION25 IRREVOCABLE PERiOD 25.01 Signature of this Agreement by the Purchaser and the submission thereof to the Vendor constitutes an offer under seal, which is irrevocable for twenty-five (25) days from the date it is submitted to the Vendor and open for acceptance by the Vendor during said twenty-five (25) day period. This offer, once accepted on the Execution Date, constitutes a binding contract of purchase and sale. This offer may be made and accepted by electronic transmission, including electrnnic signature provided that the original hard copy, with original signatures is received by both parties within five (5) days of the electronic acceptance. The Purchaser, in submitting this offer, aclmowledges that there has been no promise or representation or assurance given to the Purchaser that any of the terms and conditions in this offer are or will be acceptable to the Vendor. [ no further text on this page]
"32" IN WITNESS WHEREOF the patties hereto have executed this Agreement as evidenced by their properly authorized officers in that behalf as of the day and year first above written. 01/Fllllllll BY the Purchase,· this / t_t'aay of //;1{!"'f , 2018. . · /rHE CORlJORATION OF THE CITY OF PICKERING . ~ A~ ACCEPTED BY the Vendor this ~1 day of f V l'o' By: By: --~~Z&~~~;d'.__ __ _ Name: Tony Prevedel Title: Chief Administrative Officer Name: Title: I/We have authority to bind the Corporation , 2018. HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by THE MINISTER OF INFRASTRUCTURE as represented by ONTARIO INFRASTRUCTURE AND L:SC!?(~ N~ Title: Vice President By: ~m,.,,,&Acq""""'"' N~me: N0 Mr;;,;z-;;:;P~--Tttle: }), ce$v,, '.{~ ~ Authorizing Signing Officer
. SCHEDULE A-1 DESCRIPTION OF LANDS Part of Lot 23, Concession 5 Pickering (to be completed upon completion of the Reference Plan, and in accordance with the mapping at Schedule A-2) 38997-200125351416,7
-CU,./-PICKERJNG cay Dovelopmool Department SCHEDULE A~2 LANDS Part 1, Pinn 40R-29998 Lands (Area= 22 Acres)
SCHEDULEB PERMITTED ENCUMBRANCES (a) General Encumbrances: (i) the Lease and any notices of such lease registered on title to the Lands, including all easements, rights of way, restrictions, restrictive covenants, servitudes and other similar rights in land contained in the Lease, which exist as of th.e Closing Date and any leasehold mortgages or security interests relating to tenants or the tenants' interest in resp·ectthereof and which do not encumber the interest of the landlord thereunder; (ii) liens for real property taxes (which term includes charges, rates and assessments) or charges for electricity, power, gas, water and other services and utilities in coimection with the Property or for construction in connection with the Property for amounts the payment of which is not yet due or delinquent; (iii) any easements, rights of way, restrictions, building schemes, licences, restrictive covenants and servitudes, rights of access or use, airport zoning regulations and other simHar rights in land (including, without limitation, rights of way and servitudes for sewers, drains, gas and water mains, electrical power, telephone and cable conduits, poles, wires or cables) granted to, reserved or taken by any person which do not, in the aggregate, materially and adversely impair the use or marketability ef any of the Property for the purposes for which it is presently held, and any rights reserved or vested in any Authority or public or private utility by the terms of any lease, licence, franchise, grant, agreement or permit, subdivision, development, servicing, encroachment, site plan, parking or other similar agreement with any Authority or public or private utility; (iv) title defects or irregularities which do not, in the aggregate, materially and adversely impair the use of the Property for the purpose for whic~ it'is presently held; (v) any cost sharing, common Hse, reciprocal or other sitnilar agreements relating to the use and/or operation of the Property and/or adjoining properties provided the same are complied with in all material respects and all security given by the parties thereto to each other to secure their respective obligations thereunder; (vi) any subsisting reservations, limitations, provisos; conditions or exceptions, including royalties, contained in the original grant· of th(? Property from the Crown; (vii) any rights of expropriation, access or use, or any other right conferred or reserved by or in any statute of Canada or the Province of Ontario;
(viii) the provisions of all applicable laws including by~laws, regulations, ordinances, land use contracts, development agreements and similar instrµments relating (without limitation) to development, use and zoning; (ix) encroachments by any improvements on the Property over adjoining lands and easements or rights of way and/or any improvements on adjoining lands encroaching on the Property which do not materially and adversely affect the present use of the Property; (x) all registered and unregistered agreements, easements, rights, covenants and/or restrictions in favour of municipalities, publicly or privately regulated utilities or adjoining owners, or that otherwise run with the Lands; and (xi) any encroachments that are shown on existing surveys or as may be revealed by an up-to-date survey. (b) Specific Encumbrances: All instruments registered on title to the Property as of the Closing Date, including but not limited to: 1. Notice of the Phase 1 RFEA; 2. Notice of the Pickering FIA;. 3. Notice of the Seaton CSA; 4. Notice of the Seaton-Durham CSA.
SCHEDULEC PROPERTY DOCUMENTS [Note: Vendor to provide within five (5) days of Execution Date in accordance with Section 5.05.]
Canada SCHEDULED STATUTORY DECLARATION IN THE MATTER OF THE TITLE TO<> Province of Ontario ) ) ) ) ) ) ) ) ) ) ) ) ) ) AND IN THE MATTER OF A SALE THEREOF from HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BYTHE MINISTER OF INFRASTRUCTURE (the "Vendor") to THE CORPORATION OF THE CITY OF PICKERING (the "Purchaser") TO WIT:' I, --------~ of the ________ .,· in the Province of Ontario, DO SOLEMNLY DECLARE, that: L I am the _________ {title} of the Purchaser and as such have knowledge of the matters hereinafter declared. 2. The Purchaser and .Ontario Infrastrncture and Lands Corporation· ("OILC") are arm's length parties and the Purchaser has received no special knowledge nor sp_ecial consideration in entering into the above Agreement of Purchase and Sale, which would lead to the presumption that the parties are not arm's length patties. 3. The Purchaser and the Vendor are arm's length parties and the Purchaser has received no special lmowledge nor special consideration in entering into the above Agreem1:;nt of Purchase and Sale, which would lead to the presumption that the pi:irties are not arm's length parties. · 4. Except as expressly set out in Schedule A to this Declaration: (a) to the best of the lmowledge and belief of the undersigned, there are no outstanding legal disputes or actions between the Vendor and Purchaser; (b) the Pm-chaser is not in conflict with OILC with respect to the _above transaction; and ( c) the Purchaser is not in conflict with the Vendor with respect to the above transaction.
AND I make this solemn Declaration conscientiously believing it to be true, and knowing that it is of the same for~e and effect as if made under oath and by vhtue of the Canada Evidence Act. DECLARED by the above-named Declarant, before me at the of -----------'' this day of , 201 . A Commissioner, etc. ) ) ) ) ----------) ) )
SCHEDULEE DOCUMENT REGISTRATION AGREEMENT DOCUMENT REGISTRATION AGREEMENT BETWEEN: <>. (hereinafter referred to as the "Vendor's Solicitor") AND: <> (her~inafteneferred to as the "Purchaser's Solicitor") RE: Her Majesty the Queen in right of Ontario as represented by the Minister ofinfrastructure (the "Vendor") sale to<> (the"Purchaser") of the property legally described as<>, City of<>, being the whole of PIN <:>(LT) (the "Property" pursuant to an Agreement of Purchase and Sale between the Purchaser, as purchaser, and the Vendor, as vendor, dated<> and accepted<> (the "Purchase Agreement"), Scheduled · to be completed on<> (the "Closing Date") Holding Deliveries In Escrow Advising of Concerns with Deliveries FOR GOOD AND VALUABLE CONSIDERATION (the receipt and sufficiency of which is hereby expressly acknowledged), the parties hereto hereby unde1take and agree as follows: l. The Vendor's Solicitor and the Purchaser's Solicitor shall hold all funds, keys and closing documentation exchanged between them (the "Requisite Deliveries") in escrow, and shall not release or otherwise deal wit11 same except in accordance with the terms of this Agreement. Both the Vendor's Solicitor and the Purchaser's Solicitor have been authorized by their respective clients fo enter into this Agreement. Once the Requisite Deliveries can be released in accordance with the . terms of this Agreement, any monies representing payout funds for mortgages to be discharged shall be forwarded promptly to the appropriate m01tgage lender.1 2. Each of the parties hereto shall notify the other as soon as rea~onably possible following their respective receipt of the Requisite Deliveries (as applicable) of any defect(s) with respect to same. 1Solicitors should continue to refer to the Law Society of Upper Canada practice guidelines relating to recommended procedures to follow for the discharge of mortgages.
Selecting Solicitor Responsible for Registration Responsibility of · Non-Registering Sollcltor Responsibility of Registering Sollcltor Release of Requisite Deliveries by Non-Registering Solicitor Returning Deliveries where Non-registration 3. The Purchaser's Solicitor shall be responsible for the registration of the Electronic Documents (as hereinafter defined) unless the box set out below indicating that the Vendor's Solicitor will be responsible for such registration has been checked: For the purposes of this Agreement, the solicitor responsible for such registration shall be referred to as the "Registering Soiicitor" and the other solicitor shall be referred to as the "Non-Registering 'Solicitor": Vendor's Solicitor will be r.egisiering the Electronic Documents •. 4. The Non-Registering Solicitor shall, upon his/her receipt and approval of the Requisite Deliveries (as applicable), electronically release for registration the Electronic Documents and shall thereafter be entitled to release the Requisite Deliveries from escrow forthwith following the earlier of: a) the registration of the Electronic Documents; b) the closing time specified in the Purchase Agreement unless a specific time has been inserted as follows~ ___ a.m./p.m. on the Closing Date] (the "Release Deadline"), and provided that notice under paragraph 7 below has not been received; or c) receipt ofnotification from the Registering Solicitor of the registration of the Electronic Documents. If the Purchase Agreement does not specify a closing time and a Release Deadline has not been specifically inserted the Release Deadline shall be 6.00 p.m. on the Closing Date, 5. The Registering Solicitor shall, subject to paragraph 7 below, on the Closing Date, following his/herreceipt and approval of the Requisite Deliveries (as applicable), register the documents listed in Schedule A annexed hereto (referred to in this agreement as the "Electronic Documents") in the stated order of priority therein s_et out, as soon as reasonably possible once same have been released for registration by the Non-Registering Solicitor, and immediately thereafter notify the Non-Registering Solicitor of the registration particulars thereof by telephone or telefax ( or other method as agreed between the parties). 6 Upon registra:tioffofthe Electronic Documents and notification of the Non-Registering solicitor in accordance with paragraph 5 above, the Non-Registering Solicitor shall be enti~led to forthwith release the Requisite Deliveries from escrow. 7. Any of the parties h~reto may notify the other party that he/she does not wish to proceed with the registration2 of the Electronic Documents, and provided that such notice is received by the other party before the release of the Requisite Deliveries pursuant to this Agreement and before the registration of the Electronic Documents, then each of the parties hereto shall fotthwith return to the other party their respective Requisite Deliveries. 2 For the purpose of this Agreement, the term "registration" shall mean the issuance ofregistration number(s) in respect of the Electronic Documents by the appropriate Land Registry Office.
Counterparts & Gender Purchase Agreement Prevails If Conflict or Inconsistency Telefaxing Deliveries & Providing Originals if Requested 8. This agreement may be signed in counterparts, and shall be read with all changes of gentler and/or number as may be required by the context. 9. Nothing contained in 1his agreement shal_l be read or construed as altering the respective rights and obligations of the Purchaser and the Vendor as more particularly set out in the Purchase /\greement, and in the event of any conflict or inconsistency between the provisions of this agreement and the Purchase Agreement, then the latter shall prevail. 10, T,his agreement (or any counterpart hereof), and any of the closing documents hereinbefore contemplated, may be exchanged by telefax or similar system reproducing the original, provided that all such documents have been properly executed by the appropriate parties. The party transmitting any such d6cument(s) shall also provide the original executed version(s) of same to the recipient within 2 business days after the Closing Date, unless the recipient has indicated that he/she does not require such original copies. Dated this __ day of<>, 201. Name/Firm Name ofVendor's Solicitor Dated this __ day of <>, 201 Name/Firm Name of Purchaser's Solicitor <> <> (Signature) (Signature) Note: This vei·sion of the Document Registration Agreement was adopted by the Joint LSUC-CBAO Committee on Elec:tronic Registration of Title Documents on March 29, 2004 and posted to the web site on April 8, 2004. Schedule "A" 1. Transfer from <> to <>,
TO: AND TO: RE: SCHEDULEF CLOSING AGREEMENT Her Majesty the Queen in right of Ontario as represented by the Minister Infrastructure (the "Vendor") · Ontario Infrastructure and Land Corporation (the "Vendor's Agent") The Corporation of the City• of Pickering (the "Purchaser") purchase from the Vendor of the property legally described as Part of Lots 23 and 24, Concession 5, Geographic Township of Pickering, designated as Patt XXX on Plan 40R-XXX, City of Pickering, Regional Municipality of Durham (the "Property") pursuant to an Agreement of Purchase and Sale between the Purchaser and the Vendor dated XXX, as atnended from time to time (the "Purchase Agreement'') In consideration of and notwithstanding the Closing of the Transaction and other good and valuable consideration (the receipt and sufficien9y of which is hereby acknowledged): 1. The Purchaser agrees to accept, assume and take title the Property and any improvements thereon in an "As Is Where Is" condition in accordance with Section 5.01 of the Purchase Agreement. 2. The Purchaser confirms that all provisions of the Purchase Agreement that' by their express terms are to $urvive and not merge on Closing shall survive and not merge on Closing. 3. The Purchaser confirms that all representations and warranties made by the purchaser in the Purchase Agreement remain true and correct as if repeated here. 4. The Purchaser reaffirms all indemnities made by it in the Purchase Agreement. 5. The Purq_haser reaffirms. the release and covenant not to sue provided for in Section 5.08 and 5.10 of the Purchase Agreement. · · 6. This Agreement shall not merge on Closing but shall survive Closing. . . 7. Unless otherwise defined herein, all capitalized terms used herein have the meaning ascribed to them ih
the Purchase Agreement. 8. The Vendor and Vendor's Agent may rely on a signed electronically transmitted .copy of this Agreement which shall constitute and be treated for all purposes as signed original of this Agreement. 9. This Agreement shall be binding upon the successors and permitted assigns of the Purchaser and shall enure to the benefit of the Vendor and its successors and assigns. DATEp as of the XX day of:XXX, 2018. THE CORPORATION OF THE CITY OF PICKERING Per: ----------------Name: Title: Per: ----------------Name: Title: I have authority to bind the Corporation.
