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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;
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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:
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(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
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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
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(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.
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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
_____________________________________
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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.
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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.
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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:
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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
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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.