PURCHASE AND SALE AGREEMENT
EXHIBIT
10.1
THIS
PURCHASE AND SALE AGREEMENT ("Agreement") is entered into as of the 22nd day
of May, 2009 (the "Effective Date"),
between JUMA Properties, LLC, a Texas limited liability company ("Seller") and Deep
Down, Inc., a Nevada corporation ("Purchaser").
WITNESSETH:
In
consideration of the mutual covenants set forth herein and in consideration of
the advance deposit herein called for, the receipt and sufficiency of which are
hereby acknowledged by Seller, the parties hereto hereby agree as
follows:
1. Sale and Purchase.
Seller shall sell, convey, and assign all of its right, title and interest in
the Property (hereinafter defined) to Purchaser, and Purchaser shall purchase
and accept from Seller, for the Purchase Price (hereinafter defined) and on and
subject to the terms and conditions herein set forth, the
following:
(a) The
tract of land situated in Xxxxxx County, Texas is described on Exhibit "A"
attached hereto and made a part hereof for all purposes, together with all
rights and interests appurtenant thereto, including all of Seller's
right title, and interest in and to adjacent streets, alleys, rights-of-way, and
any adjacent strips of real estate (the "Land");
all fixtures and improvements located on the Land which are owned by Seller (the
"Improvements");
and all rights, titles, and interests appurtenant to the Land and
Improvements;
(b) All
plans, drawings, specifications, surveys, engineering reports, environmental
reports and surveys, soils reports, and other technical information related to
the Property and in Seller's
possession; and
(c) all
tangible personal property owned by Seller located on or used in connection with
the Property, and all of Seller's
interest in any service, maintenance or management contracts, in any equipment
warranties, and in any licenses, permits and trade names related to the
operation and ownership of the Land and Improvements.
All of
the Property shall be conveyed, assigned, and transferred to Purchaser at
Closing (hereinafter defined) free and clear of all liens, claims, easements,
and encumbrances whatsoever except for the Permitted Encumbrances (hereinafter
defined).
2. Purchase Price. The
price for which Seller shall sell and convey the Property to Purchaser, and
which Purchaser shall pay to Seller, is TWO MILLION SIX HUNDRED THOUSAND AND
NO/100 DOLLARS ($2,600,000.00) (the "Purchase
Price"),
to be paid in cash at Closing (as defined in Section 8 hereof) as follows: (i)
cash in the sum of FIVE HUNDRED SEVENTY THOUSAND AND NO/100 DOLLARS
($570,000.00) (an amount to which Seller acknowledges has been paid by Purchaser
to Seller as of the date hereof and prior to Closing and hereinafter referred to
as the "Advance")
and (ii) proceeds from a third-party mortgage loan to be obtained from Whitney
National Bank in the sum of TWO MILLION THIRTY THOUSAND AND NO/100 DOLLARS
($2,030,000.00), on such terms and conditions as may be acceptable to Purchaser,
in Purchaser's
sole discretion.
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3.
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Delivery of
Information by Seller.
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(a) Title Commitment and Title
Exception Documents. Prior to Closing, Seller shall provide, or cause to
be provided, to Purchaser the following:
(1) A
Commitment for Title Insurance ("Title
Commitment")
issued by AmeriPoint Title (the "Title
Company")
covering the Land; and
(2) Copies
of all documents referred to in the Title Commitment ("Title Commitment Documents").
(b) Survey. Prior to
Closing, Seller shall deliver to Purchaser a survey (the "Survey")
of the Land acceptable to the Title Company for purposes of issuance of the
Policy hereinafter described, and acceptable to Purchaser.
(c) Other Documents.
Prior to Closing, Seller shall deliver or make available to Purchaser the
following:
(1) Copies
of all engineering and technical reports in the possession or control of Seller
or its representatives that concern the Land and Improvements, including,
without limitation, soil testing reports and reports of environmental or
hazardous material inspections or surveys;
(2) Copies
of all plans and specifications that describe or relate to the wet or dry
utilities on the Land, and any as-built drawings related to the
Improvements;
(3) Copies
of all licenses, permits, or similar documents relating to the
Property;
(4) Copies
of all property tax assessments and bills relating to the Property for the year
2008 and copies of bills reflecting the payment of such taxes;
(5) True
and complete copies of any and all services, maintenance, management or other
contracts with respect to the Property;
(6) True
and complete copies, if any, of all warranties or guarantees with respect to any
equipment or appliances constituting a portion of the Property;
(7) An
inventory of the furniture, fixtures, appliances, equipment and other personal
property owned by Seller and located on, or used in connection with, the
operation of the Property;
(8) Such
other information and documents relating to the Property that are in Seller's
possession and/or control and that are reasonably requested by
Purchaser.
