EXHIBIT 10.14
FIRST AMENDING AGREEMENT
This first amending agreement (the "First Amending Agreement") is dated as of
the 1st day of October, 2003, between NEGOTIART in. "In Trust" (the
"Purchaser") and GSI LUMONICS INC. (the "Vendor").
WHEREAS the Vendor and the Purchaser entered into an agreement of purchase and
sale dated as of the 20th day of June, 2003 (the "Original Agreement ") in
respect of the Property described therein and known as ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ (formerly Kanata), Ontario.
AND WHEREAS the Original Agreement terminated as provided for therein upon
expiry of the Condition Date, being August 22, 2003, as provided for in the
Original Agreement.
AND WHEREAS the Purchaser and the Vendor wish to reinstate all of the terms of
the original agreement, subject only to specific amendments thereto as provided
for in this First Amending Agreement.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which are
acknowledged, the Purchaser and Vendor agree as follows:
1. The Original Agreement is hereby revived in accordance with all of its
terms and conditions, and the parties hereto acknowledge and agree that they are
bound to all of the provisions of the Original Agreement, subject only to such
amendments thereto as are specifically provided for herein. Any defined terms
not defined herein shall be interpreted in accordance with the corresponding
definitions of such terms in the Original Agreement.
2. Section 1 of the Original Agreement shall be deleted and replaced with
the following:
1. PURCHASE, PURCHASE PRICE AND CLOSING DATE. The Purchaser
agrees to purchase and the Vendor agrees to sell the Property on the
terms and conditions set out in this Agreement and for the purchase
price (the "Purchase Price") of THREE MILLION CANADIAN DOLLARS (CDN
$3,000,000.00) payable as follows:
(a) TWENTY-FIVE THOUSAND CANADIAN DOLLARS (CDN $25,000.00) which
was previously paid by the Purchaser on or about June 24, 2003
to the Vendor's agent, namely Colliers ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(Ontario) Inc. "In Trust" to be held as a deposit (the
"Deposit");
(b) SEVENTY-FIVE THOUSAND CANADIAN DOLLARS (CDN $75,000.00) by
cheque to be delivered by the Purchaser no later than October
2, 2003 paid to the Vendor's agent, namely Colliers ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ (Ontario) Inc. "In Trust" to be held as a deposit
(upon such payment being included within the meaning of the
term the "Deposit" for all purposes hereof);
(c) an amount of TWO HUNDRED THOUSAND CANADIAN DOLLARS (CDN
$200,000), plus applicable adjustments to be apportioned to
the Purchaser from and including October 1, 2003, payable to
the Vendor as it may direct by cash or certified cheque on the
completion of this Agreement; and
(d) The balance of the Purchase Price shall be payable to the
Vendor in accordance with the mortgage terms contained in
section 2 of this Agreement.
This transaction will be completed on or before the 1st day of
December, 2003 (the "Closing Date").
3. Section 2 of the Original Agreement shall be deleted and replaced with
the following:
2. MORTGAGE TERMS. Vendor agrees to provide to Purchaser, and
Purchaser accepts, a mortgage in the amount of the balance due on
closing as calculated pursuant to section 1 (as amended). The mortgage
shall otherwise be prepared substantially in accordance with the terms
and conditions set forth in the mortgage provisions attached as
Schedule "B" hereto ("Mortgage") and the terms and conditions in this
section 2. The Mortgage shall be for a term commencing on the Closing
Date and ending on the 30th day of November 2006. The full amount of
the Mortgage shall become due and payable upon the expiration of the
said term which shall be November 30th, 2006. No principal payment of
any kind is due from Purchaser on the Mortgage prior to November 30,
2006. The interest rate for the Mortgage shall be 0% if paid on or
before November 30th, 2006 and the Purchaser shall have the right to
prepay the Mortgage without bonus or penalty anytime up to and
including November 30, 2006. If Purchaser makes any such pre-payment
then Vendor agrees to give Purchaser a discount rate on the pre-paid
amount from the date that such pre-payment is made, through November
30, 2006, the maturity date of the Mortgage, at 2.5% annually.
If payment of the Mortgage is made (i) on or after November 30, 2006
through December 31, 2006 or (ii) during the cure period as contained
in Schedule B if Purchaser does not make the payment on November 30,
2006, interest would accrue at the rate of 6% per annum on the unpaid
balance.
Pursuant to the Mortgage the Purchaser shall be required, (1) by a date
not later than six months following the Closing Date, to deposit the
sum of TWO HUNDRED FIFTY THOUSAND CANADIAN DOLLARS (CDN $250,000) and
(2) by a date not later than twelve months following the Closing Date,
to deposit and additional sum of TWO HUNDRED FIFTY THOUSAND CANADIAN
DOLLARS (CDN $250,000) (the "Trust Fund") with the Vendor's solicitors,
in trust, (the "Trustee") to be held in an interest bearing account
pursuant to an
escrow agreement to be prepared in a form acceptable to the Vendor's
solicitors and the Purchaser's solicitors (both acting reasonably), and
otherwise providing as follows. The Purchaser may decrease the amount
that it deposits into the Trust by the amount of any Authorized
Expenditures (as defined below, in this paragraph). The Mortgage shall
provided that the Trust Fund may be paid to the Purchaser by the
Trustee from time to time, in whole or in part, to pay for improvements
to the Property similar in kind or nature to the improvements described
in a certain "Suggested Base Building Renovation Costs", as prepared by
architect ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and dated August 19, 2003 ("Authorized
Expenditures"). The term Authorized Expenditures shall not include, and
the Purchaser shall not be entitled to payment from the Trust Fund to
pay for ongoing maintenance or operating costs for the Property. The
Trustee shall be permitted and required to pay Trust Fund money to the
Purchaser in accordance with the foregoing only if the Vendor has
certified in writing to the Trustee that the Purchaser is not in
default of any of its obligations under the Mortgage at the time of any
such disbursement of Trust Fund money. In the event that the Purchaser
does default under the Mortgage, the Vendor shall be entitled to the
entire outstanding balance of the Trust Fund which balance shall be
applied by the Vendor as a payment received from the Purchaser on
account of amounts owing by the Purchaser to the Vendor pursuant to the
Mortgage.
