Asset Purchase Agreement among RoyNat Inc., Irwin Commercial Finance Canada Corporation, Onset Alberta Ltd., and Irwin Union Bank and Trust Company (July 23, 2008)
This agreement is between RoyNat Inc. (the buyer), Irwin Commercial Finance Canada Corporation and Onset Alberta Ltd. (the sellers), and Irwin Union Bank and Trust Company (the parent). RoyNat Inc. agrees to purchase substantially all assets related to the sellers' small-ticket equipment leasing business in Canada, with the transaction occurring in two stages (First Closing and Second Closing). The agreement details which assets are included and excluded, and sets out the terms, conditions, and obligations for both parties to complete the sale.
(a) | Effective as of the First Effective Time, the following assets, free and clear of all Encumbrances, other than Permitted Encumbrances (collectively, the First Closing Assets): |
(i) | the Portfolio; | ||
(ii) | all Lease Receivables and all CSC Receivables; | ||
(iii) | all rights in, to and under the Premier Insurance Program; | ||
(iv) | all rights in, to and under the Corporate Insurance Policies as a loss payee thereunder; | ||
(v) | all Financed Property; and | ||
(vi) | all Files and Records relating to any item in the Portfolio or the Financed Property. |
(b) | Effective as of the Second Effective Time, all of the other properties, assets and interests of Seller (whether tangible or intangible) of any kind, nature, character and description Related to the Business, whether real, personal or mixed, whether accrued, contingent or otherwise, that are owned, leased or licensed by Seller as of the Second Effective Time, other than the Excluded Assets, free and clear of all Encumbrances, other than Permitted Encumbrances (collectively, the Second Closing Assets). For greater certainty, the Second Closing Assets shall include: |
(i) | all Inventories; | ||
(ii) | all Equipment and Machinery; | ||
(iii) | all rights in, to and under the Assigned Equipment Leases; | ||
(iv) | all rights in, to and under the Assigned Contracts (other than the Premier Insurance Program and the Corporate Insurance Policies); | ||
(v) | all Intangible Assets, other than goodwill related to the Excluded Assets; | ||
(vi) | all Intellectual Property Assets, other than the Excluded Intellectual Property Assets; | ||
(vii) | all prepaid expenses; | ||
(viii) | stationery, forms and invoices, brochures, advertising materials and similar items, but excluding all of the Excluded Assets; | ||
(ix) | the Real Property Leases; | ||
(x) | all Files and Records; |
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(xi) | all accounts receivable Related to the Business other than accounts receivable related to the Excluded Assets; | ||
(xii) | all rights and interests under or pursuant to all warranties, representations and guarantees, express, implied or otherwise, of or made by suppliers or others in connection with any or all of the foregoing or the Assumed Liabilities or otherwise Related to the Business, other than any such rights and interests related to the Excluded Assets or the Excluded Liabilities; and | ||
(xiii) | all proceeds of any or all of the foregoing received or receivable after the Second Effective Time. |
(a) | all Cash and Cash Equivalents; | ||
(b) | all securities issued by any Person and owned by Seller, other than any securities that are, as of the First Closing Date, pledged as security for any Asset; | ||
(c) | all Derivatives; | ||
(d) | all financial statements, Tax Returns and other Tax records and related information of Seller; | ||
(e) | all rights in, to and under all insurance policies not Related to the Business, if any; | ||
(f) | the stock records, minute books and corporate seal (if any) of Seller; | ||
(g) | the shares of capital stock of Irwin Canada and Onset held in treasury and the shares of Onset held by Irwin Canada; | ||
(h) | photocopies of all Employee records, Key Employee records and other records that Seller is required by Applicable Law to retain in its possession; | ||
(i) | all deferred Tax assets, all claims for refund of Taxes and other governmental charges of whatever nature; | ||
(j) | all rights in connection with and assets of the Benefit Plans; | ||
(k) | all rights of Seller under this Agreement and under the Related Agreements; | ||
(l) | all rights of Seller to any deposits and prepaid expenses pertaining to the Excluded Assets; |
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(m) | all insurance benefits, including rights and proceeds, arising from or relating to the First Closing Assets or the Assumed First Closing Liabilities prior to the First Effective Time; | ||
(n) | all insurance benefits, including rights and proceeds, but excluding benefits, right and proceeds of the Premier Insurance Program, arising from or relating to the Second Closing Assets or the Assumed Second Closing Liabilities prior to the Second Effective Time; | ||
(o) | all claims of Seller against third parties relating to the First Closing Assets or the Assumed First Closing Liabilities, whether choate or inchoate, known or unknown, contingent or non-contingent, arising from or relating to any occurrence, event or circumstance occurring any time prior to the First Effective Time; | ||
(p) | all claims of Seller against third parties relating to the Second Closing Assets or the Assumed Second Closing Liabilities, whether choate or inchoate, known or unknown, contingent or non-contingent, arising from or relating to any occurrence, event or circumstance occurring any time prior to the Second Effective Time; | ||
(q) | all recoveries not paid on or prior to the Second Closing Date relating to any Proceedings relating to the Second Closing Assets and in respect of matters arising from or relating to matters occurring any time prior to the Second Effective Time; | ||
(r) | all rights and actions against third parties relating to any of the Excluded Assets or any of the Excluded Liabilities, including under insurance policies; | ||
(s) | the Intercompany Agreements; | ||
(t) | the trade-marked Irwin stylized i logo, the Onset Alberta name and mark, the Irwin name and mark and any variations of such name and mark used or formerly used in connection with the Business, including Irwin Commercial Finance, Irwin Business Finance, Irwin Equipment Finance, and Irwin Franchise Capital, and all domain names and internet protocol addresses, whether or not used or currently in service, all of which are set forth in Section 1.02(t) of the Disclosure Schedules (including the owner thereof) (collectively, the Excluded Intellectual Property Assets), and any goodwill associated therewith; provided, that certain of the Excluded Intellectual Property Assets shall be licensed to Purchaser pursuant to the License Agreement; | ||
(u) | the Intercompany Receivables; and | ||
(v) | the Excluded Items. |
(a) | Effective as of the First Effective Time, Purchaser shall assume and agree to discharge only the following Liabilities of Seller related to the First Closing Assets (collectively, the Assumed First Closing Liabilities): |
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(i) | those Liabilities of Seller under the CSC Documents and the Lease Documents arising out of or relating to any time after the First Effective Time; | ||
(ii) | those Liabilities of Seller with respect to the Deposits; | ||
(iii) | those Liabilities of Seller under the Premier Insurance Program or the Corporate Insurance Policies solely as they relate to Purchaser as a loss payee arising out of or relating to any time after the First Effective Time; and | ||
(iv) | those Liabilities of Seller with respect to the First Closing Transfer Taxes. |
(b) | Effective as of the Second Effective Time, Purchaser shall assume and agree to discharge only the following Liabilities of Seller relating to the Second Closing Assets: |
(i) | those Liabilities of Seller under the Assigned Contracts (other than the Premier Insurance Program) arising out of or relating to any time after the Second Effective Time; and | ||
(ii) | those Liabilities of Seller with respect to the Second Closing Transfer Taxes |
(a) | any Liability for Taxes arising out of the operation of the Business at or prior to the Second Effective Time, including: |
(i) | any Taxes arising out of or relating to Sellers operation of the Business or ownership of the Assets at or prior to the Second Effective Time; | ||
(ii) | any Liability for Taxes under the Income Tax Act or any other Taxes whatsoever that are or may become payable by Seller, including any Taxes arising out of or relating to the sale and transfer of the Assets pursuant to this Agreement (but excluding any Liability for First Closing Transfer Taxes and Second Closing Transfer Taxes); and | ||
(iii) | any deferred Taxes of any nature, |
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provided, however, that the Excluded Liabilities shall not include any Liability for Taxes arising out of or relating to the ownership of the First Closing Assets after the First Effective Time; | |||
(b) | any Liability arising out of or relating to Sellers credit facilities or any security interest related thereto; | ||
(c) | any environmental, health and safety Liabilities arising out of or relating to the operation of the Business or Sellers leasing or operation of the Leased Real Property, in each case, at or prior to the Second Effective Time; | ||
(d) | any employment Liability, including any Liability under the Benefit Plans in respect of Sellers Employees, Key Employees, former employees, officers and directors; | ||
(e) | any Liability to distribute to any of Sellers shareholders or otherwise apply all or any part of the consideration received hereunder; | ||
(f) | any Liability arising out of or relating to any Proceeding arising out of or relating to any occurrence, event or circumstance happening or existing at or prior to: (i) the First Effective Time (whether or not such Proceeding is brought or initiated prior to, at or after the First Effective Time) relating to the First Closing Assets or the Assumed First Closing Liabilities; and (ii) the Second Effective Time (whether or not such Proceeding is brought or initiated prior to, at or after the Second Effective Time) relating to the Second Closing Assets or the Assumed Second Closing Liabilities; | ||
(g) | any Liability of Seller under this Agreement or any of the Related Agreements; | ||
(h) | any Liability for Intercompany Payables or any Liability owing by Seller to an Affiliate of Seller or Parent; | ||
(i) | any Liability arising prior to or at (i) the First Effective Time in respect of the First Closing Assets, or (ii) the Second Effective Time in respect of the Second Closing Assets; | ||
(j) | any Liability arising out of or relating to the Securitization Transactions or the Securitization Documents, including, in each case, the termination thereof; | ||
(k) | any Undisclosed Liabilities; | ||
(l) | any Liability arising out of or relating to any or all of the Excluded Assets; and | ||
(m) | any Liability arising out of or relating to fraud of Seller, Parent or any of their respective Affiliates. |
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(a) | The aggregate consideration (the Purchase Price) to be paid by Purchaser to Seller for the Assets shall be equal to: |
(i) | the sum of the following: |
(A) | the Estimated Net Portfolio Value, calculated in a manner consistent with the sample calculation attached hereto as Exhibit 1.05, subject to adjustment pursuant to Section 1.06 below; plus | ||
(B) | $3,750,000 in Canadian Dollars, subject to adjustment in the event of Material Portfolio Change since May 31, 2008 (such amount, as adjusted, the Additional Portfolio Amount); plus | ||
(C) | $3,750,000 in Canadian Dollars, subject to adjustment in the event of a Material Portfolio Change between May 31, 2008 and the First Closing Date (the Holdback Amount); and |
(ii) | the assumption by Purchaser of the Assumed Liabilities. |
(b) | The Estimated Net Portfolio Value and the Additional Portfolio Amount shall be payable by Purchaser on the First Closing Date by wire transfer of immediately available funds in Canadian Dollars to an account or accounts designated in writing by Seller, which account or accounts shall be designated at least two (2) Business Days prior to the First Closing Date. | ||
(c) | The Holdback Amount shall be payable by Purchaser on the Second Closing Date by wire transfer of immediately available funds in Canadian Dollars to an account or accounts designated in writing by Seller, which account or accounts shall be designated at least two (2) Business Days prior to the Second Closing Date. | ||
(d) | The Assumed First Closing Liabilities shall be assumed by Purchaser at the First Closing pursuant to an Assignment and Assumption Agreement. | ||
(e) | The Assumed Second Closing Liabilities shall be assumed by Purchaser at the Second Closing pursuant to an Assignment and Assumption Agreement. | ||
(f) | By no later than three (3) Business Days prior to the First Closing Date, Seller and Purchaser shall have jointly prepared in good faith an estimated Closing Date Balance Sheet, together with a calculation, using the data set forth in such estimated Closing Date Balance Sheet, setting forth an amount equal to the Net Portfolio Value as at 11:59 p.m. EDT (the Close of Business) on the day prior to the First Closing Date (the Estimated Net Portfolio Value). | ||
(g) | Following the First Closing, Purchaser or Seller, as applicable, shall pay any adjustment to the Estimated Net Portfolio Value pursuant to Section 1.06. |
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(a) | Closing Date Balance Sheet. Within twenty (20) Business Days following the First Closing Date, Purchaser shall prepare and deliver to Seller the Closing Date Balance Sheet. Using the data set forth in such Closing Date Balance Sheet, Purchaser shall prepare a statement of the Net Portfolio Value as of the Close of Business on the day prior to the First Closing Date calculated in a manner consistent with the sample calculation attached hereto as Exhibit 1.05, in detail reasonably acceptable to Seller (the Closing Date Net Portfolio Value Statement) showing as of the Close of Business on the day prior to the First Closing Date Purchasers determination of the Net Portfolio Value (the Purchasers Final Net Portfolio Value Determination) and the proposed amount, if any, by which the Estimated Net Portfolio Value is to be adjusted as a result thereof. Purchaser shall complete such Closing Date Net Portfolio Value Statement within twenty (20) Business Days after the First Closing Date and, upon completion, shall deliver a copy to Seller. | ||
(b) | Sellers Notification. As promptly as practicable, but in no event later than fifteen (15) Business Days after receipt of the Closing Date Net Portfolio Value Statement, Seller shall notify Purchaser in writing whether it accepts or disputes the accuracy of Purchasers Final Net Portfolio Value Determination. During such fifteen (15) Business Day period, Seller and its representatives shall be provided with such access to all Files and Records and the Key Employees as they may reasonably request to respond to the Closing Date Net Portfolio Value Statement. If Seller accepts Purchasers Final Net Portfolio Value Determination or if Seller fails within such fifteen (15) Business Day period to notify Purchaser of any dispute with respect thereto, Purchasers Final Net Portfolio Value Determination shall be deemed final and conclusive and binding upon all parties. | ||
(c) | Dispute Notice. If Seller disputes the calculation of Purchasers Final Net Portfolio Value Determination, Seller shall give timely written notice (the Dispute Notice) to Purchaser no later than fifteen (15) Business Days following the receipt of the Closing Date Net Portfolio Value Statement, which Dispute Notice shall specify the reasons for such disagreement, the amounts of any adjustments that are necessary in Sellers good faith judgment for the computation of Purchasers Final Net Portfolio Value Determination and the basis for Sellers suggested adjustment. If the parties resolve their differences over the disputed items, the final Net Portfolio Value determination (as so determined or as determined pursuant to Sellers acceptance in accordance with Section 1.06(b) or by the Independent Auditor pursuant to this Section 1.06(c), as the case may be, the Final Net Portfolio Value), shall be the amount agreed upon. If Purchaser and Seller are unable to resolve all disputed matters within fifteen (15) Business Days after the delivery of a Dispute Notice (or such longer period as Purchaser and Seller may mutually agree in writing), all disputed matters raised by Seller not so resolved shall be submitted to Deloitte & Touche LLP or if Deloitte & Touche LLP cannot act in such matter, another nationally recognized accounting firm that is independent of the parties hereto, is not the auditor for Purchaser, The Bank of Nova Scotia, Seller or Parent, is mutually agreeable to Purchaser and Seller and has significant experience in the commercial |
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finance industry (the Independent Auditor), for final resolution in accordance with the terms and provisions of this Agreement. Purchaser and Seller shall use their respective Best Efforts to cause the Independent Auditor to make its determination as soon as possible, but in no event later than fifteen (15) Business Days after the submission to it of the disputed matters. In no event shall the Independent Auditors determination of the Final Net Portfolio Value be greater than Purchasers determination pursuant to Section 1.06(a) or less than Sellers determination pursuant to Section 1.06(b). If possible, the Independent Auditor shall make its determination based solely on presentations by Purchaser and Seller; provided, that if the Independent Auditor is unable to reach a conclusion on that basis, the Independent Auditor shall review such additional information and perform such additional procedures as the Independent Auditor reasonably deems necessary. In any event, the Independent Auditors determination shall be limited to matters of dispute which are raised by Seller in the Dispute Notice. In the event a party does not comply with the procedural and time requirements contained herein or such other procedural or time requirements as the parties otherwise agree to in writing, the Independent Auditor shall render a decision based solely on the evidence it has which was timely provided by the parties. The Independent Auditors determination shall be final, binding and conclusive upon the parties hereto. The Independent Auditors resolution of any such disagreement shall be reflected in a written report, which shall be delivered promptly to Purchaser and Seller. All fees, costs, expenses and disbursements of the Independent Auditor shall be paid by the party with whose determination the Independent Auditor does not agree; provided, however, that if the Independent Auditors determination represents a compromise between the determination of Purchaser and Seller, then each party shall pay fifty percent (50%) of such fees, costs, expenses and disbursements. If a retainer is required by the Independent Auditor, the retainer shall be split equally between Seller and Purchaser; provided, however, that the retainer shall be considered part of the fees, costs and expenses of such Independent Auditor and if either party has paid a portion of such retainer, such party shall be entitled to be reimbursed by the other party to the extent required by this Section 1.06(c). Any payment to be made as a consequence of the Independent Auditors decision shall be made, free and clear of any deductions, not later than three (3) Business Days after the receipt of such report by each of Purchaser and Seller. | |||
(d) | Payment by Purchaser. In the event that the amount of the Final Net Portfolio Value is greater than the Estimated Net Portfolio Value, then Purchaser shall, within five (5) Business Days after the determination thereof, pay to Seller an amount equal to such difference, by wire transfer of immediately available funds in Canadian Dollars to an account designated in writing by Seller. | ||
(e) | Payment by Seller. In the event that the Final Net Portfolio Value is less than the Estimated Net Portfolio Value, then Seller shall, within five (5) Business Days after the determination thereof, pay to Purchaser an amount equal to such difference, by wire transfer of immediately available funds in Canadian Dollars to an account designated in writing by Purchaser. |
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(a) | First Closing Deliveries. Subject to the satisfaction or waiver of the conditions set forth in Section 3.01(a), at the First Closing, Seller shall deliver to Purchaser possession of all of the First Closing Assets, Purchaser shall assume the Assumed First Closing Liabilities, and Seller shall deliver (or cause to be delivered) to Purchaser originals, or copies if specified, of the following: |
(i) | evidence, in form and substance approved in advance by Purchaser: |
(A) | of the termination of the Securitization Transactions and the Securitization Documents; and | ||
(B) | that, after giving effect to such termination of the Securitization Transactions and the Securitization Documents: |
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(I) | all of the Securitized Leases, Securitized CSCs and other property and assets subject to the Securitization Transactions (collectively, the Securitized Assets) have been absolutely reassigned or otherwise conveyed to Seller or the concurrent leases entered into under the Securitization Documents in respect of the Securitized Leases have been terminated and that Seller has title thereto free and clear of all Encumbrances, other than Permitted Encumbrances; | ||
(II) | effective as of the time of such termination, there will be a discharge or other binding release of all Encumbrances registered against Seller or otherwise attaching to the Securitized Assets or Financed Property in connection with or pursuant to the Securitization Transactions, including the release of all Encumbrances in the Securitized Assets in favour of any indenture trustee, note trustee or other secured creditor of any assignor of Securitized Assets under clause (I) above (each such discharge or release to be addressed to and capable of being relied upon by Purchaser and its assignees, and otherwise in form and substance approved in advance by Purchaser, acting reasonably) or such other documentation as the parties may agree; and | ||