BETWEEN: SCHEDULEG PARTICIPATION AGREEMENT HER MAJESTY THE QUEEN IN RIGHT OF ONTARlO AS REPRESENTED BY THE MINISTER OF INFRASTRUCTURE -and-THE CORPORATION OF THE CITY OF PICKERING RECITALS: A. · Her Majesty the Queen in Right of Ontario, as represented by the Minister of Infr_astructure (the "Owner") is the owner in fee simple of the land described at in Schedule "A"O to this Agreement (the "Property"). B. The Owner and Ontario Infrastructure and Lands Corporation ("OILC") . confirm that OILC is the designated agent of the Owner and has the authority to exercise all rights of the Minister of Infrastructure pursuant to sections 7 and 9 of the Ministr.y of Infrastructure Act, S.Q. 2011, c. 9, Sched 27, and the express written delegation from the Owner, dated June 6, 2011, and that both the Owner and OILC are and shall be bound by all the Vendor's coyenants, representations and w&rranties as provided herein. · C. The Corporation of the City of Pickering (the "City") is the proposed transferee of the Property.-NOW THEREFORE in consideration of the _mutual covenants hereinafter set fc)lth, the transfer of the Property from OILC to the City and other goa.d and valuable consideration, the parties hereto agree as follows:
Definitions: "Base Amount" means. [NTD -insert Purchase Price to be paid by the City]. "Profit" means the amount by which the Sale Price exceeds the Base Amount. "Sale Price" means the value, in lawful money of Canada, of all consideration and benefit paid or agreed to be paid for the Prop~rty by a bona.fide purchaser dealing at arm's length with the City, including the value of any encumbrances or mortgages assumed by tl1e purchaser or taken back as part of the consideration for such sale transaction, less the aggregate of the following: (a) the cumulative total of any and all capital improvements to the Properly ( as determined in accordance with generally accepted accounting principles) made to the Property from and after the Date of Closing; (b) any real estate commission payable by the City in disposing of the Property to such a bona fide purchaser in an amount not to exceed the then current industry practice; and ( c) reasonable transaction expenses, including, but not limited to, all marketing expenses, all taxes paid by. the City with respect to the Property which have not been recovered in full by the City prior to the subsequent sale (including, but not limited to, land transfer tax paid by the City), legal and accounting fees payable by the City in disposing of the Property. "Term" means the period'·commencing on the Closing Date and expiring on the earlier of (i) the date Which is five (5) years following the Closing Date; and (ii) tpe date on which title to the Property is transfened to a bona fide purchaser dealing at arm's length with the City. (1) It is the express intention of OILC and the City that that there shall be no speculation with respect to all or any portion of the Property during the Term. In the event of a bona fide arm's length sale of all or any p01iion of the Prope1ty by the City at any time during the
Term then 100% of any Profit (as defined below) shall be paid to OILC and the amount of such Profit shall be a charge on the Property in favour of OILC until paid: Should the City enter into an agreement to sell the Property during the Term it shall give OILC written notice of same as soon as reasonably possible after such agreement is entered into. (2) W~thin 30 days following the Closing Date, the City will register in the appropriate land registry office, a Notice of this Participation Agreement on title to the Lands. (3) Any notice under this Agreemen~ is sufficiently given if delivered personally or if sent by · ordinary mail or prepaid courier or electronic facsimile machine to the addresses as follows: Address of the City: The Corporation of the City of Pickering One The Esplanade . Pickyring Ontario, LlV 6K7 Attention: Paul Bigioni, Director, Corporate Services and City Solicitor Telephone: (905) 420-4660 ext. 2048 Email: pbigioni@pickering.ca and to the Purchaser's Solicitors at: Torys LLP 79 Wellington Street West Suite 3000 Box 270, TD Centre Toronto Ontario, M5K 1N2 Attention: Dan Ford/ Andy Gibbons Telephone: (416) 865-7372 / (416) 865-8226 Email: dford@torys.com / agibbons@torys.com and to OILC at:
c/o Ontario Infrastructure and Lands Corporation s·a1es. & Acquisitions 1 Dundas Street West, Suite 2000 Toronto,. Ontario MSG 1 LS Attention: Vice President, Sales and Acquisitions Facsimile: (416) 327-3942 and to OILC'.s Legal Counsel at: Attention: General Counsel and Corporate Secretary Facsimile: (416) 327-2760 or at such other addresses as OILC or the City may designate from time to time. Any such notice shall be conclusively deemed to have been given and received upon the same day if personally delivered or sent by facsimile or, if mailed, three (3) Business· Days after the same is mailed. Any party may, at any time by notice given in writing to the other party, change the address for service of notice on it. (4) The City aclmowledges that the provisions of this Agreement run with title to the Property, and the City covenants not to sell, transfer or otherwise alienate the Prope1ty or any part thereof to any affiliated entity unless such transferee agrees to be bound by the terms of this Agreement. (5) OILC agrees that if the City sells the Property to a bona fide purchaser.for value during the Term (a "Sale"); then OILC will discharge the notice of this Agreement from title to the Property within seven (7) days of either (i) receipt by OILC of any Profit pursuant to Section (1) hereof; or (ii) the date of Sale in the event that no Profit is owing to OILC. (6) This Agreement may be executed and delivered in counterparts and any such counterpart may be delivered in its original fo1m or by facsimile or other electronic transmission and each of which when so executed and delivered shall be deemed to be an original and such co1mterparts together shall constitute one and the same Agreement. ' (7) This Agreement shall be construed and enforced in accordance with the laws of the Province of Ontario and the laws of Canada applicable thereto and shall be treated in all respects as an Ontario contract. (8) This Agreement shall be binding upon, and endure to the benefit of, OILC and the City and their respective successors and permitted assigns.
DATED this day of DATED this day of , 2018. THE CORPORATION OF THE CITY OF PICKERING Per: ---,----------------Name: Title: Per: -----------------Name: Title: JJW e have the ·authority to bind the Corporation , 2018. ONTARIO INFRASTRUCTURE AND LANDS CORPORATION acting as agent on behalf of HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF INFRASTRUCTURE Per: -----------------Name: Title: Per: -----------------Name_: Title: I/We have the authority to bind the Corporation
Schedule "A" ·
ATTACHMENT# d TO REPORT# CAD O 9 -l t / .of. -=J-o · Execution Version THE CORPORATION OF THE CITY OF PICKERING as "Vendor" and KUBOTA CANADA LTD. as "Purchaser" AGREEMENTOFPURCHASEANDSALE 38997-2001 25099613.5
TABLE OF CONTENTS SECTION 1 DEFINITIONS ......................................................................................................... 2 SECTION 2 AGREEMENT OF PURCHASE AND SALE ............................................................ 7 SECTION 3 DEPOSIT /PAYMENT OF PURCHASE PRICE ...................................................... 8 SECTION 4 HARMONIZED SALES TAX .................................... ~ ........................................ _ ..... 9 SECTION 5 ''AS rs WHERE IS", PURCHASER'S INSPECTION PERIOD, AND ENVIRONMENTAL INDEMNITY ............................................................................................. 9 SECTION 6 CLOSING CONDITIONS ...................................................................................... 14 SECTION 7 INTENTIONALLY DELETED ...................................... ; ....................................... 15 SECTION 8 INTENTIONALLY DELETED .......................... : ................................................... 15 SECTION 9 RISK ..................................................................................................................... 15 SECTION 10 VENDOR'S WARRANTIES, REPRESENTATIONS AND COVENANTS ............. 16 SECTION 11 PURCHAS_ER'S WARRANTIES, REPRESENTATIONS AND COVENANTS ...... 16 SECTION 12 INTENTIONALLY DELETE)) ............................................................................ 17 SECTION 13 INTENTIONALLY DELETED ............................................................................ 17 S-ECTION 14 TITLE ................................................................................................................. 17 SECTION 15 NO ASSIGNMENT ETC ...................................................................................... 18 SECTION 16 DEVELOPMENT AGREEMENTS ....................................................................... 18 SECTION 17 PREPARATION OF TRANSFER/DEED DOCUMENTS AND FEES/COSTS ....... 20 SECTION 18 TENDER ............................................................................................................. 20 SECTION 19 ADJUSTMENTS .................................................................................................. 21 SECTION 20 ELECTRONIC REGISTRATION ........................................................................ 21 SECTION 21 CLOSING DELIVERABLES ............................................................................... 22 . SECTION 22 NOTICE .............................................................................................................. 23 SECTION 23 CONFIDENTIALITY ................... ; ...................................................................... 24 SECTION 24 GENERAL ........................................................................................................... 25 SECTION 25 m:REVOCABLE PERIOD .......................................... ; ........................................ 26 38997-2001 25099613.5
BETWEEN: RECITALS: AGREEMENT OF PURCHASE AND SALE THE CORPORATION OF THE CITY OF PICKERING (hereinafter called the ''Vendor,') -and-KUBOTA CANADA LTD. (hereinafter called the "Purchaser") OF THE FIRST PART OF THE SECOND PART A. The Vendor has entered into an agreement of purchase and sale with Her Majesty The Queen in Right of Ontario, as represented by, The Minister of Infrastructure ("HMQ") for the purpose of acquiring the fee simple to the propetty defined as the "Lands" in Section 1.0l(oo) of this Agreement (the "HMQ Purchase Agreement"), in order to immediately thereafter, sell such fee simple interest in the Lands to the Purchaser. B. HMQ is the owner in fee simple of the Lands as of the date hereof. C. The Lands are subject to the Development Agreements, and the Purchaser has agreed to assume the Development Agreements as they relate to the Lands. D. The Lands are subject to the Leases, and the Purchaser has agreed to assume the Leases as they relate to the Lands on the terms and conditions as described in this Agreement. E. The Purchaser has offered to purchase the Propetty from the Vendor on the terms and conditions hereinafter set fotth . . NOW THEREFORE in consideration of the mutual covenants hereinafter set fotth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged; the parties hereto agree as follows: · 38997-2001 25099613.5
1.01 Definitions -2-. SECTION 1 DEFINITIONS Unless the context expressly or by necessary implication indicates a contrary meaning, the terms defined in this Secti_on 1.01 for all purposes of this Agreement, shall have the meanings set out below: (a) "Adjustments'.' means the adjustments to the Purchase Price provided for and determined pursuant to this Agreement. (b) "Affiliate" has the meaning set out in the Business C01porations Act, R.S.O. 1990, c. B. 16. (c) "Agreement" means collectively, this agreement of purchase and sale, all Schedules attached hereto and every properly executed instrument which by its terms amends, modifies or supplements this Agreement. • · (d) "Ancillary Parcel" means that portion of the Lands described in Schedule A-1 and cross hatched in red on the sketch plan attached hereto as Schedule A-2. ( e) "Applicable Laws" means, collectively, all statutes, laws, by-laws, regulations, ordinances and orders of any governmental Authority, including without limitation all Land Use Regulations. (f) · "As Is Where Is" has the meaning ascribed to it in Section 5.01. (g) "Assignee" has the meaning ascribed to it in Section 15.02. (h) "Assumption Agreement" means an agreement by which the Purchaser becomes a party to a Development Agreement, Lease or Permitted Encumbrance and assumes the responsibility of the Vendor with regard to the Property pursuant to such Development Agreement, Lease or Pennitted Encumbrance. (i) . "Attribution Development Charges" means the Regional Attribution Water Supply DC and the Regional Attribution Sanitary Sewerage DC (as such terms are defined in the Phase ·] RFEA) from time to time. U) ''Attribution Prepayment" means the sum of the "Regional Attribution Water Supply DC Prepayment" and the "Regional Attribution Sanitary Sewerage DC Prepayment" (as such tenns are defined in the Phase 1 RFEA) from time to time. · (k) "Authority" means any governmental or quasi-governmental authority, regulatoty authority, . government department, agency, commission, board, tribunal, body or department, or any comt, whether federal, provincial or municipal, havingjurisdiction over · the Prope1ty, or the use thereof, and includes the City and the Region. (I) "Buildings" means, individually or collectively, as the context requires, all buildings, structures and fixed improvements located on, upon or under the Lands, and all 38997-2001 25099613.5
-3 -improvements and fixtures of the Vendor contained in, upon or on such buildings and strnctures which are used in the operation of same, and "Building" means any one of the Buildings. (m) "Business Day" means any day on which the Governmerit of Ontario no1mally conducts business. (n) "City" means the City of Pickering. (o) "Closing" means the closing of the Trai1saction, including without limitation, the payment of the Purchase Price and the delivery of the closing documents in accordance with the provisions of this Agreement. (p) "Closing Date" means the 30th Business Day following the ex pity of the Inspection Period. (q) "Community Use Land" has the meaning ascribed to it in the Seaton CSA. (r) "Contaminant" has, for the purposes of this Agreement, the same meaning as that contained in the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended, and shall include the requirements of any and all guidelines and/or policies issued by the Ontario Minist1y of the Environment and Climate Change and/or the Minist1y of Labour. (s) "Cost Shared Service" has the meaning ascribed to it in the Seaton CSA. (t) "DC Credit Recovery Payment" has the meaning ascribed to it in Section 16.03. (u) "Deposit" has the meaning ascribed to it in Section 3.01. (v) "Developable Area Share" has the meaning ascribed to it in the Seaton CSA. (w) "Development Agreements" means, collectively, the Plrnse 1 RFEA, the Seaton CSA, the Pickering FIA, the Seaton-Durham CSA and the Master Parks Agreement, and "Development Agreement" means any one of such agreements: (x) "Development Agreement Payment" means any payment required to be made, or security to be provided, to an Authority, to the Vendor, or to a trustee named under a Development Agreement, by the Purchaser at Closing hereunder and whether required by an Assumption Agreement or otherwise, and includes, but is not limited to, the DC Credit Recove1y Payment, Attribution Prepayment, Development Agreement Security, Development Charge Payments, and Private Land Landowner Equivalency Payment. (y) "Development Agreement Security" means any security required to be delivered by a Private Landowner pursuant to a Development Agreement, whether by letter of credit or otherwise. (z) "Development Charge Credits" means the development charge credits earned pursuant to the Phase 1 RFEA. 38997-2001 25099613.5
-4 -(aa) "Development Charge Prepayments" means the prepayments on account of the Regional Attributions Development Charges required to be paid to the Region pursuant to the Phase 1 RFEA upon the development of Employment Lands, (bb) "Drainage Area Share" has the meaning ascribed to such term in the Seaton CSA. (cc) "Durham Owners" has the meaning ascribed to it in the Seaton-Durham CSA. ( dd) "Employment Lands" means those lands designated as "Prestige Employment Lands" in th.e 'Central Pickering Development Plan'. (ee) "Environmental Law" means, collectively, all Applicable Laws and agreements with governmental Authorities and all other applicable federal and provincial statutes, municipal and local laws, common law and deed restrictions, all by-laws, regulations, codes, licences, permits, orders, directives, guidelines, decisions rendered by any governmental Authority relating to the protection of the environment, natural resources, public health, occupational health and safety or the manufacture, processing, distribution, use, treatment, storage, disposal, packaging, transport, handling, containment, clean-up or other remediation or corrective action of any Hazardous Substance, and all authorizations issued pursuant to such Applicable Laws, agreements or statutory requirements. (ff) "Environmental Objection" has the meaning ascribed to it in Section 5.02. (gg) "Environmental Reports" means the reports relating to the environmei1tal condition of the Lands as identified in Schedule C. (hh) "Execution Date" means the date on which this Agreement has been executed and delivered by all parties hereto. (ii) "Hazardous Substance" includes, but is not limited to any hazardous or toxic chemical, waste, by-product, pollutant, contaminant, compound, product or substance, including without limitation, any Contaminant, asbestos, polychlorinated biphenyls, petroleum and its derivatives, by-products or other hydrocarbons and any other liquid, solid or gaseous material the exposure to, or manufacture, possession, presence, use, generation, storage, transportation, treatment, release, disposal, abatement, cleanup, removal, remediation or handling of, which is prohibited, controlled or regulated by any and is defined in or pursuant to any Environmental Law. Qj) "HMQ" has the meaning ascribed to it in the recitals above. (kk) "HMQ Acquisition Costs" has the meaning ascribed to it in Section 17.02. (II) "HMQ Purchase Agreement" has the meanfog ascribed to it in the recitals above. (mm) "HST" has the meaning ascribed to it in Section 4.01. (nn) "Inspection Period" means that period of time which is Sixty (60) Business Days following the Execution Date. 38997-2001 25099613.5
