TRANSFER AND ASSIGNMENT AGREEMENT
Exhibit
10.1
THIS
AGREEMENT
made as
of the 29th
day of
June, 2006
AMONGST:
SEA
SUN CAPITAL CORPORATION
a
corporation incorporated
pursuant
to the laws of Delaware, U.S.A.
(hereinafter
referred to as the “Vendor”)
OF
THE FIRST PART
-and-
SEA
SUN ENTERPRISES INCORPORATED
A
corporation incorporated
Pursuant
to the laws of Barbados
(hereinafter
referred to as the “Purchaser”)
OF
THE SECOND PART
WHEREAS
the
Vendor has agreed to sell, assign and transfer to the Purchaser and the
Purchaser has agreed to purchase from the Vendor certain of the assets of
the
Vendor as more particularly described in Schedule “A” attached hereto
(hereinafter the “Location Agreements”) related to the eco-tour location
business of the Vendor (the “Business”) on the terms and subject to the
conditions hereinafter set forth effective as of the date hereof (the “Closing
Date”);
AND
WHEREAS the
Vendor has entered into a Master Licence Agreement dated June 29, 2006 with
the
Purchaser whereby the Purchaser will have the exclusive right to operate
the
Vendor’s eco-tour business in accordance with the terms and conditions therein
contained;
AND
WHEREAS the
Purchaser wishes to purchase the Location Agreements as part of its commitment
to operate the eco-tour business under the Master Licence
Agreement;
NOW
THEREFORE THIS AGREEMENT WITNESSES
that in
consideration of the premises and the covenants, agreements, representations,
warranties and payments hereinafter set forth and provided for (the receipt
and
sufficiency of which are hereby acknowledged by each of the parties hereto),
the
parties hereto, respectively covenant and agree as follows:
ARTICLE
ONE
PURCHASE
AND SALE
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1.01
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Purchase:
The
Purchaser hereby agrees to purchase from the Vendor and the Vendor
does
hereby agree to sell to the Purchaser all the Vendor's right, title
and
interest in, to and under the eco-tour location agreements specified
in
Schedule “A” attached hereto (hereinafter the "Location Agreements"),
including, without limitation:
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(a)
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the
Vendor’s rights in all contracts in connection with the Location
Agreements; and
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(b)
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all
of the accounts receivable, and other debts (if any), due or accruing
due
to the Vendor in connection with the Location Agreements and including
any
security held by the Vendor for such accounts
receivable.
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1.02
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Exclusions:
Specifically excluded from the property being purchased are the
following:
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(a)
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cash;
and
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(b)
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all
intellectual property rights in connection with the Business of
the
Vendor.
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1.03
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Assumption
of Obligations: Except
as herein otherwise provided, the Purchaser shall be required to
assume
and hereby assumes all of the obligations arising under the Location
Agreements.
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1.04
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Transfer
and Assignment: In
accordance with paragraph 1.02(a) herein, the Vendor sells,
assigns, and transfers to the Purchaser all of the Vendor’s right, title,
and interest in and to the Location Agreements, the same to be
held as
fully by the Purchaser as the same would have been held by the
Vendor had
this assignment not been made.
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1.05
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Vendor’s
Warranties: The
Vendor hereby represents and warrants that it is now rightfully
possessed
of and entitled to sell, assign and transfer unto the Purchaser
its right,
title and interest in the Location Agreements and that the
covenants and conditions contained therein have been duly performed
by the
Vendor to date.
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1.06
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Indemnity:
The
Purchaser hereby assumes all of the obligations of the Vendor under
the
Location Agreements and the Vendor as of the date hereof, and indemnifies
and saves harmless the Vendor from any and all claims or demands
made
against the Vendor under the Location Agreements with respect to
matters
arising from and after the date
hereof.
