EXHIBIT 10.2
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
TRI-NATIONAL DEVELOPMENT CORP
AND
SENIOR CARE INDUSTRIES, INC.,
DATED APRIL 30, 2001
1. THIS ASSET PURCHASE AGREEMENT (the "Agreement") is entered into as
of this 30th day of April, 2001, by and between Senior Care Industries Inc., or
Assignee (the "BUYER"), and Tri-National Development Corp, (the "SELLER"). The
Buyer and the Seller are referred to collectively herein as the "PARTIES."
This Agreement contemplates a transaction in which the Buyer will
purchase all of the assets identified in Exhibit A (and assume certain of the
liabilities) of the Seller in return consideration more particularly described
below.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
2. BASIC TRANSACTION.
(a) PURCHASE AND SALE OF ASSETS. On and subject to the terms and
conditions of this Agreement, the Buyer agrees to purchase
from the Seller, and the Seller agrees to sell, transfer,
convey, and deliver to the Buyer at the Closing for the
consideration specified below in this ss.2, one hundred
percent (100%) of Tri-National Development Corp's stock in
Tri-National Holdings, S.A. de C.V., a Mexican corporation and
the Property, more particularly described in the attached
Exhibit "A", whose Legal description is contained in the
preliminary title report already approved by Buyer.
PURCHASE PRICE. $33,200,000 SHALL BE PAID TO SELLER AS FOLLOWS:
(i) $33,200,000 in Convertible preferred stock as
follows: At close of escrow, the $33,200,000 purchase
price shall be paid by Senior Care issuing 500,000
shares of series "F" convertible preferred stock
convertible 20 to 1 into rule 144 common stock under
a conversion formula wherein 20% of the preferred
stock may be converted to rule 144 common stock in
the 24th month after of the acquisition by Senior
Care close (the first conversion date) and each
successive one year period following the first
conversion date. Senior Care to have an irrevocable
option to acquire up to 100% of the 144 stock issued
by the conversion on each conversion date on a
pro-rata basis in increments up to $6,640,000 at each
conversion.
(b) PAYMENT OF TRANSFER TAXES. Buyer will be responsible for any sales
tax and/or transfer tax due as a result of the transfer of assets pursuant to
this Agreement.
(c) ESCROW. Escrow shall be opened an escrow/title company of Buyers
choosing or through Buyer attorney.
(d) CLOSING. Closing shall occur on or before April 30, 2001, at such
location as agreed to between Buyer and Seller, and shall be contingent only
upon Buyer waiving its contingencies, and Buyer delivering the consideration
specified in ss.2 C.
(e) DELIVERIES AT THE CLOSING. At the Closing, (i) the Seller will
deliver to the Buyer the various certificates, instruments, and documents
referred to in ss.6(a) below; (ii) the Buyer will deliver to the Seller the
various certificates, instruments, and documents referred to in ss.6(b) below;
(iii) the Seller will execute, acknowledge (if appropriate), and deliver to the
Buyer title to the real property and such other instruments of sale, transfer,
conveyance, and assignment as the Buyer and its counsel reasonably may request.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller, to the best of
Seller's knowledge, represents and warrants to the Buyer that the statements
contained in this ss.3 are correct and complete as of the date of this Agreement
and will be correct and complete as of the Closing Date (as though made then and
as though the Closing Date were substituted for the date of this Agreement
throughout this ss.3), except as set forth in the disclosure schedule
accompanying this Agreement and initialed by the Parties (the "DISCLOSURE
SCHEDULE"). The Disclosure Schedule will be arranged in paragraphs corresponding
to the lettered and numbered paragraphs contained in this ss.3.
(a) ORGANIZATION OF THE SELLER. The Seller is a Corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation, which is the State of Wyoming.
(b) AUTHORIZATION OF TRANSACTION. The Seller will have full power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. Without limiting the generality of the foregoing, the Board of
Directors will have duly authorized the execution, delivery, and performance of
this Agreement by the Seller at the closing. This Agreement constitutes the
valid and legally binding obligation of the Seller, enforceable in accordance
with its terms and conditions. Upon signing of this Agreement, the Buyer will
immediately seek final Board of Directors approval. Tri-National Development
Corp is seeking approval from Capital Trust. To see its stock in Tri-National
holdings, S.A. de C.V. and the sale of its stock requires the approval of
Capital Trust. In the event that such approval is not gained, the parties
reserve the right to restructure this Agreement subject to the Capital
Trust obligation.
