Free Motion for Summary Judgment - District Court of Connecticut - Connecticut

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Case 3:02-cv—02105-RNC Document 61-5 Filed 06/30/2007 Page 1 014

Case 3:02-cv—O2105-RNC Document 61-5 Filed 06/30/2007 Page 2 of 4
. September 7, 1999 i
This is an Agreement (the "Agreernent") made by and between Clean Waste, Inc. a Cayman Corporation with
offices at PO Box l034, One Capital Place, Grand Cayman, Cayman Islands, B.W.}£. (the “BUYER") and Sun Boat,
{nc. PO Box 268, Georgetown,Grand Cayman, Cayman Islands, B.W.I,(rhe "SELLER“), ofthe Cayman flag 1986
l21' Denison Cockpit Motoryacht described in the attached inventory{As provided by the Listing Broker.) which is
rnade a part hereof] and named, "SUN CHASER", (the "YACHT"). The BUYER and the SELLER recognize,
Alpha Projects (the "SELL`lNG BROKER") and Richard Bertram, Inc:. (the "LISTING BROKER") as the
aroicers handling the sale of the YACHT, and herein referred to as the "I·3ROKERS".
1. PRICE AND DEPOSIT: The "selling price" shaii Be, Three Million, dollars (U.S. S 3,0G0,000.00*(See
Section 6; Additional Provisions; Item # 4.) for which the BUYER agrees to buy and the SELLER agrees to sell the
YACHT, subject to the terms and conditions set forth in this Agreement. The sum of Two Hundred Thousand
zlollars, (U.S. S 260,000.00 ) of the selling price shalt be paid as a deposit (the "deposit") upon execution of this
Agreement. The deposit shall be paid to and held by the SELLING BROKER, in escrow in accordance with
aaragraph #16 hereof (the "Escrow Fond") pending resolution of` this sale. The balance of the SELLING ?RICE
ihall be paid in certified or coiiecteci iiinds at the ciosing.
2. SURVEY: The BUYER may have the YACHT surveyed at his e>tpense on or before September 22,
i999 to verify the condition of the yacht and the accuracy of the attached inventory.
a. The SELLER agrees that the Buyer or his agents may examine the YACHT and inventory in a
iondestructive manner. The SELLER may stipulate at which boatyartl he is willing to have the YACHT hauled for
turrrey. The SELLER agrees that delivery to and from the boatyard for survey, which he hereby authorizes, is to he
it the SELLER's sole risk and expense. · ` ·
h. The BUYER agrees that the surveyor(s) shaii be employed by the BUYER, and that the BROKERS are
tot responsible for any errors, omissions or other inaccuracies that may appear on the survey ofthe YACHT, even
hough the BROKERS may have suggested the name ofthe surveyor, or at the BUYERls request, may have hired
he surveyor on behalf ofthe buyer. _
teceptance of the YACHT and inventory, or his rejection of the YACHT, in BUY}ER’s sole discretion, no later
han five o'clcck p.m. local time on September 29, 1999. if said notice has not been timely received, the BUYER
;hall be deemed to have accepted the YACHT and inventory in its present condition, subject to terms, if` any, of
iaragraph #6.
4. TERMINATION OF AGREEMENTZ If the BUYER gives notice of his intention to reject the
{ACH'? under the terms of this Agreement, such notice shall constitute termination ofthe BUY`ER's obligation to
iurchase and the ·SELLER's obligation to seii, and ihe BUYER and the SELLER both aushorize the SELLING
BROKER to return the deposit to the BUYER, after deducting any fees and charges incurred against the YACHT by
he BUYER, or by the BROKERS on behalf ofthe BUYER, including the cost ofthe survey and related expenses, if
aid expenses have not been paid by the Buyer.
5. CLOSING: The "ciosing" on this sale shail take place on or before October 6, 1999 at 3;O0 o'cioci<
LM. local time, at a location physically outside of United States waters off the `northeast coast ofthe United States. -
{he closing on the saie shall he deemed complete when:
a. All documents necessary to transfer good and ahsoiute title to the YACHT have been received by the
BUYER, or by tit SELLING BROKER on bchaif ofthe BUYER; and I
b. The baiance of the SELLING PRICE is paid .in certified or collected funds to the SELLER, or to the
SELLING BROKER for transmittal to the SELLER. ‘
» 6. ADDTTIONAL PROVISIONS : 1. This transaction is contingent upon the BUYER’s sole satisfaction
with the results of a marine survey. 2, This transaction is contingent upon the BUYER’s sole satisfaction with the
esults of an engine inspection. 3. This transaction is contingent upon the BUYER’s sole satisfaction with the results
if a Sea Trial. 4. This transaction is contingent upon BUYERE soie satisfaction with a clear and definitive outiine
ind his exact understanding ofthe responsibilities required to fizlfill the outstanding, "Charity Charters" referenced in
SELi,ER’s ietter and dated September 1, 1999. (Attached.)