(III) | there will be perfection of the reassignments and conveyances contemplated in clause (I) above under applicable personal property security legislation; and |
(ii) | an acknowledgement, in form and substance reasonably satisfactory to Purchaser, addressed to Purchaser and Seller and executed by each of the applicable trusts confirming the termination of each Securitization Transaction and each Securitization Document to which, in each case, they were a party and confirming in each case that they have no interest in the related Securitized Assets, or such other documentation as the parties may agree. | ||
(iii) | a counterpart of the First Closing Related Agreements and counterparts of all agreements, documents and instruments required to be delivered by Seller pursuant to the First Closing Related Agreements, duly executed by Seller; | ||
(iv) | copies of each notice, consent, waiver, authorization and approval required in connection with the assignment or transfer of the Premier Insurance Program and the Corporate Insurance Policies (including, in the case of the Corporate Insurance Policies, all requisite documentation to add Purchaser as a loss payee thereunder), each in form and substance reasonably satisfactory to Purchaser; |
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(v) | clearance certificates issued under section 6 of the Retail Sales Tax Act (Ontario), section 99 of the British Columbia Social Service Tax Act, section 45 of the Tax Administration and Miscellaneous Taxes Act (Manitoba), section 51 of the Revenue and Financial Services Act (Saskatchewan) and section 56 of the Revenue Tax Act, 1988 (PEI), covering the period up to the First Closing Date; provided, however, that in the event that any such certificate is not received by Seller prior to the First Closing despite Sellers Best Efforts, then Seller shall deliver such certificate to Purchaser promptly upon receipt; | ||
(vi) | a Certificate of Good Standing of Irwin Canada issued by the British Columbia Registrar of Companies and a Certificate of Status of Onset issued by the Alberta Registrar of Corporations, in each case dated within three (3) Business Days prior to the First Closing Date; | ||
(vii) | copies of all the resolutions adopted by the each of the boards of directors and shareholder of each of Irwin Canada and Onset and the board of directors of Parent authorizing and approving the execution and delivery of this Agreement and the transactions contemplated hereby, certified to be true, complete, correct and in full force and effect by the Secretary or other officer thereof; | ||
(viii) | true and complete copies of the certified articles of incorporation of each of Irwin Canada, Onset and Parent, including all amendments thereto, and a copy of the bylaws of each of them, including all amendments thereto, in each case, certified to be true, complete and correct and in full force and effect by the Secretary or other officer thereof; | ||
(ix) | a certificate, dated the First Closing Date, duly executed by an officer of Seller and Parent pursuant to Sections 3.02(a)(ii) and 3.02(a)(iii) of this Agreement; | ||
(x) | a favourable opinion of Davis LLP, as counsel to Seller, reasonably acceptable to Purchaser as to (i) Sellers existence and corporate capacity, (ii) that each of this Agreement and the First Closing Related Agreements to which it is a party have been duly authorized, executed and delivered by Seller and, subject only to customary assumptions, limitations, exceptions and qualifications, constitutes under the laws of the Province of Ontario a valid and legally binding obligation of Seller enforceable against Seller in accordance with its terms, and (iii) that all necessary consents, waivers, authorizations and approvals of, and all registrations, declarations and filings with, any Governmental Entity having jurisdiction over Seller which are required under the laws of the Provinces of British Columbia, Alberta, Ontario and Quebec and the federal laws of Canada applicable in those Provinces for the execution and delivery by Seller of this Agreement and each of the First Closing Related Agreements to which it is a party and the |
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performance by Seller of its obligations hereunder and thereunder have been obtained; |
(xi) | a favourable opinion of Blake, Cassels & Graydon LLP, as counsel to Seller, addressing customary matters for a transaction of similar nature to the termination of the Securitization Transactions and the Securitization Documents, including that all necessary security registrations have been made; | ||
(xii) | a favourable opinion of Ice Miller LLP, as counsel to Parent, reasonably acceptable to Purchaser, subject to customary assumptions, qualifications, limitations and exceptions in transactions of a similar size and nature in the United States, as to (i) due organization and valid existence of Parent; (ii) Parents requisite power and authority, (iii) due authorization, execution and delivery of this Agreement and the First Closing Related Agreements to which Parent is a party, and (iv) that no consents, approvals or authorizations of, and no registrations or filings with, any governmental authority or regulatory body of the State of Indiana for the execution and delivery by Parent of this Agreement and the First Closing Related Agreements to which it is a party and the performance by Parent of its financial obligations hereunder and thereunder except any approvals and actions that have already been obtained or taken; | ||
(xiii) | evidence of the release of all Encumbrances on the First Closing Assets, other than Permitted Encumbrances, each in form and substance reasonably satisfactory to Purchaser; | ||
(xiv) | subject to the last sentence of Section 13.04 hereof, all such other documents and instruments as Purchaser may reasonably request for the purpose of facilitating the consummation or performance of any of the transactions contemplated by this Agreement or any of the First Closing Related Agreements; | ||
(xv) | the list of Employees referred to in Section 11.03(f); | ||
(xvi) | the Closing Tape; | ||
(xvii) | the Preliminary Allocation pursuant to Section 1.07; and | ||
(xviii) | a funding memorandum, duly executed by Seller. |
(b) | Second Closing Deliveries. Subject to the satisfaction or waiver of the conditions set forth in Section 3.01(b), at the Second Closing, Seller shall deliver to Purchaser possession of all of the Second Closing Assets, Purchaser shall assume the Assumed Second Closing Liabilities to Purchaser, and Seller shall deliver (or cause to be delivered) to Purchaser originals, or copies if specified, of the following: |
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(i) | counterparts of all Second Closing Related Agreements to which Seller is a party and counterparts of all agreements, documents and instruments required to be delivered by Seller pursuant to any of the Second Closing Related Agreements to which Seller is a party, in each case duly executed by Seller; | ||
(ii) | copies of each notice, consent, waiver, authorization and approval listed in Section 2.02(b)(ii) of the Disclosure Schedules, each in form and substance reasonably satisfactory to Purchaser (the Seller Material Consents); | ||
(iii) | clearance certificates issued under section 6 of the Retail Sales Tax Act (Ontario), section 99 of the British Columbia Social Service Tax Act, section 45 of the Tax Administration and Miscellaneous Taxes Act (Manitoba), section 51 of the Revenue and Financial Services Act (Saskatchewan) and section 56 of the Revenue Tax Act, 1988 (PEI), covering the period up to the Second Closing Date; provided, however, that in the event that any such certificate is not received by Seller prior to the Second Closing despite Sellers Best Efforts, then Seller shall deliver such certificate to Purchaser promptly upon receipt; | ||
(iv) | a Certificate of Good Standing of Irwin Canada issued by the British Columbia Registrar of Companies and a Certificate of Status of Onset issued by the Alberta Registrar of Corporations, in each case dated within three (3) Business Days prior to the Second Closing Date; | ||
(v) | true and complete copies of the certified articles of incorporation of each of Irwin Canada, Onset and Parent, including all amendments thereto, and a copy of the bylaws of each of them, including all amendments thereto, in each case, certified to be true, complete and correct and in full force and effect by the Secretary or other officer thereof; | ||
(vi) | a certificate, dated the Second Closing Date, duly executed by an officer of Seller and Parent pursuant to Sections 3.02(a)(ii) and 3.02(a)(iii) of this Agreement; | ||
(vii) | a favourable opinion of Davis LLP, as counsel to Seller, reasonably acceptable to Purchaser as to (i) Sellers existence and corporate capacity, (ii) that each of this Agreement and the Second Closing Related Agreements to which it is a party have been duly authorized, executed and delivered by Seller and, subject only to customary assumptions, limitations, exceptions and qualifications, constitutes under the laws of the Province of Ontario a valid and legally binding obligation of Seller enforceable against Seller in accordance with its terms, and (iii) that all necessary consents, waivers, authorizations and approvals of, and all registrations, declarations and filings with, any Governmental Entity having jurisdiction over Seller which are required under the laws of the Provinces of British Columbia, Alberta, Ontario and Quebec and the federal laws of Canada applicable in those Provinces for the execution and delivery by Seller of this Agreement and |
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each of the Second Closing Related Agreements to which it is a party and the performance by Seller of its obligations hereunder and thereunder have been obtained. |
(viii) | a favourable opinion of Ice Miller LLP, as counsel to Parent, reasonably acceptable to Purchaser, subject to customary in assumptions, qualifications, limitations and exceptions in transactions of a similar size and nature in the United States, as to (i) due organization and valid existence of Parent; (ii) Parents requisite power and authority, (iii) due authorization, execution and delivery of this Agreement and the Second Closing Related Agreements to which Parent is a party, and (iv) that no consents, approvals or authorizations of, and no registrations or filings with, any governmental authority or regulatory body of the State of Indiana for the execution and delivery by Parent of this Agreement and the Second Closing Related Agreements to which it is a party and the performance by Parent of its financial obligations hereunder and thereunder except any approvals and actions that have already been obtained or taken; | ||
(ix) | evidence of the release of all Encumbrances on the Second Closing Assets, other than Permitted Encumbrances, each in form and substance reasonably satisfactory to Purchaser; and | ||
(x) | subject to the last sentence of Section 13.04 hereof, all such other documents and instruments as Purchaser may reasonably request for the purpose of facilitating the consummation or performance of any of the transactions contemplated by this Agreement or any of the Second Closing Related Agreements. |
2.03 | Deliveries by Purchaser |
(a) | First Closing Deliveries. Subject to the satisfaction or waiver of the conditions set forth in Section 3.02(a), at the First Closing, Purchaser shall deliver (or cause to be delivered) to Seller originals, or copies if specified, of the following: |
(i) | the Estimated Net Portfolio Value plus the Additional Portfolio Amount, payable as provided in Section 1.05(b); | ||
(ii) | counterparts of each of the First Closing Related Agreements to which Purchaser is a party and counterparts of all agreements, documents and instruments required to be delivered by Purchaser pursuant to any of the First Closing Related Agreements to which it is a party, in each case duly executed by Purchaser; | ||
(iii) | copies of all the resolutions adopted by the board of directors of Purchaser authorizing and approving the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, certified to be true, complete, correct and in full force and effect by the Secretary or other officer thereof; |
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(iv) | a Certificate of Compliance of Purchaser issued by Industry Canada dated within three (3) Business Days prior to the First Closing Date; | ||
(v) | true and complete copies of the certified articles of incorporation of Purchaser, including all amendments thereto, and a copy of the bylaws of Purchaser, including all amendments thereto, certified as true, complete and correct and in full force and effect by the Secretary or other officer thereof; | ||
(vi) | the Preliminary Allocation pursuant to Section 1.07; and | ||
(vii) | certificates, dated the First Closing Date, duly executed by an officer of Purchaser pursuant to Sections 3.01(a)(ii) and 3.01(a)(iii) of this Agreement. |
(b) | Second Closing Deliveries. Subject to the satisfaction or waiver of the conditions set forth in Section 3.02(b), at the Second Closing, Purchaser shall deliver (or cause to be delivered) to Seller originals, or copies if specified, of the following: |
(i) | the Holdback Amount, payable as provided in Section 1.05(c); | ||
(ii) | counterparts of each of the Second Closing Related Agreements to which Purchaser is a party and counterparts of all agreements, documents and instruments required to be delivered by Purchaser pursuant to any of the Second Closing Related Agreements to which it is a party, in each case duly executed by Purchaser; | ||
(iii) | a Certificate of Compliance of Purchaser issued by Industry Canada dated within three (3) Business Days prior to the Second Closing Date; | ||
(iv) | true and complete copies of the certified articles of incorporation of Purchaser, including all amendments thereto, and a copy of the bylaws of Purchaser, including all amendments thereto, certified as true, complete and correct and in full force and effect by the Secretary or other officer thereof; and | ||
(v) | certificates, dated the Second Closing Date, duly executed by an officer of Purchaser pursuant to Sections 3.01(b)(ii) and 3.01(b)(iii) of this Agreement. |
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(a) | Conditions Precedent to First Closing. The obligations of Seller to consummate the transactions contemplated by this Agreement to be completed at the First Closing are subject to the satisfaction, at or prior to the First Closing, of the following conditions, any one or more of which may be waived in writing by Seller (in its sole and absolute discretion): |
(i) | Deliveries by Purchaser. Purchaser shall have made delivery to Seller of the items specified in Section 2.03(a). | ||
(ii) | Representations and Warranties of Purchaser. All representations and warranties made by Purchaser in this Agreement (considered collectively and individually) shall be true and correct in all material respects (and for this purpose all materiality qualifications in such representations and warranties will be disregarded) on and as of the First Closing Date as if made by Purchaser on and as of such date (except for those representations and warranties which refer to facts existing at a specific date, which shall be true and correct as of such date), and Seller shall have received a certificate to that effect from Purchaser dated as of the First Closing Date. | ||
(iii) | Performance of the Obligations of Purchaser. Purchaser shall have performed, complied with or fulfilled all of the covenants, agreements, obligations and conditions (considered collectively and individually) required by this Agreement to be performed, complied with or fulfilled by Purchaser on or prior to the First Closing Date, and Seller shall have received a certificate to that effect from Purchaser dated as of the First Closing Date. | ||
(iv) | Legal Proceedings. None of Purchaser, The Bank of Nova Scotia, Seller or Parent shall be subject to any injunction, restraining order or other similar decree of a court of competent jurisdiction prohibiting the consummation of the transactions contemplated by this Agreement or any of the Related Agreements. | ||
(v) | No Violation of Orders. There shall be no injunction or other order issued by any Governmental Entity that declares this Agreement or any of the Related Agreements invalid or unenforceable in any respect or prevents or attempts to prevent the consummation of the transactions contemplated hereby or thereby. | ||
(vi) | Required Approvals. There shall have been received all consents, waivers, authorizations and approvals of any Governmental Entity necessary to permit |
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the consummation of the transactions contemplated by this Agreement, including any consents, waivers, authorizations and approvals required pursuant to any provision of the Competition Act, each of which is listed in Section 3.01(a)(vi) of the Disclosure Schedules. | |||
(vii) | Termination of Securitization Transactions and Securitization Documents. All of the Securitization Transactions and the Securitization Documents shall have been duly terminated. | ||
(viii) | Release of Parent Guarantees. Seller shall have received evidence, in form and substance satisfactory to it, of the release of Irwin Financial Corporation from its obligations under the Parent Guarantees in respect of the relevant Securitization Documents. |
(b) | Conditions Precedent to Second Closing. The obligations of Seller to consummate the transactions contemplated by this Agreement to be completed at the Second Closing are subject to the satisfaction, at or prior to the Second Closing, of the following conditions, any one or more of which may be waived in writing by Seller (in its sole and absolute discretion): |
(i) | Deliveries by Purchaser. Purchaser shall have made delivery to Seller of the items specified in Section 2.03(b). | ||
(ii) | Representations and Warranties of Purchaser. All representations and warranties made by Purchaser in this Agreement (considered collectively and individually) shall be true and correct in all material respects (and for this purpose all materiality qualifications in such representations and warranties will be disregarded) on and as of the Second Closing Date as if made by Purchaser on and as of such date (except for those representations and warranties which refer to facts existing at a specific date, which shall be true and correct as of such date), and Seller shall have received a certificate to that effect from Purchaser dated as of the Second Closing Date. | ||
(iii) | Performance of the Obligations of Purchaser. Purchaser shall have performed, complied with or fulfilled all of the covenants, agreements, obligations and conditions required under this Agreement and each of the First Closing Related Agreements to which it is a party to be performed, complied with or fulfilled by Purchaser on or prior to the Second Closing Date, and Seller shall have received a certificate to that effect from Purchaser dated as of the Second Closing Date. | ||
(iv) | Legal Proceedings. None of Purchaser, The Bank of Nova Scotia, Seller or Parent, shall be subject to any injunction, restraining order or other similar decree of a court of competent jurisdiction prohibiting the consummation of the transactions contemplated by this Agreement or any of the Related Agreements. |
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(v) | No Violation of Orders. There shall be no injunction or other order issued by any Governmental Entity that declares this Agreement or any of the Related Agreements invalid or unenforceable in any respect or prevents or attempts to prevent the consummation of the transactions contemplated hereby or thereby. | ||
(vi) | Required Approvals. There shall have been received all consents, waivers, authorizations and approvals of any Governmental Entity necessary to permit the consummation of the transactions contemplated by this Agreement to be completed at the Second Closing, including any consents, waivers, authorizations and approvals required pursuant to any provision of the Competition Act, each of which is listed in Section 3.01(a)(vi) of the Disclosure Schedules. |
(a) | Conditions Precedent to First Closing. The obligation of Purchaser to consummate the transactions contemplated by this Agreement to be completed at the First Closing is subject to the satisfaction, at or prior to the First Closing, of the following conditions, any one or more of which may be waived in writing by Purchaser (in its sole and absolute discretion): |
(i) | Deliveries by Seller. Seller shall have made delivery to Purchaser of the items specified in Section 2.02(a). | ||
(ii) | Representations and Warranties of Seller and Parent. All First Closing Representations and Warranties (considered collectively and individually) shall be true and correct in all material respects (and for this purpose all materiality qualifications in such representations and warranties will be disregarded) on and as of the First Closing Date as if made by Seller and Parent on and as of such date (except for those representations and warranties which refer to facts existing at a specific date, which shall be true and correct as of such date) and Purchaser shall have received a certificate to that effect from each of Seller and Parent dated as of the First Closing Date. | ||
(iii) | Performance of the Obligations of Seller and Parent. Seller and Parent shall have performed, complied with or fulfilled all covenants, agreements, obligations and conditions (considered collectively and individually) required by this Agreement to be performed, complied with or fulfilled by Seller or Parent on or prior to the First Closing Date, and Purchaser shall have received a certificate to that effect from each of Seller and Parent dated as of the First Closing Date. | ||
(iv) | Legal Proceedings. None of Seller, Parent, Purchaser or The Bank of Nova Scotia shall be subject to any injunction, restraining order or other similar decree of a court of competent jurisdiction prohibiting the consummation of the transactions contemplated by this Agreement or any of the Related |
