EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is dated for reference as of the 26th day of August, 2002.
BETWEEN:
▇▇▇▇▇ FEDERAL WAY INC. a company organized under the laws of the State
of Washington with an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇.▇.▇. ▇▇▇▇▇-▇▇▇▇
(the "Vendor")
AND:
DIGITALE TELEKABEL AG, a corporation governed by the laws of the
Republic of Germany, with an address at ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
(the "Purchaser")
WHEREAS:
A. The Vendor owns certain Assets in the State of Washington; and
B. The Vendor has agreed to sell and the Purchaser has agreed to purchase the
Assets described herein on the terms and conditions set forth in this
Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants set out in this Agreement, the parties represent, warrant, covenant
and agree as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS. In this Agreement and the recitals hereto:
(a) "Assets" means the beneficial interest in and to the following:
(i) the Lands;
(ii) all actual and proposed plans and specifications in the Vendor's
possession or under its control relating to buildings,
structures, improvements and fixtures situated on the Lands,
including all
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such electrical, mechanical and structural drawings related
thereto as are in the possession or under the control of the
Vendor; and
(iii) all permits and licenses relating to the Land, to the extent
transferable.
(b) "Business Day" means a day that is not a Saturday, Sunday or statutory
holiday in British Columbia;
(c) "Closing Date" means September 30, 2002 or such other date as the
parties hereto may mutually agree;
(d) "Completion" means the completion of the transfer of the Assets by the
Vendor to the Purchaser in accordance with the terms of this
Agreement;
(e) "GAAP" means generally accepted accounting principles in Canada;
(f) "Mortgage" means the mortgage on the Lands in the approximate amount
of $350,000 and all accrued interest thereunder held by SFG Income
Fund IV, LLC, as mortgagor;
(g) "Lands" means the real property assets of the Vendor, including those
set forth in Schedule A; and
(h) "Taxes" means all taxes, charges, duties, customs, levies, local
improvement district fees or other assessments relating to the Lands
by any taxing authority or other governmental body, accrued or
otherwise.
1.2 GENDER AND NUMBER. In this Agreement, unless the context otherwise
requires, words importing the singular include the plural and vice-versa and
words importing gender include all genders and the word "including" is not
limiting (whether or not non-limiting language is used with reference thereto).
1.3 SECTIONS AND HEADINGS. The divisions of this Agreement into Articles,
sections and subsections and the insertion of headings are for reference
purposes only and shall not affect the interpretation of this Agreement. Unless
otherwise indicated, any reference herein to a particular Article, section,
subsection or Schedule refers to the specified Article, section or subsection of
or Schedule to this Agreement.
1.4 ACCOUNTING PRINCIPLES. All accounting terms not otherwise defined in this
Agreement shall have the meanings ascribed to them, and every calculation to be
made hereunder is to be made, in accordance with GAAP applied consistently.
1.5 CURRENCY. All amounts referred to in this Agreement are stated and payable
in U.S. dollars.
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1.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of British Columbia.
1.7 SCHEDULES. The following are the Schedules to this Agreement and form an
integral part thereof:
Schedule A - Lands
ARTICLE 2
TRANSFER OF ASSETS AND PURCHASE PRICE
2.1 TRANSFER OF ASSETS. Subject to and in accordance with the terms and
conditions of this Agreement, the Vendor hereby agrees to sell, assign and
transfer the Assets to the Purchaser and the Purchaser hereby agrees to purchase
the Assets on the Closing Date, in consideration for the payment of the purchase
price of $2,650,000 less the Mortgage and Taxes as at the Closing Date (the
"Purchase Price").
2.2 TRUST. The Vendor hereby transfers the beneficial interest in the Assets to
the Purchaser and agrees to hold the legal interest in the Assets in trust for
the Purchaser. The Vendor agrees to transfer, at the Purchaser's expense, the
legal interest in the Assets, or any part thereof, to the Purchaser or at the
Purchaser's direction within 30 days after it receives written notice from the
Purchaser.
