HomeMy WebLinkAboutTWP 84 030 Telephone bylaw BMTS
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THE
COR P 0 RAT ION
o F
THE
TOWNSHIP
o F
KIN CAR DIN E
B Y - LAW
Z,,/ _:JO
NUMBER
WHEREAS Section 28 of The Telephone Act, R.S.O. 1980, Chapter 496 provides that
a municipality may, for the purpose of establishing or carrying on a telephone
system as a public utility, acquire by purchase any system in the municipality;
AND WHEREAS the Corporation and other municipal corporations are interested in
acquiring the Bruce Municipal Telephone System;
AND WHEREAS it is considered in the best interests of the Corporation to join
in an offer to purchase certain of the assets of the Bruce Municipal Telephone
System;
BE IT ENACTED by the Council of The Corporation of the Township of Kincardine
as a by-law of the Corporation as follows:
1. That the Corporation enter into an agreement to purchase the
assets of the Bruce Municipal Telephone System at the price of
Five Million, Four Hundred and Eighteen Thousand Dollars
($5,418,000:00) subject to obtaining all of the necessary
approvals, oonsents and assents required by law.
2. That the head of Councilor the acting head of Council and
the Clerk be and they are hereby authorized to execute on
behalf of the Corporation an agreement substantially in the
form attached hereto.
3. That the Clerk instruct the firm of Loucks & Garcia to complete
the offer to purchase on behalf of the Corporation and conduct
negotiations and advise the Corporation in respect to the
acquisition of the assets of the Bruce Municipal Telephone
System.
4. That the Clerk shall cause to be prepared the necessary
draft agreements to establish a joint board to manage and
operate the telephone system as a public utility.
5. That the Clerk cause to be issued a cheque to The Corporation
of the Township of Bruce in trust in the amount of Two Dollars
($2.00) .
READ A FIRST AND SECOND TIME THIS 27TH DAY OF JULY, 1984.
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READ A THIRD TIME AND FINALLY PASSED THIS 27TH DAY OF JULY, 1984.
Or
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TENDER AGREEMENT
The Corporation of the Village of Paisley, The Corporation of the Township of Kincardine
and The Corporation of the Township of Elderslie
(the "Purchaser") hereby offers to purchase from the BRUCE MUNICIPAL
TELEPHONE SYSTEM and THE CORPORATION OF THE TOWNSHIP OF BRUCE
as Trustee (collectively the "Vendors") certain of the assets
of the Bruce Municipal Telephone System (the "System") on the
fOllowing terms and conditions:
1. PURCHASED ASSETS
1.1 Included Assets - The Purchaser hereby offers to purchase
at Closing (as hereinafter defined) all land, buildings, furnish-
ings,. fixtures, equipment, tools, inventory and supplies of
the System including, without limitation, the real property
listed in Schedule A hereto and the right, title to and interest
in the leases and other agreements listed in Schedules "B" and
"e" hereto (collectively the "Purchased Assets"), free and clear'
of any liens or encumbrances, but excluding the assets referred
to in paragraph 1.2 hereof.
1.2 Excluded Assets - Notwithstanding paragraph 1.1 hereof,
the following rights, properties and assets of the System shall
not be included in the Purchasèd Assets:
(~) all cash on hand or on deposit with or in the possession
of Bny bank çr other depository and all interest accrued
or accruing due thereon and other similar cash items incluèing,
~ithout limitation, the ~epreciation reserve fundI
~ (b) all of the rights, properties and assets of the System
which shall have been transferred or disposed of by tbe
System prior to the Closing in transactions which would
not constitute a breach of this Agreement;
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(c) policies of insurance with respect to the System or
the assets or properties thereof and premiums and other
amounts prepaid in respect of such policies
(d) all right to and interest in the name "The Bruce Municipal
Telephone System" and any trade names, trademarks, logos
or other trade identification ancillary thereto;
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(e) all book debts, accounts receivable, suppliers credit
notes and other monies due or accruing due to the System,
in the ordinary course of business or otherwise
(f) all short and long term and other securities owned
or held by or for the benefit of the System including,
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without limitation, all notes, debentures, bonds, shares
and other investments so owned or held; and
(g) all records relating to the identification of subscribers
and subscriber property.'
2. PURCHAS~ PRICE
2.1 Total Price - The purchase price for the Purchased
Assets shall be the sum of Five Million, Four Hundred and Eighteen Thousa!!.d
::----------------------- Dollars ($ 5,418,000.00 ) in Canadian funds.
2.2 Deposit - The Purchaser hereby submits a certified
cheque payable to "Township of Bruce in trust" for the sum of
SIX DOLLARS-------------------------------------($6.00) as a deposit to be
4IÞ held by the Township of Bruce and to be returned, without interest,
to the Purchaser, if the Purchaser's offer is not accepted,
on the earlier of (1) the day fOllowing a determination by the
'.subscribers of the System. that this offer· to purchase the Purchased
Assets has been rejected and (ii) October 1, 1984. If the Pur-
chaser's offer is accepted by t~e subscribers, the above-mentioned
sum will be deposited in an interest bearing account and such
sum, together with interest frqm the date of approval of this
offel ÌJj the subscribers to the date of Closing, shall be credited
towards the purchase price.
