DISTRICT OF SQUAMISH, FULCRUM DEVELOPMENT (ASPEN … · LAND EXCHANGE AGREEMENT THIS AGREEMENT...

LAND EXCHANGE AGREEMENT

THIS AGREEMENT dated for reference June 8, 2006 is

BETWEEN:

DISTRICT OF SQUAMISH, Box 310, 37955 Second Avenue, Squamish, B.C. V8B 0A4

(the “District”)

AND:

FULCRUM DEVELOPMENT (ASPEN FIELDS) INC. (Inc. No. BC0625470), Box 335, Brackendale, B.C. V0N 1H0

(“Fulcrum”)

AND:

BEEDIE DEVELOPMENT CORPORATION, (Inc. #BC0703722), 5367 Kingsway Avenue, Burnaby, BC V5H 2G1

(“Beedie”)

WHEREAS, on the Completion Date as hereinafter defined, Beedie will be the beneficial owner of the Fulcrum Land and on the Completion Date, Fulcrum will be the registered owner of the Fulcrum Land. AND WHEREAS, it is intended that prior to the Completion Date, the District Land will be subdivided as hereinafter provided, into Parcel A and Parcel B, and that legal title to Parcel A will be transferred on the Completion Date into the name of the Beedie/Fulcrum Transferee and legal title to Parcel B will be transferred into the name of the Beedie Transferee. AND WHEREAS, it is intended that on the Completion Date, 80% of the beneficial interest in Parcel A and 100% of the beneficial interest in Parcel B will be transferred to Beedie or to a Beedie Permitted Assignee and the 20% of the beneficial interest in Parcel A will be transferred to Fulcrum. AND GIVEN THAT the District of the one part and Fulcrum and Beedie of the other part wish to enter into an agreement for the exchange of lands and other consideration THIS AGREEMENT is evidence that in consideration of the promises exchanged below and other good and valuable consideration paid by each party to the other (the receipt and sufficiency of which the parties each acknowledge), the District, Fulcrum and Beedie agree as follows:

H:\Hall\General\COUNCIL\ AGENDA Council Meeting\2006\0801\Land Exchange Agreement.Doc Jul 27, 2006 8:50 AM/C

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ARTICLE 1 - DEFINITIONS

1.1 Definitions – In this Agreement, in addition to the words defined in the recitals to it:

(a) “Beedie Permitted Assignee” means a corporation or corporations or a limited partnership or limited partnerships as Beedie shall select and which is or are controlled directly or indirectly by the same person or persons who control Beedie or a trust pursuant to which any one or more of Ryan Keith Beedie and/or any child or children of his is a beneficiary;

(b) “Beedie Transferee” means such corporation as Beedie shall select, provided that such corporation so selected by Beedie shall be controlled directly or indirectly by the same persons who control Beedie;

(c) Beedie/Fulcrum Transferee” means such corporation as Beedie shall select, provided that such corporation so selected by Beedie shall be controlled directly or indirectly by the same persons who control Beedie;

(d) “Beneficial Transfer” means a transfer or transfers transferring all of the beneficial interest of the Fulcrum Land to the District

(e) “Business Day” means a day other than a Saturday, Sunday or statutory holiday in B.C.;

(f) “Completion” means completion of the exchange of the District Land and the Fulcrum Land in accordance with Section 3.4;

(g) “Completion Date” means the date that is 21 days after all of the conditions precedent under Article 6 have been waived or satisfied except that if that date is not a Business Day, then the next Business Day thereafter;

(h) “Contaminants” means

(i) as defined in the Environmental Management Act, any biomedical waste, contamination, contaminant, effluent, pollution, recyclable material, refuse, hazardous waste or waste;

(ii) matter of any kind which is or may be harmful to human safety or health or to the environment; or

(iii) matter of any kind the storage, manufacture, disposal, emission, discharge, treatment, generation, use, transport, release, remediation, mitigation or removal of which is now or is at any time required, prohibited, controlled, regulated or licensed under any Environmental Laws;


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(i) “District Land” means the portion of Lot 37 excluding the Pump Station Area as shown

generally on the Lot 37 Site Plan;

(j) “District Land Permitted Encumbrances” means the subsisting conditions, provisos, restrictions, exceptions and reservations, including royalties, contained in the original grant from Crown, any Subdivision Charges or any other grant or disposition from the Crown and any liens, charges and encumbrances described in Schedule B;

(k) “District Transfer” means a transfer or transfers in registrable form transferring the estate in fee simple to Parcel A to Beedie/Fulcrum Transferee and Parcel B to Beedie Transferee;

(l) “District’s Solicitors” means Lidstone, Young, Anderson;

