PURCHASE AND SALE AGREEMENT
Exhibit 10.22
This Purchase and Sale Agreement is entered into effective as of July 31, 2007, by and between
PURE CYCLE CORPORATION, a Delaware corporation (“Pure Cycle”), and ENVIRONMENTAL PRIVATE EQUITY
FUND II, L.P., a Delaware limited partnership (“Seller”).
RECITALS
WHEREAS, Pure Cycle and Seller are parties to a Comprehensive Amendment Agreement No. 1, dated
as of April 11, 1996 (the “CAA”), pursuant to which Pure Cycle is obligated to pay to the parties
to the CAA certain proceeds it receives from the sale of Export Water (as defined in the CAA); and
WHEREAS, Seller is a party entitled to receive Gross Proceeds totaling $1,199,999 in
categories (p), (q), (s) of Paragraph 2 of the CAA; and
WHEREAS, Pure Cycle has offered to purchase from Seller its rights to receive all payments
under the CAA at a discount to the face amount of the Gross Proceeds to be received, and Seller has
accepted the offer, on and subject to the terms set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Purchase of CAA Interest. Pure Cycle hereby purchases from Seller, and Seller
hereby sells to Pure Cycle, all of its right, title and interest in the CAA. Seller hereby
unconditionally and irrevocably transfers, assigns and conveys to Pure Cycle, and Pure Cycle hereby
accepts from Seller, all of Seller’s rights related to its interest in the CAA, including, without
limitation: (i) the rights of Seller to receive monies and other property or assets due and to
become due to Seller with respect to such interest pursuant to the CAA and (ii) all rights of
Seller with respect to such interest and to compel performance and otherwise exercise all remedies
thereunder (collectively, the “transferred interest”). Pure Cycle hereby accepts the transferred
interest and assumes all of the rights, obligations, and responsibilities of Seller under the CAA.
2. Purchase Price. The consideration payable by Pure Cycle for the transferred
interest shall be Three Hundred Thousand Dollars ($300,000) (the “Consideration”), payable by cash,
check or wire transfer of immediately payable funds to the bank account specified on Exhibit A
attached hereto.
3. Effect of Purchase. Upon payment to Seller of the Consideration, all rights of
Seller relating in any way to the CAA will be owned by Pure Cycle. Pure Cycle and the Seller agree
that this Agreement constitutes an assignment to Pure Cycle of all of Seller’s rights, title and
interest in and to the CAA as of the date hereof, and as of the date hereof, the Seller shall cease
to possess any rights with respect to the CAA.
4. Representations and Warranties.
(a) Authority. Seller has all requisite right, power and authority to execute,
deliver and perform this Agreement. This Agreement has been duly and validly executed and
delivered by the Seller. This Agreement is the valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as enforceability may be
limited by (a) applicable bankruptcy, insolvency, reorganization, arrangement, moratorium,
fraudulent conveyance, redemption, reinstatement, and other laws affecting the rights or remedies
of creditors generally and (b) general principles of equity.
(b) Ownership of Transferred Interest. The transferred interest represents the entire
interest of Seller under the CAA. Seller owns the transferred interest, and passes to Pure Cycle
good and marketable title to the transferred interest, free and clear of any lien, encumbrance,
pledge, option, charge or assessment of any kind. Seller has not taken any action to sell or
otherwise transfer the transferred interest or to mortgage, hypothecate or otherwise encumber the
transferred interest, or to grant any lien, pledge, option, encumbrance, adverse interest or claim
of any kind on the incidents of ownership of the transferred interest, including any right of first
offer or other contractual obligation.
(c) No Conflicts. Seller has full right and power to sell, assign and transfer the
transferred interest as provided in this Agreement. The execution, delivery and performance by the
Seller of this Agreement does not and will not: (a) conflict with, violate, result in a breach of
or constitute a default under any agreement, instrument or obligation to which the Seller is a
party or by which the Seller is bound; (b) conflict with or violate any order, judgment, decree,
statute, rule or regulation applicable to the Seller; (c) result in the creation or imposition of
any Lien against or upon the transferred interest; or (d) require any consent, approval or
authorization of, or filing with, any governmental authority or any other third party.
