1 This Offer is made as of ____________________, 2011. TO:
Transcription
1 This Offer is made as of ____________________, 2011. TO:
1 OFFER TO PURCHASE This Offer is made as of ____________________, 2011. TO: WOLRIGE MAHON LIMITED, Interim Receiver of Golden Timber Frames Limited Partnership, Golden Timber Frames Ltd. (collectively, the “Debtors”) (the “Vendor”) FROM: (the“Purchaser”) 1. PURCHASE 1.1. Purchase Offer – The Purchaser hereby offers to purchase from WOLRIGE MAHON LIMITED, in its capacity as Interim Receiver of the Debtors, all of the Vendor’s rights, title and interest in certain Assets of one or more of the Debtors described in Schedule A hereto (the “Assets”), free and clear of all encumbrances. 1.2. Acceptance By Vendor - The acceptance of this Offer by the Vendor shall convert this Offer into a binding agreement for the sale and purchase of the Assets in accordance with the terms and conditions contained herein. 2. PRICE, PAYMENT AND DEPOSIT 2.1. Purchase Price - The purchase price payable by the Purchaser to the Vendor for the Assets shall be $___________________ (the “Purchase Price”) plus all applicable taxes. 2.2. Payment of Purchase Price - The Purchaser shall pay the Purchase Price, subject to the adjustments provided for hereunder, as follows: (a) the sum of $_________________ by way of deposit (the “Initial Deposit”), being 25% of the Purchase Price, shall be paid to the Vendor by way of a certified cheque or bank draft with this Offer To Purchase; 2 2.3. 2.4. (b) the sum of $_________________ by way of second deposit (the “Second Deposit”), being 25% of the Purchase Price, shall be paid to the Vendor within 3 Business Days of the Vendor accepting this Offer and delivering an executed copy to the Purchaser; (c) the balance of the Purchase Price shall be paid by the Purchaser to the Vendor by way of a certified cheque or bank draft, on the Closing Date, as defined in Section 5.1. Deposit - The Vendor and the Purchaser agree that the Initial Deposit will be paid as follows: (a) to the Vendor as liquidated damages if the purchase and sale contemplated by this Offer is not completed by reason of the Purchaser’s failure to pay the Second Deposit, as liquidated damages to the Vendor which the Vendor agrees shall be the Vendor’s only remedy for such default. (b) to the Purchaser if the Vendor does not accept the Offer. Deposit - The Vendor and the Purchaser agree that the Initial Deposit and Second Deposit will be paid as follows: (a) (b) to the Vendor: (i) on account of the Purchase Price contemporaneously with the completion of the sale and purchase contemplated by this Offer; or (ii) if the purchase and sale contemplated by this Offer is not completed by reason of the Purchaser’s default, as liquidated damages to the Vendor which the Vendor agrees shall be the Vendor’s only remedy for such default; to the Purchaser: (i) if the purchase and sale contemplated by this Offer is not completed by reason of the Vendor’s default; or (ii) if the sale and purchase contemplated by this Offer is not completed by reason of the Vendor’s Subject Condition not having been satisfied as set forth in Section 3. 3. CONDITION TO CLOSING 3.1. The obligation of the Purchaser and the Vendor to complete the transaction contemplated herein is subject to the Vendor obtaining an Order of the Supreme Court of British Columbia (the “Court Order”) in Action No. S-111702, Vancouver Registry: 3 (a) approving the sale of the Assets to the Purchaser in accordance with the terms of this Offer and vesting title to the Assets in the name of the Purchaser free and clear of all encumbrances ; and (b) authorizing the Vendor to execute such documents and take such action as may be necessary to convey and transfer legal title to the Assets to the Purchaser in accordance with the terms of this Offer, (together, the “Vendor’s Subject Condition”). The Vendor’s Subject Condition is to be fulfilled on or before 5:00 pm on or before the date which is 30 days following the Vendor’s acceptance of this Offer (the “Vendor’s Subject Removal Date”). If written notice of fulfillment of Vendor’s Subject Condition is not provided to the Purchaser by the Vendor’s Subject Removal Date, then failing further written agreement between the parties hereto this Offer shall become null and void and neither party shall have any further obligations to the other in respect of this Offer and the Deposit shall be returned to the Purchaser forthwith. 3.2. The Purchaser acknowledges and agrees that the Vendor’s obligations in connection with the Offer, until it is approved by the Court, are limited to putting this Offer before the Court. Thereafter, the Vendor is subject to the jurisdiction and discretion of the Court to entertain other offers and to any further Orders the Court may make regarding the Assets. The Vendor may be compelled to advocate that the Court consider other offers in order to obtain the highest price for the Assets. The Vendor gives no undertaking to advocate the acceptance of this Offer. The Purchaser must make the Purchaser’s own arrangements to support this Offer in Court. The Purchaser acknowledges that the Court approval process sometimes involves competing offers being made in Court and that the Court may adjourn, or delay the hearing of the matter to allow each of the potential buyers to submit to the Court a final sealed bid