(c) NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby
(including the assignments and assumptions referred to in ss.2 above), will (i)
violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Seller is subject or any provision of the
charter or bylaws of Seller or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which Seller is a party or by which it is bound or to which any of its assets
is subject (or result in the imposition of any Security Interest upon any of its
assets). Seller is not required to give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or governmental
agency in order for the Parties to consummate the transactions contemplated by
this Agreement (including the assignments and assumptions referred to in ss.2
above).
(d) Acquisition Fees. The Buyer to pay an acquisition fee to
International Capital Group at closing pursuant to a separate agreement between
the parties.
(e) TITLE TO ASSETS. The Seller has good and marketable title to, or a
valid leasehold interest in, the property pursuant to 3(b).
(f) LEGAL COMPLIANCE. Seller and its respective predecessors and
Affiliates has complied with all applicable laws (including rules, regulations,
codes, plans, injunctions, judgments, orders, decrees, rulings, and charges
thereunder) of federal, state, local, and foreign governments (and all agencies
thereof), and no action, suit, proceeding, hearing, investigation, charge,
complaint, claim, demand, or notice other than the Capital Trust Proceedings has
been filed or commenced against any of them alleging any failure so to comply.
(A) the Seller possesses all right, title, and interest in and
to the real estate, or a valid leasehold interest.
(B) no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand is pending or is threatened which
challenges the legality, validity, enforceability, use, or ownership of
the property after closing.
(g) POWERS OF ATTORNEY. There are no outstanding powers of attorney
executed on behalf of the Seller.
(h) ENVIRONMENT, HEALTH, AND SAFETY.
(i) The Seller, and its predecessors and Affiliates has
complied with all Environmental, Health, and Safety Laws, and no
action, suit, proceeding, hearing, investigation, charge, complaint,
claim, demand, or notice has been filed or commenced against any of
them alleging any failure so to comply. Without limiting the generality
of the preceding sentence, each of the Seller, and its predecessors and
Affiliates has obtained and been in compliance with all of the terms
and conditions of all permits, licenses, and other authorizations which
are required under, and has complied with all other limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables which are contained in, all
Environmental, Health, and Safety Laws.
(ii) Seller has no Liability (and Seller and its predecessors
and Affiliates has not handled or disposed of any substance, arranged
for the disposal of any substance, exposed any employee or other
individual to any substance or condition, or owned or operated any
property or facility in any manner that could form the Basis for any
present or future action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand against Seller giving rise to any
Liability) for damage to any site, location, or body of water (surface
or subsurface), for any illness of or personal injury to any employee
or other individual, or for any reason under any Environmental, Health,
and Safety Law.
(iii) To the best of Sellers knowledge, the property is free
of asbestos, PCB's, methylene chloride, trichloroethylene,
1,2-trans-dichloroethylene, dioxins, dibenzofurans, and Extremely
Hazardous Substances.
(iv) DISCLOSURE. The representations and warranties contained in this
ss.3 do not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements and information
contained in this ss.3 not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents
and warrants to the Seller that the statements contained in this ss.4 are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this ss.4),
except as set forth in the Disclosure Schedule. The Disclosure Schedule will be
arranged in paragraphs corresponding to the lettered and numbered paragraphs
contained in this ss.4.
(a) ORGANIZATION OF THE BUYER. The Buyer is a Nevada Corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(b) AUTHORIZATION OF TRANSACTION. Upon signing of this Agreement, the
Buyer will immediately seek final Board of Directors approval.
(c) NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby
(including the assignments and assumptions referred to in ss.2 above), will (i)
violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Buyer is subject or any provision of
its charter or bylaws or (ii) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
the Buyer is a party or by which it is bound or to which any of its assets is
subject. The Buyer does not need to give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or governmental
agency in order for the Parties to consummate the transactions contemplated by
this Agreement (including the assignments and assumptions referred to in ss.2
above).
(d) OTHER OBLIGATIONS: Senior Care Industries acknowledges there exists
a Capital Trust $8,000,000 debt payable by Tri-National Development as evidenced
by the existing judgment and the Capital Trust claim to the Tri-National
Holdings, S.A. de C.V. shares; Senior Care Industries' subsidiary, Senior Care
International S.A. de C. V. has made provision for an $8,000,000 payment to
Tri-National Development Corp to be utilized for payment to Capital Trust.