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Agreements. Since the date of this Agreement, there shall not have been commenced against Seller, or against any direct or indirect majority shareholder of Seller, any Proceeding (i) involving any challenge to, or seeking damages or other relief in connection with, any of the transactions contemplated by this Agreement or any Related Agreement, or (ii) that may have the effect of preventing, delaying, making illegal, imposing limitations or conditions on or otherwise interfering with any of the transactions contemplated by this Agreement or any Related Agreement. | |||
(v) | No Violation of Orders. There shall be no injunction or other order issued by any Governmental Entity which declares this Agreement or any of the Related Agreements invalid or unenforceable in any respect or prevents or attempts to prevent the consummation of the transactions contemplated hereby or thereby. | ||
(vi) | Required Approvals. There shall have been received all consents, waivers, authorizations and approvals of any Governmental Entity necessary to permit the consummation of the transactions contemplated by this Agreement, including any consents, waivers, authorizations and approvals required pursuant to any provision of the Competition Act, each of which is listed in Section 3.01(a)(vi) of the Disclosure Schedules. | ||
(vii) | Termination of Securitization Transactions and Securitization Documents. The Securitization Transactions and the Securitization Documents shall have been duly terminated. | ||
(viii) | Termination of Securcor Securitization. Seller shall have delivered to Purchaser evidence in form and substance reasonably satisfactory to Purchaser, of the termination of the Securcor Securitization. | ||
(ix) | No Material Adverse Change. During the First Interim Period, there shall have been no Material Adverse Change. | ||
(x) | Master Tapes. The Pre-Closing Tape and the Closing Tape shall have been delivered to Purchaser in accordance with this Agreement and each shall be in form and substance satisfactory to Purchaser in its sole discretion. | ||
(xi) | No Extraordinary Decline in Value. No extraordinary decline in the value of the Portfolio and no significant deterioration in the quality of the Portfolio or the Business shall have occurred during the First Interim Period. | ||
(xii) | Reputation. No matter shall have occurred in relation to the Business or the Portfolio which could adversely affect the reputation of the Business or Purchaser. | ||
(xiii) | Employment Agreements. Purchaser shall have finalized and entered into employment agreements with each of the Key Employees in form and substance reasonably satisfactory to Purchaser. |
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(b) | Conditions Precedent to Second Closing. The obligation of Purchaser to consummate the transactions contemplated by this Agreement to be completed at the Second Closing is subject to the satisfaction, at or prior to the Second Closing, of the following conditions, any one or more of which may be waived in writing by Purchaser (in its sole and absolute discretion): |
(i) | Deliveries by Seller. Seller shall have made delivery to Purchaser of the items specified in Section 2.02. | ||
(ii) | Representations and Warranties of Seller and Parent. All Second Closing Representations and Warranties (considered collectively and individually) shall be true and correct in all material respects (and for this purpose all materiality qualifications in such representations and warranties will be disregarded) on and as of the Second Closing Date as if made by Seller and Parent on and as of such date (except for those representations and warranties which refer to facts existing at a specific date, which shall be true and correct as of such date) and Purchaser shall have received a certificate to that effect from each of Seller and Parent dated as of the Second Closing Date. | ||
(iii) | Performance of the Obligations of Seller and Parent. Seller and Parent shall have performed, complied with or fulfilled all covenants, agreements, obligations and conditions (considered collectively and individually) required by this Agreement for the Second Closing and each of the First Closing Related Agreements to which it is a party to be performed, complied with or fulfilled by Seller or Parent on or prior to the Second Closing Date, and Purchaser shall have received a certificate to that effect from each of Seller and Parent dated as of the Second Closing Date. | ||
(iv) | Legal Proceedings. None of Seller, Parent, Purchaser or The Bank of Nova Scotia shall be subject to any injunction, restraining order or other similar decree of a court of competent jurisdiction prohibiting the consummation of the transactions contemplated by this Agreement to be completed at the Second Closing or any of the Second Closing Related Agreements. Since the date of this Agreement, there shall not have been commenced against Seller, or against any direct or indirect majority shareholder of Seller, any Proceeding (i) involving any challenge to, or seeking damages or other relief in connection with, any of the transactions contemplated by this Agreement or any Related Agreement, or (ii) that may have the effect of preventing, delaying, making illegal, imposing limitations or conditions on or otherwise interfering with any of the transactions contemplated by this Agreement to be completed at the Second Closing or any Second Closing Related Agreement. | ||
(v) | No Violation of Orders. There shall be no injunction or other order issued by any Governmental Entity which declares this Agreement or any of the Related Agreements invalid or unenforceable in any respect or prevents or attempts to prevent the consummation of the transactions contemplated hereby or thereby. |
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(vi) | Required Approvals. There shall have been received all consents, waivers, authorizations and approvals of any Governmental Entity necessary to permit the consummation of the transactions contemplated by this Agreement to be completed at the Second Closing, including any consents, waivers, authorizations and approvals required pursuant to any provision of the Competition Act, each of which is listed in Section 3.01(a)(vi) of the Disclosure Schedules. | ||
(vii) | No Material Adverse Change. During the Second Interim Period, there shall have been no Material Adverse Change. | ||
(viii) | Due Diligence. Purchaser shall be satisfied with the results of its due diligence investigation with respect to the Second Closing Assets and Assumed Second Closing Liabilities, including interviews with selected staff and management of Seller. | ||
(ix) | Reputation. No matter shall have occurred in relation to the Business (as it exists immediately following the First Closing) or the Portfolio which could adversely affect the reputation of the Business (as it exists immediately following the First Closing) or Purchaser. | ||
(x) | Excluded Items. Each of the Excluded Items, and all Liabilities arising from or relating thereto, shall have been duly and effectively sold by or otherwise transferred from Seller. | ||
(xi) | Acceptance of Employment Offers. A majority of the Employees engaged in each of the principal functions of the Business shall have accepted the offers of employment made by Purchaser pursuant to Section 11.03(a). |
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(a) | The execution, delivery and performance of this Agreement and each of the Related Agreements to which they are a party by each Seller and Parent do not and shall not violate or conflict with any provision of the articles of incorporation, bylaws or other Governing Documents thereof. | ||
(b) | The execution, delivery and performance of this Agreement and each of the Related Agreements by each Seller and Parent do not and shall not: (i) violate any Applicable Law with respect to Seller, Parent or the Business; (ii) except as set forth in Section 4.03(b) of the Disclosure Schedules, violate or result in a material breach of or constitute (with or without due notice or lapse of time or both) a material default under any Contract, consent order or other instrument or obligation to which any Seller or Parent is a party, or by which its assets or properties may be bound; (iii) result in the imposition of any Encumbrance or restriction, except for Permitted Encumbrances, on the Business or any of the Assets, cause the maturity of any Liability of any Seller or Parent to be accelerated or increased (with or without due notice or lapse of time or both); or (iv) except as set forth in Section 4.03(b) of the Disclosure Schedules, require any notice to, filing with or consent, waiver, authorization or approval from any Governmental Entity or any other Person. |
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(a) | have been prepared in accordance with Canadian GAAP, except for the Financial Statements of Irwin Financial Corporation and its subsidiaries, which have been prepared in accordance with U.S. GAAP, in each case, on the basis of the Files and Records; and |
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(b) | are true and correct and fairly present the financial position of Seller as of the respective dates thereof and the results of Sellers operations and income for the periods covered thereby, except for the absence of footnotes and of customary year-end adjustments made in accordance with Canadian GAAP. |
(a) | Seller has filed or caused to be filed on a timely basis all Tax Returns with respect to Taxes that are or were required to be filed. Seller has paid, or made provision for the payment of, all Taxes shown to be due thereon, except such Taxes as are set forth in Section 4.09(a) of the Disclosure Schedules or which are not yet delinquent or are being contested in good faith and as to which adequate reserves (determined in accordance with Canadian GAAP) have been provided in the Interim Balance Sheet. Except as set forth in Section 4.09(a) of the Disclosure Schedules, Seller currently is not the beneficiary of any extension of time within which to file any Tax Return or any waiver or extension of time for the assessment of any Tax. There is no pending or, to the Knowledge of Seller, threatened, claim by any Governmental Entity in a jurisdiction where Seller does not file Tax Returns that it is or may be subject to taxation by that jurisdiction. | ||
(b) | Except as set forth in Section 4.09(b) of the Disclosure Schedules, there is no Tax sharing agreement, Tax allocation agreement, Tax indemnity obligation or similar Contract, understanding or practice with respect to Taxes (including any advance pricing agreement, closing agreement or other arrangement relating to Taxes) that shall require any payment by Seller. | ||
(c) | Seller has made all collection and withholding of Taxes required to be made under all Applicable Law, including collection or withholding with respect to sales and use Taxes and compensation paid to any employee, independent contractor, creditor of Seller or other third party and the amounts collected or withheld have been properly and timely paid over to the appropriate Taxing Authority. Seller is not a party to any express Tax settlement agreement, arrangement, policy or guideline, formal or informal, as of the First Closing Date and as of the Second Closing Date, as applicable, and Seller has no obligation to make payments under any such arrangement. | ||
(d) | Seller is not a non-resident of Canada within the meaning of the Income Tax Act. Seller is registered for the purposes of the GST Legislation and the registration number for Irwin Canada is 87042 0247 RT0001 and the registration number for Onset is 87065 2518 RT0001. This Agreement provides for the sale to Purchaser of all or part of a business that was established or carried on by Seller. |
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(a) | Section 4.12 of the Disclosure Schedules sets forth a list of all real property in which Seller, as lessee, has a leasehold interest (the Leased Real Property). Except as set forth in Section 4.12 of the Disclosure Schedules, neither Seller nor, to the Knowledge of Seller, any other party thereto is in breach of or default under any Real Property Lease, and no party to any Real Property Lease has given Seller written notice of or made a written claim with respect to any breach or default thereunder. Except as set forth in Section 4.12 of the Disclosure Schedules, to the Knowledge of Seller, the Leased Real Property is not subject to any Encumbrance that has been caused or created by Seller (other than the lien, if any, of current property Taxes and assessments not in default). To the Knowledge of Seller, there are no pending or threatened condemnation or other Proceedings or claims relating to any of the Leased Real Property. | ||
(b) | No notice of a violation of any Laws, or of any covenant, condition, easement or restriction which is material to the Leased Real Property or its use or occupancy has been given to Seller. | ||
(c) | Seller holds good, valid and marketable leasehold title to the Leased Real Property free and clear of all Encumbrances, other than Permitted Encumbrances and minor title imperfections and easements and encroachments created by Seller which do not adversely affect the use or operation of the Leased Real Property by Seller. |
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(a) | Section 4.13 of the Disclosure Schedules sets forth a list of all Equipment and Machinery (whether owned or leased by Seller) included in the Assets, and a designation as to whether such Equipment and Machinery is owned or leased by Seller. Seller has good title, free and clear of all Encumbrances (other than the Permitted Encumbrances), to the Equipment and Machinery listed as owned by it. Seller holds good and transferable leasehold interests in all Equipment and Machinery listed as leased by it. | ||
(b) | The Equipment and Machinery are in reasonably good operating condition and repair (except for normal wear and tear), and are sufficient for the operation of the Business as presently conducted, subject to routine replacement, maintenance and repair. To the Knowledge of Seller, all warranties given by the manufacturer or seller of the Equipment and Machinery in respect thereof are in good standing and are binding and enforceable and have not been amended, cancelled, modified or encumbered. |
(a) | Section 4.14(a) of the Disclosure Schedules contains a list of the CSCs, by Obligor, current interest rate, monthly payment and outstanding principal balance as of the Close of Business on the day immediately prior to the date hereof and indicates whether and to what extent any payment (or part thereof) on any CSC is more than thirty (30) days past due or whether any CSC is otherwise in default, and indicates which CSCs are subject to the Securitization Transactions. | ||
(b) | With respect to each CSC, except as set forth in Section 4.14(b) of the Disclosure Schedules: |
(i) | each CSC Document: (A) is enforceable in accordance with its terms, subject to bankruptcy, insolvency, and similar Laws, and are not subject to any right of rescission, set-off, abatement, diminution, or counterclaim or defense, including the defense of usury, and no such right of rescission, set-off, abatement, diminution, or reasonable counterclaim or defense has been asserted with respect thereto; (B) has been duly executed and delivered by Seller and, to the Knowledge of Seller, by each Obligor that is a party thereto; and (C) is correct and complete in all material respects; | ||
(ii) | (A) unless otherwise allowed pursuant to the terms of the CSC Documents, no CSC has been prepaid fully or partially; (B) all payments required to be made for such CSC under the terms of the CSC have been made; and (C) Seller has not advanced funds, or induced, solicited or knowingly received any advance of funds from a party other than the Obligor, for the payment of any amount required by the CSC; | ||
(iii) | all interest, fees and other charges payable with respect to each such CSC conform in all respects with all Applicable Laws of the jurisdiction governing such CSC; |
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(iv) | any and all requirements of Applicable Law, including usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity, foreign entity qualification and disclosure laws, applicable to Seller with respect to each CSC have been complied with in all respects; | ||
(v) | the proceeds of each CSC have been fully disbursed, and there is no obligation or requirement for future advances thereunder by Seller, and any and all requirements as to completion of any on-site or off-site improvements and as to disbursements of any escrow funds therefor have been complied with; | ||
(vi) | Seller has delivered to Purchaser a true and complete copy of each form of CSC Document which will be in effect as of the First Effective Time without revision; and | ||
(vii) | as of the First Effective Time, Seller will be the principal and sole owner of each CSC and the related CSC Documents and Seller shall have full and absolute right, power and authority to assign, transfer and deliver the CSCs, free and clear of Encumbrances, other than Permitted Encumbrances, to Purchaser and without notice to or consent, waiver, authorization or approval of any Obligor or any other Person. |
(c) | Except as set forth in Section 4.14(c) of the Disclosure Schedules: (i) there is no material default, breach or violation or, to the Knowledge of Seller, no event of acceleration existing under any CSC or the related CSC Documents and, to the Knowledge of Seller, no event which, with the passage of time or the giving of notice, or both, would constitute a default, breach, violation or event of acceleration; (ii) to the Knowledge of Seller, no Obligor with respect to a CSC or any other CSC Document has (A) filed, or consented by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, (B) made an assignment for the benefit of its creditors, (C) consented to the appointment of a custodian, receiver, trustee, liquidator or other officer with similar power over itself or any substantial part of its property, (D) been adjudicated insolvent, or (E) taken action for the purpose of authorizing any of the foregoing; and (iii) Seller has not waived any default, breach, violation or event of acceleration. | ||
(d) | With respect to each CSC, except as set forth in Section 4.14(d) of the Disclosure Schedules: |
(i) | there is no pending or, to the Knowledge of Seller, threatened litigation with respect to any CSC which would adversely affect the rights of Purchaser to enforce such CSC or otherwise obtain the benefits contemplated with respect to each CSC; |
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(ii) | with respect to each CSC, Seller is in possession of complete Files and Records and Seller has made available to Purchaser all such Files and Records related to the CSCs and each such CSC Document contained in the Files and Records of Seller relating to a CSC is true and correct in all material respects and accurately describes the transaction to which such CSC Document relates in all material respects; | ||
(iii) | Seller has fulfilled and performed its obligations under each of the CSC Documents in all material respects, and Seller is not, and has received no written notice alleging that it is, in breach or default under any of them; | ||
(iv) | Save and except for CSCs for which, in accordance with the Credit Policies and the Ordinary Course of Business of Seller, a security interest has not been registered by Seller, each CSC is secured by either (x) a perfected, valid and enforceable first priority security interest in favour of Seller in each item of Collateral, or (y) if a credit approval contemplates that Seller would have a secondary or other subordinate security interest in any Collateral, Seller has a perfected, valid and enforceable security interest in each item of Collateral relating to such CSC with the priority contemplated by such credit approval, which security interests will be, in each case, as of the First Effective Time, assignable by Seller to Purchaser; | ||
(v) | no notice, consent, waiver, authorization or approval is required in connection with the execution, delivery or performance by, validity of or enforceability against any Obligor of any CSC Document other than those which have been duly obtained, made or performed, and are in full force and effect; and | ||
(vi) | Seller has not received any notice of violation of any Applicable Law relating to any CSC Document. |
(a) | Section 4.15(a) of the Disclosure Schedules contains a list of the Leases, by Obligor, loss reserves and outstanding balance as of the Close of Business on the day immediately prior to the date hereof and indicates whether and to what extent any payment (or part thereof) on any Leases is more than thirty (30) days past due or whether any Leases are otherwise in default and indicates which Leases are subject to the Securitization Transactions. | ||
(b) | Except as set forth in Section 4.15(b) of the Disclosure Schedules: |
(i) | each Lease Agreement and the other Lease Documents: (A) is enforceable in accordance with its terms, subject to bankruptcy, insolvency and similar Laws, and are not subject to any right of rescission, set-off, abatement, diminution, or counterclaim or defense, including the defense of usury, and no such right of rescission, set-off, abatement, diminution, or reasonable counterclaim or defense has been asserted with respect thereto, and neither |
30
the operation of the terms of the Lease Documents, nor the exercise of any right thereunder, will render them unenforceable, in whole or in part; (B) has been duly executed and delivered by Seller and, to the Knowledge of Seller, by each Obligor that is a party thereto; (C) is correct and complete in all material respects and (D) constitutes a valid and binding obligation of Seller (to the extent Seller is a party thereto) and a valid and binding obligation of the other parties thereto, and is in full force and effect subject to bankruptcy, insolvency, reorganization, moratorium, and similar laws relating to or affecting creditors rights and to general equitable principles; |
(ii) | (A) no Lease has been prepaid fully or partially; (B) all payments required to be made for such Lease under the terms of the Lease Agreement have been made; and (C) Seller has not advanced funds, or induced, solicited or knowingly received any advance of funds from a party other than the Obligor, for the payment of any amount required by the Lease; | ||
(iii) | all rent payments, fees and other charges payable with respect to each Lease Agreement conform in all respects with all Applicable Laws; | ||