7. The SELLER warrants and/or agrees as follows: `
a. That he has fuli power and iegal authority to execute and perform this Agreement, that he has good and
narketable titie to the YACHT, and that he wili obtain permission from any authority to sell the YACHT, if
tecessary. - t
b. That the YACHT will he sold free and clear of any_ mortgages, liens, biiis, encumbrances, or clainps
whatsoever. If any such obiigations remain outstanding at the closing, the SELLER authorizes the SELLiIg@
BROKER to deduct the funds necessary to satisfy such obligations from the proceeds of the sale.

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c. To deliver the YACHT and its inventorysas accepted in paragraph #3, on or before October 6, 1999 in a
ication physically outside of United States waters off the northeast coast `ofthe United States.
d. To pay any and ali duties, taxes, fees, or other charges assessed against the YACHT by any governmentai
ithcrity prior to the closing, to hold harmless and indemnify the BUYER and BROKERS against any claims or
ations for such fees in Eiture, and to provide validation of such payments at the closing or, upon written request by
ie BUYER, ten days prior to closing. _
e. To hold harmless and defend the BUYER and BROKERS against any and all claims incurred prior to
osing that may impair or adversely affect the BUYER's receipt, use and possession of the YACHT including good
td absoluteititle thereto; and to assume all costs incident·to defending BUYERS and BROKERS against such
aims, including their reasonable attorneys fees.
ii To pay the BROKERS the commission as soon as the sale is consummated, and authorizes the BROKERS
i deduct the commission from payments received directly or indirectly for the BUYER. Such commission shall be
tloulated as 1G%(Ten percent) of the final selling price ofthe YACHT. Should the sale not be consummated for
ty reason, and the SELLER transfers any interest in the YACHT to the BUYER, directly or indirectly, within two
ears of the closing- date ofthe Agreement (except a charter.ot" one month or iess); then ihe SELLER agrees to pay
ie BROKERS an amount equal to the commission which would have applied to the sale for which this Agreement
now created. T .
B. The BUYER warrants and/or agrees as follows:
a. That he has full power and lege? authority to execute and perform this Agreement, and to obtain the
ermission of any authority to deliver the YACHT, if required. `f`T
b. To deliver the following at the closing: ·
1. Certified or collected funds payable to the SELLER, or for the SELLER's account, in an amount equal
i the balance ofthe selling price as set forth in Paragraph #1. -
2. Certified or collected Hinds payable to the BROKERS, in an amount equal to any charges incurred
glnst the YACHT by the BROKERS on behalf of the BUYER, including costs related to the survey of the
3. Any and all documents, including authorization, required to eompiete this purchase.
c. To pay all sales andfor use taxes, now or hereafter, imposed as a result of this sale, to indemnify the
ELLER and BROKERS against any obligations to pay such taxes, and to fbrnish -proof` of such payments upon
zquest by the BROKERS.
d. The BUYER will have the right of` possession ofthe YACHT only upon completion ofthe closing.
9. INTERIM RESPONSIBILITIES; The SELLER shallbear all risk of loss or damage to the YACHT, or
I any person or property on said YACHT until closing. Any damages to the YACHT subsequent to acceptance as
rt forth in paragraph #3, and prior to completion of ciosing, shall be repaired by the SELLER at his expense,
tbject to approval ofthe BUYER, who has the right to request a reasonable price adjustment or to eaneei the sale if
rbstantial damages cannot be repaired to his-satisfaction.
l0, DEFAULT BY SELLER: SELLER‘s failure to deliver the YACHT to the BUYER or otherwise to
zrform the termscf the Agreement, due to any reason (including loss of or substantial damage to the YACHT
sused by the SELLER‘s negligence which prevents eoznpietion of this sale), shall obligate the·SELLER to pay aéi
>sts and charges incurred in connection with any survey undertaken on behalf of the BUYER, and to pay the
ROKERS the hill brokerage commission which would have otherwise been due pursuant to paragraph #7.