2.3 Balance of rYrchase Price - Subject to paragraph 2.4
" II"l~()f, the balance of the purchase price for the Purchased
· Assets sball be paid:
(a) by the delivery at Closing, in cash or by certified
c h e que, 0 f the j (lb!IIxx>Ot,f balance of the purchase price subject
to usual adjustments JI)AIV"lo~>c64$<xxxxxxxxxxxxxxxxxx.*
or the balance of the purchase price subject to usual adjustments and reduced
by the amount of any existing debentures which may be assumable and if assumed
the purchasers covenant and agree to discharge in accordance with the terms
:4hð>< thereof
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· PURCHASERS 'œNDO~
as the Vsnd~ may elect by notice in writing to the BaKCDBSBr
at least ten business days prior to C10sing provided that
in any event the aggregate purchase price is equal to the amount
specified in (a) above.
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4IÞ 2.4 Adjustments - The purchase price for the Purchased
Assets shall be adjusted by apportioning, to the date of Closing,
all unearned realty taxes, business taxes, fuel oil, gasoline,
leased and rented equipment rentals, unearned rental revenues,
customer deposits, gross receipts tax and all local improvement
and water rates and other charges for municipal improvements.
3. CONDITIONS OF TENDER
3.1 Conditions - The Purchaser hereby acknowledges and agrees
that:
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(a) the Purchaser's offer hereby submitted shall be irrevocable
up to and including the earlier of:
(i) 11:59 p.m. on the day of approval by the subscribers
of the System of another offer to purchase the Purchased
Assets or a determination by the subscribers not to sell
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the Purchased Assets and
(ii) 12:00 noon on October 1, 1984
(b) the Vendors shall not be obligated to accept this or any
other offer, whether or not- it represents the highest
consideration, and shall not be obligated to provide any
reasons for rejecting this or any other offer
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(c) this offer, together with any other offer received_ in -_______
accordance with the conditions of tender dated June 27, 1984,
will be submitted for consideration to a meeting of the
subscribers, expected to be held on or about August 30, 1984;
Cd) if this offer is approved by the subscribers of the
System at a meeting as described in subparagraph (c) above,
the sale of the Purchased Assets in accordance herewith
thereafter requires the approval by by-law of the Corporation
of the Township of Bruce, which approval shall be evidenced
and confirmed by the execution of this Agreement by, the
Corporation of the Township of Bruce and
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(e) this offer shall constitute a binding agreement on
the parties hereto upon its execution and delivery by each
of the Vendors to the Purchaser.
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3.2 Statement of Plans - The Purchaser has included in
Schedule "D" hereto a statement of its plans and intentions
with ·respect to the 'use, over the next five years, of the Purchased
Assets in connection with the operation of a telephone system
in the geographical area currently being served by the Systenl.
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4.1 Closina - The completion of the purchase (the "Closing-)
of the Purchased Assets shall take place at the offices of
THE CORPORATION OF THE TOWNSHIP OF BRUCE
at 11:.00 a.m. on the 90th day following the approval
of the sale of the Purchased Assets by an order of the Ontario
Telephone Service Commission. If the date of Closing, as so
¿etermined, falls on a Saturday, Sunday or holiday, the Closing
shall take place on the next following day which is not a Saturday,
Sunday or holiday.
5. CERTAIN MATTERS RELATING TO THE PURCHASED ASSETS
5.1 Title - The Purcha&er shall be allowed 30 days from
the date of acceptance of this offer by the Vendors to investigate
the title to the real propert~ listed in Schedule "A" and the
other assets being sold herein at its own expense, and to satisfy
itself as to the Vendors' title. If within the tirue allowed
for examining title, the Purchàser shall furnish the Vendors,
in writing, with any valid o~jection to title, which the Vendors
shall be unable or unwilling to remove, remedy or satisfy and
which the Purchaser will not waive, this offer shall, notwithstancUng
any intermediate acts or negotiations, be null and void and
the deposit money returned to the Purchaser, with interest,
and the Vendors shall not be liable for any costs or damages.
Save as to any valid objection so made within such time, the
Purchaser shall be conclusively deemed to have accepted the
Vendors' title to the real property and other assets being sold
herein.
5.2 Zonin9 - The Vendors make no representations or warranties
with regard to the zoning of any of the real property being
sold by it and listed in Schedule "A" hereto. Any Official
Plan amendment or zoning changes requested by the Purchaser
shall be done at the expense, risk and initiative of the Purchaser.
