EXHIBIT 10.40
PURCHASE AGREEMENT
(Gaywood Oil & Gas, LLC)
This Purchase Agreement (the "Agreement") is made and entered into
effective the 28th day of August, 2003, (the "Effective Date"), by and between
10300 GAYWOOD TRUST ("Seller") and GREENBRIAR CORPORATION, a Nevada corporation
("Purchaser").
RECITALS
A. Seller owns 100% of the membership interest ("Interest") of Gaywood
Oil & Gas, LLC, a Nevada limited liability company ("Company").
B. Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, the Interest upon the terms and subject to the conditions
of this Agreement.
ARTICLE 1
TERMS OF SALE
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1.1 Purchase and Sale of Interest. Subject to the terms and conditions
specified in this Agreement, Seller shall sell, to Purchaser, and
Purchaser shall purchase from Seller, at the Closing, all of the
Interest.
1.2 Purchase Price. The total purchase price ("Purchase Price") to be paid
by Purchaser to Seller for the Interest shall be TWO MILLION FOUR
HUNDRED SIX THOUSAND EIGHT HUNDRED FIFTYAND NO/100 DOLLARS
($2,406,850.00) payable by assignment to Seller of a California
Statewide Communities Development Authority Refunding Housing Authority
Revenue Bond (Crowne Pointe Project) Subordinate Series 0000X-X (xxx
"Xxxx").
1.3 Brokerage Commission. Purchaser shall indemnify and hold harmless
Seller from and against all liabilities, costs, damages, and expenses
(including reasonable attorneys' fees), arising from any claims for
brokerage commissions or other similar fees in connection with the
transactions covered by this Agreement insofar as such claims shall be
based upon alleged arrangements or agreements made by Purchaser or on
Purchaser's behalf Seller shall indemnify and hold harmless Purchaser
from and against all liabilities, costs, damages and expenses
(including reasonable attorneys' fees), arising from any claims for
brokerage commissions, or other similar fees in connection with the
transactions covered by this Agreement insofar as such claims shall be
based upon alleged arrangements or agreements made by Seller or on
Seller's behalf Such indemnities shall survive the Closing or any
termination of the Agreement and not be merged therein.
1.4 Cost of Transaction. Whether or not the transactions contemplated
hereby shall be consummated, the parties agree as follows:
a. Seller will pay the fees, expenses, and disbursements of
Seller and its agents, representatives, accountants, and
counsel incurred in connection with the subject matter hereof
and any amendments hereto; and
b. Purchaser shall pay the fees, expenses and disbursements of
Purchaser and its agents, representative, accounts, and
counsel incurred in connection with the subject matter hereof
and any amendments hereto.
1.5 Adjustments and Prorations. Income and expenses, related to the
Company, that are credited or received after August 1, 2003, shall
become the property or obligation of the Purchaser.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF PURCHASER
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As a material inducement to Seller to enter into this Agreement and
perform its obligations hereunder, Purchaser represents and warrants to Seller
as follows as of the date hereof and as of the Closing:
2.1 Authority. Purchaser has full power and authority to enter into this
Agreement and to perform its obligations under this Agreement and the
Guaranty. This Agreement constitutes a legal, valid, and binding
obligation of Purchaser and is enforceable against Purchaser in
accordance with its terms.
2.2 Ownership of Interest. Purchaser, or its subsidiaries or related
entities, is the beneficial owner of all of the Bond. The Bond has not
been pledged to any other party, and no other party has any ownership
interest, security interest, or other claim to the Bond.