4. Right to Inspect Property
and Books and Records. From the Effective Date to the Closing Date,
unless earlier terminated, Seller shall afford Purchaser and its representatives
a continuing right to inspect, at reasonable hours, the Property and all of
Seller's
books and records pertaining to the Property; provided, however, that in
conducting its inspection of the Property, Purchaser shall not unreasonably
interfere with the business and operations of the Property. Further,
Purchaser shall indemnify and hold Seller harmless from all costs, expenses,
damages, and liabilities incurred as a direct result of Purchaser's
inspection of the Property, which indemnity shall survive the expiration or
earlier termination of this Agreement. Purchaser's
indemnity of Seller shall not extend to losses arising out of or in connection
with Seller's
negligent acts or willful misconduct. Purchaser agrees to keep all information
furnished to it by Seller strictly confidential, but may share such information
with its legal counsel, consultants and advisors in connection with the
transaction contemplated hereby. If the sale of the Property is not consummated
pursuant hereto, Purchaser must restore the Property to as near its pre-entry
condition as may be practicable, and Purchaser shall immediately return all such
information to Seller.
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5.
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Title.
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(a) Purchaser
shall have the right to object in writing to any liens and encumbrances
reflected by the Title Commitment or Survey. All liens and encumbrances to which
Purchaser so objects are hereinafter referred to as the "Non-Permitted Encumbrances."
Such written notice of Purchaser's
objections to Non-Permitted Encumbrances (the "Title Objection Notice")
shall be provided to Seller prior to Closing after the receipt by Purchaser of
the last of the Title Commitment and Survey, original, updated, or new, as the
case may be (the "Title Objection
Date").
If no such Title Objection Notice is given by the Title Objection Date, then it
shall be deemed that all matters reflected by the Survey and Title Commitment
are "Permitted Encumbrances."
Seller shall have the right, but not the obligation, at its sole cost, to cure
or remove all Non-Permitted Encumbrances and shall give Purchaser written notice
("Seller's
Cure Notice")
of Seller's
intent to do so within five (5) business days after receipt by Seller of
Purchaser's
Title Objection Notice. If Seller does not provide a Seller's
Cure Notice to Purchaser or, if Seller does provide a Seller's
Cure Notice to Purchaser but does not agree therein to cause all of the
Non-Permitted Encumbrances to be removed or cured, then Purchaser shall have the
right either (i) to terminate this Agreement in accordance with Section 11(b)
hereof by delivering notice to Seller within the earlier to occur of five (5)
business days after the date Seller's
Cure Notice was due or (ii) to elect to purchase the Property subject to the
Non-Permitted Encumbrances which Seller has not agreed to cure or remove, and
such Non-Permitted Encumbrances subject to which Purchaser elects to purchase
the Property shall thereafter become Permitted Encumbrances. If Seller agrees in
Seller's
Cure Notice to cure or remove any Non-Permitted Encumbrances but thereafter,
fails to timely remove such Non-Permitted Encumbrances on or before the Closing
Date, then Purchaser shall be entitled to either (xx) terminate this Agreement
in accordance with Section 11(b) hereof by delivering written notice to Seller
or (yy) elect to purchase the Property subject to the Non-Permitted Encumbrances
which Seller has not cured or removed, and such Non-Permitted Encumbrances
subject to which Purchaser elects to purchase the Property shall thereafter
become Permitted Encumbrances.
(b) Seller
shall provide, at Closing, the standard form of Owner Policy of Title Insurance
promulgated for use in Texas by the Texas Department of Insurance (the "Policy"),
issued by the Title Company, in Purchaser's
favor in the full amount of the Purchase Price for the Property, insuring
Purchaser's
indefeasible fee simple title to the Property, subject only to the Permitted
Encumbrances, and the standard printed exceptions contained in the standard form
of Policy. Purchaser shall be obligated to pay for any deletions, special
endorsements or other changes or modifications to the Policy.