5.3 A)location of Risk - Prior to and including the date
of Closing, the Purchased Assets shall be and remain at the
risk of the Vendors, and until such time the Vendors shall maintain
in effect all policies of insurance existing on the date of
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acceptance of this offer and shall hold any proceeds thereof
in trust for the parties hereto, as their interests may appear.
In the event of damage to all or any material part of such assets
before the Closing, the Purchaser shall have the right to elect
to take such proceeds and complete the purchase, or cancel this
agreement, whereupon the Purchaser shall be entitled to the
return, with interest, of all moneys theretofore paid on account
of this purchase. The Vendors agree to furnish the Purchaser
with copies of existing insurance policies within seven days
of the date of acceptance hereof.
5.4 Title Documents - The Purchaser shall not call for
the production of any title deed, abstract, surveyor other
~vidence of title with regard to the real property and other
..~'sets being sold herein except such as are in thepo.!!sessJQ[L_~__.
Ol control of the Vendors. The Vendors agree that they shall
ùeliver any existing survey to the Purchaser as soon as possible
and prior to the last day allowed for examining title.
5.5 ~eds and-Iransfers - All forms of deed or transfer,
save for land transfer tax a~fidavits, to be prepared at the
expen~~ of the Vendors.
5.6 Payment or Taxe~ - The Purchaser shall be responsible
for the payment of any land transfer tax, retail sales tax,
licence fees or any other tax-or fee payable upon the transfer
of i:;!:~' ç>l; all of the Purchased Assets.
6. REPRES~NTATIONS AND WARRANTIES OF THE VENDORS
Subject to section 8 hereof, the System represents
and warrants as follows to the Purchaser and acknowledges and
confirms that the Purcha~er is relying on such representations
and warranties in connection with the purchase of the Purchased
Assets:
6.1 Title to Property - The Purchased Assets are owned
by The Corporation of the Township of Bruce as Trustee thereof
with a good and marketable title thereto, free and clear of
all mortgages, liens, charges, pledges, security interests,
encumbrances or other claims whatsoever except that the real
property described in paragraphs 3, 4, 8 and 12 of Schedule
"A" hereto is registered in the name of "The Bruce Municipal
Telephone System" (in the case of the property referred to in
paragraphs 3 and 12), in the name of "The Commissioners of the
Telephone System of the Municipality of 'the Township of Bruce
(in the case of the property referred to in paragraph 4) and
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in the name of "The Telephone System of the Municipality of
4IÞ the Township of Bruce" (in the case of the property referred
to in paragraph 8).
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6.2 Ri9hts to Purchas~ - No person, firm or corporation
has any written or oral agreement, option, understanding or
commitment, or any right or privilege capable of becoming an
agreement, for the purchase from the Vendors of any of the Purchased
Assets, other than pursuant to purchase orders accepted by the
Vendors in the ordinary course of business of the System.
6.3 Financial Stat~ments - The financial statements of
the Vendors as at December 31, 1983, as prepared and reported
upon by Ward Mallette, Chartered Accountants, present fairly
ti,e financial position of the System as at that date, and the
.~sults of its operations, and the changes in its financial
position for the year then ended in accordance with generally
accepted accounting principles applied, after giving retroactive
effect to the change in accounting for depreciation as explained
jn note 7 to the financial statements, on a basis consistent
with that of the preceding yeaf.
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6.4 No Material Adverse Change - Since December 31, 1983,
there l.as been no material adverse change in the affairs, business,
prospeçts, oper~tions or condition of the System, financial
or otL~rwise, whether arising-as a result of any legislative
(1 Ië9wlatory change, !evopation of any licence or right to
(:v l.u=iness, fire, explosion, accident, casualty, labour.trºJ1ble_L____
flood, drought, riot, storm, condemnation, act of God, public
force or otherwise.
6.5 ' Conduct of BJ,lsinelUi - The business of the System has
been carried on in the ordinary and normal course since December
31, 1983, and will be carried on in the ordinary and normal
course after the date hereof and up to the time of Closing.
6.6 Expenditures - No capital expenditures except in the
ordinary course of business have been made or authorized since
D~cember 31, 1983 by the Vendors an~ no capital expenditures
in an aggregate amount greater than $100,000 will be made or
authorized after the date of acceptance of this offer and up
4IÞ to the time of Closing by the Vendors without the prior written
consent of the Purchaser.
6.7 No Default or Conflict - Subject to obtaining tÞe
consents referred to in paragraph 12.3 hereof, the Vendors are
not in default or breach of any contracts, agreements, written
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or oral, indentures or other instruments to which the System
... is a party, including without limitation the agreements and
obligations referred to in Schedules "B" and "C" hereto, and
there exists no state of facts which after notice or lapse of
time or both would constitùte such a default or breach and all
such contracts, agreements, indentures or other instruments
are now in good standing and in full force and effect without
amendment thereto and the Vendors are entitled to all benefits
thereunder.
6.8 Condition of Purchased Assets - All material facilities
and equipment owned and used by the Vendors in connection with
the System are in good operating condition and are in a state
of good repair and maintenance (reasonable wear and tear excepted).
