EXHIBIT 10.4
MANAGEMENT SERVICES AGREEMENT
This Agreement is made as of January 1, 1999 between
GRANT BROTHERS SALES, LIMITED, a corporation
existing under the laws of Canada ("Grant Brothers"),
and
GRANT AUTOMOTIVE GROUP INC., a corporation existing
under the laws of Ontario ("Grant Auto").
RECITALS
X. Xxxxx Brothers, under the Asset Purchase Agreement, transferred its wholesale
automotive business group, consisting of its traditional automotive division and
the heavy duty division to Grant Auto.
B. On the date of this Agreement, under a share purchase agreement, Grant
Brothers sold all of the issued and outstanding shares of Grant Auto to Spectre
Industries, Inc., a corporation existing under the laws of Nevada.
X. Xxxxx Auto wishes to have Grant Brothers provide certain services to Grant
Auto so that Grant Auto can continue to operate the Business and to maximize
Grant Auto's benefits from the operation of the Business.
For value received, the parties agree as follows.
SECTION 1 - INTERPRETATION
1.1 Definitions. In this Agreement the following terms have the meanings set out
below.
(a) Agreement means this management services agreement including any recitals
and schedules to this management services agreement, as amended, supplemented or
restated from time to time.
(b) Asset Purchase Agreement means the asset purchase agreement of even date
between Grant Brothers and Grant Auto.
(c) Business means the business transferred to Grant Auto under the Asset
Purchase Agreement, as it changes from time to time thereafter.
(d) Joint Account is defined in section 2.4.
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(e) Management Committee means the management committee established in
accordance with section 2.5(a).
(f) Monthly Base Expenses means the amount of Grant Brothers' monthly operating
expenses jointly established by the parties before the date hereof with respect
to the first fiscal year of the term of this Agreement and by the Management
Committee with respect to any subsequent fiscal year, before the beginning of
such fiscal year (and as may be adjusted by the Management Committee during any
fiscal year).
(g) Net Cash Flow of the Business means the net cash flow of the Business
determined for any particular period in accordance with generally accepted
accounting principles in effect in Canada from time to time, including the
accounting recommendations published in the Handbook of the Canadian Institute
of Chartered Accountants.
1.2 Other Defined Terms. Each capitalized term not otherwise defined in this
Agreement has the meaning given to it in the Asset Purchase Agreement.
1.3 Headings and References. The division of this Agreement into sections and
the insertion of headings are for convenience of reference only and shall not
affect the construction or interpretation of this Agreement.
1.4 Extended Meanings. Words importing the singular include the plural and vice
versa and words importing gender include all genders. The term "including" means
"including without limitation".
1.5 Currency. All amounts to be paid under this Agreement are to be paid in US
dollars.
SECTION 2 - SERVICES AND FEES
2.1 Services. Subject to the terms of this Agreement, Grant Brothers shall
provide the following services to Grant Auto:
(a) Supply of Personnel. Grant Brothers shall make available to the Business
such personnel as are reasonably required to operate the Business substantially
in the manner that the Business was conducted before the date of this Agreement
and subject to any changes in the operation of the Business as are agreed on
from time to time by the Management Committee and with a view to meeting the
various sales targets in the various territories agreed by the Management
Committee from time to time. Grant Brothers may also introduce such changes as
they desire from time to time to the extent that Grant Brothers believes that
the changes will improve the operations of the Business.
(b) Provision of Office Space. Grant Brothers shall provide the necessary office
space, office equipment and office supplies for its personnel to carry out the
activities referred to in section 2.1(a).
(c) Strategic Advice. Grant Brothers shall provide all reasonable assistance to
management of Grant Auto's ultimate parent company, Spectre Industries, Inc., in
respect of strategic planning for, the capital structure of, new business
development for, and cost base management in connection with, the Business.
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(d) New Opportunities. Grant Brothers shall consider new opportunities for the
Business that would complement the Business (including the identification of
potential acquisitions and the making of introductions to potential
acquisitions). Grant Brothers shall communicate the result of such
considerations in a timely manner to Grant Auto from time to time. To this end,
Grant Brothers shall cause its Chief Operating Officer and its Chief Financial
Officer to devote at least 15% of their time to the foregoing duties. Grant Auto
shall reimburse Grant Brothers for all reasonably incurred costs directly
attributable to the identification of potential acquisitions and the making of
introductions to potential acquisitions.