-5 -(oo) "Lands" means the land(s) described in Schedule A-1 and outlined in red and cross hatched in red on the sketch plan attached hereto as Schedule A-2 and is comprised of the Main -Parcel and the Ancilla1y Parcel. (pp) "Land Use Regulations" means collectively, any land use policies, regulations, by-laws, or plans of any Authority that apply to the use of the Property, including the existing Official Plans, zoning by-laws and zoning orders. (qq) "Land Transfer Tax Affidavit" has the meaning ascribed to it in Section 17.0 I. (rr) "Leases" means all leases or licences of any portion of the Lands in force at Closing. (ss) "Main Parcel" described in Schedule A-I and outlined in red on the sketch plan attached hereto as Schedule A-2. (tt) "Master Parks Agreement" means the Master Parks Agreement dated. ____ entered into by the City, and the owners of other development land in the Seaton Community for the purpose of establishing arrangements pertaining to the satisfaction of the park dedication requirements for the Seaton Community. (uu) "Municipality" means·the municipality (or municipa!i_ties) where the Property is located. (vv) "Offer Date" means the date the offer herein is submitted to the Vendor by the Purchaser. (ww) "OILC" means Ontario Infrastructure and Lands Corporation. (xx) "Open Data" means data that is required to be released to the public pursuant to the Open Data Directive. (yy) "Open Data Directive" means the Management Board of Cabinet's Open Data Directive, updated on April 29, 2016, as same may be amended from time to time. (zz) "Permitted Encumbrances" means, collectively, the encumbrances listed in Schedule B and any encumbrances created under the terms of this Agreement. (aaa) "Phase 1 RFEA" has the meaning ascribed to such term in the Seaton CSA. (bbb) "Phase 1 RFEA Lands" has the meaning ascribed to such term in the Phase 1 RFEA. (ccc) "Pickering. FIA" means the Financial Impacts Agreement dated November 26, 2015 entered into by the City, and the owners of other development land in the Seaton Corilmunity for the purpose of confirming arrangements pe1taining to the financing and construction of ce1tain infrastructure and other related matters affecting the development of lands in Seaton. (ddd) "Private Landowner" has the meaning ascribed to such term in the Seaton CSA. (eee) "Private Landowner Equivalency Payment" has the meaning ascribed to it in Section · 16.06. 38997-2001 25099613,5
- 6 -(fff) "Property" means, collectively, all of the right, title and interest of the Vendor in and to the Lands and the Buildings. (ggg) "Property Documents" means the documei1ts in the Vendor's cmTent possession and related to the Property, as set out in Schedule C, and shall include, but shall not be limited to: (A) executed copies of any assignable service contracts, operating agreements and management agreements; _ (B) copies of assignable guarantees and warranties of materials, workmanship, labour and materials relating to the Property that are stHl in effect; (C) copies of the Environmental Reports, heritage repo1ts, archaeological· repmts or any other repmt relating to the physical, geotechnical or environmental condition of the Prope1ty; (D) copies of all Leases; (E) copies of all Pennitted Encumbrances which are not registered against title to the Prope1ty; and (F) any plan of survey of the boundaries of the Prope1ty. (hhh) "Provincial Successor" has the meaning ascribed to such term in the Seaton CSA. (iii) . "Purchase Price" means the total amount determined by Section 2.02 that shall be paid by the Purchaser to the Vendor for the Property, exclusive of HST and subject to the Adjustments. Ujj) "Purchaser's Reports" has the meaning ascribed to it in Sectimi 5.06. (kkk) "Region" means the Regional Municipality of Durham. (Ill) "Regional Infrastructure" has the meaning ascribed to it in the Seaton CSA. (mmm) "Requisition Date" has the meaning ascribed to it in Section 14.01. (nnn) "Reliance Letter" has the meaning ascribed to it in Section 5.11. (ooo) "ROFR Agreement" means the ROFR Agreement attached hereto as Schedule G and to be entered into between the Vendor and the Purchaser at Closing. (ppp) "SCS" means SCS Consulting Group Ltd., being the professional land development engineering consultants acting on behalf of the trustees under the Development Agreements. (qqq) "Seaton Community" means the developable land as determined by the Central Pickering Development Plan, as may be fu1ther refined, and as detennined by the Seaton CSA. 38997-2001 25099613.5
-7 -(rrr) "Seaton CSA" means the Amended and Restated Cost Sharing Agreement dated November 26, 2015 between the Vendor and other owners of development land in the Seaton Community to provide for the sharing of the costs of development in the Seaton Community. (sss) "Seaton-:purham CSA" means an agreement dated November 26, 2015 betvveen the Vendor, the Private Landowners and the Durham Owners to provide for the recovery of c~rtain costs of construction of Regional Infrastructure to be incurred by the Vendor and the Private Landowners pursuant to the Pl~ase I RFEA from the Durham Owners. (ttt) "Seaton Trustee" means the h·ustee as provided for in the Seaton CSA, as it is from time to time. As of the Execution Date, the Seaton Trustee is No1th Pickering Community Management Inc. (uuu) "Servicing Costs" has the meaning ascribed ~o it in Section 16.07. (vvv) "Subsequent Phase" means development of land in the Seaton Community, the development of which is not covered by the Phase 1 RFEA, and for which no allocation of sewer or water capacity has currently be granted by any Authority. (v.,rww) "Transaction" means, collectively, the purchase and sale of the Prope1ty provided for in this Agreement and all other matters contemplated in this Agreement. (xxx) "Vendor Parties" has the meaning ascribed to in Section 5.08. SECTION2 AGREEMENTOFPURCHASEANDSALE 2.01 Subject to the closing of the HMQ Purchase Agreement and h·ansfer of fee simple to the Lands to the Vendor, the Vendor agrees to sell, transfer and assign to the Purchaser all of the right, title ai1d interest of the Vendor in the Prope1ty and the Purchaser agrees to purchase, acquire and assume the Propeity from the Vendor for the Purchase Price which shall be paid b'y the Purchaser to the Vendor for the Prope1ty, exclusive of HST and subject to the Adjustments on the Closing Date. 2.02 The Purchase Price shall be calculated by multiplying the area of the Lands in acres by a per acre price of(i) ONE HUNDRED THOUSAND DOLLARS ($100,000.00) per acre for the Main Parcel; and (ii) NINETY-THREE THOUSAND ONE HUNDRED AND EIGHTY-ONE DOLLARS AND· EIGHTY-TWO CENTS ($93,181.82) peracrefortheAncilla1y Parcel. The area of the Main Parcel is twenty-eight (28.0) acres, and the estimated area of the Ancillaiy Parcel is twenty-two (22.0) acres more or less, which would result in a Purchase Price of approximately FOUR MILLION EIGHT HUNDRED AND FIFTY THOUSAND DOLLARS ($4,850,000.00). Prior to Closing the area of the Ancillary Parcel shall be conclusively determined by a reference plan to be delivered by the Vendor, in consultation with the Purchaser, not less than five ( 5) days prior to the Closing Date. 38997-2001 25099613.5
-8 -SECTION 3 DEPOSIT I PAYMENT OF PURCHASE PRICE 3.01 The Purchaser will pay to Vendor's solicitor in trust, by ce1tified cheque or wire transfer: (a) Upon the submission of this offer to purchase, a sum equal to five percent (5%) of the Purchase Price, as estimated at Section 2.02 hereof, as a depositto be credited towards the Purchase Price on the Closing Date; (b) Within fo1ty-eight ( 48) hours of the Execution Date a further sum equal to five percent (5%) of the Purchase Price, as estimated at Section 2.02 hereof, as a fu1ther deposit to be credited towards the Purchase Price on the Closing Date; and (c) Within forty-eight (48) hours of the waiver of the Purchaser's conditions in Section 6.04 a fmther sum equal to ten percent (10%) of the Purchase Price, as estimated at Section 2.02 hereof, as a fu1iher deposit to be credited towards the Purchase Price on the Closing Date ( collectively, the "Deposit"). 3.02 The patties authorize the Vendor to invest the Deposit with a Canadian bank as identified in Schedule I of the Bank Act, R.S., 1991, c. B.46 (Canada). Any and all interest earned thereon shall accrue to the benefit of and, subject to Sections 3.03 and 5.03, be paid to the Purchaser fotihwith following the Closing Date or earlier termination of this Agreement. 3.03 In the event that this Agreement is terminated solely due to a specific default by the Purchaser, then the Deposit, together with all interest accrued thereon,' shall be forfeited to the Vendor as liquidated damages. 3.04 If the Transaction is completed, the Deposit shall be credited against the Purchase Price due on Closing and all interest accrued thereon shall be paid to the Pmchaser or as it may direct forthwith following Closing. 3.05 . On Closing the Purchase Price shall be paid and satisfied as follows: (a) by release of the Deposit to the Vendor; and (b) the balance of the Purchase Price, as adjusted pursuant to this Agreement shall be paid on the Closing Date by the Purchaser to, at the election of the Vendor, either (i) the Vendor in trust; or (ii) HMQ by way of a written direction from the Vendoi·, which direction shall be provided not less than five (5) Business Days prior to Closing. The balance of the Purchase Price shall be payable by way of wire transfer, such payment being deemed to have been made when the recipient's financial institution confirms receipt of such wire transfer. 3.06 The Purchaser acknowledges that at Closing it will be required to provide, or cause to be provided, Development Agreement Security to the appropriate Authority pursuant to one or more of the Development Agreements. 3.07 The Transaction shall be completed on the Closing Date at the offices of the Vendor's solicitors. 38997-2001 25099613.5
- 9 -SECTION 4 HARMONIZED SALES TAX 4.01 The Purchase Price does not include the Harmonized Sales Tax (''HST") payable by the Purchaser . in respect of the purchase of the Property pursuant to the Excise Tax Act, R.S.C. 1985, c. E.15 (Canada) (the "Act"). Subject to Section 4.02, the Purchaser agrees to pay to the Vendor, on the Closing Date, as a condition of completion of this Transaction by wire transfer, ceitified cheque or bank draft, all HST payable as a result of this Transaction in accordance with the Act. 4.02 Notwithstanding Section 4.01 above, the Vendor shall not collect HST from the Purchaser in this Transaction if, on Closing, the Purchaser is registered under the Act and in that event, the Purchaser shall: (a) file returns and remit such HST to the Receiver General for Canada when and to the extent required by the Act; and (b) provide to the Vendor, on the Closing Date, a ce1tificate confirming that the Purchaser is registered under the Act for the purposes of collectii1g and remitting HST, and confirming its HST registration number under the Act, together with an indemnity in favour of the Vendor for any and all HST, fines, penalties, actions, costs, losses, claims, damages or expenses and/or ii1terest which may become payable by, or assessed against, the Vendor as a result of the Vendor's failure to collect HST from the Purchaser on the Closing Date, such ce1tificate and indemnity to be in a form satisfactory to the Vendor's solicitor, acting reasonably, failing which the Purchaser shall pay to the Vendor on Closing the HST payable by the Purchaser with respect to this Transaction and the Vendor shall remit such HST to the appropriate Authority in accordance with the Act. 4.03 The Purchaser's obligations under this Section 4 shall survive and not merge on Closing. SECTIONS "AS IS WHERE IS", PURCHASER'S INSPECTION PERIOD, AND ENVIRONMENTAL INDEMNITY 5.01 The Purchaser acknowledges and agrees that: (a) in entering into this Agreenient, the Purchaser has relied and will continue to rely entirely and solely upon its own inspections and investigations with respect to the Prope1ty, . including, without limitation, the physical and environmental condition of the Prope1ty and a review of any documentation respecting the Prope1ty, and the Purchaser acknowledges it is not relying on any info11nation furnished by the Vendor or any other person on behalf of, or at the direction of, the Vendor in connection therewith; (b) the Purchaser is purchasing and shall accept, assume and take title to the Prope1ty and any improvements thereon in an "As Is, Where Is" condition. The term "As Is, Where Is" means in its condition or state on the Offer Date, without any agreement, representation or warranty of any kind whatsoever, either express or implied on the pa1t of the Vendor, as to the condition of the soil, the subsoil, the ground and surface water or any other 38997-2001 25099613.5
-10 -environmental matters, the condition of the Lands, suitability for development, physical characteristics, profitability, the condition of the Buildings, or any other 1hatter respecting the Property whatsoever, including without limitation, compliance with Environmental Law, the existence of any Hazardous Substance or Contaminant, the use to which the Prope1ty may be put and its zoning, the development potential of the Property or the ability of the Purchaser to obtain approvals with respect to the Purchaser's intended development of the Prope1ty, or as to the accuracy, cmrnncy or completeness of any infonnation or documentation supplied to the Purchaser in connection with the Property; and (c) the Vendor shall have no obligations or responsibility to the Purchaser after Closing with respect to any matter relating to the Prope1ty or the condition thereof. The provisions of this Section 5.0 I shall survive and not merge on Closing. Without limiting the foregoing, the Purchaser accepts, assumes and takes title to the Prope1ty subject to the land uses cuITently permitted on the Prope1ty by the applicable Land Use Regulations and the Purchaser shall not make and is not authorized by the Vendor to make, prior to completion of this Transaction, any applications to the Municipality or any governmental Authority for changes or variances to the uses cmTently permitted on the Property, including without limitation changes or variances to official plans and/or zoning by-laws applicable to the Prope1ty . . 5.02 During the period oftime commencing on the Execution Date and expiring on the expiration of the Inspection Period, the Purchaser may carry out whatever investigations it considers necessa1y to satisfy itself with respectto the condition of the soil, the subsoil, the ground and surface water or any other environmental matter relating to the Prope1ty, including, without limitation, compliance with Environmental Law, the existence of any Hazardous Substance or Contaminant. · If as a result of such investigations the Purchaser has or acquires evidence within the Inspection Period that there exists a condition of non-compliance with Environmental Law or the presence of a Hazardous Substance or Contaminant on, in, at, under, emanating from or onto the Prope1ty that would be in excess of the guidelines for any of the permitted uses under the current zoning by-law affecting the Prope1ty, the risk or presence of which the Purchaser is not prepared to assume, then the Purchaser shall, by written notice, provide such evidence to the Vendor within the Inspection Period by way of a rep01t of a recognized and qualified environmental consultant who shall specify in detail the natu,re of the non-compliance, Hazardous Substance or Contaminant and quan'tify the remediation cost ( collectively, an "Environmental Objection"). Upon receipt of an Environmental Objection, the Vendor may, at its option and in its sole discretion: (a) unde1take, as the Purchaser's sole and exclusive remedy, to take such actions, complete such work and/or implement such measures, in the Vendor's sole. discretion as to means and methods, as may be necessaiy to c01Tect the matter of non-compliance prior to the Closing Date or as soon as reasonably possible after the Closing Date if compliance prior to Closing is not, in the Vendor's opinion, reasonably possible, to the satisfaction of the Purchaser, acting reasonably; (b) credit the Purchaser, as·the Purchaser's sole and exclusive remedy, the quantified cost of correcting the matter of non-compliance as an adjustment to the Purchase Price in an amount to be acceptable to the Purchaser, acting reasonably, in which event the Purchaser shall, on Closing, expressly assume the obligation and 38997-2001 25099613,5
-11 -unde1take to coITect the matter of non-compliance as soon as possible after the Closing Date and shall indemnify and save harmless the Vendor from and against any and all claims, demands, costs, damages, expenses and liabilities whatsoever arising from the Purchaser's failure to remediate the Hazardous Substance, Contaminant and/or matter of non-compliance; ( c) terminate this Agreement in which event the Deposit shall, subject to Section 5.03, be returned to the Purchaser with accrued interest, and without fmther liability to the Vendor; or ( d) refuse to do either (a), (b), or ( c) above in which event the Purchaser shall have the option of either: (i) completing the Transaction without adjustment to the Purchase Price; or (ii) terminating this Agreement in which event the Deposit shall, subject to Section 5.03, be returned to the Purchaser with accrued interest, and without fmther liability to the Vendor. The Vendor shall have seven (7) Business Days from receipt of the Environmental Objection to make its election under (a), (b), (c) or (d) above by notice in writing to the Purchaser and in the event the Vendor fails to make an election within said seven (7) Business Diiy period, the Vendor will be deemed to have elected option ( d) above. The Purchaser shall have seven (7) days from the date of the Vendor's election or deemed election under ( d) above to elect, by notice in writing to the Ve~1dor, to terminate or complete as per paragraph ( d) above and in the event the Purchaser fails to make an election within said seven (7) day period the Purchaser shall be deemed to have elected to complete the Transaction without adjustment to .the Purchase Price. 5.03 During the Inspection Period, the Vendor will permit the Purchaser together with its employees, agents or consultants access to the Prope,ty, at reasonable times and upon a minimum of three (3) Business Days' prior written notice to the Vendor, to carry out, at the Purchaser's sole expense and risk, such investigations, tests and inspections as the Purchaser deems necessaty, provided that the Purchaser takes all reasonable care in the coi1duct of such investigations, tests and inspections. All tests, investigations and inspections conducted by the Purchaser or its representatives shall be commenced and completed prior to the expiration of the Inspection Period and shall be carried out as expeditiously as possible and at times and in such manner so as to not interfere with any tenants, occupants or licensees on the Prope1ty or the operation and maintenance of the Prope1ty. The Purchaser covenants and agrees to promptly repair or pay the cost of repair of any damage occasioned during or resulting from such investigati_ons, tests and inspections of the Propetty conducted by the Purchaser or its representatives and to return the Prope1ty to substantially the same condition it was in prior to such investigations, tests and inspections. The Vendor assumes no responsibility for and the Purchaser shall indemnify and save harmless the Vendor from and against any and all claims, deman:ds, costs, damages, expenses and liabilities whatsoever arising frorn the Purchaser's and/or its agents' or consultants' presence on the Prope1ty or the Purchaser's and/or its agents' or consultants' activities on or in connection with the Prope,ty. The Vendor shall be entitled to.deduct from the Deposit paid by the Purchaser hereunder the amount of any losses, costs, claims, third paity actions, damages and expenses which the Vendor may suffer as a result of a breach of this Section 5.03. The obligations in this Section 5.03 shall survive termination of this Agreement for a period of two (2) years and shall not merge on Closing. 5.04 Intentionally Deleted. 38997-2001 25099613.5
