ASSET PURCHASE AGREEMENT
By and between
Brownsville Company
And
Fraser River Metals Depot Inc.
THIS ASSET PURCHASE AGREEMENT (hereinafter referred to as
"Agreement") is entered into as of the 16 day of November,
2006 by and between Brownsville Company (hereinafter
referred to as "the Seller") and Fraser River Metals Depot
Inc. (hereinafter referred to as "the Purchaser") as
follows:
Article 1 (Purpose)
This Agreement is entered into for the purpose of setting
forth the terms and conditions agreed between the parties as
well as to clarify the rights and obligations of the parties
regarding the sale of the Seller's Assets, both tangible and
intangible, and Liabilities to the Purchaser (as defined
below).
Article 2 (Definitions)
(1) "Assets" means all of the Seller's tangible and intangible
assets as specified in Article 6.
(2) "Liabilities" means the Seller's liabilities as set out in
section 7.
(3) "Closing Date" means the date of completion of all the
procedures specified in Article 8 below.
Article 3 (Term)
This Agreement shall be effective from the execution date
hereof.
Article 4 (Price)
The Purchaser shall pay to the Seller the total of US$ 2.00
and other valuable consideration receipt and which is hereby
acknowledged including the termination and cancellation of
the Seller's obligation (the "Obligation") to issue to the
Purchaser 250,000 shares of Common Stock of the Seller
which were to be issued to the Purchaser pursuant to that
certain Asset Purchase Agreement dated March 31, 2004 which
Obligation is hereby terminated, cancelled and of no further
force and effect (the "Price").
Article 5 (Due Diligence)
(1) The parties shall conduct due diligence of the Assets and
Liabilities.
(2) The Seller shall permit to the Purchaser, within the
necessary scope of the due diligence during the general
business hours, access of all books and records directly
related to the Seller's Assets and Liabilities.
(3) The parties shall each be responsible for their own costs
and expenses of the due diligence, including the fee for
accountants, attorneys and other specialists participating
in the due diligence.
Article 6 (Assets)
(1) On the terms and subject to the conditions of this
Agreement, the Seller shall, on the Closing Date, sell,
assign, transfer, convey and deliver to the Purchaser or
cause to be sold, assigned, transferred, conveyed and
delivered to the Purchaser, and Purchaser shall acquire from
Seller, on the Closing Date, all of Seller's right, title
and interest in and to the following assets, in each case
owned or leased by Seller and used primarily or, in the
case of clause (iv)of this Section 1, solely in connection
with Seller's boat launch, parking lot, marina and
convenience store business located in Xxxxx Xxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxx at the Closing Date (collectively, the
"Assets"):
(i) the lease agreement, dated March 31, 2004, between
Fraser River Metals Deposit Inc., as landlord, and
Brownsville Company, as tenant. (the "Fraser Lease)
(ii) all inventory, furniture, fixtures, equipment,
machinery and other tangible personal property at 00000
Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx,
X0X 0X0.
(iii) all books of account, general, financial, tax and
personnel records, invoices, supplier lists,
correspondence and other documents, records and files
and all computer software and programs and any rights
thereto;
(iv) all rights under all contracts, subcontracts,
licenses, sublicenses, agreements, leases, purchase
orders, customer orders, commitments and similar
binding arrangements of the Seller.
(b) Notwithstanding the foregoing, the Assets shall exclude
the following assets owned or leased by Seller (the
"excluded Assets"):
(i) all cash, cash equivalents and bank accounts;
(ii) all rights of the Seller in and to the name of
"Brownsville Company".
(iii) all rights of the Seller under this Agreement
and any agreements ancillary hereto.
Article 7 (Liabilities)
(a) The Purchaser shall, on the Closing Date, assume and
shall pay, perform and discharge when due all liabilities of
the Seller as at the Closing Date arising out of or relating
to the Assets, all pre-existing contracts, agreements and
purchase orders and loan agreements the Seller has entered
into prior to the date of this agreement.
Article 8 (Closing)
(a) Subject to the terms and conditions of this Agreement,
the sale and purchase of the Assets and the assumption of
the Liabilities contemplated by this Agreement shall take
place at a closing (the "Closing") to be held at the offices
of Fraser River Metals Depot Inc., on the date hereof or at
such other place or at such other time or on such other date
as Seller and Purchaser may mutually agree upon in writing
(the day on which the Closing takes place being the "Closing
Date").
Article 9 (Consent)
(a) The Seller shall use reasonable efforts to obtain any
required consents to assignment of all contracts, licenses,
sublicenses, agreements and leases included among the
Assets, and shall use its best efforts to obtain the consent
of the landlord to assignment of the Fraser Lease; provided,
however, that Seller shall not be required to pay any amount
to any person to obtain any such consents. Purchaser shall
use its best effort in assisting and cooperating with Seller
to obtain the consent of the landlord to the assignment of
the Fraser Lease.