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6.9 Employee SaÌaries and Benefits - All vacation pay,
bonuses, commissions and other emoluments due up to the date
of Closing will be paid to the employees as at the date of Closing.
6.10 Work Ordêrs - There are no outstanding work orders
relating to the real property_described in Schedule "A" or to
any other of the Purchased Assets issued or required by any
police or fire department, sanitation, health or factory authorities
or frofu any other federal, provincial or municipal authority
or any matters un~er discussion with any such departments or
authorities relating to work orders.
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Subject to Section 8 hereof, the Corporation of the
Township of Bruce represents and warrants, and acknowledges
and confirms that the Purchaser is relying on such representation
and warranty in connection with the purchase of the Purchased
Assets, 'that it has the. right, as trustee and holder of the
legal title, to convey the Purchased Assets free and clear of
any liens, charges, encumbrances or rights of others.
7. REPRESE~~ATIONS AND WARRANTI~S OF %ßE-P~~
The Purcbaser represents and warrants as follows to
the Vendors and acknowledges and confirms that the Vendors are
relying on such representations and warranties in connection
with the purchase of ~he Purchased Assets:
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7.1 Due Authorization - The execution and delivery of
this offer, and the completion of the purchase contemplated
hereby, have been duly authorized by the persons responsible
for governing the business and affairs of the Purchaser, and
n 0 0 the r pro c e e din g s 0 r a pp r 0 val s, wtle:ltiJB:nJb:JX,J!ldœ¡xiJJaI¡dJ«sxm
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of ~ governmental, regulatory, eoœpoœate or other authority,
are necessary to authorize .~x~ the purchase contemplated
hereby and this offer, when accepted by the Vendors in the manner
contemplated herein, will be valid and binding on the Purchaser,
enforceable in accordance with its terms. subject to obtaining the approvals.
consents and assents set out on Schedule "En hereto.
7.2 No Default or Conflict - The execution and delivery
of this offer and the completion of the purchase contemplated
hereby will not result in a breach or violation of, or constitute
a default under, the provisions of any agreement or other instrument
to which the Purchaser is a party or by which the Purchaser
(,t its properties are bound or affected or of any law, requirement,
l~gulation, decree or order applicable to the Purchaser or its
properties, and will not conflict with any provisions of the
Purchaser's constating documents. subject to the matters provided in Schedule
"E" hereto.
7.3 Status of Purchaser - The Purchaser is not a non-resident
of Canada within the mean~n9 of the Income Tax Act (Canada)
and is not a non-eligible person within the meaning of the Foreign
Inv~! tment Review Act (Canada).
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7.4 Independent Evaluation - The Purchaser is relying
solely upon its independent ev~luation of the System and not
upon éU,~· evaluation, representation, statement, promise,--document------
or thing provided by, the Vendors other than (i) the representations
and warranties of the Vendors-set out in Section 6 hereof and
(j i) t;j;(¡ "udited consolidated ,financial statements of the System
1(H the year ended December 31, 1983.
8. .s.l!RVIVAL OF REPRESENTATIONS AND \'iARRANTIES
8.1 . Survival - Subject to paragraph 8.2, the representations
and warranties of the Veñdors and the Purchaser contained in
this agreement and contained in certificates or documents submitted
pursuant to or in connection with the transactions herein provided
for shall survive the Closing and, notwithstanding such Closing
and regardless of any investigation with respect thereto, shall
continue in full force and effect for the benefit of the Purchaser
or the Vendors, as the case may be, for a period of one year
following the Closing.
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8.2 Limitation - Notwithstanding Section 6 hereof, the
aggregate liability of the Vendors thereunder, and any recourse
of the Purchaser for any breach by the Vendors of the representations
and warranties set out therein or otherwise in respect thereof,
shall be limited to the amount available for distribution out
of the reserve fund established pursuant to paragraph 11.2 hereof.
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9. ~ENANTS OF THE PURCHASER
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9.1 Assumption of Liabilities - The Purchaser undertakes
to discharge, perform and fulfill all contracts, leases, commitments
and engagements of the Vendors entered into in connection with
the conduct of the System in the ordinary course of business
and existing as at the close of business on the date of Closing,
including without limitation the contracts and leases referred
to in Schedules "B" and "CO hereto.
9.2 Employees - The Purchaser agrees to assume and continue
to fu¡fil after Closing all obligations with respect to the
employees of the System as presently constituted by:
(a) fUlfilling and complying with the terms of the collective
agreement referreå to in Schedule "C" hereto and
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(b) offering employment to all non-collective bargaining
agreEi'ment employees on terms no less favourable than the
employment terms such employees had with the System as
at Closing, which terms shall include, without limitation,
all benefits including Blùe Cross, OHIP, life and disability
insurance and pension on a basis identical or equivalent
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to that existing at the time of Closing.
