Purchase and Sale Agreement, dated November 1, 2021, by and among College Station Investors LLC, Bryan Capital Investors LLC, iBio CDMO LLC and iBio, Inc
EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made as of November 1, 2021, by and between College Station Investors LLC, a Texas limited liability company (“College Station”) and Bryan Capital Investors LLC, a Texas limited liability company (“Bryan Capital”, and collectively with College Station, the “Seller”), iBio, Inc., a Delaware corporation (“Inc.”), and iBio CDMO LLC, a Delaware limited liability company (“CDMO” or “Subtenant”, and collectively with Inc., “Purchaser”).
W I T N E S S E T H:
A. College Station is the tenant under the Ground Lease dated March 8, 2010, between The Board of Regents of the Texas A&M University System, an agency of the State of Texas (“A&M”), as landlord, and College Station’s predecessor in interest, as tenant, as amended by the Estoppel Certificate and Amendment to Ground Lease Agreement between A&M and College Station dated December 22, 2015 (together, the “Ground Lease”), related to that certain parcel of real estate located in Brazos County, Texas, as more particularly described on Exhibit A attached hereto (the “Land”).
B. Subtenant subleases the Land and related improvements from College Station, subject to the Ground Lease, pursuant to a Sublease Agreement between College Station and Subtenant dated January 13, 2016 (the “Sublease”).
C. Seller and Purchaser have agreed that, at Closing, (1) College Station will assign its interest in the Ground Lease to CDMO, (2) College Station and Subtenant will terminate the Sublease, and (3) Seller shall convey to CDMO and Inc. all the equity it currently holds in Inc. and CDMO, and more specifically described in Article V of iBio’s Certificate of Designation as iBio CMO Preferred Tracking Stock (the “Tracking Stock”) and all of Seller’s equity interest in CDMO (the “Purchased Equity”, and together with the Tracking Stock, the “Equity”), all subject to and in accordance with this Agreement.
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) paid by Purchaser to Seller, the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
Article 1
SALE OF PROPERTY; TERMINATION OF SUBLEASE
1.1 Sale of Property
. Seller agrees to sell, transfer and assign to Purchaser, and Purchaser agrees to purchase, accept and assume from Seller, subject to the terms and conditions set forth in this Agreement, the following (herein collectively referred to as the “Property”):
1.1.1 Real Property and Real Property Interest
. All of Seller’s right, title and interest in the Ground Lease, together with all of Seller’s right, title and interest in and to all improvements and fixtures related thereto, and all rights, privileges and appurtenances pertaining thereto, including all rights, easements, privileges, appurtenances and privileges belonging or appertaining thereto (the above-reference land, including the Land and the improvements located on the Land are collectively referred to herein as the “Real Property”, and the ground lease interest of Seller in such land and all other interests referenced above are collectively referred to herein as the “Real Property Interest”); and
1.1.2 Personal Property
. All of Seller’s right, title and interest in and to all tangible personal property owned by Seller and located on the Real Property and used in the ownership, operation and maintenance of the Real Property, and all books, records and files relating to the Real Property, but specifically excluding any items of personal property owned or leased by CDMO (from any party other than Seller) at or on the Real Property and further excluding any items of personal property owned by third parties and leased to Seller (collectively, the “Tangible Personal Property”).
1.1.3 Other Property Rights
. All of Seller’s right, title and interest in and to (a) all licenses, permits and other written authorizations for the use, operation or ownership of the Real Property (to the extent assignable without cost to Seller); and (b) all domain names and other intellectual property used exclusively for the Real Property (the rights and interests of Seller described in clauses (a) and (b) hereinabove being herein collectively referred to as the “Other Property Rights”); provided, however, the foregoing Other Property Rights shall be expressly limited to such property used solely in connection with the Real Property and shall in no event include any property otherwise related to any other business operations conducted by any of Seller’s affiliates. Tangible Personal Property and Other Property Rights shall not include (i) all cash on hand or on deposit in any bank, operating account or other account maintained in connection with the ownership, operation or management of the Property, cash equivalents (including certificates of deposit), deposits held by third parties (e.g., utility companies) and bank accounts, (ii) all insurance policies maintained in connection with the ownership, operation or management of the Property, (iii) any appraisals or other economic evaluations of, or projections with respect to, all or any portion of the Property, including, without limitation, budgets prepared by or on behalf of Seller or any affiliate of Seller, (iv) any documents, materials or information which are subject to attorney/client, work product or similar privilege, which constitute attorney communications with respect to the Property and/or Seller, or which are subject to a confidentiality agreement, and (v) any documents pertaining solely to the marketing of the Property and any direct or indirect interest therein for sale to prospective purchasers.
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1.2 Termination of Sublease
. College Station and Subtenant agree that the Sublease shall terminate as of the Closing Date (the “Sublease Termination”) as if the Closing Date was the natural expiration of the term of the Sublease, except that Subtenant shall have no obligation to repair or restore the Real Property under the Sublease as part of the Sublease Termination. Seller and Subtenant shall have no rights or remedies against each other related to the Sublease following the Closing Date other than with respect to (1) those indemnification obligations under the Sublease that survive the expiration or termination of the Sublease and (2) the terms of this Agreement.
