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DOMINION AUTOMOBILE ASSOCIATION LIMITED
Confidential
March 9,1998
Westminster Mercantile Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
Dear Sir:
Re. Purchase by Dominion Automobile Association Limited(the "Buyer")
from Westminster Mercantile Inc. (the "Seller") of the Assets of the
Seller Used by the Seller in Conducting its Dominion Automobile
Association, North American Automobile Association-Zellers Division,
Dominion Automobile Association International Travel Agency and
Printing Businesses (Collectively, the "Businesses")
Unless otherwise defined in the body of this letter agreement, all capitalized
terms shall have the respective meanings attributed to them in Schedule "A".
1. Offer to purchase.
a. Purchased Assets and Assumed Liabilities. The Buyer acknowledges having
received the Seller's unaudited financial information with respect to
the Businesses for the four (4) consecutive 12-month periods, the last
one ended November 30, 1997, a copy of which is annexed as Exhibit "I"
to Schedule "A" hereto. Subject to the terms of this letter agreement
and in reliance on the representations and warranties set out in the
certificate of the Seller and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ to be delivered on
Closing, a copy of which appears as Schedule "B" to this letter
agreement, the Buyer hereby offers:
i. to purchase from the Seller:
A. the lands and premises municipally known as ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ constituting the Real
Property;
B. the leases of premises occupied by the Seller in
Saint ▇▇▇▇, New Brunswick and St ▇▇▇, Quebec (the
"Leases");
C. all of the property and assets of the Seller used by
it in conducting its Dominion Automobile Association
("DAA") business (the "DAA
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Assets"), all of which is located at the Real Property or at either of
the premises subject to the Leases, and includes the tangible property
and assets listed in Schedule "C" hereto;
D. all the property and assets used by the Seller in conducting its North
American Automobile Association Zellers Division ("NAAA") business (the
"NAAA Assets"), all of which is located at the Real Property and
includes the tangible property and assets listed in Schedule "D"
hereto;
E. all the property and assets of the Seller used by it in conducting its
Dominion Automobile Association International Travel Agency ("ITA")
business (the "ITA Assets"), all of which is located at the Real
Property and includes the tangible property and assets listed in
Schedule "E" hereto;
F. all the property and assets of the Seller used by it in conducting its
printing business (the "Printing Assets"), all of which is located at
the Real Property and includes the tangible property and assets of the
Seller listed in Schedule "F" hereto;
G. the trade marks, logos, business styles and names used by the Seller in
carrying on any of the Businesses and all know how forming part of the
DAA Assets, the NAAA Assets and the "ITA" Assets, as the case may be
(the "Intellectual Property");
H. all accounts receivable for each of the Businesses outstanding as at
the close of business on the Effective Date (the "Receivables"); and
I. without in any way limiting the right of the Buyer to any other
reserve, adjustment or recovery in respect of any of the Businesses,
all experience-rated refunds payable by Mutual Life of Canada in
respect of any insurance taken out and maintained by the Seller with
Mutual Life of Canada at any time and from time to time for the benefit
of the DM members, Seller employees or otherwise in respect of any of
the Businesses,
together with the benefit of all revenues and receipts from all business and
transactions conducted by the Businesses from and after the Effective Date until
the Time of Closing as hereinafter provided (collectively, the "Purchased
Assets"); and
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ii. to assume, pay, satisfy, discharge, perform and fulfill:
A. from and after the Effective Date only those
liabilities and obligations of the Seller to the
extent that they relate to any of the Businesses, the
Purchased Assets (provided such liabilities affecting
the Purchased Assets relate to their use as part of
the Businesses), and any contracts, commitments and
agreements to be assigned to the Buyer pursuant to
subsection 1.a., including, without limitation, as
summarized and forming the assumed liabilities set
out in the Statement of Adjustments annexed hereto as
Schedule "K", together with such payments that have
been made that have not yet cleared the respective
bank account but have been recognized in creating the
cash (general ledger) for such account, and all
experience-rated payments or adjustments payable to
Mutual Life of Canada in respect of any insurance
taken out and maintained by the Seller with Mutual
Life of Canada at any time and from time to time for
the benefit of the DAA members, Seller employees or
otherwise in respect of any of the Businesses; and
B. all expenses, outgoings and liabilities made or
incurred in carrying on the Businesses in the
ordinary and usual course from and after the
Effective Date until the Time of Closing,
(collectively, the "Assumed Liabilities"). From and after
Closing, the Buyer hereby indemnifies and saves the Seller
harmless from and against any liabilities (whether accrued,
actual, contingent or otherwise), claims and demands
whatsoever in connection with the Assumed Liabilities. Unless,
but only to the extent that it is immediately disputed in
writing (any such disputed amount to be subject to
arbitration, as hereinafter provided), the Buyer agrees to
remit payment to the Seller forthwith upon the Seller advising
the Buyer in writing of any such claims, demands, costs,
expenses and losses so incurred or suffered by the Seller,
for an aggregate purchase price equal to SIX MILLION ONE HUNDRED
THOUSAND ($6,100,000.00) DOLLARS (the "Purchase Price"), subject to any
Purchase Price adjustments contemplated by the terms of this letter
agreement. At closing, the Buyer shall pay to the Seller the amount of
FIVE MILLION ($5,000,000.00) DOLLARS (the "Closing Date Payment") by
immediately available funds.
b. Exclusions. Etc. For greater certainty, the parties agree that:
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i. the Purchased Assets include:
A. all cash on deposit with the Seller's bankers as at the
opening of business on Monday, March 2, 1998 which relate to
the Businesses; and
B. the Receivables;
ii. the NAAA Assets include only those assets of the Seller used by it in
conducting its business with Zellers, and the definition of NAAA Assets
excludes all other property of the Seller;
iii. the Purchased Assets do not include:
A. that certain vacant real property located in the Province of
Quebec and owned by the Seller;
B. any property and assets of the Seller not used in any of the
Businesses, including, without limitation, the Seller's
investment portfolio, and any loans by the Seller to employees
and field agents of the Businesses (which loans shall not
include any advances against commissions to field agents
outstanding at the Effective Date properly recorded on the
books and records of the Seller) (the "Seller Loans"), which
investment portfolio and Seller Loans shall be retained by the
Seller; and
C. the personal property and chattels specifically identified as
assets of the Seller excluded from the Purchased Assets as set
out in each of Schedules "C", "D", "E" and "F" ; and
iv. the Assumed Liabilities do not include:
A. any of the expenses and liabilities, whether or not recorded
on the books of the Seller, which do not relate to the
Businesses as acquired by the Buyer, including without
limiting the generality of the foregoing, all club expenses,
corporate credit cards and charges, automobile leases,
automobile insurance, gas cards and charges, and similar perks
and benefits; or
B. insurance on the building and improvements located on the Real
Property.
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c. Receivables. The Seller agrees to assign the Receivables to the Buyer on
Closing and to provide a complete and accurate list of all the Receivables to
the Buyer, together with such authorizations as may be necessary to negotiate
any cheques, automatic deposits or other payment procedures used by the Seller
in respect of any of the Receivables or payments from any of the customers of
any of the Businesses. Each party acknowledges that from and after Closing it
may come into the possession of funds that are the property of the other party.
Each party agrees to account to the other party in a timely manner for any such
funds of the other coming into its possession or control.
d. Allocation of the Purchase Price. The Buyer and Seller agree to allocate (and
to report the sale and purchase of the Purchased Assets for all federal,
provincial and local tax purposes in a manner consistent with such allocation)
the Purchase Price for accounting purposes among the Purchased Assets on the
following basis: (i) SIX MILLION ONE HUNDRED THOUSAND ($6,100,000.00) DOLLARS to
goodwill, (ii) SEVEN HUNDRED AND FIFTY THOUSAND ($750,000.00) DOLLARS to the
Real Property (subject to the post-Closing adjustment herein provided), (ii)
THREE HUNDRED THIRTY-SIX THOUSAND FOUR HUNDRED AND EIGHTY ($336,480.00) DOLLARS
to the tangible personal properly forming part of the Purchased Assets, and (iv)
as to the balance, to the remaining assets being acquired and liabilities being
acquired and assumed by the Buyer under the terms of this letter agreement The
Buyer and Seller agree to cooperate and to act reasonably in agreeing as to any
more particular allocations which may be required within the general allocations
referred to above.
e. Interest Payment. The Buyer agrees to pay to the Seller on or before the time
of payment of the final adjustment as provided for in subsection 9.f. herein an
amount in respect of interest which the Seller would have earned on the Closing
Date Payment had the transaction contemplated by this Letter Agreement closed on
the Effective Date (the "Interest Payment"). The Interest Payment shall be
calculated by multiplying the amount of the Closing Date Payment by the daily
rate equivalent of the Royal Bank of Canada prime rate plus one percent (1%) per
annum times the number of days from the Effective Date to the Closing Date.
2. Binding Agreement. Each of the parties acknowledges that this offer shall
constitute a binding agreement of purchase and sale for the Purchased Assets
only if this offer is accepted by the Seller, as provided below, and the
obligations of each of the parties to complete the transactions contemplated by
this letter agreement on Closing shall be subject to satisfaction (or waiver by
the party in question, as hereinafter provided) of each of the conditions
precedent to Closing set out in section 6 of this offer (the "Conditions") for
the benefit of the party in question.
3. Time and Place of Closing. The closing (the "Closing") shall take place on
the Closing Date at the offices of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇
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12:30p.m., London time (the "Time of Closing"), or at such other time and place
as the parties mutually agree in writing.
4. Covenants of the Seller.
a. Operation of the Businesses During the Interim Period. The Seller hereby
confirms to the Buyer that for the period beginning December 1,1997 and ending
at the Time of Closing (the "Interim Period"), it will have:
i. operated each of the Businesses in the normal course;
ii. given the Buyer and its representatives complete access to all
of the books,records, properties, contracts and commitments of
the Businesses; and
iii. instructed and authorized its auditors and lawyers to
co-operate with the Buyer and its representatives and to
provide all such information relating to each of the
Businesses as reasonably requested by them.
b. Accounting for Certain Interim Period Operations Post-Closing. The management
and operation of each of the Businesses (other than the ITA Business) by the
Seller (which Seller warrants to have carried on in the ordinary and usual
course) from and after the Effective Date shall be for the account of Buyer,
and, as set out above, the Buyer shall be entitled to the benefit of all
revenues and receipts from all transactions from and after the Effective Date
until the Time of Closing and shall be responsible for all expenses, outgoings
and liabilities made or incurred by the Seller in carrying on the Businesses
(other than the ITA Business) in the ordinary and usual course of business from
and after the Effective Date until the Time of Closing. Seller shall not charge
any fees and expenses, including those to its solicitors, relating to the sale
of the Businesses (other than the ITA Business) against any such revenues and
receipts, all of which expenses shall be to the sole account of the Seller. If
the difference between all such revenues and receipts from all of the Businesses
(other than the ITA Business) from and after the Effective Date to the Time of
Closing and the said reasonable expenses, outgoings and liabilities from and
after the Effective Date to the Time of Closing is a positive number, the Seller
shall pay an amount equal thereto to the Buyer within ten (10) Business Days
immediately following Closing, as contemplated by subsection 9.i. of this letter
agreement. If the difference is a negative number, the Buyer shall pay an amount
equal thereto to the Seller within ten (10) Business Days immediately following
Closing, as contemplated by subsection 9.i. of this letter agreement.
c. Accounting for ITA Business Interim Period Operations Post-Closing. The
Seller agrees to act as the Buyer's agent in operating the ITA Business until
such time as the Buyer qualifies under all applicable laws to conduct the
business of a travel agent with the
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right and capacity to make airline ticket bookings from the Real Property, in
keeping with the manner in which the ITA Business is presently conducted by the
Seller. To the extent permitted by law, the Seller agrees to manage and to
operate the ITA Business in the ordinary and usual course from and after the
Effective Date to the date on which the Buyer so qualifies to conduct the ITA
Business (the "ITA Qualification Date") for the account of Buyer. The Buyer
shall be entitled to the benefit of all revenues and receipts from all
transactions from and after the Effective Date until the ITA Qualification Date
and shall be responsible for all expenses, outgoings and liabilities made or
incurred by the Seller in carrying on the ITA Business in the ordinary and usual
course of business from and after the Effective Date until the ITA Qualification
Date. If the difference between all such revenues and receipts from the ITA
Business from and after the Effective Date to the ITA Qualification Date and the
said reasonable expenses, outgoings and liabilities from and after the Effective
Date to the ITA Qualification Date is a positive number, the Seller shall pay an
amount equal thereto to the Buyer within ten (10) Business Days immediately
following the ITA Qualification Date, as contemplated by subsection 9.h. of this
letter agreement. If the difference is a negative number, the Buyer shall pay an
amount equal thereto to the Seller within ten (10) Business Days immediately
following the ITA Qualification Date, as contemplated by subsection 9.h. of this
letter agreement. The Buyer will use its best efforts to make all necessary
applications and take and do all things necessary to so qualify to conduct the
ITA Business and to keep the Seller informed as to its progress with the intent
that such qualification shall be in place on or before the date of the final
order or decision referred to in subsection 9.f. of this letter agreement.
d. Seller Loans. From and after Closing, the Buyer will not permit any
deductions from wages, salaries or commissions paid by it to any of its
employees or field agents of charges or other payments relating to any
outstanding and unpaid Seller Loan. From and after Closing, the Seller hereby
indemnifies and holds the Buyer harmless from and against all actions, causes of
action, claims, demands, costs, expenses and losses of every nature whatsoever
incurred by the Buyer arising out of the creditor-debtor relationship between
the Seller and any of its past employees or field agents in respect of any
Seller Loan. The Seller hereby acknowledges that the Buyer has not guaranteed
payment or collection of any of the Seller Loans. The Seller undertakes to
obtain such written acknowledgments from the debtors under the Seller Loans
addressed to the Buyer as the Buyer may reasonably require from time to time
following Closing. Unless, but only to the extent that it is immediately
disputed in writing (any such disputed amount to be subject to arbitration, as
hereinafter provided), the Seller agrees to remit payment to the Buyer forthwith
upon the Buyer advising the Seller in writing of any such claims, demands,
costs, expenses and losses so incurred or suffered by the Buyer.
e. Seller Indemnity Re. Certain Trade-Mark Infringement Claims From and after
Closing, the Seller hereby indemnifies and holds the Buyer harmless from and
against all
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actions, causes of action, claims, demands, costs, expenses and losses of every
nature whatsoever incurred by the Buyer arising out of any claim by either the
American Automobile Association or the Canadian Automobile Association that any
registered or unregistered trade-mark used by the Seller in any of the
Businesses, as such trade-marks are used by the Seller at the Closing Date,
infringes the intellectual property owned by either the American Automobile
Association or the Canadian Automobile Association or constitutes passing-off by
the Seller. Unless, but only to the extent that it is immediately disputed in
writing (any such disputed amount to be subject to arbitration, as hereinafter
provided), the Seller agrees to remit payment to the Buyer forthwith upon the
Buyer advising the Seller in writing of any such claims, demands, costs,
expenses and losses so incurred or suffered by the Buyer.
f. Seller Indemnity for Termination Expenses. In furtherance of the matters
contemplated by subsection 5.e. hereof, the Seller hereby assumes full
responsibility for any costs, claims, demands and expenses (the "Termination
Expenses") incurred by either the Seller or the Buyer and arising out of the
termination of the Excluded Field Agent contracts, and the Seller hereby
indemnifies and holds the Buyer harmless from and against all actions, causes of
action, claims, demands, costs, expenses and losses of every nature whatsoever
incurred by the Seller arising out of the termination of the contractual or
other arrangements with the Excluded Field Agents. Unless, but only to the
extent that it is immediately disputed in writing (any such disputed amount to
be subject to arbitration, as hereinafter provided), the Seller agrees to remit
payment to the Buyer forthwith upon the Buyer advising the Seller in writing of
any such claims, demands, costs, expenses and losses so incurred or suffered by
the Buyer.
g. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. The Seller agrees that it shall be solely responsible for
dealing with the claim by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ against the DAA Business and the
health coverage provided to DAA field agents by Mutual Life Insurance Company,
and to hold each of the Buyer and Mutual Life Insurance Company harmless from
any costs, demands, expenses, claims, actions and causes of action arising out
of the claims made by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. The advance to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ by the
Seller shall be excluded from the Receivables and shall be retained by the
Seller.