(m) “Execution Date” means the date of execution of this Agreement by the last of the parties to do so as indicated in the signature blocks below;

(n) “Environmental Laws” means any past, present or future, common law or principle, enactment, statute, regulation, order, bylaw or permit, and any requirement, standard or guideline of any federal, provincial or local government authority or agency having jurisdiction, relating to the environment, environmental protection, pollution or public or occupational safety or health;

(o) “Fulcrum Land” means the land and improvements thereon located on Pioneer Way, Squamish, B.C. and legally described as PID: 007-249-373, Lot 38, South East ¼ of Section 3, Township 50, Plan 18954;

(p) “Fulcrum Land Permitted Encumbrances” means the subsisting conditions, provisos, restrictions, exceptions and reservations, including royalties, contained in the original grant from Crown or any other grant or disposition from the Crown over any liens, charges and encumbrances described in Schedule A;

(q) “Fulcrum Transfer” means a transfer or transfers in registrable form transferring the estate in fee simple of the Fulcrum Land to the District;

(r) “LTO” means the Lower Mainland Land Title Office;

(s) “Lot 37” means the land located on Pioneer Way, Squamish, B.C. and legally described PID: 007-249-322, Lot 37 Except: Part Dedicated Road on Plan LMP37432; Section 3 Township 50 New Westminster District Plan 18954;

(t) “Lot 37 Site Plan” means the sketch plan of Lot 37 attached as Schedule D.


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(u) “Parcel A” means that part of the District Land identified as Parcel A on the Lot 37 Site

Plan, which will on the Completion Date be transferred into the name of the Beedie/Fulcrum Transferee;

(v) “Parcel B means that part of the District Land identified as Parcel B on the Lot 37 Site Plan, and which will on the Completion Date be transferred into the name of the Beedie Transferee;

(w) “Pump Station Area” means the approximately 10,000 square foot portion of Lot 37 shown generally on the Lot 37 Site Plan.

(x) “Purchasers” means Beedie and Fulcrum and” Purchaser” means any one of them;

(y) “Purchasers’ Solicitors” means Clark Wilson LLP;

(z) “Subdivision Charges” means any charges and encumbrances required to be registered in connection with the governmental approvals of the Subdivision Plan; and

(aa) “Subdivision Plan” means a plan of subdivision that will, upon registration in the LTO, subdivide Lot 37 to create the Pump Station Area, Parcel A and Parcel B as 3 separate parcels.

ARTICLE 2 - LAND EXCHANGE

2.1 Land Exchange – The Purchasers will purchase and the District will sell the District Land, free and clear of all liens, charges and encumbrances except for the District Land Permitted Encumbrances and, in exchange therefor, the Purchasers will sell, and the District will purchase, the Fulcrum Land, free and clear of all liens, charges and encumbrances except for the Fulcrum Land Permitted Encumbrances, all on the terms and conditions of this Agreement. It is understood and agreed that this is a straight land exchange and that no additional consideration will be required to be paid by one party to the other, other than the adjustments contemplated by Section 3.2 hereof.

ARTICLE 3 - TRANSFER

3.1 Title and Possession – On the Completion Date, the District will:

(a) convey the estate in fee simple to Parcel A to Beedie/Fulcrum Transferee in accordance with this Agreement, free and clear of all liens, charges and encumbrances except for the District Land Permitted Encumbrances;

(b) convey the estate in fee simple to Parcel B to Beedie Transferee in accordance with this Agreement, free and clear of all liens, charges and encumbrances except for the District Land Permitted Encumbrances; and


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(c) give vacant possession of the District Land to the Purchasers as their interests appear,

subject only to the District Land Permitted Encumbrances.

On the Completion Date, Beedie and Fulcrum will:

(d) cause to be conveyed the estate in fee simple of the Fulcrum Land to the District free and clear of all liens, charges and encumbrances except for the Fulcrum Land Permitted Encumbrances; and

(e) give vacant possession of the Fulcrum Land to the District, subject only to the Fulcrum Land Permitted Encumbrances.

3.2 Adjustments – All adjustments in respect of the District Land and the Fulcrum Land, both incoming and outgoing, usually the subject of adjustments between a vendor and a purchaser in connection with the purchase and sale of land, including adjustments of property taxes, utilities and rents must be made up to and including the Completion Date. If the District Land is not subject to property taxes during the calendar year of the Completion Date, Beedie and Fulcrum will pay to the District, by way of an additional adjustment to the Purchase Price, an amount equal to the adjustment that would have been made had property taxes been assessed on the District Land and paid in full by the District, using the then assessed value of Lot 37 allocated pro-rata to the District Land based on its area relative to the area of the Pump Station Area.