(iv) | any and all requirements of any Applicable Law, including usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity, foreign entity qualification and disclosure Laws, applicable to Seller with respect to each Lease have been complied with in all respects; | ||
(v) | each Lease is secured by a perfected, valid and enforceable first priority security interest in favour of Seller in each item of Collateral relating to such Lease, which security interest will be, as of the First Effective Time, assignable by Seller to Purchaser; | ||
(vi) | there is no obligation or requirement for future purchases under any Lease by Seller; | ||
(vii) | Seller has delivered to Purchaser a true and complete copy of each form of Lease Document which will be in effect without revision; and | ||
(viii) | as of the First Effective Time, Seller will be the principal and sole owner of each Lease and the related Lease Documents and Seller shall have full and absolute right, power and authority to assign, transfer and deliver the Leases, free and clear of Encumbrances, other than Permitted Encumbrances, to Purchaser and without notice to or consent, waiver, authorization or approval of any Obligor or any other Person. |
(c) | Except as set forth in Section 4.15(c) of the Disclosure Schedules: (i) there is no material default, breach, violation or, to the Knowledge of Seller, event of acceleration existing under any Lease Agreement or the related Lease Documents and, to the Knowledge of Seller, no event which, with the passage of time or the giving of notice, or both, would constitute a default, breach, violation or event of |
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acceleration; (ii) to the Knowledge of Seller, no Obligor with respect to a Lease Agreement or any other Lease Document has (A) filed, or consented by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, (B) made an assignment for the benefit of its creditors, (C) consented to the appointment of a custodian, receiver, trustee, liquidator or other officer with similar power over itself or any substantial part of its property, (D) been adjudicated insolvent, or (E) taken action for the purpose of authorizing any of the foregoing; and (iii) Seller has not waived any default, breach, violation or event of acceleration. |
(d) | With respect to each Lease and the corresponding Lease Documents, except as set forth in Section 4.15(d) of the Disclosure Schedules: |
(i) | there is no pending or, to Sellers Knowledge, threatened litigation with respect to any Lease which would adversely affect the rights of Purchaser to enforce such Lease or otherwise obtain the benefits contemplated with respect to each Lease; | ||
(ii) | with respect to each Lease, Seller is in possession of complete Files and Records and Seller has made available to Purchaser all such Files and Records related to the Leases, and each such Lease Document contained in the Files and Records of Seller relating to a Lease is true and correct in all material respects and accurately describes the transaction to which such Lease Document relates in all material respects; | ||
(iii) | Seller has fulfilled and performed its obligations under each of the Lease Documents in all material respects, Seller is not required to disburse any additional funds to any Obligor, and Seller is not, and has received no written notice alleging that it is, in breach or default under any of them; | ||
(iv) | no notice, consent, waiver, authorization or approval is required in connection with the execution, delivery or performance by, validity of, or enforceability against any Obligor of any Lease Document other than those which have been duly obtained, made or performed, and are in full force and effect; and | ||
(v) | Seller has not received any notice of violation of any Applicable Law relating to any Lease Document. |
(a) | None of the CSCs or Leases: |
(i) | are in respect of a motor vehicle having a gross vehicle weight (specified by the manufacturer of the motor vehicle as the loaded weight of the motor vehicle or, in the case of a motor vehicle designed to pull a trailer, the motor vehicle with the trailer) that is less than twenty-one (21) tonnes; |
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(ii) | are with a natural person Obligor in respect of personal property that is leased by such Obligor under a financial lease agreement or purchased by such Obligor under a conditional sales agreement and intended primarily for the personal use or enjoyment of the Obligor or of a natural person who is not dealing with the Obligor at arms length; | ||
(iii) | are in respect of personal property, including personal property that is affixed to real property, unless such personal property was selected by the Obligor and acquired by Seller at the request of the Obligor or was previously acquired by Seller in respect of another financial lease agreement or conditional sales agreement; or | ||
(iv) | entail responsibility on the part of Seller to install, promote, service, clean, maintain or repair the property that is the subject of the CSC or Lease. |
(b) | Each of the CSCs and Leases is a financial lease agreement or conditional sales agreement, the primary purpose of which is the extending of credit to an Obligor. | ||
(c) | Seller does not have a residual interest in any CSC or Lease in excess of twenty-five percent (25%) of the original cost of the Equipment and Machinery to which the CSC or Lease relates, and the sum of the estimated residual interest of Seller in the Portfolio is not in excess of ten percent (10%) of the sum of the original costs of acquisition of such leased properties by Seller. | ||
(d) | Each of the CSCs and Leases includes a provision assigning to the Obligor, or setting out the responsibilities of Seller in respect of, the benefit of all warranties, guarantees or other undertakings made by a manufacturer or supplier in respect of the personal property that is the subject of the CSC or Lease. |
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(a) | Section 4.19(a) of the Disclosure Schedules sets forth a true and complete list of (i) all patents, patent applications, trade-marks, service marks, certification marks, business names, trademark applications, industrial design applications and registrations, integrated circuit topographies, mask works, trade names, domain names, internet protocol addresses, registered copyrights and copyright applications owned by Seller (collectively, the Proprietary Intellectual Property), (ii) all patents, trade-marks, trade names, domain names, internet protocol addresses, service marks, certification marks, business names, integrated circuit topographies, mask works, copyrights, technology, Software and processes licensed to Seller or an Affiliate thereof pursuant to a written Contract and used by Seller primarily in the operation of the Business (collectively, the Contract-Licensed Intellectual Property) and (iii) all licenses governing the Contract-Licensed Intellectual Property (the Licenses). Notwithstanding the foregoing, Section 4.19(a) of the Disclosure Schedules and the definitions of Proprietary Intellectual Property and Contract-Licensed Intellectual Property shall not include any of the Excluded Intellectual Property Assets identified in Section 1.02(t) herein. | ||
(b) | Seller owns, or has the right to use pursuant to valid and effective Contracts set forth in Section 4.19(a) of the Disclosure Schedules, all Proprietary Intellectual Property and Contract-Licensed Intellectual Property, all Off-the-Shelf Software, and all other Unregistered Intellectual Property, and all goodwill associated with each of the foregoing, where applicable (but not including Excluded Intellectual Property Assets) used to conduct the Business as presently conducted (collectively referred to as Intellectual Property Assets). Except as set forth in Section 4.19(b) of the Disclosure Schedules, no claims are pending or, to the Knowledge of Seller, threatened against Seller by any Person with respect to the Personal Information and use of any Intellectual Property Assets, or challenging or questioning their validity, enforceability or distinctiveness of any Proprietary Intellectual Property or the validity or effectiveness of any Contract relating to the Intellectual Property Assets. Except as set forth in Section 4.19(b) of the Disclosure Schedules, to the Knowledge of Seller, none of the Intellectual Property Assets or the use thereof infringe, violate or otherwise misappropriate any Intellectual Property of another Person. | ||
(c) | To the Knowledge of Seller, and except as set out in Section 4.19(c) of the Disclosure Schedules, Seller is entitled to the sole and exclusive use of all of the Intellectual Property Assets, and none of same is subject to any Encumbrances other than Permitted Encumbrances. Seller is not a party to any contract or commitment to pay any royalty, license or other fee with respect to the use of the Intellectual Property Assets except as set out in Section 4.19(c) of the Disclosure Schedules. The Intellectual Property Assets and the Excluded Intellectual Property Assets constitute all Intellectual Property necessary and material to the operation of the Business. To the Knowledge of Seller, except as set out in Section 4.19(c) of the Disclosure Schedules, no Intellectual Property Asset is subject to any outstanding order, award, decision, injunction, judgment, decree, stipulation or agreement materially restricting the transfer, use, enforcement or licensing thereof by Seller in the operation of the |
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Business. Except as set out in Section 4.19(c) of the Disclosure Schedules, no notice, consent, waiver, authorization or approval is required for Seller to license or sublicense any of the Intellectual Property Assets for the operation of the Business. |
(d) | Seller has taken, and prior to the Second Closing Date will continue to take, such reasonable measures to preserve and protect the Personal Information and its rights in the Intellectual Property Assets so as to restrict the use and disclosure thereof solely to authorized Persons. For clarification, reasonable measures to preserve and protect the Intellectual Property Assets shall: (i) not include registering or otherwise obtaining governmental protection for any of the Unregistered Intellectual Property Assets; and (ii) for the Software and Off-the-Shelf Software, only include complying with the terms and conditions of the applicable Contract. To the Knowledge of Seller, Seller is not making unauthorized use of any information which was provided to it on a confidential basis or which constitutes the trade secret of any Person. Except for those Intellectual Property Assets licensed by Seller which expressly require consent, waiver, authorization, or approval to transfer to Purchaser, which may include, but are not limited to, Software and/or Off-the-Shelf Software, all of which such Intellectual Property Assets are set forth in Section 4.19(d) of the Disclosure Schedules the transactions contemplated by this Agreement, and all due diligence investigations conducted in respect of same, will not result in the termination of, or otherwise require the consent, waiver, authorization or approval of any party to, any Intellectual Property Asset or Personal Information. Section 4.19(d) of the Disclosure Schedules is a complete list of all of the Software, Off-the-Shelf Software and other Intellectual Property Assets for which consent, waiver, authorization or approval to transfer to Purchaser is required. | ||
(e) | Following the Second Closing, Purchaser will hold enforceable licenses for all Off-the-Shelf Software and Software used by or for Seller in connection with the Business, including a sufficient number of licenses for all the Off-the-Shelf Software and Software loaded on all computers forming part of the Assets. | ||
(f) | Seller has not developed or customized, nor contributed to developing or customizing, any Software, and none of the Software that constitutes Intellectual Property Assets was developed for or on behalf of Seller by any party, including, without limitation, employees and individual contractors of Seller. All of the Software that constitutes Intellectual Property Assets is Contract-Licensed Intellectual Property. All of the Software that is used in the Business is Contract-Licensed Intellectual Property and is listed in Section 4.19(a) of the Disclosure Schedules. | ||
(g) | Except as set out in Section 4.19(g) of the Disclosure Schedules and to the Knowledge of Seller, all Software and Off-the-Shelf Software that is owned, used or licensed by Seller in the conduct of the Business is operative in all material respects as required for the conduct of the Business, and is free of any material problems, defects, deficiencies, bugs, errors, viruses or other corrupting influences. |
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(h) | All applications and registrations pertaining to the Excluded Intellectual Property Assets that are licensed to Purchaser pursuant to Section 10.01(b) (the Licensed Excluded Intellectual Property) are valid, subsisting and enforceable and have not been abandoned. Seller holds the entire right, title and interest in and to all of the Licensed Excluded Intellectual Property with good and marketable title thereto, and none of same is subject to any Encumbrances or any other rights of others, other than Permitted Encumbrances. To the Knowledge of Seller, no infringement, misuse or misappropriation of the Licensed Excluded Intellectual Property has occurred or is occurring. |
(a) | The collection, use and retention of the Personal Information by Seller complies with all Privacy Laws and is consistent with Sellers own Privacy Policies. The disclosure or transfer of the Personal Information by Seller to any third parties and disclosure of the Personal Information by Seller to Purchaser as part of Purchasers due diligence in connection with the transactions contemplated by this Agreement and as contemplated by this Agreement or any Related Agreement comply and, subject to Purchasers compliance with its obligations under Section 11.06, for the purposes of Purchasers administration and collection practices and procedures relating to the Assets following the First Closing and the Second Closing, as applicable, will comply, in each case, with all Privacy Laws and are consistent with Sellers Privacy Policies. | ||
(b) | There are no restrictions on Sellers collection, use, disclosure, transfer and retention of the Personal Information except as provided by Applicable Laws, Sellers own Privacy Policies and the Eligible Account Documents. | ||
(c) | There are no investigations, inquiries, actions, suits, claims, demands or proceedings, whether statutory or otherwise, pending or ongoing with respect to Sellers collection, use, disclosure, transfer or retention of the Personal Information. | ||
(d) | No order, whether statutory or otherwise, is pending or has been made, and no notice has been given pursuant to any Privacy Laws, requiring Seller to take (or to refrain from taking) any action with respect to the Personal Information. | ||
(e) | Set out in Section 4.20(e) of the Disclosure Schedules are the following in respect of the Personal Information: |
(i) | all Privacy Policies; | ||
(ii) | a copy of all the forms of consent used by Seller in respect of the Personal Information; and | ||
(iii) | a description of all opt-in and opt-out procedures utilized by Seller in respect of Sellers or any third partys use of the Personal Information. |
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(a) | Section 4.21 of the Disclosure Schedules sets forth a complete and correct list of all Benefit Plans, none of which are registered or supplemental pension plans. Seller has made available to Purchaser copies of all Benefit Plans, as amended to the date hereof, together with summary descriptions thereof. To the Knowledge of Seller, no event has occurred and there exists no condition or set of circumstances with respect to the Benefit Plans in connection with which Seller or Purchaser could be subject to any Liability under the terms of such Benefit Plans or any Applicable Law which could reasonably be expected to materially and adversely affect Seller. | ||
(b) | Except as disclosed in Section 4.21 of the Disclosure Schedules, each Benefit Plan has been maintained, operated and administered, in all material respects, in compliance with its terms and any related documents or agreements and Applicable Laws. | ||
(c) | To the Knowledge of Seller, no fact or circumstance exists that could adversely affect the preferential tax treatment ordinarily accorded to any such Benefit Plans; | ||
(d) | All obligations regarding the Benefit Plans have been satisfied, there are no outstanding defaults or violations by Seller or, to the Knowledge of Seller, any other party to any Benefit Plan and no Taxes, penalties, or fees are owing or exigible under or in respect of any of the Benefit Plans. | ||
(e) | All contributions or premiums required to be paid by Seller under the terms of each Benefit Plan or by Applicable Law have been made in a timely fashion in accordance with Applicable Law and the terms of the Benefit Plans. Seller has no liability (other than liabilities accruing after the Second Closing Date) with respect to any contributions or premiums to the Benefit Plans. Contributions or premiums for the period up to the Second Closing Date have been paid by Seller even though not otherwise required to be paid until a later date. | ||
(f) | With respect to any Benefit Plan, no actions, audits, investigations, suits or claims (other than routine claims for benefits in the ordinary course) are pending or, to the Knowledge of Seller, threatened. |
(a) | There are no collective bargaining agreements and other Contracts relating to relationships with Key Employees or Employees (other than the employment Contracts set forth in Section 4.27 of the Disclosure Schedules) to which Seller is a party. | ||
(b) | (i) There is no labour strike, lockout, dispute, slowdown or stoppage pending or, to the Knowledge of Seller, threatened against or involving Seller, nor has any such event or labour difficulty occurred within the past five (5) years, (ii) Seller is not a party to nor is Seller bound by any collective bargaining or similar agreement with any labour organization nor has any union sought to represent Sellers Key |
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Employees or Employees, (iii) none of Sellers Key Employees or Employees are represented by any labour organization, (iv) except as set forth in Section 4.22(b) of the Disclosure Schedules, Seller is in compliance in all material respects with all Applicable Laws relating to employment and employment practices, terms and conditions of employment, wages, overtime, hours of work, pay equity, employment equity, workers compensation, tax, employee remittances and occupational safety and health, (v) Seller is not engaged, nor has it engaged, in any unfair labour practices and there is no unfair labour practice charge or complaint against Seller pending or, to the Knowledge of Seller, threatened, (vi) no trade union, council of trade unions, employee bargaining agency or affiliated bargaining agent holds bargaining rights with respect to any Key Employees or Employees by way of certification, interim certification, voluntary recognition, designation or successor rights, has applied to be certified as the bargaining agent of any Key Employees or Employees or has applied to have Seller declared a related employer or successor employer pursuant to applicable labour legislation, and (vii) except as set forth in Section 4.22(b) of the Disclosure Schedules, Seller has no, and, within the last two (2) years has not had any, charges, complaints, or proceedings before any Governmental Entity responsible for regulating labour or employment practices, pending, or, to the Knowledge of Seller, threatened against it. |
(c) | Section 4.22(c) of the Disclosure Schedules sets out, as at the date hereof: |
(i) | the names of all Key Employees and Employees; | ||
(ii) | their position or title; | ||
(iii) | their status (e.g., full time, part time, temporary, casual, seasonal, co-op student); | ||
(iv) | their total annual remuneration for calendar years 2006, 2007 and 2008 year-to-date, including a breakdown of (A) salary and (B) bonus or other incentive compensation, if any; | ||
(v) | other terms and conditions of their employment (other than Benefit Plans); | ||
(vi) | their age; | ||
(vii) | their total length of employment including any prior employment that would affect calculation of years of service for any purpose, including statutory entitlements, common law entitlements, contractual entitlements (express or implied), benefit entitlement or pension entitlement; and | ||
(viii) | whether any Key Employees or Employees are on any leave of absence and, if so, the reason for such absence and the expected date of return. |
(d) | Section 4.22(d) of the Disclosure Schedule sets out as at the date hereof: |
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(i) | the names of all consultants who are natural persons (Consultants) of the Business; | ||
(ii) | whether the Consultant is providing services pursuant to a written consulting contract; | ||
(iii) | the term of any Contract with the Consultant; | ||
(iv) | notice, if any, required for Seller to terminate the consulting relationship without cause; | ||
(v) | the date the Consultant first commenced providing services to the Business; | ||
(vi) | the hourly fee of the Consultant; and | ||
(vii) | the annual fees paid to the Consultant for the preceding calendar year. |
(e) | Except as set forth in Section 4.22(e) of the Disclosure Schedules, the consummation of the transactions contemplated by this Agreement shall not trigger any severance or similar arrangement of Seller payable by Purchaser after the Second Closing. |
(a) | Within the past three (3) years, Seller has not received any written requests for information, notice, demand, letter, administrative inquiry, or formal complaint or claim with respect to any Environmental Requirements. There are no pending nor, to the Knowledge of Seller, threatened environmental claims against Seller or in respect of the Business or any of the Assets. | ||
(b) | Seller has no material liability under Environmental Requirements or health and safety Laws. | ||
(c) | None of the operations of Seller involve, or have involved, the violation of Environmental Requirements or health and safety Laws governing the generation, storage or transportation of Hazardous Materials. |