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2
ARTICLE
TWO
CONSIDERATION
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2.01
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Purchase
Price: The
purchase price (hereinafter called the "Purchase Price") for the
Location
Agreements shall be calculated and payable in accordance with Schedule
“B”
attached hereto.
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2.02
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Promise
to Pay: The
Purchaser hereby promises to pay the Purchase Price in accordance
with the
schedule of payments set out in Schedule “B” attached hereto, together
with interest on the amount outstanding from time to time, accruing
from
and including the date hereof, both before and after maturity,
default and
judgment, as more particularly described in the said Schedule “B”. The
Purchaser hereby waives demand, presentment, protest, notice of
protest
and notice of dishonour. When not in default hereunder, the Purchaser
shall have the privilege of repaying the whole or any part of the
Purchase
Price owing hereunder including all accrued and unpaid interest,
at any
time or times without notice or bonus. In the event of default
hereunder,
the entire balance due and owing including all accrued and unpaid
interest, shall immediately become due and payable to the
Vendor.
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ARTICLE
THREE
ADJUSTMENTS
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3.01
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Undertaking:
The
parties shall undertake to readjust, if necessary, after closing
with
respect to all values used in the calculation of the Purchase Price
and
all amounts adjusted for in the statement of adjustments. The request
for
any readjustment shall be accompanied by sufficient supporting
documents
to verify the need for the
readjustment.
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ARTICLE
FOUR
REPRESENTATIONS,
WARRANTIES AND COVENANTS
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4.01
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Vendor’s
Representations, Warranties and Covenants: The
Vendor represents and warrants as
follows:
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| (a) |
the
Vendor has full right, power and authority to sell and convey the
Location
Agreements to the Purchaser as provided herein and to carry out
its
obligations hereunder.
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4.02
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Purchaser’s
Representations, Warranties and Covenants: The
Purchaser covenants, represents and warrants as
follows:
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(a)
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The
Purchaser undertakes to perform, assume and fulfill each of the
covenants,
contracts, obligations and commitments contain in each and every
Location
Agreement referred to in Section “A”
hereto.
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3
ARTICLE
FIVE
CONDITIONS
AND DUE DILIGENCE
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5.01
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Purchaser’s
Conditions: The
Purchaser shall not be obliged to complete the purchase herein
provided
for unless on the Closing Date each of the following conditions
shall have
been satisfied, it being understood that the conditions are included
for
the exclusive benefit of the Purchaser and may be waived in writing
in
whole or in part by the Purchaser at any time; and the Vendor shall
use
its best efforts to ensure that no steps are taken which might
prevent the
conditions from being fulfilled on or before the Closing Date or
such
earlier time as may hereafter be
specified:
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(a)
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the
Purchaser, in its discretion, shall be satisfied in all respects
with its
due diligence investigations and the Purchaser shall evidence
non-satisfaction in writing signed on behalf of the Purchaser not
later
than the Closing Date, failing written notification of non-satisfaction,
this condition shall be deemed to be
waived;
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(b)
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the
representations and warranties set forth herein shall be true and
correct
in all material respects on the Closing Date;
and
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(c)
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all
of the covenants and agreements set forth in this Agreement to
be complied
with or performed by the Vendor at or before the Closing Date shall
have
been complied with or performed by the Vendor on or before the
Closing
Date.
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5.02
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Termination:
If
any of the foregoing conditions shall not have been fulfilled or
waived on
or before the Closing Date, the Purchaser may terminate this Agreement
by
notice in writing to the Vendor in which event the both parties
shall be
released from all obligations under this
Agreement.
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ARTICLE
SIX
DELIVERIES
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6.01
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Vendor’s
Deliveries: The
Vendor covenants to deliver the following to the Purchaser on or
before
the Closing Date as provided for in this
Agreement:
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| (a) |
Certified
copy of a resolution of the Vendor authorizing the execution of
this
Agreement and the completion of the within transaction by the
Vendor;
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| (b) |
an
undertaking to readjust in accordance with the terms hereof;
and
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(c)
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such
other documents or assurances as are customary in transactions
of this
nature.
