Exhibit 10.2
CONTRACT FOR LEASE, SALE AND PURCHASE OF YACHT
This contract for sale and purchase, hereinafter referred to as "Contract" or
"Agreement", is executed this 19th day of August, 2002, by and between ▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇, hereinafter referred to as "Seller-Lessor", and
Southwest Charters, Inc., hereinafter referred to as "Buyer".
WITNESSETH:
WHEREAS, Seller-Lessor is the owner of Seller-Lessor's property, situated and
located in San Diego County, State of California, more particularly described in
Exhibit "A" attached hereto and made a part hereof, hereinafter referred to as
the "Property"; and WHEREAS, Buyer desires to purchase Seller-Lessor's property
and Seller-Lessor desires to sell said property to Buyer;
NOW, THEREFORE, for and in consideration of the mutual covenants and promises
hereinafter contained, the Seller-Lessor agrees to sell and the Buyer agrees to
buy the "Property" upon the following terms and conditions.
1. PURCHASE PRICE AND METHOD OF PAYMENT. Buyer shall pay and Seller-Lessor shall
accept the purchase price for the property in the manner of payment therefor set
forth in Exhibit "B" attached hereto and made a part hereof.
1a. LEASE PAYMENT. Until such time as the purchase price has been paid in full,
Buyer shall be entitled to lease the property in exchange for the transfer of
1,666,667 shares of common stock of the Buyer previous issued to ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇.
2. CLOSING. The closing of the transactions contemplated by this agreement,
hereinafter referred to as "The Closing", shall be held at the office of Buyer,
or at such other place, date and time as the parties hereto may otherwise agree
(such date to be referred to in this agreement as the "Closing Date").
3. REPRESENTATIONS AND WARRANTIES OF SELLER-LESSOR. Seller-Lessor represents and
warrants to Buyer the correctness, truthfulness and accuracy of the matters
shown on Exhibit "C" attached hereto, all of which shall survive closing. In
addition, Seller-Lessor represents and warrants to Buyer that the documents
enumerated in Exhibit "D" attached hereto and made a part hereof, are true,
authentic and correct copies of the original, or, if appropriate, the originals
themselves, and no alterations or modifications thereof have been made.
4. REPRESENTATIONS AND WARRANTIES. Buyer and Seller-Lessor hereby represent and
warrant the following:
a. Brokers. There has been no act or omission by Buyer or Seller-Lessor which
would give rise to any valid claim against any of the parties hereto for a
brokerage commission, finder's fee, or other like payment in connection with the
transactions contemplated hereby.
5. TRANSACTIONS PRIOR TO CLOSING. Seller-Lessor hereby covenants the following:
a. Conduct of Seller-Lessor's Business Until Closing. Except as Buyer may
otherwise consent in writing prior to the Closing Date, Seller-Lessor will not
enter into any transaction, take any action or fail to take any action which
would result in, or could reasonably be expected to result in or cause any of
the representations and warranties of Seller-Lessor contained in this Agreement
to be void, invalid or false on the Closing Date.
b. Transfers. Seller-Lessor shall deliver to Buyer prior to the Closing Date,
such transfers as Buyer shall indicate, each such transfer to be effective on
the Closing Date.
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c. Satisfactions. Seller-Lessor shall deliver to Buyer on the Closing Date a
satisfaction of any encumbrance or lien on the property satisfactory in form and
substance to the Buyer indicating that the then outstanding unpaid principal
balance of any promissory note secured thereby has been paid in full prior to or
simultaneously with the closing.
d. Advice of Changes. Between the date hereof and the Closing Date,
Seller-Lessor will promptly advise Buyer in writing of any fact which, if
existing or known at the date hereof, would have been required to be set forth
herein or disclosed pursuant to this Agreement.
e. Documents. Seller-Lessor shall deliver to Buyer at closing such documents
which are, in Buyer's sole discretion, necessary to fully satisfy the objectives
of this Agreement in content and form reasonably intended to do so.