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6.
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Seller's Representations,
Warranties, and Covenants.
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(a) Seller's Representations,
Warranties and Certain Covenants. In addition to the express warranties
under the deed referred to in Section 8(b)(1) hereof, and other conveyance,
assignment, and transfer documents to be delivered to Purchaser at Closing,
Seller hereby represents and warrants to, and covenants with, Purchaser
that:
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(1) Authority and Binding
Agreement. Seller has full right, power, and authority to execute and
deliver this Agreement and to consummate the purchase and sale transactions
provided for herein without obtaining any further consents or approvals from, or
the taking of any other actions with respect to, any third parties. This
Agreement, when executed and delivered by Seller and Purchaser, will constitute
the valid and binding agreement of Seller, enforceable against Seller in
accordance with its terms;
(2) Good and Indefeasible
Title. Seller has good and indefeasible title to the Property, subject
only to the exceptions to title set forth in the Title Commitment;
(3) Operation of the
Property. From the Effective Date until the Closing Date, Seller shall:
(i) maintain and operate the Property in its ordinary course and in the same
manner as Seller has heretofore maintained and operated same, (ii) keep the
Property in good repair and not defer any maintenance required in the ordinary
course of the business, (iii) not, without the prior written consent of
Purchaser, enter into any new lease or amend any existing lease, and (iii) not,
without the prior written consent of Purchaser, enter into any agreement or
instrument or take any action that would encumber the Property after Closing,
that would bind Purchaser or the Property after Closing, or that would be
outside the normal scope of maintaining and operating the Property;
(4) Condemnation. Seller
has no knowledge of any condemnation proceedings or proposed proceedings against
the whole or any part of the Property and no such proceedings or proposed
proceedings have been commenced;
(5) No Litigation; No Notice of
Violation. There is no litigation or proceeding pending or, to
Seller's
knowledge threatened, against or relating to any portion of the Property, nor
does Seller know or have reasonable grounds to know of any basis for such
actions. Seller has received no notice of violation of any local law, rule, or
ordinance concerning the Property;
(6) Hazardous Wastes.
Seller has not received a summons, citation, direction, letter, notice of
violation or other communication, written or oral, from any State, Federal or
Local governmental body or agency having jurisdiction therein concerning any
intentional or unintentional action or omission on Seller's
or any tenant's
part which resulted in the releasing, spilling, leaking, pumping, paving,
pouring, emitting, emptying or dumping hazardous substance and/or toxic waste
in, under, or over the Property;
(7) Parties in
Possession. There are no adverse or other parties in possession of the
Property or of any part thereof;
(8) No Licenses, Contracts,
Etc. To Seller's
actual knowledge, there are no licenses, contracts, and/or agreements in favor
of any third party permitting the use or occupancy of the Property;
and
(9) Representations, and
Warranties True and Correct. All representations and warranties of Seller
contained in this Agreement are true and correct in all material respects as of
the Effective Date hereof, and will be true and correct in all material respects
on the date of the Closing.
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(b) Survival of Representations;
Knowledge. All of Seller's
representations and warranties made under this Agreement shall survive the
Closing.
(c) False and Inaccurate
Representations. If (i) any of Seller's
representations and warranties set forth in this Section 6 are determined to be
untrue or inaccurate in any material respect, or (ii) at any time at or before
Closing there is any material change with respect to the matters represented and
warranted by Seller pursuant to this Section 6, then Seller shall give Purchaser
prompt written notice thereof, and Purchaser shall have the rights and remedies
provided under Section 11(b).
7. Conditions to
Purchaser's Obligation to
Close. In addition to any other conditions to Closing set forth elsewhere
in this Agreement, the following shall be conditions precedent to Purchaser's
obligation to close this transaction:
(a) No Further
Encumbrances. On the Closing Date, there shall be no change in the
matters reflected in the Title Commitment and no encumbrance or title defects
affecting the Property other than the Permitted Encumbrances shall
exist.