3.3 Closing Documents –

(a) No later than 5 days before the Completion Date, the Purchasers will cause the Purchasers’ Solicitors to deliver to the District’s Solicitors:

(i) the District Transfer, to be approved and executed by the District;

(ii) 2 copies of the District’s Statement of Adjustments, to be approved and executed by the District;

(iii) a copy of the Purchasers’ Statement of Adjustments, executed by the Purchasers;

(iv) statutory declarations of senior officers of Fulcrum, Beedie, the Fulcrum Transferee, the Beedie/Fulcrum Transferee and the Beedie Permitted Assignee, certifying that each of them is resident in Canada within the meaning of the Income Tax Act (Canada) and that the officer has made reasonable and prudent inquiries to determine the accuracy of the matters certified;

(v) the declarations in the form attached as Schedule C regarding the sale of 20% undivided beneficial interest in Parcel A to Fulcrum with Fulcrum as “purchaser” and the District as “vendor” under that document, executed by Fulcrum;


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(vi) the declaration in the form attached as Schedule C regarding the sale of an 80%

undivided beneficial interest in Parcel A and a 100% interest in Parcel B to a Beedie Permitted Assignee with the Beedie Permitted Assignee as “purchaser” and the District as “vendor” under that document, executed by Beedie.

(vii) the declaration in the form attached as Schedule C regarding the sale of the Fulcrum Land to the District with the District as “purchaser” and Beedie as “vendor” under that document, to be approved and executed by the District; and

(viii) such further deeds, acts, things, certificates and assurances as may be requisite in the reasonable opinion of Beedie’s Solicitor or the District’s Solicitor for more perfectly and absolutely completing the transactions contemplated by this Agreement in accordance with the terms and conditions of this Agreement.

No later than 5 days before the Completion Date, the District will cause the District’s Solicitors to deliver the Fulcrum Transfer and the Beneficial Transfer to the Purchasers’ Solicitors, to be approved and executed by Fulcrum.

(b) On or before the Completion Date, the District will cause the District’s Solicitors to deliver to the Purchasers’ Solicitors the District Transfer, the District’s Statement of Adjustments, a copy of the Subdivision Plan, a copy of the Subdivision Charges and the other documents, certificates and assurances referred in section 3.3(a), each duly executed and in registrable form, as applicable, on behalf of the District.

(c) On or before the Completion Date, the Purchasers will cause the Purchasers’ Solicitors to deliver to the District’s Solicitors, the Fulcrum Transfer and the Beneficial Transfer.

3.4 Completion – On or before the Completion Date, forthwith after receipt of the documents referred to in section 3.3(b) from the District’s Solicitors, the Purchasers will cause the Purchasers’ Solicitors to arrange a meet at the LTO of its agents with the agents for the District’s Solicitors and the following documents will be filed as an all or nothing concurrent application in the LTO:

(a) the District’s Solicitors will firstly file, the Subdivision Plan, the Subdivision Charges, the Fulcrum Transfer and the Beneficial Transfer, and all necessary ancillary documents to effect the completion of the registration of such documents including without limitation any required Property Transfer Tax Returns;

(b) immediately thereafter and concurrently therewith the Purchasers’ Solicitors will file the District Transfer and all necessary ancillary documents to effect the completion of the registration of such document including without limitation any required Property Transfer Tax Returns; and


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(c) forthwith upon the receipt of a satisfactory post filing index search the party required to

pay the net adjustment under section 3.2 will deliver a certified cheque to the other party for the adjustment amount.

Notwithstanding anything to the contrary provided in this Agreement, the District shall be responsible to pay any GST and all Property Transfer Tax payable with respect to the transfer of the Fulcrum Land to the District and the District shall pay all filing fees and charges which is payable in connection with the filing in the LTO of the documents referred to in Section 3.4(a) hereof.

Notwithstanding anything to the contrary provided in this Agreement, the Purchasers shall be responsible to pay any GST payable with respect to the transfer of the District Land to the Purchasers and the Purchasers shall pay all filing fees and charges and all Property Transfer Tax which is payable in connection with the filing in the LTO of the documents referred to in Section 3.4(b) hereof.

The parties agree that all requirements of this section are concurrent requirements and that nothing will be Completed on the Completion Date until everything required to be done by this section is done.

3.5 Risk – The District Land is at the District’s risk until 12:01 a.m. on the Completion Date and at Purchasers’ risk thereafter. The Fulcrum Land is at Purchasers’ risk until 12:01 a.m. on the Completion Date and at the District’s risk thereafter.