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4
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6.02
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Purchaser’s
Deliveries: The
Purchaser covenants to deliver the following to the Vendor on or
before
the Closing Date as provided for in this
Agreement:
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| (a) |
Certified
copy of a resolution of the Purchaser authorizing the execution
of this
Agreement and the completion of the within transaction by the Purchaser;
and
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(b)
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an
undertaking to readjust in accordance with the terms hereof.
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ARTICLE
SEVEN
PURCHASER'S
COVENANTS
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7.01
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Purchaser’s
Covenants: The
Purchaser hereby covenants and agrees to do the following, on or
before
the Closing Date:
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(a)
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to
execute such forms of assumption agreement as may be required to
assume
any agreements to be assigned;
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(b)
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to
carry out in good faith the due diligence investigations required
of it
pursuant to Section 5.00;
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(c)
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to
provide the Vendor on Closing with properly executed documents
that are
required of it pursuant to this Agreement and where the document
is to be
registered, same must be in registrable form;
and
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(d)
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unless
and until the transaction contemplated hereby has been completed,
to hold
in strict confidence all information respecting the Business and
the
Vendor obtained by the Purchaser, and if it shall not complete
the
purchase of the Location Agreements on the Closing Date, to forthwith
return to the Vendor all written information and documents obtained
from
the Business or the Vendor and in its possession. The Purchaser
agrees
that no documents or records will be removed from the Business
premises,
but the Purchaser may make such copies thereof as it reasonably
requires.
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ARTICLE
EIGHT
SURVIVAL
OF REPRESENTATIONS AND WARRANTIES
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8.01
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Survival
of Representations and Warranties: The
representations and warranties of the Vendor and Purchaser contained
in
this Agreement shall be true and correct on the Closing Date and
shall
survive the Closing Date for a period of three
years.
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5
ARTICLE
NINE
NOTICE
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9.01
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Notice:
Any
notice, direction or other communication required or permitted
to be given
to the Purchaser or to the Vendor hereunder, shall be in writing
and may
be given by having the same delivered by hand or sent by means
of printed
electronic or printed telephonic communication or sent by prepaid
registered or certified mail addressed to the Purchaser or Vendor,
as the
case may be, as follows:
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(a) to
the
Purchaser:
Sea
Sun
Enterprises Incorporated
Xxxxxxxx
Xxxxx, Xxxxxxx Xxxxxx
X.X.
Xxx
000 XXX
Xxxxxxxxxx,
Xxxxxxxx
Attention: Xxxxxxx
Xxxxx Xxxxx
Tel:
(000)
000-0000
Fax:
(000)
000-0000
(b) to
the
Vendor:
Sea
Sun
Capital Corporation
0000
Xxxxx Xxxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxxxx,
Xxxxxxx
X0X
0X0
Attention: Xxxx
Xxxxxx, Vice President
Tel:
(000)
000-0000 Ext. 201
Fax:
(000)
000-0000
Unless
otherwise provided for herein, any such notice, direction or other communication
as aforesaid, delivered or transmitted shall be deemed to have been delivered
on
the date on which it was delivered or transmitted or if mailed, then seventy-two
(72) hours following the date of mailing, and any time period referred to
in a
notice commences to run from the time of delivery or transmission or seventy-two
(72) hours following the date of mailing. If there is a reasonable possibility
that the postal service may be interrupted or substantially delayed due to
actual or anticipated labour disputes, any notice, direction or other
communication shall only be delivered in person or transmitted as aforesaid.
Either party may at any time give notice in writing to the other of any change
of address of such party for the purpose of giving any notice herein. Any
notice
electronically transmitted to the recipient on a non-Business Day or after
business hours shall be deemed to have been received during business hours
on
the next Business Day.