(b) No Changes in the
Survey. On the Closing Date, there shall be no change in the matters
reflected on the Survey, and there shall not exist any easement right-of-way,
encroachment, conflict or protrusion with respect to the Property not shown on
the Survey.
(c) Performance of
Obligations. Seller shall have timely and materially complied with all of
its covenants and obligations under this Agreement.
(d) True and Correct
Representations. All representations and warranties of Seller shall be
true and correct in all material respects as of the date of the
Closing.
(e) Third-Party
Financing. Purchaser shall have obtained the financing of the portion of
the Purchase Price described in Section 2 hereof, on such terms and conditions
as may be acceptable to Purchaser, in Purchaser's
sole discretion.
If any of
the Closing conditions are not satisfied on the Closing Date, Purchaser shall
have the right to: (i) terminate this Agreement (in which event the Advance
shall be returned to Purchaser), (ii) proceed to Closing thereby waiving any
such unsatisfied Closing conditions, or (iii) extend the Closing Date by up to
thirty (30) days, in which event Seller shall use reasonable efforts to take
such actions as are necessary to cure or satisfy such Closing conditions
precedent. If Purchaser so extends the Closing Date and the applicable condition
or conditions are not satisfied, Purchaser shall have the right to elect its
remedy under Section 11(b) or proceed with Closing, thereby waiving any
unsatisfied Closing conditions. If Purchaser closes the purchase and sale of the
Property, it shall be deemed that all conditions precedent to the Closing have
either been satisfied or waived by Purchaser.
8. Closing. The closing
("Closing")
of the sale of the Property by Seller to Purchaser shall occur on or before May
29, 2009 (the "Closing Date"),
unless the Closing Date is extended pursuant to the terms of this Agreement.
Time is of the essence with regard to the Closing Date. The Closing shall occur
in the offices of Title Company commencing at 10:00 a.m. (Central Time) on the
Closing Date (or at some other time or location as agreed to by the parties). At
the Closing, the following, which are mutually concurrent conditions, shall
occur:
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(a) Purchaser,
at Purchaser's
sole cost and expense, shall deliver or cause to be delivered to Seller the
following:
(1) Funds
available for immediate value in Seller's
account in the amount of the Purchase Price as specified in Section 2 hereof,
adjusted for the prior Advance; and
(2) Evidence
satisfactory to Seller that the person executing the Closing documents on behalf
of Purchaser has full right, power, and authority to do so.
(b) Seller,
at its sole cost and expense, shall deliver or cause to be delivered to
Purchaser the following:
(1) A
special warranty deed in form and substance satisfactory to Purchaser, fully
executed and acknowledged by Seller, conveying to Purchaser the Land and
Improvements, subject only to the Permitted Encumbrances;
(2) All
keys to all locks on the Property (and an accounting for keys in possession of
others); and all available books and records pertaining to the
Property;
(3) Permits
required to operate the Property issued by the appropriate governmental
authorities and utility companies respecting the Improvements; and
(4) Such
other instruments as are customarily executed to effectuate the conveyance of
property similar to the Property, with the effect that, after the Closing,
Purchaser will have succeeded to all of the rights, titles, and interests of
Seller related to the Property and Seller will no longer have any rights,
titles, or interests in and to the Property.
(c) The
following items shall be adjusted or prorated between Seller and Purchaser at
Closing:
(1) Ad
valorem and similar taxes (including personal property taxes) and
assessments relating to the Property for the calendar year 2009 shall be
prorated between Seller and Purchaser as of the Closing Date, based upon the
best available estimates of the amount of taxes that will be due and payable on
the Property during such calendar year. As soon as the amount of
taxes and assessments on the Property for such calendar year are known, Seller
and Purchaser shall readjust the amount of taxes and assessments to be paid by
each party so that Seller shall pay for those taxes and assessments attributable
to the period of time prior to the Closing Date and Purchaser shall pay for
those taxes and assessments attributable to the period of time commencing with
the Closing Date;
(2) Rents
for or pertaining to the Property for the then current month shall be
prorated
at the
Closing; provided, however, no proration shall be made for rents that are
delinquent as of the Closing Date. At the Closing, Seller shall pay
to Purchaser in cash the amount of any prepaid rents paid to Seller by tenants
of the Property for periods subsequent to the Closing Date;
(3) Seller
shall pay to Purchaser in cash at the Closing the amount of any and all security
deposits paid to Seller by tenants of the Property. Seller warrants
that no other type of deposit (security or otherwise) is owed in connection with
the Property. Any claims for payment of such deposits shall be
promptly paid by Seller; and
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(4) All
other income, and ordinary operating expenses for or pertaining to the Property,
including, but not limited to public utility charges, maintenance and service
charges, and all other normal operating charges with respect to the Property
shall be prorated at the Closing.