-12 -5.05 The Vendor agrees to provide to the Purchaser, the Prope1ty Documents listed in Schedule C and the Development Agreements within five (5) days of the date ofreceipt by the Vendor of the same from HMQ. The Purchaser acknowledges and agrees that: (i) the Prope1ty Documents are being provided to the Purchaser for informational purposes only and the Vendor makes no representations or waii-anties whatsoever with respect to the content, completeness or accuracy of the Property Documents, or the environmental or any other condition of the Prope1ty; (ii) the Vendor shall not be liable to the Purchaser, its agents, employees or lending institution in any way for any e11'0r, omission or inaccuracy contained in any Prope1ty Document; and (iii) as of the Closing Date, the Purchaser shall become solely liable for all conditions and Hazardous Substances and/or Contaminants existing at the Prope1ty, whether known or unknown by the Purchaser, and whether or not such conditions or Hazardous Substances and/or Contaminants are disclosed in the Property Documents or have been discovered by Purchaser in the course of its. due diligence or other investigations or inspections of the Prope1ty. The Purchaser shall be entitled to review the Prope1ty Documents and the Development Agreements during the Inspection Period and the Vendor agrees to use commercially reasonable eff01ts to cause SCS to deliver to the Purchaser any financial statements, projections and budgets with respect to the Development Agreements, as we_II as any other information relevant to the Purcliaser, acting reasonably, and, in the event that the Purchaser is not satisfied with the information contained .in the Prope1ty Documents OJ.' the bevelopinent Agreements, the Purchaser shall be entitled to terminate this Agreement. This condition is for the benefit of the Purchaser and if by 5:00 p.m. on expiry of the Inspection Period, the Purchaser has not given notice to the Vendor that the condition contained in this Section has been satisfied or waived, such condition shall be deemed not to have been satisfied or waived, in which event this Agreement shall be null and void and of no fu1ther force or effect whatsoever and each party shall be released from all of its liabilities and obligations under this Agreement, and the Deposit shall be returned to the Purchaser without deduction. 5.06 The Purchaser covenants and agrees that the Prope1ty Documents provided by the Vendor and any and all third pa1ty rep01ts, findings, recommendations, opinions and information resulting from the Purchaser's due diligence ("Purchaser's Reports") and the information contained therein shall be held in accordance with the confidentiality provisions set out in section 23. If this Agreement is terminated for any reason; the Purchaser will promptly return to the Vendor all Purchaser's Reports and Prope1ty Documents without keeping copies. The Purchaser shall deliver to the Vendor fo1thwith following receipt, copies of any and all Purchaser's Repo1ts the Purchaser commissions or obtains during the course of its investigations. 5.07 In the absence of the Purchaser delivering: (i) an Environmental Objection; and (ii) a notice to· tenninate the Agreement under Section 5.02(d), the Purchaser shall be conclusively deemed to accept the Property in its As Is, Where Is condition, having wa1ved all requisitions concerning any matters relating to the Prope1ty, save for any valid requisition 01; title made prior to the expiry of the Requisition Date, and the Purchaser shall accept full responsibility for all coriditions related to the Property, and the Purchaser shall comply, at its sole cost, with all orders relating to the condition of the Prope1ty issued by any competent government Authority, comt or administrative tribunal, including any order issued against the Vendor including without limitation, any non-compliance with Environmental. Law or relating to the existence of any Hazardous Substance or Contaminant. 5.08 As an inducem~nt to, and as fmther consideration for, the Vendor agreeing to sell the Property to the Purchaser upon the terms and conditions set fo1th in this Agreement, the Purchaser covenants and agrees that, effective as of the Closing Date, the Purchaser shall forever release and covenant 38997-2001 25099613.5
-13 -not to sue the Vendor and its affiliates, subsidiaries, related legal entities, employees, directors, officers, appointees and agents (each individually, a "Vendor Party" and collectively, the "Vendor Parties") with respect to anything arising out of the environmental or any other condition of the Prope1iy as of the Closing Date or the presence of Hazardous Substances or Contaminants in, on, under, or emanating from or onto the Prope1iy as of the Closing Date, regardless of whether such environmental conditions or the presence of Hazardous Substances or Contaminants is known or unknown by the Purchaser and regardless of whether such condition is set fo1th in the Property Documents, the Purchaser's Repo1ts or any other repo1t, document or info11nation discovered during the course of the Purchaser's due diligence or otherwise. The foregoing release and covenant not to sue shall apply to all claims at law or in equity, including, but not limited to, claims or causes of action for peisonal injuty or death, property damage, statutory claims under Environmental Laws and claims for contribution. Nothing herein shall prevent the Purchaser from suing any third pa1iy who is not a Vendor Pa1iy, for any such condition. 5.09 Fron1 and after the Closing Date, the Purchaser shall be responsible for, and hereby agrees to indemnify and save hannless the Vendor Patties from, any and all costs (including legal, consultant and witness costs and fees), claims, demands, actions, prosecutions, administrative hearings, fines, losses, damages, penalties,judgments, awards (including awards ofcosts) and liabilities (including sums paid in settlement of claims), that may arise as a result of the condition of the Prope1iy, the presence of Hazardous Substances or Contaminants in, on or under the Lands, the Buildings or any structure or paved surface, or in any environmental medium (including, but not limited to, the soil, groundwater, or soil vapour on or under, or emanating from the Prope1iy), any order issued by any Authority in connection with the condition of the Property, or any loss, damage, or injury caused either directly or indirectly as a result of the condition of the Prope1iy including, without limitation, non-compliance with Environmental Law or the existence of any Hazardous Substance or Contaminant. Without limiting the generality of the foregoing, this indemnification shall specifically cover costs incurred, from and after the Closing Date, in c01111ection with any claim for personal injury and/or death, prope1iy damage, investigation of site conditions and/or any clean-up, remedial, removal, monitoring or restoration work required by any federal, provincial, or local government agency or political subdivision because of the presence of Hazardous Substances, in, on or under the Lands, the Buildings or any .environmental medium, structure or paved surface or emanating therefrom. On Closing the Purchaser agrees to deliver a Purchaser's Environmental Indemnity and Covenant Not to Sue, in the form attached hereto as Schedule H. · 5.10 The patties agree to execute and exchange at the time of Closing such further documentation as either pmiy reasonably requests, including, but not limited to, an agreement whereby the Purchaser shall reaffirm the release, covenant not to sue and indemnifications regarding the condition of the Prope1iy and environmental matters set fo1th in this section 5 in the fonn attached hereto as · Schedule "I". Notwithstanding the foregoing, the release, covenant not to sue and indemnifications set fo1th in this section 5 shall become effective and enforceable automatically upon the registration of the Transfer/Deed of Land in respect of the Property in favour of the Purchaser, and Purchaser shall be bound by them, regardless of whether or not Purchaser executes any separate instrument at the time of Closing. 5.11 If requested by the Purchaser, the Vendor shall use commercially reasonable eff01ts (without the expenditure of funds) to secure a reliance letter (the "Reliance Letter") in favour of the Purchaser from GHD Limited (being the author of the Phase One Environmental Site Assessment dated November 20 I 7), which Reliance Letter \¥ill. permit the Pu1:chaser to rely on such repo1t as if it 38997-2001 25099613.5
-14 -were an original addressee thereof, subject to the qualifications, assumptions and limitations provided for in such repo1t. Prior to requesting the Reliance Letter, the Vendor shall advise the Purchaser of the cost and expense of the Reliance Letter and shall only request such Reliance Letter following written instruction from the Purchaser. 5.12 Unless otherwise expressly set out herein, this Section 5 shall not merge but shall survive the Closing Date and shail be a continuing obligation of the Purchaser. SECTION 6 CLOSING CONDITIONS 6.01 The obligation of the Vendor to complete the Transaction is conditional upon fulfillmerit of each of the following conditions on or before the Closing Date or any earlier date or time specified in this Agreement: (a) each of HMQ and the Vendor, shall have waived all of the conditions set out in the HMQ Purchase Agreement, as applicable therein; (b) all of the terms, covenants and conditions of this Agreement to be complied with or performed by the Purchaser shall have been coinplied with or pe1fonned in all material respects at the times contemplated in this Agreement; (c) the representations and wa1rnnties of the Purchaser set forth in this Agreement shall be true and accurate in all material respects as if made as of the Closing; (d) the Purchaser shall have executed all documents required to assume the obligations of the Vendor pursuant to the Development Agreements, including all required assumption Agreements; and · ( e) all documents and deliveries required to be executed and/or delivered by the Purchaser shall have been executed and delivered to the Vendor in accordance to this Agreement. 6.02 The conditions set fo1ih in Section 6.01 are for the sole benefit of the Vendor and may be waived in whole or in paii by the Vendor, or by its solicitors on its behalf, in the sole and absolute discretion of the Vendor by written notice to the Purchaser. The conditions are conditions precedent to the obligation of the Vendor to complete the herein Transaction on the Closh1g Date. 6.03 If a condition set f01ih in Section 6.0.I is not fulfilled within the applicable time period, if any, and the Vendor fails to notify the Purchaser or the Purchaser's solicitors that such condition has been . waived or the time period for compliance has been extended within the applicable time period allowed, if any (save and ,except for any condition which is to be satisfied on the Closing in connection with which it is hereby agreed that upon successful completion of the Transaction, such condition shall be deemed to have been satisfied), at the Vendor's sole option, this Agreement shall be null and void, rtotwithstanding any intermediate act or negotiations, and (i) in the event the Agreement is terminated as a result of the non-fulfilment of the condition set fo11h in Section 6.0l(a), neither the Vendor nor the Purchaser shall, subject to Section 5.03, be liable to the other for any loss, costs or damages, and the Deposit shall, subject to Section 5.03, be returned to the Purchaser with interest and without deduction, and (ii) in the event the Agreement is terminated as a result of the non-fulfilment of any of the conditions setfo1ih in Section 6.0 l(b), 6.0 l(c) or 6.01 (d), 38997-2001 25099613.5
-15 -the Deposit shall be forfeited to the Vendor as liq11idated damages and without derogating from any claims or causes of action the Vendor may have pursuant to this Agreement and at law against the Purchaser arising from the Purchaser's default therein. 6.04 · The obligation of the Purchaser to complete the Transaction is conditional upon fulfillment of the following conditions on or before the expfration of the Inspection Period, namely the Purchaser shall have satisfied itself in its sole and unfettered discretion: (a) with the terms of this Ag1:eement, the physical condition of the Lands, the environmental condition of the Lands, the zoning of the Lands, the Development Agreements, the Property Documents and all of its other due diligence tests, evaluations, inspections and investigations; (b) that all Leases can be te11ninated by the Vendor or the Purchaser; and (c) with: (i) the timing and contingencies for delivery of municipal services to the Property; . and (ii) the location and construction of any proposed access road. 6.05 The condition set fo1ih in Section 6.04 is for the sole benefit of the Purchaser and may be waived in whole or in paii by the Purchaser, or by its solicitors on its behalf, in the sole and absolute discretion of the Purchaser by written notice to the Vendor. The condition is a condition precedent to the obligation of the Purchaser to complete the herein Transaction on the Closing Date. 6.06 If the condition set forth in Section 6.04 is not fulfilled within the applicable time period and/or the Purchaser fails to notify the Vendor or the Vendor's solicitors that such condition has been waived, this Agreement shall be null and void, and the DepOsit shall, subject to Section 5.03, be returned to the Purchaser with interest and without deduction. SECTION.7 INTENTIONALLY DELETED SECTIONS INTENTIONALLY DELETED SECTION 9 RISK 9.01 Until completion of this Agreement on the Closing Date, the Property shall be and remain at the risk of the Vendor, except as otherwise provided in Section 5. The Purchaser acknowledges that the Vendor, in respect of damage to the Prope1iy, is self-insured. In the event of damage to the Property on or before the Closing Date (other than damage occasioned during or resulting from the Purchaser's and/or its agents, consultants or representatives entries and/or activities on or to the Property, in which event Section 5.03 shall govern) (the "Pre-Closing Damage"), the Vendor may elect (i) to fmihwith repair the Propeiiy to the same state and condition as it was in at the Offer Date in which' event the Purchaser will complete the Transaction without an abatement in the 38997-2001 25099613.5
-16 -Purchase Pt'ice; or (ii) to reduce the Purchase Price by an amount equal to the cost required to complete the repair as estimated by an independent qualified architect or engineer jointly retained by the Vendor and the Purchaser, acting reasonably and at arm's length in which event the Purchaser will complete the Transaction and accept a price reduction equal to such cost, or (iii) unless the Purchaser agrees to accept title to the Property notwithstanding the election of the Vendor not to remediate or compensate to terminate this Agreement in which case the Deposit shall, subject to Section 5.03, be immediately returned to the Purchaser, with interest and without deduction, and neither party shall, subject to Section 5.03, have any further rights or obligations hereunder. 9.02 From and including the Closing Date, the Property shall be entirely at the risk of the Purchaser and the Purchaser shall accept and assume any and all responsibilities and liabilities arising out of or in any way connected wi.th the Prope1iy whether they arose before, on or after the Closing Date and, without being limited by the foregoing, any state, nature, quality or condition in, on, under or near the Prope1ty existing as of the Closing Date, whenever and however. arising, whether known or unknown and whether environmental or otherwise, and whether such responsibilities and liabilities are imposed by law, equity or any governing Authority . . SECTION 10 VENDOR'S WARRANTIES, REPRESENTATIONS AND COVENANTS 10.01 The Vendor represents and warrants to the Purchaser that the VendQr is not a non-resident of Canada within the meaning and intended purpose of Section 116 of the Income Tax Act, R.S.C. 1985, c.1 (5th Supp.). 10.02 The Vendor represents and warrants that there are no agreements, options, contracts or commitments to sell, transfer or otherwise dispose of the Property or which would restrict the ability of the Vendor to transfer the Prope1ty to the Purchaser. . 10.03. The Vendor represents and warrants that, to the best of its knowledge and belief, no pait of the Prope1ty is subject to any proceeding by any government authority with respect to the expropriation thereof. 10.04 Any information provided by the Vendor or its agents, including the Prope1ty Documents, and any comments made by any Vendor Pa1iy are for the assistance of the Purchaser in allowing it to make its own inquiries. The Vendor makes no representations or warranties as to, and takes no responsibility for, the accuracy or completeness of the Prope1ty Documents or any other information it has provided to the Purchaser. SECTION 11 PURCHASER'S WARRANTIES, REPRESENTATIONS AND COVENANTS 11.01 The Purchaser represents and warrants to the Vendor that the Purchaser does not have a conflict of interest with any Vendor Pmiy. 11.02 The Purchaser represents and warrants to the Vendor that the execution, delivery and performance by the Purchaser of this Agreement, and each agreement to be executed and delivered pursuant hereto at Closing, to which the Purchaser is a .patty are within the Purchaser's legal power and jurisdiction and have been duly authorized and approved by all necessary action on the pmt of the Purchaser. 38997-200] 25099613.5
-17 -11.03 The Purchaser represents and wa1rnnts to the Vendor that this Agreement has been, and each agreement to be executed and delivered by the Purchaser pursuant to this Agreement, will be duly and validly executed and delivered by the Purchaser, and this Agreement constitutes, and each agreementto be executed and delivered pursuant hereto at Closing, when so executed and delivered will constitute, the legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with their respective terms. 11.04 The Vendor shall deliver and the Purchaser shall accept possession of the Property on the Closing Date inan As Is Where Is condition, subject to: (i) the Leases; (ii) the Development Agreements; and (iii) the Permitted Encumbrances. 11.05 As of the Closing Date, the Purchaser shall assume and be responsible as owner for the management · and administration of the Propetiy and the Vendor shall have no fu1ther responsibility whatsoever therefor. 11.06 Without limiting the generality of the foregoing, the Purchaser shall comply with the terms of the Permitted Encumbrances, any agreement entered into by the Vendor with any Authority relating to the Prope1iy, all other agreements relating to public utilities and municipal se1:vices, the Land Use Regulations, all relevant municipal by-laws and all registered restrictions. The Purchaser further agrees and acknowledges that it shall be bound by any contractual obligations which the Vendor may have entered into concerning the Prope1iy prior to the Closing Date. 11.07 On the Closi11g D.ate, the Purchaser will execute and deliver an Assignment, Assumption and Indemnity in the Vendor's standard form accepting, assuming and indemnifying the Vendor with respect to all such matters referred to in this Section 11. · SECTION 12 INTENTIONALLY DELETED SECTION l3 INTENTIONALLY DELETED SECTION14 TITLE 14.01 The Purchaser shall have until the day which is twenty-five (25) Business Days before the Closing Date (the "Requisition Date") to investigate title to the Prope1iy at the Purchaser's expense. The Purchaser agrees not to call for the production of any title deed, abstract, survey or other evidence • of title to the Lands except such as are in the possession of the Vendor. 14.02 On the Closing Date, the Purchaser shall accept title to the Prope1iy in an As Is Where Is condition subject to the following: . (a) the Land Use Regulations; (b) the Development Agreements and notices thereof; ( c) the Leases; 38997-2001 25099613.5