3.6 District Access – The District, its agents, contractors and employees have a licence, exercisable on 24 hours prior written notice to Fulcrum, to enter upon the Fulcrum Land from time to time prior to the Completion Date, at the District’s sole risk and expense, for the purpose of making inspections, surveys, tests and studies of the Fulcrum Land. The District agrees to:

(a) release and indemnify, and hold harmless, the Purchasers from and against any and all actions, causes of action, liability, demands, losses, costs and expenses (including legal fees and disbursements) which the Purchasers may suffer, incur, be subject to or liable for, arising out of or in any way related to or in connection with the exercise by the District of its rights under this section; and

(b) leave the Fulcrum Land in the same condition as that in which the District found such land, including by removing any equipment, refuse or other matter brought onto such land by the District or its employees, agents or contractors.

3.7 Purchaser Access – The Purchasers and their respective agents, contractors and employees have a licence, exercisable on 24 hours prior written notice to the District, to enter upon the District Land from time to time prior to the Completion Date, at the Purchasers’ sole risk and expense, for the purpose of making inspections, surveys, tests and studies of the District Land. the Purchasers agree to:


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(a) release and indemnify, and hold harmless, the District from and against any and all

actions, causes of action, liability, demands, losses, costs and expenses (including legal fees and disbursements) which the District may suffer, incur, be subject to or liable for, arising out of or in any way related to or in connection with the exercise by the Purchasers of their rights under this section; and

(b) leave the District Land in the same condition as that in which the Purchasers found the District Land, including by removing any equipment, refuse or other matter brought onto the District Land by the Purchasers or their respective employees, agents or contractors.

ARTICLE 4 - PURCHASERS’ REPRESENTATIONS, WARRANTIES, COVENANTS AND ACKNOWLEDGMENTS

4.1 Purchaser’s Representations, Warranties and Covenants – The Purchasers jointly and severally represent and warrant to the District that the following is true on the date the Purchasers execute this Agreement and will be true on Completion:

(a) the Purchasers have taken all necessary or desirable actions, steps and other proceedings to approve and authorize, validly and effectively, the entering into, and the execution, delivery and performance of this Agreement;

(b) each of the Purchasers is registered under the Excise Tax Act (Canada) for the purposes of GST Beedie’s GST No. is 815484472 RT0001 and Fulcrum’s GST No. is 878764810 RT0001.

(c) Each of the Purchasers is a resident of Canada within the meaning of the Income Tax Act (Canada);

(d) Each of the Purchasers is in good standing with the Registrar of Companies for British Columbia and has made all necessary filings with that registrar as required by the Business Corporations Act (British Columbia);

(e) Each of the Purchasers is duly incorporated and validly existing under the laws of British Columbia and has the power and capacity to enter into and carry out the transaction provided for in this Agreement;

(f) Beedie shall be on the Completion Date the beneficial owner of the Fulcrum Land;

(g) Fulcrum shall be on the Completion Date the registered owner of the Fulcrum Land;

(h) on the Completion Date the Purchasers together will have good and marketable legal and beneficial title to the Fulcrum Land;

(i) there is no action, suit, claim, litigation or proceeding pending or to the Purchasers knowledge threatened against either one or both of the Purchasers or in respect of the


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Fulcrum Land or the use or occupancy of the Fulcrum Land before any court, arbitrator, arbitration panel or administrative tribunal or agency that, if decided adversely to either one or both of the Purchasers, might affect the Purchasers’ ability to perform any of their obligations under this Agreement and to the Purchasers’ knowledge no state of facts exist that could constitute the basis of any such action, suit, claim, litigation or proceeding;

(j) neither the Purchasers entering into this Agreement nor the performance by the Purchasers of the terms hereof will result in the breach of or constitute a default under any term or provision of any instrument, mortgage, deed of trust, lease, document or agreement to which either one or both of the Purchasers are bound or subject;

(k) Fulcrum is the sole occupant of the Fulcrum Land and, on the Completion Date, there will be no tenants occupying the Fulcrum Land; and

(l) there are no debts due or owing for any work, labour, service or materials provided to or performed on the Fulcrum Land under which a lien or charge has arisen or could arise under the Builders Lien Act (British Columbia).