ACQUISITION FEES. Seller has no Liability or obligation to pay any fees
or commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Buyer may become liable or
obligated.
5. PRE-CLOSING COVENANTS. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing.
(a) GENERAL. Each of the Parties will use its reasonable best efforts
to take all action and to do all things necessary, proper, or advisable in order
to consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the closing conditions set forth in
ss.6 below).
(b) NOTICES AND CONSENTS. The Seller will give any notices to third
parties that the Buyer reasonably may request in connection with the matters
referred to in ss.3(c) above. Each of the Parties will give any notices to, make
any filings with, and use its reasonable best efforts to obtain any
authorizations, consents, and approvals of governments and governmental agencies
in connection with the matters referred to in ss.3(c) and ss.4(c) above.
(c) FULL ACCESS. The Seller will permit representatives of the Buyer to
have full access at all reasonable times, and in a manner so as not to interfere
with the normal business operations of the Seller to the Property and to obtain
copies of all books, records, contracts, and documents of or pertaining to the
Property.
(d) NOTICE OF DEVELOPMENTS. Each Party will give prompt written notice
to the other Party of any material adverse development causing a breach of any
of its own representations and warranties in ss.3 and ss.4 above. No disclosure
by any Party pursuant to this ss.5(f), however, shall be deemed to amend or
supplement the Disclosure Schedule or to prevent or cure any misrepresentation,
breach of warranty, or breach of covenant.
6. CONDITIONS TO OBLIGATION TO CLOSE.
(a) CONDITIONS TO OBLIGATION OF THE BUYER. The obligation of the Buyer
to consummate the transactions is subject to satisfaction of the following
contingencies, which Buyer deems as being satisfied.
(i) A physical inspection of the property.
(ii)Receipt and approval of a preliminary Title report and all
underlying documents referenced therein. Said report to be provided by Seller.
(iii) Receipt and approval of any CC & R's
(iv) A personal property inventory and equipment inventory.
(v) Receipt and approval of any and all other written agreements which
affect the property.
(vii) Review and approval of all entitlements to build a residential
subdivision.
In addition to the approval of or waiving of the contingencies, The Seller shall
have satisfied Buyer as to the following:
(vii) the representations and warranties set forth inss.3 above shall
be true and correct in all material respects at and as of the Closing Date;
(viii) the Seller shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(ix) the Seller shall have procured all of the third party consents
specified inss.5(b) above;
(x) no action, suit, or proceeding shall be pending before any court or
quasi-judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator wherein an unfavorable injunction,
judgment, order, decree, ruling, or charge would (A) prevent consummation of any
of the transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, or (C) affect adversely the right of the Buyer to own the Acquired
Assets and to operate the former businesses of the Seller, Buyer acknowledges
the Capital Trust proceedings.
The Buyer may waive any condition specified in this ss.6(a) if it executes a
writing so stating at or prior to the Closing.
(b) CONDITIONS TO OBLIGATION OF THE SELLER. The obligation of the
Seller to consummate the transactions to be performed by it in connection with
the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth inss.4 above shall be
true and correct in all material respects at and as of the Closing Date;
(ii) the Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iii) no action, suit, or proceeding, except as may be identified in
Exhibit G, shall be pending before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction or before any
arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling,
or charge would (A) prevent consummation of any of the transactions contemplated
by this Agreement or (B) cause any of the transactions contemplated by this
Agreement to be rescinded following consummation (and no such injunction,
judgment, order, decree, ruling, or charge shall be in effect);
(iv) the Buyer shall have delivered to the Seller a certificate to the
effect that each of the conditions specified above in ss.6(b)(i)-(iii) is
satisfied in all respects;
The Seller may waive any condition specified in this ss.6(b) if it executes a
writing so stating at or prior to the Closing.
7. TERMINATION.
(a) TERMINATION OF AGREEMENT. Certain of the Parties may terminate this
Agreement as provided below:
(i) the Buyer and the Seller may terminate this Agreement by
mutual written consent at any time prior to the Closing;
(ii) the Buyer may terminate this Agreement by giving written
notice to the Seller at any time prior to the Closing (A) in the event
the Seller has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect, the Buyer
has notified the Seller of the breach, and the breach has continued
without cure for a period of 10 days after the notice of breach or (B)
if the Closing shall not have occurred on or before April 30, 2001, by
reason of the failure of any condition precedent under ss.6(a) hereof
(unless the failure results primarily from the Buyer itself breaching
any representation, warranty, or covenant contained in this Agreement);
and
(iii) the Seller may terminate this Agreement by giving
written notice to the Buyer at any time prior to the Closing (A) in the
event the Buyer has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect, the
Seller has notified the Buyer of the breach, and the breach has
continued without cure for a period of 10 days after the notice of
breach or (B) if the Closing shall not have occurred on or before April
30, 2001, by reason of the failure of any condition precedent under
ss.6(b) hereof (unless the failure results primarily from the Seller
itself breaching any representation, warranty, or covenant contained in
this Agreement).
