THIS AGREEMENT dated as of January 18, 0000
X X X X X X X :
CASCADE CORPORATION ("Cascade")
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CASCADE (CANADA) LTD. ("CCL")
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CASCADE (SCANDINAVIA) HYDRAULIK A.B. ("EML")
(Cascade, CCL and EML each a "Vendor")
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X.X. XXXXXXXX ("Xxxxxxxx")
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X.X. XXXXXXXX HOLDINGS LTD. ("Xxxxxxxx Holdings")
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LIFT TECHNOLOGIES INC. ("Canco")
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LIFT TECHNOLOGIES, INC. ("U.S. Subco")
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LYFTTEKNIK SCANDINAVIA AB ("European Subco")
(Canco, U.S. Subco and European Subco each a "Purchaser")
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OSLER, XXXXXX & HARCOURT ("OH&H")
WHEREAS the Vendors, Xxxxxxxx, Xxxxxxxx Holdings, Couphar Ltd. and the
Purchasers have entered into an asset purchase agreement dated as of November
18, 1998 (the "Asset Purchase Agreement") and wish to amend certain provisions
thereof;
AND WHEREAS U.S. Subco has assigned its rights to purchase the European
Assets to European Subco;
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AND WHEREAS Xxxxxxxx Holdings is the successor by amalgamation to Couphar
Ltd. and X.X. Xxxxxxxx Holdings Ltd.;
NOW THEREFORE in consideration of the mutual covenants and agreements
hereinafter set forth, the Parties hereby agree as follows:
1. Interpretation. Terms with initial upper case letters used but not defined
herein shall have the meanings ascribed to them in the Asset Purchase
Agreement.
2. Asset Purchase Agreement.
(a) The definition of "Closing Date" in section 1.1 of the Asset Purchase
Agreement is hereby deleted and the following substituted therefor:
"Closing Date" means the 18th day of January, 1999.
(b) Section 2.2 of the Asset Purchase Agreement is hereby deleted and the
following substituted therefor:
"On the day before the Release Date but no later than 5:00 p.m.
(Toronto time) on January 21, 1999, regardless of whether the
Closing has occurred or will occur, Cascade shall purchase from
Xxxxxxxx Holdings and Xxxxxxxx Holdings shall sell to Cascade
300,000 CCL exchangeable shares (the "Shares") for a purchase
price equal to the market price of a Cascade common share and
Xxxxxxxx Holdings shall deliver share certificates representing
the shares to be sold endorsed in blank for transfer and Cascade
shall deliver a certified cheque or bank draft payable to Couphar
representing the purchase price for such shares. For the purposes
of this section, "market price of a Cascade common share" shall
have the meaning ascribed to "Current Market Price" in the share
provisions governing the Shares."
(c) Subject to adjustment as provided for in the Asset Purchase Agreement,
the Canadian Purchase Price shall be (Cdn.) $1,557,688, the U.S.
Purchase Price shall be (U.S.) $9,444,376 and (U.S.) $186,429 (Hoorn
Inventory) and the European Purchase Price shall be 4,505,726 Kroner
and 579,242 Guilders (Hoorn Assets), representing a Purchase Price of
(U.S.) $11,657,595 as determined in accordance with Section 2.4 of the
Asset Purchase Agreement. The amounts payable under sections 9.4 and
12.2 to be included in the Closing Payments shall be (U.S.) $122,253.
(d) The Purchase Price and all other amounts due and owing to the Vendors
on the Closing Date (collectively, the "Closing Payments") as set out
in the closing agenda previously delivered to the Parties (the
"Closing Agenda") shall bear interest from
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and including the Closing Date to but excluding the Release Date at a
rate of 7 3/4% per annum payable on the Release Date (the "Interest
Payment").
(e) U.S. Subco shall purchase the Inventory, consisting of rollers and
sheaves at Coyo for (U.S.)$62,382 and rollers and sheaves at Smepro
for (U.S.)$140,820.49 in accordance with purchase orders to be issued.
(f) During the period from the date hereof until the earlier to occur of
the Release Date (as defined below) or 5:00 p.m. (Toronto time) on
January 22, 1999 (the "Expiry Time"), each Purchaser shall conduct the
Business in the ordinary and normal course, consistent with past
practice and regular customer service and business policies and not,
without the prior written consent of Cascade, sell products to
customers at other than posted selling prices in terms of sale
including delivery, comply in all material respects with all Laws
affecting the operation of the Business, keep in effect all licences
and permits required for the operation of the Business and not change
any of the compensation (including benefits) payable to the
Transferred Employees.
(g) In all other respects the provisions of the Asset Purchase Agreement
are hereby confirmed and shall remain in full force and effect
unamended hereby.
3. Closing. The Vendors and the Purchasers shall attend at the offices of
OH&H at the Closing Time and execute and deliver to OH&H all documents set
out in Parts II and III of the Closing Agenda other than those with respect
to the transfer of the Real Property (the "Documentation") which has been
executed and is being held by Cascade's South Carolina counsel.
4. Documentation.
(a) OH&H shall hold the Documentation at its offices until the earlier of
the Release Date and the Expiry Time.