(e) Monthly Reporting. Grant Brothers shall deliver to Grant Auto within 45 days
of the end of each calendar month a report in respect of the Business for such
month containing:
(1) a profit and loss statement for such month;
(2) a balance sheet as at the end of such month;
(3) a cash flow statement for such month, including a line analysis in
respect of each manufacturer; and
(4) a detailed analysis indicating the reasons for all material
deviations from the quarterly financial forecast applicable to such
month.
(f) Quarterly Reporting. Grant Brothers shall deliver to Grant Auto within 45
days of the end of each calendar quarter a report in respect of the Business for
such quarter containing:
(1) a profit and loss statement for such quarter;
(2) a balance sheet as at the end of such quarter;
(3) a cash flow statement for such quarter, including a line analysis in
respect of each manufacturer;
(4) a detailed analysis indicating the reasons for all material
deviations from the quarterly financial forecast applicable to such
quarter; and
(5) a financial forecast for the next three calendar quarters, including
projected profit and loss and projected cash flow for each such
quarter.
Representatives of Grant Brothers shall make themselves available at their
offices to meet with representatives of Spectre Industries, Inc. at a mutually
agreeable time during the 60 day period following the delivery to Grant Auto of
the quarterly report to discuss the contents of that report.
(g) Annual Reporting. Grant Brothers shall deliver to Grant Auto within three
months of the end of each year under this Agreement a report in respect of the
Business for such year containing:
(1) financial statements, reviewed by the Grant Brothers' outside
accountants, for such year (containing a profit and loss statement
and a balance sheet for such year);
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(2) a financial forecast and business plan for the next two years under
this Agreement; and
(3) a detailed financial budget for the then current year under this
Agreement.
Representatives of Grant Brothers shall make themselves available at their
offices to meet with representatives of Spectre Industries, Inc. at a mutually
agreeable time during the 60 day period following the delivery to Grant Auto of
the annual report to discuss the contents of that report. During the 180 day
period following the delivery of the annual report Grant Brothers shall provide
to Grant Auto access to the financial records which Grant Brothers maintains in
connection with the Business, including all materials used in the preparation of
the annual financial statements and all documents prepared by Grant Brothers'
outside accountants in respect of their review of such statements.
(h) Other Services. Grant Brothers shall provide to Grant Auto such other
services as the parties may agree from time to time.
2.2 Authorized Representative. To assist in fulfilling the obligations of Grant
Brothers set out in section 2.1(a), Grant Auto hereby appoints Grant Brothers as
its authorized representative to act in Grant Auto's name to carry on the
Business, including with the power to sign any agreements on behalf of Grant
Auto. Grant Auto shall ensure that its by-laws or other corporate documents
specifically authorizes such signing of documents by Grant Brothers. All new
contracts respecting the Business shall be entered into in the name of Grant
Auto.
2.3 Reimbursements, Fees and Bonuses. Grant Auto shall pay Grant Brothers the
following amounts at the times set out below.
(a) Reimbursements. By the 15th day of each month under this Agreement, Grant
Auto shall pay to Grant Brothers an amount to reimburse Grant Brothers for all
of its costs associated directly with its services provided under this
Agreement, including all amounts paid to or in respect of employees of Grant
Brothers, plus agreed overhead for such employees and all amounts reimbursed by
Grant Brothers to any of its employees in respect of services provided under
this Agreement on behalf of Grant Auto, including all amounts to be reimbursed
in accordance with section 2.1(d).
(b) Net Cash Flow Distribution. With respect to any fiscal year, the Net Cash
Flow of the Business shall be distributed between Grant Auto and Grant Brothers
as follows.
(1) The first US$100,000 of the Net Cash Flow of the Business shall be
distributed to Grant Auto.
(2) The second US$100,000 of the Net Cash Flow of the Business shall be
distributed to Grant Brothers.
(3) Any Net Cash Flow of the Business in excess thereof shall be
distributed 95% to Grant Auto and 5% to Grant Brothers.
(c) Distribution Mechanics.
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(1) General. In respect of any fiscal year during the term hereof, at
the end of each month Grant Auto shall be entitled to receive out of
the Joint Account any excess funds remaining after all costs and
expenses with respect to such month, including amounts payable under
section 2.3(a), have been paid until Grant Auto shall have received
US$100,000 (the "Grant Auto Base Compensation") in respect of such
year. Thereafter, Grant Brothers shall be entitled to receive at the
end of each month in respect of such year out of the Joint Account
any excess funds remaining after all costs and expenses with respect
to such month, including amounts payable under section 2.3(a), have
been paid until Grant Brothers shall have received US$100,000 (the
"Grant Brothers Base Compensation") in respect of such year.