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(a) | Section 4.26(a) of the Disclosure Schedules sets forth a list of all policies of title, liability, fire, casualty, business interruption, workers compensation and all other forms of insurance (including self-insurance arrangements) (collectively, the Corporate Insurance Policies and individually, a Policy) insuring the properties, Assets or other operations of Seller or the Business. A correct summary of each Policy and a correct and complete copy of the Premier Insurance Program has been made available to Purchaser. | ||
(b) | Each of the Corporate Insurance Policies and the Premier Insurance Program is in full force and effect. Seller is not in material default under any material provisions of any Policy or the Premier Insurance Program, and Seller has not received written notice of cancellation of any Policy or the Premier Insurance Program. There is no claim by Seller pending under any Policy or under the Premier Insurance Program as to which coverage has been denied or disputed by the underwriters thereof, and Seller has no Knowledge of any basis for denial of any claim under any Policy or under the Premier Insurance Program. Seller has not received any written notice from or on behalf of any insurance carrier issuing any Policy or any Policy under the Premier Insurance Program that insurance rates therefor shall hereafter be materially increased (except to the extent that insurance rates may be increased for all similarly situated risks) or that there shall hereafter be a cancellation or an increase in a deductible (or an increase in premiums in order to maintain an existing deductible) or non-renewal of any Policy or the Premier Insurance Program. Seller is not in default in any material respect under any of the Corporate Insurance Policies or under the Premier Insurance Program and has not waived or released any material rights thereunder. | ||
(c) | There are no Proceedings pending or, to the knowledge of the Seller, threatened against or affecting Seller, the Business or any of the Assets under any Policy or under the Premier Insurance Program. To the Knowledge of Seller, there exists no |
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fact, circumstance or situation that is likely to give rise to any claim under any Policy or under the Premier Insurance Program. |
(a) | employment, employment offer letters, consulting, bonus, profit-sharing, percentage compensation, deferred compensation, stock purchase, stock option, restricted stock unit or other equity-based or profit sharing plan or arrangement, pension, welfare and retirement agreements, and Contracts with or relating to the Key Employees or Employees or former employees of Seller or Sellers current or former directors or officers; | ||
(b) | notes, mortgages and Contracts for the repayment or borrowing of money by Seller in excess of $50,000 in any one case or $500,000 in the aggregate, or for a line of credit, including borrowings by Seller in the form of guarantees of, indemnification for or agreements to acquire any obligations of others, and all security or pledge agreements related thereto; | ||
(c) | Contracts relating to any joint venture, partnership, strategic alliance or sharing of profits or losses with any Person to which Seller is a party or by which it or any of its assets is bound; | ||
(d) | Contracts containing covenants purporting to limit the freedom of Seller to compete in any business or in any geographic area; | ||
(e) | Contracts requiring payments or distributions to any shareholder, officer, director, Key Employee or Employee, or any relative or Affiliate of any such Person; | ||
(f) | Contracts, agreements, arrangements and understandings (whether oral or in writing) involving capital leases or capital expenditures or requiring Seller to make, or authorizing Seller to receive, payments; | ||
(g) | agreements with Key Employees and/or Employees as a group or individually; | ||
(h) | Contracts with subcontractors and other service providers; | ||
(i) | agreements to sell, lease or otherwise dispose of any assets or properties of Seller other than in the Ordinary Course of the Business; | ||
(j) | Contracts relating to the Premier Insurance Program; and | ||
(k) | Contracts not made in the Ordinary Course of Business. |
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(a) | Except as set out in Section 4.32(a) of the Disclosure Schedules, since December 31, 2005, there has been no Material Adverse Change. | ||
(b) | Since December 31, 2005, Seller has carried on the Business in the Ordinary Course of Business. |
(a) | violate or conflict with any provision of the Governing Documents of Purchaser, or |
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(b) | violate any Applicable Law with respect to Purchaser or violate or result in a breach of, or constitute (with due notice or lapse of time or both) a default under, any Contract to which Purchaser is a party or by which it is bound or to which any of its properties or assets is subject. |
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(a) | diligently service and make collections on all CSCs and Leases in accordance with Sellers past customs and practice; | ||
(b) | keep available in all material respects the services of each of the Key Employees and each of Sellers present key officers, directors, Employees, agents, consultants and other similar representatives; | ||
(c) | maintain all Files and Records and accounts of the Business and the Assets in the Ordinary Course of Business and record all transactions in its usual, regular and ordinary manner consistent with Sellers past customs and practice and post all entries therein promptly in compliance with accepted practice and Applicable Law; | ||
(d) | operate the Business in the Ordinary Course of Business in compliance with Applicable Law and the terms and conditions of all Contracts, and in a manner that maintains good relations with Key Employees, Employees and suppliers and customers of Seller and maintains and preserves the Assets and the organization and goodwill of the Business, in each case, in accordance with Sellers past customs and practice; | ||
(e) | promptly advise Purchaser in writing of the particulars of: |
(i) | any event, change or occurrence that constitutes or might reasonably be expected to constitute a Material Adverse Change, provided that, if Seller or Parent is uncertain as to whether any event, change or occurrence might reasonably be expected to constitute a Material Adverse Change, Seller or Parent shall promptly advise Purchaser of the particulars of such event, change or occurrence that gives rise to such uncertainty; | ||
(ii) | any material incorrectness or material breach of any First Closing Representation and Warranty or First Interim Period Covenant in this Agreement, or the occurrence, or failure to occur, of any event that would be likely to cause or result in any breach of any covenant of Seller or Parent or cause or result in any representation or warranty of Seller or Parent being untrue or incorrect in any material respect (and for such purposes all materiality qualifications in such representations and warranties will be disregarded); |
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(iii) | any failure or expected failure of Seller or Parent to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; or | ||
(iv) | any Proceeding or threatened Proceeding Known to Seller that would have a material and adverse effect on Seller, the Assets or the Business, or that would prevent or materially delay the completion of the transactions contemplated by this Agreement; |
(f) | maintain each Sellers authorizations, funding and collections practices with respect to the Business and the Portfolio in a manner consistent with the Credit Policies and in the Ordinary Course of Business; | ||
(g) | pay Taxes as they become due and payable; and | ||
(h) | diligently take all steps necessary to terminate the Securitization Transactions and the Securitization Documents at or prior to First Effective Time in the manner contemplated in Section 2.02(a), advise Purchaser of Sellers progress towards completing such terminations and promptly advise Purchaser in writing of the particulars of such terminations as same are completed. |
(a) | amend its Governing Documents in any manner that would adversely affect any of Seller or Parents ability to consummate the transactions contemplated by this Agreement; | ||
(b) | permit its corporate existence or any of the Licenses and Permits to be suspended, lapsed, revoked or modified in any way that could reasonably be expected to create a material liability or obligation on the part of Seller with respect to any of the Assets; | ||
(c) | amend, modify, change or terminate any CSC Document, any Lease Document or any Assigned Contract except in accordance with its terms; | ||
(d) | increase the compensation or benefits of, or grant awards under equity based plans to, the Key Employees or Employees, or modify its termination pay policies or enter into or amend any employment arrangements or agreements with any Key Employee, Employee or prospective employee of Seller; | ||
(e) | conduct its cash management customs and practices (including collection policies and payment terms applicable to any customers) other than in the Ordinary Course of Business consistent with Sellers past customs and practice; | ||
(f) | sell, lease, license, transfer, assign, convey, pledge, or securitize or otherwise dispose of or grant any security interest in any of the Assets (other than a Permitted |
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Encumbrance), or enter into any agreement or understanding to do any of the foregoing; | |||
(g) | do any act or omit to do any act that would cause any material incorrectness in or material breach of any representation, warranty, covenant or agreement of Seller or Parent in this Agreement; | ||
(h) | permit Seller to enter into any new business line or undertake any business other than in the Ordinary Course of Business or acquire or divest any Assets or businesses; | ||
(i) | enter into any transaction or perform any act that might interfere with or be materially inconsistent with the successful completion of the transactions contemplated by this Agreement; | ||
(j) | change its Credit Policies, operating policies or procedures (or the manner of application thereof) with respect to the Business; or | ||
(k) | agree with any Person, consent or acquiesce to or otherwise commit themselves to do any of the foregoing. |
(a) | keep available in all material respects the services of each of the present key officers, directors, Employees, agents, consultants and other similar representatives of Seller, except to the extent any key officer or director is a Key Employee; | ||
(b) | maintain all Files and Records and accounts of the Business (as it exists immediately following the First Closing) and the Second Closing Assets in the Ordinary Course of Business and record all transactions in its usual, regular and ordinary manner consistent with Sellers past customs and practice and post all entries therein promptly in compliance with accepted practice and Applicable Law; | ||
(c) | operate the Business (as it exists immediately following the First Closing) in the Ordinary Course of Business in compliance with Applicable Law and the terms and conditions of all Contracts, and in a manner that maintains good relations with Employees, suppliers and customers of Seller and maintains and preserves the Second Closing Assets and the organization and goodwill of the Business (as it exists immediately following the First Closing), in each case, in accordance with Sellers past customs and practice; |
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(d) | promptly advise Purchaser in writing of the particulars of: |
(i) | any event, change or occurrence that constitutes or might reasonably be expected to constitute a Material Adverse Change, provided that, if Seller or Parent is uncertain as to whether any event, change or occurrence might reasonably be expected to constitute a Material Adverse Change, Seller or Parent shall promptly advise Purchaser of the particulars of such event, change or occurrence that gives rise to such uncertainty; | ||
(ii) | any material incorrectness or material breach of any Second Closing Representation and Warranty or Second Interim Period Covenant in this Agreement or in any First Closing Related Agreement to which it is a party, or the occurrence, or failure to occur, of any event that would be likely to cause or result in any breach of any Second Closing Interim Period Covenant of Seller or Parent or cause or result in any Second Closing Representation or Warranty of Seller or Parent being untrue or incorrect in any material respect (and for such purposes all materiality qualifications in such representations and warranties will be disregarded); | ||
(iii) | any failure or expected failure of Seller or Parent to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it at or prior to the Second Closing or under any First Closing Related Agreement to which it is a party; or | ||
(iv) | any Proceeding or threatened Proceeding Known to Seller that would have a material and adverse effect on Seller, the Second Closing Assets or the Business (as it exists immediately following the First Closing), or that would prevent or materially delay the completion of the transactions contemplated by this Agreement; |
(e) | maintain each Sellers authorizations, funding and collections practices with respect to the Business (as it exists immediately following the First Closing) and the Portfolio in a manner consistent with the Credit Policies and in the Ordinary Course of Business except as otherwise set forth in the Servicing Agreement; and | ||
(f) | pay Taxes as they become due and payable. |
(g) | amend its Governing Documents in any manner that would adversely affect any of Seller or Parents ability to consummate the transactions contemplated by this Agreement; | ||
(h) | permit its corporate existence or any of the Licenses and Permits to be suspended, lapsed, revoked or modified in any way that could reasonably be expected to create a |
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material liability or obligation on the part of Seller with respect to any of the Second Closing Assets; | |||
(i) | amend, modify, change or terminate any Assigned Contract except in accordance with its terms; | ||
(j) | increase the compensation or benefits of, or grant awards under equity based plans to, the Employees, or modify its termination pay policies or enter into or amend any employment arrangements or agreements with any Employee or prospective employee of Seller; | ||
(k) | conduct its cash management customs and practices (including collection policies and payment terms applicable to any customers) other than in the Ordinary Course of Business (as it exists immediately following the First Closing) consistent with Sellers past customs and practice; | ||
(l) | sell, lease, license, transfer, assign, convey, pledge, or securitize or otherwise dispose of or grant any security interest in any of the Second Closing Assets (other than a Permitted Encumbrance), or enter into any agreement or understanding to do any of the foregoing; | ||
(m) | do any act or omit to do any act that would cause any material incorrectness in or material breach of any Second Closing Representation and Warranty or in any covenant or agreement of Seller or Parent to be complied with or satisfied by Seller or Parent under this Agreement during the Second Interim Period or at the Second Closing; | ||
(n) | permit Seller to enter into any new business line or undertake any business other than in the Ordinary Course of Business or acquire or divest any Second Closing Assets or businesses; | ||
(o) | enter into any transaction or perform any act that might interfere with or be materially inconsistent with the successful completion of the transactions contemplated by this Agreement; | ||
(p) | change its Credit Policies, operating policies or procedures (or the manner of application thereof) with respect to the Business (as it exists immediately following the First Closing); or | ||
(q) | agree with any Person, consent or acquiesce to or otherwise commit themselves to do any of the foregoing. |
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(a) | as soon as practicable, and in any event within five (5) Business Days after the date of this Agreement, to prepare and provide to the Commissioner a request for an Advance Ruling Certificate, including a request, in the alternative, that the Commissioner waive, pursuant to subsection 113(c) of the Competition Act, the obligation to give the requisite notice and to promptly furnish any additional information requested under the Competition Act; | ||
(b) | if requested by Seller, Purchaser or the Commissioner, Purchaser and Seller shall promptly file a short-form or long-form pre-merger notification pursuant to the Competition Act; | ||
(c) | to cooperate with each other in connection with the making of all filings or responses referred to in this Section 6.05 including, to the extent that it is reasonably practical and subject to any reasonable confidentiality concerns having regard to the circumstances as then exist, providing copies of all such documents to the other party and its advisors prior to filing or responding and, if requested, consider in good faith all reasonable additions, deletions or changes suggested in connection therewith; | ||
(d) | to the extent that it is reasonably practical having regard to the circumstances as then exist, to promptly notify the other party of any communication to that party from the Competition Bureau and permit the other party to review in advance any proposed communication to the Competition Bureau; | ||
(e) | to the extent that it is reasonably practical having regard to the circumstances as then exist, not to participate in any meeting with the Competition Bureau in respect of any filings, investigation or other inquiry unless that party consults with the other party in advance and, to the extent permitted by the Competition Bureau, gives the other party the opportunity to attend and participate thereat; and | ||
(f) | not to take any action that will have the effect of delaying, impairing or impeding the receipt of any such required authorizations, consents, orders and approvals; provided, however, that the foregoing shall not require either party to agree to an amendment of this Agreement or any Related Agreement. |
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(a) | Delivery of Notices, etc. Seller and Parent shall forthwith deliver to Purchaser insurance proceeds that are Assets received by any of them after the Second Effective Time. Each of Seller and Parent acknowledges in favour of, and agrees with, Purchaser that such insurance proceeds will be held by Seller in trust for the benefit of Purchaser. Seller further acknowledges in favour of, and further agrees with, Purchaser that all right, title and interest in and to such insurance proceeds shall be conclusively deemed to have been transferred and assigned to Purchaser and all right, title and interest, of any Seller in and to such insurance proceeds shall cease. All interest on such insurance proceeds shall accrue to the benefit of Purchaser. | ||
(b) | Power of Attorney. Seller irrevocably constitutes and appoints Purchaser as its true and lawful attorney and agent for, in the name of and on behalf of Seller, to execute and deliver in the name of Seller all documents or instruments that may be necessary to transfer and assign such insurance proceeds referred to in Section 6.08(a), or any part of them, to Purchaser, or its nominee or nominees, on the books of Seller. This appointment and power of attorney, being coupled with an interest, shall not be revoked by the insolvency, bankruptcy or other incapacity of Seller. Seller ratifies and confirms and agrees to ratify and confirm all that its attorney may lawfully do or cause to be done by virtue of the provisions of this Section 6.08. |
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(a) | Promptly after the First Closing (but not later than fifteen (15) Business Days after the First Closing Date) Seller shall notify all Obligors of the assignment of the CSC Documents and the Lease Documents to Purchaser and shall if requested in writing by Purchaser instruct such Obligors to remit from and after a specified date all future payments due under the CSC Documents or the Lease Documents, as applicable, to Purchaser at Purchasers principal office, such notification to be in a form mutually satisfactory to Seller and Purchaser. | ||
(b) | From time to time after the First Closing Date, promptly following the request of Purchaser, Seller shall notify pertinent parties (including insurance companies, litigants, Governmental Entities, subordinate lenders and landlords) of the assignment of the CSCs and other CSC Documents, the Lease Documents, or the Assigned Contracts, as applicable, to Purchaser. |
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(a) | any incorrectness in or breach of any representation or warranty of any Seller or Parent in this Agreement or the Related Agreements; | ||
(b) | the breach of any covenant or agreement of Seller or Parent in this Agreement or the Related Agreements; | ||
(c) | any Liability of Seller or Parent (other than the Assumed Liabilities); | ||
(d) | any Liability arising out of or related to any of the First Closing Assets or the operation of the Business arising out of or related to any transaction entered into or event occurring at or prior to the First Closing, and, in each case, excluding any Liability arising out of or related to any default or delinquency in payment by an Obligor under a CSC Document or Lease Document; | ||
(e) | any Liability arising out of or related to any of the Second Closing Assets or the operation of the Business (as it exists immediately following the First Closing) arising out of or related to any transaction entered into or event occurring at or prior to the Second Closing; and | ||
(f) | any and all Proceedings, demands, assessments, audits or judgments arising out of or related to any of the foregoing. |
(a) | incorrectness in or breach of any representation or warranty of Purchaser in this Agreement or the Related Agreements; | ||
(b) | the breach of any covenants or agreements of Purchaser in this Agreement or the Related Agreements; | ||
(c) | any Assumed Liability; |
