SIDE AGREEMENT RE VTB
Exhibit
99.10
SIDE
AGREEMENT RE VTB
MEMORANDUM
OF AGREEMENT made as of the 31st day of October, 2006.
B
E T W E
E N:
DOMGROUP
LTD.,
a
corporation incorporated under the laws of the Province of Ontario,
(hereinafter
referred to as the "Chargee"),
OF
THE
FIRST PART,
–
and
–
DUFLAW
REALTY LTD., a corporation incorporated under the laws of the
Province of Ontario, in its capacity as general partner for and on behalf
of
DUFLAW
LIMITED PARTNERSHIP, a partnership formed under the laws of the
Province of Ontario,
(hereinafter
referred to as the "Chargor"),
OF
THE
SECOND PART.
WHEREAS
the Chargee and Lanterra Realty Inc. have entered into an agreement of purchase
and sale made as of the 28th day
of June, 2006 (such agreement, as amended, supplemented and/or restated to
the
date hereof, the "Purchase Agreement") pursuant to which
Lanterra Realty Inc. agreed to purchase from the Chargee, and the Chargee
agreed
to sell to Lanterra Realty Inc., the Subject Assets;
AND
WHEREAS Lanterra Realty Inc. has assigned its interest in the Purchase Agreement
to the Chargor by agreement made as of October 31, 2006;
AND
WHEREAS pursuant to the Purchase Agreement, the Chargee agreed to grant to
the
Chargee a Charge/Mortgage (the "Charge") in the principal
amount of $9,800,000, in respect of respect of the Property (as defined
below);
AND
WHEREAS in furtherance of the Purchase Agreement, the Chargee has agreed
to
execute and deliver this agreement in respect of the Charge;
NOW
THEREFORE in consideration of the mutual covenants and agreements hereinafter
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby covenant
and
agree as follows:
1. Definitions. Unless
otherwise defined herein, all capitalized terms used in this agreement (the
"Agreement") shall have the respective meanings ascribed to
them in the Purchase Agreement. In this Agreement,
"Property" means the property municipally known as ▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and more fully
described in Schedule A hereto.
2. Agreement
to Postpone. The Chargee hereby agrees to postpone the
Charge to a charge on the Property in favour of ▇▇▇▇▇▇▇ Investments
Limited/Estate of ▇▇▇ ▇▇▇▇▇▇ (and/or as they may direct) in an amount not
to
exceed $4,000,000.00, such charge to be granted in connection with the buyout
of
the lease, dated the 1st day
of June, 1965, between ▇▇▇▇▇
Developments Limited (a predecessor in interest of the Chargee), as landlord,
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (a
predecessor in interest of ▇▇▇▇▇▇▇ Investments Limited and the Estate of
▇▇▇
▇▇▇▇▇▇, as tenant, as amended by an amending agreement made as of the
23rd
day of March, 1966, in respect of
premises, described in the
said lease, located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the
"Shoppers Drug Mart Ground Lease"), provided that, as a
condition to granting such postponement: (i) the Shoppers Drug Mart Ground
Lease
shall have been terminated; (ii) any registrations in respect of the Shoppers
Drug Mart Ground Lease shall have been discharged or released from title
to the
property; and (iii) the sublease dated the 1st day
of September, 1970 between ▇▇▇
▇▇▇▇▇▇ (a predecessor in interest of the Estate of ▇▇▇ ▇▇▇▇▇▇) and ▇▇▇▇▇▇▇
Investments Limited, as sublandlords and ▇▇▇▇▇▇▇ Stores Limited (a
predecessor in interest of Shoppers Drug Mart, a Division of Imasco Retail
Inc.), as subtenant, as amended
by
a sublease amending agreement made as of the 27th
day of October, 1987 and by a second sublease
amending
agreement made as of the 21st
day of April, 1993, shall have
been assigned by the sublandlords thereunder to the Chargor.
4. Successors
and Assigns. This Agreement shall enure to the benefit
of and shall be binding upon the parties hereto and their respective successors
and assigns.
5. Governing
Law. This 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. Counterparts. This
Agreement may be executed in several counterparts and by facsimile transmission
of an originally executed document, each of which shall be deemed to be an
original, and all such counterparts shall constitute one and the same
instrument.
7. Headings,
Extended Meanings. The headings in this Agreement are
inserted for convenience of reference only and shall not constitute a part
hereof and are not to be considered in the interpretation hereof. In
this Agreement, words importing the singular include the plural and vice
versa; words importing the masculine gender include the feminine and
vice versa; and words importing persons include firms or corporations
and vice versa.
- 2
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IN
WITNESS WHEREOF the parties have executed this Agreement as of the date first
mentioned.
|
DOMGROUP
LTD.
|
|
|
By: /s/
▇.▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title: President
and Secretary
|
|
|
I
have authority to bind the Corporation
|
|
|
DUFLAW
REALTY LTD., in its capacity
as
general partner for and on behalf of
DUFLAW
LIMITED PARTNERSHIP
|
|
|
By: /s/
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Title: President
|
|
|
I
have authority to bind the Corporation
|
- 3
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SCHEDULE
A
LEGAL
DESCRIPTION
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
PIN
# 10230-0106(LT)
Part
of
▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ as in Instrument
No.
NY246263, except Instrument ▇▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ (formerly in the
City
of North York).
Being
the
whole of the said PIN.
Land
Titles Division of the Toronto Registry Office No. 66.
▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
PIN
# 10230-0108(LT)
Part
of
▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ as in Instrument
Nos. NY277333 and NY358876, except Instrument ▇▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
(formerly in the City of North York).
Subject
to Instrument No. NY358876.
Being
the
whole of the said PIN.
Land
Titles Division of the Toronto Registry Office No. 66.