-18 -(d) all Community Use Land obligation pursuant to the Seaton CSA; and (e) the Permitted Encumbrances. The Purchaser agrees to satisfy itself with respect to compliance with all such agreements, easements, restrictions or covenants, encumbrances and regulatioi1s i·eferred to herein and agrees that the Vendor shall not be required to provide any evidence of compliance with same. 14.03 If, prior to the expiry of the Requisition Date, the Purchaser furnishes the Vendor in writing with a · valid objection to title which the Vendor is unwilling or unable to remove, remedy and satisfy and which the Purchaser will not waive, this Agreement shall be terminated notwithstanding any intermediate acts or negotiations with respect to such objection, the Deposit shall, subject to Section 5.03, be 1:eturned to the Purchaser with interest and without deduction and the Vendor shall not be liable for any costs or damages suffered by the Purchaser arising out of such termination or otlierwise out of this Agreement and parties shall have no fmther obligations or liabilities hereunder. 14.04 The Vendor hereby consents to the relevant Municipality releasing to the Purchaser any information in its records in connection with the Property and the Vendor agrees to execute and deliver such; necessa1y authorizations as the Purchaser may reasonably require in this regard but any such authorization shall specifically prohibit the right of or a request for an inspection of the Property by the Municipality or any other Authority. SECTION 15 NO ASSIGNMENT ETC. 15.01 The Purchaser shall not assign or register this Agreement, or any assignment of this Agreement, or any part of either, or register a caution in relation thereto, or direct title to the Property, without, in each instance, obtaining the prior written consent of the Vendor, which consent may be arbitrarily and unreasonably withheld. Notwithstanding the foregoing, the Purchaser may, upon prior written notice to the Vetidor, assign this Agreement to an Affiliate of the Purchaser but the Purchaser shall not be relieved of any of its liabilities or obligations hereunder in the event of any such assignment to an Affiliate. 15.02 If the Vendor consents to an assignment of this Agreement to a third party (the "Assignee"), the Purchaser shall cause the Assignee and the Purchaser, to covenant in writing in favour of the Vendor to be jointly and severally bound by and to jointly and seve1'ally perform their respective obligations of this Agreement. The Purchaser shall not be released from its liabilities and obligations hereunder in 'the event of an assignment to an Assignee. 15.03 In the event of any assignment of this Agreement to an Assignee, such Assignee shall provide a similar representation, wa1rnnty and Statuto1y Declaration as required of the Purchaser in Section 11.01. SECTION 16 DEVELOPMENT AGREEMENTS 16.01 The Purchaser agrees that at Closing it shall, as part of its acquisition of the Prope1ty, assume the obligations of the Vendor regarding the Prope1ty pursuant to the Development Agreements, and it 38997-200] 25099613.5
-19 -covenants to make all payments required by such Development Agreements and provide any Development Agreement_ Security required pursuant to any such Development Agreement, whether such security is to be lodged with an Authority or otherwise, upon the execution of any applicable Assumption Agreement with.the intent that the Purchaser shall be treated equally with the other Private Landowners, except as explicitly provided in the Development Agreements. 16.02 The Purchaser acknowledges that the Development Agreements may have been registered against title to the Prope1iy and fmther acknowledges that the development of the Propeity is subject to the Development Agreements. 16.03 The Purchaser acknowledges and agrees that the Vendor has made payments and incurred expenses which are subject to recovery.by the Vendor through the issuance of Development Charge Credits pursuant to the terms and conditions of the Phase 1 RFEA. The Purchaser agrees that at Closing, and as a condition of Closing, that it shall reimburse the Vendor for all costs that the Vendor has incurred which would be recoverable by the Vendor in the form of Development Charge Credits to be issued pursuant to the Phase 1 RFEA in respect of the Lands. The Purchaser acknowledges and agrees that the Seaton Trustee shall detennine the amount Development Charge Credits entitlement earned and attributable to the Lands based on the Developable Area Share of the Lands in the Seaton Community, whether or not the Lands are :within the Phase 1 Lands, and shall take into account indexing as provided for in the Phase 1 RFEA. The pay1mmt from the Purchaser to the Vendor pursuant to this section shall be refened to herein as the "DC Credit Recovery Payment''. 16.04 The Purchaser acknowledges that the Pickering FIA creates obligations with regard to the funding of ce1tain infrastructure in Seaton under the jurisdiction of the City. The Purchaser covenants and agrees that it will abide by the terms and conditions of the Pickering FIA, and will execute any Assumption Agreement as reasonably required by the Vendor or the City. Fmthermore, the Purchaser acknowledges that the infrastructure projects to be funded pursuant to the Pickering FIA are Cost Shared Services under the Seaton CSA, and the costs of which are to be cost shared pursuant to the terms of the Seaton CSA. 16.05 The Purchaser acknowledges that the Lands include Phase 1 RFEA Lands and, therefore, prior to the issuance of a building permit with respect to the development of such lands, unless otherwise provided for in a front ending agreement relating to Subsequent Phase development, the Purchaser will have to pay, in addition to any Attribution Development Charges payable with respect to the development of the Lands, the Attribution Prepayment applicable to the Property. The Phase I RFEA provides that Development Charge. Credits earned by viitue of the payment of the Attribution Prepayment are not able.to be utilized to satisfy the Attributions Development Charges payable upon the issuance of building permits for lands that are Phase 1 RFEA Lands, and further such Development Charge Credits will be administered by the Seaton Trustee. 16.06 The Purchaser acknowledges that on Closing the Purchaser will be a Provincial Successor (as such term is defined in the Seaton CSA). Furthermore, by vittue of being a Provincial Successor the Purchaser acknowledges and agrees that at Closing it will have to make a payment to -the Seaton Trustee in an amount to be determined by the Seaton Trustee pursuant to the tenns of the Seaton CSA, which will bring the Purchaser into a position in which the Purchaser will have funded the costs of Regional Infrastructure pursuant to the Phase 1 RFEA on the same basis as the other Private Landowners within the Seaton Community, this payment to be referred to herein as the "Private Landowner Equivalency Payment". 38997-200 I 25099613.5
-20 -16.07 The Purchaser acknowledges and agrees that at Closing, it will make a payment to the Vendor in an amount equal to _the portion of the costs incurred by the Vendor for Cost Shared Services applicable to the Lands up to the Closing Date as confinned by the Seaton Trustee, unless otherwise provided for herein, whether on a Developable Area Share or Drainage Area share or otherwise as applicable_ (referred to herein as "Servicing Costs"). 16.08 The Purchaser acknowledges that the Lands include Community Use Lands and that such Community Use Lands are to be transferred to' an Authority or the Seaton Trustee pursuant to the terms of the Seaton CSA. The Purchaser acknowledges and agrees that it will abide by the terms of the Seaton CSA with regard to such Community Use Lands which requires that they be conveyed to an Authority or the Seaton Trustee, and fmther that the Assumption Agreement with regard to the Seaton CSA will specifically provide for such transfer of the Community Use Lands. 16.09 The Seaton-Durham CSA provides for the recovery of certain costs of the construction of Regional Infrastructure that rela_te to the over-sizing of such services for which Developtnent Charge Credits are not available. The Purchaser acknowledges that the Vendor has not made and is not making any representations or warranties that any such construction costs will be recovered from the Durham Owners. SECTION 17 PREPARATION OF TRANSFER/DEED DOCUMENTS AND FEES/COSTS 17.01 The Transfer/Deed of the Lands will be prepared by the Vendor, except for the Affidavit of Residence and Value of the Consideration ("Land Transfer Tax Affidavit"), which will be prepared by the Purchaser. 17.02 The Purchaser shall pay its own legal costs and registration costs. The Purchaser shall be responsible for the payment of any applicable Land Transfer Tax and registration fees and any other taxes and fees which may be payable in connection with the registration of the transfer/deed of the Property. Furthermore the Purchaser agrees that it shall pay to the Vendor on Closing, an amount equal to the amount of Land Transfer Tax, registration fees and any other taxes and fees which are not recoverable by the Vendor from the appropriate taxing authority together with all marketing costs for which the Vendor is responsible or for which the Vendor has been required to pay in order to. acquire the Lands pursuant to the terms of the HMQ. Purchase Agreement (the "HMQ Acquisition Costs"). The HMQ Acquisition Costs shall be set out in the statement of Adjustments. SECTION18 TENDER 18.01 Any tender of money or documents pursuant to this Agreement may be made on the Vendor or the Purchaser or their respective solicitors. Unless expressly set out to the contrary herein, money must be tendered in Canadian funds by electronic wire. The Vendor and the Purchaser acknowledge and agree that insofar as the tender of any documents to be electronically registered is_ concerned, the tender of same will be deemed to be effective and proper when the solicitor for the patty tendering has completed all steps required by Teraview in order to complete this Transaction that can .be performed or unde1taken by the tendering patty's solicitor without the cooperatio11 or paiticipation 38997-2001 25099613,5
-21 -of the other party's solicitor, and specifically when the tendering party's solicitor has electronically "signed" the Transfer/Deed of Land and any other closing document, if any, to be electronically registered for completeness and granted access to the other pa1ty's solicitors to same, but without the necessity for the tendering pa1ty's solicitor actually releasing such documents to the other party's solicitor for registration. · SECTION 19 ADJUSTMENTS 19.01 Adjustments bet\veen the Vendor and the Purchaser shall be made on the Closing Date for taxes, local improvement rates, utility costs, rents, legal costs, HMQ Acquisition Costs and other matters or items which are ordinarily the subject of adjustment for the purchase and sale of a property similar to the Prope1ty in the Province of Ontario. Such Adjustments shall be made on the basis that, e~cept as may be othe1wise expi'essly provided for in this Agreement: (a) the Vendor shall be responsible for all expenses and liabilities and entitled to all income from the Prope1ty up to the Closing Date; and (b) the Purchaser shall be responsible for all expenses and liabilities and entitled to all income from the Propetty from and including the Closing Date. 19.02 Adjustments that c!j.nnot be determined on the Closing Date shall be determined by the pa1ties as soon after the Closing Date as is reasonably possible. Any amounts payable by one paity to the other, as detennined by the patties, acting reasonably, shall be paid within thi1ty (30) days ~f the request for such paymei1t. On the Closing Date, the Vendor and the Purchaser shall exchange unde1takings to re-adjust the foregoing items, if necessaiy. 19.03 All Adjustments to be made under Section 19.01 shall be completed on or before the date which is no later than six (6) months from the Closing Date and no re-adjustment may be made by either paity thereafter. SECTION20 ELECTRONIC REGISTRATION 20.01 Where the Propetty is in an area where electronic registration is mandato1y and the Transaction will be completed by electronic registration pursuant to Pait III of the Land Registration Reform Act, R.S.O. 1990, c. L.4, and the Electronic Registration Act, S.O. 1991, c.44, and any amendments thereto, the Vendor and Purchaser acknowledge and agree that the exchange of closing funds, non-. registrable documents and other closing deliverables provided for herein and the release thereof to the Vendor and Purchaser will: · (a) not occur at the same time as the registration of the transfer/deed (and any other documents intended to be registered in connection with the completion of this Transaction); and (b) be subject to conditions whereby the lawyer(s) receiving any of the closing deliverables will be required to hold same in escrow and not release same except in accordance with the terms of a document registration agreement between the said lawyers, the form of which is as recommended from time to time by the Law Society of Upper Canada (the "Document Registration Agreement"). 38997-2001 25099613.5
-22 -SECTION21 CLOSING DELIVERABLES 21.01 Subject to the provisions of this Agreement, the Vendor covenants that it shall execute or cause to be executed and shall deliver or cause to be delivered to the Purchaser or the Purchaser's solicitors on or before the Closing Date, each of the following: (a) possession of the Property in an As Is Where Is condition, subject to the Leases, and subject to the rights of others as set out in the Pennitted Encumbrances; (b) an assignment of the Leases, whether complete or pattial, the Development Agreements and Pennitted Encumbrances, as applicable; (c) notice to the tenant(s) or Iicensee(s) pursuant to the Leases informing them of the sale of the Lands and directing them to make future rent payments to the Purchaser and notices of termination of the Leases, if requested by the Purchaser; (d) an executed Transfer/Deed of Land in registrable form duly executed by the Vendor in favour of the Purchaser (save for any Land Transfer Tax Affidavit); (e) an unde1taking to re-adjust the statement of Adjustments, if necessary, upon written demand; (f) a direction regarding the payment of funds; (g) statement of Adjustments; (h) Document Registration Agreement as set out in Schedule E; (i) the ROFR Agreement in form attached hereto as Schedule G; G) the Reliance Letter, if available and if requested by the Purchaser; and (k) such other deeds, conveyances and other documents as the Purchaser or its solicitors may reasonably require in order to implement the intent of this Agreement. 21.02 Subject to the provisions of this Agreement, the Purchaser covenants that it shall execute or cause to be executed and shall deliver or cause to be delivered to the Vendor or the Vendor's Solicitors on or before the Closing Date: (a) confinnation of wire transfer for the balance of the Purchase Price and Adjustments due on the Closing Date; (b) a ce1tified cheque, bank draft or confirmation of wire transfer for any Development Agreement Payment payable to the Vendor, including the DC Credit Recovery Payment, the Private Landowner Equivalency Payment, and Servicing Costs; 38997-2001 25099613.5
-23 -( c) a ce1tified cheque, bank draft or confirmation of wire transfer for any Development Agreement Payment payable to the applicable trustee under a Development Agreement; (d) confirmation of delive1y of Development Agreement Security to any applicable authority or trustee under a Development Agreement; (e) an unde1taking to re-adjust the statement of Adjustments, if necessa1y, upon written demand; (f) HST Declaration and Indemnity, as c011templated in Section 4, if applicable; (g) intentionally deleted; (h) the ROFR Agreement in form attached hereto as Schedule G; (i) Document Registration Agreement in the fonn attached as Schedule E; U) an Assumption Agreement for the Leases; (k) an Assumption Agreement for each of the Developrnent Agreements; (I) an Assumption Agreement for the Pennitted Encumbrances, as applicable; (m) a Purchaser's Indemnity and Covenant Not to Sue in the form attached hereto as Schedule H; and (n) .such other deeds, conveyances, resolutions and other documents as the Vendor or its solicitors may reasonably require in order to implement the intent of this Agreement. SECTION22 NOTICE 22.01 Any notice under this Agreement is sufficiently given if delivered personally or if sent by ordinary prepaid mail or prepaid courier or electronic facsimile machine (including e-mail) addressed to the Purchaser at: Kubota Canada Ltd. 5900 Fomteenth Ave. Markham, Ontario L3S 4K4 Attention: Costa Nicolaidis Email: cnicolaidis@kubota.ca and to the Purchaser's Solicitors at: 38997-2001 25099613.5
McMillan LLP 181 Bay Street Suite 4400 Toronto Ontarit.1 M5J 2T3 Attention: ,I. Scott Martyn Telephone: ( 416) 945-8022 -24 -Email: scott.mai1yn@McMillan.ca and to the Vendor at: The Corporation of the City of Pickering One The Esplanade Pickering Ontario, LIV 6K7 Attention: Paul Bigioni, Director, Corporate Services and City Solicitor Telephmic: (905) 420-4660 ext. 2048 Email: pbi1.!.ioniriilpicker111g.ca And: Torys LLP 79 Wellington Street West Suire 3000 Box 270, TD Centre Toronto Ontal'io, M5K I N2 Attention: Dan Pord / Andy Gibbons Telephone: ( 416) 865-73 72 / ( 4 l 6) 865-8226 or at such other addresses as the Vendol' and the Pttl'chasel' may designate from time to time. Any such notice shall be conclusively deemed to have been given and received upon the same day if pel'sonally delivered m sent by facsimile or email, or, if mailed, three (3) Business Days after the same is mailed. Any pariy inay, at any Hine by notice given in writing to the othel' pai1y, change the address for service of notice on it. SECTION23 CONFIDENTIALITY 23.01 The Vendor and Pul'chasel' agree tQ take nil necessury precautions to maintain the confidentiality of the te1·111s and conditions contained herein. The parties acknowledge that this Agreement and any information or documents tliat are provided he1·etmder may be released pursuant to th.e applicable provisions of the Preedom of lnforma/km ond Pl'oteclio11 of Pl'il'(l(Jl Act. R.S.O. 1990, c. r.31, as 311997•'.WOI 2$099613,5