5. Covenants of the Buyer. The Buyer hereby covenants with the Seller:
a. To Pay the Purchase Price. To pay the Purchase Price at the
time and in the manner provided for in section 8 of this
letter agreement subject to the satisfaction (or waiver by the
party in question, as hereinafter provided) of each of the
Conditions on Closing, and subject to any escrow or Purchase
Price adjustments contemplated by the terms of this letter
agreement;
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b. To Pay Applicable Sales Taxes. The Buyer shall be liable for
and shall pay all federal and provincial sales taxes
(including any tax imposed by the Retail Sales Tax Act
(Ontario)) and all other taxes, duties, fees or other like
charges of any jurisdiction property payable in connection
with the transfer of the Purchased Assets by the Seller to the
Buyer) save and except for land transfer tax payable on the
transfer of the Real Property;
c. To Give Notice to Investment Canada. On the acceptance of this
offer by the Seller, to provide notice of this transaction to
Industry Canada if required by the Investment Canada Act, and
comply with the requirements (if any) imposed on the Buyer
under the said Act and to deliver to the Seller a copy of the
response letter from Industry Canada under the Investment
Canada Act;
d. To Make Offers of Employment to Seller Employees. On the
Closing Date, to offer employment to all employees of the
Seller on terms and conditions no less favorable than those by
which such employees are employed by the Seller; provided, the
parties agree as follows:
i. the Buyer agrees to continue the employment of each
of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇
(the "Retained Employees") from and after Closing;
and
ii. if at any time within one (1) year following Closing
the Buyer determines for any reason whatsoever to
terminate the employment of all or any of the
Retained Employees, then for each Retained Employee,
the Buyer agrees to give written notice to the Seller
of the Buyer's intention to terminate the employment
of the affected Retained Employee. The Buyer agrees
to consult with the Seller on the manner in which the
affected Retained Employee is to be notified and
otherwise dealt with on termination of his employment
The Seller agrees that the sole responsibility of the
Buyer to any Retained Employee whose employment is so
terminated shall be limited to two weeks' wages or
two weeks' notice in lieu thereof, and the Seller
hereby indemnifies and holds the Buyer harmless from
and against all actions, causes of action, claims,
demands, expenses, costs and losses of every nature
whatsoever incurred by the Buyer arising out of the
termination of the employment of any of the Retained
Employees within the said one (1) year period
following Closing (apart from the said two weeks'
wages or notice in lieu thereof), and agrees to pay
all other costs, claims, demands and expenses
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incurred by the Buyer in terminating the employment
of all or any of the Retained Employees. Unless, but
only to the extent that it is immediately disputed in
writing (any such disputed amount to be subject to
arbitration, as hereinafter provided), the Seller
agrees to remit payment to the Buyer forthwith upon
the Buyer advising the Seller in writing of any such
claims, demands, costs, expenses and losses so
incurred or suffered by the Buyer;
e. Re. Excluded Field Agents. within 30 days of Closing, the
Buyer shall:
i. identify in writing by notice to the Seller the names
of not more than 40 field agents (generally from the
group of field agents with low 1997 commissions
earned) whose contracts it proposes to terminate (the
"Excluded Field Agents");
ii. deliver notices of termination of the contracts with
the Excluded Field Agents in such form as the parties
shall agree, acting reasonably; and
iii. deliver such notices to the other field agents
engaged in the conduct of any of the Businesses as
the Buyer in its sole discretion may determine; and
f. Re. Office Use Following Closing. The Buyer agrees to permit
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ to use during normal business hours
during the 90 days immediately following Closing an office in
the building on the Real Property designated by the Buyer.
6. Conditions of Closing. The parties agree that the only conditions precedent
to the closing of the transactions contemplated by this letter agreement shall
be:
a. Compliance with Planning Act (Ontario). For the benefit of
both of the parties, compliance with the provisions of the
Planning Act (Ontario) with respect to the purchase of the
Real Property;
b. For the Benefit of the Buyer. For the benefit of the Buyer, it
being understood that these conditions are included for the
exclusive benefit of the Buyer and may be waived in writing in
whole or in part by the Buyer:
i. receipt of the deliveries contemplated by section 7
of this letter agreement;
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ii. that the Seller is at Closing not in breach of any
material covenant, representation or warranty given
by it to the Buyer;
iii. that during the Interim Period, there shall have been
no material adverse change in any of the Businesses;
iv. that at Closing, the Buyer shall receive a transfer
of the Real Property in registerable form, free and
clear of any and all Liens, apart from Permitted
Encumbrances, and the Seller shall have provided
answers (satisfactory to the Buyer, acting
reasonably) to any proper requisitions by the Buyer
as to title to the Real Property;
v. receipt of a Phase 1 environmental report on the Real
Property acceptable to the Buyer (the "Phase 1
Report");
vi. receipt of an undertaking by the Seller to the Buyer
to cause to be filed a notice of discontinuance of
Action No.22363 issued out of Ontario Court of
Justice (General Division) London commenced by North
American Automobile Associate Limited against Zellers
Inc.;
vii. receipt of evidence satisfactory to the Buyer
relating to the status (and the potential effect on
the Businesses) of any claims by the American
Automobile Association, the Canadian Automobile
Association or others against the Seller that the
Seller is infringing the trade marks, intellectual
property or the goodwill of any such claimant;
viii. production by the Seller of a copy (or copies) of the
business licence(s) or permit(s) issued to it in 1983
(or thereafter) permitting the Seller to use the
building situate on the Real Property for each of the
Businesses or evidence satisfactory to the Buyer that
the current uses of the ground floor of the building
constitute legal non-conforming uses under applicable
City of London by-laws; and
ix. delivery of assignments and transfers of all the the
Purchased Assets other than the Real Property, free
and clear of any and all Liens, apart from Permitted
Encumbrances; and
C. For the Benefit of the Seller. For the benefit of the Seller,
it being understood that these conditions are included for the
exclusive benefit of the Seller and may be waived in writing
in whole or in part by the Seller:
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i. receipt of the deliveries contemplated by section 8
of this letter agreement;
ii. receipt of the Seller's $1,000,000 letter of credit
posted with Beneficial Canada Inc. or other
arrangement in respect thereof satisfactory to the
Seller, acting reasonably;
iii. receipt of payment of the Closing Date Payment; and
iv. the Buyer not being in breach of any material
covenant, representation or warranty given by it on
Closing.
7. Deliveries by the Seller on Closing. On Closing, the Seller agrees to cause
to be executed and delivered to the Buyer (or cause to be done) each of the
following:
a. the joint and several representation and warranty certificate
and indemnity by the Seller and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ in favour
of the Buyer in the form annexed as Schedule "B" to this
letter agreement;
b. joint election of the Buyer and the Seller under section 167
of the Excise Tax Act (Canada) executed by the Seller;
c. a transfer to the Buyer in registerable form of title to the
Real Property, as aforesaid;
d. certified cheque for $9,725.00 of the Seller payable to the
Ontario Minister of Finance representing the tax payable under
the Land Transfer Tax Act (Ontario) on the purchase of the
Real Property;
▇. a statutory declaration of an officer of the Seller re.
section 116 of the Income Tax Act (Canada);
f. a statutory declaration of possession of a senior officer of
the Seller with respect to the Seller's use and occupation of
the Real Property;
g. Excise Tax Act (Canada) goods and services tax certificate
executed by the Buyer with respect to the Real Property;
h. Buyer Real Property utilities and realty tax undertaking to
readjust, bill of sale and warranty; provided the foregoing
shall be without duplication of any adjustment to the purchase
price for the Real Property arising out of
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subsection 9.g. of this letter agreement;
i. conditional assignments to the Buyer of each of the Leases;
j. an undertaking by the Seller to use its best efforts to obtain
consents of each of the subject landlords to the assignment of
the Lease in question; provided the Seller shall not be
otherwise obligated to the Buyer if such consents are not
obtained and an undertaking by the Seller to cause a notice of
discontinuance of Action No.22363 against Zellers to be filed;
▇. an assignment to the Buyer of the DAA membership contracts and
rights;
l. individual conditional assignments to the Buyer of the DAA
corporate agent contracts;
m. an assignment to the Buyer of DAA field agents contracts and
rights;
n. an assignment to the Buyer of DAA service provider and
supplier contracts;
o. a general conveyance to the Buyer of the other DAA Assets;
p. a general conveyance to the Buyer of the other NAAA Assets;
q. a general conveyance to the Buyer of the other ITA Assets;
r. a bill of sale in favour of the Buyer of the Printing Assets;
s. Retail Sales Tax Act (Ontario) section 6 certificate in
respect of the Seller;
t. trade-mark assignment to the Buyer in registrable form of all
registered trademarks used by the Seller in any of the
Businesses;
u. trade-▇▇▇▇ and trade name assignment to the Buyer of all other
Intellectual Property;
v. joint waiver of the Buyer and the Seller of compliance with
the Bulk Sales Act (Ontario) executed by the Seller;
▇. assignment to the Buyer of all rights of the Seller under
certain assumed insurance policies, pension and other benefit
plans by way of novation, and the transfer of all funds in
respect of any of the foregoing, including those
14
Page 14
funds deposited with Royal Bank of Canada as at the Time of
Closing and on the ITA Qualification Date, as the case may be;
x. transfer of interests in deposits and claims re. ITA Business;
y. a transfer of the Receivables, together with a list of the
names and addresses of the subject account debtors, the
balance owed, the method of payment, advice in respect of
payment arrangements concerning potential future renewals, and
appropriate powers of attorney and authorizations (as
reasonably required);
z. copy of a financing statement registered under the Personal
Property Security Act (Ontario) with respect to the foregoing
absolute assignment of accounts;
aa. joint election of the Buyer and the Seller under section 22 of
the Income Tax Act (Canada) in respect of the Receivables
executed by the Seller, such signed election to be held
pending receipt of the report of the auditors contemplated by
section 9 hereof;
bb. statements for discharge purposes and discharges in
registerable form from each person holding a Lien on any of
the Purchased Assets, other than a Permitted Encumbrance;
cc. a certified copy of a special resolution of the Seller
authorizing the sale of the Purchased Assets to the Buyer and
the execution and delivery of this letter agreement, and all
documentation ancillary thereto, including all transfers,
assignments, general conveyances and other documentation
necessary to convey the Purchased Assets to the Buyer;
dd. opinion of counsel to the Seller in the form annexed hereto as
Schedule "G";
ee. possession and control of the Purchased Assets and all books,
records, contracts and commitments, in the possession or under
the control of the Seller and relating to any of the
Businesses;
ff. Seller receipt for the Closing Date Payment;
gg. copy of the Real Property price adjustment agreement referred
to in subsection 9.g., executed by the Seller; and
15
Page 15
hh. payment to the Buyer of the Adjustment Prepayment; and
ii. such further and other documentation, including appropriate
statutory elections, as may be reasonably required by the
Buyer to complete the transactions contemplated by this letter
agreement.
8. Deliveries by the Buyer on Closing. On Closing, the Buyer agrees to execute
and deliver to the Seller (or cause to be done) each of:
a. a representation and warranty certificate and indemnity of the
Buyer in the form annexed as Schedule "H" to this letter
agreement;
b. joint election of the Buyer and the Seller under section 167
of the Excise Tax Act (Canada) executed by the Buyer;
c. joint election of the Buyer and the Seller under section 22 of
the Income Tax Act (Canada) in respect of the Receivables
executed by the Buyer, such signed election to be held pending
receipt of the determination of the auditors in respect of the
matters contemplated by section 9 hereof;
d. offers of employment to each of the employees of the Seller
executed by the Seller;
e. copies of consulting agreements between the Buyer and each of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇:
f. Seller Real Property utilities and realty tax undertaking to
readjust; provided the foregoing shall be without duplication
of any adjustment to the purchase price for the Real Property
arising out of subsection 9.g. of this letter agreement;
g. an assumption agreement in respect of the Assumed Liabilities
and indemnity of the Seller with respect to claims by
creditors of any of the Businesses (which claims form part of
the Assumed Liabilities), including, to the extent that they
are in respect of claims forming part of the Assumed
Liabilities, claims arising out of the parties' non-compliance
with the Bulk Sales Act (Ontario), both duly executed by the
Buyer;
h. certified copy of a resolution of the board of directors of
the Buyer authorizing the purchase of the Purchased Assets
from the Seller, the execution and delivery of this letter
agreement, and all documentation
16
Page 16
ancillary thereto;
i. an opinion of counsel to the Buyer in the form annexed as
Schedule "I" to this letter agreement;
j. payment to it of the Closing Date Payment;
k. joint waiver of the Buyer and the Seller of compliance with
the Bulk Sales Act (Ontario) executed by the Buyer;
l. copy of the Real Property price adjustment agreement referred
to in subsection 9.g., executed by the Seller;
m. Buyer receipt for the Adjustment Prepayment; and
n. such further and other documentation, including appropriate
statutory elections, as may be reasonably required by the
Seller to complete the transactions contemplated by this
letter agreement.