Article 2
PURCHASE PRICE
2.1 Purchase Price
. The purchase price to be paid by Purchaser to Seller for the Property and as consideration for the Sublease Termination is the total sum of Twenty Eight Million Seven Hundred Fifty Thousand Dollars ($28,750,000.00) (together, the “Purchase Price”). The Purchase Price shall be paid in the following manner: (1) Twenty Eight Million Dollars ($28,000,000.00) of the Purchase Price shall be paid in U.S. Dollars (the “Cash Purchase Price”) (for clarity, Fifty Thousand Dollars [$50,000.00] payable by Purchaser to Seller pursuant to the Equity Purchase Agreement shall be applied toward the Cash Purchase Price); and (2) the remainder of the Purchase Price shall be paid with One Million (1,000,000) warrants on stock in Inc. (the “Warrants”) to be granted pursuant to a warrant to purchase stock agreement in the form attached as Exhibit I hereto (the “Warrant Agreement”). Purchaser shall deliver the Purchase Price to Seller on the Closing Date, subject to the prorations and adjustments set forth in Article 4, plus any other amounts required to be paid by Purchaser to Seller at the Closing.
Article 3
TITLE MATTERS
3.1 Title to Real Property Interest
. College Station shall convey and CDMO shall accept the Real Property Interest subject to: (i) the specific exceptions (including exceptions that are a part of the promulgated title insurance form) in the Title Commitment that the Title Company has not agreed to remove from the Title Commitment as of the date hereof and that Seller is not required to remove as provided below; (ii) matters created by, through or under Purchaser; (iii) items shown on the Survey which have not been removed as of the date hereof (or if Purchaser does not obtain a survey or an update to the Survey, all matters that a current, accurate survey of the Property would show); (iv) real estate taxes not yet due and payable; (v) all applicable local, state and federal laws, ordinances or governmental regulations, including, but not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect relating to the Property; (vi) all matters of title relative to the Real Property Interest, except for any monetary liens of an ascertainable amount created by, through, or under Seller (but excluding any matters created by, through, or under Purchaser or its affiliates), which College Station shall remove or release at Closing; (vii) the Ground Lease; and (viii) the Memorandum of Lease between A&M and Texas BioProperties, LP dated March 8, 2010.
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3.2 Title and Survey
. AmTrust Title Insurance Company (600 Congress Avenue, 14th Floor, Austin, Texas 78701, Attention: Michael Elkins) (the “Title Company” or “Escrow Agent”) has provided a Texas T-7 title insurance commitment (the “Title Commitment”) covering the Real Property Interest, showing all matters affecting title to the Real Property Interest and binding the Title Company to issue at the Closing an owner’s policy of title insurance for the Real Property Interest in the full amount of the Purchase Price (the “Title Policy”), together with copies of all documents identified in the Title Commitment which either create or evidence an exception to title or links thereto as set forth in the Title Commitment. Purchaser acknowledges receipt from Seller of a survey for the Real Property prepared by Strong Surveying and dated December 2, 2015 (the “Survey”).
Article 4
ADJUSTMENTS AND PRORATIONS
The following adjustments and prorations shall be made at the Closing:
4.1 Sublease Rents
. All amounts due and payable under or related to the Sublease shall be prorated between College Station and Subtenant as if the Closing Date was the last day of the term of the Sublease, and College Station shall reimburse Subtenant for any Base Rent (as defined in the Sublease) and any other payments paid by Subtenant that would have been due on or after the Closing Date. Notwithstanding the foregoing, any Percentage Rent (as defined in the Sublease) due by Subtenant under the Sublease for the period starting on July 1, 2021 and ending on the Closing Date shall be paid in additional Warrants.
4.2 Rent Under Ground Lease
. Rent and other amounts payable by College Station under the Ground Lease shall be prorated as of midnight of the day prior to the Closing. College Station shall pay all such rent or other amounts attributable to any period prior to the date upon which the Closing occurs, and CDMO shall pay all such rent and other amounts attributable to any period beginning on or after the date upon which the Closing occurs.
4.3 Operating Expenses
. Any operating expenses for the Property shall not be prorated and shall remain the responsibility of Purchaser.
4.4 Apportionment Credit
. Any apportionments and prorations which are not expressly provided for in this Article shall be made in accordance with the customary practice in the local jurisdictions in which the Real Property is located. Purchaser and Seller agree to prepare a schedule of tentative adjustments at least three (3) business days prior to the Closing Date. In the event the prorations to be made at the Closing result in a credit (i) to Purchaser, such amount shall be paid (at Seller’s option) at the Closing by giving Purchaser a credit against the Purchase Price in the amount of such credit, or (ii) to Seller, Purchaser shall pay the amount thereof to Seller at the Closing by wire transfer of immediately available funds to the account or accounts to be designated by Seller.
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4.5 Closing Costs
. Purchaser shall pay (1) the cost of the Survey; (2) all recording and filing charges in connection with the instruments by which Seller conveys the Property; (3) the premium for any upgrade of Title Policy for extended or additional coverage and any deletions or endorsements to the Title Policy desired by Purchaser; and (4) fifty percent (50%) of all closing charges. Seller shall pay (a) fifty percent (50%) of all closing charges, and (b) the premium and charge of the Title Company for the standard form Title Policy. Purchaser and Seller shall each pay all legal and professional fees of the attorneys and consultants engaged by them respectively. All other costs of the Closing shall be paid in accordance with the custom of the jurisdiction in which the Real Property is located. Except as expressly provided in this Agreement or in any of the documents delivered by Seller to Purchaser at Closing, with respect to all matters affecting title to the Property (and/or any portion thereof), and any liens or other encumbrances affecting the Property (and/or any portion thereof), Purchaser acknowledges and agrees that it is solely relying upon the Title Policy. If Purchaser has any claim under the Title Policy, Purchaser agrees that it will pursue any claims under the Title Policy for recovery on such claim until final, non-appealable adjudication before making a claim against Seller (except as may be required to preserve Purchaser’s rights pursuant to applicable statutes of limitation or this Agreement), and Purchaser shall not assert any claim against Seller for a breach of a representation, warranty, or covenant with respect to such claim to the extent that Purchaser actually recovers against the Title Policy for the same issue.