ELLER's obligation is without prejudice to any other rights the BUYER might also have as a result of SEi,,I,.lER‘s
zfault. However, if the sale cannot be compieted by the ctosing date, due to substantial damage to the YACHT not
rused by the SEI..LER's negligence, the SELLING BROKER is authorized to deduct from the deposit any fees or
targes incurred against the YACHT by the BUYER, including the cost of the survey and related expenses, and
zturn the balance to BUYER within ten business days. En the event the SELLER faiis to deliver the YACHT to the
UYER and the SELLER sells the YACHT to e third party for a higher price than the selling price hereunder, Seller
tall pay Buyer, as liquidated damages, the difference between the actual seiling price for the yacht and the selling
rice ses forth in this Agreement.
ll. DEFAULT BY BUYER: The BUYER and SELLER agree that the amountof damages sustainable in
ic event of a defauit by the BUYER are not capable efpascertainment. Therefore, in the event that the BUYER,
iter accepting the YACHT under the terms of this Agreement, fails to fuiiiil any or all the obiigations set forth in
aragraph #8, Two Hundred Thousand Dollars (S 200,000.00) shall be retained by the SELLER as liquidated and
greed damages and the BUYER and SELLER shall be relieved of ali obligations under the Agreemenr. This sum
iall be divided equally (50%/50%) between the SELLER and the BROKERS after all expenses incurred against the
`ACHT bythe BUYER have been paid. The BROKERS share shall not exceed the amount she BROKERS would
ave received had the sale been compieted. ‘ - _
A RC 0029

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. ~ ' Page 3 of 3.
12.. IURISDICTION: The SELLER and the BER each hereby consents to service of process, and to
ne sued, in the State ¤f_Connecticut and consents to thejurisdiction ofthe courts of the State of Connecticut and the
United States District Court for the District of Connecticut, as well as to the jurisdiction of all coms from which an
appeal may be taken from such courts, for the purpose of any suit, action or other proceeding arising hereunder or
with respect to the transactions contemplated hereby, and expressly waives any and all objections that either the
SELLER or the BUYER may have to venue in any such courts `
13. Should the LISTING BROKER or the SELLING BROKER become party to any litigation invoivéng
:his Agreement and found not to be at fault, it is agreed that the BROKER(S) shall be reimbursed for costs and
momey's fees by the party(s) found to be at fault.
14. This Agreement shell: I l
a. beconsimed and interpreted in accordance with, the substantive and procedural law of the State of
Ilonnecticut and Federai maritime law; _
b. constitute the entire Agreement between the BUYER and SELLER, and supersedes all prior discussions,
agreements and understandings of` any nature between them, and may not be changed or added to except by
agreement in writing and signed by the parties to be bound;
c. be binding upon and shall énuse to the benem of and be enforceable by the successors in interest of the
BUYER and SELLER, including but not iimiied to heirs, executors, administrators or assigns, `
d. survive the closing ofthe transaction, and shall not be mergedjn or otherwise be affected by the
execution, tender, delivery or acceptance of_the_Bill of Saie or— any other documents executed or delivered at the
zlosing. _ ` . r
l 16. ESCROW FUND: The escrow created hereunder shall terminate on she first to occur of (E) the date of
he closing, or (II) the date on which the BUYER terminates the Agreement in accordance with its provisions, or
QIII) the date on which either the SELLER or the BUYER defaults in accordance with either Paragraph 10 or ll
respectiveiy, of this Agreement. Prior to distributing the Fund, the SELLING BROKER shall determine to whom the
Escrow Fund shall be disbursed and how much of such fund shall be disbursed to the persons entitled to any portion
hereof] ell in accordance with the provisions of this Agreement. - - -
In the event the SELLING BROKER, acting as the agent for the Escrow Fund, is unable to determine how
zhe Escrow Fund should be disbursed in accordance with this Agreement, the SELLING BROKER shall give prompt
notice of such difiiculty to SELLER and BUYER. if SELLER and BUYER are unable to resoive the difficulty
within thirty (30) days after the date of such notice, the SELLING BROKER snail have the absolute right at its
election to do either ofthe following: ' r
rs. Withheld and stop} all further proceedings with respect to, and the performance oi this Agreement and
retain the Escrow Fund until it has received written instructions signed by both the BUYER and SELLER
authorizing and directing the distribution ofthe Escrow Fund; or . ·
b. File a suit in interpleader and obtain an order from she court requiring the parties to litigate their several
claims and rights among themseivesr in the event such interpleader suit is brought, the SELLENG BROKER shall be
iixlly released from any obligation to perform any further duties imposed uporrit hereunder, and SELLER and
BUYER shall pay the SELLING BROKER all costs, expenses and reasonable attorneys fees exvended or incurred
by the SELLING BROKER, . RC 00% .
In Witness Whereot", the BUYER and SELLER have hereunto placed their signatures as ot the date written below.
we . ___*_ [ Clean Waste, Inc. ._ ` _ _ _
wrmess; l;. ld )’,QQ;,£Qgg@j“gll;/ BUYERY .L~ . Ar ` Dae; Um? $/7%
F. William Taylor . , r. Ginn? if I 2.:6Ean ir
· flrvww Y· MW Fa: _
rg " Q _ S§ ioatglnolg L _ ,\ - (
WITNESS , SELLER:— M Q,¢°=-e: " Date:OC”iL£i [ {qq
' ' i.lP0£>Pi— Diihikl Sterih rl? Renneclcar