9. Purchase Price Adjustment.
a. Estimated Adjustment at Closing. The Purchase Price shall be adjusted based
on the value of the assets being acquired by the Buyer and the liabilities being
assumed by the Buyer as at February 28th, 1998 (the "Effective Date'). To the
extent that the value of such assets exceeds the value of such liabilities as at
the Effective Date, the Purchase Price shall be adjusted upwards by the amount
of such difference and to the extent that the value of such liabilities exceeds
the value of such assets as at the Effective Date, the Purchase Price shall be
adjusted downwards by the amount of such difference. For the purposes of
Closing, in particular, the determination of the amount of the Closing Date
Payment the Buyer and Seller have estimated a downward adjustment (i.e. value of
liabilities exceeds value of assets) to the Purchase Price of ONE MILLION ONE
HUNDRED THOUSAND ($1,100,000.00) DOLLARS (the "Estimated Adjustment"). In
addition, the Seller agrees to pay to the Buyer on Closing the amount of THREE
HUNDRED THOUSAND ($300,000.00) DOLLARS representing a prepayment for the final
adjustment to be made pursuant to the provisions hereof (the "Adjustment
Prepayment").
b. Statement of Adjustments. Schedule "K" attached hereto sets out the form of
Statement of Adjustments to be utilized by the parties in making the adjustments
to the Purchase Price provided for herein. Set out on such Statement of
Adjustments is the list of those assets and liabilities forming part of the
Purchased Assets and Assumed Liabilities which will be subject to adjustment and
also sets out the value of such assets and liabilities as at November 30,1997
and as at January 31, 1998, as determined from
17
Page 17
the books and records of the Seller.
c. Tangible Personal Property. Also set out on the Statement of Adjustments are
agreed values for furniture and equipment, and the mainframe computer as at the
Effective Date which the Buyer and Seller have agreed shall not be subject to
any adjustment.
d. Adjustment Determination. As soon as possible subsequent to the Closing Date,
but in no event later than sixty (60) days following the Closing Date, the
Statement of Adjustments shall be prepared by the Buyer by setting out the
values as at February 28, 1998 of the assets and liabilities listed on the
Statement of Adjustments. Such values shall be determined in accordance with
generally accepted accounting principles consistently applied, using
methodologies consistent with those employed historically by the Seller, in
particular the methodologies employed by the Seller in determining the values of
such assets and liabilities as at November 30th, 1997 and as at January 31, 1998
which were recorded in the books and records of the Seller. For greater
certainty, provisions for claims and deferred revenue shall be determined for
the purposes of the Statement of Adjustments based on methodologies consistent
with those employed historically by the Seller, and adjustments shall be made
without duplication of the adjustments made pursuant to the mutual undertakings
to adjust in respect of utilities, etc. exchanged between the parties at Closing
and any adjustment to the price for the Real Property under subsection 9.g. of
this letter agreement. For greater certainty, in the determination of the
Payable Mutual Life reflected in Schedule 'K', all Mutual Life experience-rated
refunds shall be properly reflected on the Schedule 'K' Statement of Adjustments
in accordance with generally accepted accounting principles. No actual cheque or
bank draft was received by DAA in the month of February, 1998.
e. Access to Information. The Seller and its auditors shall be entitled to
review and assist in the preparation of the Statement of Adjustments and to have
access to and to receive copies of the working papers for the Statement of
Adjustments prior to its finalization. In the event of a dispute between the
Buyer and the Seller as to any of the values as at February 28, 1998 set out in
the Statement of Adjustments, such dispute shall be resolved by arbitration in
accordance with the provisions of subsection 14.f. herein.
f. Timing of Any Adjustment Payment. Within seven (7) days of the date on which
the Buyer and Seller have agreed to the Statement of Adjustments as evidenced by
the signature of duly authorized officers of the Buyer and Seller on the
Statement of Adjustments, or within seven (7) days of any final order or
decision in respect of the adjusted purchase price rendered by an arbitrator,
the Buyer and Seller agree to make any payment which may be required as follows:
18
Page 18
i. if the amount by which the value of the liabilities exceed the
value of the assets as at February 28th, 1998 as set out on
the Statement of Adjustments is greater than the aggregate of
the Estimated Adjustment and the Adjustment Prepayment, the
Seller shall pay to the Buyer, in immediately available funds,
the amount of such difference; and
ii. if the amount by which the value of the liabilities exceed the
value of the assets as at February 28th, 1998 as set out on
the Statement of Adjustments is less than the aggregate of the
Estimated Adjustment and the Adjustment Prepayment, the Buyer
shall pay to the Seller, in immediately available funds, the
amount of such difference.
g. Real Property Price Adjustment. In order to determine the value of the Real
Property as at the Effective Date, the Buyer and Seller have agreed to utilize
the procedure set forth in the agreement attached hereto as Schedule "L". The
Buyer and Seller agree that the value of the Real Property determined in
accordance with such procedure shall be the value of the Real Property for the
purposes of the Statement of Adjustments.
h. Timing of ITA Business Interim Period Payment. Immediately following the ITA
Qualification Date, representatives of the Buyer and Seller will review the
books and records relating to the conduct of the ITA Business during the period
between the Effective Date and the ITA Qualification Date and make a
determination in writing within 10 Business Days of the ITA Qualification Date
of the adjusting payment if any) to be made by the Buyer or the Seller, as the
case may be under the provisions of subsection 4.c. of this letter agreement.
i. Timing of Other Interim Period Payment. Immediately following Closing,
representatives of the Buyer and Seller will review the books and records
relating to the conduct of the Businesses (other than the ITA Business) during
the period between the Effective Date and the Closing Date and make a
determination in writing within 10 Business Days of Closing of the adjusting
payment (if any) to be made by the Buyer or the Seller, as the case may be under
the provisions of subsection 4.c. of this letter agreement.
10. Health Tax Claim. The parties refer to the Health Tax Claim, acknowledge
that each of the Buyer and the Seller has an interest in the outcome of the
Health Tax Claim, and agree that the following provisions shall apply to the
Health Tax Claim and the manner in which it shall be dealt with by the parties:
a. All information concerning the Health Tax Claim shall be
shared by the parties. Each party shall provide the other
party reasonable access to its
19
Page 19
books and records relating to the HealthTax Claim at all times
until a final determination is made in respect of Health Tax
Claim.
b. Following closing, representatives of the Buyer and the Seller
shall meet and settle on an approach to the Health Tax Claim
and the manner in which the defence shall be pleaded and
prosecuted.
c. If the parties cannot agree on any material element of the
said defence to the Health Tax Claim, then the dispute shall
be settled by arbitration under Schedule "J" to this letter
agreement.
d. If the ▇▇▇▇▇▇ wishes to accept written offer of settlement
from the Ministry of Finance ("Ministry") in respect of the
Health Tax Claim that the Buyer does not wish the Seller to
accept, then the Buyer shall have the right to take an
assignment of the Health Tax Claim by notice in writing to the
Seller. Upon receipt of such notice in writing, the Seller
shall pay the amount for which the Ministry offered to settle
the claim (including costs, interest and penalties to the date
of payment). The amount so paid by the Seller shall be paid to
the Buyer's counsel to be held by such counsel in trust
pending settlement or final determination of the Health Tax
Claim, and to be paid to the Minister of Finance on the
ultimate settlement or determination, or paid to the Buyer to
the extent that the amount so held exceeds the amount then due
to the Minister in respect of the Health Tax Claim. Upon
receipt of such payment from the seller to counsel to the
Buyer, the Buyer shall execute and deliver an indemnity (in
form and substance acceptable to the Seller, acting
reasonably) indemnifying the Seller from and against any
losses, costs, demands, expenses, interest, penalties, and
judgments arising out of the Health Tax Claim, and the Buyer
shall have the right to defend, settle or otherwise deal with
the Health Tax Claim from and after the date of assignment,
without any input or notice to the Seller, save only the
foregoing escrow arrangement and indemnity.
e. The parties acknowledge and agree that, in order to preserve
the appeal process initiated by the Seller in respect of the
Health Tax Claim, the amount of One Hundred and Seventy-three
Thousand One Hundred and Twenty-Nine Dollars and Fifty-Five
Cents ($173,129.55) is required to be paid to the Ministry of
Finance by March 14th, 1998. The Seller acknowledges that it
has the responsibility to make such payment and it agrees to
do so. The Buyer agrees that such payment shall be for the
account of the Seller and should the Health Tax Claim be
settled or resolved for any amount less than the amount of
such payment, such excess shall be returned to the Seller for
its account.
20
Page 20
11. Non-Merger. The rights and obligations of the parties (apart from the
Conditions) shall survive the closing of the transactions contemplated by this
letter agreement, shall not merge on Closing or on the delivery of any
documentation at or following Closing (whether or not provided for in this
letter agreement), and shall remain binding on each of the parties hereto in
accordance with their respective terms following Closing and any subsequent
payment or other date for performance of any of the obligations by either party
under the terms of this letter agreement
12. Termination. The obligation of the Buyer to purchase the Purchased Assets
shall be subject to the satisfaction of each of the Conditions in its favour or
waiver by it in writing of any such Condition not so satisfied. The obligation
of the Seller to sell to the Buyer the Purchased Assets shall be subject to the
satisfaction of each of the Conditions in its favour or waiver by it in writing
of any such Condition not so satisfied. Each of the parties covenants and agrees
to use all commercially reasonable efforts in the circumstances to satisfy the
Conditions and to co-operate with the other party in its respective efforts to
do so. If any of the Conditions is not met or waived by the party entitled to do
so, then the obligations of each of the parties to complete the transactions
contemplated by this letter agreement on Closing shall be at an end and of no
further force or effect, and provided that such party has fulfilled its
obligations under the -preceding sentence, no party shall be liable hereunder to
the other party. The letter agreement may also be terminated by the mutual
written consent of the Seller and the Buyer.
13. Schedules. The following are the schedules annexed to this offer and the
terms of each such schedule is hereby incorporated by reference into (and shall
be deemed to be part of) this letter agreement:
Schedule "A" Certain Definitions
Schedule "B" Seller and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Representation and Warranty
Certificate and Indemnity
Schedule "C" DAA Assets
Schedule "D" NAAA Assets
Schedule "E" ITA Assets
Schedule "F" Printing Assets
Schedule "G" Opinion of Seller's Counsel
Schedule "H" Buyer Representation and Warranty Certificate and
Indemnity
Schedule "I" Opinion of ▇▇▇▇▇'s Counsel
Schedule "J" Arbitration
Schedule "K" Statement of Adjustments
Schedule "L" Agreement Regarding Valuation of the Real Property
21
Page 21
14. Miscellaneous
a. Own Expenses. Each of the Seller and the Buyer agrees to be responsible for
its own legal and audit fees and other changes incurred in connection with the
preparation and settlement of this letter agreement, all negotiations between
the parties,due diligence. Each party confirms that there are no finder's or
broker's fees payable in connection herewith and the consummation of the
transactions contemplated hereby.
b. Further Assurances. Each of the Seller and the Buyer shall from time to time
at the request and expense of the requesting party and without further
consideration, execute and deliver such other instruments of transfer,
conveyance and assignment and such other documents and take such further action
as the other may reasonably require to more effectively complete any matter
provided for in this letter agreement or in any agreement or other document
executed pursuant to this letter agreement or any of the respective obligations
intended to be created thereby.
c. Entire Agreement. The offer and the documents referred to in it constitute
the entire agreement between the Seller and the Buyer pertaining to the within
transaction and supersede any prior or contemporaneous agreements, negotiations
and discussions, whether written or oral. There are no representations,
warranties, covenants, conditions or agreements between the Parties in
connection with the within transaction except as expressly set forth in the
offer or in any document expressly referred to in the offer. No amendment,
waiver or termination of this letter agreement shall be binding unless executed
in writing by each of the Seller and the Buyer and no such amendment or waiver
shall extend to anything other than the specific subject matter thereof. The
failure at any time of the Seller and the Buyer to insist on strict performance
of any provision of this letter agreement shall not limit the ability of that
party to insist at any future time whatsoever on the performance of the same or
any other provision (except insofar as that party may have given a valid and
effective written waiver or release).
d. Invalidity of Provisions. The invalidity or enforceability of any provision
of this letter agreement shall not impair or affect the validity or
enforceability of any other provision hereof and any such invalid or
unenforceable provisions shall be deemed to be separate, severable and distinct.
Any such invalid provision may be severed from the balance of this letter
agreement, provided the intent of the parties is preserved in the remaining
provisions hereof.
e. Time of the Essence. Time shall be of the essence of this letter agreement.
f. Arbitration. The parties agree that any dispute between them shall be dealt
with in accordance with the provisions of Schedule "J" to this letter agreement.
22
Page 22
g. Rights Cumulative. All rights and remedies of the parties under this letter
agreement shall, except as otherwise specifically provided herein, be cumulative
and non-exclusive of any rights or remedies which they may have by operation of
law, or otherwise.
h. Survival. The termination of this letter agreement shall not affect or impair
the powers, obligations, duties, rights and liabilities of the parties in any
way or respect relating to any transaction or event Occurring prior to such
termination.
i. Currency. All dollar amounts stated herein are expressed in terms of Canadian
dollars and all payments herein shall be made in Canadian dollars.
j. Applicable Law. This letter agreement shall be governed by and construed in
accordance with, and the respective rights and obligations of the Parties shall
be governed by, the laws of the Province of Ontario and the federal laws of
Canada applicable therein.
k. Notices. Any notice required or permitted to be given hereunder shall be in
writing and shall be effectively given if (i) delivery personally or by courier,
or (ii) sent by telecopier, addressed:
in the case of a notice to the Seller, as follows:
to each of Westminster Mercantile Inc. and
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ at
R.R. ▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇. NOM 1ZO
with a copy to ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ at
Messrs. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ & Solicitors
P.O. Box 3237
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇. N6A 4K3
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
23
Page 23
and in the case of a notice to the Buyer, as follows:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice so given will be deemed conclusively to have been given and received
on the day of delivery when so personally delivered; on the third day following
the sending thereof by private courier, and on the same date when telecopied
unless the notice is sent to the other party after 4:00 p.m. (Toronto time) in
which case it will be deemed to have been given and received on the day after
transmission. Any party hereto or others mentioned above may change any
particulars of its address for notice by notice to the others in the manner
aforesaid.
l. Successors and Assigns. This letter agreement shall become effective when it
shall have been executed by the Seller and the Buyer and thereafter shall be
binding upon and enure to the benefit of the Seller and the Buyer. Neither the
Buyer nor the Seller may assign its rights or obligations hereunder without the
express written consent of the other party.
m. Procedure on Indemnification. Any indemnification of the Buyer by the Seller
contained in this Letter Agreement shall be subject to the procedure set out as
subsection II. entitled "Notification of and Participation in Claims" appearing
on page 10 of Schedule "B'"annexed to this Letter Agreement, with such changes
as may be required by the context, in particular, there shall be only one
Indemnitor which shall be the Seller.