2.3 Absence of Conflicts. The execution and delivery of this Agreement by
Purchaser does not, and the performance by Purchaser of Purchaser's
obligation under this Agreement will not:
a. Violate any term or provision of any law or any order, writ,
or judgment applicable to Purchaser;
b. Conflict with or result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a
default under any of the terms, conditions, or provisions of
the articles or certificate of incorporation or bylaws of
Purchaser;
c. Result in the creation or imposition of any lien or other
encumbrance upon Purchaser or any of Purchaser's assets or
properties that individually or in the aggregate with any
other liens or encumbrances has or may reasonably be expected
to have a material adverse effect on the validity or
enforceability of this Agreement or on the ability of
Purchaser to perform Purchaser's obligations under this
Agreement; or
d. Conflict with or result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a
default under, or give to any person or entity any right of
termination, cancellation, acceleration, or modification in or
with respect to, any contract to which Purchaser is a party or
by which any of Purchaser's assets or properties may be bound,
and as to which any such conflicts, violations, breaches.
defaults, or rights individually or in the aggregate have or
may reasonably be expected to have a material adverse effect
on the validity or enforceability of this Agreement or on the
ability of Purchaser to perform Purchaser's obligations under
this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
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As a material inducement to Purchaser to enter into this Agreement and
perform its obligation hereunder, Seller represents and warrants to Purchaser as
follows as of the date hereof and as of the Closing Date:
3.1 Authority. Seller has full power and authority to enter into this
Agreement and to perform its obligations under this Agreement. This
Agreement constitutes a legal, valid and binding obligation of Seller
and is enforceable against Seller in accordance with its terms.
3.2 Ownership of Interest. Seller, or its subsidiaries or related entities,
is the beneficial owner of all of the issued and outstanding Interest
in the Company. No other party has any ownership interest, security
interest, or other claim to the Interest.
3.3 Taxes. Seller has filed on a timely basis all federal, state, county,
local, and foreign tax returns which are required to be filed and has
paid, or adequately reserved for, all such taxes and there are no
proposed deficiencies in any such taxes. There are no outstanding
consents executed by Seller extending the period of limitations for the
assessment or collection of any such taxes.
3.4 All rights pursuant to the representations and warranties contained
herein shall survive the Closing. If each and every representation and
warranty contained herein shall not be true in all respects on the
Closing Date or if Seller shall have failed to perform any term or
condition hereof required to be performed by Seller on or before the
Closing Date, Purchaser shall have the right to close this transaction
without relieving Seller of its obligation, if any, to pay damages on
account of the foregoing; or Purchaser may terminate all of its
obligations hereunder, which termination shall be without prejudice to
the rights of Purchaser, if any, to recover damages. If Purchaser shall
terminate its obligations hereunder, the Deposit shall be promptly
returned to Purchaser.
ARTICLE 4
CONDITIONS PRECEDENT TO CLOSING
-------------------------------
5.1 Conditions Precedent to Obligations of Seller. The obligations of
Seller hereunder are, at the option of Seller, subject to and
conditioned upon the satisfaction and fulfillment on or prior to the
Closing Date (or other time period referenced herein, if earlier) of
each of the following conditions unless waived in writing by Seller:
a. Payment of Purchase Price. Purchaser shall have delivered to
Seller payment in the amount of the Purchase Price.
b. Affirmation of Representations and Warranties. The
representations and warranties of Purchaser contained in this
Agreement shall be true and correct when made and on and as of
the Closing Date as though such representations and warranties
had been made on and as of such Closing Date, and Seller shall
not have discovered any material error, misstatement or
omission therein.
c. Compliance with Agreement. Purchaser shall have performed and
complied with all agreements or conditions required by this
Agreement to be performed and complied with by Purchaser prior
to or on the Closing Date.
