EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
This contract, made and entered into to be effective as of the 9th day
of May, 2003, is by and between SWAA TEPEACA HOLDINGS, LC, a Utah limited
liability company with an address at 000 Xxxx Xxxxxx Xxxxxx, Xxxx, XX 00000
(hereafter "Seller"); and, NOXSO Corporation, a Virginia corporation, with an
address at 0000 Xxxxx 000 Xxxx, Xxxxxxxxx, XX 00000 (hereafter "Buyer")
RECITALS:
A. Seller owns approximately 21 acres of real property (the "Property")
made up of several individual parcels that are collectively located at one site
in the immediate vicinity of the city of Tepeaca, State of Puebla, Country of
Mexico, as more particularly described in Exhibit "A" hereto.
B. Buyer desires to purchase and Seller desires to sell the Property on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties do hereby agree as follows:
1. SALE OF PROPERTY
1.1 Purchase Price. Subject to adjustments and prorations, if any,
hereafter described, the purchase price (the "Purchase Price") for the Property
is TWO MILLION EIGHT HUNDRED THOUSAND DOLLARS US ($2,800,000) and shall be paid
by Buyer at the Closing (defined below) in the following manner and amounts:
1.1.1 Xxxxxxx Money. Within three (3) days of the signing of
this Agreement by both Seller and Buyer, Buyer shall deliver to Seller a
promissory note in the principal amount of TEN THOUSAND DOLLARS ($10,000) as an
xxxxxxx money deposit (the "Xxxxxxx Money"). The promissory note shall bear
interest at the rate of ten percent (10%) per annum, shall be due and payable in
a single balloon payment on the one year anniversary of the note and shall
otherwise be in a form that is reasonable agreed to by the parties. The Seller
shall release the Xxxxxxx Money by delivering the promissory note to Buyer for
cancellation prior to the Closing (i) upon notification from Buyer to Seller
that the Seller has failed to satisfy all conditions to the closing of the
transaction contemplated herein; (ii) in accordance with the terms of Sections
2.3 and 9; or (iii) upon breach of this Agreement by Seller or as otherwise set
forth herein. At Closing, the Xxxxxxx Money shall be applied as payment by Buyer
towards the Purchase Price.
1.1.2 Payment at Closing. On the Closing date (defined below),
the Buyer will pay to the to the Seller the Purchase Price as follows: (i) TEN
THOUSAND DOLLARS USD ($10,000) of the Purchase Price shall be paid via the
Xxxxxxx Money; (ii) ONE MILLION SIX HUNDRED FORTY THOUSAND DOLLARS USD
($1,640,000) shall be paid in the form of a promissory note in the same
principal amount which promissory note shall bear interest at the rate of ten
percent (10%) per annum, shall be due and payable on the earlier of the one year
anniversary of the note or on demand, shall be secured by the Property and shall
otherwise be in a form that is reasonable agreed to by the parties (the "Secured
Note"); and (iii) the balance of the Purchase Price shall be paid through the
issuance of FIVE MILLION ONE HUNDRED SIXTY-SEVEN THOUSAND ONE HUNDRED FIFTY
SHARES (5,167,150) of restricted common stock of the Buyer (the "Shares"). The
promissory notes referenced above may be prepaid at any time without penalty. So
long as there is no default under the Secured Note, for a period of sixty (60)
days following the date that the Secured Note is executed the Seller agrees to
subordinate its security interest in and to the Property for purposes of
construction financing. Thereafter, Seller shall have no obligation to
subordinate its positions until and unless the Secured Note is paid in full.
2. INSPECTION OF PROPERTY BY BUYER
2.1 Property Access. Buyer acknowledges that Seller has assisted and
cooperated with Buyer and its authorized agents, personnel, independent
accountants, counsel and employees, in obtaining access to the Property for the
purposes of making studies and inspections.
2.2 Documents Relating to Property. Seller shall deliver or cause to be
delivered to Buyer, at no cost or expense to Buyer, within five (5) days after
the date of this Agreement, copies of the following documents (collectively
referred to herein as the "Documents"):
2.2.1 Commitment. A certified title search verification and
land title commitment for the Property (the "Commitment") in a form that is
acceptable to Buyer, in its sole and absolute discretion, dated no earlier than
the date of this Agreement, together with copies of documents evidencing each
exception as set forth in the Commitment (collectively, the "Exception
Documents").