4.6 Delayed Adjustment
. Following the Closing, Seller, Purchaser, and Subtenant shall reasonably cooperate with each other in order to calculate and determine the correct amount of all prorations required to made pursuant to this Article. If at any time following the Closing, the amount of an item listed in this Article shall prove to be incorrect (whether as a result of an error in calculation or a lack of complete and accurate information as of the Closing), the party in whose favor the error was made shall pay to the other party the sum necessary to correct such error within thirty (30) days after receipt of proof of such error. Notwithstanding anything herein to the contrary, the final reconciliation for adjustment of any prorations under this Article shall occur within two (2) months after the Closing.
4.7 Survival
. The terms of this Article shall survive the Closing.
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Article 5
CLOSING
Purchaser and Seller hereby agree that the transaction contemplated by this Agreement (the “Transaction”) shall be consummated as follows:
5.1 Closing Date
. Consummation of the Transaction (the “Closing”) shall occur on the date hereof (the “Closing Date”). The requirements of Section 6.2(a) have been met (the “A&M Contingency”), and the requirements of Section 6.2(b) have been met (the “Financing Contingency”, and together with the A&M Contingency, the “Purchaser Contingencies”). Purchaser has notified Seller that the Purchaser Contingencies have been met. The Closing shall occur through escrow with Escrow Agent. The Closing shall take place at 12:00 p.m. Central Time on the Closing Date. Purchaser and Seller shall endeavor to conduct a “pre-Closing” on the last business day prior to the Closing Date.
5.2 Seller’s Closing Deliveries
. At the Closing, Seller shall deliver or cause to be delivered to Purchaser the following:
(a) Warrant Agreement. The Warrant Agreement, executed by Bryan Capital;
(b) Assignment of Ground Lease
. A Special Warranty Deed and Assignment of Ground Lease in the form of Exhibit C attached hereto, executed and acknowledged by College Station, conveying to CDMO all of College Station’s right, title and interest to the Ground Lease (the “Assignment of Ground Lease”).
(c) Bill of Sale
. A Bill of Sale in the form of Exhibit D attached hereto, executed by College Station, conveying to CDMO all of College Station’s right, title and interest in and to the Tangible Personal Property (the “Bill of Sale”).
(d) Termination of Sublease
. A Termination of Sublease in the form of Exhibit E attached hereto, executed by College Station, terminating the Sublease as of the Closing Date (the “Termination of the Sublease”).
(e) Termination of Memorandum of Sublease
. A Termination of the Memorandum of Sublease in the form of Exhibit F attached hereto, executed and acknowledged by College Station, terminating the Memorandum of Sublease (the “Memorandum of Sublease”) between College Station and Subtenant dated January 13, 2016 and recorded in the Official Records of Brazos County, Texas, on January 21, 2016 as Document Number 01253855, which termination shall be effective as of the Closing Date (the “Termination of the Memorandum of Sublease”).
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(f) General Assignment
. A General Assignment in the form of Exhibit G attached hereto, executed by College Station, transferring to CDMO, to the extent assignable, all of College Station’s right, title and interest in and to the Other Property Rights not otherwise transferred by the Assignment of Ground Lease or the Bill of Sale (the “General Assignment”).
(g) Ground Lease Estoppel Certificate
. An estoppel certificate in the form of Exhibit B attached hereto (“Ground Lease Estoppel Certificate”) executed by A&M.
(h) Equity Purchase Agreement
(i) . An Equity Purchase Agreement in the form of Exhibit J attached hereto (the “Equity Purchase Agreement”) executed by Bryan Capital.
(j) Closing Statement
. A Closing Statement for the Transaction executed by Seller and reflecting the Purchase Price, prorations required to made in accordance with this Agreement, and other amounts payable by Purchaser and Seller at the Closing (the “Closing Statement”).
(k) Non-Foreign Status Affidavit
. A non-foreign status affidavit in the form of Exhibit H attached hereto, executed by Seller, certifying that Seller is not a “foreign person” as that term is defined in Section 1445 of the Internal Revenue Code.
(l) Transfer Tax Returns
. To the extent required by applicable law, real estate transfer tax returns executed by Seller.
(m) Evidence of Authority
. Documentation to establish to Title Company’s reasonable satisfaction the due authorization of Seller’s sale of the Property and Seller’s delivery of the documents required to be delivered by it pursuant to this Agreement (including, but not limited to, the organizational documents of Seller and its general partners or managing members, if any, as they may have been amended from time to time, resolutions of Seller and its general partners or managing members, if any, and incumbency certificates for Seller and its general partners or managing members, if any), and such proof of the power and authority of the individual(s) executing any instruments, documents or certificates on behalf of Seller and its general partners or managing members, if any, to act for and bind Seller and its general partners or managing members, if any.
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(n) Other Documents. Any additional documents which Escrow Agent or the Title Company may reasonably require for the proper consummation of the Transaction, including, without limitation, a commercially reasonable Owner’s Affidavit and Gap Indemnity as may be required by Escrow Agent to cause Escrow Agent to issue the Title Policy to the Purchaser at Closing.