(d) Investment Representatives. Seller understands that the valuation of interests in
the CAA is uncertain and that the value derives from future transactions and developments that are
largely unknown and unknowable. Seller acknowledges that the Consideration being paid hereunder
represents an arms’ length negotiation between Pure Cycle and Seller and represents the fair market
value of transferred interest. Seller has read and understands the public filings made by Pure
Cycle with the Securities and Exchange Commission. In addition, Seller has been given the
opportunity to solicit from Pure Cycle all information relevant to valuation of rights under the
CAA, and has received all the information requested. Seller has made an investigation of the
pertinent facts related to Pure Cycle and the likelihood of payment under the CAA and has reviewed
all information regarding Pure Cycle to the extent it deems necessary in order to be fully informed
with respect thereto. Seller is a sophisticated investor, knowledgeable and experienced in
financial and business matters and in transactions of this nature, and has made its own assessment
of the value of the rights under the CAA. Seller is capable of evaluating the merits and risks of
this transaction. Seller understands that subsequent events may prove that values of interests in
the CAA were higher or lower than the valuation indicated by the Consideration paid hereunder.
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5. Release. Seller, on behalf of itself and its partners and agents, hereby fully
and forever releases and discharges Pure Cycle and its officers, directors, agents, employees,
affiliates, successors and predecessors from any and all claims, demands, proceedings, causes of
actions, orders, obligations, contracts, agreements, debts, guarantees, damages, expenses, costs,
attorneys’ fees and liabilities whatsoever, whether known or unknown, suspected or unsuspected,
both at law and in equity, which the Seller now has, has ever had or may hereafter have against
Pure Cycle in connection with, related to or arising out of (i) the Seller’s interest under the
CAA,
(ii) the financing transactions pursuant to which Seller acquired shares of Series A Preferred
Stock of Pure Cycle and its interest in the CAA and (iii) the business, operations, management,
financing, or other matters relating to Pure Cycle.
6. Survival. Each of the covenants, representations and warranties of the Seller and
Pure Cycle made herein shall survive the Closing.
7. Entire Agreement; Amendments; Waivers. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral or written, with respect thereto. This Agreement may not be
modified orally, but only by an agreement in writing signed by the party against whom any waiver or
amendment may be sought to be enforced. No action taken pursuant to this Agreement and no
investigation by or on behalf of any party hereto shall be deemed to constitute a waiver by such
party of compliance with any representation, warranty, covenant or agreement herein. The waiver by
any party hereto of any condition or of a breach of another provision of this Agreement shall not
be construed as a waiver of any other condition or subsequent breach. The waiver by any party of
any part of any condition precedent to its obligations under this Agreement shall not preclude it
from seeking redress for breach of this Agreement other than with respect to the condition waived.
8. Binding Effect. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs, legal representatives, successors and permitted
assigns.
9. Headings and Exhibits. The section, exhibit and other headings in this Agreement
are for reference purposes only and shall not affect the meaning or interpretation of this
Agreement.
10. Counterparts. This Agreement may be executed in any number of counterparts, each
of which, when executed, shall be deemed to be an original and all of which together shall be
deemed to be one and the same Agreement.
11. Governing Law. This Agreement shall be construed and enforced in accordance with
the laws of the State of Colorado, without giving effect to the principles of conflicts of law of
such state.
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IN WITNESS WHEREOF, the parties hereto have executed this Purchase and Sale Agreement as of
the date set forth above.
| PURE CYCLE CORPORATION | ||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Xxxx Xxxxxxx, President | ||||
| SELLER: | ||||
| ENVIRONMENTAL PRIVATE EQUITY FUND II, L.P. | ||||
| By: | Environmental Private Equity Fund II, General Partner | |||
| By: | /s/ F. Xxxxxx Xxxxxxx, Xx. | |||
| F. Xxxxxx Xxxxxxx, Xx., General Partner | ||||
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