(e) Upon
completion of the Closing, Seller shall deliver to Purchaser exclusive
possession of the Property free and clear of all tenancies of every kind and
parties in possession, with all parts of the Property in the same condition as
on the Effective Date hereof, normal wear and tear only excepted.
9. Brokerage
Commissions. Seller and Purchaser acknowledge and agree that neither has
dealt with any real estate broker, agent or salesman, and in the event there
were to be any claim for fees or real estate commissions occasioned by the
execution and/or consummation of this Agreement, any such claim shall be the
sole responsibility of the party contracting therefor or the party against whom
any such claim is asserted. Each party agrees to indemnify, protect, defend the
other party, and hold the other party harmless from any and all claims for fees
or real estate commissions asserted against the indemnifying party.
10. Destruction, Damage, or
Taking Before Closing. If, before Closing, all or any part of the
Property is destroyed or damaged, or becomes subject to condemnation, a sale in
lieu of condemnation, or eminent domain proceeding, then Seller shall promptly
notify Purchaser thereof. Purchaser shall have the right to elect to proceed
with the Closing (subject to the other provisions of this Agreement) by
delivering notice thereof to Seller within five (5) business days of receipt of
Seller's
notice respecting the damage, destruction, taking, or sale. If Purchaser elects
to proceed with Closing, Seller shall assign to Purchaser at Closing Seller's
rights to any insurance proceeds or awards payable in respect of the Property.
If, within five (5) business days of receipt of Seller's
notice respecting the damage, destruction, or taking, Purchaser notifies Seller
of its intent to terminate this Agreement, or if Purchaser gives no notice
within such period, then Purchaser shall be deemed to have terminated this
Agreement pursuant to Section 11(b) hereof. The Closing shall be extended as may
reasonably be required by the provisions of this Section.
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11.
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Termination and
Remedies.
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(a) If
Purchaser fails to consummate the purchase of the Property pursuant to this
Agreement for any reason other than (i) termination hereof pursuant to a
termination right afforded Purchaser under this Agreement, (ii) Purchaser's
termination of this Agreement pursuant to paragraph (c) of this Section, or
(iii) Seller's
failure to perform its obligations hereunder, then Seller, as its sole and
exclusive remedy, shall terminate this Agreement by notifying Purchaser thereof,
in which event, Seller shall keep the Advance.
(b) In
the event Seller refuses or fails to satisfy its obligations hereunder and
resolve contingencies and satisfy conditions as required of it hereunder, or in
the event all contingencies or conditions to closing benefitting Purchaser have
been satisfied or waived on or before the Closing Date, but Seller nevertheless
refuses or fails to convey title to the Property and close the transaction
contemplated hereby in accordance with the terms of this Agreement, Purchaser,
as its sole and exclusive remedy shall elect one of the following remedies: (i)
terminate this Agreement, in which event the Advance shall be returned to
Purchaser; or (ii) institute legal proceedings against Seller for specific
performance of Seller's
obligations hereunder.
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(c) If
(i) any of Seller's
representations or warranties are determined to be false, inaccurate or
misrepresented in any material respect, or (ii) Seller fails to consummate the
sale of the Property pursuant to this Agreement for any reason other than
Purchaser's
failure to perform its obligations hereunder, then Purchaser, shall have the
rights set forth in paragraph (b) above.
(d) Seller
and Purchaser hereby acknowledge and agree that they have included the provision
for payment of liquidated damages in paragraph (a) of this Section because, in
the event of a breach by Purchaser, the actual damages to be incurred by Seller
can reasonably be expected to approximate the amount of liquidated damages
called for herein and because the actual amount of such damages would be
difficult if not impossible accurately to measure.