5.3 Purchaser and Subtenant Closing Deliveries
. At the Closing, Purchaser shall deliver or cause to be delivered to Seller the following:
(a) Purchase Price
. The Cash Purchase Price as adjusted for apportionments and other adjustments required under this Agreement, plus any other amounts required to be paid by Purchaser at the Closing.
(b) Warrant Agreement. The Warrant Agreement, executed by Inc.
(c) Assignment of Ground Lease
. The Assignment of Ground Lease, executed and acknowledged by CDMO.
(d) Bill of Sale
. The Bill of Sale executed by CDMO.
(e) Termination of the Sublease
. The Termination of the Sublease executed by Subtenant.
(f) Termination of Memorandum of Sublease
. The Termination of the Memorandum of Sublease, executed and acknowledged by Subtenant.
(g) General Assignment
. The General Assignment executed by CDMO.
(h) Closing Statement
. The Closing Statement executed by CDMO.
(i) Transfer Tax Returns
. To the extent required by applicable law, real estate transfer tax returns executed by Purchaser.
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(j) Evidence of Authority
. Documentation to establish to Title Company’s reasonable satisfaction the due authorization of Purchaser’s acquisition of the Property and delivery by Purchaser and Subtenant of the documents required to be delivered by it pursuant to this Agreement (including, but not limited to, the organizational documents of Purchaser and Subtenant, resolutions of Purchaser and Subtenant, and incumbency certificates for Purchaser and Subtenant), and such proof of the power and authority of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf of Purchaser and Subtenant.
(k) Additional Documents
. Any additional documents which Seller, Escrow Agent or the Title Company may reasonably require for the proper consummation of the Transaction.
(l) Equity Purchase Agreement
(m) . The Equity Purchase Agreement executed by Inc.
5.4 Recording at Closing
. On the Closing Date, the Escrow Agent shall record in the official records of Brazos County, Texas, the fully executed and acknowledged (1) Assignment of Ground Lease, and (2) Termination of Memorandum of Sublease.
Article 6
CONDITIONS TO CLOSING
6.1 Seller’s Obligations
. Seller’s obligation to close the Transaction is conditioned on all of the following, any or all of which may be expressly waived in writing by Seller, at its sole option:
(a) Consent of Landlord Under Ground Lease
. Seller shall have obtained the written consent of the landlord under the Ground Lease to the assignment of Seller’s interest in the Ground Lease to Purchaser, which written consent may be evidenced by the execution by the landlord under the Ground Lease of the Assignment and Assumption of Lease in the form of Exhibit C attached hereto, or by execution by the landlord under the Ground Lease of a letter approving the transactions described in this Agreement and Purchaser’s proposed financing in the form attached as Exhibit K hereto (the “Approval Letter”).
(b) Purchaser’s Representations True
. All representations and warranties made by Purchaser in this Agreement shall be true and correct in all material respects on and as of the Closing, as if made on and as of the Closing, except to the extent they expressly relate to an earlier date.
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(c) Purchaser’s Deliveries and Performance Complete
. Purchaser shall have delivered the funds required hereunder and all of the documents and other items required to be executed and delivered by Purchaser pursuant to Section 5.3.
(d) Defaults. On the Closing Date, Purchaser shall not be materially in default in the performance of any covenant to be performed by Purchaser under this Agreement, including, without limitation, Purchaser’s obligation to deliver all of the closing documents it is required to deliver as set forth in Section 5.3.
(e) Orders. On the Closing Date, there shall be no judicial or administrative effective order against Purchaser’s consummating the transactions contemplated herein to be consummated as of the Closing Date as a result of any suit or action instituted by any person unaffiliated with, and not acting on behalf of, Seller.
6.2 Obligations of Purchaser and Subtenant
. The obligation of Purchaser and Subtenant to close the Transaction is conditioned on all of the following, any or all of which may be expressly waived by Purchaser or Subtenant, respectively, at its sole option:
(a) Consent of Landlord Under Ground Lease; Ground Lease in Full Force and Effect
(b) . Seller shall have obtained the written consent of the landlord under the Ground Lease to the assignment of Seller’s interest in the Ground Lease to Purchaser, which written consent may be evidenced by the execution by the landlord under the Ground Lease of the Assignment and Assumption of Lease in the form of Exhibit C attached hereto, or by delivery of the Approval Letter. Purchaser shall have received the Ground Lease Estoppel Certificate, which shall not (i) allege any material default or breach under the Ground Lease by the “Tenant” thereunder, (ii) disclose any material adverse inconsistency with the Ground Lease, or (iii) allege any material dispute or claim by the lessor under the Ground Lease that is not a result of a default by Purchaser under the Sublease.
(c) Financing Contingency
. Purchaser shall have obtained commercially reasonable financing in amount which is no less than seventy-five percent (75%) of the Purchase Price allowing Purchaser to complete the Transaction on the Closing Date.
(d) Seller’s Representations True
. Subject to the provisions of Section 7.3, all representations and warranties made by Seller in this Agreement, as the same may be modified as provided in Section 7.3, shall be true and correct in all material respects on and as of the Closing, as if made on and as of such date, except to the extent they expressly relate to an earlier date.
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(e) Seller’s Deliveries and Performance Complete
. Seller shall have delivered all of the documents and other items required to be delivered by Seller pursuant to Section 5.2.
(f) Defaults
. On the Closing Date, Seller shall not be materially in default in the performance of any covenant to be performed by Seller under this Agreement, including, without limitation, Seller’s obligation to deliver all of the closing documents it is required to deliver as set forth in Section 5.2.