9.3 ~omer Revenues Re~~jved After Closing - The Purchaser
agr~eL that after Closing it w~ll use its best efforts to collect,
....::. .;:¡,~ u c cha rge, all account s ow ing to the System for services
rendEi'red prior to Closing and will allow all customers of the
System to pay their accounts, in person at the offices of the
System or by mail, and shall deposit the amounts so collected
to the credit of the Vendors in the manner directed by the Vendors
,at Closing.
9.4 Access to Records - The Vendors shall have the right
after Closing to retain copies of or have access to all books,
records, files, documents and other data relating to the Purchased
Assets and the business relating thereto provided that the Vendors
shall keep confidential all such materials except where required
by law to disclose same.
10. CONDITIONS OF CLOSING
The following conditions shall be met at or prior
to Closing:
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10.1 Opinion of Vendors' Counsel - The Vendors shall deliver
to the Purchaser a favourable written opinion of the Vendors'
counsel satisfactory in form and substance to the Purchaser's
counsel covering those matters set forth in paragraphs 6.1,
6.2 and 6.7 hereof. It is understood that Vendors' counsel,
in giving any opinion as to matters which cannot be independently
verified by them (including, without limitation the matters
referred to in paragraphs 6.2 and 6.7 hereof), may rely upon
a certificate of a responsible representative of the Vendors
and upon certificates of relevant government and regulatory
authorities.
10.2 ODinion of Purchaser's Counsel - The Purchaser shall
ù~ljver to the Vendors a favourable written opinion of the Pur-
~l,aser's counsel, satisfactory in form and substance to the
Vendors' counsel, with respect to the matters set forth in paragraphs
7.1, 7.2 and 7.3 hereof. It is understood that Purchaser's
counsel, in giving such opinion as to all matters which cannot
be independently verified by them (including, without limitation
the matters referred to in paragraph 7.2 hereof), may rely upon
a certificate of a responsible officer of the Purchaser and
upon certificates of governmental and other regulatory authorities
and upon opinions of counsel in juIisdictions other than Ontario,
where aFrropriate.
10.3 Certified R~lutiqn§ - Each of the Vendors and the
PU!ChaEPI shall deliver .to the other a certified copy of the
l~~v:~tjons adopted by their respective sUbscribers, Council
or Beard of Directors, as the case n~y be, authorizing the execution
and delivery of this Agreement and shall deliver an encumbency
certificate as to the officers of each party executing this
Agreement'.
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10.4 ReÇlresentation¡L A.Il.d.-tlâ.u:snties - Each of the Vendors
and the Purchaser shall deliver to the other a certificate signed
by a responsible officer stating that the representations and
warranties herein of such party are true and correct as of the
date of Closing.
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10.5 ApDroval of Telephone COIDmissiop - The sale of the
Purchased Assets is' subject to the approval by order of the
4IÞ Ontario Telephone Service Commission pursuant to the provisions
of the Telephone Act, R.S.O. 1980, chapter 496. The parties
agree to use their best efforts and cooperate in taking all
necessary steps to obtain such approval.
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11. INDEMNIFICATION AND RESERVE FUND
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11.1 Indemnification - Subject to paragraph 11.2, the Vendors
hereby indemnify and save harmless the Purchaser for a perfod
of one year from the date of 'Closing from and against all liabili-
ties (whether accrued, actual, contingent or otherwise), claims
and demands whatsoever (including liabilities, claims and demands
for income, sales, excise or other taxes) of or in connection
with the System existing or incurred as at the time of Closing
and which are not expressly agreed to be assumed, carried out
and discharged by the Purchaser under paragraph 9.1 hereof;
provided that the aggregate liability of the Vendors, and any
lecourse of the Purchaser, under this paragraph 11.1 shall be
]iruited to the amount available for distribution out of the
reserve fund established pursuant to paragraph 11.2 hereof.
11.2 E~~rve Fund - The Corporation of the Township of
Bruce (the "Township") hereby agrees to establish, at Closing,
a reserve fund equal to 10% of the total purchase price for
the Purchased Assets as set out in paragraph 2.1 hereof and
to hold such reserve fund io trust for a period of one year
following the date of Closing. If, on the first anniversary
of the date of Closing, the Township has not received notice
of any claim by the Purchaser pursuant to paragraph 11.1 hereof
or in ('(Innection wf.th any alleged breach by the Vendors of tile
representations and warranties set out in Section 6 or otherwise
iT; reslJl'd thEHeof, then the T,ownship shall be ftee to distribute
tr,e leSetVe fund among the subscribers of the System as it considers
appropriate. If on such date any dispute or claim with respect
to all or any part of the reserve fund is outstanding, the Township
shall maintain the reserve fund, or such amount of the reserve
fund as may reasonably be required to satisfy any such dispute
or claim, until all matters in connection therewith are settled, .
and thereafter the Township shall be free t~ distribute the
balance, if any, in the reserve fund among the subscribers of
the System as it considers appropriate. The Purchaser hereby
acknowledges and agrees that it shall not have any right or
claim against either of the Vendors, or any person signing on
their behalf, with respect to the indemnities, covenants, repre-
sentations and warranties of the Vendors set out herein other
than the right to the'reserve fund provided for in this paragraph
11.2.