Thereafter, at the end of each month in respect of such year, an
amount equal to 95% of the excess over any costs and expenses with
respect to such month, including amounts payable under section
2.3(a), shall be paid to Grant Auto (the "Grant Auto Bonus") and an
amount equal to 5% of such excess shall be paid to Grant Brothers
(the "Grant Brothers Bonus").
(2) Negative Cash Balance. If at any time in any fiscal year during the
term hereof, there shall be a negative cash balance in the Joint
Account, funds shall be contributed to the Joint Account by the
parties as follows until any such shortfall shall be covered:
(A) by Grant Brothers up to an amount equal to the aggregate Grant
Brothers Bonus paid to Grant Brothers through such date;
(B) by Grant Auto up to an amount equal to the aggregate Grant
Auto Bonus paid to Grant Auto through such date;
(C) by Grant Brothers up to an amount equal to the aggregate Grant
Brothers Base Compensation paid to Grant Brothers through such
date;
(D) by Grant Auto up to an amount equal to the aggregate Grant
Auto Base Compensation paid to Grant Auto through such date;
and
(E) by Grant Brothers.
In such event, prior to making any distribution pursuant to section
2.3(c)(1) during such fiscal year, the parties shall be entitled to
receive an amount equal to their contributions pursuant to this
section 2.3(c)(2) in the reverse order in which such contributions
were made.
(3) Year End Reconciliation. Within 10 business days of the receipt of
the audited financial statements for Grant Auto for the previous
fiscal year, the Management Committee shall determine the definitive
Net Cash Flow Distribution in accordance with section 2.3(c)(1). To
the extent any party shall have received an amount in excess of the
amount to which such party would be entitled pursuant to such
determination, such party shall pay to the other an amount equal to
such excess within 30 days of such determination.
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2.4 Joint Account. Grant Auto and Grant Brothers shall establish a joint bank
account (the "Joint Account") with a reputable financial institution in Toronto.
Any and all cash received from the accounts receivables transferred to Grant
Auto pursuant to the Asset Purchase Agreement shall be deposited in the Joint
Account. The Joint Account shall be administered by the Management Committee.
Except as otherwise set forth herein, any disposition of funds out of the Joint
Account shall require the signature of one Grant Auto representative and one
Grant Brothers representative on the Management Committee. During the term of
this Agreement, any and all amounts received by either party with respect to the
Business (other than any Net Cash Flow distribution pursuant to section
2.3(c)(1)) shall be deposited in the Joint Account and any and all expenses with
respect to the Business shall be paid out of funds available in the Joint
Account. On or prior to the 15th day of each month during the term of this
Agreement, an amount equal to the Monthly Base Expenses shall be paid to Grant
Brothers out of funds available in the Joint Account and, in the event such
amount is not so paid, each Grant Brothers representative on the Management
Committee shall be entitled to transfer from the Joint Account an amount equal
to any due and unpaid Monthly Base Expenses to Grant Brothers.
2.5 Management Committee.
(a) Purpose and Membership. A Management Committee consisting of up to two
representatives from Grant Auto (each, an "Grant Auto Representative") and up to
two representatives from Grant Brothers (each a "Grant Brothers Representative")
shall be established for the purpose of overseeing the operation of the Business
during the term of this Agreement. A party may change its representatives from
time to time by delivering a notice to this effect to the other party.
(b) Rights and Duties. The Management Committee shall:
(1) administer the Joint Account;
(2) approve the payment of any expenses to Grant Brothers in excess of
the Monthly Base Expenses;
(3) determine or amend the annual budget, the amount of the overhead
referred to in section 2.3(a) and Monthly Base Expenses; and
(4) perform such other functions as the parties may delegate to it from
time to time.
In addition, the Management Committee shall be consulted prior to any material
decision by Grant Brothers affecting (or being likely to affect) the Business or
the expansion thereof contemplated hereby, including prior to the hiring or
firing of any member of senior management of the Grant Brothers division
administering the Business or of any other employees thereof other than in the
ordinary course of business. The Management Committee shall meet in person or by
telephone conference at such times and places as shall be necessary to perform
its function, but at least once a month.