for the purchase of the Assets. In some cases the Court will rule on which sealed bid is approved on the same day. The Purchaser should be present in Court on the date set for the application for Court approval and should be prepared to submit a further offer that represents its highest and best offer for the purchase of the Assets. If the Court vacates, sets aside or varies an Order approving this Offer for any reason whatsoever (except any willful misconduct of the Vendor), then the Vendor will not be liable to the Purchaser or any other person in any way whatsoever, in connection therewith. The Vendor’s acceptance of this Offer may be withdrawn at any time before the Court makes an Order approving this Offer if the Assets is redeemed, or if the Vendor determines it is inadvisable to present this Offer to the Court, and the Vendor will have no further obligations or liability to the Purchaser under this Contract.3.2 4 4. PURCHASER’S DUE DILIGENCE 4.1. Due Diligence - The Purchaser at its own expense may carry out any and all due diligence investigations it determines necessary, acting reasonably. The Purchaser shall complete all due diligence and satisfy themselves as to the quality, quantity and condition of the Assets prior to submitting an offer. 4.2. Indemnity – The Purchaser will carry out such investigations in a professional and good and workman like manner. The Purchaser shall be responsible for and shall indemnify the Vendor and its affiliates, subsidiaries and associates against any and all liabilities, damages, liens, expenses, losses, costs and actions caused by the access to the Assets by the Purchaser or its advisors prior to the Closing Date. The Purchaser covenants to repair any damage to the Assets arising from such access and investigations on the Assets to the extent reasonably practicable. This covenant of indemnity and repair shall survive any termination of this Offer. 4.3. Reliance – The Purchaser confirms, understands and agrees that any information or documentation provided to the Purchaser by the Vendor is subject to change or error and that the Purchaser will, as part of its due diligence process, verify any such information or documentation and that the Purchaser shall not rely on information or documentation received from the Vendor in any manner whatsoever. 4.4. As Is/Where Is - The Purchaser confirms, understands and agrees that notwithstanding any other provision or clause contained in this Offer (including any schedule hereto): (a) the Purchaser is purchasing the Assets on a strictly, “as is, where is” basis as of the Closing Date. Without limiting the generality of the foregoing, the Purchaser acknowledges that the Vendor has not made, and will not make, any warranty or representation relating to the Assets whatsoever, whether as to size, fitness, design or condition of the Assets or its suitability for any particular purpose or use, nor as to the quality or dimensions of the Assets or any buildings or improvements located thereon. The Purchaser acknowledges and agrees that the Purchaser has relied entirely upon the Purchaser’s own inspection and investigation with respect to the quantity, quality, and value of the Assets, the permitted uses of the Assets pursuant to any regulatory restrictions.; (b) certain of the Assets may not be transferred or assigned, that the transfer and assignment of certain of the Vendor’s rights and interests thereunder may constitute or give rise to a breach or default thereunder, that certain of such rights and interests may only be transferred with the prior consent or approval of, and payment of money to, one or more third parties, that the Vendor shall not be responsible for obtaining, or liable for a failure to obtain, any of such consents or approvals, or to make any payment that may be required as a condition of such consent or approval and that the failure of the Purchaser to obtain any of such consents or approvals shall not relieve the Purchaser from its obligation to pay the Purchase Price; and 5 (c) the Purchaser agrees to assume, from and after the date hereof, full responsibility for obtaining and maintaining any and all required consents, governmental inspections, approvals, contractual obligations in respect of the Assets and full responsibility for remedying any defaults, deficiencies, non-conforming uses or other non-compliance with contractual obligations, applicable laws, bylaws, regulations, orders or registered restrictions relating thereto, and the Purchaser agrees that the Vendor is not and will not be responsible or liable for any of the foregoing. Notwithstanding the foregoing, the Vendor agrees to provide its reasonable cooperation, but at the expense of the Purchaser, to obtain any third party consents or approvals as may be required to effectively assign any of the Assets. 5. CLOSING DATE AND PROCEDURE 5.1. Closing Date – Subject to Section 3, the closing of the sale and purchase of the Assets as herein contemplated shall take place at the Vendor’s offices at 10:00 a.m. on or before the 5th Business Day after the Vendor’s Subject Removal Date provided that the Vendor’s Subject Condition is satisfied (the “Closing Date”). 