2.2.2 Right of Access. Copies of any and all documents
evidencing and confirming any rights-of-access to the Property which shall be
conveyed to Buyer with the Property which rights-of-way shall specifically be
identified in writing by Seller to Buyer.
2.2.3 Environmental/Engineering/Soils Report. Copies of any
environmental, engineering and/or soils or foundation reports made with respect
to the Property that are in Seller's possession or reasonably available to
Seller.
2.2.4 Contracts. Copies of all rental agreements, leases,
service contracts and other written agreements which affect the Property.
2.2.5 Warranties. Copies of written warranties in favor of
Seller, if any, pertaining to all or any part of the Property.
2.2.6 Tax Bills. Copies of (a) the current tax xxxx or bills
affecting the Property and (b) notices of proposed increases or changes in the
assessed value of the Property.
2.2.7 Survey. Seller shall deliver or cause to be delivered to
Buyer, a copy of an surveys of the Property in Seller possession or to which
Seller has access reasonable access.
2.2.8 Appraisals. Copies of an appraisals of the Property in
Seller's possession or to which Seller has access reasonable access.
2.3 Buyer's Contingency Period.
2.3.1 Inspection. Buyer shall have ten (10) days following the
delivery of all of the Documents (the "Inspection Period") to satisfy itself
concerning the suitability of Property. Buyer shall have the right at Buyer's
expense to perform reasonable tests, inspections and feasibility studies on the
Property as Buyer may deem necessary.
2.3.2 Contingency Period. If Buyer determines, in Buyer's sole
discretion, that the Property, or any part thereof, is not suitable or is not
feasible for any reason whatsoever, Buyer may, at any time prior to the
expiration of the Inspection Period terminate this Agreement by giving written
notice to Seller. In the event of any such termination, all the Xxxxxxx Money
shall be refunded to Buyer. This Agreement thereafter shall be null and void and
neither party shall have any obligation to the other.
3. BUYER'S CONDITIONS TO CLOSING
3.1 Buyer's Conditions to Closing. Buyer's obligation to acquire the
Property shall be conditioned upon the satisfaction or waiver by Buyer of the
following conditions:
3.1.1 Condition of Title. Buyer shall have approved the form
of the Policy of Title Insurance (defined below) and those covenants,
conditions, restrictions, rights of way, easements, reservations and other
matters of record disclosed therein. In the event Buyer terminates this
Agreement pursuant to the preceding sentence, the Xxxxxxx Money shall be
returned promptly to Buyer, with any interest accrued thereon, and Buyer and
Seller shall have no further obligation to each other. The exceptions to and
matters with respect to title that Buyer approves shall be referred to herein as
"Permitted Title Exceptions."
3.1.2 Representations and Warranties. Seller's representations
and warranties, as set forth in Section 6 hereof, shall be true and correct as
of the Closing date set forth herein.
3.1.3 Title Policy. At the Closing, Seller shall be obligated
to provide Buyer with an owners policy of title insurance in a form that is
acceptable to Buyer, in its sole and absolute discretion (the "Policy of Title
Insurance"), with liability limits equal to the Purchase Price, insuring fee
title to the Property as being vested in Buyer, or Buyer's designates, subject
only to the Permitted Title Exceptions.
4. PRECLOSING COVENANTS
4.1 Performance of Obligations. Until the Closing date, Seller shall
timely pay all taxes, assessments and other enforceable charges affecting the
Property, or any part thereof.
5. THE CLOSING
5.1 Date of Closing. The Closing shall occur on or before May 12, 2003,
at a place and time mutually agreed to by the Seller and Buyer (the "Closing").
Buyer may, however, extend the Closing date to a date no later than May 30,
2003, by paying Seller a TWENTY-FIVE THOUSAND DOLLAR USD ($25,000)
non-refundable closing extension fee which fee shall be applied toward the
Purchase Price at Closing.
5.2 Items to be Delivered by Seller at the Closing. At the Closing,
Seller shall deliver or cause to be delivered to Buyer the following:
5.2.1 Conveyance Document. A duly executed and acknowledged
document appropriate for real property in the State of Puebla, Country of
Mexico, conveying the Property to Buyer free and clear of liens and
encumbrances, excepting only the Permitted Title Exceptions.
