ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made effective this 10th day of April, 2002.
BETWEEN:
XXXXX X. XXXX INVESTMENTS CORP., a Nevada corporation with an
Office located at 0000 Xxxx Xxxxxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxx
Xxxxxx, Xxxxxx;
(the "Vendor")
OF THE FIRST PART
AND:
WHISTLER INVESTMENTS, INC., a Nevada corporation with an office
located at 0000 Xxxx Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxx, 00000;
("Whistler")
OF THE SECOND PART
WHEREAS:
A. Subject to a mortgage held by Commercial Federal Bank, the Vendor owns a
100% interest in the real property and all buildings and improvements situated
thereon (the "Property"), which Property is known as the Azra Shopping Center
located at 0000 Xxxx Xxxxxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx and is legally
described as: Portion of Xxx 0, Xxxx Xxxxxx, Xxxx Book 94, Page 42, parcel
number 140-29-212-003 as recorded in the Xxxxx County Recorder's Office; and
B. Whistler desires to purchase an undivided 100% interest, subject to the
charges described herein, in the Property from the Vendor upon the terms and
conditions hereinafter set forth;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and mutual agreements and covenants herein contained, the parties
hereby covenant and agree as follows:
1. VENDOR'S REPRESENTATIONS
The Vendor hereby makes the following representations and warranties
to Whistler, each of which is true and correct as of the date hereof and each of
which shall survive the closing of the transaction described herein:
(a) The Vendor owns an undivided 100% interest in the Property, free and clear
of any encumbrances other than the following:
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(i) a mortgage for no more than $3,150,000 as of the date of
this agreement held by Commercial Federal Bank 000 Xxxxx
Xxxxxxxxx Xxxx., Xxxxxxxx, Xxxxxxxx, 00000; and
(ii) various lease agreements between the Vendor and certain
lessees of various dates, copies of which the Vendor has
provided to Whistler.
(b) The Vendor is a body corporate, duly incorporated and in good standing
under the laws of the State of Nevada, and has the full power, authority,
right and capacity to own and dispose of the Property, to execute and
deliver this Agreement and to complete the transactions contemplated
hereby;
(c) The execution of this Agreement will not constitute or result in the breach
or default under any other agreement or arrangement to which the Vendor is
a party;
(d) The Vendor does not require authorization or consent from any governmental
authority or other entity in order to transfer an undivided 100% interest
in the Property to Whistler, other than the written consent of the
Commercial Federal Bank located in Lakewood, Colorado;
(e) No legal action, judgment or other proceeding is in process, or pending or
threatened, against or relating to the Vendor or the Property, and no state
of facts exists which could constitute the basis therefor;
(f) The Vendor has obtained all necessary permits related to the Property, all
of which were validly issued, are in full force and effect and are in good
standing and no notice of breach or default in respect of the terms of any
such permit has been received by the Vendor and the is not aware of any
matters which could give rise to such notice;
(g) the suites located in the building on the Property are leased by the Vendor
on normal business terms from persons with whom the Vendor deals at arm's
length;
(h) the Property is adequately covered by insurance;
(i) the Property has a land area of 2.37 acres with a 31,187 square feet
shopping centre erected thereon; and
(j) the Property is subject to an appraisal report dated November 13, 2001 by
Xxxx X. Xxxx, Inc., Real Estate Appraisers and Consultants that appraises
the market value of the Property, in both leased fee and fee simple
interest at November 7, 2001 to be $4,765,000.
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2. WHISTLER'S REPRESENTATIONS
Whistler warrants and represents to the Vendor that it is a body
corporate, duly incorporated and in good standing under the laws of the State of
Nevada with full power and absolute capacity to enter into this Agreement and
that the terms of this Agreement have been authorized by all necessary corporate
acts and deeds in order to give effect to the terms hereof.
3. SALE OF PROPERTY
Whistler hereby agrees to purchase from the Vendor and the Vendor
hereby agrees to sell to Whistler an undivided 100% right, title and interest in
and to the Property, subject to the charges and encumbrances disclosed herein,
in consideration of Whistler delivering the following consideration to the
Vendor at Closing:
(a) a promissory note for $600,000 in the form attached hereto as Schedule
"A";
(b) written acknowledgment, in a form acceptable to the Vendor, that
Whistler will assume responsibility for all encumbrances and charges
on the Property; and
(c) share certificates representing 40,000,000 shares of restricted common
stock in the capital of Whistler at a deemed price of $0.01 each (the
"Shares"), which Shares shall be subject to the pooling restrictions
described in the Pooling Agreement attached hereto as Schedule "B".
4. CLOSING
The sale and purchase of the Property shall be closed at the office of
Whistler at 10:00 A.M. (Las Vegas time) on April 15, 2002 or on such other date
or at such other place as may be agreed upon by the parties (the "Closing
Date").