4.2 Acknowledgments and Agreements of the Purchasers – The Purchasers acknowledge and agree that:

(a) the District sells and the Purchasers purchase the District Land on an “as is” basis and condition;

(b) the Purchasers may have to construct works and services in accordance with applicable District bylaws in order to subdivide Lot 37 hereunder and to develop Parcels A and B and that the District is under no obligation whatsoever to provide such works and services;

(c) the District has not made any representations, warranties or agreements as to the condition or quality of the District Land, including as to:

(i) the subsurface nature or condition of the District Land (including soil type, hydrology and geotechnical quality or stability);

(ii) the environmental condition of the District Land (including regarding Contaminants in, on, under or migrating to or from the District Land) or regarding the compliance of the District Land, or past or present activities on it, with any Environment Laws;

(iii) the suitability of the District Land for the Purchasers’ intended use for, or development of, the District Land; or

(iv) the District’s bylaw requirements for the provision of works and services, or the costs thereof, necessary to enable development of the District Land;


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(d) it is the sole responsibility of the Purchasers to satisfy themselves with respect to:

(i) the environmental condition of the District Land (including regarding Contaminants in, on or under or migrating to or from the District Land);

(ii) regarding the compliance of the District Land or past or present activities on it, with any Environmental Laws, including by conducting any reports, tests, investigations, studies, audits and other enquiries that the Purchasers, in their sole discretion, consider prudent; and

(iii) investigating and determining the District’s bylaw requirements for the provision of works and services, or the costs thereof, necessary to enable the subdivision of Lot 37 hereunder and the development of Parcels A and B;

(e) it is the sole risk and responsibility of the Purchasers to determine the area of the District Land; and

(f) the District has not made any representations, warranties or agreements with the Purchasers as to whether or not any GST is payable by the Purchasers in respect of the sale of the District Land to the Purchasers.

4.3 Site Profile – The Purchasers hereby waive delivery by the District to the Purchasers of a site profile (as defined in the Environmental Management Act (British Columbia)) with respect to the District Land.

ARTICLE 5 - DISTRICT REPRESENTATIONS, WARRANTIES, COVENANTS AND ACKNOWLEDGMENTS

5.1 District’s Representations, Warranties and Covenants – The District represents and warrants to the Purchasers that the following is true on the date the District executes this Agreement and will be true on Completion:

(a) the District has taken all necessary or desirable actions, steps and other proceedings to approve or authorize, validly and effectively, the entering into, and the execution, delivery and performance of this Agreement;

(b) the District is registered under the Excise Tax Act (Canada) for the purposes of GST and the District’s registration number is R121391866;

(c) the District has the legal capacity, power and authority to perform all of the District’s obligations under this Agreement;

(d) the District has good and marketable legal and beneficial title to the District Land;


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(e) there is no action, suit, claim, litigation or proceeding pending or to the District’s

knowledge threatened against the District or in respect of the District Land or the use or occupancy of the District Land before any court, arbitrator, arbitration panel or administrative tribunal or agency that, if decided adversely to the District, might affect the District’s ability to perform any of the District’s obligations under this Agreement and no state of facts exist that could constitute the basis of any such action, suit, claim, litigation or proceeding;

(f) neither the District entering into this Agreement nor the performance by the District of the terms hereof will result in the breach of or constitute a default under any term or provision of any instrument, mortgage, deed of trust, lease, document or agreement to which the District is bound or subject;

(g) there are no tenants occupying the District Land; and

(h) there are no debts due or owing for any work, labour, service or materials provided to or performed on the District Land under which a lien or charge has arisen or could arise under the Builders Lien Act (British Columbia).

5.2 Acknowledgments and Agreements of District – The District acknowledges and agrees that:

(a) the Purchasers transfer and the District acquires the Fulcrum Land on an “as is” basis and condition;

(b) the District may have to construct works and services in accordance with applicable District bylaws in order to be in a position to develop the Fulcrum Land and that the Purchasers are under no obligation whatsoever to provide such works and services;

(c) the Purchasers have not made any representations, warranties or agreements as to the condition or quality of Fulcrum Land, including as to:

(i) the subsurface nature or conditions of the Fulcrum Land (including soil type, hydrology and geotechnical quality or stability);

(ii) the environmental condition of the Fulcrum Land (including regarding Contaminants in, on, under or migrating to or from the Fulcrum Land) or regarding the compliance of the Fulcrum Land, or past or present activities on it, with any Environment Laws;

(iii) the suitability of the Fulcrum Land for District’s intended use for, or development of, the Fulcrum Land; or

(iv) the District’s bylaw requirements for the provision of works and services, or the costs thereof, necessary to enable development of the Fulcrum Land;


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(d) it is the sole responsibility of the District to satisfy itself with respect to:

(i) the environmental condition of the Fulcrum Land (including regarding Contaminants in, on or under or migrating to or from the Fulcrum Land);

(ii) regarding the compliance of the Fulcrum Land or past or present activities on it, with any Environmental Laws, including by conducting any reports, tests, investigations, studies, audits and other enquiries that the District, in its sole discretion, considers prudent; and

(iii) investigating and determining the District’s bylaw requirements for the provision of works and services, or the costs thereof, necessary to enable development of the Fulcrum Land;

(e) it is the sole risk and responsibility of the District to determine the area of the Fulcrum Land; and

(f) the Purchasers have not made any representations, warranties or agreements with the District as to whether or not any GST is payable by the District in respect of the sale of the Fulcrum Land to the District.