*****
This offer is irrevocable until noon on March 9, 1998, at which time if this
offer has not been accepted by the Seller, it shall be deemed withdrawn and of
no further force and effect. The transactions contemplated by this offer shall
close on Monday, March 9, 1998
24
Page 24
or on such other date as the Buyer and ▇▇▇▇▇▇ may agree in writing (the "Closing
Date"). The transaction shall be effective from and after 11:59 pm. on February
28, 1998.
Yours very truly,
DOMINION AUTOMOBILE ASSOCIATION LIMITED
Per:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
I have authority to bind the Corporation
FOR VALUE RECEIVED, the undersigned ▇▇▇▇▇▇ accepts the said offer and agrees to
sell the Purchased Assets to the Buyer, subject to the terms of this offer and
in reliance on the representations and warranties of the Buyer set out in the
certificate to be delivered by it to the Seller on Closing, as above provided,
this 9th day of March, 1998.
Per: WESTMINSTER MERCANTILE INC.
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
I have authority to bind the Corporation
25
Schedule "A" - Page 1
Where used in the annexed offer to purchase, the defined terms set out below
shall have the following meanings:
"AAA Demand" has the meaning attributed to it in section 14 of Schedule 'B' to
the letter agreement;
"Adjustment Prepayment" has the meaning attributed to it in subsection 9.a. of
the letter agreement;
"Assumed Liabilities" has the meaning attributed to it in paragraph 1.a.ii. of
the letter agreement;
"Business Day" means any day, other than Saturday, Sunday or any statutory
holiday in the Province of Ontario on which financial institutions in Toronto,
Ontario are open for business;
"Businesses" means, collectively, the Dominion Automobile Association business,
North American Automobile Association-Zellers Division business, Dominion
Automobile Association international Travel Agency business and the printing
business conducted by the Seller;
"Buyer means Dominion Automobile Association Limited;
"Closing" means the completion of the transaction of purchase and sale
contemplated by the letter agreement;
"Closing Date" has the meaning attributed to it on page 17 of the letter
agreement;
"Closing Date Payment" has the meaning attributed to it in subsection 1 a. of
the letter agreement;
"Conditions" has the meaning attributed to it in section 2 of the letter
agreement;
"DAA" has the meaning attributed to it in subparagraph 1.a.i.C. of the letter
agreement;
"DAA Assets" has the meaning attributed to it in subparagraph 1.a.i.C. of the
letter agreement;
"DAA Business" means the Dominion Automobile Association business conducted by
the Seller;
26
Schedule "A" - Page 2
"Effective Date" has the meaning attributed to it in subsection 9.a. of the
letter agreement;
"Estimated Adjustment" has the meaning attributed to it in subsection 9.a. of
the letter agreement;
"Excluded Field Agents" has the meaning attributed to it in subsection 5.e. of
the letter agreement;
"Financial Information" means the Seller's unaudited financial information with
respect to the Businesses for the four (4) consecutive 12-month periods, the
last one ended November 30, 1997, a copy of which is annexed hereto as Exhibit
A-2;
"generally accepted accounting principles" means generally accepted accounting
principles in Canada and statements and interpretations (if applicable) issued
by the Canadian Institute of Chartered Accountants or any successor body in
effect from time to time, unless otherwise stated;
"Health Tax Claim" means the claim against the Seller by the Minister of Finance
under the Employer Health Tax Act (Ontario), file no. 46602;
"Intellectual Property" has the meaning attributed to it in subparagraph
1.a.i.G. of the letter agreement;
"Interest Payment" has the meaning attributed to it in subsection 1.e. of the
letter agreement;
"Interim Period" has the meaning attributed to it in subsection 4.a. of the
letter agreement;
"ITA" has the meaning attributed to it in subparagraph 1.a.i.E. of the letter
agreement;
"ITA Assets" has the meaning attributed to it in subparagraph 1.a.i.E. of the
letter agreement;
"ITA Business" means the Dominion Automobile Association International Travel
Agency business conducted by the Seller;
"ITA Qualification Date" has the meaning attributed to it in subsection 4.c. of
the letter agreement;
27
Schedule "A" - Page 3
"Leases" has the meaning attributed to it in subparagraph 1.a.i.B. of the
letter agreement;
"Lien" means any bailment1 privilege, claim levy, execution, seizure,
attachment, garnishment, security interest, purchase-money security interest,
exception, reservation, right of pre-emption, ownership interest, mortgage,
charge, hypothec, pledge, lien or other encumbrance whatsoever, whether fixed or
floating and howsoever created or arising, or any security agreement, lease,
sublease, conditional sale agreement, option, assignment, title retention
agreement, or other agreement to create any of the foregoing;
"letter agreement" means the annexed offer to purchase;
"NAAA" has the meaning attributed to it in subparagraph 1.a.i.D. of the letter
agreement;
"NAAA Assets" has the meaning attributed to it in subparagraph 1.a.i.D. of the
letter agreement;
"NAAA Business" means North American Automobile Association-Zellers Division
business conducted by the Seller;
"Permitted Encumbrances" means, with respect to the Purchased Assets: (a)
mechanics', workers', repairmen's, employees' or other like Liens arising in the
ordinary course of business; (b) any Lien in favour of any government or
governmental authority for the taxes, assessments and governmental charges due
and being diligently contested in good faith by appropriate proceedings (and
adequate provision for the payment of which has been made); (c) Liens incurred
and pledges and deposits made in connection with workmen's compensation,
unemployment insurance, old age pensions and similar legislation; (d) security
given in the ordinary course of business to a public utility or any municipal,
governmental or public authority in connection with the current operations of
the Businesses; (e) Liens arising out of the leasing and purchasing of personal
property by the Businesses in the ordinary course of business or otherwise
incurred by them for the purpose of securing the payment of any purchase price
(or the financing or refinancing of any purchase price) of such assets, provided
the charge therefor is limited to the assets in question and proceeds derived
therefrom and further provided such liens have been disclosed in writing to the
Buyer prior to Closing; (f) any Liens (apart from the foregoing and apart from
those contemplated by paragraph nos. (g) and (h) below) that affect the
Businesses or the purchased assets the aggregate value of which at Closing does
not exceed the sum of $25,000; (g) Lien in favour of ▇▇▇▇ Commercial Credit
Canada Inc. and registered under the provisions of the Personal Property
Security Act (Ontario) (the "PPSA") as File Number 837347544; and (h) with
respect to the Real Property:
28
Schedule "A" Page 4
i. the reservations, limitations, provisos and conditions
expressed in the original patent from the Crown;
ii. the exceptions and qualifications as set out in the Land
Titles Act(Ontario);
iii. the priority of any liens under the Construction Lien Act
(Ontario) to the extent of any deficiency in the holdbacks
required to be made under the said Act, if applicable;
iv. any discrepancies and encroachments that might be revealed by
an up-to-date survey. We refer to the survey of the Real
Property prepared by ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ Ltd., ▇▇▇▇▇ ▇▇▇▇▇
O.L.S. dated February 19, 1998;
v. any an all unregistered liens, charges, adverse claims,
security interests or other encumbrances of any nature
whatsoever now or hereafter claimed or held by Her Majesty the
Queen in Right of Canada, Her Majesty the Queen in Right of
any Province of Canada, or by any other governmental
department, agency or authority under or pursuant to any
applicable legislation, statute or regulation including liens
in respect of municipal realty taxes, hydro rates and water
rates and charges;
vi. all municipal and governmental by-laws and regulations
affecting the use and occupancy of the Real Property, provided
the same are complied with;
vii. any unpaid lien for realty taxes, rates and assessments; and
viii. any unregistered statutory liens or levies;
"Phase 1 Report" has the meaning attributed to it in paragraph 6.b.v. of the
letter agreement;
"Printing Assets" has the meaning attributed to it in subparagraph 1.a.i.F. of
the letter agreement;
"Purchase Price" has the meaning attributed to it in paragraph 1.a.ii. of the
letter agreement;
"Purchased Assets" has the meaning attributed to it in paragraph 1.a.i. of the
letter agreement;
29
Schedule "A" - Page 5
"Real Property" means Part ▇▇▇ ▇, ▇/▇ ▇▇▇▇ ▇▇▇▇▇▇, Part Lot 1, Plan 84 (W), City
of London, County of Middlesex, municipally known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇;
"Receivables" has the meaning attributed to it in subparagraph 1.a.i.l. of the
letter agreement;
"Retained Employees" has the meaning attributed to it in subsection 5.d. of the
letter agreement;
"Seller" means Westminster Mercantile Inc.;
"Seller Loans" means the Seller's investment portfolio of loans, including loans
to employees and field agents of the Businesses;
"Statement of Adjustments" is the statement set out as Schedule "K" to the
letter agreement;
"Termination Expenses" has the meaning attributed to it in subsection 4.f. of
the letter agreement; and
"Time of Closing" has the meaning attributed to it in section 3 of the letter
agreement.
30
Schedule "B" - Page 1
CERTIFICATE AND INDEMNITY
TO DOMINION AUTOMOBILE ASSOCIATION LIMITED (the "Buyer")
Unless otherwise defined in this certificate and indemnity, all capitalized and
other defined terms shall have the respective meanings attributed to them in
Schedule "A" to the letter agreement dated March 9, 1998 to which the Buyer and
the Seller are parties (the "Agreement").
In consideration of the closing of the purchase and sale of the Purchased Assets
and the assumption of the Assumed Liabilities pursuant to the Agreement and for
other good and valuable consideration (the receipt and sufficiency of which are
acknowledged by the undersigned) each of the undersigned hereby severally
represents and warrants to the Buyer as follows:
1. Existence. The Seller is a subsisting corporation duly and validly
incorporated and organized under the laws of Canada;
2. Power. Authority. etc. The Seller has all necessary corporate power,
authority and capacity to execute, and deliver and perform its obligations under
the Agreement; and all other agreements, instruments and documents to be
delivered pursuant to the Agreement to which the Seller is a party and to carry
out its obligations and to consummate the transactions contemplated hereunder
and thereunder;
3. Due Authorization The execution and delivery of the Agreement and all other
agreements, instruments and documents to be delivered pursuant thereto to which
the Seller is a party, and the consummation of the transactions contemplated
hereby and thereby, have been duly authorized by all necessary corporate action
on the part of the Seller.
4. Enforceability of Obligations. The Agreement has been duly executed and
delivered by the Seller. When executed and delivered, each agreement, instrument
and document to be delivered pursuant to the Agreement to which the Seller is a
party will have been duly executed and delivered by the Seller. The Agreement
constitutes (and when executed and delivered, each agreement, instrument and
document to be delivered pursuant thereto to which it is a party will
constitute) a valid and binding obligation of the Seller, enforceable against it
in accordance with its terms, subject only to:
a. limitations with respect to enforcement imposed by law in
connection with bankruptcy or similar proceedings which may
affect the enforcement of creditors' rights generally;
31
Schedule "B"- Page 2
b. the qualification that equitable remedies, including specific
performance and injunction, are in the discretion of the court
from which they are sought; and
c. any other qualifications as to enforceability identified by
counsel to the Seller in any opinion letter rendered by such
counsel in connection with the transactions contemplated by
the Agreement.
5. Compliance with Other Instruments. The execution, delivery and performance by
the Seller of the Agreement and all other agreements, instruments and documents
to be delivered pursuant thereto to which the Seller is a party, and the
consummation by the Seller of the transactions contemplated hereby and thereby,
in accordance with the terms hereof and thereof, will not result in any material
violation of or material conflict with, constitute a material default (with or
without notice or the passage of time) under, give rise to a right of
termination, cancellation or acceleration of, or result in the imposition of any
Lien upon the Purchased Assets pursuant to the Agreement, under, or require any
consent under, any term, condition or provision of (a) the constating or
organizational documents of the Seller, or (b) any material agreement or
material instrument to which the Seller is a party or by which it is bound, save
as known to the Buyer at Closing.
6. Consents. Each authorization, consent, waiver, approval, or filing with any
Person that is required to be obtained by the Seller in connection with the
execution, delivery and performance of the Agreement and all other agreements,
instruments and documents to be delivered pursuant to the Agreement to which the
Seller is a party, the absence of which would materially adversely affect such
execution, delivery or performance has been obtained and is in full force and
effect, save as known to the Buyer at Closing.
7. Re. the Purchased Assets.
a. the Seller is the registered and beneficial owner of, and has
good and valid title to, all of the Purchased Assets, free and
clear of all Liens, apart from Permitted Encumbrances. Upon
consummation of the transactions contemplated by the
Agreement, the Buyer will acquire good and valid title to the
Purchased Assets, free and clear of all Liens, apart from
Permitted Encumbrances;
b. there is no agreement, option or other right or privilege
outstanding in favour of any Person for the purchase from the
Seller of any of the Purchased Assets, or limiting or
restricting in any manner the Seller's ability to sell the
Purchased Assets;
c. each of the lists of DAA members, employees and field agents,
and service providers and suppliers delivered at Closing by
the Seller is complete and accurate in all material respects;
32
Schedule "B" - Page 3
d. neither the Seller nor the subject insurer is in default with
respect to any of the material provisions contained in either
of the following policies of insurance and to the best of my
knowledge the insurer under each of the DAA Member Policy and
the BC Policy is a responsible insurer;
e. to the best of my knowledge each of the contracts to be
assigned to the Buyer on Closing is in good standing, and the
Seller either has the right to assign each of the said
contracts or win use its reasonable efforts to assist in
obtaining any consent required for such assignment;
f. the Seller has delivered at Closing complete and accurate set
its source code and object code for all its proprietary
software (which proprietary software utilizes the Mantis
software), and has all right, title and interest necessary in
such proprietary software to assign it to the Buyer, free of
liens and adverse claims of any nature whatsoever apart from
Permitted Encumbrances;
g. the Seller has delivered at Closing full and complete copies
of all data bases in respect of any of the Purchased Assets or
used by it in any of the Businesses, free of Liens and adverse
claims of any nature whatsoever, apart from Permitted
Encumbrances; and
h. as a consequence of the Buyer buying the Purchased Assets, the
Buyer will have acquired all of the assets currently being
used in the DAA Business.