(g) Orders
. On the Closing Date, there shall be no judicial or administrative effective order against Seller’s consummating the transactions contemplated herein to be consummated as of the Closing Date as a result of any suit or action instituted by any person unaffiliated with, and not acting on behalf of, Purchaser.
(h) Owner’s Policy
. On the Closing Date, the Title Company shall be prepared to issue to CDMO the Title Policy, with liability equal to the total purchase price for the Property, insuring Purchaser that the tenant’s ground leasehold interest in the Real Property under the Ground Lease is vested in Purchaser pursuant to this Agreement.
6.3 Waiver of Failure of Conditions Precedent
. At any time or times on or before the date specified for the satisfaction of any condition, Purchaser or Seller may elect to waive, in writing, the benefit of any such condition set forth in Sections 6.1 or 6.2, respectively. In the event any of the conditions set forth in Sections 6.1 or 6.2 are neither waived nor fulfilled, the party for whose benefit the condition exists may terminate this Agreement by delivering notice to the other whereupon neither party shall have any further rights, obligations or liabilities under this Agreement except for those which expressly survive the termination of this Agreement; provided, however, if the failure of a condition set forth in this Agreement for the benefit of a party is not satisfied due to a default of the other party, then the terms of Article 9 shall govern.
Article 7
REPRESENTATIONS AND WARRANTIES
7.1 Purchaser’s Representations
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. Purchaser represents and warrants to Seller as follows as of the date of the Agreement through the Closing: Purchaser (i) is duly organized (or formed), validly existing and in good standing under the laws of its state or commonwealth of organization, (ii) has all necessary power to execute and deliver this Agreement and all documents contemplated hereunder to be executed by them, respectively, and to perform all of their respective obligations hereunder and thereunder, (iii) CDMO is the owner and holder of the leasehold estate of “Tenant” under the Sublease and CDMO is not a party to any leases, subleases, licenses, or other agreements giving any other party the right to occupy the Real Property other than the Sublease; and (iv) to Purchaser’s knowledge, (1) there is no material default on the part of the “Tenant” under the Ground Lease, and (2) the Ground Lease is in full force and effect and there are no agreements related to the Ground Lease except as provided in Recital A on the first page of this Agreement. This Agreement and all documents contemplated hereunder to be executed by Purchaser (1) have been duly authorized by all requisite partnership, corporate or other action on the part of Purchaser and its general partners or managing members, if any, and (2) are the valid and legally binding obligation of Purchaser, enforceable in accordance with their respective terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium, or other similar laws affecting the rights of creditors generally. Neither the execution and delivery of this Agreement or any document contemplated hereunder to be executed by Purchaser, nor the performance of the obligations of Purchaser or its general partners or managing members, if any, hereunder or thereunder will result in the violation of any law or any provision of the partnership agreement, articles of incorporation, by-laws or other organizational or governing documents of Purchaser, nor will conflict with any order or decree of any court or governmental authority by which Purchaser or its general partners or managing members, if any, are bound.
Purchaser (i) has not applied for, consented to, acquiesced to, or is subject to the appointment of a receiver, trustee, custodian, liquidator or other similar official for itself or for all or a substantial part of its assets; (ii) is not subject to a bankruptcy, insolvency, reorganization, liquidation, dissolution or similar proceeding, and has not admitted in writing its inability to pay its debts as they become due; (iii) has not made an assignment for the benefit of creditors; (iv) has not filed a petition or an answer seeking, consenting to, or acquiescing in a reorganization or an arrangement with creditors, or sought to take advantage of any bankruptcy law, insolvency law or other law for the benefit of debtors; or (v) has not filed an answer admitting the material obligations of a petition filed against it in any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar proceeding.
Purchaser represents and warrants to Seller that Purchaser is not now nor shall be at any time until the Closing under this Agreement a Person with whom a U.S. Person, including a Financial Institution, is prohibited from transacting business of the type contemplated by this Agreement, whether such prohibition arises under United States law, regulation, executive orders and lists published by OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise. Purchaser (a) is not, to Purchaser’s knowledge, under investigation by any governmental authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist related activities, any crimes which in the United States would be predicate crimes to money laundering, or any violation of any Anti-Money Laundering Laws; (b) has not been assessed civil or criminal penalties under any Anti-Money Laundering Laws; or (c) has not had any of its funds seized or forfeited in any action under any Anti-Money Laundering Laws.
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The foregoing representations and warranties shall survive the Closing. Purchaser agrees to indemnify, protect, defend (with counsel satisfactory to Seller) and hold harmless Seller and any Person who owns a direct or indirect interest in Seller (the “Seller Parties”) from and against any and all claims, damages, losses, liabilities, costs and expenses, including, without limitation, reasonable expenses of investigation and reasonable attorneys’ fees and disbursements arising out of any breach by Purchaser of the representations and warranties in this Section 7.1, and such obligations shall survive Closing or termination of this Agreement.
7.2 Seller’s Representations
. Seller represents and warrants to Purchaser as follows as of the date of this Agreement:
(a) Seller (i) is duly organized (or formed), validly existing and in good standing under the laws of its state or commonwealth of organization, and (ii) has all necessary power to execute and deliver this Agreement and all documents contemplated hereunder to be executed by it and to perform its obligations hereunder and thereunder. This Agreement and all documents contemplated hereunder to be executed by Seller (1) have been duly authorized by all requisite partnership, corporate or other action on the part of Seller and (2) are the valid and legally binding obligation of Seller, enforceable in accordance with their respective terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium, or other similar laws affecting the rights of creditors generally. Neither the execution and delivery of this Agreement or any document contemplated hereunder to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the partnership agreement, articles of incorporation, by-laws or other organizational or governing documents of Seller, nor will conflict with any order or decree of any court or governmental authority by which Seller is bound.