5.3 Site Profile – The District hereby waives delivery by the Purchasers to the District of a site profile (as defined in the Environmental Management Act (British Columbia)) with respect to the Fulcrum Land.

ARTICLE 6 - CONDITIONS PRECEDENT

6.1 Mutual Conditions Precedent – The transactions contemplated by this Agreement are conditional upon the fulfillment of the following conditions, which are for the benefit of both parties and may not be waived:

(a) on or before the day that is 12 months after the Execution Date, the Subdivision Plan will have received all governmental approvals required by law so as to enable its registration in the LTO, including approval of the District’s approving officer.

6.2 Purchasers’ Conditions Precedent – The Purchasers’ obligation to complete the transactions contemplated by this Agreement are subject to the satisfaction of the following conditions precedent, which are for sole the benefit of the Purchasers and may be waived by the Purchasers at their sole discretion:

(a) on or before that day that is 30 days after the Execution Date, the Purchasers being satisfied, in their sole discretion with the District Permitted Encumbrances, including without limitation any obligations thereunder which would be assumed by the Purchasers by reason of their acquisition of the District Lands;


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(b) on or before the day that is 60 days after the Execution Date, the Purchasers being

satisfied, in their sole discretion, with the results of their due diligence investigations into:

(i) the condition (including environmental condition) of the District Land;

(ii) the estimated costs necessary to install works and services required by applicable applicable District bylaws in order to subdivide Lot 37 pursuant to the Subdivision Plan and develop the District Land; and

(iii) the potential to rezone the District Land in accordance with the Purchasers’ development plans;

(c) on or before the day that is 12 months after the Execution Date, Parcel A will have been rezoned such that the Purchasers will be satisfied with the zoning of Parcel A;

(d) on or before the day that is 12 months after the Execution Date, Parcel B will have been rezoned such that the Purchasers will be satisfied with the zoning of Parcel B; and

(e) within 15 days following approval of the Subdivision Plan under section 6.1(a), the Purchasers being satisfied, in their sole discretion, that any Subdivision Charges to be registered against title to the District Land.

In consideration of $1.00 non-refundable paid by the Purchasers to the District and other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the District, the District agrees not to revoke its acceptance of this Agreement while it remains subject to the conditions precedent under this section. If the Purchasers do not give the District notice of their satisfaction or waiver of any of these condition precedent within the time provided herein, this Agreement will be at an end.

6.3 District’s Conditions Precedent – The District’s obligation to complete the transactions contemplated by this Agreement is subject to the satisfaction of the following conditions precedent, which is for sole the benefit of the District and may be waived by the District at its sole discretion:

(a) on or before the day that is 30 days after the Execution Date, the District will be satisfied, in its sole discretion, with its estimate of the costs necessary to install works and services required by applicable District bylaws as may be required in order to develop the Fulcrum Land;

(b) on or before the day that is 60 days after the Execution Date, the District will be satisfied, in its sole discretion, with respect to the results of its due diligence investigations into the condition (including environmental condition) of the Fulcrum Land; and


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(c) within 15 days of approval of the Subdivision Plan under section 6.1(a), the District will

be satisfied, in its sole discretion, with any Subdivision Charges.

In consideration of $1.00 non-refundable paid by the District to the Purchasers and other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the Purchasers, the Purchasers agree not to revoke their acceptance of this Agreement while it remains subject to the condition precedent under this section. If the District does not give the Purchasers notice of its satisfaction or waiver of this condition precedent within the time provided herein, this Agreement will be at an end.

6.4 Termination of Agreement – If any of the conditions precedent under this Article 6 are not satisfied or, where permitted, waived in accordance with this Article within the applicable time, this Agreement shall automatically terminate.

6.5 If this Agreement is terminated pursuant to section 6.4, the parties shall have no further obligations hereunder except that promptly following such termination the Purchasers will provide to the District copies of all reports, inspections, surveys, tests and studies conducted by them or on their behalf with respect to the District Land and the District will provide to the Purchasers copies of all reports, inspections, surveys, tests and studies conducted by them or on their behalf with respect to the Fulcrum Land. For clarity, neither party will be entitled to any compensation from the other whatsoever with respect to any costs they have incurred in respect of this Agreement.