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(d) | any Liability of Purchaser arising out of or related to the First Closing Assets; | ||
(e) | provided that the Second Closing occurs, any Liability arising out of or related to any of the Second Closing Assets or the operation of the Business (as operated by Purchaser after the Second Closing) arising out of or related to any transaction entered into or event occurring after the Second Closing; and | ||
(f) | any and all Proceedings, demands, assessments, audits or judgments arising out of or related to any of the foregoing. |
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(a) | Seller and Parent shall not be required to indemnify Purchaser Indemnified Parties for Indemnity Losses arising under Section 8.01 unless and until: |
(i) | the amount of a single Indemnity Loss for which any Purchaser Indemnified Parties are otherwise entitled to indemnification pursuant to this Article 8 exceeds $30,000 Canadian Dollars (and for this purpose all such Indemnity Losses arising from or relating to the same event or circumstances shall be aggregated); provided that, any of the Purchaser Indemnified Parties shall be entitled to indemnification pursuant to this Article 8 for any Indemnity Loss incurred by it arising from or relating to the enforceability, subject to bankruptcy, insolvency and similar Laws, of any Lease, Lease Document, CSC or CSC Document, whether or not any such Indemnity Loss exceeds $30,000 Canadian Dollars, and the amount of all such Indemnity Losses shall be counted in determining the Aggregate Minimum Loss (each, a Qualifying Indemnity Loss); and | ||
(ii) | the aggregate amount of such Qualifying Indemnity Losses exceeds $1,000,000 Canadian Dollars (the Aggregate Minimum Loss), |
provided that, after the Aggregate Minimum Loss is exceeded, the Purchaser Indemnified Parties shall be entitled to be paid the full amount of the Aggregate Minimum Loss and the full amount of any and all Indemnity Losses with respect to any and all further indemnification claims hereunder (provided that any and all such Indemnity Losses are Qualifying Indemnity Losses), subject, in each case, to the limitations on recovery and recourse set forth herein. In no event shall Seller or Parent, in the aggregate, be liable to indemnify Purchaser Indemnified Parties for Indemnity Losses arising under Section 8.01 in excess of the amount equal to ten percent (10%) of the Purchase Price (the Indemnification Cap). In addition, in conjunction with seeking indemnification, Purchaser shall use its Best Efforts to mitigate and minimize the amount of Indemnity Losses for which it may be entitled to indemnification hereunder. Notwithstanding any of the other provisions of this Agreement, the limitations set forth in this Section 8.08(a) shall not apply to any Indemnity Losses arising under or attributable to any incorrectness in or breach of any of the Special Representations or fraud on the part of Seller, Parent or any of their respective Representatives. |
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(b) | Notwithstanding any of the other provisions of this Agreement, neither Seller nor Parent will be liable to Purchaser Indemnified Parties in respect of any Indemnity Losses directly or indirectly resulting from any incorrectness in or breach of: |
(i) | any representation and warranty set forth in Section 4.09 or otherwise related to Taxes of Seller or the Business after the later of (A) the date that is seven (7) years immediately following the Second Closing Date and (B) the date that is ninety (90) days following expiration of the last of the limitation periods contained in the Income Tax Act, and any other legislation imposing Tax on Seller or the Business, subsequent to the expiration of which an assessment, reassessment or other form or recognized document assessing Liability for Tax for the period ended on the Second Closing Date or, if the Second Closing does not occur, the First Closing Date, except if such representation and warranty proves to be false as a result of any misrepresentation made or fraud committed by of Seller, Parent or any of their respective Representatives in filing a Tax Return or supplying information for the purposes of the Income Tax Act or any other legislation imposing Tax on Seller or the Business in which case no time limit will apply; | ||
(ii) | any other First Closing Representation and Warranty of Seller set forth in this Agreement after the date that is two (2) years immediately following the First Closing Date unless notice of any claim by any Purchaser Indemnified Party against Seller or Parent with respect thereto is given to Seller or Parent by any Purchaser Indemnified Party on or prior to such date, whether or not any Purchaser Indemnified Party has discovered or could have discovered any incorrectness in or breach of such representation and warranty before such time; or | ||
(iii) | provided that the Second Closing occurs, any other Second Closing Representation and Warranty of Seller set forth in this Agreement after the date that is two (2) years immediately following the Second Closing Date unless notice of any claim by any Purchaser Indemnified Party against Seller or Parent with respect thereto is given to Seller or Parent by any Purchaser Indemnified Party on or prior to such date, whether or not any Purchaser Indemnified Party has discovered or could have discovered any incorrectness in or breach of such representation and warranty before such time, |
other than, in all cases, any Indemnity Losses arising under or attributable to any incorrectness in or breach of any of the Special Representations or fraud on the part of Seller, Parent or any of their respective Representatives. | |||
(c) | Notwithstanding any of the other provisions of this Agreement, Purchaser will not be liable to any of the Seller Indemnified Parties in respect of any Indemnity Losses directly or indirectly resulting from any incorrectness in or breach of: |
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(i) | any representation and warranty of Purchaser set forth in this Agreement after the date that is two (2) years immediately following the First Closing Date unless notice of any claim by any Seller Indemnified Party against Purchaser with respect thereto is given to Purchaser by any Seller Indemnified Party on or prior to such date, whether or not any Seller Indemnified Party has discovered or could have discovered any incorrectness in or breach or such representation and warranty before such time; or | ||
(ii) | provided that the Second Closing occurs, any representation and warranty of Purchaser set forth in this Agreement after the date that is two (2) years immediately following the Second Closing Date unless notice of any claim by any Seller Indemnified Party against Purchaser with respect thereto is given to Purchaser by any Seller Indemnified Party on or prior to such date, whether or not any Seller Indemnified Party has discovered or could have discovered any incorrectness in or breach or such representation and warranty before such time, |
other than, in all cases, any Indemnity Losses arising under or attributable to any incorrectness in or breach of any representation and warranty of Purchaser set forth in Sections 5.01, 5.02, 5.03(a) and 5.05 or fraud on the part of Purchaser or any of its Representatives. In addition, in conjunction with seeking indemnification, each of Seller and Parent shall use its Best Efforts to mitigate and minimize the amount of Indemnity Losses for which it may be entitled to indemnification hereunder. |
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(a) | The risk of loss with respect to the First Closing Assets shall remain with Seller until the First Effective Time. From and after the First Effective Time, the risk of loss with respect to the First Closing Assets shall pass to and be with Purchaser. Until the First Effective Time, Seller shall maintain in force the policies of insurance under which any of the First Closing Assets are insured. If at or prior to the First Effective Time any First Closing Asset is lost, damaged or destroyed and the loss, damage or destruction constitutes a Material Adverse Change, then Purchaser may, at its sole option: |
(i) | terminate this Agreement in accordance with Section 9.01(a)(ii); or | ||
(ii) | require Seller to assign to Purchaser any and all proceeds of any insurance payable as a result of such loss, damage or destruction and to reduce the Purchase Price by the amount of the replacement cost of the First Assets that |
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were lost, damaged or destroyed, less the amount of any proceeds of insurance payable as a result of such occurrence. |
(b) | The risk of loss with respect to the Second Closing Assets shall remain with Seller until the Second Effective Time. From and after the Second Effective Time, the risk of loss with respect to the Second Closing Assets shall pass to and be with Purchaser. Until the Second Effective Time, Seller shall maintain in force the policies of insurance under which any of the Second Closing Assets are insured. If at or prior to the Second Effective Time any Second Closing Asset is lost, damaged or destroyed and the loss, damage or destruction constitutes a Material Adverse Change, then Purchaser may, at its sole option: |
(i) | terminate this Agreement in accordance with Section 9.01(a)(ii); or | ||
(ii) | require Seller to assign to Purchaser any and all proceeds of any insurance payable as a result of such loss, damage or destruction and to reduce the Purchase Price by the amount of the replacement cost of the Second Assets that were lost, damaged or destroyed, less the amount of any proceeds of insurance payable as a result of such occurrence. |
(a) | Notwithstanding anything in this Agreement to the contrary, the consummation of the transactions contemplated by this Agreement may be terminated at any time prior to completion of the First Closing, as follows: |
(i) | by Seller if there has been a material incorrectness in or a material default or breach by Purchaser with respect to Purchasers representations and warranties in Article 5 of this Agreement, or the due and timely performance of any of the material covenants of Purchaser during the first Interim Period (and for all such purposes, any materiality qualification in any such representation, warranty, covenant or agreement shall be disregarded), and in the case of a material default or breach of a covenant during the First Interim Period, such material default or material breach shall not have been cured (or reasonable efforts commenced to cure any such breach or default that cannot be cured within a thirty (30) day period) within thirty (30) Business Days after receipt by Purchaser of written notice from Seller specifying in reasonable detail the nature of such default or breach; or if any condition in Section 3.01(a) has not been satisfied as of the First Closing Date or if satisfaction of such a condition is or becomes impossible (other than through the failure of Seller or Parent to comply with its obligations under this Agreement) and Seller has not waived such condition on or before the First Closing Date; |
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(ii) | by Purchaser if there has been a Material Adverse Change or a material incorrectness in or a material default or breach by Seller or Parent with respect to any First Closing Representation and Warranty, or the due and timely performance of any of the material First Interim Period Covenants (and for all such purposes, any materiality qualification in any such representation, warranty, covenant or agreement shall be disregarded), and in the case of a material default or breach of a material First Interim Period Covenant, such material default or material breach shall not have been cured (or reasonable efforts commenced to cure any such breach or default that cannot be cured within a thirty (30) day period) within thirty (30) Business Days after receipt by Seller of written notice from Purchaser specifying in reasonable detail the nature of such default or breach or if any condition in Section 3.02(a) has not been satisfied as of the First Effective Time or if satisfaction of such a condition is or becomes impossible (other than through the failure of Purchaser to comply with its obligations under this Agreement) and Purchaser has not waived such condition on or before the First Closing Date; | ||
(iii) | by Seller, on the one hand or Purchaser, on the other hand, at any time after August 15, 2008, if the First Closing has not occurred and the party seeking to terminate this Agreement is not in material breach or default of any provision of this Agreement to be performed or complied with by it during the First Interim Period or at the First Closing; | ||
(iv) | by Seller or Purchaser immediately upon receipt of notice that any approval of a Governmental Entity that is required for the consummation of the transactions contemplated hereby has been denied by a final, non-appealable order, or if Purchaser has been requested to withdraw any regulatory application that is required for the consummation of the transactions contemplated hereby; or | ||
(v) | by written agreement of Seller and Purchaser. |
(b) | Notwithstanding anything in this Agreement to the contrary, the consummation of the transactions contemplated by this Agreement to be completed at or prior to the Second Closing may be terminated at any time prior to completion of the Second Closing: |
(i) | by Seller if there has been a material incorrectness in or a material default or breach by Purchaser with respect to Purchasers representations and warranties in Article 5 of this Agreement, or the due and timely performance of any of the material covenants of Purchaser during the First Interim Period (and for all such purposes, any materiality qualification in any such representation, warranty, covenant or agreement shall be disregarded), and in the case of a material default or breach of a covenant during the First Interim Period, such material default or material breach shall not have been cured (or reasonable efforts commenced to cure any such breach or default that cannot |
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be cured within a thirty (30) day period) within thirty (30) Business Days after receipt by Purchaser of written notice from Seller specifying in reasonable detail the nature of such default or breach; or if any conditions in Section 3.01(b) has not been satisfied as of the First Closing Date or if satisfaction of such a condition is or becomes impossible (other than through the failure of Seller or Parent to comply with its obligations under this Agreement) and Seller has not waived such condition on or before the First Closing Date; | |||
(ii) | by Purchaser if there has been a Material Adverse Change or a material incorrectness in or a material default or breach by Seller or Parent with respect to any Second Closing Representation and Warranty, or the due and timely performance of any of the material Second Interim Period Covenants (and for all such purposes, any materiality qualification in any such representation, warranty, covenant or agreement shall be disregarded), and in the case of a material default or breach of a material Second Interim Period Covenant, such material default or material breach shall not have been cured (or reasonable efforts commenced to cure any such breach or default that cannot be cured within a thirty (30) day period) within thirty (30) Business Days after receipt by Seller of written notice from Purchaser specifying in reasonable detail the nature of such default or breach or if any condition in Section 3.02(b) has not been satisfied as of the Second Closing Date or if satisfaction of such a condition is or becomes impossible (other than through the failure of Purchaser to comply with its obligations under this Agreement) and Purchaser has not waived such condition on or before the Second Closing Date; | ||
(iii) | by Seller, on the one hand or Purchaser, on the other hand, at any time after October 31, 2008, if the Second Closing has not occurred and the party seeking to terminate this Agreement is not in material breach or default of any provision of this Agreement to be performed or complied with by it at or prior to the Second Closing; or | ||
(iv) | by written agreement of Seller and Purchaser. |
(c) | Notwithstanding any other provision of this Agreement, this Agreement may not be terminated after completion of the First Closing. |
(a) | Each partys right of termination under Section 9.01 is in addition to any other rights it may have under this Agreement or otherwise, and the exercise of a right of termination will not be an election of remedies. | ||
(b) | In the event this Agreement is terminated pursuant to Section 9.01(a), all rights and obligations of the parties shall terminate without any liability of a party to the other parties; provided, however, that the rights and obligations of the parties set forth in |
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Section 9.02(a), Section 9.02(b), Section 10.01, Section 13.01 and Section 13.02 of this Agreement shall survive the termination of this Agreement; provided further, that if this Agreement is terminated by a party pursuant to Section 9.01(a)(i) or 9.01(a)(ii), as applicable, the terminating partys right to pursue legal remedies with respect thereto will survive such termination unimpaired. | |||
(c) | In the event this Agreement is terminated during the Second Interim Period pursuant to this Article 9, all rights, duties, obligations, covenants, conditions and agreements of the parties pertaining to the Second Closing and the transactions to be consummated in connection therewith including such rights and obligations with respect to any Second Closing Representation and Warranty and Second Interim Period Covenant, to the extent pertaining to the Second Closing and the transactions to be consummated in connection therewith, will terminate and have no further force or effect. |
(a) | Each of Purchaser, Seller and Parent agrees that it shall treat in confidence and shall not use, disseminate or disclose, other than in connection with the transactions contemplated by this Agreement, all documents, materials and other information regarding the other parties to this Agreement which it obtains during the course of the negotiations leading to the consummation of the transactions contemplated by this Agreement (whether obtained on, prior to or following the date hereof) or the preparation of this Agreement or any of the Related Agreements (the Confidential Information). The obligation of each party to treat such documents, materials and other information in confidence and not to use, disseminate or disclose such materials shall not apply to any information which: (a) such party can demonstrate was already lawfully in its possession prior to the disclosure thereof by the other parties; (b) is known to the public and did not become so known through any violation of a legal obligation on the part of the disclosing party; (c) is later lawfully acquired by such party from other sources; (d) is required to be disclosed under the provisions of any Law, or by any stock exchange or similar body or any federal, state or provincial regulatory authority having jurisdiction over the party; or (e) is required to be disclosed by a rule or order of any court of competent jurisdiction or pursuant to any Proceeding. The obligation of each party to treat such documents, materials and other information in confidence and not to use, disseminate or disclose such materials shall apply regardless of whether the transactions contemplated by this Agreement actually are consummated, and the parties shall not be relieved of any obligations under this Section 10.01 in the event that the transactions contemplated by this Agreement are not actually consummated and/or in the event that this Agreement is terminated pursuant to Section 9.01 of this Agreement. In the event that the transactions contemplated by the First Closing are not consummated, each party shall immediately return and deliver any and all documents, materials and other information (and all copies thereof) provided by any other party to the party which |
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provided or disclosed such documents, materials and other information and delete or otherwise destroy any and all electronic copies thereof. In the event that transactions contemplated by the Second Closing are not consummated, each party shall immediately return and deliver any and all documents, materials and other information (and all copies thereof) provided by any other party to the party which provided or disclosed such documents, materials and other information and delete or otherwise destroy any and all electronic copies thereof, to the extent the same relate solely to the transactions contemplated by the Second Closing. Purchaser hereby acknowledges that Purchaser may acquire certain information that is Personal Information. Purchaser hereby acknowledges and agrees that, whether or not the transactions contemplated hereby are consummated and despite any termination of this Agreement, Purchaser shall safeguard all Personal Information Purchaser acquires to the same extent as required of Seller under the Privacy Laws. Notwithstanding any other provision of this Agreement, a party will be permitted to retain one copy of the Confidential Information to the extent required for legal or regulatory purposes in accordance with an established records retention policy of or applicable to such party, provided that such Confidential Information is retained on a confidential basis in accordance with the provision of this Section 10.01. | |||
(b) | Seller and Parent hereby agree to cause Irwin Financial Corporation to grant to Purchaser, from the First Closing Date, an exclusive, royalty-free license, with the right to sublicense, to use and display the Excluded Intellectual Property Assets for a twelve (12) month period, and any of Sellers domain names incorporating the Irwin name and mark and any variations of such name and mark used in connection with the Business pursuant to a License Agreement to be entered into as of the First Closing Date. | ||