8. Re. the Assumed Liabilities. In keeping with generally accepted accounting
principles, the Assumed Liabilities are accurately and fully reflected in the
Financial Information, and the Seller is not in default of any of its
obligations in respect of any of the Assumed Liabilities.
9. Not a Non-Resident. The Seller is not a non-resident of Canada for the
purposes of the Income Tax Act (Canada).
10. Bankruptcy. The Seller is not insolvent and has not (a) proposed a
compromise or arrangement to its creditors generally, (b) had any petition for a
receiving order in bankruptcy filed against it, (c) taken any proceeding with
respect to a compromise or arrangement or become subject to such proceeding
apart from the Employer Health Tax claim by the Ministry of Finance, file
no.46602 (the "Health Tax Claim"), (d) taken any proceeding or become subject to
any proceeding to have itself declared bankrupt or wound up, (e) taken any
proceeding or become subject to any proceeding to have a receiver appointed over
any part of its assets, (f) had any encumbrancer take possession of any of its
property, or (g) had any execution or distress levied upon any of its property.
33
Schedule "B" - Page 4
11. Brokers. No broker, finder or intermediary has been engaged by the Seller.
12. Seller Litigation Apart from the claims described in Exhibit B-12, to the
best of the knowledge of each of the undersigned, there is no action, suit,
proceeding, claim or investigation at law or in equity, or before any court or
before any arbitrator or before or by any federal, provincial or other
governmental department, commission, bureau, agency or instrumentality, domestic
or foreign, existing or, to the best of the knowledge of either of the
undersigned threatened by or against the Seller relating to or affecting any of
the Purchased Assets, or for the purpose of enjoining or preventing the
consummation of the transactions contemplated by the Agreement or otherwise
claiming that such consummation is improper or which, if decided adversely,
could adversely affect the rights of the Buyer or impose liability on the Buyer.
No principal of the Seller is in dispute or litigation with any customer or
corporate agent of any of the Businesses.
13. Seller Records Complete. All material property and assets of the Seller have
been fairly and properly recorded in its books and records. All books and
records of the Businesses will have been delivered to the Buyer on Closing.
14. Intellectual Properties. All the trademarks, trade names and material
copyrights used or required for the proper carrying on of each of the Businesses
(the Intellectual Property) are described in Exhibit B-14-1 annexed to this
certificate and indemnity. The Seller has the right to sell, assign and transfer
the Intellectual Property to the Buyer as herein contemplated. All trademarks
and material copyrights described in Exhibit B-14-1 are valid and subsisting,
and validly registered by the Seller and such trademarks and copyrights (and any
applications in respect thereof) are all owned by the Seller, free and clear of
all Liens, apart from Permitted Encumbrances. All trademarks and trade names
described in Exhibit B-14-2 are unregistered, but nevertheless, are valid and
subsisting, owned by the Seller, used by it, free and clear of all Liens, apart
from Permitted Encumbrances, and no one has contested or challenged either
ownership or use. The Seller has not entered into any oral or written license
agreements or arrangements under which any Person has been granted or allowed
the right to use any of the Intellectual Property. No person has threatened or
commenced any legal proceeding against the Seller claiming infringement, adverse
ownership, invalidity, lack of distinctiveness or conflict with respect to any
of the Intellectual Property or challenging any rights of the Seller in and to
the Intellectual Property, or relating to any trade secrets, know-how
confidential or proprietary information or the right of the Seller to use any or
all of the Intellectual Property in the conduct of one or more of the
Businesses, and without limiting the generality of the foregoing the Seller's
unregistered trademarks "Dominion Automobile Association", "DAA", "North
American Automobile Association", and/or any design incorporating the foregoing,
have been adopted and used by the Seller in Canada since at least as early as
1960 without any claim of infringement having been asserted by or against the
Seller by or against the current owner, or any predecessor in title or other
user of the names or trademarks "Canadian Automobile Association", "CAA", and/or
any design incorporating any of the foregoing. To the best of
34
Schedule "B" - Page 5
the Seller's knowledge and belief, the conduct of the Business does not infringe
upon the trademarks, trade names, designs, copyrights, trade secrets, know-how
or confidential or proprietary information of any other Person and no Person is
infringing the trademarks, trade names, designs, copyrights, trade secrets,
know-how or confidential or proprietary information of the Seller. The foregoing
is subject to the qualification that the Seller did receive a certain letter
addressed to it by the American Automobile Association in October, 1995, in
which the American Automobile Association demands that the Seller cease and
desist in its use of the DAA trademark in the United States of America (the "AAA
Demand"). Notwithstanding the disclosure of the foregoing exception to the
Buyer, the undersigned each acknowledge that their respective indemnities of the
Buyer shall apply and be enforceable against each of the undersigned as a result
of any claim or action taken by the American Automobile Association in respect
of the use of the DAA trademark to the date hereof, and at any time in the
future in any manner that is consistent with the use of the DAA trademark to the
date hereof.
15. Seller Assigned Contracts. To the best of the Seller's knowledge, the Seller
is not in breach or default of any material agreement, document or other
instrument to be assigned to the Buyer under the Agreement, and no state of
facts exists which after notice, lapse of time or both would constitute a breach
or default of any such agreement, document or other instrument.
16. Contracts. Etc. Other Than In The Ordinary Course of Business. Since
November 30, 1997 and other than as disclosed to the Buyer in writing:
a. the Seller has conducted the Businesses in the ordinary course
of business.
b. the Seller has not entered into any individual material
contract, commitment or lease transaction in excess of
$10,000;
c. there has not been any material adverse change in the
financial condition, assets, liabilities, personnel of any of
the Businesses or in the Seller's relationships with members,
agents or suppliers;
d. the Seller has not incurred any material liability or
obligation of any nature (whether accrued, absolute,
contingent or otherwise) which forms part of the Assumed
LiaAbilities, except in the ordinary course of business, other
than as disclosed by the Seller's Financial Information;
e. the Seller has not granted, renewed, suffered, incurred or
permitted any Lien, other than Permitted Encumbrances; and
f. the Seller has not made any material change in any method of
its accounting or auditing practices or procedures.
35
Schedule "B" - Page 6
17. Financial Information The Seller's unaudited financial information that has
been given to you is complete and accurately reflects the operations of the
Businesses as at November 30, 1997, and:
a. has been presented from information prepared in accordance
with generally accepted accounting principles applied on a
basis consistent with those of preceding fiscal periods;
b. presents fairly the financial position of the Seller as at
November 30, 1997, and the results of the operations of the
Businesses; and
c. are consistent with the Seller's books and records.
18. Seller Title to its Property. Except as disclosed in writing, at Closing,
the Seller owns and will own and have good and marketable title to all the
Purchased Assets, free and clear of all Liens, other than Permitted
Encumbrances.
19. Compliance with Applicable Laws. Each of the Businesses has been conducted
in compliance in all respects with all applicable laws, statutes, ordinances,
judgments, decrees, orders, rules and regulations.
20. Collective Agreements. The Seller has not made any Contracts with any labour
union or employee association nor made commitments to or conducted negotiations
with any labour union or employee association with respect to any future
agreements and, the Seller is not aware of any current attempts to organize or
establish any labour union or employee association with respect to any employees
of the Seller nor is there any certification of any such union with regard to a
bargaining unit. Other than grievances brought in the ordinary and normal course
of the Businesses, none of which could, individually or collectively with other
such grievances, have a material adverse effect on the Businesses or the right
or the ability of the Seller or the Buyer to carry on the Businesses
substantially in the manner in which they have heretofore been carried on, there
are no grievances against the Seller of which the Seller has received written
notice under any collective agreement Exhibit B-20 describes all work stoppage
and strikes (legal or otherwise) that the Businesses have experienced in the
past five years, including the dates and length of each such occurrence.
21. Employees. Except as described in Exhibit B-21, there are no complaints,
claims or charges outstanding, or to the best of the knowledge of the Seller,
anticipated, nor are there any orders, decisions, directors or convictions
currently registered or outstanding by any tribunal or agency against or in
respect of the Seller under or in respect of any applicable employment
legislation.
36
Schedule "B" Page 7
22. Employment Accruals. All accruals for premiums for employment insurance,
health premiums, Canada Pension Plan premiums, accrued wages, salaries and
commissions and employee benefit plan payments have been made or are reflected
in the books and records of the Seller and the Statement of Adjustments, but no
such accruals have been made for unpaid vacation pay.
23. Pension and Other Benefit Plans.
a. true, correct and up-to-date copies of all the Seller's
pension plan and its health and benefit plans with Mutual Life
of Canada, and related documents, have been provided by the
Seller to the Buyer;
b. the December 31, 1997 KPMG financial statements in respect of
the pension plan delivered to the Buyer are true and accurate;
c. that no amendments have been made and no improvements to the
said plans promised, as at Closing;
d. that all employee data provided is true and correct;
e. that all contributions or premiums required to be paid under
the plans have been paid in a timely fashion in accordance
with the plans and any related federal or provincial
legislation or regulations;
f. that there have been no improper withdrawals, applications or
transfers of assets from the plan or fund;
g. each plan has all required status under the Income Tax Act
(Canada) or other relevant tax legislation;
h. that all material obligations regarding the plans have been
satisfied and there are no outstanding defaults or violations
by any party thereto;
i. that there are no outstanding actions or claims with respect
to the plans or the assets thereof (excluding the payment of
benefits in the ordinary course); and
j. that neither the Seller nor its agents has been in breach of
any fiduciary obligation with respect to the administration of
any of the plans;
37
Schedule "B" - Page 8
FOR VALUE RECEIVED, subject to compliance with the procedures set out below for
the making of any Claim by the Buyer, the Seller hereby indemnifies and agrees
to hold the Buyer harmless from and against all expenses (including, but not
limited to, reasonable legal fees) claims, demands, actions, causes of action,
obligations, damages, losses, costs and liabilities (hereinafter collectively
referred to as "Claims") which may be made or brought against it or which it may
suffer or incur as a result of, in respect of or arising out of any breach or
non-fulfillment of any covenant contained in the Agreement or any agreement,
instrument or document delivered pursuant to the Agreement or any material
breach of any representation or warranty by or of the Seller contained herein or
therein;
I. Limitation on Claims. The covenants, representations and warranties of the
parties contained in this Agreement are now and at the Closing shall be true and
correct and notwithstanding the Closing or any inquiry or investigation on the
part of any party hereto, such covenants, representations and warranties shall
not merge in, be superseded or prejudiced by and shall survive the Closing and
continue in full force and effect for the benefit of the respective party
provided further that:
a. all the covenants, representations and warranties of the
Seller shall terminate at the expiration of two (2) years
following the Closing, except to the extent that, during such
period, where notice of a Claim has been given to a party
hereto in respect of a breach of any such covenant,
representation or warranty, such covenant, representation or
warranty shall continue in full force until the final
determination of such Claim. In no other case shall such a
covenant, representation or warranty survive the said 2-year
period;
b. prior to the Seller making any payment pursuant to its
liability under this certificate and indemnity and prior to
its carrying out its obligation hereunder to indemnify and
hold harmless the Buyer, as aforesaid, the Seller shall have
the right to review, or cause its employees, officers or
representatives to review, all records, documents or practices
of the Buyer relating in any manner to the subject matter of
the alleged liability and obligations of the Seller pursuant
to this certificate and indemnity in respect of which any
Claim is made, and the Buyer shall co-operate fully in
facilitating such review such that it may be carried out
promptly and without delay by the Sellers and any
indemnification payment shall be made by the Seller forthwith
following such review to the extent that it is supported by
the findings of the Seller. Any dispute as to the liability of
the Seller under this certificate and indemnity shall be
settled in accordance with the arbitration provisions of the
Agreement;
38
Schedule "B" - Page 9
c. the amount of any Claim recoverable by the Buyer hereunder
shall have deducted from it that amount (if any) representing
any net saving in any taxes that could be achieved by the
Buyer as a result of the loss represented by the Claim,
whether or not the Buyer prepares and files its tax returns to
take such benefit. Any dispute as to the tax-adjusted amount
of any Claim shall be settled by arbitration between the
Parties as provided by subsection 14.f. of the Agreement;
d. in the event that the Claimant subsequently recovers all or
part of a Claim from any other Person, the Claimant shall
forthwith repay to the Indemnitors the amount so recovered
upon to an amount not exceeding the amount theretofore paid by
the Indemnitors by way of indemnity; and
e. save and except with respect to the AAA Demand and anything at
any time arising out of it (all of which are specifically
excluded from the following limitation) for the purposes of
the indemnities under this certificate and indemnity alone
(and for no other indemnity given under the letter agreement)
to the extent that any inaccuracy or breach of any
representation or warranty made in this certificate and
indemnity is expressly disclosed to the Buyer by the Seller in
the letter agreement or any schedule attached thereto in such
a manner and with such particulars as to allow the Buyer to
make a reasonable assessment of the facts giving rise to the
inaccuracy or breach and the associated liability in respect
thereof, or to the extent that such inaccuracy or breach is
actually known to the Buyer prior to or at the Time of
Closing, and the Buyer completes the transactions contemplated
hereunder, the Buyer's entitlement to indemnification under
this certificate and indemnity in respect of such inaccuracy
or breach shall be reduced accordingly. The foregoing
limitation shall not apply to the Buyer in respect of any
Claim made in respect of any tax matters.