2.3 PAYMENT OF PURCHASE PRICE. The Purchaser will pay the Purchase Price by
delivering to the Vendor by electronic wire transfer, a certified cheque or bank
draft payable in immediately available funds in the amount of the Purchase Price
on Completion.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 VENDOR'S REPRESENTATIONS AND WARRANTIES. The Vendor represents and warrants
to the Purchaser as follows and acknowledges that the Purchaser is relying on
such representations and warranties in connection with its purchase of the
Assets:
(a) ORGANIZATION AND POWER - the Vendor is a corporation duly organized
and validly existing under the laws of the State of Washington and has
the power, authority and capacity to enter into this Agreement on the
terms and conditions herein set forth and to carry out the
transactions contemplated by this Agreement;
(b) DUE AUTHORIZATION - the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereunder have been
duly authorized by all necessary corporate action on the part of the
Vendor;
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(c) ENFORCEABLE AGREEMENT - this Agreement has been duly executed and
delivered by the Vendor and constitutes a legal, valid and binding
obligation of the Vendor, enforceable by the Purchaser against the
Vendor in accordance with its terms, subject to the availability of
equitable remedies and the enforcement of creditors' rights generally;
(d) RESIDENCY - the Vendor is not, and will not on Completion, be a
non-resident of the United States for the purposes of the United
States Internal Revenue Code;
(e) REAL PROPERTY - the Vendor has legal and beneficial title in fee
simple to the Lands, free and clear of any liens, pledges, charges,
claims and other encumbrances, other than the Mortgage and Taxes; and
(f) LIABILITIES - the Vendor does not have any debts, liabilities, or
obligations of any nature, whether accrued, absolute, contingent or
otherwise (including those imposed by operation of law), for which the
Purchaser may become liable as a result of the transactions
contemplated by the Agreement, except for the Taxes and the Mortgage.
3.2 CONDITION OF ASSETS. The Purchaser hereby acknowledges that it has had the
opportunity to examine the Assets and is fully aware of the state of the Assets
are to be transferred to it on an "as-is-where-is" basis and that the Vendor has
not made, nor has the Purchaser relied upon, any representation, warranty,
condition or collateral agreement, express, implied or statutory, as to the
nature, quality, condition, enforceability, legal status or fitness for any
particular purpose of any of the Assets, any environmental matters or conditions
in respect of the Assets or the existence, effect or potential effect of any
native land claims or similar claims in respect of aboriginal rights or title
relating to any of the Assets.
3.3 PURCHASER'S REPRESENTATIONS AND WARRANTIES. The Purchaser represents and
warrants to the Vendor as follows and acknowledges that the Vendor is relying on
such representations and warranties in connection with the sale of the Assets:
(a) ORGANIZATION AND POWER - the Purchaser is a corporation duly organized
and validly existing under the laws of the jurisdiction of its
incorporation and has the power, authority and capacity to enter into
this Agreement on the terms and conditions herein set forth and to
carry out the transactions contemplated by this Agreement;
(b) DUE AUTHORIZATION - the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereunder have been
duly authorized by all necessary corporate action on the part of the
Purchaser; and
(c) ENFORCEABLE AGREEMENT - this Agreement has been duly executed and
delivered by the Purchaser and constitutes a legal, valid and binding
obligation of the Purchaser, enforceable by the Vendor against the
Purchaser in accordance with its
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terms, subject to the availability of equitable remedies and the
enforcement of creditors' rights generally.
ARTICLE 4
COVENANTS
4.1 OPERATIONS PENDING COMPLETION. The Vendor shall, from the date of this
Agreement until Completion, except as otherwise contemplated by this Agreement:
(a) maintain or cause to be maintained insurance on the Assets as they are
insured on the date of this Agreement;
(b) do all repairs and maintenance to the Assets as is necessary or
advisable in the ordinary and normal course of operation; and
(c) not enter into any agreement or transaction which would result in:
(i) the creation of any lien, mortgage, charge, encumbrance or
security interest on any of the Assets other than the Mortgage
and the Taxes; or
(ii) the sale, lease or other disposition of any of its Assets.
ARTICLE 5
CONDITIONS OF CLOSING
5.1 PURCHASER'S CONDITIONS. The obligation of the Purchaser to complete the
sale of the Assets contemplated by this Agreement is subject to fulfillment of
the following conditions by the Vendor on or before the Closing Date:
(a) approval of the transactions contemplated by this Agreement by the
Supervisory Board of the Purchaser to be appointed at the meeting of
shareholders of the Purchaser to be held on September 24, 2002 or any
adjournment or postponement thereof (the "Shareholders Meeting");
(b) the Purchaser obtaining requisite shareholder approval of the proposed
amendments to the Articles of Association of the Purchaser to be voted
on at the Shareholders Meeting;
(c) the Purchaser obtaining an independent appraisal of the Lands
satisfactory to the Purchaser, in its sole discretion, confirming that
the value of the Lands is equal to or greater than $2,650,000; and
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(d) the Vendor's representations and warranties contained herein shall be
true and correct on the Closing Date as if such representations and
warranties had been made on and as of the Closing Date.
The foregoing conditions are inserted for the benefit of the Purchaser and
may be waived in whole or in part only if waived by the Purchaser.
ARTICLE 6
ASSUMPTION OF LIABILITIES AND RELATED INDEMNITIES
6.1 ASSUMPTION OF LIABILITIES. On Completion the Purchaser shall assume and be
responsible for:
(a) the Mortgage and Taxes; and
(b) all obligations and liabilities of the Vendor relating to the
environmental condition of the Assets, regardless of whether such
condition arose prior to the Closing Date.
