SALE AND PURCHASE AGREEMENT
This Agreement ("Agreement") is entered this 15th day of March, 2007, by
and between BRITISH COLUMBIA DISCOVERY VOYAGES INC., and X. XXXXX ENTERPRISES
INC., and XXXXXX XXXXX, (hereinafter called the "Sellers"), and MARINE GROWTH
CANADA LTD. (herein after called the "Buyer").
WHEREAS, the registered owner of the motor vessel, Pacific Aurora (the
"Pacific Aurora") is British Columbia Discovery Voyages Inc. with registered
offices on the 18th floor, 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0; and
WHEREAS, X. XXXXX ENTERPRISES INC., having a registered address of 18th
floor, 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0, has registered mortgages
dated February 28, 2002, and June 26, 2002 and is now the mortgagee in
possession of the Pacific Aurora and the owner of all issued and outstanding
shares of British Columbia Discovery Voyages, Inc.; and
WHEREAS, XXXXXX XXXXX has agreed to personally guaranty the
representations contained herein in his individual capacity ; and
WHEREAS, X. XXXXX ENTERPRISES INC., as mortgagee in possession of the
Pacific Aurora described in paragraph 1 below desires to sell 100% of the right,
interest and title in such vessel on the terms and conditions hereinafter
contained, by power of mortgage "G" pursuant to Section 41 of the Canada
Shipping Act, RSBC, S-9; and
WHEREAS, Buyer desires to purchase such vessel on the terms hereinafter
contained; and
NOW THEREFORE, for and in consideration of the mutual covenants herein and
other good and valuable consideration, the receipt and sufficiency of which is
acknowledged by the parties, the Sellers and Buyer agree as follows:
1. Equipment Sold and Purchased. Upon the terms and conditions contained in this
Agreement, Seller agrees to sell and Buyer agrees to buy, the following Canadian
flagged vessel:
VESSEL NAME OFFICIAL NUMBER
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PACIFIC AURORA 318341, IMO Ship ID. No. 5353983
Port of Registry: Prince Rupert
AS IS, WHERE IS, with all equipment, appurtenances, fuel, lubes, spares,
rigging, apparel, furnishings and other property on board such vessel, including
without limitation all equipment, rigging and/or gear, including but not limited
to all equipment noted on Vessel survey (hereinafter called "the Vessel"). The
Sellers can only remove from the Pacific Aurora the property listed in the
Addendum that is attached hereto, if any.
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2. Purchase Price. The total purchase price (the "Purchase Price") for the
Pacific Aurora shall be XXX XXXXXXX XXXXX XXXXXXX XXXXX XXXXXXXX XXXXXX XXXXXX
DOLLARS ($1,350,000.00 U.S.), to be paid by Buyer to Sellers in the form of cash
or a wire transfer upon receipt of all paperwork referenced herein and necessary
to complete the transaction and delivery of the Vessel as set forth below, as
follows:
All amounts referred to in this Purchase and Sale Agreement shall be in United
States Dollars, unless specifically noted otherwise. The Purchase Price of
$1,350,000.00 U.S. is based on an exchange rate of Canadian dollars to U.S.
dollars being $0.850. In the event that the exchange rate of Canadian dollars to
U.S. dollars on the Closing Date shall be greater than or less than $0.850 by
more than $0.0025, then a further adjustment will be made on the Purchase Price
by the amount of such difference in the actual exchange rate from $0.850 on the
Date of Closing. Where noted, Canadian Dollars shall be converted to U.S.
Dollars using an exchange rate of $0.850. All amounts to be paid as hereafter
set out, shall be paid by way of bank draft or certified cheque.
A. Deposit. Within one (1) business day following the acceptance of this
Agreement by the parties hereto, Buyer shall pay and deliver to the
Seller, X. Xxxxx Enterprises Inc., a non-refundable deposit of EIGHT-FIVE
THOUSAND DOLLARS (U.S. $85,000.00) (the "Deposit"). The Deposit shall be
applied to the Purchase Price at Closing (defined below).