(c) | For a period of three (3) years following the Second Closing, Seller shall not, in Canada (i) use the Excluded Intellectual Property Assets (other than domain names and internet protocol addresses to the extent that the same may be accessed by Persons located inside Canada) or any trademarks related to the Business in Canada or trademarks derivative of or confusing with such marks; and (ii) licence any third parties to use, nor sell to any third parties, the Excluded Intellectual Property Assets or any trademarks related to the Business in Canada, or trademarks derivative of or confusing with such marks. |
(a) | For a period of three (3) years following the First Closing and, provided that the transactions contemplated by the Second Closing take place, for a period of three (3) years following the Second Closing (such period, as applicable, the Restricted Period), none of Seller, Parent nor any of their respective Affiliates shall directly or indirectly, as an entity, or on behalf of, through or in conjunction with any other Person or in any other capacity whatsoever, contact or solicit, either for itself or on behalf of any other Person, any Person that is Known to Seller to be a customer or client of Purchaser or any Person that is Known to Seller to be a former customer or client of Seller in order to (a) divert or influence or attempt to divert or influence any |
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business of Purchaser to Seller or otherwise from Purchaser or the Business as operated by Purchaser after the First Closing or the Second Closing, as the case may be, or (b) otherwise interfere in any fashion with Purchasers operation of the Business. Furthermore, during the Restricted Period, none of Seller, Parent nor any of their respective Affiliates shall directly or indirectly, either for itself or on behalf of any other Person or in any other capacity whatsoever, solicit for hire, hire, retain, employ, contract for services in any capacity or otherwise interfere with the relationship of Purchaser with (a) any person Known by Seller to have been employed by or otherwise engaged to perform services for Purchaser prior to the date of this Agreement or at any time during the Restricted Period, or (b) any Key Employee, Employee or any person who was employed in the Business prior to the date of this Agreement. For the purposes of this Section 10.02(a), the phrase Known shall not include the knowledge of the Key Employees. | |||
(b) | Seller hereby acknowledges and agrees that the restrictive period of time and scope of restricted activity specified in Section 10.02 are reasonable and necessary in view of the transactions contemplated by this Agreement and the nature of the business in which Seller was engaged or is engaged as of the First Closing or the Second Closing, as the case may be, and in which Purchaser is, or shall be, engaged. Seller further acknowledges and agrees that the restrictions set forth in this Section 10.02 are reasonable and necessary to protect Purchasers investment under this Agreement and to safeguard the value and goodwill associated with the Assets and the Business. Seller acknowledges and agrees that Purchaser would not have entered into this Agreement but for Sellers agreement and obligation pursuant to this Section 10.02. If the scope of any stated restriction is too broad to permit enforcement of such restriction(s) to its full extent, then the parties agree that such restriction shall be enforced and/or modified to the maximum extent permitted by law. |
(a) | For a period of three (3) years from the First Closing Date, and, provided that the transactions contemplated by the Second Closing Date are completed, for a period of three (3) years following the Second Closing, none of Seller, Parent or any of their respective Affiliates shall directly or indirectly carry on, engage in or be interested in originating, purchasing, securitizing and, except as provided in the Servicing Agreement and except for the servicing of Excluded Items during the Second Interim Period, servicing small-ticket equipment leases and conditional sales contracts (the Restricted Business) within Canada. | ||
(b) | Seller hereby acknowledges and agrees that the restrictive period of time and scope of restricted activity specified in this Section 10.03 are reasonable and necessary in view of the transactions contemplated by this Agreement and the nature of the business in which Seller was engaged or is engaged as of the First Closing or the Second Closing, as the case may be, and in which Purchaser is, or shall be, engaged. Seller further acknowledges and agrees that the restrictions set forth in this Section 10.03 are reasonable and necessary to protect Purchasers investment under this Agreement and to safeguard the value and goodwill associated with the Assets and |
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the Business. Seller acknowledges and agrees that Purchaser would not have entered into this Agreement but for Sellers agreement and obligation pursuant to this Section 10.03. If the scope of any stated restriction is too broad to permit enforcement of such restriction(s) to its full extent, then the parties agree that such restriction shall be enforced and/or modified to the maximum extent permitted by Applicable Law. | |||
(c) | Notwithstanding Section 10.03(a), none of Seller nor Parent shall be prohibited from: |
(i) | acquiring or owning less than five percent (5%) (by voting power) of the outstanding capital of any publicly-traded Person that is engaged in the Restricted Business; or | ||
(ii) | performing its obligations under this Agreement and the agreements and transactions contemplated in this Agreement or otherwise taking actions in connection with the winding up of the Business. |
(a) | Injunctive Relief. Seller and Purchaser hereby acknowledge that any breach of Sections 10.01, 10.02 or 10.03 may cause irreparable injury to the goodwill and proprietary rights of the other party and its Affiliates and subsidiaries, for which the other party shall not have an adequate remedy at law. Accordingly, Seller and Purchaser agree that the other party shall be able to seek immediate injunctive relief in the form of a temporary restraining order, preliminary injunction and/or permanent injunction against it (after posting any required bond and making any required showing to the court) to restrain or enjoin any actual or threatened violation of any provision of Sections 10.01, 10.02 or 10.03 by which the other party is bound. | ||
(b) | Costs, Expenses and Attorneys Fees. Purchaser shall be entitled to recover from Seller all costs, expenses and reasonable attorneys fees incurred by Purchaser in seeking either enforcement of Article 10 of this Agreement or damages for a breach of such Article, and Seller shall be entitled to recover from Purchaser all costs, expenses and reasonable attorneys fees incurred by Seller in seeking enforcement of Section 10.01 of this Agreement or damages for a breach of such Section; provided, however, that, in the event the remedy contemplated by Article 10 is denied, then the party against whom the violation was alleged shall be entitled to recover from the alleging party all costs, expenses and reasonable attorneys fees incurred by it in defending such action. |
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(a) | solicit or enter into or continue discussions or negotiations with any prospective purchaser, except for Purchaser, relating to the sale of any shares of Seller or relating to the sale of all or substantially all of the business or assets of Seller or any of Sellers subsidiaries; or | ||
(b) | solicit or enter into any agreement or arrangement with any prospective purchaser, except for Purchaser, relating to the sale of any shares of Seller or relating to the sale of all or substantially all of the business or assets of Seller or any of Sellers subsidiaries; or | ||
(c) | make available any information relating to Seller, to any prospective purchaser, other than Purchaser, relating to the sale of shares of Seller or in connection with the sale of all or substantially all of the business or assets of Seller or any of Sellers subsidiaries, |
(a) | The parties hereto shall cooperate, and shall cause their respective representatives to cooperate, in preparing and filing all Tax Returns (including amended Tax Returns and claims for refund), in handling audits, examinations, investigations and administrative, court or other Proceedings relating to Taxes, in resolving all disputes, audits and refund claims with respect to such Tax Returns and Taxes, and any earlier Tax Returns and Taxes of Seller, and in all other appropriate Tax matters, in each case including making employees available to assist the requesting party, timely providing information reasonably requested, maintaining and making available to each other all records necessary or desirable in connection therewith, and the execution and delivery of appropriate and customary forms and authorizations when the requesting party reasonably requires such forms in connection with any Tax dispute or claim for refund. Any information obtained by any party or its Affiliates from another party or its Affiliates in connection with any Tax matters to which this Agreement relates shall be kept confidential, except: (i) as may be otherwise necessary in connection with the filing of Tax Returns or claims for refund or in |
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conducting an audit or other Proceeding relating to Taxes or as may be otherwise required by Applicable Law, to enforce rights under this Agreement or to pursue any claim for refund or contest any proposed Tax assessment; or (ii) for any external disclosure in audited financial statements or regulatory filings which a party reasonably believes is required by Applicable Law or stock exchange or similar applicable rules. | |||
(b) | Notwithstanding the provisions of Section 11.01(a), and in addition to all other obligations imposed by this Section 11.01: (i) Seller and Purchaser agree to give the other party reasonable written notice prior to transferring, destroying or discarding any Files and Records with respect to Tax matters and, if Purchaser so requests, Seller shall allow Purchaser to take possession of such Files and Records; and (ii) Seller shall retain (or cause Sellers Affiliates to retain) all such Files and Records of Seller and Sellers Affiliates until the expiration of any applicable statute of limitations (including any extension thereof) with respect to Tax Returns filed on behalf of Seller or its Affiliates. |
(a) | Following the First Closing, Purchaser may, in its sole discretion, elect to offer employment effective as of the Second Closing Date to any of the Employees who are not Inactive Employees. Upon receiving notice from Seller that an Inactive Employee is ready to return to work in the capacity in which he or she worked prior to commencing his or her leave of absence, Purchaser may, in its sole discretion, elect to offer employment effective as of the date he or she is ready to return to work in the capacity in which he or she worked prior to commencing his or her leave of absence to any of the Inactive Employees. Purchaser shall recognize all past service of Key Employees and Transferred Employees with Seller and, if applicable, the |
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predecessors of Seller, for all purposes (other than the accrual of benefits in Purchasers pension and other benefit plans), including for any required notice of termination, termination or severance pay (contractual, statutory or at common-law). | |||
(b) | Except in the case of Inactive Employees who become Transferred Employees effective as of the date on which they become Transferred Employees, the Transferred Employees shall cease to participate under all Benefit Plans effective as of the Second Closing Date. In the case of any Inactive Employee who becomes a Transferred Employee, such Transferred Employee shall cease to participate under all Benefit Plans effective as of the date on which he or she becomes a Transferred Employee. The Key Employees shall cease to participate in all Benefit Plans effective as of the First Closing Date. | ||
(c) | Purchaser shall be responsible for and shall discharge all Liabilities relating to all Transferred Employees, including with respect to termination pay, severance pay, pay in lieu of notice, any other damages relating to any termination of employment of any Transferred Employee, and all salary, wages, bonuses, commissions, vacations and vacation pay and other compensation, benefits or perquisites relating to the Transferred Employees on and after the Second Closing Date (except in the case of Inactive Employees who become Transferred Employees, on and after the date on which they become Transferred Employees). | ||
(d) | Purchaser shall be responsible for and shall discharge all Liabilities relating to all Key Employees, including with respect to termination pay, severance pay, pay in lieu of notice, any other damages relating to any termination of employment of any Key Employee, and all salary, wages, bonuses, commissions, vacations and vacation pay and other compensation, benefits or perquisites relating to the Key Employees on and after the First Closing Date. | ||
(e) | Seller shall be responsible for, and agree to pay when due, and perform and discharge in accordance with their terms, all Liabilities: |
(i) | relating to all Transferred Employees prior to the Second Closing Date (except in the case of Inactive Employees who become Transferred Employees, prior to the date on which they become Transferred Employees), including all Liabilities relating to all salary, wages, overtime, bonuses, commissions, vacations and vacation pay, and other compensation, benefits or perquisites relating to the Transferred Employees prior to the Second Closing Date (except in the case of Inactive Employees who become Transferred Employees, prior to the date on which they become Transferred Employees); | ||
(ii) | relating to all Key Employees prior to the First Closing Date, including all Liabilities relating to all salary, wages, overtime, bonuses, commissions, vacations and vacation pay, and other compensation, benefits or perquisites relating to the Key Employees prior to the First Closing Date; and |
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(iii) | relating to all Employees who are not Transferred Employees, including all Employees who do not accept offers of employment made pursuant to Section 11.03(a). |
(f) | Section 11.03(f) of the Disclosure Schedules contains an up-to-date list of all Employees as of the date hereof. On the First Closing Date, Seller shall deliver to Purchaser an up-to-date list of Employees as at the First Closing Date certified complete by an officer of Seller. | ||
(g) | During the Second Interim Period, Seller shall have responsibility for the supervision, management and direction of all Employees in performing the services to be performed pursuant to the Servicing Agreement. During the Second Interim Period, Seller shall remain responsible for all salaries, bonuses, benefits and other compensation owing to the Employees, for all decisions relating to hiring, termination and terms and conditions of employment, and for all claims made by any Employee (including claims for termination and severance payments), provided that Purchaser may make recommendations to Seller in all regards. | ||
(h) | Purchaser may, at any time during the Second Interim Period, provide written notice to Seller regarding the unacceptable actions of an Employee specifying the details of such action and remedy sought regarding that Employee. If Purchaser is not satisfied, acting reasonably and in good faith, that the actions of such Employee have been corrected within seven (7) calendar days of such notice, then Purchaser may, in its sole discretion, demand that such Employee cease performing any of the services to be performed pursuant to the Servicing Agreement and Seller agrees to comply with any such demand forthwith upon receipt of any such notice. |
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(i) | the issuance of an Advance Ruling Certificate; | ||
(ii) | Purchaser and Seller have given the notice required under section 114 of the Competition Act with respect to the transactions contemplated by this Agreement and the applicable waiting period under section 123 of the Competition Act has expired or been waived in accordance with the Competition Act; or | ||
(iii) | the obligation to give the requisite notice has been waived pursuant to subsection 113(c) of the Competition Act |
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(a) | all trade-marks, service marks, certification marks, trade-mark registration applications, business names, trade names, design logos and brand names, including all goodwill associated therewith; | ||
(b) | all trade dress, other indications of origin and other trade-mark rights and any labels, packaging or get up of any products or services, including all goodwill associated therewith; | ||
(c) | all copyrights, Software, works of authorship, industrial designs and registrations thereof and applications therefor; | ||
(d) | all moral rights and benefit of all waivers of moral rights; | ||
(e) | all inventions, discoveries, improvements, patents, patent applications and patent rights (including any patents issuing on such applications or rights); | ||
(f) | all domain names and internet protocol addresses, whether or not used or currently in service, including all goodwill associated therewith; | ||
(g) | all trade secrets, confidential information, ideas, formulas, compositions, inventors notes, know-how, manufacturing and production processes and techniques, research and development information, drawings, specifications, plans, proposals and all other technical, business and customer information and customer listings; and | ||
(h) | all integrated circuit topographies and mask works, and all registrations and applications therefor |
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(a) | the sum of: |
(i) | the aggregate amount of the Lease Receivables; plus | ||
(ii) | the aggregate amount of the CSC Receivables; minus |
(b) | the sum of: |
(i) | the aggregate amount of Unearned Income in respect of the Lease Receivables and CSC Receivables; plus | ||
(ii) | the then current Bad Debt Allowance in respect of the Lease Receivables and CSC Receivables; plus | ||
(iii) | the amount of the Deposits in respect of the Lease Receivables and CSC Receivables. |
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(i) | all trade dress, trade-marks, trade names, design logos, brand names, and other indications of origin and other trade-mark rights and any labels, packaging or get up of any of the Assets, including all goodwill associated therewith; | ||
(ii) | all unregistered copyrights, works of authorship, and industrial designs related to the Assets; | ||
(iii) | all moral rights and benefit of all waivers of moral rights related to the Assets; | ||
(iv) | all inventions, discoveries, improvements and patent rights related to the Assets; | ||
(v) | all trade secrets, confidential information, ideas, formulas, compositions, inventors notes, know-how, processes and techniques, research and development information, drawings, specifications, plans, proposals, and all other technical, business and customer information and customer listings related to the Assets; and | ||
(vi) | all rights of renewal, extension, reissue, division, continuation or modification relating to any of the Proprietary Intellectual Property. |
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Defined term | Section | |
Additional Portfolio Amount | Section 1.05(a)(i)(B) | |
Aggregate Minimum Loss | Section 8.08(a)(ii) | |
Agreement | Preamble | |
Assets | Preamble | |
Assumed Liabilities | Section 1.03(b) | |
Assumed First Closing Liabilities | Section 1.03(a) | |
Assumed Second Closing Liabilities | Section 1.03(b) | |
Balance Sheet Date | Section 4.08 | |
Business | Preamble | |
Claimant | Section 8.03 | |
Close of Business | Section 1.05(f) | |
Closing Date Net Portfolio Value Statement | Section 1.06(a) | |
Confidential Information | Section 10.01(a) | |
Contract-Licensed Intellectual Property | Section 4.19(a) | |
Consultants | Section 4.22(d)(i) | |
Corporate Insurance Policies | Section 4.26(a) | |
Disagreement Notice | Section 8.05 | |
Dispute Notice | Section 1.06(c) | |
EDT | Section 2.01 | |
Election Notice | Section 8.04 | |
Estimated Net Portfolio Value | Section 1.05(f) | |
Excluded Assets | Section 1.02 | |
Excluded Intellectual Property Assets | Section 1.02(t) | |
Excluded Liabilities | Section 1.04 | |
Expiration Date | Section 10.06 | |
Final Net Portfolio Value | Section 1.06(c) | |
Financial Statements | Section 4.08 | |
First Closing | Section 2.01 | |
First Closing Assets | Section 1.01(a) | |
First Closing Date | Section 2.01 | |
First Closing Transfer Taxes | Section 11.02 | |
First Interim Period Covenants | Section 6.01 |
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Defined term | Section | |
Holdback Amount | Section 1.05(a)(i)(C) | |
Indemnification Cap | Section 8.08(a) | |
Indemnification Notice | Section 8.03 | |
Indemnifying Party | Section 8.03 | |
Independent Auditor | Section 1.06(c) | |
Intellectual Property Assets | Section 4.19(b) | |
Interim Balance Sheet | Section 4.08 | |
Irwin Canada | Preamble | |
Leased Real Property | Section 4.12(a) | |
Licenses | Section 4.19(a) | |
Licensed Excluded IP | Section 4.19(h) | |
Litigation Notice | Section 8.03 | |
Material Contracts | Section 4.27 | |
Onset | Preamble | |
Parent | Preamble | |
Policy or Policies | Section 4.26(a) | |
Preliminary Allocation | Section 1.07 | |
Proprietary Intellectual Property | Section 4.19(a) | |
Purchaser | Preamble | |
Purchase Price | Section 1.05(a) | |
Purchaser Indemnified Parties | Section 8.01 | |
Purchaser Group | Section 6.03 | |
Purchasers Final Net Portfolio Value Determination | Section 1.06(a) | |
Qualifying Indemnity Loss | Section 8.08(a)(i) | |
Restricted Business | Section 10.03(a) | |
Restricted Contract | Section 1.08 | |
Restricted Period | Section 10.02(a) | |
Second Closing | Section 2.01 | |
Second Closing Assets | Section 1.01(b) | |
Second Closing Date | Section 2.01 | |
Second Closing Transfer Taxes | Section 11.02 |
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Defined term | Section | |
Second Interim Period Covenants | Section 6.02 | |
Securitized Assets | Section 2.02(a)(i)(B)(I) | |
Seller | Preamble | |
Seller Indemnified Parties | Section 8.02 | |
Seller Material Consents | Section 2.02(b)(ii) | |
Third Person Claim | Section 8.03 | |
Transition Committee | Section 11.05 | |
Undisclosed Liabilities | Section 4.28 |
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Onset Alberta, Ltd.