5.2.2 Title Insurance. The Policy of Title Insurance.
5.3 Items to be Delivered by Buyer at Closing. At the Closing, Buyer
shall deliver or cause to be delivered to Seller the Purchase Price.
5.4 Prorations, Adjustments. All ad valorem real property taxes,
personal property taxes, real property special assessments payable in
installments, and utility expenses (collectively, the "Expenses"), shall be
prorated and adjusted between the parties as of the Closing date. At Closing,
Seller shall pay to Buyer all accrued but unpaid Expenses, and Buyer shall pay
to Seller all prepaid but not yet accrued Expenses.
5.5 Possession. Possession of the Property shall be transferred by
Seller to Buyer on the Closing date.
5.6 Seller's Closing Costs. Seller shall pay (i) its legal fees in
connection with this Agreement and the transactions contemplated hereby, (ii)
one-half of the recording costs, (iii) the cost of the Policy of Title
Insurance, and (iii) the recording costs in connection herewith.
5.7 Buyer's Closing Costs. Buyer shall pay (i) its legal fees in
connection with this Agreement and the transactions contemplated hereby, (ii)
one-half of the recording costs, and (iii) all property taxes that first become
due and owing on or after the Closing date.
6. SELLER'S REPRESENTATIONS AND WARRANTIES.
6.1 Representations and Warranties. Seller hereby makes the following
representations and warranties, which are true as of the date of this Agreement
and shall be true as of the Closing date. Buyer and Seller have entered into
this Agreement on the condition that Seller makes the following representations
and warranties, which representations and warranties were and are a material
inducement to Buyer entering into this Agreement, and Buyer would not have
entered into this Agreement except in reliance upon the representations and
warranties of Seller made herein.
6.1.1 Consents. All required approvals or consents have been
obtained in connection with the execution of this Agreement by Seller and with
the performance by Seller of Seller's obligations hereunder.
6.1.2 Contracts. Neither this Agreement nor the transactions
contemplated hereby violates or shall violate any contract, document,
understanding, agreement or instrument to which Seller is a party or by which
Seller may be bound, or any contract, document, understanding, agreement or
instrument affecting the Property.
6.1.3 Lawsuits. Seller has received no written notice of any
pending or threatened lawsuits or asserted or unasserted claims, condemnation or
eminent domain proceedings, or proceedings in lieu thereof, relating to the
Property.
6.1.4 Notice of Violation. Seller has not received
notification of any violation of any laws, rules or regulations with respect to,
or which would affect the use of, the Property, or any portion thereof.
6.1.5 Contracts. There are no contracts relating to the
Property to which Seller is a party, or which Seller has assumed, has agreed to
be bound by or has agreed to pay on, that will obligate Buyer.
6.1.6 Hazardous Material. There are no underground tanks or
hazardous material located on the Property and Seller has received no notice of
any violation or claimed violation of any laws, rules or regulations relating to
hazardous material located on the Property. As used in this Agreement, the term
"Hazardous Material" means any hazardous or toxic substance, material or waste
which is regulated by any local governmental authority or the Mexican
Government.
6.1.7 Soils Conditions. To the best of Seller's knowledge,
there are no soils conditions which materially and adversely affect the
Property.
6.1.8 Commitments. No commitments have been made by Seller to
any governmental authority, utility company or any other organization, group or
individual relating to the Property which would impose an obligation upon
Purchaser or its successor or assigns to make any contribution or dedication of
money or land or to construct, install or maintain any improvements of a public
or private nature on or off the Property.
6.1.9 Authority. Seller is a Utah limited liability company
duly organized and in good standing under the laws of the State of Utah, and has
been duly authorized to enter into this Agreement and to sell the Property
pursuant to the terms and conditions hereof, and the parties and persons
executing this Agreement on behalf of Seller have been duly authorized to
execute this Agreement and to take such other actions as may be necessary or
appropriate to consummate the transactions contemplated hereby.
6.1.10 Accredited Investor Status. Seller is an "accredited
investor" for purposes of Regulation D under the Securities Act of 1933, as
amended (the "Securities Act") and Seller has sufficient knowledge and
experience in evaluating and investing in companies similar to the Company in
terms of the Company's stage of development so as to be able to evaluate the
risks and merits of his or its investment in the Company and is able financially
to bear the risks thereof. Seller represents that it was not organized for the
purpose of acquiring the Shares.