5.2. Completion of Closing – Submission for registration of all the requisite documents in all appropriate offices of public record and all matters of payment and delivery of documents by each party to the other shall be deemed to be concurrent requirements of closing so that the closing shall not be completed hereunder until everything has been paid, delivered and submitted for registration. 6. COSTS AND TAXES 6.1. Removal Fees - The fees required to remove Assets upon purchase shall be paid by the Purchaser. 6.2. Cost to Clear Title - The cost of obtaining and registering any documents (other than the Court Order) required to clear title to the Assets of any encumbrances not constituting Permitted Encumbrances shall be borne by the Vendor. 6.3. Applicable taxes - The Purchase Price as defined in paragraph 2.1 is exclusive of all applicable taxes including but not limited to Harmonized Sales Tax (“HST”). On the closing date, the Purchaser is responsible for, and shall pay, any and all sales taxes applicable to the purchase of the Assets, to the Vendor. 7. POSSESSION AND RISK 7.1. Possession of Assets - Following payment of the balance of the Purchase Price on the Closing Date (the “Possession Date”), the Purchaser shall remove all Assets purchased within 10 business days. 6 7.2. Removal of Assets - The Purchaser is reminded that this offer is on an “as is where is basis” and that the Purchaser is responsible for the removal of all log inventory, sawn lumber, rough edged 1” and 2” lumber, dunnage and other lumber waste on site. 7.3. Risk - The Assets shall be at the risk of the Vendor until the completion of the closing of the sale and purchase herein contemplated and thereafter at the risk of the Purchaser. In the event of material loss or damage to the Assets occurring before the completion of the closing of the sale and purchase contemplated herein by reason of fire, tempest, lightning, earthquake, flood or other act of God, explosion, riot, civil commotion, insurrection, war or otherwise then the Purchaser may, at its option, cancel this Offer, in which case any Deposit shall be returned to the Purchaser; or close the sale and require the Vendor to assign to the Purchaser the proceeds of any insurance claim arising therefrom. 8. MISCELLANEOUS 8.1. Residency – The Vendor is not a non-resident of Canada within the meaning of the Income Tax Act (Canada). To the best of the Vendor's knowledge, the registered and beneficial owners of the Assets are not non-residents of Canada within the meaning of the Income Tax Act (Canada). 8.2. Currency - All dollar amounts referred to in this Offer are Canadian dollars. 8.3. Tender - Any tender of documents or money may be made upon the party being tendered or upon its solicitors and money may be tendered by solicitor's trust cheque or bank draft. 8.4. Time of Essence - Time is of the essence of this Offer, provided that the time for doing or completing any matter provided for herein may be extended or abridged by an agreement in writing signed by the Vendor and the Purchaser or by their respective solicitors who are hereby expressly appointed in this regard. 8.5. Construction - The division of this Offer into articles and sections and the insertion of headings are for convenience of reference only and are not to affect the construction or interpretation of this Offer. 8.6. Notices - Any notice to be given under this Offer shall be in writing and shall be validly given if delivered, telecopied or sent via email to the parties as follows: To the Purchaser at: Address _____________________________________ _____________________________________ _____________________________________ Email _____________________________________ 7 Phone No. (_____) _____________ Fax No. (_____) _____________ To the Vendor at: Wolrige Mahon Limited, in its capacity as Interim Receiver 900 – 400 Burrard Street Vancouver, British Columbia V6C 3B7 Attention: Raj Hara Fax No. (604) 688-3497 Email [email protected] or to such other address or telecopy number as a party may advise the other by written notice hereunder. Any notice addressed and provided as aforesaid shall be deemed to have been given on the day of delivery or transmission of the telecopy if a Business Day and if not a Business Day, then on the next Business Day or if mailed, on the third Business Day following the posting thereof, provided that if there is a postal strike, dispute or slowdown, notices shall only be effective if delivered or transmitted by telecopy. 8.7. Entire Agreement - This Offer, and the schedules attached hereto, constitutes the entire agreement between the parties pertaining to the sale and purchase of the Assets and supersedes all prior agreements, negotiations and discussions, whether oral or written, of the Vendor and the Purchaser. 8.8. Survival - All representations, warranties, covenants and agreements of the Purchaser and of the Vendor, if any, contained in this Offer shall survive the completion of the sale of the Assets. There are no representations, warranties, guarantees, premises, covenants or agreements made by the parties other than those set out herein. 8.9. Assignment – At any time prior to the date that the Vendor applies for the Order, the Purchaser shall have the right, with the consent of the Vendor, such consent not to be unreasonably withheld, to assign this Offer, provided that the Purchaser shall not be released from its obligations hereunder notwithstanding any such assignment(s). 