EXHIBIT 4.18
ASSET PURCHASE AGREEMENT BETWEEN
INTEGRATED RETAIL CORP. AND SOFTECH 002 LIMITED PARTNERSHIP
DATED SEPTEMBER 29TH, 1999
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ASSET PURCHASE AGREEMENT
THIS AGREEMENT made effective as of the 29th day of September,
1999.
BETWEEN:
INTEGRATED RETAIL CORP., an Alberta corporation (the
"Vendor")
OF THE FIRST PART
AND
SOFTECH 002 LIMITED PARTNERSHIP, an Alberta limited
partnership (the "Purchaser")
OF THE SECOND PART
WHEREAS:
A. The Vendor beneficially owns or controls through its Rentrak
Corporation revenue sharing agreement the Property as defined herein;
B. The Vendor desires to sell and the Purchaser has agreed to
purchase the Property on the terms and conditions hereinafter set forth.
NOW THEREFORE the Vendor and the Purchaser covenant and agree
as follows:
ARTICLE I
DEFINITIONS
1.01 For the purpose of this agreement:
(a) "CLOSING DATE" shall mean the date of execution hereof or such
later date as the parties shall agree upon;
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(c) "PROPERTY" shall be the property described and located as more
particularly set out in Schedule "A" hereto
(d) "RENTRAK PROPERTY" shall be those items of the Property
subject to the terms of an agreement between the Vendor and
Rentrak Corproation as set out in Schedule A hereto.
ARTICLE II
SALE OF PROPERTY
2.01 The Vendor hereby sells all of his right and interest in and
to the Property for $4,000,000 (the "Purchase Price").
2.02 As consideration for the sale of the Property the Purchaser
shall deliver a cheque or promissory note in an amount equal to $4,000,000.
ARTICLE III
FURTHER ASSURANCES
3.01 This agreement is intended to and shall operate as an actual
transfer of the Property and the Purchaser shall be the owner of the Property
from the Effective Time. The Vendor shall execute all documents and shall do all
such other acts and things which are convenient or necessary and which counsel
may advise, for more completely and effectually carrying out the intention of
this agreement and for vesting the Property in the Purchaser.
ARTICLE IV
VENDOR'S COVENANTS AND REPRESENTATIONS
4.01 The Vendor covenants with and represents and warrants to the
Purchaser that the following shall be true as of the Effective Date:
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ARTICLE IV
VENDOR'S COVENANTS AND REPRESENTATIONS
4.01 The Vendor covenants with and represents and warrants to the
Purchaser that the following shall be true as of the Effective Date:
(a) subject only to the Rentrak Property, the Vendor has good
title and absolute authority to sell the Property to the
Purchaser;
(b) the Vendor has not assigned, mortgaged, hypothecated or
pledged the Property and the Property is free and clear of all
encumbrances (excepting only the claim of Rentrak Corporation
on the Rentrak Property);
(c) the Vendor shall and will, from time to time and at all times
hereafter, at the request and cost of the Purchaser but
without further consideration, do and perform all such acts
and things and execute all such deeds, documents and writings
and give all such further assurances in respect of the
Property as the Purchaser may reasonably require;
(d) the Vendor has complied with, performed, observed and
satisfied all terms, conditions, obligations and liabilities,
if any, which have heretofore arisen with respect to the
Property;
(e) there is no litigation now pending against the Vendor nor, to
the knowledge of the Vendor, has any application been made
under the bankruptcy laws of Canada, nor is there any material
proceeding which has been commenced or is pending or
threatened, either in the courts or by governmental
authorities, which may affect the Property;
(f) the Vendor is not now, nor will he be as at the Effective
Time, a non-resident of Canada within the meaning of the Act;
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(g) the Vendor is not an agent or trustee for anyone with an
interest in the Property who is or will be as at the Effective
Time a non-resident of Canada within the meaning of the Act;
(h) no person, firm or corporation holds any option or right to
acquire or cause to be granted any interest in the Property,
excepting only Rentrak Corporation with respect to the Rentrak
Property;
(i) the Vendor has not entered into or incurred, and shall not
enter into or incur before the Effective Time, any obligations
or liabilities which would materially or adversely affect the
Property;
(j) the Vendor has not incurred any obligation or liability of any
kind, for brokers' or finders' fees in respect of this
transaction for which the Purchaser shall have any obligation
or liability.
4.02 The covenants and representations contained in this clause
shall survive the Effective Time of this agreement for six months therefrom.