6.1.11 Investment Purposes. Seller is acquiring the Shares,
subject to the terms hereof, for investment for its own account and not with a
view to, or for resale in connection with, any distribution thereof, and that
Seller has no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, the Seller further
represents and warrants that Seller does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Shares.
6.1.12 Access to Information. Seller has had access to any and
all information concerning Buyer that Seller and Seller's financial, tax and
legal advisors required or considered necessary to make a proper evaluation of
this investment. Seller has had an opportunity to discuss the terms and
conditions of the offering of the Shares and Buyer's business, management and
financial affairs with management of the Buyer and has received (or had made
available to it) any financial and business documents requested by Seller. In
making the decision to acquire the Shares, Seller and its advisers have relied
solely upon their own independent investigations, and fully understand that
there are no guarantees, assurances or promises in connection with any
investment hereunder and understand that the particular tax consequences arising
from this investment in Buyer will depend upon the individual circumstances of
the Seller. Seller further understands that no opinion is being given as to any
securities or tax matters involving the offering.
6.1.13 Exempt Transaction. Seller understands that the Shares
have not been registered under the Securities Act and must be held indefinitely
unless a subsequent disposition thereof is registered under the Securities Act
or is exempt from such registration.
6.1.14 Legend. Seller also understands and agrees that stop
transfer instructions relating to the Shares will be placed in Buyer's stock
transfer ledger, and that the certificates evidencing the Shares will bear
legends in substantially the following form:
The securities represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act") and
are "restricted securities" as that term is defined in Rule
144 under the Act. The securities may not be offered for sale,
sold or otherwise transferred except pursuant to an effective
registration statement under the Act or pursuant to an
exemption from registration under the Act, the availability of
which is to be established to the satisfaction of the Company.
6.2 Survival of Representations and Warranties. All of the
representations and warranties of Seller set forth in paragraph 6.1 hereof shall
survive the Closing.
7. REAL ESTATE COMMISSION
7.1 Commissions. Seller and Buyer each represent that, except for
Groupo Industrial Potro SA de CV ("Groupo") who was retained by the Seller and
to whom Seller will owe a commission relating to the sale of the Property,
neither party will owe a brokerage or finder's fee in connection with the sale
of the Property pursuant to this Agreement. Seller agrees to pay in full any and
all amounts owed to Groupo in connection with this transaction. Seller and Buyer
each agree that, to the extent any additional brokerage or finder's fee shall
have been earned or claimed in connection with this Agreement, the payment of
such fees, and the defense of any action in connection therewith, shall be the
exclusive obligation of the party who requested the services of that broker or
finder. In the event that any claim, demand or cause of action for brokerage or
finder's fees is asserted against a party to this Agreement who did not request
such services, the party through whom the broker or finder is making the claim
shall indemnify, defend (with an attorney of indemnitee's choice) and hold
harmless the other party from and against any such claims, demands and causes of
action.
8. MISCELLANEOUS
8.1 Material Damage or Condemnation. The risk of loss upon the Property
shall be upon the Seller until the Closing. If the Property is materially
damaged prior to the Closing or any part thereof is materially taken by
condemnation prior to the Closing, Buyer shall have the right to, at Buyer's
sole option, to either pro-rate the Purchase Price of the Property, or to reject
the Property and, on written notice of Buyer, this Agreement shall be terminated
and neither Seller nor Buyer shall thereafter have any obligation to each other
with respect thereto and any Xxxxxxx Money shall be returned to Buyer with any
interest accrued thereon. In the alternative, at Buyer's sole option, Buyer may
elect to pro-rate the Purchase Price of the Property and complete the
transaction on the terms set forth in this Agreement; in such event, Buyer shall
receive an assignment of any such insurance proceeds or condemnation proceeds,
as the case may be, as are allocable to the damaged Property or to the portion
of the Property taken.
8.2 Attorneys' Fees. In the event either party brings suit to enforce
or interpret this Agreement or for damages on account of the breach of a
covenant or representation or warranty contained herein, the prevailing party
shall be entitled to recover from the other party its reasonable attorneys' fees
and costs incurred in any such action, in addition to other relief to which the
prevailing party is entitled.