8.10. Costs and Expenses - Each of the parties shall bear their own costs and expenses incurred or to be incurred in negotiating and preparing this Offer and in the closing of the transaction contemplated herein. 8 8.11. Severability - If any term or condition of this Offer or the application thereof to any person or circumstance shall, to any extent, be held to be invalid or unenforceable, the remainder of this Offer and the application of that term or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term and condition of this Offer shall be valid and enforced to the fullest extent permitted by law. 8.12. Further Assurances - Each of the parties shall at all times hereafter execute and deliver, at the request of another party, all such further documents and instruments and shall do and perform all such further acts as may be reasonably required by that other party to give full effect to the intent and meaning of this Offer. 8.13. References - Wherever the singular or masculine is used in this Offer, the same shall be deemed to include references to the plural, feminine or body corporate or politic, as the context may require. 8.14. Business Days - In this Offer, “Business Day” means Monday to Friday inclusive of each week, excluding days that are statutory holidays in British Columbia. 8.15. Governing Law - This Offer shall be governed by and construed in accordance with the laws of British Columbia and the laws of Canada applicable therein. The Vendor and the Purchaser agree to submit to the jurisdiction and the courts of British Columbia with respect to any dispute relating to this Offer or the purchase and sale transaction contemplated herein. 8.16. Binding Effect - This Offer shall enure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. 8.17. Execution by Facsimile and Counterpart - This Offer may be executed by the parties in any counterparts, each of which, when delivered, either in original, facsimile or other electronic form, shall be deemed to be an original and all of which together shall constitute one and the same instrument. 8.18. Schedules - The following attached and referred to in this Offer are an integral part of this Offer: Schedule A Description Description of Assets 8.19. Joint and Several - If a party to this Offer is comprised of more than one person, all covenants, obligations and liabilities of those persons shall be joint and several covenants, obligations and liabilities. 9 8.20. Harmonized Sales Tax - The Purchase Price does not include HST and on the Closing Date, the Purchaser will pay to the Vendor the amount of HST payable in respect of the transaction contemplated hereby, as agreed upon by both the Vendor and the Purchaser, acting reasonably, and the Vendor shall remit such amount directly to the Canada Revenue Agency. 9. ACCEPTANCE This Offer is open for acceptance by the Vendor in the manner described below until 5:00 p.m., Vancouver, British Columbia time, on April 29, 2011, and if not accepted on or before such time, shall be null and void. This Offer may only be accepted by the Vendor signing and delivering the same to the Purchaser on or before the above-specified time for acceptance to the Purchaser’s address or facsimile number as set out in Section 8.6. IN WITNESS WHEREOF the Purchaser has executed this Offer on the __________ day of ______________, 2011. by its authorized signatory Name: 10 ACCEPTANCE OF OFFER For and in consideration of the covenants and agreements of the Purchaser contained in this Offer and other good and valuable consideration, the receipt and sufficiency of which the Vendor hereby acknowledges, the Vendor hereby irrevocably accepts this Offer and agrees to sell to the Purchaser on the terms and conditions set forth. herein the Assets comprised in Schedule A. From and upon acceptance of this Offer by the Vendor with respect to the above Lots, all references herein to the “Assets” shall be deemed to be a reference to these Lots only. IN WITNESS WHEREOF the Vendor has executed this Acceptance of Offer on the ___________ day of __________________, 2011. WOLRIGE MAHON LIMITED, in its capacity as Interim Receiver Per: Authorized Signatory 10 Schedule A Description of Assets Lot Property Name A Log Inventory B Sawn Lumber C Rough-edged 1” and 2” lumber Initial Deposit Purchase Price TOTAL Please allocate your total purchase price to the lots as indicated above. Please be reminded that the Vendor is only accepting En Bloc offers being an “All or Nothing offer” on the Lots listed above. The Purchaser must bid on all three lots. Offers on single lots, multiple lots, but not all lots or partial lots are not permitted. The Purchaser is reminded that this offer is on an “as is where is basis” and that the Purchaser is responsible for the removal of all log inventory, sawn lumber, rough edged 1” and 2” lumber, dunnage and other lumber waste on site. The Vendor is not accepting does not make any representations or warranties as to the accuracy of this Document and shall have no liability for any representations (expressed or implied) contained in, or for any omissions from, this Document or any other written or oral communication transmitted to the recipient in the course of its evaluation or assessment. The Vendor reserves the right to accept an offer, or offers, for a portion or all of the GTF assets, outside of this tender process at any time. The recipient acknowledges that there is no guarantee that a sale will result from this process.