-25 -amended and the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, as amended and Open Data may be released pursuant to the Open Data Directive. This acknowledgment shall not be construed as a waiver of any right to object to the release of this Agreement or of any information or documents. 23.02 The Purchaser agrees to ensure that the Purchaser, its officei·s, employees, agents and sub-contractors shall, subject to Section 23 .01, maintain the confidentiality and security of all materials and information which is the property of the Vendor and in the possession or under the control of the Purchaser pur"suant to this Agreement. The Purchaser agrees to ensure that the Purchaser, its officers, employees, agents and sub-contractors shall not directly or indirectly disclose or use, either during or following the term of this Agreement, except where required by law, any material or infonnation belonging to the Vendor pursuant to this Agreement, without first obtaining the prior written consent of the Vendor for such disclosure ol' use and in the event of tennination of this Agreement, the Purchaser will be responsible f01' returning all such documentation and information to the Vendor without making copies. SECTION24 GENERAL 24.01 From and after the Execution Date, the Purchaser shall indemnify and save hannless the Vendor Paiiies from, any and all costs (including legal, co11sultant and witness costs and fees), claims, demands, acti9ns, prosecutions, administrative hearings, fines, losses, damages, penalties, judgments, awards (including awards ofcosts) and liabilities (including sums paid in settlement of claims), including, but not limited to, any such costs, claims, demands, actions, prosecutions, administrative hearings, fines, losses, damages, penalties, judgements, awards and' liabilities that may result from a breach by the Vendor under the HMQ Purchase Agreemef1t, that may arise as a result of any acts or omission on the pmi of the Purchaser or any breach by the Purchaser of the terms of this Agreement. For greater certainty, the Purchaser acknowledges and agrees that the Vendor has agreed to enter into the HMQ Purchase Agreement, solely for the purposes of enabling the sale of the Lands to the Purchaser as set out in this Agreement. 24.02 Time shall in all respects be of the essence of this Agreement, provided that the time for doing or completing any matter provided for in this Agreement may be extended or abridged by an agreement in writing, signed by the Vendor and the Purchaser or by ai1 agreement between their respective solicitors who are hereby expressly authorized in this regard. If anything in this Agreement is to be done on a day which is not a Business Day, the same shall be done on the next succeeding Business Day. 24.03 This Agreement shall be binding upon, and enure to the benefit of, the Vendor and the Purchaser and their respective successors and permitted assigns. The Vendor and the Purchaser acknowledge a!'1d agree that the representations, covenants, agreements, rights and obligations of the Vendor and the Purchaser under this Agreement shall not merge on the completion of this Transaction, but shall survive completion and remain in full force and effect and be binding upon the parties, save and except as may be otherwise expressly provided for in this Agreement. 38997-2001 25099613.5
-26'-24.04 Whenever the singular is used in this Agreement, it shall meah and include the plural and whenever the masculine gender is used in this Agreement it shall mean and include the feminine gender if the context so requires. · 24.05 This Agreement constitutes the entire agreement between the patties and there is no representation, waJTanty, collateral agreement or condition affecting this Agreement or the Propetty, except as specifically set fotth in this Agreement. This Agreement may not be modified or amended except by an instrument in writing signed by the patties hereto. 24.06 This Agreement and the rights and obligations of the Vendor and the Purchaser shall be determined in accordance with the laws of the Province of Ontario. 24.07 Wherever this Agreement makes reference to a-requirement for the consent or approval of the Vendor, such consent must be prior written consent and may be arbitrarily and ·unreasonably withheld in the sole and absolute discretion of the Vendor. · 24.08 No waiver of any of the provisions of this Agreement sha_Il be deemed or shall constitute a waiver of any other provision (whether or not similar) nor shall any waiver constitute a continuing waiver unless otherwise expressed or provided. 24.09 If any provision of this Agreement or patt thereof or the application thereof to any person or circumstance, to any extent, shall be determined to be invalid or unenforceable, the remainder of this Agreement or the application of such provisions or patt thereof t_o any person, paity or circumstance other than those to which it is held invalid or unenforceable shall not be affected thereby. Each covenant, obligation and agreement in this Agreement shall be separately valid and enforceable to the fullest extent permitted by law. 24.10 Each of the paities hereto shall from time to time hereafter ai1d upon any reasonable request of the other and in such form as may be satisfactory to both pa1ties hereunder, execute ~nd deliver, make or cause to be made all such further acts, deeds, assurances and things as may be required or necessary to more effectually implement and carry out the true intent and meaning of this Agreement. SECTION25 IRREVOCABLE PERIOD 25.01 Signature of this Agreement by the Purchaser and the submission thereof to the Vendor constitutes an offer under seal, which is irrevocable for thhty (30) days from the date it is submitted to the Vendor and open for acceptance by the Vendor during said thitty (30) day period. This offer, once accepted on the Execution Date, constitutes a binding contract of purchase and sale. This offer may be made and accepted by electronic transmission, including electronic signature provided that the original hard copy, with original signatures is received by both patties within five (5) days of the electronic acceptance. The Purchaser, in submitting this offer, acknowledges that there has been no promise or representation or assurance given to the Purchaser that any of the terms and conditions in this offer are or will be acceptable to the Vendor. [no further text on this page] 38997-2001 25099613.5
IN WITNESS WHEREOF the patties hereto have exect1ted this Agreemenl as evidenced by their properly authorized officers in that behalf as of the day and year first above written. I c, 111 OFFERED BY the Purchaser this-J-L-day of /Vi Mc. If . 201 s. KUBOTA CANADA LTD. By: ~~~-----------Name: Title: IlWe have authority to bind the Corporation ACCEPTED BY the Vendor this _ls_t __ . day of __ Ju_n_e ___ _, 2018. 3&997-2001 25099613,5 THE CORPORATION OF THE CITY OF PICKERING By: ;;;{}_ -~ j(} -· ~-:-;:-::(MiI-._\ .... Ol\-~~~~•~::..w'e:..:;~""'• ...... -· ;ol-l-'-. -, iJ"t-.-C).f.t:l lB( By: --------~-----Name: Title: I/We have authority to bind the Corporation
SCHEDULE A-1 LEGAL DESCRIPTION OF LANDS PART OF LOTS 23 AND 24. CONCESSION 5; CITY OF PICKERING BEING PART OF PIN 26402-0077 (LT) 38997-2001 25099613.5
38997-2001 25099613.5 SCHEDULE A-2 LANDS
SCHEDULEB PERMITTED ENCUMBRANCES (a) General Encumbrances: (i) the Leases, if any, (for greater certainty including expired leases registered against title to the Lands) and any notices of such leases registered on title to the Lands, including all easements, rights of way, restrictions, resfrictive covenants, servitudes and other similar rights in land contained in the Leases, which exist as of the Closing Date and any leasehold mortgages or security interests relating to . tenants or the tenants' interest in respect thereof and which do not encumber the interest of the landlord thereunder; (ii) liens for real property taxes (which tenn includes cha1·ges, rates and assessments) or charges for electricity, power, gas, water and other services and utilities in connection with the Property or for construction in conn,ection with the Property for amounts the payment of which is not yet due or delinquent; (iii) any easements, rights of way, restrictions, building schemes, licences, restrictive covenants and servitudes, rights of access or use, airpo1t zoning regulations and other similar rights in land (including, without limitation, rights of way and servitudes for sewers, drains, gas and water mains, electrical power, telephone and cable conduits, poles, wires or cables) granted to, reserved or taken by any person which do not, in the aggregate, materially and adversely impair the use or marketability of any of the Prope1ty for the purposes for which it is presently held, and any rights reserved or vested in any Authority or public or private utility by the terms of any lease, licence, franchise, grant, agreement or permit, subdivision, development, servicing, encroachment, site plan, parking or other similar agreement with any Authority or public or private utility; (iv) title defects or irregularities which do not, in the aggregate, niaterially and adversely impair the use of the Property for the purpose for which it is presently held and for the proposed redevelopment of the Prope1ty by the Purchaser; (v) any cost sharing, common use, reciprocal or other similar agreements relating to the use and/or operation of the Prope1ty and/or adjoining prope1ties provided the same are complied with in all material respects and all security given by the pa1ties thereto to each other to secure their respective obligations thereunder; . (vi) any subsisting reservations, limitations, provisos, conditions or exceptions, including royalties, contained in the original grant of the Prope1ty from the Crown; (vii) any rights of expropriation, access or use, or any other right conferred or reserved by or in any statute of Canada or the Province of Ontario; (viii) the provisions of all applicable laws including by-laws, regulations, ordinances, land use contracts, development agreements and similar instruments relating (without limitation) to development, use and zoning; 38997-2001 25099613.5
(ix) encroachments by any improvements on the Property over adjoining lands ~nd easements or rights of way and/or any improvements on adjoining lands encroaching on the Property which do not materially and adversely affect the present use of the Property; (x) all registered and unregistered agreements, easements, rights, covenants and/or restrictions in favour of municipalities, publicly or privately regulated utilities or adjoining owners, or that otherwise run with the Lands·; and (xi) ai1y encroachments that are shown on existing surveys or as may be revealed by an up-to-date survey. (b) Specific Encumbrances: All instruments registered on title to the Pro petty as of the Closing Date provided that the Vendor is not in material breach thereof and, where applicable; consent to transfer to Purchaser, if required, has been obtained, including but not limited to: 1. Lease dated Januaiy 22, 2016 made between Her Majesty The Queen In Right Of Ontario As Represented By The Minister Of Economic Development, Employment And Infrastructure, as landlord and 1018105 Ontario Inc., as tenant; 2. Notice of the Phase I RFEA; 3. Notice of the Pickering FIA; 4. Notice of the Seaton CSA; and 5. Notice of the Seaton-Durham CSA. · 38997-2001 25099613.5
SCHEDULEC PROPERTY DOCUMENTS [Note: Vendor to provide in accordance with Section 5.05.] 38997-2001 25099613.5
38997-2001 25099613.5 SCHEDULED INTENTIONALLY DELETED
SCHEDULER DOCUMENT REGISTRATION AGREEMENT DOCUMENT REGISTRATION AGREEMENT BETWEEN: <> (hereinafter referred to as the "Vendor's Solicitor") AND: <> (hereinafter referred to as the "Purchaser's Solicitor") RE: The Corporation of the City of Pickering (the "Vendor'') sale to<> (the "Purchaser") of the property legally described as<>, City of<>, being the whole of PIN <>(LT) (the "Property" pursuant to an Agreement of Purchase and Sale between the Purchaser, as purchaser, and the Vendor, as vendor, dated<> and accepted<> (the "Purchase Agreement"), Scheduled to be completed on<> (the "Closing Date") Holding Deliveries In Escrow Advising of Concerns with Deliveries FOR GOOD AND VALUABLE CONSIDERATION (the receipt and sufficiency of which is hereby expressly acknowledged), the parties hereto hereby unde1iake and agree as follows: . I. The Vendor's Solicitor and the Purchaser's Solicitor shall hold all funds, keys and closing documentation exchanged between them (the "Requisite Deliveries") in escrow, and shall not release or otherwise deal with same except in accordance with the terms of this Agreement. Both the Vendor's Solicitor and the Purchaser's Solicitor have been authorized by their respective clients to enter into this Agreement. Once the Requisite Deliveries can be released in accordance with the terms of this Agreement, any monies representing payout funds for m01igages to be discharged shall be forwarded pi·omptly to the appropriate m01igage lender.1 2. Each of the paities hereto shall notify the other as soon as reasonably possible following their respective receipt of the Requisite Deliveries (as applicable) of any defect(s) with respect to same. 1Solicitors should continue to refer to the Law Society of Upper Canada practice guidelines relating to recommended procedures to follow for the discharge of mortgages. 38997-2001 25099613.5
Selecting Solicitor Responsible for Registration Responsibility of Non-Registering Solicitor Responsibility of Registering Solicitor Release of Requisite Deliveries by Non-Registering Solicitor 38997-2001 25099613.5 3. The Purchaser's Solicitor shall be responsible for the registration of the Electronic Documents (as hereinafter defined) unless the box set out below indicating that the Vendor's Solicitor will be responsible for such registration has been checked. For the purposes of this Agreement, the solicitor responsible for such registration shall be refetTed to as the "Registering Solicitor" and the other solicitor shall be referred to as the "Non-Registering Solicitor": Vendor's Solicitor will be registering the Electronic D Documents 4. The Non-Registering Solicitor shall, upon his/her receipt and approval of the Requisite Deliveries (as applicable), electronically release for registration the Electronic Documents and shall thereafter be entitled to release the Requisite Deliveries from escrow fo1thwith following the earlier of: a) the registration of the Electronic Docuinents; b) the closing time specified in the Purchase Agreement unless a specific time has been ili.se1ied as follows~---a.m./p.m. on the Closing Date] (the "Release Deadline"), and provided that notice under paragraph 7 below has not been received; or c) receipt of notification from the Registering Solicitor of the registration of the Electronic Documents. If the Purchase Agreement does not specify a closing time and a Release Deadline has not been specifically inse1ied the Release Deadline shall be 6.00 p.m. on the Closing Date. 5. The Registering Solicitor shall, subject to paragraph 7 below, on the Closing Date, following his/her receipt and approval of the Requisite Deliveries (as applicable), register the documents listed in Schedule A annexed hereto (referred to in this agreement as the "Electronic Documents") in the stated order of priority therein set out, as soon as reasonably possible once same have been released for registration by tlie Non-Registering Solicitor, and immediately thereafter notify the Non-Registering Solicitor of the registration particulars thereof by telephone or telefax (or other method as agreed between the paities). 6 Upon registration of the Electronic Documents and notification of the Non-Registering solicitor in accordance with paragraph 5 above, the Non-Registering Solicitor shall be entitled to fotthwith release the Requisite Deliveries from escrow.
Returning Deliveries where Non-registration Counterpaiis & Gender Purchase Agreement Prevails if Conflict or Inconsistency Telefaxing Deliveries & Providing Originals if Requested 7. Any of the parties hereto may notify the other paiiy that he/she does not wish to proceed with the registration2 of the Electronic Documents, and provided that such notice is received by the other party before the release of the Requisite Deliveries pursuant to this Agreement and before the registration of the Electronic Documents, then each of the pa1iies hereto shall fo1ihwith return to the other pa1iy their respective Requisite Deliveries. 8. This agreement may be signed in counterpaiis, and shall be read with all changes of gender and/or number as may be required by the context. 9. Nothing contained. in this agreement shall be read or coi1stri.led as altering the respective rights and obligations of the Purchaser and the Vendor as more pa1iicularly set out in the Purchase Agreement, and in the event of any conflict or inconsistency between the provisions of this agreement and the Purchase Agreement, then the latter shall prevail. I 0. This agreement (or any counterpa1i hereof), and any of the closing documents herein before contemplated, may be exchanged by telefax or similar system reproducing the original, provided that all such documents have been properly executed by the appropriate pa1iies. The pa1iy transmitting any such document(s) shall also provide the original executed version(s) of same to the recipient within 2 business days after the Closing Date, unless the recipient has indicated that he/she does not require such original copies. Dated this ___ day of<>, 201 . Dated this __ day of <>, 201 Name/Firm Name of Purchaser's Solicitor Name/Finn Name of Vendor's Solicitor <> <> (Signature) (Signature) 2 For the purpose of this Agreement, the term "registration" shall mean the issuance of registration number(s) in respect of the Electronic Documents by the appropriate Land Registry Office. · 38997-2001 25099613.5
Note: Tbis version of the Document Registmtion Agreeme11t was adopted by the Joint LSUC-CBAO Committee 011 Electro11ic Registration of Title Documents 011 March 29, 2004 mtd posted to tlte web site 011 April 8, 2004. Schedule "A" 1. Transfer from <> to <>. 38997-2001 25099613.5
SCHEDULEF ACKNOWLEDGEMENT AND INDEMNITY The Purchaser hereby acknowledges that all representations, wairnnties and covenants provided for in Section 11 of the Agreement of Purchase and Sale executed on the of 20 , shall survive closing for a period of two (2) years and fmther agrees to indemnify the Vendor and its successors, administrators, permitted assigns, directors, officers, employees, agents, servants, representatives, appointees and all others for whom the Vendor is responsible in law, from and against all such loss, damage, or injury and all actions, suits, proceedings, costs, charges, damages, expenses, claims, or demands arising therefrom or connected therewith. Date: Witness: ) ) ) ) ) ) ) ) Name: ). Name: ) Position: ) Title: 38997-2001 25099613.5
BETWEEN: SCHEDULE G ROFR AGREEMENT xxxx (the "Grantor") -and-THE CORPORATION OF THE CITY OF PICKERING (the "Grantee") WHEREAS the Grantor is the registered owner of the lands and premises described in Schedule "A" hereto (the "Property"); · · AND WHEREAS the Grantor has agreed to grant to the Grantee ce1tai11 rights with respect to the Prope1ty on the tenns and subject to the conditions of this Agreement; NOW THEREFORE, h1 consideration of the mutual covenants and agreements set out in this Agreement and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the patties covenant and agree as follows: 1.1 Definitions ARTICLE 1 INTERPRETATION In this Agreement, all capitalized terms shall have the respective meanings assigned thereto below: "Acceptance Notice" has the meaning ascribed thereto in Section 2.1 (b )(i). "Affiliate" has the meaning set out in the Business Corporations Act, R.S.O. 1990, c. B. 16. "Agreement" means this agreement, as further amended from time to time, and "Article", "Section", "Sub-Section" and "Schedule" mean the specified ruticle, section or schedule, as the case may be, of this Agreement. "Business Day" means any day other than a Saturday, Sunday or statutory or civic holiday in the Province of Ontario. "Closing" has the meaning ascribed thereto in Section 2.1 ( c ). 38997-2001 25099613.5