6.2 INDEMNITY. Except for any obligations which relate to a claim against the
Vendor for breach of any warranty, representation or covenant of the Vendor
under this Agreement for which the Vendor is or remains responsible under this
Agreement, the Purchaser shall indemnify and save the Vendor and its employees,
officers, directors and agents harmless from and against any claim, demand,
action, cause of action, loss, damage, cost, fine, penalty or expense whatever,
including legal fees suffered or incurred, directly or indirectly, by any of
them by reason of the failure of the Purchaser to pay or discharge any of the
obligations referred to in section 6.1.
6.3 CLAIMS FOR INDEMNITY. No claim by the Vendor for indemnity under this
Article 6 shall be made unless prompt notice of any claim, action, proceeding or
circumstances that could reasonably give rise to such a claim is given by the
party making the claim (the "Claimant") to the party which is responsible for
the claim under this Agreement (the "Obligant") except that the inadvertent
failure to give such prompt notice shall not preclude the Claimant from pursuing
such a claim unless and to the extent that the Obligant is prejudiced by such
failure. An Obligant may, and shall, if directed to do so by the Claimant, at
its own expense and in the name of the Claimant or otherwise, dispute any claim
made, or any matter on which a claim could be made by a third party, in respect
of which a notice has been given by a Claimant under this section and may retain
counsel of its choice to have conduct of any proceeding relating to such a
claim. For the purpose of confirming or disputing such a claim, a Claimant shall
provide full and complete disclosure to the Obligant and complete access to and
right of inspection, by the Obligant's representatives of all documents and
records in the possession or control of the Claimant relating to any such claim.
If an Obligant is required to furnish any security for the purpose of defending
or contesting the subject matter of any Claim, all money or property
representing such security received by the Claimant as a result of a successful
defence or contestation shall be held in trust by the Claimant for the benefit
of the Obligant and shall be remitted to the Obligant on demand.
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6.4 PAYMENT OF TAXES ON SALE AND TRANSFER. The Purchaser shall be responsible
for and shall pay when due any property transfer taxes, sales taxes, social
services taxes, goods and services tax or similar taxes and any registration,
transfer or other fees payable in respect of the sale and transfer of the Assets
to the Purchaser, but excluding any income taxes which may be payable by the
Vendor in connection with the transfer of the Assets to the Purchaser.
ARTICLE 7
RISK OF LOSS
7.l RISK OF LOSS. Until Completion, the Assets shall be and remain at the risk
of the Vendor.
7.2 PRE-COMPLETION LOSS. Notwithstanding any other provision of this Agreement,
if prior to Completion any of the Assets are destroyed or damaged by fire or any
other casualty or shall be expropriated or seized by any governmental or other
lawful authority, the proceeds of insurance or compensation for such
expropriation or seizure paid or payable to the Vendor shall, to the extent not
applied to the repair or replacement of the subject Assets prior to Completion,
be deemed to be included in the Assets without any adjustment to the Purchase
Price and the Purchaser shall accept such proceeds, or the right to recover
them, in replacement for the Assets so destroyed, damaged or expropriated.
ARTICLE 8
COMPLETION
8.1 VENDOR'S COMPLETION DOCUMENTS. On or before Completion, the Vendor shall
deliver, or cause to be delivered, the following to the Purchaser:
(a) all deeds, bills of sale, transfers and assignments which are required
to transfer the Assets, or the interest of the Vendor therein, to the
Purchaser, as the Purchaser may reasonably require, in registrable
form where applicable;
(b) a declaration of trust in form and substance satisfactory to the
Purchaser in its sole discretion;
(c) a certified copy of a resolution of the directors and shareholders of
the Vendor authorizing the entering into, execution and delivery of
this Agreement by the Vendor and the sale of the Assets as
contemplated by this Agreement; and
(d) such other documents as the Purchaser may reasonably require.
8.2 PURCHASER'S COMPLETION DOCUMENTS. On or before Completion, the Purchaser
shall deliver the following to the Vendor:
(a) confirmation of electronic wire transfer, a certified cheque or bank
draft pursuant to section 2.3 herein;
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(b) such documents as the Vendor may reasonably require in order to
reflect the assumption by the Purchaser of the liabilities and
obligations to be assumed by the Purchaser as contemplated by this
Agreement; and
(c) a certified copy of resolutions of the directors of the Purchaser
authorizing the entering into, execution and delivery of this
Agreement, the purchase of the Assets as contemplated by this
Agreement.
8.3 TERMS OF COMPLETION. Completion shall not occur, nor shall the documents
tabled for delivery at Completion be delivered, until all obligations of the
Vendor and the Purchaser hereunder to be performed on or before Completion have
been completed.