8.3 Notices. Any notice required or permitted to be given by one party
to the other may be given by personal delivery, fax, mailing or via courier
service. If any notice is deposited into the custody of Federal Express, United
Parcel Service or another overnight courier service, for overnight delivery,
postage prepaid and addressed to such party at the address hereinafter
specified, such notice shall be effective upon its deposit into the custody of
such couriers. All other notices shall be effective upon receipt. The addresses
of the parties for all purposes under this Agreement shall be:
Buyer: NOXSO CORPORATION
0000 Xxxxx 000 Xxxx Xxxxxxxxx, XX 00000
e-mail: Xxxxx-Xxxxx@xx00.xxx
Tel: (000) 000-0000 Fax: (000) 000-0000
Seller: SWAA TEPEACA HOLDINGS, LC
SouthWest Management Solutions, Manager
000 Xxxx Xxxxxx Xxxxxx, Xxxx, XX 00000
e-mail: xxxxx000@xxxx.xxx
Tel: (000) 000-0000 Fax: (000) 000-0000
Either party may change the address at which it desires to receive notice upon
written notice of such change to the other party.
8.4 Time of Essence. Time is of the essence of this Agreement and each
and every term and provision hereof.
8.5 Waiver or Modification. No waiver of any breach or default by any
party hereto shall be considered to be a waiver of any other breach or default.
A modification of any provision contained herein, or of any other amendment to
this Agreement shall be effective only if the modification or amendment is in
writing and signed by each of Seller and Buyer.
8.6 Successors and Assigns. This Agreement shall inure to the benefit
of, and be binding upon, the parties hereto and their respective successors and
assigns. Except as otherwise set forth herein, the rights and/or obligation of
the parties hereunder are not assignable without the written consent of the
parties. Notwithstanding the foregoing, Buyer shall have right to designate a
nominee or affiliate of Buyer to take title to the Property on the Closing date.
8.7 Integration of Other Agreements. This Agreement supersedes all
previous contracts, correspondence and documentation relating to the sale of the
Property. Any oral representations or modifications concerning this Agreement
shall be of no force or effect.
8.8 Liabilities Not Assumed. Except as expressly set forth herein, it
is understood and agreed that Buyer does not assume any liabilities or
obligations of Seller of any kind or character, contingent or otherwise.
8.9 Counterparts. This Agreement may be executed in any number of
duplicate originals or counterparts, each of which shall be of equal force and
effect.
8.10 Further Actions. Buyer and Seller agree to execute such additional
documents and take such further actions as may reasonably be required to carry
out each of the provisions and the intent of this Agreement.
8.11 Titles and Headings. Titles and headings of Sections of this
Agreement are for convenience of reference only and shall not affect the
construction of any provisions of this Agreement.
8.12 Xxxxxxx Money Damages. In the event that Buyer fails to perform
Buyer's obligations hereunder (except as excused by the Seller's default), the
Seller's sole and exclusive remedies shall be to waive the default or to
terminate this Agreement; and on such termination, the Seller will be entitled
to retain the Xxxxxxx Money as liquidated damages arising from such default.
8.13 Exhibits. Each of the exhibits referred to herein and attached
hereto is an integral part of this Agreement and is incorporated herein by this
reference.
8.14 Pronouns. All pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the parties may require.
8.15 Saturday, Sunday and Legal Holidays. If the time for performance
of any of the terms, conditions and provisions hereof shall fall on a Saturday,
Sunday or legal holiday, then the time of such performance shall be extended to
the next business day thereafter.
8.16 Severability. Whenever possible, each provision of this Agreement
and every related document shall be interpreted in such manner as to be valid
under applicable law; but, if any provision of any of the foregoing shall be
invalid or prohibited under said applicable law, such provision shall be
ineffective to the extent of such invalidity or prohibition without invalidating
the remainder of such provision or the remaining provisions of this document.
8.17 Governing Law. Buyer and Seller agree that this Purchase Agreement
shall be governed by the laws of the State of Utah.
IN WITNESS WHEREOF, this Agreement is executed by Buyer and Seller on
the 14th day of May, 2003, to be effective as of the date first set forth above.
"BUYER" "SELLER"
NOXSO CORPORATION SWAA TEPEACA HOLDINGS, LC
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxx X. Xxxxxxxxxxxx
---------------------------- -----------------------------------
By: Xxxxxxx X Xxxxxxxx By: Xxxx X. Xxxxxxxxxxxx, President
Its: President SouthWest Management Solutions
General Manager of
SWAA TEPEACA HOLDINGS, LC
EXHIBIT A
[To be completed]