ARTICLE V
PURCHASER'S WARRANTIES
5.01 The Purchaser covenants with and represents and warrants to
the Vendor that the following shall be true as at the Effective Time:
(a) the Purchaser is a duly constituted partnership;
(b) the Purchaser has the power to hold its assets and to carry on
its business in all jurisdictions in which it hold such assets
or carries on such business;
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(c) there are not now any actions suits, proceedings or claims
against the Purchaser either at law or in equity or before or
by any government authority, board or other agency involving
the possibility of any judgment or liability; and
(d) the Purchaser is not a non-eligible person as that term is
defined under the INVESTMENT CANADA ACT.
5.02 The covenants and representations contained in this clause
shall survive the Effective Time of this agreement for six months therefrom.
ARTICLE VI
INDEMNITIES
6.01 The Vendor hereby assumes and agrees to indemnify and save
harmless the Purchaser from and against all valid and binding obligations of the
Purchaser which arise by virtue of the Vendor's interest in the Property to the
extent that such obligations and liabilities are attributable to a period
commencing prior to the Effective Time.
6.02 The Purchaser hereby assumes and agrees to indemnify and save
harmless the Vendor from and against all valid and binding obligations and
liabilities of the Vendor which arise by virtue of the Purchaser's interest in
the Property to the extent that the said obligations and liabilities are
attributable to a period commencing on or after the Effective Time.
ARTICLE VII
CONDITIONS
7.01 The completion of the transfer herein is subject to the
condition precedent that as of the Effective Time, the Vendor is the beneficial
owner of the Property and the Property shall be located at the retail outlets
more particularly set out in Schedule "A" hereto.
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ARTICLE VIII
CLOSING PROCEDURE
8.01 As soon as is reasonably practical before or after the
Effective Time the Vendor shall procure from itself and any relevant third party
and, as necessary, execute and deliver to and in favour of the Purchaser such
documentation as is reasonably satisfactory to the Purchaser evidencing the
transfer of the Property.
8.02 The parties hereto confirm and agree that notwithstanding the
generality of the foregoing they will obtain or prepare the following in
connection with the transaction:
(a) GST Election Form #44 (90/12);
(b) consent of Parkland Savings Credit Union;
(c) assignment of the agreement with Rentrack Corporation in
respect to the Rentrak Property consented to by Rentrak
Corporation;
(d) a bill of sale evidencing the transfer of the Property.
ARTICLE IX
EXPENSES
9.01 The Purchaser shall pay all expenses incurred by the parties
incidental to the negotiations preliminary hereto, including the preparation of
and completion of this agreement and carrying the same into effect.
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ARTICLE X
MISCELLANEOUS
10.01 Any notice or communication required or permitted to be given
by this agreement shall be deemed to have been sufficiently given if sent by
registered mail or hand delivered or by telex or telegram to the address for the
respective parties as set forth below. Any notice or communication delivered
personally or by telex or telegram shall be deemed to be received by and given
to the addressee on the day of delivery. Any notice or communication mailed as
aforesaid shall be deemed to have been received three days following the date on
which the same is posted by registered mail except in the event of a disruption
in postal service, in which event such notice or communication shall be
delivered personally or given by telex or telegram:
Vendor: Integrated Retail Corp.
6201 - 46th Avenue
Red Deer, Alberta
T4N 6Z1
Purchaser: Softech 002 Limited Partnership
c/o 1900, 715 - 5th Avenue S.W.
Calgary, Alberta
T2P 2X6
Any party may change its address for service by notice served as set out above.
10.02 This agreement shall be deemed to have been made and shall be
construed in accordance with the laws of the Province of Alberta, and, to the
extent applicable, the laws of Canada, in relation to contracts made and to be
performed in Alberta.
10.03 The paragraph headings in this agreement shall not be
considered as interpreting the text.
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10.04 This agreement shall enure to the benefit of and be binding
upon the parties and their respective heirs, successors and
assigns.
IN WITNESS WHEREOF the parties have executed this agreement.
INTEGRATED RETAIL CORP.
Per: /S/ TREVOR HILLMAN
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SOFTECH 002 LIMITED PARTNERSHIP
Per: /S/ DENNIS NERLAND
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SCHEDULE "A"
PROPERTY
LOCATION NUMBER OF UNITS
Sylvan Lake 8909
Wetaskiwin 7811
Leduc 7846
Blackfalds 7099
Drayton Valley 8411
Red Deer - North 11090
Rocky Mountain House 9248
Whitecourt 8577
Lloydminister 9567
Lacombe 8390
Lethbridge - North 10133
Fort Saskatchewan 9701
Airdrie 8270
Edmonton - Northwood 9021
Lethbridge - South 7511
Yellowknife 9584
Red Deer - South 7310
Edmonton - Millwoods 7054
Total 155,532
All as more particularly set out in the 4 binder Inventory Schedule included
with and made part of this Agreement.