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SECTION 3 - TERM, RENEWAL AND TERMINATION
3.1 Term and Renewal. The term of this Agreement shall commence on the date
hereof and continue for three years. At the expiration of such three-year
period, this Agreement shall automatically be renewed for successive one-year
periods unless it is terminated by either party giving the other at least six
months prior written notice effective on the last day of such three-year or
one-year period, as the case may be.
3.2 Termination. Notwithstanding section 3.1, a party may terminate this
Agreement at any time on the occurrence of any of the following events:
(a) the other party fails to pay any amount when due and fails to pay
such amount within five days of receipt of a notice indicating the
non-payment;
(b) the other party breaches any of its obligations under this Agreement
and such breach is not rectified within 30 days of receipt of a
notice indicating the breach;
(c) a proceeding in bankruptcy, receivership, insolvency,
reorganization, liquidation or winding-up of the other party is
instituted by or against such other party;
(d) the other party makes a general assignment for the benefit of its
creditors; or
(e) the other party ceases to carry on business as a going concern for
more than five business days.
The expiration or termination of this Agreement shall not relieve or release a
party from any of its obligations to pay any amount due and payable or to
perform any obligation which by its nature shall survive such expiration or
termination (including the obligations set out in sections 3.5, 4.3, 5 and 6). A
party which terminates this Agreement in accordance with this section 3.2 shall
not be liable to the other party for any loss or damage of any kind whatsoever,
arising directly or indirectly from the termination of this Agreement.
3.3 Early Termination by Grant Auto. Grant Auto may terminate this Agreement if
Grant Brothers does not, within the first 12 months of this Agreement, introduce
Grant Auto to at least two reasonable potential acquisitions, as required by
section 2.1(d).
3.4 Performance of Certain Contracts. Upon the termination of this Agreement, if
any Contracts (including any Shared Contracts) remain subject to the terms of
the section in the Asset Purchase Agreement entitled "Certain Contracts Not
Assigned But Held in Trust", Grant Auto shall, from the date of the termination
of this Agreement cause all of the obligations of Grant Brothers to be satisfied
under those Contracts (except that in respect of Shared Contracts, Grant Auto
shall only be obliged to fulfil such obligations to the extent that they relate
to the Business). Grant Brothers shall, from the date of the termination of this
Agreement cause all of the obligations of Grant Brothers to be satisfied under
the Shared Contracts, but only to the extent that such obligations arise under
Shared Contracts and relate to matters not related to the Business. Except as
provided by the foregoing, the section in the Asset Purchase Agreement entitled
"Certain Contracts Not Assigned But Held in Trust" shall continue to apply to
all Contracts to which that section relates. Grant Auto shall reimburse Grant
Brothers for all direct
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expenses incurred in carrying out any obligations under that section of the
Asset Purchase Agreement.
3.5 Transfer of Business. As soon as commercially reasonable after the date
hereof, but in any event before the expiration of the term of this Agreement,
Grant Brothers shall use all commercially reasonable efforts to assign and/or
otherwise transfer to Grant Auto any and all Contracts not heretofore assigned
to Grant Auto and to obtain separate agreements for those parts of the Shared
Contracts which have been transferred to Grant Auto pursuant to the terms of the
Asset Purchase Agreement. Grant Brothers shall report semi-annually to the
Management Committee as to the progress of its efforts hereunder. To the extent
the Management Committee determines, with respect to a particular Contract, not
to seek the assignment or transfer thereof to Grant Auto or to obtain separate
agreements, the parties shall enter into an appropriate contractual relationship
which provides Grant Auto otherwise with the benefits of such Contract.
SECTION 4 - FORCE MAJEURE, LIABILITY AND INDEMNITY
4.1 Force Majeure. Neither party shall be liable to the other for any failure to
perform any obligation under this Agreement, to the extent that such failure is
beyond the reasonable control of such party (aside from lack of funds). A party
which is not able to so perform an obligation under this Agreement shall
promptly provide a notice in respect of such failure to the other party and take
all commercially reasonable steps to mitigate the effects of such failure. In
such cases, the party so failing to perform shall not be responsible to the
other party for any loss or damage of any kind whatsoever which may be incurred
by the other party or any third parties as a result of any such failure.