B. At Closing, Sellers shall pay to the Buyer the balance of the Purchase
Price as may be adjusted herein less the amount of the Deposit.
C. Closing. The Closing date (the "Closing Date") shall be March 23, 2007.
If additional time is required $7,000 U.S. will extend the closing date to
March 30, 2007.
3. Conditions and Obligations.
A. Buyer's obligation to purchase the Vessel is conditioned upon fulfillment of
the following conditions, and no others:
(i) The Vessel shall be delivered at the location in Greater Vancouver,
British Columbia.
(ii) There shall exist no liens or encumbrances against the Vessel, except
any created by, through or under Buyer; and Sellers shall have delivered
to Buyer two (2) original executed Bills of Sale, Canada Shipping Act;
Form 6.
(iii) Sellers shall provide:
(a) a certified copy of the Vessel's Abstract of Title or Registry
showing no liens or encumbrances or equivalent Canadian
federal shipping registration;
(b) a warranty of title executed by Sellers showing that all crew
wages up to the time of Closing have been paid, there are no
outstanding liens of encumbrances and that Sellers have full
right and authority to convey the Vessel, and that Sellers
warrant they will take any and all further action after
Closing to vest good and marketable title in Buyer's name;
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(c) corporate resolution authorizing Sellers to enter into the
transaction contemplated herein; and
(d) all manuals, plans, schematics, original Certificate of
Registry and other ship's papers.
B. Seller's obligation to sell the Vessel is subject to fulfillment of the
following conditions and no others:
Seller shall have received the Purchase Price in the form and process
described in paragraph 2.
C. The Buyer has a copy of the estimate of work for the Vessel to be done by
Allied Shipbuilders and agrees to be fully responsible for all such work and
payment therefor.
D. The Sellers will be fully responsible for the payment of any and all
commissions or fees or other amounts which may be payable to any broker or agent
involved in the sale of the Vessel as provided herein, and shall advise the
Buyer of the amount paid or payable by the Seller to such broker or agent and
provide evidence of such liability and payment. The Sellers agree to indemnify
and hold harmless the Buyer from and against any and all any claims, suits,
proceedings, demands, actions judgements, orders, interest, payments, damages,
and liens whenever and however caused or incurred and which are related directly
or indirectly, incurred, sustained, or suffered by or asserted against the Buyer
and/or the Vessel relating to, arising out of, resulting from or in any way
connected with the payment of commissions or fees or other amounts which may be
payable to any broker or agent involved in the sale of the Vessel.
4. Condition; Delivery and Acceptance.
Subject to the conditions set forth above, the Vessel shall be delivered to
Buyer at the location set forth in paragraph 3(A)(i), on or before the Closing
Date.
5. Covenants.
A. COVENANTS
SELLERS WARRANT THAT THE VESSEL IS OWNED BY SELLERS AND IS SOLD FREE AND CLEAR
OF ALL MORTGAGES, LIENS, CLAIMS, DEBTS AND ENCUMBRANCES WHATSOEVER; SHOULD ANY
LIENS, CLAIMS OR ENCUMBRANCES ON THE VESSEL, WHICH HAVE BEEN INCURRED, BY,
THROUGH OR UNDER SELLERS PRIOR TO THE TIME OF CLOSING BE ASSERTED AGAINST THE
VESSEL, SELLERS AGREE TO INDEMNIFY BUYER FROM ANY EXPENSE OR LIABILITY INCURRED
BY BUYER TO HAVE SUCH CLAIM OR ENCUMBRANCE REMOVED, INCLUDING, BUT NOT LIMITED
TO ATTORNEY'S FEES, INTEREST, LEGAL COSTS AND EXPENSES.