6
ARTICLE
TEN
CLOSING
DATE, CLOSING ARRANGEMENTS, TENDER
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10.01
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Closing
Arrangements:
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(a)
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The
purchase and sale of the Location Agreements shall be closed on
the
Closing Date at 11:00 a.m. at the Vendor's solicitors' offices;
and
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| (b) |
Any
tender of documents or money hereunder may be made upon the Vendor
or
Purchaser or their respective solicitors on the Closing Date and
money may
be tendered by bank draft or cheque certified drawn upon a Schedule
1
Canadian chartered bank, payable at par in Toronto in Canadian
funds.
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ARTICLE
ELEVEN
GOVERNING
LAW
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11.01
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ARTICLE
TWELVE
TIME
OF THE ESSENCE
12.01 Time
of the Essence: Time
shall be of the essence of this Agreement and every part
thereof.
ARTICLE
THIRTEEN
EXPENSES
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13.01
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Expenses:
Each
party shall be responsible for the payment of all its own costs
and
expenses in connection with the making of this Agreement and the
completion of the transaction contemplated
herein.
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ARTICLE
FOURTEEN
FURTHER
ASSURANCES
| 14.01 |
Further
Assurances: The
parties hereto shall give such further assurances, do and perform
and
cause to be done and performed such further and other acts and
things as
may be necessary or desirable in order to give full force and effect
to
this Agreement and every part
thereof.
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7
ARTICLE
FIFTEEN
HEADINGS
| 15.01 |
Headings:
The
headings used herein are inserted for convenience of reference
only and
shall not affect the construction of or interpretation of this
Agreement.
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ARTICLE
SIXTEEN
ENUREMENT
| 16.01 |
Enurement:
This
Agreement shall enure to the benefit of and be binding upon the
parties
hereto and their respective successors and permitted
assigns.
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ARTICLE
SEVENTEEN
WHOLE
AGREEMENT
| 17.01 |
Whole
Agreement: It
is understood and agreed that this Agreement constitutes a binding
contract of purchase and sale in accordance with its terms and
expresses
the entire and final agreement between the parties hereto with
respect to
all matters therein, and both the Vendor and the Purchaser agree
that the
execution of this Agreement has not been induced by, neither do
any of the
parties hereto rely upon, nor regard as material any representations
or
promises whatsoever whether oral or otherwise, and by whomsoever
made,
except as hereinbefore expressly set out; nor shall any such
representation whether oral or otherwise have the effect of varying
or
altering any of the terms of this
Agreement.
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ARTICLE
EIGHTEEN
ASSIGNMENT
| 18.01 |
Assignment:
This
Agreement shall not be assigned by the
Purchaser.
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ARTICLE
NINETEEN
GENDER
| 19.01 |
Gender:
In
this Agreement, the singular shall include the plural, and vice
versa, and
words such as "hereunder", "hereto" and "herein" and other words
in
connection with "herein" shall, unless the context clearly indicates
to
the contrary, refer to the whole of this Agreement and not to any
particular paragraph or section thereof, and the term "person"
shall
include a corporation.
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8
ARTICLE
TWENTY
CURRENCY
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20.01
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Currency:
All references to money amount herein, unless otherwise specified,
shall
be in the currency of the United States of
America.
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IN
WITNESS WHEREOF
this
Agreement has been duly executed by the parties hereto as of the date first
above written.
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SEA
SUN CAPITAL CORPORATION
Per:
Name:
Xxxxxx Xxxxxxxxxx
Title:
President and Chief Executive Officer
I
have authority to bind the Corporation
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SEA
SUN ENTERPRISES INCORPORATED
Per:
Name:
Xxxxxxx Xxxxx Xxxxx
Title:
Director
Per:
Name:
Xxxxx Xxxxx Xxxxxxx
Title:
Per:
Name:
Xxxx Xxxx Xxxxxxx
Title:
Director
We
have authority to bind the
Corporation
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9