4.2 Liability. A party's liability to the other party under this Agreement shall
be limited to any direct loss or damage to such other party caused by the first
party's negligence or wilful misconduct. Notwithstanding the foregoing, no term
in this section 4.2 shall operate so as to limit the liability of Grant Brothers
in respect of any of its actions or failures to act, to the extent that Grant
Brothers would have been liable in respect of such actions or failures to act
had such taken place before the date of this Agreement when Grant Brothers owned
and operated the Business.
4.3 Indemnity. Subject to the limitation imposed by section 4.2, Grant Brothers
shall indemnify and save harmless Grant Auto on its behalf and as trustee for
its officers, directors, shareholders, employees and agents against all costs,
damages, claims and other liabilities (including legal fees and expenses)
arising out of any breach of an obligation of Grant Brothers under this
Agreement. Subject to the limitation imposed by section 4.2, Grant Auto shall
indemnify and save harmless Grant Brothers on its behalf and as trustee for its
officers, directors, shareholders, employees and agents against all costs,
damages, claims and other liabilities (including legal fees and expenses)
arising out of any breach of an obligation of Grant Auto under this Agreement.
SECTION 5 -- CONFIDENTIALITY AND COMPETITION
5.1 Confidential Information. Grant Brothers shall hold in confidence, and shall
not disclose to any third party or use any confidential information of Grant
Auto (other than in
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respect of the good faith performance of Grant Brothers' duties under this
Agreement) where such information was obtained by Grant Brothers in the course
of providing services to Grant Auto under this Agreement, except as required by
law (including any applicable securities laws or the rules of any applicable
securities commission) or legal process.
5.2 Non-Competition. Grant Brothers shall not directly or indirectly (through an
affiliate or otherwise) own, manage, operate, join, control or otherwise
participate in, whether as a partner, shareholder or otherwise, any enterprise
in the business of representing manufacturers in the sale of spare parts in the
automotive wholesale market (the "Competitive Activities"), in Canada during the
currency of this Agreement and (except where Grant Brothers terminates this
Agreement under section 3.2 other than by providing six months' notice or where
Grant Auto terminates this Agreement under section 3.2 by providing six months'
notice) during the one year period following the termination of this Agreement,
except that, notwithstanding the foregoing, such non-competition period shall
not terminate prior to the fifth anniversary of the date hereof.
5.3 Non-Solicitation. Without the consent of Grant Brothers, Grant Auto shall
not solicit for employment or employ any employee of Grant Brothers during the
currency of this Agreement and (except where Grant Auto terminates this
Agreement under section 3.2 other than by providing six months' notice) during
the one year period following the termination of this Agreement. Without the
consent of Grant Auto, Grant Brothers shall not solicit for employment or employ
any employee of Grant Auto during the currency of this Agreement and during the
one year period following the termination of this Agreement.
SECTION 6 -- ARBITRATION
6.1 Scope. Any dispute or other controversy between the parties relating to this
Agreement (including any dispute as to whether an issue is arbitrable) shall be
referred to arbitration under the Arbitration Act, 1991 (Ontario), but subject
to the terms of this section 6.
6.2 Appointment of Arbitrators. A party desiring arbitration under this section
6 shall give a notice of arbitration to the other party containing a concise
description of the matter submitted for arbitration. Within 10 business days
after a party gives a notice of arbitration, the parties shall jointly appoint a
single arbitrator (the "Arbitrator"), who shall be a retired judge of the
Ontario Court (General Division) or of any court of a province of Canada having
jurisdiction comparable to or higher than that of such court. If the parties
fail to appoint an Arbitrator within such time, an Arbitrator shall be
designated by a judge of the Ontario Court (General Division) upon application
by either party.
6.3 Powers of Arbitrator. The Arbitrator may determine all questions of law and
jurisdiction (including questions as to whether a dispute is arbitrable) and all
matters of procedure relating to the arbitration. The Arbitrator shall have the
right to grant legal and equitable relief (including injunctive relief) and to
award costs (including legal fees and the costs of the arbitration) and
interest.
6.4 Arbitration Procedure. The arbitration shall take place in the Municipality
of Metropolitan Toronto at such place therein and time as the Arbitrator may
fix. No later than 20 business days after hearing the representations and
evidence of the parties, the Arbitrator shall make his or her determination in
writing and deliver one copy to each of the parties. The
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decision of the Arbitrator shall be final and binding upon the parties in
respect of all matters relating to the arbitration, the conduct of the parties
during the proceedings, and the final determination of the issues in the
arbitration.