II. Notification of and Participation in Claims. No claim for indemnification
will arise until notice thereof is given to the Seller and to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(the "Indemnitors"). Such notice shall be sent within a reasonable time
following the determination by the Buyer (the "Claimant") that a claim for
indemnity exists.
a. Promptly upon receipt by the Claimant of notice of any third
party Claim in respect of which the Claimant proposes to
demand indemnification from the Indenmitors, the Claimant
shall give notice to that effect to the Indemnitors with
reasonable promptness.
b. The Indemnitors shall have the right by notice to the Claimant
not later than 30 clear days after receipt of the notice
described in subsection ll.a. of this certificate and
indemnity to assume the control of the defence, compromise
39
Schedule "B" - Page 10
or settlement of the third party claim, provided that:
i such assumption shall, by its terms, be without cost
to the Claimant; and
ii. no third party Claim shall be compromised or settled
without the prior written consent of the Claimant if
such settlement or compromise could reasonably be
anticipated to have an adverse effect on the
Business, and the the Claimant hereby covenants and
agrees not to unreasonably withhold or delay any such
consent.
c. Upon the assumption of control by the Indemnitors, as
aforesaid, the Indemnitors shall, at their expense, diligently
proceed with the defence, compromise or settlement of the
third party Claim at Indemnitors' sole expense, including
employment of counsel reasonably satisfactory to the Claimant
and, in connection therewith, the Claimant shall co-operate
fully to make available to the Indemnitors all pertinent
information and witnesses under the Claimant's control, make
such assignments and take such other steps as in the opinion
of counsel for the Indemnitors are necessary to enable the
Indemnitors to conduct such defence.
d. Subject to the foregoing provisions of this certificate and
indemnity, the final determination of any such third party
Claim, including all related costs and expenses, will be
binding and conclusive upon the parties hereto and the Buyer
as to the validity or invalidity, as the case may be, of such
third party Claim against the Indemnitors hereunder.
e. Should the Indemnitors fail to give notice to the Claimant as
provided in subsection ll.b., the Claimant shall be entitled
to make such settlement of the third party Claim as in its
discretion may appear advisable, and such settlement or any
other final determination of the third party Claim shall be
binding upon the Indemnitors.
f. If the Claimant fails to respond to a request for its consent
or unreasonably refuses to consent to a compromise or
settlement of a particular Claim negotiated by the Indemnitors
in respect of which consent is required, the Indemnitors may
pay to the Claimant an amount necessary to indemnify the
Claimant pursuant to this certificate and indemnity as though
the matter had been settled or compromised upon the terms
negotiated by the Indemnitors
40
Schedule "B" - Page 11
and the Claimant shall deliver to the Indemnitors a final and
final release in respect of all amounts claimed in respect of
such Claim.
IN WITNESS WHEREOF the undersigned have duly
executed this certificate and indemnity as of the 28th day of
February, 1998.
WESTMINSTER MERCANTILE INC.
Per:
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
I have authority to bind the Corporation
SIGNED, SEALED AND DELIVERED
in the presence of )
)
)
Witness ) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
41
This is Exhibit B-12 referred to in the Annexed Certificate and Indemnity
Seller Litigation
1. The Health Tax Claim.
2. The claim for coverage under the medical benefit plan forming part of
the Purchased Assets by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
3. Claim against Zellers Inc. (Action No.22363 issued out of the Ontario
Court of Justice(General Division) London).
4. Action against ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇.
5. Action against Group Mart in Small Claims Court for $3,000.
42
Trade-marks Registration Nos.
----------- -----------------
NORTH AMERICAN AUTOMOBILE TMA413,933
ASSOCIATION (DESIGN)
NORTH AMERICAN AUTOMOBILE TMA413,932
ASSOCIATION/L'ASSSOCIATION:
MOTORISTE NORD-AMERICAINE(DESlGN)
L'ASSOCIATION MOTORISTE NORD TNA420,976
AMERICAINE QUEBEC (DESIGN)
DOMINION AUTOMOBILE ASSOCIATION TMA104,785
((DESIGN))
43
This is Exhibit B-14-2 referred to in the Annexed Certificate and Indemnity
Unregistered Intellectual Property
(see next page)
44
Unregistered Trade-marks
------------------------
1. DAA/DOMINION AUTOMOBILE ASSOCIATION (OVAL DESIGN) See attached.
2. DAA/L'ASSOCIATION DE L'AUTOMOBILE QUEBEC (OVAL DESIGN) See attached.
3. DOMINION AUTOMOBILE ASSOCIATION
4. NORTH AMERICAN AUTOMOBILE ASSOCIATION
5. L'ASSOCIATION DE L'AUTOMOBILE
6. L'ASSOCIATION MOTORISTE NORD AMERICAINE.
7. DOMINION AUTOMOBILE ASSOCIATION INTERNATIONAL TRAVEL AGENCY
8. DOMINION HOME ASSOCIATION
9. L'ASSOCIATION DU DOMICILE
10. CANADIAN MOTOR LEAGUE/CML
See attached
11. CML QUEBEC
See attached
12. CANADIAN MOTOR LEAGUE/CML/CLUB MOTORISTE CANADIEN
45
This is Exhibit B-20 referred to in the Annexed Certificate and Indemnity
Work Stoppages and Strikes
Nil.
46
This is Exhibit B-21 referred to in the Annexed Certificate and Indemnity
Matters Under or In Respect or Any Applicable Employment Legislation
1. The Health Tax Claim
47
SCHEDULE "C"
TANGIBLE ASSETS USED IN DAA BUSINESS
Description London Quebec St. ▇▇▇▇
Desks 99 3 2
Tables 59 3 0
Chairs 173 7 5
Chairs-Executive 21 0 0
Credenzas 5 0 0
Bookcases 4 0 0
Low Cabinets 14 1 2
High Cabinets 8 0 1
Typewriters 24 2 1
Dictaphone 2 0 0
Calculators 24 0 0
Personal Computers 24 0 0
Computer Printers 24 0 0
2 Drawer Files 11 0 0
4 Drawer Files 40 2 2
5 Drawer Files 48 2 0
Cheque Files 3 0 0
6 Drawer Files 8 0 0
7 Drawer Files 2 0 0
Open Files 3 0 0
Cheque Protector 2 0 0
Photo Copiers 2 1 0
Phone System 1 0 0
Fax Machines 2 0 1
The above list does not include:
Furniture and equipment in the office of ▇.▇. ▇▇▇▇▇▇▇▇
Furniture and equipment in the Westminster Mercantile Inc. accounting office
Three 5 drawer legal filing cabinets in the general office
All of which are excluded from the transaction contemplated by the Agreement and
shall be retained by Westminster Mercantile Inc.
48
SCHEDULE "D"
TANGIBLE ASSETS USED IN THE NORTH AMERICAN AUTOMOBILE
Nil.
49
SCHEDULE "E"
TANGIBLE ASSETS USED IN THE INTERNATIONAL TRAVEL AGENCY BUSINESS
2 - L-shaped secretarial desks
7 - chairs
2- large blue file cabinets
2 - storage cabinet (one in ITA office and one across the hall)
4 - five-drawer filing cabinets (across the ball)
1 -display table
1 - Olympia AEG typewriter
1- metal typing table
1 - Olympia Professional typewriter
Attached is a list of rental equipment used in the Travel Agency at a monthly
rental of $646.05, including taxes.
The travel agency uses general office telephone lines, office supplies,
photocopier and fAX: machines.
50
SCHEDULE "F"
LIST OF TANGIBLE ASSETS USED IN THE PRINTING DIVISION
1 -desk
2-chairs
3- five-drawer filing cabinets
2- one-drawer filing cabinets
6- tables of various sizes
1 - light table
1 - drafting table
3- metal shelving units
1 - wood storage cabinet
1- air conditioner
1- large fan on stand
1 - l2" table fan
▇▇▇▇ built-in storage shelves in print manager's office and print shop
1 - A.B. Dick folder
1- Polar-▇▇▇▇▇ ▇▇▇▇▇▇
1- Multi 1250 offset press - 2 colour
1- Challenge Drill
1- Baumfolder
1 -Nuarc Platemaker
1 -Heidelberg offset press
Printing supplies - ordered on a monthly basis
51
This is Schedule "G" referred to in the Annexed Letter Agreement
March 9, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
Barristers & Solicitors
Scotia Plaza
▇▇▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
and
Dominion Automobile Association Limited
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Dear Sirs:
Re: Asset Purchase Agreement between Westminster Mercantile Inc. and
Dominion Automobile Association Limited dated March 9, 1998
We have acted as counsel to Westminster Mercantile Inc. (the "Seller")
in connection with the letter agreement dated March 9, 1998 (the "Letter
Agreement") between the Seller and Dominion Automobile Association Limited (the
"Buyer") providing for the purchase of certain assets of the Seller by the
Buyer. In this regard, we have participated in the preparation and settlement of
the Letter Agreement, and those further and ancillary documents contemplated by
the Letter Agreement (collectively, the "Other Documents").
Unless otherwise indicated, all terms used herein that are defined in
the Letter Agreement have the respective meanings given to them in the Letter
Agreement.
We have examined such corporate records of the Seller, such
certificates of officers of the Seller, public officials and others and original
or copies of such other agreements, instruments, certificates and other
documents as we have deemed necessary or advisable as a basis for the opinions
expressed herein. In particular, we have relied, as to the opinion referred in
Section 1 hereof, on a certificate of compliance for the Seller issued by
Industry Canada dated March , 1998.
52
-2-
For the purposes of the opinions expressed therein, we have assumed:
(a) the genuineness of all signatures, the legal capacity of all
individuals, the authenticity of all documents submitted to us as originals and
the conformity to authentic originals of all documents submitted to us as
certified or photostatic copies or as facsimiles;
(b) that each of the Letter Agreement and the Other Documents has been
duly authorized, executed and delivered by and constitutes a legal, valid and
binding obligation of each ▇▇▇▇▇ thereto other than the Seller; and
(c) the corporate records of the Seller provided to us contain all of
the constating documents, by-laws and resolutions of directors and shareholders
pertaining to the Seller;
The opinions expressed herein are limited to the laws of the Province
of Ontario and the federal laws of Canada applicable therein
Our opinion expressed in paragraph 5 as to the enforceability against
the Seller of the Letter Agreement and the Other Documents is subject to:
(a) bankruptcy, insolvency and other laws affecting the rights of
creditors generally; and
(b) the qualification that equitable remedies, including, without
limitation, specific performance and injunction, may be granted only in the
discretion of a court of competent jurisdiction
Based and relying on and subject to the foregoing, we are of the
opinion that:
1. The Seller is a corporation incorporated and subsisting under the laws of
Canada.
2. The Seller has all necessary corporate power and authority to execute and
deliver each of the Letter Agreement and the Other Documents and to perform its
obligations thereunder.
3. All necessary corporate action has been taken by the Seller to authorize the
execution and delivery by it of each of the Letter Agreement and the Other
Documents and the performance of its obligations thereunder.
4. The execution and delivery of each of the Letter Agreement and the Other
Documents by the Seller and the performance of its obligations thereunder will
not result in the breach or violation of any of the provisions of, or conflict
with the constating documents, by-laws or resolutions of the board of directors
(or any committee thereof) or shareholders of the Seller.
5. Each of the Letter Agreement and the Other Documents has been duly executed
and delivered by the Seller and constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance with its
terms.
53
-3-
The opinions expressed herein are provided solely for the benefit of
the addressees in connection with the transactions contemplated by the Letter
Agreement and may not be used nor relied on by the addressees for any other
purpose or by any other person for any purpose whatsoever, in each case without
our prior written consent.
Yours truly,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
54
Schedule "H"- Page 1
CERTIFICATE AND INDEMNITY
TO WESTMINSTER MERCANTILE INC. (the "Seller")
Unless otherwise defined in this certificate and indemnity, all capitalized and
other defined terms shall have the respective meanings attributed to them in
Schedule "A" to the letter agreement dated March 9, 1998 to which the Buyer and
the Seller are parties (the "Agreement").
In consideration of the closing of the purchase and sale of the Purchased Assets
and the assumption of the Assumed Liabilities pursuant to the Agreement and for
other good and valuable consideration (the receipt and sufficiency of which are
acknowledged by the undersigned) the undersigned hereby represents and warrants
to the Seller as follows:
1. Existence. The Buyer is a subsisting corporation duly and validly
incorporated and organized under the laws of Canada;
2. Power, Authority, etc. The Buyer has all necessary corporate power, authority
and capacity to execute, and deliver and perform its obligations under the
Agreement, and all other agreements, instruments and documents to be delivered
pursuant to the Agreement to which the Buyer is a party and to carry out its
obligations and to consummate the transactions contemplated hereunder and
thereunder.
3. Due Authorization. The execution and delivery of the Agreement and all other
agreements, instruments and documents to be delivered pursuant thereto to which
the Buyer is a party, and the consummation of the transactions contemplated
hereby and thereby, have been duly authorized by all necessary corporate action
on the part of the Buyer.
4. Enforceability of Obligations. The Agreement has been duly executed and
delivered by the Buyer. When executed and delivered, each agreement, instrument
and document to be delivered pursuant to the Agreement to which the Buyer is a
party will have been duly executed and delivered by the Buyer. The Agreement
constitutes (and when executed and delivered, each agreement, instrument and
document to be delivered pursuant thereto to which the Buyer is a party will
constitute) a valid and binding obligation of the Buyer, enforceable against the
Buyer in accordance with its terms, subject only to:
a. limitations with respect to enforcement imposed by law in
connection with bankruptcy or similar proceedings which may
affect the enforcement of creditors' rights generally;
b. the qualification that equitable remedies, including specific
performance and injunction, are in the discretion of the court
from which they are sought; and
c. any other qualifications as to enforceability identified by
counsel to the Buyer in any opinion letter rendered by such
counsel in connection with the transactions contemplated by
the Agreement.
5. Buyer a Non-Canadian. The Buyer is a non-Canadian for the purposes of the
Investment Canada Act (Canada) and will give forthwith on Closing, notice to
Industry Canada under the said Act
55
Schedule "H" - Page 2
6. Bankruptcy. The Buyer is not insolvent and has not (a) proposed a compromise
or arrangement to its creditors generally, (b) had any petition for a receiving
order in bankruptcy filed against it, (c) taken any proceeding with respect to a
compromise or arrangement or become subject to such proceeding, (d) taken any
proceeding or become subject to any proceeding to have itself declared bankrupt
or wound-up, (e) taken any proceeding or become subject to any proceeding to
have a receiver appointed over any part of its assets, (f) had any encumbrancer
take possession of any of its property, or (g) had any execution or distress
levied upon any of its property.