(b) Seller (i) has not applied for, consented to, acquiesced to, or is subject to the appointment of a receiver, trustee, custodian, liquidator or other similar official for itself or for all or a substantial part of its assets; (ii) is not subject to a bankruptcy, insolvency, reorganization, liquidation, dissolution or similar proceeding, and has not admitted in writing its inability to pay its debts as they become due; (iii) has not made an assignment for the benefit of creditors; (iv) has not filed a petition or an answer seeking, consenting to, or acquiescing in a reorganization or an arrangement with creditors, or sought to take advantage of any bankruptcy law, insolvency law or other law for the benefit of debtors; or (v) has not filed an answer admitting the material obligations of a petition filed against it in any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar proceeding.
(c) Seller represents and warrants to Purchaser that Seller is not now nor shall be at any time until the Closing under this Agreement a Person with whom a U.S. Person, including a Financial Institution, is prohibited from transacting business of the type contemplated by this Agreement, whether such prohibition arises under United States law, regulation, executive orders and lists published by OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise. Seller (a) is not, to Seller’s knowledge, under investigation by any governmental authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist related activities, any crimes which in the United States would be predicate crimes to money laundering, or any violation of any Anti-Money Laundering Laws; (b) has been assessed civil or criminal penalties under any Anti-Money Laundering Laws; or (c) has had any of its funds seized or forfeited in any action under any Anti-Money Laundering Laws.
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(d) To Seller’s knowledge, the Ground Lease is in full force and effect and has not been amended other than as provided in Recital A on the first page of this Agreement. Seller has not received any written notice from the lessor under the Ground Lease that Seller is in default in the performance of any material covenant to be performed by the “Tenant” under the Ground Lease that is not a result of a default by Purchaser under the Sublease. To Seller’s knowledge, there is no material default on the part of the “Landlord” under the Ground Lease.
(e) Seller is not a party to any leases, subleases, licenses, or other agreements giving any other party the right to occupy the Property or any part thereof other than the Ground Lease and the Sublease.
(f) To Seller’s knowledge, as of the date hereof, Seller is not a party to any service, supply, maintenance, utility or leasing commission agreements or equipment leases (“Contracts”) with respect to the Real Property.
(g) Seller has not filed notice of protest of real property tax assessments against the Real Property which are currently pending.
(h) Seller has not received any written notice from any government authority stating that the Real Property currently is in violation of any Environmental Laws.
(i) Seller has received no written notice that there is any litigation, arbitration or other legal or administrative suit, action or proceeding pending or threatened against Seller, other than claims by third parties for personal injury (e.g., slip and fall) which Seller’s insurance carrier is currently handling. Seller has received no written notice that the Real Property or the current use and operation thereof violate any applicable federal, state or municipal law, statute, code, ordinance, rule or regulation in any material respect, except with respect to such violations as have been fully cured, prior to the date hereof. Seller has received no written notice that there is any general plan, land use or zoning action or proceeding, or general or special assessment action or proceeding, or condemnation or eminent domain action or proceeding pending or threatened with respect to the Real Property or any part thereof.
(j) Seller is not a “foreign person” as defined in Section 1445 of the Internal Revenue Code of 1986, as amended, and the Income Tax Regulations thereunder.
(k) Seller has not constructed any improvements on the Property since the date of the Survey which are not depicted thereon.
7.3 General Provisions
.
7.3.1 Breach
. If either party obtains actual knowledge at or prior to the Closing that any of the representations or warranties made herein by the other party are untrue, inaccurate or incorrect in any material respect, such party shall deliver notice thereof to the other party. The party receiving such notice will have three (3) days to cure such breach, and the Closing may be extended to allow such cure period. Purchaser shall be deemed to have knowledge of all information contained in the documents, if any, delivered by Seller to Purchaser and in any report or other diligence prepared by or on behalf of Purchaser and delivered to Purchaser.
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7.3.2 Survival
. The representations and warranties made by Seller in Section 7.2, as modified by this Section 7.3, shall survive the Closing for a period of six (6) months (the “Survival Period”) and Seller shall only be liable to Purchaser hereunder for a breach of a representation and warranty made herein with respect to which suit is filed by Purchaser against Seller with a court having jurisdiction on or before the expiration of the Survival Period. If Purchaser fails to timely file such action within fifteen (15) business days after the last day of the Survival Period, such action shall be barred.
7.3.3 Definition of “Knowledge”
. All references in this Agreement or in any document or instrument to be delivered at Closing to Seller’s knowledge or words of similar import shall refer only to the actual present knowledge of Timothy Sullivan or Bob Daniel (together, “Seller’s Representatives”) and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller, or any shareholder, member, partner or affiliate of Seller, or any officer, agent, employee or representative of any of them, or to impose or have imposed upon Seller’s Representative any duty to investigate the matters to which such knowledge, or the absence thereof, pertains, including, but not limited to, the contents of the files, documents and materials made available to or disclosed to Purchaser or the contents of files maintained by Seller or Seller’s Representatives. There shall be no personal liability on the part of Seller’s Representative arising out of any representations or warranties made in this Agreement.