5.2 Conditions Precedent to Obligations of Purchaser. The obligations of
Purchaser hereunder are, at the option of Purchaser, subject to and
conditioned upon the satisfaction and fulfillment on or prior to the
Closing Date (or such other time period referenced herein, if earlier)
of each of the following conditions unless waived in writing by
Purchaser:
a. Compliance with Agreement. Seller shall have performed and
complied with all agreements or conditions required by this
Agreement to be performed and complied with by Seller prior to
or on the Closing Date, including, but not limited to, the
assignment to transfer and delivery to Purchaser of a
certificate or certificates representing the Interest, duly
endorsed in blank, or accompanied by stock powers duly
endorsed in blank, with signatures duly witnessed thereon.
b. Good Standing/Taxes. The Company shall be in good standing.
having paid all franchise taxes.
c. Affirmation of Representations and Warranties. The
representations and warranties of Seller contained in this
Agreement shall be true and correct when made and on and as of
the Closing Date as though such representations and warranties
had been made on and as of such Closing Date, and Purchaser
shall not have discovered any material error, misstatement or
omission therein.
d. Legal Actions or Proceedings. No actions or proceeding before
a court or any other governmental agency or body shall have
been instituted or threatened to restrain or prohibit the
consummation of the transactions herein contemplated or which
would in any material way affect the Interest, and no
governmental agency or body shall have taken any other action
or made any request of Seller or Purchaser which would have a
material adverse effect on the transactions contemplated
hereby.
ARTICLE 5
CLOSING
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6.1 Closing. The consummation of the sale and purchase of Interest and the
other transactions contemplated by and described in this Agreement
shall take place at a closing ("Closing") to be held at the offices of
Seller, or another location mutually agreeable to Seller and Purchaser
on the same date that Seller receives Board approval.
6.2 Actions of Seller at Closing. At the Closing, Seller shall deliver or
cause to be delivered to Purchaser, the following:
a. A certificate (or a duplicate of a certificate reasonably
satisfactory to purchaser) representing the Interest to be
sold by Seller to Purchaser pursuant to this Agreement, duly
endorsed in blank, or accompanied by stock powers duly
endorsed in blank;
b. Such other instruments and documents as Purchaser reasonably
deems necessary to effect the transactions contemplated hereby
and to place Purchaser in legal and operational possession of
the Company including, without limitation, all corporate books
and records of the Company in the possession of Seller; and
c. From time to time after Closing and without further
consideration, Seller shall execute and deliver such other
instruments of conveyance and transfer, and take such other
actions as Purchaser reasonably may request, to more
effectively convey, and transfer full right, title and
interest to, vest in, and place Purchaser in legal and actual
possession of, any and all of the Interest conveyed hereunder.
ARTICLE 6
DEFAULT
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7.1 Purchaser's Default. If Purchaser refuses or fails to consummate the
purchase of the Interest pursuant to this Agreement for any reason
(other than pursuant to a right granted to Purchaser hereunder to do
so) or otherwise defaults hereunder, Seller shall have the right to
terminate this Agreement without further liability of either party as
its sole and exclusive remedy. This shall be Seller's sole and
exclusive remedy hereunder.
7.2 Seller's Default. If Seller wrongfully fails to close the transaction
contemplated by this Agreement, or otherwise wrongfully fails to
perform any of its obligations or agreements hereunder, either prior to
or at Closing, Purchaser may terminate this Agreement without further
liability of either party as its sole and exclusive remedy.
7.3 Notice and Cure. As a condition precedent to the effective exercise of
remedies under this section, a party wishing to exercise such remedies
shall give notice to the other party in writing, in accordance with the
notice provisions of this Agreement, which notice shall (a) state, with
particularity, the alleged breach or default or nonperformance of the
defaulting party and the action required to cure such breach, and (b)
contain a statement of intent to specific remedies available under this
Agreement if the breach remains uncured. The defaulting party shall
have a period often (10) days after such notice is given in which time
to cure the alleged default, breach or nonperformance.
ARTICLE 7
GENERAL
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8.1 Legal Fees and Costs. In the event any party elects to incur legal
expenses to enforce any provision of this Agreement, the prevailing
party will be entitled to recover such legal expenses, including
without limitation, reasonable attorneys' fees, costs and necessary
disbursements, in addition to any other relief to which such party
shall be entitled.