B. EXCLUSIONS AND WARRANTIES;
BUYER HEREBY MAKES A FULL WAIVER OF WARRANTY AS TO CONDITION OF THE VESSEL
(ENVIRONMENTAL AND OTHERWISE), AND ACKNOWLEDGES AND AGREES THAT THE SALE IS
BEING MADE ON AN "AS IS, WHERE IS" BASIS. THE ONLY WARRANTY WHICH SELLERS AGREE
TO MAKE IS A WARRANTY OF TITLE AND WARRANTY THAT THE VESSEL IS BEING SOLD FREE
AND CLEAR OF ALL LIENS AND ENCUMBRANCES. BUYER ACKNOWLEDGES AND AGREES THAT
BUYER IS RELYING SOLELY ON ITS OWN INSPECTION OF THE VESSEL AND NOT ON ANY
WARRANTIES AND REPRESENTATIONS FROM OR ON BEHALF OF SELLERS AT ANY TIME.
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X. XXXXXXX SHALL BE LIABLE FOR PAYMENT OF ANY AND ALL AD VALOREM, PROPERTY
AND/OR USE TAXES PAYABLE WITH RESPECT TO THE VESSEL, PRO RATED FOR THE PERIOD
PRIOR TO THE DATE OF DELIVERY, AND BUYER SHALL BE LIABLE FOR PAYMENT OF ANY AND
ALL AD VALOREM, PROPERTY AND/OR USE TAXES PAYABLE WITH RESPECT TO THE VESSEL PRO
RATED FOR THE PERIOD AFTER THE DATE OF DELIVERY.
The Sellers, British Columbia Discovery Voyages Inc., Xxxxxx Xxxxx and X. Xxxxx
Enterprises, Inc. are jointly and severally responsible for the representations
and warranties set out in these clauses 5A, 5B and 5C.
6. Risk of Loss.
All risk of loss or damage to the Vessel shall be borne solely by the Buyer
after the time of purchase and delivery of the Vessel. Up until the time of
delivery, all risk of loss or damages to the Vessel shall be borne solely by
Sellers. Sellers shall deliver the Vessel in substantially the same condition as
when this Purchase and Sales Agreement is executed by Sellers or Buyer may
terminate this Agreement and receive a refund of all Deposit amounts.
7. Miscellaneous.
A. Governing Law. THIS AGREEMENT, THE OTHER DOCUMENTS, INSTRUMENTS AND
AGREEMENTS DELIVERED PURSUANT HERETO, AND THE LEGAL RELATIONS BETWEEN THE
PARTIES, SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
PROVINCE OF BRITISH COLUMBIA, CANADA.
B. Jurisdiction and Venue. Any suit concerning this Sale and Purchase Agreement
must be filed a court of competent jurisdiction in British Columbia, Canada.
C. Attorney's Fees. In the event of a lawsuit between the parties regarding this
Sale and Purchase Agreement, the prevailing party will be entitled to recover
its reasonable attorney's fees.
D. Parties of Interest. All the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of, and be enforceable by, Sellers and
Buyer and their respective successors and permitted assigns.
E. Counterpart Execution. This Agreement may be executed in three (3) or more
counterparts, and by facsimile or email or by any other method of transmitting
legible signatures, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
F. Survival of Warranties. All representations, warranties, covenants and
agreements made by the Sellers in the agreement shall survive Closing and shall
continue in full force and effect for the benefit of the Buyer;
G. Entire Agreement. This Agreement, and all agreements referenced herein,
contain the entire agreement between the parties with respect to the
transactions contemplated hereby and supersedes all prior agreements, written or
oral, with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives effective the day and year first above
written.
SELLER: BRITISH COLUMBIA DISCOVERY VOYAGES INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: President
SELLER: X. XXXXX ENTERPRISES INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: President
Witness: SELLER:
/s/ Xxxxxx Xxxxx
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Print Name: Xxxxxx Xxxxx
MARINE GROWTH CANADA LTD.
BUYER: By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: President
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