6. EXPENSES. Each of the parties hereto shall pay its own expenses in connection
with this Agreement and the transactions contemplated hereby, including the fees
and expenses of its counsel and its certified public accountants.
7. GENERAL.
a. Survival of Representations and Warranties. Each of the parties to this
Agreement covenants and agrees that their respective representations,
warranties, covenants, statements, and agreements contained in this Agreement
shall survive the Closing Date and terminate on the second anniversary of such
date. Except as set forth in this Agreement, the exhibits hereto or in the
documents and papers delivered by Seller-Lessor to Buyer in connection herewith,
there are no other agreements, representations, warranties, or covenants by or
among the parties hereto with respect to the subject matter hereof.
b. Waivers. No action taken pursuant to this Agreement, including any
investigation by or on behalf of any party shall be deemed to constitute a
waiver by the party taking such action of compliance with any representation,
warranty, covenant or agreement contained herein or therein and in any documents
delivered in connection herewith or therewith. The waiver by any party hereto of
a breach of any provision of this Agreement shall not operate or be construed as
a waiver of any subsequent breach.
c. Notices. All notices, requests, demands and other communications which are
required or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given if delivered or mailed, first class mail, postage
prepaid, To Seller-Lessor:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Buyer:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
#▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address as such party shall have specified by notice in writing
to the other party.
d. Sections and Other Headings. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretations of this Agreement.
e. Governing Law. This agreement, and all transactions contemplated hereby,
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shall be governed by, construed and enforced in accordance with the laws of the
State of California. The parties herein waive trial by jury and agree to submit
to the personal jurisdiction and venue of a court of subject matter jurisdiction
located in San Diego County, State of California. In the event that litigation
results from or arises out of this Agreement or the performance thereof, the
parties agree to reimburse the prevailing party's reasonable attorney's fees,
court costs, and all other expenses, whether or not taxable by the court as
costs, in addition to any other relief to which the prevailing party may be
entitled. In such event, no action shall be entertained by said court or any
court of competent jurisdiction if filed more than one year subsequent to the
date the cause(s) of action actually accrued regardless of whether damages were
otherwise as of said time calculable.
f. Conditions Precedent. The Conditions Precedent to the enforceability of this
Agreement are outlined more fully in Exhibit "E", attached hereto and made a
part hereof. In the event that said Conditions Precedent are not fulfilled by
the appropriate dates thereof, then this Agreement shall be deemed null and void
and any deposits paid at said time shall be returned to the Buyer forthwith.
g. Captions. The Captions of this contract are for convenience and reference
only and in no way define, describe, extend, or limit the scope or intent of
this contract, or the intent of any provisions hereof.
h. Typewritten or Handwritten Provisions. Hand-written provisions inserted in
this contract and typewritten provisions initialed by both parties shall control
over the typewritten provisions in conflict therewith.
i. Time of the Essence. Time and timely performance are of the essence of this
contract and of the covenants and provisions hereunder.
j. Successors and Assigns. Rights and obligations created by this contract shall
be binding upon and inure to the benefit of the parties hereto, their successors
and assigns. Whenever used, the singular number shall include the plural, the
plural the singular, and the use of any gender shall include all genders.
k. Contractual Procedures. Unless specifically disallowed by law, should
litigation arise hereunder, service of process therefore may be obtained through
certified mail, return receipt requested; the parties hereto waiving any and all
rights they may have to object to the method by which service was perfected.
l. Extraordinary Remedies. To the extent cognizable at law, the parties hereto,
in the event of breach and in addition to any and all other remedies available
thereto, may obtain injunctive relief, regardless of whether the injured party
can demonstrate that no adequate remedy exists at law.
8. AMENDMENTS OR ADDENDA. All amendments, addenda, modifications, or changes to
this contract are shown on Exhibit "F", attached hereto and made a part hereof.