-2 -"Closing Date" has the meaning ascribed thereto in Section 2.l(c). "Development Agreements" has the meaning ascribed to such term in the Original Purchase Agreement. "HST" means the goods and services tax or hannonized sales tax payable pursuant to Pali IX of the Excise Tax Act (Canada), as such statute may be amended, modified or replaced from time to time, including any successor statute. "Offer Period" has the meaning ascdbed thereto in Section 2.1 (b ). "Offeror" has the meaning ascribed thereto in Section 2.1 (a). "OREA" means the Ontario Real Estate Association, together with its successors and assigns. "Original Purchase Agreement" means the agreement of purchase and sale with respect to the Property dated • made between the Grantee, as vendor and the Grantor, as purchaser. "Original Purchase Price" means the purchase price for the Prope1iy paid by the Grantor to the Grantee pursuant to the terms of the Original Purchase Agreement. "Property" has the meaning ascribed thereto in the recitals, and including all buildings, structures, improvements located thereon and appu1ienances thereto. "Rejection Notice" has the meaning ascribed thereto in Section 2.l(b)(ii). "ROFR Notice" has the meaning ascribed thereto in Section 2.l(a). "Sale Interest" has the meaning ascribed thereto in Section 2.1 (a). "Sale Price" has the meaning ascribed thereto in Section 2.1 (a)(ii). "Third Party Offer" has the meaning ascribed thereto in Section 2.1 ( a). 1.2 Schedule The following Schedule is attached to and forms pait of this Agreement: Schedule A Legal Description of the Property 1.3 Interpretation (a) Headings and Table of Contents. The division of this Agreement into Articles, Sections and Sub-Sections and the insertion of headings are for convenience of reference only and · will not affect the construction or interpretation of this Agreement. (b) Number and Gender. Unless the context requires otherwise, words importing the singular include the plural and vice versa and words impo1ting gender include all genders. 38997-2001 25099613.5
(c) (d) (e) 2.1 (a) -3 -Severability. If any provision contained in this Agreement or its application to any party or circumstance will, to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of such provision to paities or circumstances other than those to which it is held invalid or unenforceable, will not be affected, and each provision of this Agreement will be separately valid and enforceable to the fullest extent permitted by law. Time. Time will be of the essence of this Agreement. Except as expressly set out in this Agreement, the computation of any period of time referred to in this Agreement will exclude the first day and include the last day of such period. The time limited for perfonning or completing any matter under this Agreement may be extended or abridged by an agreement in writing by the patties hereto. If any payment is required to be made or other action is required to be taken pursuant to this Agreement on a day which is not a Business Day, then such payment or action will be made or taken on the next Business Day. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. ARTICLE2 RIGHT OF FIRST REFUSAL AND BUY BACK Right of First Refusal If at any time, and from time to time, 011 or prior to the fifth (St11) anniversary of the date of this Agreement, th~ Grantor receives a bona fide written offer (a "Third Party Offer") from any third patty (the "Offeror") to purchase all or pait of the Prope1ty (the "Sale Interest"), which the Granter is willing to accept, the Grantor shall, before accepting such -Third Paity Offer, deliver written notice thereof to the Grantee (the "ROFR Notice") within three (3) Business Days following the date on which the Third Patty Offer was received by the Grantor, which notice shall: (i) (ii) confirm that the Grantor has received a Third Paity Offer which the Granter is willing to accept; contain an offer to. sell the Sale Interest to the Grantee on the same terms and conditions as those contained in the Third Pa1ty Offer save and except that tile purchase price payable by the Grantee for the Sale Interest shall be: (A) the Original Purchase Price; plus (B) any amounts paid by the Gran tor pursuant to the terms of the Development Agreements, less any amounts which the Grantor may have received by way of development credits <?r otherwise, during the period of the Grantor's ownership of the Prope1ty. The purchase price at which the Sale Interest is offered for sale to the Grantee as determined in aycordance with this Section is referred to as the "Sale Price"; 38997-2001 25099613.5
-4 -(iii) contain a true and complete copy of the Third Pa1ty Offer signed by the Offerer; and (iv) be accompanied by a certificate of the Granter stating that: (A) the copies of the Third Paity Offer contained in such notice are true and complete copies thereof; (B) such Third Party Offer has not been amended, restated and/or supplemented; and (C) such offer constitutes a Third Pa1ty Offer in accordance with the terms hereof .. (b) The Grantee shall have the right, exercisable by notice in writing given to the Granter within fifteen (15) Business Days following receipt ofa ROFR Notice (the "Offer Period") .to elect to: (i) purchase the Sale Interest (the "Acceptance Notice") at the Sale Price and on the same terms and conditions contained in the Third Pa1ty Offer (except as set f01th in Section 2.l(c)); or (ii) not to purchase the Sale Interest and to consent to the sale of the Sale Interest by the Granter to the Offerer at the purchase price and on the same terms and conditions contained in the Third Paity Offer (the "Rejection Notice"). ( c) If within the Offer Period, the Grantee delivers an Acceptance Notice to the Granter, there shall be created at such time, automatically and without any fuither action or documentation, a binding agreement of purchase and sale between the Granter and the Grantee pursuant to. which the Granter agrees to sell to the Grantee, and the Grantee agrees to purchase from the Granter, the Sale Interest at the Sale Price and on the same terms and conditions as those contained in the Third Patty Offer, provided that, subject to the satisfaction of the conditions contained in the Third Paity Offer, closing of the transaction of purchase and sale (the "Closing") will occur on the date which is sixty (60) days after the Grantee delivers the Acceptance Notice (the "Closing Date"). (d) If no notice is delivered by the Grantee pursuant to Section 2.l(b), the Grantee shall be deemed to have delivered the Rejection Notice. (e) If the Grantee has delivered, or has been deemed to deliver, the Rejection Notice, the Grantor may sell the Sale Interest to the Offeror, at the purchase price and on the terms and conditions contained in the Third Patty Offer; provided that if such sale of the Sale Interest to the Offeror does not occur on such terms within one hundred and twenty (120) days following the expiry of the Offer Period, the Granter must again comply with this Section 2.1 in respect of any future pl"oposed sale of all or pa1i of the Prope1ty. (f) If a sale of pmt of the Property only is completed by the Granter pursuant to this Section 2.1, the Grantee's right of first refusal shall continue in full force and effect with respect to the remainder of the Prope1ty. (g) The Granter and the Grantee agree and acknowledge that the Granter shall be entitled to transfer the Prope1ty to an Affiliate without triggering this right of first offer and without consent of the Grantee, provided the Granter provides the Grantee with fifteen (15) days prior written notice of such transfer. 38997-2001 25099613.5
2.2 (a) (b) 2.3· -5 -Right to Buy Back If the Granter has failed to: (i) obtain and deliver copies to the Grantee, of all development approvals, building permits and other third pennits or consents required to construct on the Property a building of not less than 350,000 square feet (the "New Building"); and (ii) commence constrnction of the New Building, provided that any such delays are not as a result of the City of Pickering or other appropriate Authority refusing to issue the necessary permits and approvals or taking upreasonable delays in issuing such permits and approvals, following receipt of a complete application by the Granter for the same, on or before the fifth (5th) anniversary of the date of this Agreement, then at any time, and from time to time, on or after the fifth (5th) anniversaiy of the date of this Agreement,' the Grantee shall have the right, but not the obligation, upon written notice to the Granter, to repurchase the Property, for a purchase price equal to: (A) the Original Purchase Price; plus (B) any amounts paid by the Grantor pursuant to the terms of the Development Agreements, less any amounts which the Grantor may have received by way of development credits or otherwise, during the period of the Grantor's ownership of the Propetiy. If the Grantee delivers written notice of its intention to repurchase the Property in accordance with Section 2.2(a), there shall be created at such time, automatically and without any futther action or documentation, a binding agreement of purchase and sale between the Grantor and the Grantee pursuant to which the Grantor agrees to sell to the Grantee, and the Grantee agrees to purchase from the Grantor, the Property at the price calcul"ated in accordance with Section 2.2(a) and on the terms and conditions set out in the OREA form of agreement of purchase and sale (commercial) current (as at the date of execution of this Agreement), provided that, Closing will occur on the date which is sixty (60) days after the Grantee delivers the written notice in accordance with Section 2.2(a). Closing The following provisions shall pe1tain to the Closing pursuant to Section 2.1 or 2.2 hereof, as applicable: (a) ·closing shall occur at 12:00 p.m. on the Closing Date, or such earlier or later date as may be mutually agreed upon, in writing, by the patties to the transaction; and (b) on or before Closing: (i) the Grantor shall cause to be executed and delivered to the Grantee an electronic transfer(s)/deed(s) of land/registerable deeds of sale/transfers of land transferring 38997-2001 25099613.5
3.1 - 6 -the Sale Interest to the. Grantee or as it may direct, and containing the statements of the Grantor and its solicitors pursuant to Section 50(22) of the Planning Act (Ontario); (ii) the Grantor shall certify that it is not a non-resident of Canada within the meaning of Section 116 of the Income Tax Act (Canada); and (iii) the Grantor shall execute and deliver or cause to be executed and delivered such other closing documents which are required to effectively transfer and convey the Sale Interest or the Property, as applicable, to the Grantee and which the Grantee or its solicitors have reasonably requested on or before the Closing Date. Registration ARTICLE 3 GENERAL The Grantee may prepare and register on title to the Property, at the Grantee's cost, a notice in respect of this Agreement (the "Notice"). Upon expiry of this Agreement, the Grantee shall arrange for the discharge from title to the Property of such Notice at the Grantee's cost. 3.2 Planning Act This Agreement and the completion of any transaction of purchase and sale contemplated by this Agreement are subject to compliarice with Section 50 of the Planning Act (Ontario). 3.3 Further Assurances Each of the paities hereto shall promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such fu1ther acts, documents and things as the other paities to this Agreement may reasonably require from time to time for the purpose of giving effect to this Agreement and shall use reasonable efforts and take all such steps as may be reasonably within their power to imple1'nentto their full extent the provisions of this Agreement. 3.4 Waiver, Amendment Except as expressly provided in this Agreement, no amendment or waiver of this Agreement shall be binding unless executed in writing by the pmiy to be bound by it. No waiver of any provision of this Agreement shall constitute a waiver of any other provision nor shall any waiver of any provision of this Agreement constitute a continuing waiver unless otherwise expressly provided. 3.5 Successors and Assigns All of the covenants and agreements contained in this Agreement will be binding upon and will enure to the benefit of and be enforceable by the paities hereto and their respective successors and assigns. This Agreement is intended to run with title to the Prope1ty and will be binding on the Grantor's successors in ititerest as owner of the Property or any pa1t thereof or interest therein. 38997-2001 25099613.5
- 7 -3.6 Agreement Runs with Land The Grantor acknowledges tliat the provisions of this Agreement run with title to the Property, and the Grantor covenants not to sell, transfer or otherwise alienate the Property or any part thereof unless such transferee agrees to be bound by the terms of this Agreement. 3.7 (a) Notices Addresses for Notice. Any notice, demand, statement, request or other communication (in this Agreement referred to as "notice'') required or permitted to be given under this Agreement shall be in writing and shall be deemed to have beei1 sufficiently and effectually given if signed by or on behalf of the party giving the notice and personally delivered, sent by facsimile or email or mailed by registered prepaid post to the intended recipient addressed as follows: (A) in the case of the Grantor, addressed to it at: • Attention: Facsimile No.: Email: • (•) • • (B) and in the case of the Grantee addressed to it at: The Corporation of the City of Pickering One The Esplanade Pickering Ontario, LIV 6K7 Attention: Paul Bigioni, Director, Corporate Services and City Solicitor Telephone: (905) 420-4660 ext. 2048 Email: pbigioni@pickering.ca (b) Receipt of Notice. Any notice given as aforesaid shall be conclusively deemed to have been received on the date of such personal delivery or if sent by facsimile or email transmission before 5 :.00 p.m. (local time of the recipient) on a Business Day on the date of such transmission (and if not then on the next Business Day) or if sent by registered mail on the third (3rd) Business Day following the mailing thereof, as the case may be. If a notice is sent by facsimile or email, a copy thereof shall be sent on the same day by ordinary mail, postage prepaid or personal delivery. In the event of a labour dispute, postal interruption or a reasonable anticipation thereof, all notices required to be given under this Agreement shall be sent by facsimile or email transmission or personally delivered. ( c) Change bf Address. Any party may from time to time change its address under this Section by notice to the other party given in the manner provided by this Section. 3 8997-200 I 25099613 .5
- 8 -3.8 Counterparts This Agreement may be executed in counterparts, each of which shall be an original and all s.uch counterpaits taken together shall constitute one and the same instrument. Delivery of an executed counterpait of this Agreement by facsimile transmission or by electronic delivety in pottable document format (".pdf'') shall be equally effective as delive1y of a ma11ually executed counterpa1tthereof. 38997-2001 25099613.5
-9 -lN WITNESS 'WHEREOF the parties have executed this Agreement effective as of the date first written above. Per:_-J£.~-{,.,l!--.-------,:=---,.-~-=;;-------Name: Title: Per: --------~~~~------Name: Title: I/We have the authority to bind the Corporation Y OF PICKERING Per: ____ _JW/L'L.f)~~~d----,-----Namc: Title: Per: ------------------Name: Title: I/ We have the authority to bind the Corporation 38997-2001 25099613,5 .
-10 -SCHEDULER PURCHASER'S ENVIRONMENTAL INDEMNITY AND COVENANT NOT TO SUE TO: The Corporation of the City of Pickering (the "Vendor") AND TO: <<Purchaser's Solicitor Name and/or Law Finn Name>>, its solicitors RE: <<Purchaser(s) Name>> (the "Purchaser") purchase from the Vendor of the property legally described as <<Legal Description>>, being <<the whole OR pait>> of PIN <<Enter·PIN>> (LT) (the "Property") pursuant to an Agreement of Purchase and Sale between the Purchaser, as purchaser, and the Vendor, as vendor, accepted <<Date Offer Accepted>>, as may be amended from time to time (the "Purchase Agreement") In consideration the closing of the Transaction and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged: 1-. The Purchaser agrees to accept, assume and take title the Property and any improvement thereon in an "As Is Where ls" condition in accordance with Section 5 of the Purchase Agreement. 2. The Purchaser acknowledges and hereby agrees to indemnify and save hannless the Vendor and its employees, directors, officers, appointees and agents from, any and all costs (including legal; consultant and witness costs and fees), claims, demands, actions, prosecutions, administrative hearings, fines, losses, damages, penalties, judgments, awards (including awards of costs) and liabilities (including sums paid in settlement of claims), that may arise as a result of the condition of the Property, the presence of Hazardous Substances or Contaminants in, on or under the Lands, the Buildings or any structure or paved surface, or in any· environmental medium (including, but not limited to, the soil, groundwater, or soil vapour on or under, or emanating from the Property), any order issued by any Authority in connection with the condition of the Prope1ty, or any loss, damage, or injury caused either directly or indirectly as a result of the condition of the Prope1ty including, without limitation, non-compliance with Environmental Law or the existence of any Hazardous Substance or Contaminant. Without limittng the generality of the foregoing, this indemnification sh.all specifically cover costs incu1Ted, from and after the Closing Date, in connection with any claim for personal injury and/or death, property damage, investigation of site conditions and/or any clean-up, remedial, removal, monitoring or restoration work required by any federai, provincial, or local government agency or political subdivision because of the presence of Hazai·dous Substances, in, on or under the Lands, the Buildings or any environmental medium, structure or paved su1face or emanating therefrom. 38997-2001 25099613.5
-11 -3. The Purchaser covenants and agrees that, effective as oftl-ie Closing Date, the Purchaser forever releases and covenants not to sue the Vendor and its employees, directors, officers, appointees and agents with respect to anything arising out of the environmental or any other condition of the Property or the presence of Hazardous Substances or Contaminants in, on, under, or emanating from or onto the Propetty, regardless of whether such environmental conditions or the presence of Hazardous Substances or Contaminants is known or unknown by the Purchaser and regardless of whether such condition is set forth in the Prope1ty Documents, the Purchaser's Reports or any other repo1t, document or information discovered during the course of the Purchaser's due diligence or otherwise. The foregoing release and covenant not to sue shall apply to all claims at law or in equity, including, but not limited to, claii11s or causes of action for personal injmy or death, prope1ty damage, statutory claims under Environmental Laws and claims for contribution. 4. This Indemnity shall not merge but shall survive the Date of Closing and shall be continuing obligation of the Purchaser. 5. Unless otherwise defined herein, all capitalized terms used herein have the meaning ascribed to them in the Purchase Agreement. 6. The provisions of this Purchaser's Environmental Indemnity and Covenant Not to Sue shall enure to the benefit of the Vendor an.d its successors and assigns and shall be binding upon the Purchaser and its successors and permitted assigns. DATED as ofthe ____ day of <<Month>>, <<Year>>. 38997-2001 25099613.5 <<PURCHASER(S) NAME>> Pet: Per: Name: <<Individual Signing Documents for Corporation>> Title: <<Title>> Name: <<Individual Signing Documents for Corporation, if thei•e is a second person>> Title: <<Title>> I/We have the authority to bind the Corporation.