12. CONDUCT OF BUSINE~~~~LQßIHG
12.1 Ordinary Course of Business - The Vendors shall continue
to carryon the business of the System in the ordinary course
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until Closing and shall use their best efforts to keep available
to the Purchaser the services of the present executives, employees
and agents and to preserve for the Purchaser the goodwill of
suppliers, customers and others having business relations with
the System.
12.2 Acces~ - The Vendors shall make available to the Purchaser
prior to the Closing on a continuing basis during normal business
hours all material records and documents in the possession of
the Vendors relating to the System, its business and affairs,
which the Purchaser's counsel, agents or accountants may wish
to examine and shall make available in the same manner and to
the same extent, the Purchased Assets for inspection by the
Purchaser and its agents.
4IÞ 1~.3 Consents - Thè Vendors and the Purchaser shall co-operate
anò provide all information required to ,obtain any necessary
consents or assignments of the leases, agreements and obligations
to which the System is a party, including without limitation
the leases and agreements referred to in Schedules "B" and "C"
hereof.
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13. TERMINATlRN OF AGREEMENT
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13.1 Termina~ion - Each of the Vendors and the Purchaser
agrees to use their best efforts to ensure that all conditions
to tbe Closing are satisfie~ on a timely basis. In the event
lbé<t t¡'is Agreement is terminated prior to Closing as a result
of the failure or unwillingness of the Purchaser to fulfil any
requirement or condition required to be fulfilled by it, then
the amount of the deposit referred to in paragraph 2.2 hereof,
together· with interest, shall be forfeited by the Purchaser
to the Vendors. If this Agreement is terminated prior to Closing
for any other reason, then the amount of such deposit, together
with interest, shall be returned to the Purchaser. Upon termination
of this Agreement as contemplated by this paragraph 13.1 the
parties shall be released from all further obligations hereunder.
13.2 No T~~one Commission Approval - If the approval
of the Ontario Telephone Commission referred to in paragraph
10.5 hereof is not obtained on or before January 15, 1985, then
either the Vendors or the Purchaser may terminate this Agreement,
whereupon, subject to paragraph 13.1 hereof, the deposit referred
to in paragraph 2.2 hereof~ together with interest, shall be
returned to the Purchaser.
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14. GENERAL
.14.1 Further Assurances - The parties hereto and each of
them agree to do such things and execute such further documents
and assurances as may be deemed necessary or advisable from
time to time in order to carry out the terms and conditions
of this Agreement in accordance with their true intent.
14.2 Entire Agreement - This Agreement and the schedules
hereto and the documents and certificates delivered pursuant
to the terms hereof set forth the entire agreement between the
partjes and supercede all prior agreements, covenants, arrangements,
communications, representations or warranties, whether oral
or written, by and between the parties hereto or any officer,
~wp10yee or representative of any party with respect to the
. subject matter hereof. '
14.3 Expenses - Except as otherwise provided herein, the
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parties shall each bear their own expenses incurred in connection
with this Agreement and the transactions herein contemplated
whetter or not such transactions shall be consummated, including
witÞout limitation, all fees.of their respective counsel and
accountants.
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(a) if to the Vendors:
Bruce Municipal Telephone System
735 Queen Street
Kincardine, Ontario
Canada NOG 2GO
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14.4 No ~roker - Each of the parties hereto represents
and warrants to the otber that_all negotiations by such party
'l~)ftj~9 to this Agreement ~nd the transactions conteroplated
hl....~by 1.i.1ve been carried on by such party with the other party
directly and without the intervention of any other person in
such manner as to give rise to any valid claim against any of
the parties hereto for a brokerage commission, finders fee or
other like payment.
14.5 Notic~ - All notices, requests and other communications
required or permitted to be given hereunder shall be in writing
and shall be delivered in person, by mail (postage prepai~)
or by transmitting the same by telex, telecopier or 'telegram:
AtteD~iont Chairman
The Corporation of the Township of Bruce
R. R. 13
Tiverton, Ontario
Canada NOG 2TO
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Attention: Clerk - Treasurer
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(b) if to the Purchaser at:
Messrs. Loucks & Garcia
Barristers and Solicitors
84 - 1st Avenue South
P.O. Box 430
CHESLEY, Ontario
NOG lLO
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Attenli.Q.o: George C. Loucks, Esq., Q.C.
Any notices being delivered or transmitted by telex, telecopier
or telegram shall be deemed to have been given or made on the
date on which it was delivered or transmitted or, if mailed,
shall be deemed to have been given or made on the second business
ùay following the day of mailing. The address for notice of
a party hereunder may be changed by written notice in the manner
prescribed above and any such notice shall be effective upon
receipt.