Article 10 (Indemnification)
(a) Seller shall be indemnified and held harmless by
Purchaser for any and all Losses arising out of or resulting
from (i) the Liabilities, (ii) the Assets.
(b) In no event shall the Seller or the Purchaser be liable
for consequential damages under this Agreement or any
documents or instruments delivered by such parties at the
Closing.
Article 11 (Representations and Warranties.)
(a) Seller and Purchaser each hereby represents and warrants
to the other that (i) it is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all necessary
corporate power and authority to enter into this Agreement
and any agreements ancillary hereto, to carry out its
obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby; (ii) the
execution and delivery of this Agreement and any agreements
ancillary hereto by it, the performance by it of its
obligations hereunder and thereunder and the consummation by
it of the transactions contemplated hereby and thereby have
been duly authorized and approved by all requisite action on
its part; and (iii) this Agreement has been, and upon their
execution any agreements ancillary hereto will be, duly
executed and delivered by it, and (assuming due authorization,
execution and delivery by the other party) this Agreement
constitutes, and upon their execution any agreements
ancillary hereto will constitute, legal, valid and binding
obligations of it enforceable against it in accordance with
their respective terms.
(b) Seller hereby represents and warrants to Purchaser that
it has not received from the landlord under the Fraser Lease
prior to the Closing any written notice of default under
such lease which remains uncured as of the date hereof.
(c) EXCEPT WITH RESPECT TO THE EXPRESS REPRESENTATIONS AND
WARRANTIES SPECIFICALLY SET FORTH HEREIN, SELLER MAKES NO,
AND EXPRESSLY DISCLAIMS ANY, REPRESENTATION OR WARRANTY OF
ANY KIND OR NATURE, EXPRESS OR IMPLIED, ORAL OR WRITTEN,
WHETHER OF MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OR QUALITY OF THE ASSETS, OR ANY
PART THEREOF, OR AS TO THE CONDITION, WORKMANSHIP OR
VALUE THEREOF OR THE ABSENCE OF ANY DEFECTS THEREIN,
WHETHER LATENT OR PATENT. IT IS UNDERSTOOD BY THE
PARTIES THAT THE ASSETS ARE TO BE CONVEYED HEREUNDER "AS-IS"
AND "WHERE-IS" ON THE CLOSING DATE AND IN THEIR THEN
PRESENT CONDITION, AND THE PURCHASER SHALL RELY
SOLELY UPON ITS OWN INVESTIGATION AND EXAMINATION
THEREOF.
Article 14 (Further Action)
(a) Each of the parties hereto shall use all reasonable
efforts to take, or cause to be taken, all appropriate
action, do or cause to be done all things necessary, proper
or advisable under applicable law, and execute and deliver
such documents and other papers, as may be required to carry
out the provisions of this Agreement and consummate and make
effective the transactions contemplated hereby.
Article 15 (Expenses)
(a) All costs and expenses, including, without limitation,
fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the
party incurring such costs and expenses, whether or not the
Closing shall have occurred.
Articles 16 (Headings)
(a) The descriptive headings contained in this Agreement are
for convenience of reference only and shall not affect in
any way the meaning, construction or interpretation of this
Agreement.
Article 17 (Severability)
(a) If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any law
or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such
determination that any term or other provision
is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties
as closely as possible in an acceptable manner in order that
the transactions contemplated hereby are consummated as
originally contemplated to the greatest extent possible.
Article 18 (Entire Agreement)
(a) This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, representations,
undertakings and understandings, both written and oral,
between Seller and Purchaser with respect to the subject
matter hereof.
Article 19 (Assignment)
(a) This Agreement may not be assigned by operation of law
or otherwise without the express written consent of Seller
and Purchaser (which consent may be granted or withheld in
the sole discretion of Seller and Purchaser).
Article 20 (No Third Party Beneficiaries)
(a) This Agreement shall be binding upon and inure solely to
the benefit of the parties hereto and their permitted
assigns and nothing herein, express or implied, is intended
to or shall confer upon any other person, including, without
limitation, any employee or former employee of Seller, any
legal or equitable right, benefit or remedy of any
nature whatsoever, including, without limitation, any rights
of employment for any specified period, under or by
reason of this Agreement.
Article 21 (Amendment)
(a) This Agreement may not be amended, modified or
supplemented except by an instrument in writing signed by,
or on behalf of, Seller and Purchaser.
Article 22 (Counterparts)
(a) This Agreement may be executed in one or more
counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together
shall constitute one and the same agreement.
Article 23 (Specific Performance)
(a) The parties hereto agree that irreparable damage would
occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or
equity, without the necessity of demonstrating the
inadequacy of money damages.
IN WITNESS WHEREOF, Seller and Purchaser have caused this
Agreement to be executed by their respective officers
"hereunto duly authorized as of the date first written
above.
BROWNSVILLE COMPANY
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Chief Executive Officer and Director
Fraser River Metals Depot Inc.
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: President and Director