(b) The Purchasers shall, on or before the Expiry Time, and without any
further action by or on behalf of the Vendors, wire transfer the
Closing Payments and the Interest Payment to Cascade's account at
Xxxxx Fargo, Account Number: 4159597277, ABA 000000000 (the date such
payments are received by Cascade, the "Release Date"). Cascade shall
immediately confirm to OH&H in writing receipt of such payments. Upon
written confirmation by Cascade to OH&H that such payments have been
received by Cascade prior to the Expiry Time, OH&H shall release to
the Vendors and the Purchasers all Documentation to which they are
entitled and the Closing shall be deemed to have occurred and be
complete. Upon such release occurring, the transactions set out in
Part II of the Closing Agenda shall be deemed to have occurred at the
Closing Time.
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(c) In the event that Cascade has not (i) by the Expiry Time received the
Closing Payments and the Interest Payment and (ii) within 5 hours
after the Expiry Time notified OH&H thereof, or in the event OH&H
receives no written notice from Cascade by 10:00 p.m. (Toronto time)
on January 22, 1999, OH&H shall return all Documentation (other than
the Documentation referred to in Part III of the Closing Agenda)
signed by one or more Purchaser only and delivered hereunder, to X.X.
Xxxxxx at Xxxx & Berlis, BCE Place, Box 754, 1800 - 000 Xxx Xxxxxx,
Xxxxxxx, Xxxxxxx, X0X 0X0 together with a copy of all Documentation
(other than the Documentation referred to in Part III of the Closing
Agenda) signed by one or more Party that is a Purchaser, Xxxxxxxx or
Xxxxxxxx Holdings and one or more Party that is a Vendor which shall
be deemed to be of no force or effect.
5. Other Agreements.
(a) Except as expressly contemplated by this Agreement or by joint written
instructions from Cascade and Xxxxxxxx, OH&H shall not transfer or
otherwise dispose of any of the Documentation, except pursuant to an
order of a court of competent jurisdiction.
(b) OH&H shall be entitled to rely upon the accuracy, act in reliance upon
the contents, and assume the genuineness, of any notice, instruction,
certificate, signature, instrument or other document which is given to
it pursuant to this Agreement without having to verify the truth or
accuracy thereof. OH&H shall not be obligated to make any inquiry as
to the authority, capacity, existence or identify of any person
purporting to give any such notice or instructions or to execute any
such certificate, instrument or other document.
(c) OH&H will perform only such duties as are expressly set forth herein
and will not be liable for any implied duties or obligations. OH&H
shall not be liable for any error in judgment, or any action taken,
suffered or omitted to be taken hereunder except in the case of its
gross negligence, bad faith or willful misconduct.
(d) The Parties shall jointly and severally indemnify OH&H and hold it
harmless from any and all claims, liabilities, losses and expenses,
which it may incur arising out of or in connection with this
Agreement.
(e) OH&H shall be and is hereby discharged of all responsibility hereunder
upon the earlier to occur of the Release Date and the Expiry Time.
(f) It is expressly understood and agreed that there shall be no fees,
charges or expenses paid to OH&H for holding and delivering
Documentation hereunder.
(g) OH&H may resign at any time from its obligations hereunder and be
discharged from all further obligations under this Agreement by giving
to the Parties, five (5) days" notice in writing or such shorter
period as the Parties accept.
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(h) OH&H is not a party to, and is not bound by, this Agreement and shall
not, by reason of signing this Agreement, assume any responsibility or
liability for any transaction or agreement between the Parties or any
of them notwithstanding any reference to such other transactions or
agreements.
(i) Nothing in this Agreement shall be deemed to prevent or disqualify
OH&H from serving as counsel or otherwise providing legal advice to
the Vendors or any of them or any of their respective affiliates.
6. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of this Agreement.
7. Entire Agreement. This Agreement constitutes the entire agreement of the
Parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and undertakings, both written and oral, with respect to
the subject matter hereof.
8. Assignment. This Agreement may not be assigned by any party hereto without
the consent of the other parties hereto (whether by operation of law or
otherwise unless specifically provided herein).
9. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the
parties hereto and nothing herein, express or implied, is intended to or
shall confer upon any other Person or entity any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
10. Amendment; Waiver. This Agreement may only be amended or modified by an
instrument in writing signed by the Parties and, with respect to sections 4
through 12, OH&H. Waiver of any term or condition of this Agreement shall
only be effective if in writing and shall not be construed as a waiver of
any subsequent breach or a waiver of any other term or condition of this
Agreement.
11. Applicable Law. This Agreement shall be construed in accordance with the
laws of the Province of Ontario and the laws of Canada applicable therein
and shall be treated, in all respects, as an Ontario contract. The Parties
shall attorn to the non-exclusive jurisdiction of the Courts of the
Province of Ontario.
12. Counterparts. This Agreement may be executed in one or more counterparts
and by the different parties hereto in separate counterparts including by
telecopier, each of which when executed shall be deemed to be an original
but all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF the Parties have caused this Agreement to be executed as
of the date first written above.
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CASCADE CORPORATION
By: /s/
CASCADE (CANADA) LTD.
By: /s/
CASCADE (SCANDINAVIA) HYDRAULIK A.B.
By: /s/
/s/
X.X. Xxxxxxxx
X.X. XXXXXXXX HOLDINGS LTD.
By: /s/
LIFT TECHNOLOGIES INC.
By: /s/
LIFT TECHNOLOGIES, INC.
By: /s/
LYFTTEKNIK SCANDINAVIA AB
By: /s/
SOLELY WITH RESPECT TO SECTIONS 4
THROUGH 12:
OSLER, XXXXXX & HARCOURT
By: /s/