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14.6 Bulk Sales - The Purchaser herèby waives compliance
by the Vendors with the pro~isions of any applicable bulk sales
legislation.
14.7 Modifications - Neither this Agreement nor the schedules
hereto may be modified or amended otherwise than by an agreement
or instrument in writing signed by or on behalf of the parties
hereto.
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14.8 Tend~ - Any tender -of documents or money hereunder
sbö) 1 be IT,ade upon the Vendors or Purchaser or upon the solicitor
acting for the party on whom tender is desired, and it shall
be sufficient that a cheque certified by a chartered bank or
trust company be tendered instead of cash.
14.9 Persons Sionino - The Purchaser hereby acknowledges
and agrees that the persons signing on behalf of each of the
Vendors are signing in a representative capacity only and shall
have no personal liability whatsoever in connection with the
transactions contemplated hereby and the rights and obligations
. of the parties hereunder.
14.10
of this
Time of
Agreement.
the Essence - Time shall be of the essence
· 14.11 Pr0ger Law - This Agreement shall be construed in
accordance with the laws of the Province of Ontario.
14.12
to the
Successors and Assigns - This Agreement shall enure
benefit of and be binding upon the parties hereto and
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their respective successors and permitted assigns. Neither
this Agreement nor any rights or obligations of the parties
hereunder shall be assignable by any party hereto without the
prior written consent of the others.
*attested by the hands of duly
authorized offers have
IN WITNESS WHEREOF the Purchasersha.*hereunto set
their corporate seals
~t~.Rix..ak this day of , 1984; Bruce Municipal
T~lephone System has hereunto set its hand and seal this
day of , 1984 and The Corporation of the
Township of Bruce has hereunto affixed its corporate seal under
the hands of its proper officers in the behalf duly authorized
this day of , 1984.
mTNESS:
)
)
) Per:
)
)
) Per:
)
) BRUCE ~IUNICIPAL TELEPHONE SYSTEI1
)
) Per:
)
-) Per:
)
) ,THE CORPORATION OF THE TOWNSHIP
) OF BRUCE
)
) Per:
)
),
) Per:
)
)
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Reeve
Clerk
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SCHEDULE "A"
REAL PROPERTY
.1.
Part of Lot 5, Concession 2, in the Township of Bruce
2.
Part of Lot 56, Concession A in the Township of Huron
being Part 2 on Plan 3R-3130
3.
Part of Lot 1, North of the Durham Market, Plan 6l,
in the TOwn of Kincardine
TOGETHER WITH a right-of-way over Lot 1
4.
Parts of Subdivision Lots 1 and 2 of Lot 2, on the
North side of the Durham Market, Plan 61, in the Town
of Kincardine
5.
6.
· 7.
8.
9.
10.
11.
12.
Part of Lot 15, Concession 7, in the Township of Kincardine,
being Parts 1 and 2 on Plan 3R-1340
Part of Lot 47, Concession A, in the Township of Kincardine,
being Parts 1 and 2 on Plan 3R-2979
A portion of Lot 14, Plan 255 in the subdivision of Lot 24
South on the West side of Queen Street, according to Rowe's
First Subdivision (Plan 12), in the Village of Paisley
Part of Lot D, being a subdivision of Lot 12, Block 47,
Plan 164, in the Town of Port Elgin
Part of Lot 34, First Range, West of Elora and Saugeen Road,
in the Township of Saugeen being Part 1 on Plan 3R-3253
Part of Lot 8, Concession 1, in the Township of Saugeen,
being Part 1 on Plan 3R-3241
Part of Lot 30, Lake Range, in the Townshipuof-S'ãuqéerf,-'~--u-
being Part 1 on Plan 3R-3262
Part of Dot 2, South of Oueen Street, in the Village of
Tiverton (a subdivision of the West half of Lot 1, Concession
12) Plan 55 in the Township of Kincardine
Lot 18, Plan 114 in the Village of Underwood, Township of
Bruce being Part 3 on Plan 3R-281l
TOGETHER WITH a right-of-way over Part 6, Plan 3R-28ll
· 13.