.-, ' ' ) . AMENDMENT TO AGREEMENT OF PURCHASE AND SALE . THIS AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this "Amending Agreement") made as of the 17th day of April, 2018. ·. BETWEEN: THE CORPORATION OF THE CITY OF PICKERING (the "Vendor") -and.: KUBOTA CANADA LTD. (the "Purchaser") OF THE FIRST PART OF THE SECOND. PART WHEREAS the Purchaser has delivered to the Vendor an e~ecuted agreement of purchase and sale dated March 19, 2018 (the "Purchase Agreement"), pursuant to which the Purchaser has offered to purchase the Property on th~ terms and conditions set out therein. AND WHEREAS in this Amending Agreement all capitalized terms which have been defined in the Purchase Agr~ement and are not otherwise defined in . this Amending Agreement shall.have the meanings given to them in the Purchase Agreement. AND WHEREAS the Vendor and the Purchaser have mutually agreed to amend certain terms in the Purchase Agreement, as set out herein. · NOW THEREFORE in consideration of the mutual covenants and agreements set forth in this Amending Agreement and the sum of Ten Dollars ($10.00) oflawful inoney of Canada now paid by each of the parties to the other and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto hereby covenant and agree as follows: 38997-2001 25376259.1
-2 -1. Interpretation All references to Sections and Schedules, unless otherwise provided herein, are references to Sections and Schedules of the Purchase Agreement. In the event of any conflict or inconsistency between the Purchase Agreement and this Amending Agreement, the provisions of this Amending Agreement shall prevail. It is agreed that, as of the date hereof, the Purchase Agreement is amended by the provisions of this Amending Agreement. After giving effect to this Amending Agreement, all references to the "Agreement" in the Purchase Agreement and all other relevant documents shall refer to the Purchase Agreement, as amended by this Amending Agreement. 2. (a) 3. Amendment Section 25.01 of the Purchase Agreement shall be deleted in its ·entirety ,and replaced with: "25.01 Signature of this Agreement by the Purchaser and the submission thereof to the Vendor constitutes an offer under seal, which is irrevocable for a period expiring on June 18, 2018 and open/or acceptance by the Vendor at any time on or before. I I: 59 p.m. on June 18, 2018. This offer, once accepted on the Execution Date, constitutes a binding contract of purchase and sale. This offer may be made and accepted by electronic transmission, including electronic signature. The Purchaser, in submitting this offer, acknowledges that there has been no promise or representation or assurance given to the Purchaser that any of the terms and conditions in this offer are or will be acceptable to the Vendor." Confirmation of Purchase Agreement The Purchase Agreement, as amended by this Amending Agreement, is hereby confirmed in all respects, including, without limitation, that time shall continue to be of the essence. 4. Counterparts This Amending Agreement may be executed by the parties in separate counterparts and delivered by facsimile or electronic. transmission each of which when so executed and delivered shall be an original, but all such counterparts and facsimiles or electronic transmissions shall together constitute one and the same instrument. 5. Governing Law This Amending Agreement shall be construed and enforced in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and shall be treated in. all respects as an Ontario contract. 38997-200125376259.1
·---...,, -3 -6. Successors and Assigns This Amending Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall enure to the benefit of and ·be enforceable by the parties hereto and their respective successors and permitted assigns-subject to and in accordance with the terms ·and conditions of the Purchase Agreement. [Signature page to follow] . I 38997-200125376259.1
SECOND AMENDMENT TO AGREEMENT OF PURCHASE.AND SALE THIS SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this "Amending Agreement") made as of the 7th day of May, 2018. BETWEEN: THE CORPORATION OF THE CITY OF PICKERING (the "Vendor") -and-KUBOTA CANADA LTD. (the "Purchaser") OF THE FIRST PART OF THE SECOND PART WHEREAS the Purchaser has delivered to the Vendor an executed agreement of purchase and sale dated March 19, 2018, as amended by amendment to agreement of purchase and sale dated April 17, 2018 ( collectively ·and as may be further _amended from time to time, the "Purchase Agreement"), pursuant to which the Purchaser has offered to purchase the Property on the terms and conditions set out therein. AND WHEREAS in this Amending Agreement all capitalized terms which have been defined in the Purchase Agreement and are not otherwise defined in this Amending Agreement shall have the meanings given to them in the Purchase Agreement. AND WHEREAS the Vendor and the Purchaser have mutually agreed to amend certain terms in the Purchase Agreement, as set out herein. NOW THEREFORE in consideration of the mutual covenants and agreements set forth in this Amending Agreement and the sum of Ten Dollars ($10.00) oflawful money of Canada now paid by each of the parties to the other and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto hereby covenant and agree as follows: 38997-2001 25536934.1
-2 -1. Interpretation All references to Sections and Schedules, unless otherwise provided herein, are references to Sections and Schedules of the Purchase Agreement. In the event of any conflict or inconsistency between the Purchase Agreement and this Amending Agreement, the provisions of this Amending Agreement shall prevail. It is agreed that, as of the date hereof, the Purchase Agreement is amended by the provisions of this Amending Agreement. After giving effect to this Amending Agreement, all references to the "Agreement" in the Purchase Agreement and all other relevant documents shall refer to the Purchase Agreement, as amended by this Amending Agreement. · ,t' ·:.· 2. (a) Amendment Section 2.02 of the Purchase Agreement shall be deleted in its entirety and replaced with: "2.02. (a) The Purchase Price shall be calculated by multiplying the total area of the Lands in acres by a per acre price of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) per acre, subject to the SWM Price Reduction. It is estimated that the area of the Lands is 5 0. 0 acres more or less, which would result in a Purchase Price of FIVE MILLION DOLLARS ($5,000,000.00) subject to the SWM Price Reduction. Prior to Closing the area of the Ancillary Parcel shall be conclusively determined by a reference plan to be delivered by the Vendor, in consultation with the Purchaser, not less than five (5) days prior to the Closing Date. (b) The parties acknowledge that the Ancillary Parcel includes lands that show on Seaton Neighbourhood Plan 21 -Phase 1 to be required for a storm water management facility with an area of 2.94 acres (the "SWM Facility'). The Purchaser and the Vendor agree to reduce the Purchase Price of the Property by an amount equal to the area 'of the SWM Facility multiplied by $50,000/acrefor a product of $147,000 (the "SWM Price Reduction'). " (b) The final paragraph of Section 5. 02 of the Purchase Agreement shall be deleted in its entirety and replaced with: "The Vendor shall have thirteen (13) Business Days from receipt of the Environmental Objection to make its election under (a), (b), (c) or (d) above by notice in writing to the Purchaser and in the event the Vendor fails to make an election within said thirteen (13) Business Day period, the Vendor will be deemed to have elected option (d) above. The Purchaser shall have seven (7) days from the date of the Vendor's election or deemed election under (d) above to elect, by notice in writing to the Vendor, to.terminate or complete as per paragraph (d) above and in the event the Purchaser fails to make an election within said seven (7) day period 38997-2001 25536934.1
3. -3 -ihe Purchaser shall be deemed to have elected to complete the Transaction without adjustment to _the Purchase Price." Confirmation of Purchase Agreement The Purchase Agreement, as amended by this Amending Agreement, is hereby confirmed in all respects, including, without limitation, that time shall continue to be of the essence. 4. Counterparts This Amending Agreement may be executed by the parties in separate counterparts and delivered by facsimile or electronic transmission each of which when so executed and delivered shall be an original, but all such counterparts and facsimiles or electronic transmissions shall together constitute one and the same instrument. 5. Governing Law This Amending Agreement shall be construed and enforced in accordance with the , laws of the Province of Ontario and the laws of Canada applicable therein and shall be treated in all respects as an Ontario contract. 6. Successors and Assigns This Amending Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall enure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns subject to and in accordance with the terms and conditions of the Purchase Agreement. [Signature page to follow] 3899702001 25536934, 1
-4 -IN WITNESS WHEREOF the parties have executed this Amending Agreement as of the date first above written 38997-2001 25536934.1 THE CORPORATION OF THE CITY OF PICKERING By: ~ Name Tony Prevedel Title Chief Administrative Officer By: -----------------Name Title I/We have authority to bind the Corporation KUBOTA CANADA INC. By: -----------------Name Title By: -----------------Name Title I/We have authority to bind the Corporation
THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE THIS THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this "Amending Agreement") made as of the 27th day of August, 2018. BETWEEN: THE. CORPORATION OF THE CITY OF PICKERING (the "Vendor") ~and~ KUBOTA CANADA LTD. (the "Purchaser") OF THE FIRST PART OF THE SECOND PART' WHEREAS the Purchaser has delivered to the Vendor an executed agreement of purchase and sale dated March 19, 2018, as amended by amendments to agreement of purchase and sale dated April 17, 2018 and May 7, 2018 (collectively and as may be further amended from time to time, the "Purchase Agreement"), pursuant to which the Purchaser has offered to purchase the Property on the terms and conditions set out therein. AND WHEREAS in this Amending Agreement all capitalized terms which have been defined in the Purchase Agreement and are not otherwise defined in this Amending . Agreement shall have the meanings given to them in the Purchase Agreement. AND WHEREAS the Vendor and the Purchaser have mutually agreed to amend certain terms in the Purchase Agreement, as set out herein. NOW THEREFORE in consideration of the mutual covenants and agreements set forth in this Amending Agreement and the sum of Ten Dollars ($10.00) of lawful money of Canada now paid by each of the parties to the other anc;l for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto hereby covenant and agree as follows: 38997-200 I 26109574. l
-2-1. Interpretation All references to Sections and Schedules, unless otherwise provided herein, are references to Sections and Schedules of the Purchase Agreement. In the event of any conflict or inconsistency between the Purchase Agreement and this Amending Agreement, the provisions of this Amending Agreement shall prevail. It is agreed that, as of the date hereof, the Purchase Agreement is amended by the provisions of this Amending Agreement. After giving effect to this Amending Agreement, all references to the "Agreement" in the Purchase Agreement and all other relevant documents shall refer to the Purchase Agreement, as amended by this Amending Agreement. 2. (a) 3. Amendment Section 1.0l(nn) of the Purchase Agreement shall be deleted in its entirety and replaced with: " "Inspection Period" means that period of time beginning on the Execution Date and expiring at 5:00 p.m. (Toronto time) on August 31, 2018." Confirmation of Purchase Agreement The Purchase Agreement, as amended by this Amending Agreement, is hereby confirmed in all respects, including, without limitation, that time shall continue to be of the essence, 4. Counterpai"ts This Amending Agreement may be executed by the parties in separate counterparts and delivered by facsimile or electronic transmission each of which when so executed and delivered shall be an original, but all such counterparts and facsimiles or electronic transmissions shall together constitµte one and the same instrument. 5. Governing Law This Amending Agreement shall be construed and enforced in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and shall be treated in all respects as an Ontario contract. . 6. Successors and Assigns This Amending Agreement shall be binding -upon the parties hereto and their respective successors and assigns and shall enure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns subject to and in accordance with the terms and conditions of the Purchase Agreement. [Signature page to follow] 38997-200 l 26109574. I
IN WITNESS WHEREOF the parties have executed this Amending Agreement as of the d.ate first above written 38997-2001 26109574.1 THE CORPORATION OF THE CITY OF PICKERING By: ------------------' Name Title By: ----------------Name Title I/We have authority to bind the Corporation L..TJ) KUBOTAc::L-?' By: lcV/7= A__ By: Name Rohe.rt H'i<\<~r "=\. Title Prei; ole"t ----------------Name Title I/We have authority to bind the Corporation
IN WITNESS WHEREOF the parties have executed this Amending Agreement as of the date first above written 38997-2001 26109574.1 THE CORPORATION OF THE CITY OF PICKERING By: ----------------Name Title I/We have authority to bind the Corporation KUBOTA CANADA INC. By: -----,---------------Name Title By: -----------------Name Title I/We have authority to bind the Corporation
FOURTH AMENDMENT TO AGREEMENT OF PURCHASE AND SALE THIS FOURTH AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this "Amending Agreement") made as of the 3 pt day of August, 2018. BETWEEN: THE CORPORATION OF THE CITY OF PICKERING (the "Vendor") -and-KUBOTA CANADA LTD. (the "Purchaser") OF THE FIRST PART OF THE SECOND PART WHEREAS the Purchaser has delivered to the Vendor an executed agreement of purchase and sale dated March 19, 2018, as amended by amendments to agreement of purchase and sale dated April 17, 2018,. May 7, 2018 and August 27, 2018 (collectively and as may be further amended from time to time, the "Purchase Agreement"), pursuant to which the Purchaser has offered to purchase the Property on the terms and conditions set out therein. AND WHEREAS in this Amending Agreement all capitalized terms which have been defined in the Purchase Agreement ,and are not otherwise defined in this Amending Agreement shall have the meanings given to them in the Purchase Agreement. AND WHEREAS the Vendor and the Purchaser have mutually agreed to amend certain terms in the Purchase Agreement, as set out herein. NOW THEREFORE in consideration of the mutual covenants and agreements set forth in this Amending Agreement and the sum of Ten Dollars ($10. 00) of lawful money of Canada now paid by each of the parties to the other and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto hereby covenant and agree as follows: 38779-2001 26128553.1
-2 -1. Interpretation All references to Sections and Schedules, unless otherwise provided herein, are references to Sections and Schedules of the Purchase Agreement. In the event of any conflict or inconsistency between the Purchase Agreement and this Amending Agreement, the provisions of this Amending Agreement shall prevail. It is agreed that, as of the date hereof, the Purchase Agreement is amended by the provisions of this Amending Agreement. After giving effect to this Amending Agreement, all references to the "Agreement" in the Purchase Agreement and all other relevant documents shall refer to the Purchase Agreement, as amended by this Amending Agreement. 2. (a) 3. Amendment Section l.0l(nn) of the Purchase Agreement shall be deleted in its entirety and replaced .with: " "Inspection Period" means that period of time beginning on the Execution Date and expiring at 5:00 p.m. (I'oronto time) on September 28, 2018." Confirmation of Purchase Agreement The Purchase Agreement, as amended by this Amending Agreement, is hereby confirmed in all respects, including, without limitation, that time shall continue to be of the essence. 4. Counterparts This Amending Agreement may be executed by the parties in separate counterparts and delivered by facsimile or electronic transmission each of which when so executed and delivered shall be an original, but all such counterparts and facsimiles or electronic transmissions shall together constitute one and the same instrument. 5. Governing Law This Amending Agreement shall be construed and enforced in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and shall be treated in all respects as an Ontario contract. 6. Successors and Assigns This Amending Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall enure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns subject to and in accordance with the terms and conditions of the Purchase Agreement. [Signature page to follow] 38779-2001 26128553.1
- 3 -. IN WITNESS WHEREOF the parties have executed this Amending Agreement as of the date first above written · 38779-2001 26128553.1 THE CORPORATION OF THE CITY OF PICKERING By: __ --cc=~+#:YtA.~~~--:-h'-----Name Title By: -----------------Name Title I/We have authority to bind the Corporation KUBOTA CANADA INC. By: -----------------Name Title By: -----------------Name Title I/We have authority to bind the Corporation
FIFTH AMENDMENT TO AGREEMENT OF PURCHASE AND SALE THIS FIFTH AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this "Amending Agreement") made as of the 4st day of September, 2018. BETWEEN: THE CORPORATION OF THE CITY OF PICKERING (the "Vendor") -and-KUBOTA CANADA LTD. (the "Purchaser") OF THE FIRST PART OF THE SECOND PART WHEREAS the Purchaser has delivered to the Vendor an executed agreement of purchase and sale dated March 19, 2018, as amended by amendments to agreement of purchase and sale dated April 17, 2018, May 7, 2018 and August 27, 2018 and amendment by email between counsel dated August 31, 2018 ( collectively and as may be further amended from time to time, the "Purchase Agreement"), pursuant to which the Purchaser has offered to purchase the Property on the terms and conditions set out therein. AND WHEREAS in this Amending Agreement all capitalized terms which have been defined in the Purchase Agreement and are not otherwise defined in this Amending Agreement shall have the meanings given to them in the Purchase Agreement. AND WHEREAS the Vendor and the Purchaser have mutually agreed to amend certain terms in the Purchase Agreement, as set out herein. NOW THEREFORE in consideration of the mutual covenants and agreements set forth in this Amending Agreement and the sum of Ten Dollars ($10.00) oflawful money of Canada now paid by each of the parties to the other and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto hereby covenant and agree as follows: 38779-2001 26128553.1
-2 -1. Interpretation All references to Sections and Schedules, unless otherwise provided herein, are references t9 Sections and Schedules of the Purchase Agreement. In the event of any conflict or inconsistency between the Purchase Agreement and this Amending Agreement, the provisions of this Amending Agreement shall prevail. It is agreed that, as of the date hereof, the Purchase Agreement is amended by the provisions of this Amending Agreement. After giving effect to this Amending Agreement, all references to the "Agreement" in the Purchase Agreement and all other relevant documents shall refer to the Purchase Agreement, as amended by this Amending Agreement. 2. (a) 3. Amendment Section 1.0l(nn) of the Purchase Agreement shall be deleted in its entirety and replaced with: " "Inspection Period" means that period of time beginning on the Execution Date and expiring at 5:00 p.m. (Toronto time) on September 28, 2018." Confirmation of Purchase Agreement The Purchase Agreement, as amended by this Amending Agreement, is hereby confirmed in all respects, including, without limitation, that time shall continue to be of the essence. 4. Counterparts This Amending Agreement may be executed by the parties in separate counterparts and delivered by facsimile or electronic transmission each of which when so executed and delivered shall be an original, but all such counterparts and facsimiles or electronic transmissions shall together constitute one and the same instrument. 5. Governing Law This Amending Agreement shall be construed and enforced in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and shall be treated in all respects as an Ontario contract. 6. Successors and Assigns This Amending Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall enure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns subject to and in accordance with the terms and conditions of the Purchase Agreement. [Signature page to follow] 38779-200 l 26128553. l
- 3 -IN WITNESS WHEREOF the parties have executed this Amending Agreement as of the date first above written 38779-2001 26128553.1 THE CORPORATION OF THE CITY OF PICKERING By: -----------------Name Title I/We have authority to bind the Corporation KUBOTA CANADA INC. By: By: -----------------Name Title -----------------Name Title I/We have authority to bind the Corporation
- 3 -IN WITNESS WHEREOF the parties have executed this Amending Agreement as of the date first above written 38779-2001 26128553.1 THE CORPORATION OF THE CITY OF PICKERING By: ----------------Name Title By: ----------------Name Title I/We have authority to bind the Corporation KUBOTA CANADA LTD. By: ----------------Name Title I/We have authority to bind the Corporation