7. Brokers. The Buyer has not, directly or indirectly, entered into any
agreement which would entitle any broker, finder or intermediary to make a valid
claim against the Seller for a fee or commission for or on account of the
transactions provided for in the Agreement
FOR VALUE RECEIVED, subject to compliance with the procedures set out below for
the making of any Claim by the Seller, the Buyer hereby indemnifies and agrees
to hold the Seller harmless from and against all expenses (including, but not
limited to, reasonable legal fees) claims, demands, actions, causes of action,
obligations, damages, losses, costs and liabilities (hereinafter collectively
referred to as "Claims") which may be made or brought against it or which it may
suffer or incur as a result of, in respect of or arising out of any breach or
non-fulfillment of any covenant contained in the Agreement or any agreement,
instrument or document delivered pursuant to the Agreement or any material
breach of any representation or warranty by or of the Buyer contained herein or
therein;
I. Limitation on Claims. The covenants, representations and warranties of the
parties contained in this Agreement are now and at the Closing shall be true and
correct and notwithstanding the Closing or any inquiry or investigation on the
part of any party hereto, such covenants, representations and warranties shall
not merge in, be superseded or prejudiced by and shall survive the Closing and
continue in full force and effect for the benefit of the respective party
provided further that:
a. all the covenants, representations and warranties of the Buyer
shall terminate at the expiration of two (2) years following
the Closing, except to the extent that, during such period,
where notice of a Claim has been given to a party hereto in
respect of a breach of any such covenant, representation or
warranty, such covenant, representation or warranty shall
continue in full force until the final determination of such
Claim. In no other case shall such a covenant, representation
or warranty survive the said 2-year period;
b. prior to the Buyer making any payment pursuant to its
liability under this certificate and indemnity and prior to
its carrying out its obligation hereunder to indemnify and
hold harmless the Seller, as aforesaid, the Buyer shall have
the right to review, or cause its employees, officers or
representatives to review, all records, documents or practices
of the Seller relating in any manner to the subject matter of
the alleged liability and obligations of the Buyer pursuant to
this certificate and indemnity in respect of which any Claim
is made, and the Seller shall co-operate fully in facilitating
such review such that it may be carried out promptly and
without delay by the Buyers and any indemnification payment
shall be made by the Buyer forthwith following such review to
the extent that it is supported by the findings of the Buyer.
Any dispute as to the liability of the Buyer under this
certificate and indemnity shall be settled in accordance with
the arbitration provisions of the Agreement;
56
Schedule "H" - Page 3
c. the amount of any Claim recoverable by the Seller hereunder
shall have deducted from it that amount (if any) representing
any net saving in any taxes that could be achieved by the
Seller as a result of the loss represented by the Claim,
whether or not the Seller prepares and files its tax returns
to take such benefit. Any dispute as to the tax-adjusted
amount of any Claim shall be settled by arbitration between
the Parties as provided by subsection 13.f. of the Agreement;
d. in the event that the Claimant subsequently recovers all or
part of a Claim from any other Person, the Claimant shall
forthwith repay to the Indemnitors the amount so recovered
upon to an amount not exceeding the amount theretofore paid by
the Indemnitors by way of Indemnity; and
e. for the purposes of the Indemnities under this certificate and
indemnity alone (and for no other indemnity given under the
letter agreement) to the extent that any inaccuracy or breach
of any representation or warranty made in this certificate and
indemnity is expressly disclosed to the Seller by the Buyer in
the letter agreement or any schedule attached thereto in such
a manner and with such particulars as to allow the Seller to
make a reasonable assessment of the facts giving rise to the
inaccuracy or breach and the associated liability in respect
thereof, or to the extent that such inaccuracy or breach is
actually known to the Seller prior to or at the Time of
Closing, and the Seller completes the transactions
contemplated hereunder, the Seller's entitlement to
indemnification under this certificate and indemnity in
respect of such inaccuracy or breach shall be reduced
accordingly. The foregoing limitation shall not apply to the
Seller in respect of any Claim made in respect of any tax
matters.
II. Notification of and Participation in Claims. No claim for indemnification
will arise until notice thereof is given to the Buyer (the "Indemnitor"). Such
notice shall be sent within a reasonable time following the determination by the
Seller (the "Claimant") that a claim for indemnity exists.
a. Promptly upon receipt by the Claimant of notice of any third
party Claim in respect of which the Claimant proposes to
demand indemnification from the Indemnitor, the Claimant shall
give notice to that effect to the Indemnitor with reasonable
promptness.
b. The Indemnitor shall have the right by notice to the Claimant
not later than 30 clear days after receipt of the notice
described in subsection II.a. of this certificate and
indemnity to assume the control of the defence, compromise or
settlement of the third party claim, provided that:
I. such assumption shall, by its terms, be without cost
to the Claimant; and
II. no third party Claim shall be compromised or settled
without the prior written consent of the Claimant if
such settlement or compromise could reasonably be
anticipated to have an adverse effect on the
Business, and the Claimant hereby covenants and
agrees not to unreasonably withhold or delay any such
consent.
c. Upon the assumption of control by the Indemnitor, as
aforesaid, the Indemnitor shall, at
57
Schedule "H" - Page 4
their expense, diligently proceed with the defence, compromise
or settlement of the third party Claim at Indemnitor' sole
expense, including employment of counsel reasonably
satisfactory to the Claimant and, in connection therewith, the
Claimant shall co-operate fully to make available to the
Indemnitor all pertinent information and witnesses under the
Claimant's control, make such assignments and take such other
steps as in the opinion of counsel for the Indemnitor are
necessary to enable the Indemnitor to conduct such defence.
d. Subject to the foregoing provisions of this certificate and
indemnity, the final determination of any such third party
Claim, including all related costs and expenses, will be
binding and conclusive upon the parties hereto and the Seller
as to the validity or invalidity, as the case may be, of such
third party Claim against the Indemnitor hereunder.
e. Should the Indemnitor fail to give notice to the Claimant as
provided in subsection II.b., the Claimant shall be entitled
to make such settlement of the third party Claim as in its
discretion may appear advisable, and such settlement or any
other final determination of the third party Claim shall be
binding upon the Indemnitor.
f. If the Claimant fails to respond to a request for its consent
or unreasonably refuses to consent to a compromise or
settlement of a particular Claim negotiated by the Indemnitor
in respect of which consent is required, the Indemnitor may
pay to the Claimant an amount necessary to indemnify the
Claimant pursuant to this certificate and indemnity as though
the matter had been settled or compromised upon the terms
negotiated by the Indemnitor and the Claimant shall deliver to
the Indemnitor a full and final release in respect of all
amounts claimed in respect of such Claim.
IN WITNESS WHEREOF the undersigned have duly executed this certificate and
indemnity as of the 28th day of February, 1998.
DOMINION AUTOMOBILE ASSOCIATION LIMITED
Per:
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
I have authority to bind the Corporation
58
Schedule "I" - Page 1
March 9, 1998
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Barristers & Solicitors
[address]
London, Ontario.
and
Westminster Mercantile Inc
[address]
London, Ontario.
Dear Sirs:
Re: Asset Purchase Agreement - Westminster Mercantile Inc. and Dominion
Automobile Association Limited dated March 9, 1998
We have acted as counsel to Dominion Automobile Association Limited (the
"Buyer") in connection with the letter agreement dated March 9, 1998 (the
"Letter Agreement") between the Buyer and Westminster Mercantile Inc. (the
"Seller") providing for the purchase of certain assets of the Seller by the
Buyer. In this regard, we have participated in the preparation and settlement of
the Letter Agreement, and those further and ancillary documents contemplated by
the Letter Agreement (collectively, the "Other Documents").
Unless otherwise indicated, all terms used herein that are defined in the Letter
Agreement have the respective meanings given to them in the Letter Agreement.
We have examined such corporate records of the Buyer, such certificates of
officers of the Buyer, public officials and others, and original or copies of
such other agreements, instruments, certificates and other documents as we have
deemed necessary or advisable as a basis for the opinions expressed herein. In
particular, we have relied, as to certain matters of fact, on a compliance
certificate for the Buyer issued by Industry Canada dated February 26,1998.
For the purposes of the opinions expressed therein, we have assumed:
(a) the genuineness of all signatures, the legal capacity of all
individuals, the authenticity of all documents submitted to us as
originals and the conformity to authentic originals of all documents
submitted to us as certified or photostatic copies or as facsimiles;
and
59
Schedule "I"- Page 2
(b) that each of the Letter Agreement and the Other Documents has been duly
authorized, executed and delivered by and constitutes a legal, valid
and binding obligation of each party thereto other than the Buyer.
The opinions expressed herein are limited to the laws of the Province of Ontario
and the federal laws of Canada applicable therein.
Our opinion expressed in paragraph 5 as to the enforceability against the Buyer
of the Letter Agreement is subject to:
(i) bankruptcy, insolvency and other laws affecting the rights of creditors
generally; and
(ii) the qualification that equitable remedies, including, without
limitation, specific performance and injunction, may be granted only in
the discretion of a court of competent jurisdiction.
Based and relying on and subject to the foregoing, we are of the opinion that:
1. The Buyer is a corporation duly incorporated and validly subsisting
under the laws of Canada.
2. The Buyer has all necessary corporate power and authority to execute
and deliver each of the Letter Agreement and the Other Documents and to
perform its obligations thereunder.
3. All necessary corporate action has been taken by the Buyer to authorize
the execution and delivery by it of each of the Letter Agreement and
the Other Documents and the performance of its obligations thereunder.
4. The execution and delivery of each of the Letter Agreement and the
Other Documents by the Buyer and the performance of its obligations
thereunder will not result in the breach or violation of any of the
provisions of, or conflict with the constating documents, by-laws or
resolutions of the board of directors (or any committee thereof) or
shareholders of the Buyer.
5. Each of the Letter Agreement and the Other Documents has been duly
executed and delivered by the Buyer and constitutes a legal, valid and
binding obligation of the Buyer, enforceable against the Buyer in
accordance with its terms.
The opinions expressed herein are provided solely for the benefit of the
addressees in
60
Schedule "I" - Page 3
connection with the transactions contemplated by the Letter Agreement and may
not be used nor relied on by the addressees for any other purpose or by any
other person for any purpose whatsoever, in each case without our prior written
consent.
Yours truly
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
61
Schedule "J" Page 1
1. The parties agree that any dispute under the letter agreement shall be
automatically referred to arbitration in accordance with this Schedule
"J". Unless otherwise defined in the body of this Schedule "J", all
capitalized or defined terms shall have the respective meanings
attributed to them in Schedule "A" to the letter agreement.
2. In the event that any disagreement arises between the Seller and the
Buyer under this letter agreement or any matter arising hereunder, or
whenever any arbitration is otherwise required or permitted by the
terms of the letter agreement, arbitration proceedings shall be
commenced by the party (Buyer or the Seller, as the case may be)
desiring arbitration (the "Initiating Party") by giving written notice
to the other party (Buyer or Seller, as the case may be) (the
"Responding Party") specifying the matter to be arbitrated and
requesting an arbitration thereof. In the event that the Initiating
Party and the Responding Party are unable to agree upon a single
arbitrator within seven (7) Business Days after delivery of such
notice, the Initiating Party shall, by written notice to the Responding
Party, designate an arbitrator. Either the Seller (if the Initiating
Party is Buyer) or the Buyer (if the Initiating Party is Seller) shall,
within five (5) Business Days thereafter, be entitled to appoint a
second arbitrator by written notice to the Initiating Party, and the
two (2) arbitrators so appointed shall thereupon meet and select a
third arbitrator acceptable to the first two (2) arbitrators, who shall
be the Chairman. In the event that the Responding Party fails to
appoint an arbitrator within the time limit aforesaid and deliver
notice thereof to the Initiating Party, the Initiating Party shall be
entitled to appoint an arbitrator on behalf of the Responding Party and
the Initiating Party is hereby irrevocably appointed the agent of the
Responding Party for such purpose. In the event that the two
arbitrators so appointed are unable to agree upon a third arbitrator,
then the Initiating Party shall be entitled to make application to
Ontario Court (General Division) pursuant to the Arbitrations Act
(Ontario) for selection of the third arbitrator, who shall be the
Chairman, and the provisions of the Arbitrations Act (Ontario) shall
govern such selection. In all cases, the arbitrators shall be qualified
by profession or occupation to decide the matter in dispute.
3. The arbitrator or arbitrators so appointed shall thereupon proceed to
hear the submissions of the Parties in accordance with such procedures
as such arbitrator or arbitrators may establish, and shall render a
decision, together with written reasons therefor, within 90 days after
the date of delivery of the notice requesting the arbitration by the
Initiating Party to the Responding Party. A decision of the arbitrator
or a majority of the arbitrators (where there are three arbitrators)
shall be final and binding on the Parties and shall not be subject to
appeal.
62
Schedule "J" Page 2
4. If the arbitrators have allowed their time or extended time for making
an award, as provided in the Arbitrations Act (Ontario), to expire
without making an award or if the Chairman shall have delivered to the
parties to the arbitration a notice in writing stating that the
arbitrators cannot agree or if there is not a majority of the
arbitrators in agreement, any party to the arbitration may apply to the
Ontario Court (General Division) or to a judge thereof to appoint an
umpire who shall have the like power to act in the reference and to
make an award as if he had been duly appointed by all the parties to
the submission and by the consent of all of the parties who originally
appointed the arbitrators in question.
5. If an umpire is appointed pursuant to the foregoing section 4, such
umpire shall make the award within one (1) month after the original or
extended time appointed for making the award of the arbitrators has
expired (or on or before any later date to which the parties to the
reference by any writing signed by them may from time to time extend
the time for making the award, or if the Parties have not agreed, then
within such time as the court or judge appointing such umpire may deem
proper).