(a) All references in this Agreement or in any document or instrument to be delivered at Closing to Purchaser’s knowledge or words of similar import shall refer only to the actual present knowledge of Rob Lutz or Tom Issett (“Purchaser’s Representatives”) and shall not be construed, by imputation or otherwise, to refer to the knowledge of Purchaser, or any shareholder, member, partner or affiliate of Purchaser, or any officer, agent, employee or representative of any of them, or to impose or have imposed upon Purchaser’s Representatives any duty to investigate the matters to which such knowledge, or the absence thereof, pertains, including, but not limited to, the contents of the files, documents and materials made available to or disclosed to Seller or the contents of files maintained by Purchaser or Purchaser’s Representatives. There shall be no personal liability on the part of Purchaser’s Representative arising out of any representations or warranties made in this Agreement.
7.3.4 Action for Breach of Representation or Warranty or Covenant
. Each party shall have the right to bring an action against the other on the breach of a representation or warranty or covenant hereunder or in the documents delivered by Seller at the Closing, but only on the following conditions: (1) the breach in question results from, or is based on, a condition, state of facts or other matter that was not known prior to Closing by the party bringing the action, and (2) neither party shall have the right to bring a cause of action for a breach of a representation or warranty or covenant unless the damage to such party on account of such breach (individually or when combined with damages from other breaches) equals or exceeds $100,000, and then such party may bring an action for the full amount of such claim (but not in excess of the Cap defined below).
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7.3.5 Knowledge of Breach
. Neither party shall have any liability after Closing for the breach of a representation or warranty or covenant hereunder of which the other party hereto had knowledge as of Closing. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement, Seller shall have no liability with respect to any of Seller’s representations, warranties and covenants hereunder if, prior to Closing, Purchaser has knowledge of any breach of a representation, warranty or covenant of Seller hereunder, or Purchaser obtains knowledge that contradicts any of Seller’s representations, warranties or covenants hereunder (and the representations and warranties of Seller shall be deemed to be modified thereby to be accurate), and Purchaser nevertheless consummates the transaction contemplated by this Agreement (in which event any such breach or contradiction shall be deemed waived by Purchaser). Furthermore, immediately as of the Closing, Seller’s representations and warranties shall be deemed to be modified to reflect any facts or circumstances disclosed in any estoppel certificates received by Purchaser.
7.3.6 Liability of Seller
. Notwithstanding any other provision of this Agreement, any agreement contemplated by this Agreement, or any rights which Purchaser might otherwise have at law, equity, or by statute related to this Agreement, whether based on contract or some other claim, Purchaser agrees that any liability of Seller to Purchaser related to this Agreement will be limited to an amount equal to 3% of the Purchase Price (the “Cap”); provided, however, that the Cap shall not apply to any amounts related to any fraud, intentional misrepresentation, or gross negligence of Seller or to any claims under Section 12.10 below (Professional Fees), in each case as determined by a final, non-appealable judgment by a court of competent jurisdiction. This Section 7.3 shall survive termination of this Agreement or the Closing.
Article 8
COVENANTS
8.1 Maintenance of Property
. Except to the extent Seller is relieved of such obligations by Article 10 hereof, between the date hereof and the Closing, Seller shall use reasonable efforts to continue to operate the Real Property Interest pursuant to its normal course of business (such obligations not including capital expenditures or expenditures not incurred in such normal course of business).
8.2 Contracts
. Seller shall not enter into any new Contracts which will bind Purchaser or the Property following the Closing under such Contract, without the approval of Purchaser, which approval shall not be unreasonably withheld, conditioned or delayed.
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8.3 Negative Covenants
. Seller shall not take any of the following actions without the prior approval of Purchaser in Purchaser’s sole discretion: (a) make or permit to be made any material alterations to or upon the Real Property (except as may be required by the Ground Lease, law or any matter of record for the Real Property Interest); or (b) grant any liens or encumbrances upon the Real Property that will not be discharged upon the Closing.
8.4 Consent of Landlord Under the Ground Lease
. Seller shall use commercially reasonable efforts to obtain the written consent of A&M under the Ground Lease to the assignment, as contemplated in this Agreement, of all of Seller’s right, title and interest as “Tenant” under the Ground Lease to Purchaser or Purchaser’s assignee.
Article 9
DEFAULTS
9.1 Default by Purchaser or Subtenant
. If the Closing fails to occur solely by reason of Purchaser’s failure or refusal to perform or Subtenant’s failure or refusal to perform, in all material respects, its obligations under this Agreement or any material misrepresentation of Purchaser existing on the Closing Date, and Seller is otherwise ready, willing and able to close the Transaction in accordance with Seller’s obligations under this Agreement (“Purchaser’s Closing Default”), then Seller may elect to terminate this Agreement by delivering notice to Purchaser and Subtenant.
9.2 Default by Seller
. If the Closing fails to occur by reason of Seller’s failure or refusal to perform, in all material respects, its obligations hereunder or any material misrepresentation by Seller under this Agreement existing on the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within five (5) business days after Purchaser first learns of any such default or breach or misrepresentation by Seller, except no notice or cure period shall apply if Seller fails to timely consummate the sale of the Property hereunder), then Purchaser shall have the right, to elect, as its sole and exclusive remedy, to: (a) terminate this Agreement by delivering notice to Seller; (b) waive such default and/or breach and proceed to close the Transaction without any reduction of or credit against the Purchase Price; or (c) enforce specific performance of Seller’s obligation to complete the Transaction and convey the Property to Purchaser in accordance with this Agreement; provided that such action for specific performance must be commenced within 15 Business Days after the scheduled Closing Date. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.
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9.3 Survival
. The terms of this Article shall survive the termination of this Agreement and the Closing.