(b) EFFECT OF TERMINATION. If any Party terminates this Agreement
pursuant toss.7(a) above, all rights and obligations of the Parties hereunder
shall terminate without any
Liability of any Party to any other Party (except for any Liability of
any Party then in breach).
8. POST CLOSING OBLIGATIONS. None
9. MISCELLANEOUS.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of the Parties contained in this Agreement shall
survive the Closing hereunder as and to the extent provided in the Agreement.
(b) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement prior to the Closing without the prior written approval of the
other Party; PROVIDED, HOWEVER, that any Party may make any public disclosure it
believes in good faith is required by applicable law or any listing or trading
agreement concerning its publicly-traded securities (in which case the
disclosing Party will advise the other Party FOR APPROVAL prior to making the
disclosure).
(c) NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(d) ENTIRE AGREEMENT. This Agreement (including the documents referred
to herein) constitutes the entire agreement between the Parties and supersedes
any prior understandings, agreements, or representations by or between the
Parties, written or oral, to the extent they related in any way to the subject
matter hereof.
(e) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. Buyer may assign either this Agreement or any of its
rights, interests, or obligations hereunder.
(f) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
IF TO THE SELLER: COPY TO:
Michael Sunstein
480 Camino Del Rio S.
Suite 140
San Diego, CA 92108
IF TO THE BUYER: COPY TO:
John Cruickshank
410 Broadway
Laguna Beach, CA 92651
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Party
notice in the manner herein set forth.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING
EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE
OF NEVADA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF CALIFORNIA.
(j) AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Buyer and the Seller. No waiver by any Party of any default, misrepresentation,
or breach of warranty or covenant hereunder, whether intentional or not, shall
be deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
(k) SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(l) EXPENSES. Each of the Buyer and the Seller will bear his or its own
costs and expenses (including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby.
(m) CONSTRUCTION. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
(n) INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
(o) SPECIFIC PERFORMANCE. Each of the Parties acknowledges and agrees
that the other Party would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the Parties agrees that
the other Party shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically this
Agreement and the terms and provisions hereof in any action instituted in any
court of the United States or any state thereof having jurisdiction over the
Parties and the matter [(subject to the provisions set forth in ss.8(p) below)],
in addition to any other remedy to which it may be entitled, at law or in
equity. The parties agree to approve a liquidated damages clause to be
incorporated into the escrow instructions.
(p) SUBMISSION TO JURISDICTION. Each of the Parties submits to the
jurisdiction of any state or federal court sitting in the Southern District of
California in any action or proceeding arising out of or relating to this
Agreement and agrees that all claims in respect of the action or proceeding may
be heard and determined in any such court.
(q) BULK TRANSFER LAWS. The Buyer acknowledges that the Seller will not
comply with the provisions of any bulk transfer laws of any jurisdiction in
connection with the transactions contemplated by this Agreement.
(r) Senior Care Industries acknowledges there exists an additional
40% stock interest in Tri-National Holdings, S.A. de C.V. by Bersain
Gutierrez which is also potentially available after May 20, 2001 and is
believed to be on the same terms and conditions as the position being
tendered herein by Tri-National Development Corp.
This Agreement supercedes the March 7, 2001 Real Estate Purchase Agreement by
and between Senior Care Industries and Tri-National Development Corp., which
prior Agreement is hereby deemed null and void.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
[as of] the date first above written.
Senior Care Industries Inc., Tri-National Development Corp
By: /s/ John Cruickshank By: /s/ Michael Sunstein
------------------------ -------------------------
John Cruickshank Michael Sunstein
Title: Senior Vice President Title: President
EXHIBIT "A"
See Attached Contract for Deed by and between Senior Care International, S.A. de
C.V., or assignee, ("Buyer"), a Mexican corporation and Tri-National Holdings,
S.A. de C.V., ("Seller"), a Mexican corporation, dated April 30, 2001.