c/o Irwin Financial Corporation
500 Washington Street Box 929
Columbus, Indiana ###-###-####
Attention: Steven R. Schultz, Secretary
Facsimile: (812)  ###-###-####
Email: ***@***
shall not constitute notice hereunder):
One American Square, Suite 3100
Indianapolis, Indiana 46282
89
Facsimile: (317)  ###-###-####
E-mail: ***@***
Attention: Janice Wilken
Facsimile: (317)  ###-###-####
E-mail: ***@***
c/o Irwin Financial Corporation
500 Washington Street Box 929
Columbus, Indiana ###-###-####
Attention: Greg Ehlinger
Facsimile: (812)  ###-###-####
Email: ***@***
shall not constitute notice hereunder):
One American Square, Suite 3100
Indianapolis, Indiana 46282
Attention: Steven K. Humke
Facsimile: (317)  ###-###-####
E-mail: ***@***
Attention: Janice Wilken
Facsimile: (317)  ###-###-####
E-mail: ***@***
40 King Street West
26th Floor
Scotia Plaza
Toronto, Ontario
M5H 1H1
Attention: President and Chief Executive Officer
Facsimile: (416)  ###-###-####
E-mail: ***@***
shall not constitute notice hereunder):
Legal Department
44 King Street West
90
Toronto, Ontario M5H 1H1
Attention: General Counsel
Facsimile: (416)  ###-###-####
E-mail: ***@***
shall not constitute notice hereunder):
Suite 5300
Toronto Dominion Bank Tower
Toronto, Ontario M5K 1E6
Attention: Nancy Carroll
Facsimile: 416 ###-###-####
E-mail: ***@***
(a) | The parties have participated jointly in the negotiation and drafting of this Agreement and the Related Agreements and, in the event of an ambiguity or a question of intent or a need for interpretation arises, this Agreement and the Related Agreements shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favouring or disfavouring any party by virtue of the authorship of any of the provisions of this Agreement or any of the Related Agreements. | ||
(b) | The Disclosure Schedules shall be construed with and as an integral part of this Agreement to the same extent as if they were set forth verbatim herein. Disclosure of any fact or item in any Section of the Disclosure Schedules referenced by a particular Section in this Agreement shall be deemed to have been disclosed with respect to only that Section in this Agreement unless any disclosure on the Disclosure Schedules is expressly cross referenced to another specific section of the Disclosure Schedules. | ||
(c) | Words of any gender used in this Agreement or any of the Related Agreements shall be held and construed to include any other gender; words in the singular shall be held to include the plural and words in the plural shall be held to include the singular, unless and only to the extent the context indicates otherwise. |
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(d) | Reference to any Law means such Law as amended, modified, codified, replaced or re-enacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder, and reference to any section or other provision of any Law means that provision of such Law from time to time in effect and constituting the substantive amendment, modification, codification, replacement or re-enactment of such section or other provision. | ||
(e) | The terms hereunder, hereof, hereto, herein, and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Article, Section or other provision hereof. Unless the context otherwise requires, references in this Agreement to Articles, Sections, Exhibits and Disclosure Schedules shall be deemed references to Articles and Sections of, and Exhibits and Disclosure Schedules to, this Agreement. | ||
(f) | Including (and with correlative meaning include) means including without limiting the generality of the foregoing. | ||
(g) | Or is used in the inclusive sense of and/or. | ||
(h) | References to documents, instruments or agreements shall be deemed to refer as well to all addenda, appendices, exhibits, schedules or amendments thereto. | ||
(i) | All references to immediately available funds or dollar amounts contained in this Agreement shall mean Canadian dollars. |
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(a) | The laws of the Province of Ontario and the laws of Canada applicable in such province shall govern the creation, interpretation, construction and enforcement of and the performance under this Agreement and the Related Agreements and all transactions and agreements contemplated by any of them, as well as any and all claims arising out of or relating in any way to this Agreement or any of the Related Agreements, notwithstanding the choice of law rules of any other jurisdiction. | ||
(b) | For the purpose of all legal proceedings this Agreement will be deemed to have been performed in the Province of Ontario and the courts of the Province of Ontario will have jurisdiction to entertain any action arising under this Agreement. Seller, Parent and Purchaser each attorns to the jurisdiction of the courts of the Province of Ontario. | ||
(c) | Each Seller and Parent nominates, constitutes and appoints Davis LLP, Barristers and Solicitors, of the City of Toronto, Ontario its true and lawful agent to accept service of process and to receive all lawful notices in respect of any action arising under this Agreement (other than any notice that is to be given by one party to another pursuant to Section 13.05). Until due and lawful notice of the appointment of another and subsequent agent in the Province of Ontario has been given to and accepted by Purchaser, service of process or of papers and such notices upon Davis LLP will be accepted by Seller and Parent as sufficient service. |
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ROYNAT INC. | ||||||
By: | /s/ Earl Lande | |||||
Printed: | Earl Lande | |||||
Title: | President and CEO | |||||
IRWIN COMMERCIAL FINANCIAL CANADA CORPORATION | ||||||
By: | /s/ William I. Miller | |||||
Printed: | William I. Miller | |||||
Title: | Chairman | |||||
ONSET ALBERTA LTD. | ||||||
By: | /s/ Joseph R. LaLeggia | |||||
Printed: | Joseph R. LaLeggia | |||||
Title: | President |
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IRWIN UNION BANK AND TRUST COMPANY | ||||||
By: | /s/ Matt Souza | |||||
Printed: | Matthew F. Souza | |||||
Title: | VP, CAO and Secretary |
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Exhibit 1.05 | Sample Calculation of Net Portfolio Value | |
Exhibit A | Form of Assignment and Assumption Agreement | |
Exhibit B | Form of Bill of Sale | |
Exhibit C | License Agreement | |
Exhibit D | Master Tape Fields | |
Exhibit E | Servicing Agreement | |
Exhibit F | Transition Services Agreement |
ARTICLE 1 PURCHASE AND SALE OF THE ASSETS | 1 | |||
1.01 Assets | 1 | |||
1.02 Excluded Assets | 3 | |||
1.03 Assumed Liabilities | 4 | |||
1.04 Excluded Liabilities | 5 | |||
1.05 Purchase Price | 7 | |||
1.06 Adjustments to Purchase Price | 8 | |||
1.07 Allocation of Purchase Price | 10 | |||
1.08 Assignment of Contracts | 10 | |||
ARTICLE 2 CLOSING | 11 | |||
2.01 Closing Date | 11 | |||
2.02 Deliveries by Seller | 11 | |||
2.03 Deliveries by Purchaser | 16 | |||
2.04 Bulk Sales Waiver and Indemnity | 17 | |||
ARTICLE 3 CONDITIONS PRECEDENT | 18 | |||
3.01 Conditions Precedent to Obligations of Seller | 18 | |||
3.02 Conditions Precedent to Obligations of Purchaser | 20 | |||
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT | 23 | |||
4.01 Organization; Power | 23 | |||
4.02 Authorization and Validity of Agreement | 24 | |||
4.03 No Conflict or Violation | 24 | |||
4.04 Qualification to do Business | 24 | |||
4.05 Documents Made Available to Purchaser | 25 | |||
4.06 Files and Records | 25 | |||
4.07 Master Tapes | 25 | |||
4.08 Financial Statements | 25 | |||
4.09 Tax Matters | 26 | |||
4.10 Absence of Certain Changes | 26 | |||
4.11 Real Property | 27 | |||
4.12 Leased Real Property | 27 | |||
4.13 Equipment and Machinery | 28 | |||
4.14 The CSCs | 28 | |||
4.15 The Leases and Lease Documents | 30 | |||
4.16 Nature of CSCs and Leases | 32 | |||
4.17 Servicer Obligations | 33 | |||
4.18 Title to the Assets and Related Matters | 33 | |||
4.19 Intellectual Property | 34 | |||
4.20 Privacy | 36 |
4.21 Employee Benefit Plans | 37 | |||
4.22 Employees; Labour Relations | 37 | |||
4.23 Environmental Compliance | 39 | |||
4.24 Licenses and Permits | 39 | |||
4.25 Compliance with Law | 40 | |||
4.26 Insurance | 40 | |||
4.27 Contracts and Commitments | 41 | |||
4.28 Absence of Undisclosed Liabilities | 42 | |||
4.29 Litigation | 42 | |||
4.30 Brokers and Finders Fees | 42 | |||
4.31 Consents and Regulatory Approvals | 42 | |||
4.32 No Material Adverse Change; Ordinary Course of Business | 43 | |||
4.33 Place of Business | 43 | |||
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PURCHASER | 43 | |||
5.01 Organization; Power | 43 | |||
5.02 Authorization and Validity of Agreement | 43 | |||
5.03 No Conflict or Violation | 43 | |||
5.04 Approvals and Consents | 44 | |||
5.05 Brokers and Finders Fees | 44 | |||
5.06 Sufficient Funds to Close | 44 | |||
5.07 Due Diligence Investigation | 44 | |||
5.08 Tax Matters | 44 | |||
ARTICLE 6 COVENANTS | 45 | |||
6.01 First Interim Period Covenants | 45 | |||
6.02 Second Interim Period Covenants | 47 | |||
6.03 Access; Examination of Records and Assets; Cooperation | 49 | |||
6.04 Approvals, Consents, Etc. | 50 | |||
6.05 Governmental Approvals; Competition Act Filing | 50 | |||
6.06 Pre-First Closing Deliveries | 51 | |||
6.07 PPSA and Insurance Notices | 52 | |||
6.08 Insurance Proceeds Received After Effective Time | 52 | |||
6.09 Power of Attorney Regarding Personal Property Registrations and Quebec discharges | 52 | |||
6.10 Additional Notices and Covenants | 53 | |||
6.11 Notices | 53 | |||
ARTICLE 7 COOPERATION | 53 | |||
7.01 Misapplied Payments | 53 | |||
ARTICLE 8 INDEMNIFICATION; SURVIVAL | 54 | |||
8.01 Indemnification By Seller and Parent | 54 | |||
8.02 Indemnification by Purchaser | 54 |
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8.03 Indemnification Notice; Litigation Notice | 55 | |||
8.04 Defense of Third Person Claims | 55 | |||
8.05 Disagreement Notice | 56 | |||
8.06 Payment of Losses | 56 | |||
8.07 Survival | 57 | |||
8.08 Limitations on Indemnification | 57 | |||
8.09 Net Recovery | 59 | |||
8.10 Additional Representations and Warranties | 60 | |||
8.11 Sole Remedy | 60 | |||
8.12 Tax Treatment of Indemnity Payments | 60 | |||
8.13 Risk of Loss | 60 | |||
ARTICLE 9 TERMINATION | 61 | |||
9.01 Events of Termination | 61 | |||
9.02 Effect of Termination | 63 | |||
ARTICLE 10 RESTRICTIVE COVENANTS | 64 | |||
10.01 Confidential Information; Use of Name and Marks | 64 | |||
10.02 Non-Solicitation | 65 | |||
10.03 Non-Competition | 66 | |||
10.04 Remedies | 67 | |||
10.05 Corporate Existence | 67 | |||
10.06 Exclusivity | 68 | |||
ARTICLE 11 OTHER AGREEMENTS | 68 | |||
11.01 Cooperation on Tax Matters | 68 | |||
11.02 Transfer Taxes | 69 | |||
11.03 Employment | 69 | |||
11.04 Retention of Files and Records | 71 | |||
11.05 Transition Committee | 71 | |||
11.06 Compliance with Privacy Laws | 72 | |||
ARTICLE 12 DEFINITIONS | 72 | |||
ARTICLE 13 MISCELLANEOUS | 88 | |||
13.01 Public Announcements | 88 | |||
13.02 Costs and Expenses | 88 | |||
13.03 Utilities Proration | 88 | |||
13.04 Further Assurances | 88 | |||
13.05 Addresses for Notices, Etc. | 89 | |||
13.06 Headings | 91 | |||
13.07 Construction | 91 | |||
13.08 Severability | 92 |
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13.09 Entire Agreement and Amendment | 92 | |||
13.10 No Waiver; Cumulative Remedies | 93 | |||
13.11 Parties in Interest | 93 | |||
13.12 Obligations of Parent | 93 | |||
13.13 Successors and Assigns; Assignment | 93 | |||
13.14 Governing Law; Jurisdiction and Venue | 94 | |||
13.15 Counterparts | 94 | |||
13.16 Certain Understandings | 94 | |||
13.17 Intention of Two-Stage Closing | 94 |
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