EASEMENTS
1. ' Easement over Part of Lot 10, Plan No. 114, in the Village
of Underwood, in. the Township of Bruce being Part 1 on
Plan 3R-2882
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SCHEDULE "B"
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The following vehicles are leased by the Bruce Municipal
Telephone System:
Monthly Payment
DescriDtion LeaBo.r fi.r..m paymeJtl: Date
1983 GMC Lankin Motors, 3 years
Pickup Truck Kincardine & 80,000 km. $220.67 lst of
General Motors expires each
Acceptance February/86 month
Corporation
19 83 GMC Lankin Motors, 3 years
S-lS Down Kincardine & 80,000 km. $238.72 1st of
Sized Pickup General Motors expires each
Acceptance February/86 month
Corporation
:~. Eo82 Buick Lankin Motors, 3 years
Kincardine & 80,000 km. $459.86 1st of
, General Hotors expires each
Acceptance December/64 month
Corporation
1984 Ford Montgomery Ford, 3 ~ars
F350 Pickup Kincardine & 80,000 km. $278.07 5th of
Ford Motor Credit expires each
Company Nay 7/87 month
1984 ford Montgomery Ford, 3 years
Econoline Kincardine & 80,000 km. $279.11 25th of
Ford Hotor Credit expires each
Company February 23/87 month
1984 Ford Montgomery Ford, 3 years
EconoJ ir'e Kincardine & 80,000 km. $279.11 25th of
Ford Motor Credit expires each
Company February 23/87 month
. 1984 Forcl Montgomery Ford, 3 years
Econoline Kincardine & 80,000 km. $279.11 25th of
Ford Motor Credit expires each
Coropany February 23/87 month
1984 Ford Mòntgomery.Ford, 3 years
Econoline Kincardine " 80,000 km. $279.11 25th of
Ford Motor ,Credit expires each
Company February 23/87 month
1984 Ford Montgomery Ford, 3 years
Econoline Kincardine & 80,000 km. $279.11 25th of
Ford Motor Credit expires each
Company February 23/87 month
1984 Ford Montgomery Ford, 3 years
F350 Pickup Kincardine & 80,000 km. $259.88 15th of
Ford Motor Credit expi res each
Company May 7/87 month
. 1984 Ford Montgomery Ford, 3 years
FI50 Pickup Kincardine & 80,000 km. $247.64 5th of
Ford Motor Credit expires each
Company ~lay/87 month
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The following office equipment is leased by the Bruce
Municipal Telephone System:
Description
NCR cash
register
Model 2950
& accessories
,
,L,essor
National Cash
Register
.:rum
Monthly
Payment
1 year
$663.15
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Payment
Date
1st of
each
month
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SCHEDULE "C"
Contractual obligations of the Bruce Municipal Telephone
System:
(a) All non-management employees are represented
by Canadian Union of Public Employees (C.U.P.E.),
Local 255. There is currently a collective agreement
in effect which expires December 31, 1985.
(b) Agreement with Bell Canada allows Bell Canada
to provide service to land owned by Ontario Hydro
or Atomic Energy of Canada Limited (AECL) in the Douglas
Point locality known as the Bruce Nuclear Power Develop-
ment (BNPD). The term is 5 years and expires August 5,
1985.
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(c) Agreement with Tele-Direct (Publications) Inc. pro-
viding for advertising in and the publishing of Bruce
Municipal Telephone System's telephone directory.
The term is 5 years and expires January 1, 1985.
(d) Agreement with Huron and Kinloss Municipal Telephone
System - extended area service ,agreement. The term
is 20 years and expires December 28, 1987.
(e) Agreement with Ontario Hydro re pole rental.
The term is 15 years and expires January 1, 1994.
(f) Agreement with Northern Telephone Limited with
regard to customer billing. The term is three years
and expires May 1, 1985. J
(9) Traffic Agreement with Bell Canada effectiv . June 21st 1981,
continues until terminated by sixty (60) days priOc notice in writing
from either party to the other.
(h) Agreement with SOutbport Cable T.V. Ltd. effective from January'
1, 1981 renewed yearly.
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(1) Various verbal 'agreements with Local Public utilities for pole
rental.
(j) Verbal agreement with adjoining owner of property number 12
on Schedule A for joint use of a septic system.
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SCHEDULE "D"
Statement of Purchaser's Plans and
Intentions with respect to
Operation of a Telephone System
using ~-Furchased Assets
It is the intention of the Purchasers to acquire the system and operate it as a
utility within the whole of the area presently being serviced subject to receiving
the consent of the Council of each of the municipalities in which the system
operates.
It is intended that the system would be managed by a joint board established by
the purchasing municipalities which board would be structured by agreement among
the purchasing municipalities pursuant to the provisions of The Municipa¡ Act.
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SCHEDULE "E"
As the Purchasers are municipal corporations this offer is conditional upon the
purchasers obtaining all of the requisite approvals, consents and assents pursuant
to the provisions of The Telephone Act of Ontario, The Municipal Act, the regulations
of such statutes and all other regulatory approvals and without limiting the generality
of the foregoing approvals, consents and assents to the issuance of an/or assumption
of debentures to finance the purchase.
This condition shall be met in entirety prior to January 15, 1985. Provided that in
the event anyone or more of the consents, approvals or assents are not obtained by the
15th day of January, 1985, and notwithstanding anything hereinbefore contained in this
offer, the time to obtain such consents, approvals or assents shall be extended to July
15, 1985.
It is understood and agreed that upon acceptance hereof the Purchasers shall forthwith
callse all applications and other matters to be made and performed to obtain the required
· consents, approvals and assents.
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It is further understood and agreed that the Purchasers may terminate this agreement
at any time upon failing to obtain any approval, consent or assent required by law.
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