63
SCHEDULE "K" - STATEMENT OF ADJUSTMENT
VALUE AS VALUE AS VALUE AS
AT 30-NOV-97 AT 31-JAN-98 AT 28-FEB 98
------------------------------------------------------------------------------------------------------------------------------
DAA Assets - Current - Cash (General Ledger) $ 268,493 4,238
NAAA Assets - Current - Cash (General Ledger) 55,134 76,485
ITA Assets - Current - Cash (General Ledger) 105,670 61,223
DAA 2 Assets - Current Memb Fees Rec-Field Force 393,780 365,607
DAA 3 Assets - Current - Memb Fees Rec-Corporations 158,869 151,647
DAA 4 Asscts - Current - Due from Field Force (120) 1,531
DAA 5 Assets - Current - Due from Members 0 0
DAA 6 Assets - Current - Due from Employees 254 2,571
DAA 7 Assets - Current - Accts Receivable-Printing 0 0
DAA 8 Assets - Current - Deposits 843 843
DAA 9 Assets - Current - Prepaid Expenses 32,989 25,073
DAA 10 Assets - Current - Prepaid Commissions 1,605,695 1,711,220
DAA 11 Assets - Fixed - Furniture & Equipment 241,480 241,480 241,480*
DAA 12 Assets - Fixed - Mainframe Computer 95,000 95,000 95,000*
DAA 13 Assets - Fixed - Other 0 0
DAA 14 Assets - Fixed - Property-201 ▇▇▇▇ ▇▇ 1,000,000 750,000** ***
ITA 32 Assets - Current - Deposits 0 0
ITA 33 Assets - Current - Accounts Receivable 8,167 9,730
ITA 34 Assets - Current - Taxes Receivable 377 433
NAAA 42 Assets - Current - Memb Fees Receivable 1,859 1,441
NAAA 43 Assets - Current - Memb Fees Receivable-Zellers 47,046 13,917
NAAA 44 Assets - Current - Taxes Receivable 482 788
NAAA 45 Assets - Current - Prepaid Expenses 0 0
NAAA 46 Assets - Current - Prepaid Commissions 0 0
TOTAL ASSETS 4,016,018 3,513,227
DAA 15 Liabilities - Current - Payable Suppliers 65,679 53,551
DAA 16 Liabilities - Current - Payable Mutual life 149,750 (15,973)
DAA 17 Liabilities - Current - Payable Medicare 0 0
DAA 18 Liabilities - Current - Taxes Payable 42,162 14,612
DAA 19 Liabilities - Current - Deferred Revenue 3,305,273 3,498,403
DAA 20 Liabilities - Current - Benefits Payable 9 0
DAA 21 Liabilities - Current - Due Agents 2,973 3,379
DAA 22 Liabilities - Current - Accrued Commissions (40,615) (36,530)
DAA 23 Liabilities - Current - Accrued Legal/Audit 0 0
DAA 24 Liabilities - Current - Accrued Other 41,000 21,016
DAA 25 Liabilities - Current - Claim Provision 1,224,782 1,225,128
DAA 26 Liabilities - Current - Deposits 68,527 70,610
DAA 27 Liabilities - Current - Capital Leases 0 0
ITA 35 Liabilities - Current - Accounts Payable 22,544 3,113
ITA 36 Liabilities - Current - Taxes Payable 1,432 1,435
NAAA 47 Liabilities - Current - Accounts Payable 0 0
NAAA 48 Liabilities - Current - Commission Payable 0 0
NAAA 49 Liabilities - Current - Taxes Payable 495 1,845
NAAA 50 Liabilities - Current - Accrued Expenses 0 0
NAAA 51 Liabilities - Current - Claim Provision 42,248 48,763
TOTAL LIABILITIES 4,926,259 4,889,353
EXCESS LIABILITIES OVER ASSETS 910,241 1,376,126
* Agreed Value. No Adjustment required.
** Estimated Value for purposes of Closing.
*** Special Valuation Procedure to be used.
AGREED this day of ,1998.
DOMINION AUTOMOBILE ASSOCIATION LIMITED WESTMINSTER MERCANTILE INC.
Per:___________________________________________________ Per____________
Duly Authorized Officer Duly Authorized Officer
64
Schedule L - Page 1
AGREEMENT REGARDING VALUATION OF REAL PROPERTY
BETWEEN:
WESTMINSTER MERCANTILE INC.
(the "Seller")
OF THE FIRST PART
AND
DOMINION AUTOMOBILE ASSOCIATION LIMITED
(the "Buyer")
OF THE SECOND PART
WHEREAS:
A. The Seller has sold to the Buyer the property municipally known as ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, being Part Lot ▇, ▇/W ▇▇▇▇ Street, Part
Lot 1, Plan 84 (W), City of London, County of Middlesex (the "Real
Property");
B. For the purposes of closing the transaction, the parties fixed a
selling and purchase price for the Real Property of $750,000.00,
subject to the adjustment (if any) arising out the procedures provided
for in this agreement;
C. The Buyer has paid the Seller (and by its execution of this agreement,
the Seller acknowledges receipt of) the sum of $750,000.00 for the Real
Property;
D. The Buyer retained Valco Consultants Inc. ("▇▇▇▇▇"), who prepared and
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Schedule L - Page 2
provided to the Buyer a written appraisal dated February 26,1998 of the current
market value of the Real Property (the "Valco Appraisal") at $550,000;
E. The Seller retained Egerton Associates Limited ("Egerton") who gave a
verbal opinion to the Seller on Monday, February 23, 1998 to the effect
that the current market value of the Real Property in the opinion of
▇▇▇▇▇▇▇ at between $900,000 and $950,000. ▇▇▇▇▇▇▇ has been requested by
the Buyer to provide immediately, a written appraisal (the "Egerton
Appraisal");
F. The Buyer and the Seller have agreed to the arbitration procedures set
out in this agreement to determine the definitive and final purchase
price for the Real Property, as between the Buyer and the Seller;
In consideration of the terms and conditions set forth below, and for other good
and valuable consideration (the receipt and sufficiency of which are
acknowledged by the parties), the parties agree as follows:
1. Selection of Arbitrator. The arbitration shall be conducted by a single
arbitrator (the "Arbitrator"). The Arbitrator shall have been appointed by
mutual agreement of Valco and ▇▇▇▇▇▇▇ from those employees or principals of
those real estate appraisal firms listed in Exhibit "I" hereto who are
Accredited Members of the Appraisal Institute of Canada (A.A.C.I.) or who are
Certified Real Estate Appraisers (C.R.A.). ▇▇▇▇▇ and ▇▇▇▇▇▇▇ have advised the
parties that they have selected ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ as the Arbitrator. The
parties shall settle with the Arbitrator the basis on which the costs charged by
him will be calculated. If required to do so by the Arbitrator, each of the
parties agrees to pay one-half of the Arbitrator's reasonable estimate of such
costs into a trust account maintained by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, counsel to the
Seller, out of which trust deposit the Arbitrator shall be paid upon completion
of the arbitration.
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Schedule L - Page 3
2. The Arbitrator shall be instructed by the parties that time is of the essence
in these proceedings, and he shall be requested to make a determination of the
current market value of the Real Property, and to the extent reasonably
possible, to do so within thirty (30) days of the submission of this matter to
him for arbitration.
3. The arbitration shall take place in London, Ontario.
4. The arbitration award shall (a) be given in writing and shall be final and
binding on the Seller and the Buyer, (b) not subject to any appeal, and (c) deal
with the question of costs of arbitration on the basis that each of the Seller
and the Buyer shall be responsible for one-half of such costs.
5. Judgment upon the award rendered may be entered in any court having
jurisdiction, or application may be made to such count for a judicial
recognition of the award or an order of enforcement as the case may be.
6. In exercising his expertise as a real estate appraiser, the Arbitrator shall
be instructed (and shall agree) to take the information contained in each of the
following reports into account in making his determination of the current market
value of the Real Property:
a. A written copy of the Valco Appraisal, together with such
support documentation as ▇▇▇▇▇, acting reasonably, deems
necessary and appropriate in support thereof.
b. A written copy of the Egerton Appraisal, together with such
support documentation as ▇▇▇▇▇▇▇, acting reasonably, deems
necessary and appropriate in support thereof.
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Schedule L - Page 4
c. A written copy of the Phase 1 environmental report in respect
of the Real Property dated March, 1998 prepared by Trow
Consulting Engineers Ltd. ("Trow") at the request of the
Buyer.
d. The Arbitrator shall have full access to review the premises
receive such further submissions from each of Valco, ▇▇▇▇▇▇▇
and Trow as he may request in writing, with written notice to
each of the Buyer and Seller.
7. Regardless of the current market value for the Real Property determined by
the Arbitrator under this arbitration, for purposes of adjustments to the
Purchase Price contemplated by section 2 of this agreement:
a. if the current market value for the Real Property made by the
Arbitrator is $500,000.00 or less, then it shall be deemed to
be $500,000.00; and
b. if the current market value for the Real Property made by the
Arbitrator is $900,000.00 or more, then it shall be deemed to
be $900,000.00.
8. Upon the Arbitrator rendering his decision, the Seller and the Buyer agree to
adjust the Purchase Price to an amount equal to the current market value for the
Real Property as so determined by the Arbitrator under section 6 of this
Agreement, and:
a. if the current market value for the Real Property as
determined by the Arbitrator (the "Appraised Value") is less
than $750,000.00, then the Seller shall pay to the Buyer the
difference between the Appraised Value (subject to the
application of the limitation set in section 7 hereof) and
$750,000.00;
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Schedule L - Page 5
b. if the Appraised Value is more than $750,000.00, then the
Buyer shall pay to the Seller the difference between the
Appraised Value (subject to the application of the limitation
set in section 7 hereof) and $750,000.00; and
c. if the Appraised Value is $750,000.00, the dispute shall be at
an end and neither the Buyer nor the Seller shall be obligated
to the other, subject only to their respective obligations to
the Arbitrator for any costs awarded by him.
Any payment by the Buyer and the Seller, as the case may be, shall be made to
the Seller and the Buyer, as the case may be, by the earlier of:
a. April 30,1998; and,
b. The date on which final adjustments are completed of a certain
asset purchase agreement of even date to which this Agreement
relates.
IN WITNESS WHEREOF the parties hereto have hereunto duly executed this
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Schedule L - Page 6
Agreement as of the day and year first above written.
DOMINION AUTOMOBILE ASSOCIATION LIMITED
Per:
-----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
I have authority to bind the Corporation
WESTMINSTER MERCANTILE INC. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Per: ______________________________ Per: __________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Partner
Title: President
I have authority to bind the Corporation
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Schedule L - Page - 7
SCHEDULE "A"
APPRAISER LIST
1. ▇.▇. ▇▇▇▇▇▇▇ Group Inc. - London, Ontario
2. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - London, Ontario
71
THIS AGREEMENT made as of the 28th day of February, 1998.
BETWEEN:
DOMINION AUTOMOBILE ASSOCIATION LIMITED, a
corporation duly incorporated under the laws of Canada,
(hereinafter called the "Purchaser")
OF THE FIRST PART
and
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, of the City of London, in the
Province of Ontario,
(hereinafter called the "Vendor")
OF THE SECOND PART
RECITALS:
A. The Vendor is the beneficial and registered owner of 10 common shares
(hereinafter called the "Purchased Shares") in the capital of National
Automobile Association Inc., a corporation incorporated pursuant to the
laws of Canada (hereinafter called "National"); and
B. The Purchaser has agreed to purchase, and the Vendor has agreed to
sell, the Purchased Shares, in accordance with the terms and conditions
herein set forth;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises and the covenants herein contained, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Shares to be Purchased and Sold. Subject to the terms and conditions hereof,
the Vendor hereby agrees to sell, assign and transfer to the Purchaser and the
Purchaser hereby agrees to purchase from the Vendor as of the Time of Closing
(as hereinafter defined) the Purchased Shares.
2. Purchase Price. The purchase price payable for the Purchased Shares shall be
one dollar ($1.00).
72
2
3. Payment of the Purchase Price. The purchase price for the Purchased Shares
shall be paid and satisfied by delivery of the sum of One ($1.00) Dollar in cash
to the Vendor, or as be shall direct.
4. Representations and Warranties. The Vendor hereby represents and warrants to
the Purchaser as follows and hereby acknowledges and confirms that the Purchaser
is relying on such representations and warranties in connection with the
purchase by the Purchaser of the Purchased Shares:
(a) National has been incorporated and organized and is validly
subsisting under the laws of Canada;
(b) the authorized capital of National consists of an unlimited
number of common shares of which, as of the date hereof, 10
common shares (and no more) have been issued and are
outstanding;
(c) the Purchased Shares are now and will be at the Time of
Closing (as defined in paragraph 5 hereof) beneficially owned
by the Vendor with good and marketable title, free of all
liens, charges and other encumbrances whatsoever;
(d) no person, firm or corporation has now or will have at the
Time of Closing (as defined in paragraph 5 hereof) any
agreement (other than this agreement) or option or right
capable of becoming an agreement or option for the purchase
from the Vendor of any of the Purchased Shares;
(e) the Balance Sheet attached hereto as Schedule "A" presents
fairly the assets, liabilities and financial condition of
National as at the date of the Balance Sheet; and
(f) National has not carried on any active business since
approximately 1988.
5. Closing. The closing of the sale and purchase of the Purchased Shares shall
take place at such time and date as the Purchaser and Vendor may determine, the
actual day when such closing is to take place being herein referred to as the
"Day of Closing" and the actual time when such closing is to take place being
herein referred to as the "Time of Closing".
6. General.
6.1 The representations and warranties herein contained shall survive the
closing of the sale and purchase of the Purchased Shares and shall continue in
full force and effect for the benefit of the Purchaser provided, however, that
no claim in respect thereof shall be valid unless it is made within a period of
one year of the Day of Closing.
73
3
6.2 The Vendor covenants to do, or cause to be done, all acts, deeds or things
necessary to complete the transaction of purchase and sale of the Purchased
Shares herein provided for so that following closing, the Purchaser may be the
beneficial holder of the Purchased Shares, including without limitation the
delivery to the Purchaser of a certificate or certificates representing the
Purchased Shares duly endorsed for transfer, and causing the transfer of such
shares to be duly and validly recorded on the books of National in the name of
the Purchaser.
6.3 The provisions of this agreement shall enure to the benefit of and shall be
binding upon the successors and assigns of each of the Vendor and the Purchaser.
DOMINION AUTOMOBILE ASSOCIATION LIMITED
Per:
Duly Authorized Officer
_________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
74
NATIONAL AUTOMOBILE ASSOCIATION LIMITED
FINANCIAL STATEMENT
YEAR ENDED NOVEMBER 30 1996
ASSETS
CASH $100.00
LIABILITIES
0.00
EQUITY
COMMON SHARES $100.00
75
NATIONAL AUTOMOBILE ASSOCIATION LIMITED
INCOME STATEMENT
YEAR ENDED NOVEMBER 30, 1996
REVENUES 0.00
EXPENSES 0.00
PROFIT 0.00