8.2 Choice of Law and Venue. The parties agree that this Agreement is made
and entered into and is performable in Dallas County, Texas, and shall
be governed by and construed in accordance with the laws of the State
of Texas, and that any litigation, special proceedings or other
proceedings as between the parties that may be brought or arise out of,
in connection with or by reason of this Agreement shall be brought in
the applicable Federal or State Court in and for Dallas County, Texas,
which courts shall be the exclusive courts of jurisdiction and venue.
8.3 Severability. In the event any provision of this Agreement is held to
be invalid, illegal or unenforceable for any reason and in any respect
by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall in no event affect, prejudice or disturb the
validity of the remainder of this Agreement, which shall be in full
force and effect, enforceable in accordance with its terms. The
provision held to be void, illegal or unenforceable shall be limited so
that it shall remain in effect to the extent permissible by law.
8.4 Entire Agreement. This Agreement supersedes all prior or
contemporaneous agreements, oral or written between the parties
concerning the Interest and the Company, and constitutes the entire
agreement between the parties respecting the Interest and the Company;
and no party shall be entitled to benefits other than those specified
herein. As between or among the parties, no oral statements or prior
written material not specifically incorporated herein shall be of any
force and effect. The parties specifically acknowledge that in entering
into and executing this Agreement, the parties relied solely upon the
representations and agreements contained in this Agreement and no
others. All prior or contemporaneous representations or agreements,
whether written or verbal, not expressly incorporated herein are of no
force or effect and no changes in or additions to this Agreement shall
be recognized unless and until made in writing by all parties hereto.
8.5 Amendment. No amendment, modification, deletion, release, termination,
extension of, alteration, variance or change in, or supplement to the
provision of this Agreement shall be valid and effective or otherwise
binding on the parties hereto unless or until such amendment, etc.,
shall have been reduced to writing and executed by the parties hereto
with the same formality as this Agreement.
8.6 Notices. All notices requests, demands, and other communications under
this Agreement shall be in writing and shall be deemed to have been
duly given when delivered personally, when sent by confirmed facsimile,
the next day if sent by overnight courier service or in three days
after being mailed by certified or registered mail, return receipt
requested, with postage prepaid to the parties at the following
addresses (or at such other address for a party as shall be specified
by like notice):
a. if to Seller, to: 10300 Gaywood Trust
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
or to such other person and place as the Seller shall direct the Purchaser in
writing; or
b. if to Purchaser, to:
Greenbriar Corporation
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
or to such other place and person as the Purchaser shall direct to Seller in
writing.
8.7 Waiver. Unless otherwise expressly provided herein, no waiver by Seller
or Purchaser of any provision hereof shall be deemed to have been made
unless expressed in writing and signed by such party. No delay or
omission in the exercise of any right or remedy accruing to Seller or
Purchaser upon any breach under this Agreement shall impair such right
or remedy or be construed as a waiver of any such breach theretofore or
thereafter occurring.
8.8 Successors and Assigns. This Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective heirs,
legal representatives, successors and permitted assigns.
8.9 Third Party Beneficiaries. Nothing in this Agreement, whether express
or implied, shall be deemed to confer on any person, other than the
parties hereto and their successors and permitted assigns, any right,
obligation, remedy, or liability.
8.10 Headings. Headings on the sections and subsections in this Agreement
are for reference purposes only and shall be deemed to have no
substantive effect.
8.11 Counterparts. This Agreement may be executed in two or more
counterparts, each and all of which shall be deemed an original and all
of which together shall constitute one and the same instrument.
8.12 General Disclaimer. Purchaser and Seller agree that any actions taken
under this Agreement are subject to and will be superseded by any law,
rule, regulation or requirement established by governmental agencies.
8.13 Further Assurances. After the Closing, the parties will execute and
deliver a such powers of attorney, documents, instruments, and Assets,
and do all such other acts and things as may be reasonably necessary to
carry out the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the Effective Date.
SELLER:
10300 GAYWOOD TRUST
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Trustee
PURCHASER:
GREENBRL&R CORPORATION,
a Nevada corporation
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, Vice President