5. ACTIONS BY THE PARTIES PENDING CLOSING
From and after the date hereof and until the Closing Date, the Vendor
and Whistler covenant and agree that:
(a) Whistler, and its authorized representatives, shall have full access
during normal business hours to all documents of the Vendor relating
to the Property and shall have full access to inspect the Property,
subject to the rights of the tenants located thereon, and the Vendor
shall furnish to Whistler or its authorized representatives all
information with respect to the Property as Whistler may reasonably
request; and
(b) The Vendor shall not enter into any contract or commitment to purchase
or sell any interest in the Property or any related assets without the
prior written consent of Whistler.
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6. CONDITIONS PRECEDENT TO THE VENDOR'S OBLIGATIONS
Each and every obligation of the Vendor to be performed on the Closing
Date shall be subject to the satisfaction by the Closing Date of the following
conditions, unless waived in writing by the Vendor:
(a) The representations and warranties made by Whistler in this Agreement
shall be true and correct on and as of the Closing Date with the same
effect as though such representations and warranties had been made or
given by the Closing Date; and
(d) Whistler shall deliver to the Vendor:
(i) an executed promissory note in the form attached hereto as
Schedule "A";
(ii) written acknowledgment, in a form acceptable to the Vendor, that
Whistler will assume responsibility for all encumbrances and
charges on the Property; and
(iii) written confirmation from Pacific Stock Transfer Company that it
has issued share certificates representing the Shares which it
holds pursuant to the terms of a pooling agreement attached
hereto as Schedule "B"; and
(iv) a copy of resolutions of Whistler's Board of Directors
authorizing the acquisition of the Property, the delivery of the
documents described in this subparagraph and the issuance of the
Shares.
7. CONDITIONS PRECEDENT TO WHISTLER'S OBLIGATIONS
Each and every obligation of Whistler to be performed on the Closing
Date shall be subject to the satisfaction by the Closing Date of the following
conditions, unless waived in writing by Whistler:
(a) The representations and warranties made by the Vendor in this
Agreement shall be true and correct on and as of the Closing Date with
the same effect as though such representations and warranties had been
made or given by the Closing Date;
(b) The Vendor shall have performed and complied with all of its
obligations under this Agreement which are to be performed or complied
with by its by the Closing Date;
(c) The Vendor shall deliver to Whistler:
(i) satisfactory documentation evidencing the sale and transfer of
the Property to Whistler in a form necessary for Whistler to
record its interest in the
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Property with the Xxxxx County
Recorder's Office;
(ii) an executed copy of the Pooling Agreement attached hereto as
Schedule "B";
(iii) a letter from the Commercial Federal Bank consenting to the sale
of the Property to Whistler;
(iv) written confirmation from Xxxxx Xxxx that he will continue to
personally guarantee the mortgage held by Commercial Federal
Bank; and
(v) a copy of resolutions of the Vendor's Board of Directors
authorizing the sale of the Property, the delivery of the
documents described in this subparagraph and the execution of the
Pooling Agreement attached hereto as Schedule "B".
8. FURTHER ASSURANCES
The parties hereto covenant and agree to do such further acts and
execute and deliver all such further deeds and documents as shall be reasonably
required in order to fully perform and carry out the terms and intent of this
Agreement.
9. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement to date between the
parties hereto and supersedes every previous agreement, communication,
expectation, negotiation, representation or understanding, whether oral or
written, express or implied, statutory or otherwise, between the parties with
respect to the subject of this Agreement.
10. TIME OF ESSENCE
Time shall be of the essence of this Agreement.
11. TITLES
The titles to the respective sections hereof shall not be deemed a
part of this Agreement but shall be regarded as having been used for convenience
only.
12. CURRENCY
All funds referred to under the terms of this Agreement shall be funds
designated in the lawful currency of the United States of America.
13. SEVERABILITY
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If any one or more of the provisions contained herein should be
invalid, illegal or unenforceable in any respect in any jurisdictions, the
validity, legality and enforceability of such provisions shall not in any way be
affected or impaired thereby in any other jurisdiction and the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
14. APPLICABLE LAW
The situs of the Agreement is Las Vegas, Nevada, and for all purposes
this Agreement will be governed exclusively by and construed and enforced in
accordance with laws prevailing in the State of Nevada. The parties agree to
attorn to the jurisdiction of the Courts of the State of Nevada.
15. ENUREMENT
This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF this Agreement has been executed as of the day and
year first above written.
XXXXX X. XXXX INVESTMENTS CORP. WHISTLER INVESTMENTS, INC.
per: /s/ Xxxxx X. Xxxx per: /s/ Xxxxxx Xxxxx
_______________________________ _________________________________
Xxxxx X. Xxxx Authorized Signatory