6.5 Awards and Appeal. There shall be no appeal from the determination of the
Arbitrator to any court under the Arbitration Act, 1991 (Ontario). Judgment upon
any award rendered by the Arbitrator may be entered in any court having
jurisdiction thereof.
6.6 Costs of Arbitration. The costs of any arbitration under this section 6
shall be borne by the parties in the manner specified by the Arbitrator in his
or her determination.
6.7 Rules. Insofar as they do not conflict with this section 6, the Rules of
Procedure For Commercial Arbitration of the Arbitration and Mediation Institute
of Canada Inc. in effect at the date of commencement of any arbitration held
under this section 6 shall be applicable to the arbitration, and the Arbitrator
shall have jurisdiction to take such action and make such orders as are
contemplated in such rules.
6.8 Condition Precedent. Submission to arbitration under this section 6 shall be
a condition precedent to bringing any action with respect to this Agreement.
SECTION 7 -- GENERAL
7.1 Notice. Unless otherwise specified, each notice to a party must be given in
writing and delivered personally or by overnight courier or transmitted by fax
to the party as follows:
If to Grant Brothers: Grant Brothers Sales, Limited
000 Xxxxxxx Xxxxxx, Xxxx #0
Xxxxx Xxxx, Xxxxxxx X0X 0X0
Attention: President
Fax No: (000) 000-0000
If to Grant Auto: Grant Automotive Group Inc.
000 Xxxxxxx Xxxxxx, Xxxx #0
Xxxxx Xxxx, Xxxxxxx X0X 0X0
Attention: President
Fax No: (000) 000-0000
with a copy to: Xx. Xxxxxx Xxxxxxx
Wuersch & Xxxxxx LLP
Attorneys At Law
00 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx
XXX 00000
Fax No: (000) 000-0000
or to any other address, fax number or individual that the party designates. Any
notice, if delivered personally or by courier, will be deemed to have been given
when actually received, and if transmitted by fax before 3:00 p.m. (Toronto
time) on a business day, will be deemed to
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have been given on that business day, and if transmitted by fax after 3:00 p.m.
(Toronto time) on a business day, will be deemed to have been given on the next
business day.
7.2 Time. Time shall be of the essence of this Agreement.
7.3 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the Province of Ontario, and each of the parties
irrevocably attorns to the non-exclusive jurisdiction of the courts of Ontario.
7.4 No Set-Off. Payments made under this Agreement shall be made without set-off
or counterclaim.
7.5 Entire Agreement. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter and supersedes all prior
agreements, representations, negotiations and understandings, whether written or
verbal. No term of this Agreement may be amended or waived except in writing.
7.6 Severability. Any term of this Agreement which is invalid or unenforceable
shall not affect any other term and shall be deemed to be severable.
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7.7 Assignment and Benefit. No party may assign this Agreement without the prior
written consent of the other party, which consent may not be unreasonably
withheld or delayed. This Agreement enures to the benefit of and binds the
parties and their respective successors and permitted assigns.
The parties have duly executed this Agreement.
GRANT BROTHERS SALES, LIMITED
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name:
Title:
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name:
Title:
GRANT AUTOMOTIVE GROUP INC.
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx
President
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INDEMNITY
All defined terms in this Indemnity have the meanings given to them in the
foregoing Management Services Agreement (the "Management Services Agreement") to
which this Indemnity is attached.
In consideration of Grant Brothers entering into the Management Services
Agreement with Grant Auto, a wholly-owned subsidiary of the undersigned, the
undersigned hereby agrees to indemnify and save harmless Grant Brothers on its
behalf and as trustee for its officers, directors, shareholders, employees and
agents against all costs, damages, claims and other liabilities (including legal
fees and expenses) arising out of any breach of an obligation of Grant Auto set
out in the Management Services Agreement. Notwithstanding the foregoing, the
undersigned is not liable under this Indemnity for any amount that Grant Auto
would not be liable for under the Management Services Agreement. Accordingly,
section 4.2 of the Management Services Agreement operates to limit the
undersigned's liability under this Indemnity in the same manner that it operates
to limit Grant Auto's liability.
This Indemnity is governed by, and shall be construed and interpreted in
accordance with, the laws of Ontario and the laws of Canada applicable in
Ontario. For the purpose of all legal proceedings, this Indemnity shall be
deemed to have been performed in Ontario and the courts of Ontario shall have
the non-exclusive jurisdiction to entertain any action arising hereunder.
SPECTRE INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Chairman
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