12. Notices. All notices
provided or permitted to be given under this Agreement must be in writing and
may be served by depositing same in the United States mail, addressed to the
party to be notified, postage prepaid and registered or certified with return
receipt requested, by delivering the same in person to such party; by prepaid
telegram or telex; or by facsimile copy transmission with proof of delivery.
Notice given in accordance herewith shall be effective upon receipt at the
address of the addressee. For purposes of notice, the addresses of the parties
shall be as follows:
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If
to Seller, to:
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JUMA
Properties, LLC
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00000
Xxxx Xxxxxxx
Xxxxxxxxxxx,
Xxxxx 00000
Attention:
Xxxxxx X. Xxxxx
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If
to Purchaser, to:
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0000 X.
Xxx Xxxxxxx Xxxxxxx X., Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Attention: Xxxxxx
X. Xxxxxx
Either
party hereto may change its address for notice by giving three (3) days prior
written notice thereof to the other party.
13. Assigns;
Beneficiaries. This Agreement may be assigned by Purchaser to any
affiliated or related entity or parties, without the prior written consent of
Seller. If Purchaser desires to assign this Agreement to any other party, then
Purchaser shall first obtain the prior written consent of Seller, which consent
shall not be unreasonably withheld or delayed. This Agreement shall inure to the
benefit of and bind the parties hereto and their respective heirs, legal
representatives, successors and assigns.
14. Governing Law. This
Agreement shall be governed and construed in accordance with the laws of the
State of Texas.
15. Entire Agreement.
This Agreement is the entire agreement between Seller and Purchaser concerning
the sale of the Property, and no modification hereof or subsequent agreement
relative to the subject matter hereof shall be binding on either party unless
reduced to writing and signed by the party to be bound. The parties agree that
there are no oral agreements, understandings, representations or warranties
signed by the parties which are not expressly set forth herein. Exhibit "A"
attached hereto is incorporated herein by this reference for all
purposes.
16. Survival of
Covenants. Any covenant of a party under this Agreement which
contemplates being performed by such party after the Closing Date, shall survive
the Closing.
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17. Counterparts. This
Agreement may be executed in a number of identical counterparts. Each such
counterpart is deemed an original for all purposes and all such counterparts
shall, collectively, constitute one agreement, but, in making proof of this
Agreement, it shall not be necessary to produce or account for more than one
counterpart; provided that the counterpart produced must be the counterpart
executed by the party against whom enforcement hereof is sought. This
Agreement may be transmitted and signed by facsimile or portable document format
(PDF). The effectiveness of any such documents and signatures shall,
subject to applicable law, have the same force and effect as manually-signed
originals and shall be binding on the parties.
18. Attorneys' Fees. The prevailing
party in any legal proceeding brought under or with relation to this Agreement
or transaction shall be entitled to recover court costs, reasonable
attorneys'
fees, and all other litigation expenses from the non-prevailing
parties.
19. Business Day. If any
date of performance hereunder falls on a Saturday, Sunday or legal holiday, such
date of performance shall be deferred to the next day which is not a Saturday,
Sunday or legal holiday.
20. Severability. In case
any one or more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal, or unenforceable in any respect, by a
court of competent jurisdiction, such invalidity, illegality, or
unenforceability shall not affect any other provisions hereof, and this
Agreement shall be construed as if such invalid, illegal, or unenforceable
provision is severed and deleted from this Agreement.
21. Gender; Number.
Unless the context requires otherwise, all pronouns used in this Agreement shall
be held and construed to include the other genders, whether used in the
masculine, feminine or neuter gender, and words in the singular number shall be
held and construed to include the plural, and words in the plural shall be held
and construed to include the singular.
[SIGNATURES
OF THE PARTIES APPEAR ON THE FOLLOWING PAGE]
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IN
WITNESS WHEREOF, Seller has executed multiple counterparts of this Agreement as
of the Effective Date.
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SELLER:
JUMA
Properties, LLC, a Texas limited liability company
By:
/s/ Xxxxxx X.
Xxxxx
Xxxxxx
X. Xxxxx, Member
PURCHASER:
Deep
Down, Inc., a Nevada corporation
By:
/s/ Xxxxxx X.
Xxxxxx
Xxxxxx
X. Xxxxxx, Chief Financial
Officer
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Signature
Page to Purchase and Sale Agreement
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