ARTICLE 7 - MISCELLANEOUS

7.1 Fees and taxes – The Purchasers must pay, as and when due and payable:

(a) any property transfer tax payable under the Property Transfer Tax Act (British Columbia) in connection with the sale of the District Land;

(b) LTO registration fees in connection with the registration of the District Transfer;

(c) its own legal fees and disbursements; and

(d) any GST payable under the Excise Tax Act (Canada) in respect of the sale of the District Land to the Purchasers.

The District is responsible for paying its own legal fees and disbursements and must pay, as and when due and payable, the LTO registration fees and charges in connection with the registration of all Registrable Closing Documents (save and except the District Transfer), any property transfer tax and GST payable in respect of the sale to it of the Fulcrum Land.

7.2 Preparation of Documents and Clearing Title – The Purchasers must, at their expense, prepare all necessary conveyancing documentation and must clear title to the Fulcrum Land


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subject only to the Fulcrum Land Permitted Encumbrances. At its expense, the District must clear title to the District Land, subject only to the District Land Permitted Encumbrances.

7.3 Subdivision and Rezoning – The Purchasers will, at their expense:

(a) prepare the Subdivision Plan,

(b) apply for approving officer approval and any other necessary governmental approvals of the Subdivision Plan,

(c) satisfy all requirements for approving officer and other governmental approvals with respect to approval of the Subdivision Plan,

(d) prepare and arrange for the execution of all Subdivision Charges,

(e) provide all works and services required by applicable District bylaws in connection with the subdivision contemplated by the Subdivision Plan and, if applicable, enter into a subdivision servicing agreement with the District and provide all related security,

(f) pay all fees, costs and charges related to the approval of the Subdivision Plan,

(g) pay all fees, costs and charges payable with respect to the rezoning applications hereunder,

(h) execute and obtain full execution of the Subdivision Plan as necessary to enable its registration in the LTO; and

(i) at its expense register the Subdivision Plan and the Subdivisions Charges in the LTO.

7.4 Currency – All dollar amounts referred to in this Agreement are Canadian dollars.

7.5 Further Assurances - Each of the parties must at all times execute and deliver at the request of the other all such further documents, deeds and instruments, and do and perform such other acts as may be reasonably necessary to give full effect to the intent and meaning of this Agreement.

7.6 Notice - Any notice, direction, demand, approval, certificate or waiver (any of which constitutes a “Notice” under this section) which may be or is required to be given under this Agreement must be in writing and be delivered or sent by fax:

to the District: Box 310 37955 – 2nd Avenue Squamish, British Columbia V8B 0A4


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Fax Number: (604) 892-1083 Attention: Director of Administrative Services or care of: Lidstone, Young, Anderson Barristers & Solicitors 1616 – 808 Nelson Street Vancouver, British Columbia V6Z 2H2 Fax Number: (604) 689-3444 Attention: Mr. Michael E. Quattrocchi to Fulcrum and Beedie: Beedie Group 5367 Kingsway Burnaby, British Columbia Fax Number: (604) 687-5346 Attention: Rob Fiorvento V5H 2G1 or care of Beedie’s Solicitors:

Clark Wilson LLP Barristers and Solicitors 800 - 885 W. Georgia Street Vancouver, British Columbia V6C 3H1 Attention: Anne L.B. Kober Telephone: (604)-643-3152 Fax: (604)687-6314

with a copy to: Farris, Vaughan, Wills & Murphy LLP Barristers and Solicitors 2500 - 700 W. Georgia Street Vancouver, British Columbia V7Y 1B3 Attention: Brock R. Rowland


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Telephone: (604)-661-9327 Fax: (604)661-9349 •

or to such other address or fax number of which notice has been given as provided in this Article.

Any Notice that is delivered is to be considered given on the day it is delivered and any Notice that is sent by fax is to be considered given on the day it is sent except that if, in either case, that day is not a Business day, it is to be considered given on the next Business day after it is sent.

7.7 No Effect on Powers – This Agreement does not, and nothing herein shall:

(a) affect or limit the discretion rights, duties or powers of the District or the approving officer for the District under the common law or any statute, bylaw or other enactment;

(b) affect or limit the common law or any statute, bylaw or other enactment applying to Fulcrum Land or the District Land; or

(c) relieve the Purchasers from complying with any common law or any statute, regulation, bylaw or other enactment, including with respect to the development of the District Land.

Without limiting the foregoing, the Purchasers acknowledge and agree that where fulfillment of some of the conditions precedent under Article 6 requires that the Council of the District adopt bylaws or pass resolutions, the adoption of such bylaws and passage of such resolutions is within the absolute and unfettered discretion of District Council and the provisions of this Agreement will not in anyway obligate the Council to adopt such bylaws or pass such resolutions.