8.4 BOOKS AND RECORDS. Following Completion, the Vendor shall deliver or make
available to the Purchaser all books and records pertaining to the Assets and
such other records or copies thereof in the possession or control of the Vendor.
ARTICLE 9
POST COMPLETION MATTERS
9.1 POSSESSION FOLLOWING COMPLETION. From and after Completion:
(a) the Purchaser shall be entitled to take possession of and enjoy the
Assets; and
(b) the Assets shall be at the risk of the Purchaser.
ARTICLE 10
SURVIVAL OF REPRESENTATIONS WARRANTIES AND COVENANTS
10.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of each party contained in this Agreement shall merge upon and shall
not survive Completion.
10.2 SURVIVAL OF COVENANTS. The covenants of each party contained in this
Agreement shall survive Completion.
ARTICLE 11
GENERAL PROVISIONS
11.1 WAIVER OF SITE PROFILE REQUIREMENTS. The Purchaser hereby waives all
rights to receive a site profile or such other similar disclosure document with
respect to each of the Lands.
11.2 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter of this Agreement and supersedes
every previous agreement, communication, expectation, negotiation,
representation or understanding, whether oral or
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written, express or implied, statutory or otherwise, among the parties with
respect to the subject matter of this Agreement except as specifically set out
herein.
11.3 NO OTHER REPRESENTATION. No director, officer, employee or agent of any
party has any authority to make any representation, warranty or covenant not
contained in this Agreement, and each party agrees that it has executed this
Agreement without reliance upon any such representation or promise.
11.4 WAIVER AND CONSENT. No consent or waiver, express or implied, by either
party to or of any breach or default by the other of any or all of its
obligations under this Agreement will be valid unless it is in writing, nor
shall it eliminate or modify the need for a specific consent or waiver in any
other or subsequent instance.
11.5 AMENDMENTS. This Agreement may not be amended except by written agreement
among all the parties to this Agreement.
11.6 ASSIGNMENTS. Neither party may assign any right, benefit or interest in
this Agreement without the written consent of the other.
11.7 BINDING EFFECT. This Agreement shall enure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted
assigns.
11.8 TIME OF ESSENCE. Time is of the essence of this Agreement.
11.9 FURTHER ASSURANCES. Each party shall, at its own expense, execute and
deliver all such further agreements and documents and do such further acts and
things as may be reasonably required to give effect to this Agreement.
11.10 NOTICES. Every notice, request, demand or communication required or
permitted to be given under this Agreement shall be in writing and delivered by
hand or facsimile transmission to the party which it is to be given as follows:
TO THE VENDOR:
c/o ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President and Chief Executive Officer
TO THE PURCHASER:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇
- ▇▇ -
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Facsimile: 49 30 2094 5811
Attention: President and Chief Executive Officer
or to such other address or facsimile number as is specified by a party by
notice to the other party given in accordance with this section. Any such
notice, demand, request or direction shall be deemed to have been given and
received if delivered, on the next Business Day after the day of delivery, and
if sent by facsimile transmission, on the first Business Day after the day of
transmittal.
11.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts with the same effect as if all parties had signed the same
document. All counterparts will constitute one and the same agreement. This
Agreement may be executed and transmitted by facsimile transmission and if so
executed and transmitted this Agreement will be for all purposes as effective as
if the parties had delivered an executed original Agreement.
EXECUTED as of the day and year first above written.
▇▇▇▇▇ FEDERAL WAY INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
DIGITALE TELEKABEL AG
By:_________________________________________
Name:_______________________________________
Title:______________________________________
SCHEDULE A
LANDS
PARCEL A:
The north 425 feet of the south 810 feet of the following described property:
ALL that portion of the northwest quarter of the northeast quarter of Section
▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇, ▇.▇. in King County, Washington, lying
westerly of Pacific Highway South, which is also known as ▇▇▇▇▇ ▇▇▇▇ #▇ ▇▇▇/▇▇
▇▇▇▇▇▇▇ 99, as conveyed to the state of Washington by deed recorded September
11, 1923 under Recording No. 1778238 and lying ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇. as
conveyed to King County by deed recorded March 2, 1910 under Recording No.
669248.
PARCEL B:
ALL that portion of the northwest quarter of the northeast quarter of Section
29, Township 21 North, Range 4 East, ▇.▇., in ▇▇▇▇ County, Washington, lying
westerly of Pacific Highway 99, as conveyed to the State of Washington by deed
recorded September 11, 1923 under Recording No. 1778238; and lying ▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇. as conveyed to King County by deed recorded March 2, 1910 under
Recording No. 669248. EXCEPT the south 810 feet thereof.