9. INITIALS AND EXHIBITS. This contract shall not be valid and enforceable
unless it is properly executed by Buyer and Seller-Lessor and their initials
affixed to each page of the exhibits attached hereto and made a part hereof.
IN WITNESS WHEREOF, this Agreement has been executed by each of the individual
parties hereto and signed by an officer thereunto duly authorized and attested
under the corporate seal of the Secretary of the Corporate party hereto, if any,
all on the date and year first above written.
Signed, sealed and delivered in the presence of:
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SELLER-LESSOR:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
BUYER
(CORPORATE SEAL) (CORPORATE NAME)
BY:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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EXHIBIT "A"
PROPERTY DESCRIPTION
All interests associated with or relating to that certain vessel named "U Baby",
hull identification number HUN34449F001 located at Marina ▇▇▇▇▇▇ in San Diego,
California, including, but not limited to improvements, inventory, fixtures, and
any and all other items normally considered and commonly referred to as part of
the vessel.
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EXHIBIT "B"
AMOUNT AND PAYMENT OF PURCHASE PRICE
a. CONSIDERATION As total consideration for the purchase and sale of the
property, the Buyer shall assume all payments owed by the Seller-Lessor for the
vessel, such total consideration to be referred to in this Agreement as the
"Purchase Price".
b. PAYMENT. The Purchase Price shall be paid as it comes due and owing to
Seller-Lessors.
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EXHIBIT "C"
REPRESENTATIONS AND WARRANTIES OF SELLER-LESSOR
a. Authority Relative to this Agreement. Except as otherwise stated herein, the
Seller-Lessor has full power and authority to execute this Agreement and carry
out the transactions contemplated by it and no further action is necessary by
the Seller-Lessor to make this Agreement valid and binding upon Seller-Lessor
and enforceable against it in accordance with the terms hereof, or to carry out
the actions contemplated hereby. The execution, delivery and performance of this
Agreement by the Seller-Lessor will not (i) constitute a breach or a violation
of the Corporation's Certificate of Incorporation, By-Laws, or of any law,
agreement, indenture, deed of trust, mortgage, loan agreement or other
instrument to which it is a party, or by which it is bound; (ii) constitute a
violation of any order, judgment or decree to which it is a party or by which
its assets or properties is bound or affected; or (iii) result in the creation
of any lien, charge or encumbrance upon its assets or properties, except as
stated herein.
b. Tax Matters. The Seller-Lessor has timely prepared and filed all federal,
state and local tax returns and reports as are and have been required to be
filed and all taxes shown thereon to be due have been paid in full, including
but not limited to, sales tax, withholding tax and all other taxes of every
nature.
c. Properties. The Seller-Lessor has good and merchantable title to all of its
properties and assets which are those properties and assets as set out in
Exhibit "A" annexed hereto and made a part hereof. At Closing, such properties
and assets will be subject to no mortgage, pledge, lien, conditional sales
agreement, security agreement, encumbrance or charge, secured or unsecured,
except for those taxes which shall be pro-rated as of the date of Closing.
Seller-Lessor has or will pay all debts incurred by it up to the date of
occupancy by Buyer including all employee compensation and utilities.
d. Compliance with Applicable Laws. None of the Seller-Lessor's actions in
transferring good and merchantable title to those assets and properties set out
in Exhibit "A" are prohibited by or have violated or will violate any law in
effect on the date of this Agreement or on the date of closing.
e. Documents for Review. The Seller-Lessor's documents enumerated in Exhibit "D"
are true, authentic, and correct copies of the originals, or, as appropriate,
the originals themselves, and no alterations and modifications thereof have been
made.
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EXHIBIT "D"
DOCUMENTS FOR REVIEW
i. Certificate of Documentation
ii. First Preferred Ship Mortgage Agreement
iii. ▇▇▇▇ of Sale
iv. First New England Financial Loan Closing Statement
v. Cover Letter for payment of sales tax
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