7.8 Time of Essence - Time is of essence of this Agreement and the transactions for which it provides.

7.9 Joint and Several – The Purchasers and any permitted assignees are jointly and severally liable to the District for all of the Purchasers’ obligations hereunder.

7.10 Tender - Any tender of documents or money may be made upon the parties at their respective addresses set out in this Agreement or upon their respective solicitors.

7.11 No Other Agreements - This Agreement is the entire agreement between the parties regarding its subject and it terminates and supersedes all representations, warranties, promises and agreements regarding its subject.

7.12 Assignment – The Purchasers may not assign all or any part of this Agreement, or the benefit thereof to any person or entity except to a Beedie Permitted Assignee, without the prior written consent of the District. The District specifically agrees that the legal and/or beneficial interest in 100% of Parcel B may be assigned to a Beedie Permitted Assignee, and that an 80%


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beneficial interest in Parcel A may be assigned to a Beedie Permitted Assignee. The District also specifically agrees that legal title to Parcel A will be on the Completion Date transferred into the name of the Beedie/Fulcrum Transferee and that legal title to Parcel B will be on the Completion Date transferred into the name of the Beedie Transferee.

7.13 Benefit - This Agreement enures to the benefit of and is binding upon the parties and their respective heirs, executors, administrators, successors and assigns.

7.14 Schedules – The following are Schedules to this Agreement and form an integral part of this Agreement:

Schedule A – Fulcrum Land Permitted Encumbrances Schedule B – District Land Permitted Encumbrances Schedule C – Form of GST Declaration and Indemnity Schedule D – Lot 37 Site Plan

7.15 Modification - This Agreement may not be changed except by an instrument in writing signed by the parties or by their successors or assigns, but the parties agree that the Completion Date may be changed by their agreement through their respective solicitors upon instructions to their solicitors as evidenced promptly thereafter in writing by their solicitors.

7.16 Interpretation - Wherever the singular is used or neuter is used in this Agreement, it includes the plural, the feminine, the masculine or body corporate where the context or the parties so required.

7.17 Governing Law – This Agreement will be governed by and construed in accordance with the laws of British Columbia.

7.18 Non-Merger – None of the provisions of this Agreement will merge in the land transfers hereunder or any other documents delivered on the Completion Date and the provisions of this Agreement will survive Completion.

As evidence of their agreement to be bound by the above terms and conditions, Fulcrum and the District have executed this Agreement below on the dates written below. FULCRUM DEVELOPMENT (ASPEN FIELDS) INC. by its authorized signatories: Name: Name:


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Date: _________________________ BEEDIE DEVELOPMENT CORPORATION by its authorized signatories: Name: Date: _________________________

DISTRICT OF SQUAMISH by its authorized signatories: Mayor: Director of Administrative Services: Date: _________________________

Approved by resolution of Council of the District on _______________________________.


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Schedule A

FULCRUM LAND PERMITTED ENCUMBRANCES

None.


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Schedule B

DISTRICT LAND PERMITTED ENCUMBRANCES

Legal Notation: “Subject to Provisos, See Crown Grant K72009” Statutory Right of Way BM84803 Statutory Right of Way BM84805 Statutory Right of Way BX73304


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Schedule C

GOODS AND SERVICES TAX DECLARATION

To: (the “Vendor”)

Re: An agreement between ● (the “Purchaser”) and the Vendor being a Land Exchange Agreement dated for reference ________________________________ (the “Agreement”) in respect of the sale and purchase of the land legally described on the attached appendix (the “Properties”) ______________________________________________________________________________ The Purchaser hereby agrees with the Vendor as follows:

1. The Purchaser will indemnify and save harmless the Vendor from any GST, penalty, interest or other amounts which may be payable by or assessed against the District under the Excise Tax Act (“ETA”) as a result of, or in connection with, the Vendor’s failure to collect and remit any GST applicable on the sale, and conveyance of the Property to Purchaser.

2. The Purchaser is registered under Subdivision d of Division V of Part IX of the ETA for the collection and remittance of goods and services tax (“GST”) and its registration number is ●.

3. The Purchaser will remit directly to the Receiver General of Canada the GST payable, and file the prescribed Form GST 60 pursuant to subsection 228(4) of the ETA in connection with the sale and conveyance of the Property.

Dated this _______ day of ___________________________. ● by its authorized signatory: ____________________________________ Authorized Signatory


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Appendix to Goods and Services Tax Declaration and Indemnity


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Schedule D

LOT 37 SITE PLAN


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