Pursuant to the Mortgage, the Vendor shall be entitled to receive
quarterly updates on the progress of work undertaken pursuant to the
above-referenced improvements.
Vendor as mortgagee will grant a partial release on the lands, which
does not include the main building on the property, upon the earlier of
CDN$500,000 deposited in escrow or the expensiture on the building in
improvements not less than CDN$500,000.
Pursuant to the Mortgage, any and all leases which the Purchaser
proposes to enter into from time to time with respect to the Property
shall be subject to the Vendor's prior written approval, as mortgagee,
acting reasonably.
4. Section 3 of the Original Agreement shall be deleted.
5. Section 4(a) of the Original Agreement shall be amended by the deletion
of subsections subsection 4(a)(i) entitled "Due Diligence" and by the deletion
of subsection 4(a)(iii) entitled "Purchaser's Board Approval" and replaced with
the following:
iii. Purchaser's Board Approval: This Agreement (as amended) is
conditional upon the Purchaser obtaining final approval from the Board
of Directors of NegotiArt Inc. Unless the Purchase gives notice in
writing delivered to the Vendor not later than 5:00 P.M. Ottawa Time on
the 3rd day of October, 2003 that this condition is fulfilled, this
Agreement shall be null and void and the deposit
shall be returned to the Purchaser in full together with any interest
and without deduction.
6. Section 9 of the Original Agreement shall be deleted and replaced with
the following:
9. ADJUSTMENTS.
a. Utilities. The amount due on any gas, electric, water, sewer,
or other utility ▇▇▇▇ relating to the Property shall be paid by Vendor
up to and including the Closing Date, provided that on completion of
this Agreement (as amended) such amounts shall be apportioned to the
Purchaser from and including the 1st day of October, 2003 as
adjustments to the Purchase Price and payable by the Purchaser. Any
utility deposits made by Vendor shall be and remain the property of
Vendor. Vendor shall terminate all such utilities in its name as of the
Closing Date and shall have no further obligation to pay any such
utilities. Purchaser shall be responsible for notifying all utilities
and commencing their own service as of the Closing Date, in their name.
Purchaser shall be responsible for paying all utilities commencing on
the Closing Date.
b. Realty Taxes. All real estate taxes in respect to any calendar
year prior to the year in which the Closing Date occurs, including
penalties, interest and deferred payments, shall be paid by Vendor on
or before the Closing Date. Purchaser shall have the same obligation
for the period of time subsequent to the calendar year in which the
Closing Date occurs. On completion of this Agreement (as amended) all
real estate taxes attributable to the Property due and payable in the
calendar year in which the Closing Date occurs shall be prorated as of
the 1st day of October 2003 and apportioned to the Purchaser as
adjustments to the Purchase Price and payable by the Purchaser (the day
itself to be apportioned to the Purchaser). If the Closing Date shall
occur before the actual real estate taxes for the year of the Closing
Date (i.e., taxes due and payable in 2003) are known, the apportionment
of real estate taxes shall be upon the basis of the real estate taxes
for the immediately preceding year, provided that if the taxes for the
current year are thereafter determined to be more or less than the real
estate taxes for the preceding year (after any appeal in assessed
valuation thereof is concluded) Vendor and Purchaser promptly shall
adjust the proration of such real estate taxes and Vendor or Purchaser,
as the case may be, shall pay to the other any amount required as a
result of such an adjustment. If there is any refund of property taxes
payable in respect of 2003 or previous taxation years pursuant to an
appeal of the property as previously assessed and/or classified by the
City of Ottawa, the Ontario Property Assessment Corporation, or any
other agency or body with applicable jurisdiction, then such refund
shall prorated between Vendor and Purchaser based on the adjustment
date of October 1, 2003 as provided for above.
c. Insurance. Any insurance maintained by the Vendor will not be
transferred as of the Closing Date but will remain the responsibility
of the Vendor until the Closing Date. All risk of loss or damage with
respect to the Property shall pass from Vendor to Purchaser on the
Closing Date.
7. Section 12 of the Original Agreement shall be deleted and replaced with
the following:
12. CLOSING DELIVERIES OF THE PURCHASER. The Purchaser will on the
Closing Date deliver to the Vendor the balance due on closing by a
certified cheque or bank draft payable to the Vendor, or as the Vendor
may in writing direct; an undertaking to readjust; the GST certificate
referred to in Section 10, an executed mortgage in accordance with
section 2, Mortgage Terms, hereof in substantially the form of Schedule
"B" attached hereto, and such other documentation as may be reasonably
necessary and appropriate to complete the transaction contemplated in
this Agreement
8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF the parties have executed this Agreement.
NEGOTIART INC. "IN TRUST"
By: \s\ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: President
GSI LUMONICS INC.
By: \s\ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President & CFO