Article 10
DAMAGE, DESTRUCTION AND CONDEMNATION
10.1 Destruction or Damage
. In the event the Real Property is damaged or destroyed between the date of this Agreement and the Closing, Seller shall notify Purchaser of such fact promptly after obtaining knowledge thereof. If any such damage or destruction (a) is an insured casualty, and (b) would cost less than ten percent (10%) of the Purchase Price to repair or restore, as determined by an architect selected by Seller and reasonably approved by Purchaser, then this Agreement shall remain in full force and effect and Purchaser shall acquire the Real Property Interest upon the terms and conditions set forth herein. In such event, subject to the terms of the Sublease, Seller shall repair the subject damage or destruction and the Closing shall be extended by a period reasonable necessary to allow Seller to repair the subject damage or destruction not to exceed forty-five (45) days.
In the event the Real Property is damaged or destroyed between the date of this Agreement and Closing and (1) the cost of repair would equal or exceed ten percent (10%) of the Purchase Price, as determined by an architect selected by Seller and reasonably approved by Purchaser, or (2) the casualty is an uninsured casualty and the cost of repair would equal or exceed three percent (3%) of the Purchase Price, as determined by an architect selected by Seller and reasonably approved by Purchaser, then, notwithstanding anything to the contrary set forth above in this Section, Seller shall have the right to terminate this Agreement by delivering notice to Purchaser and Purchaser shall have the right to terminate this Agreement by delivering notice (the “Election Notice”) to Seller, in each case, within ten (10) days after Seller’s delivery to Purchaser of notice of the estimated cost to repair the subject damage or destruction, and the Closing Date shall be extended, if necessary, to provide sufficient time for Seller and Purchaser to make such election. If Purchaser does not deliver notice to Seller of Purchaser’s reasons for disapproving an architect within five (5) days after its receipt of notice from Seller of the architect proposed by Seller to estimate the cost to repair the subject damage or destruction, Purchaser shall be deemed to have approved the architect selected by Seller. The failure by Purchaser to deliver the Election Notice or Seller to deliver its termination notice, in either case, within the above-referenced ten (10) day period shall be deemed an election not to terminate this Agreement. If Seller elects to terminate as a result of such uninsured casualty, then Purchaser may elect to void Seller’s termination by giving Seller written notice of such election within five (5) business days after Purchaser’s receipt of Seller’s termination notice, in which event, to the extent Purchaser is entitled to such proceeds pursuant to the terms of the Sublease, Purchaser shall receive a credit at Closing from Seller in the amount of the costs of repair up to three percent (3%) of the Purchase Price, and Purchaser shall be responsible for the costs of repair.
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In the event neither Seller nor Purchaser elects to terminate this Agreement as set forth above, this Agreement shall remain in full force and effect, to the extent that Purchaser is entitled to such proceeds pursuant to the terms of the Sublease, Seller shall assign to Purchaser all of Seller’s right, title and interest in and to any and all proceeds of insurance on account of the subject damage or destruction (if any). Through the Closing, Purchaser shall maintain the property insurance coverage for the Real Property required to be maintained pursuant to the Sublease. If this Agreement is terminated pursuant to the foregoing terms of this Agreement, neither party shall have any further rights, obligations or liabilities under this Agreement except for those which are expressly stated herein to survive the termination of this Agreement. Purchaser shall have no right to terminate this Agreement as a result of damage to or destruction of any portion of the Property, except to the extent expressly provided for in this Agreement, and in no event may Purchaser terminate this Agreement as a result of damage to or destruction of any portion of the Property caused by, through or under Purchaser.
10.2 Condemnation
. In the event all or any significant portion (as hereinafter defined) of the Real Property is taken by eminent domain, condemnation or similar proceeding (or is the subject of a pending taking which has not yet been consummated) between the date of this Agreement and the Closing, Seller shall notify Purchaser of such fact promptly after obtaining knowledge thereof. Purchaser shall have the right to terminate this Agreement by delivering notice to Seller no later than ten (10) days after the earlier of (i) its receipt of Seller’s notice, or (ii) such earlier date as Purchaser learns of the subject taking, and the Closing shall be extended, if necessary, to provide sufficient time for Purchaser to make such election. The failure by Purchaser to so elect to terminate this Agreement within such ten (10) day period shall be deemed an election not to terminate this Agreement. For purposes hereof, a “significant portion” of the Real Property shall mean such a portion as shall have a value, as reasonably determined by Seller, in excess of ten percent (10%) of the Purchase Price. If Purchaser elects to terminate this Agreement in accordance with the foregoing terms, neither party shall have any further rights, obligations or liabilities under this Agreement except for those which are expressly stated herein to survive the termination of this Agreement. If (a) Purchaser does not elect to terminate this Agreement as aforesaid in the event all or any significant portion of the Real Property is taken, or (b) a portion of the Real Property not constituting a significant portion of the Real Property is taken or becomes subject to a pending taking by eminent domain, then there shall be no abatement of the Purchase Price; provided, however, that, at the Closing, Seller shall pay to Purchaser, to the extent Purchaser is entitled to such award pursuant to the terms of the Sublease, the amount of any award for, or other proceeds on account of, such taking which have been actually paid to Seller between the date of this Agreement and the Closing as a result of such taking (less all costs and expenses, including attorneys’ fees and costs, incurred by Seller as of the Closing in obtaining payment of such award or proceeds) and, to the extent such award or proceeds have not been paid to Seller, Seller shall assign to Purchaser at the Closing the rights of Seller to, and Purchaser shall be entitled to receive and retain to the extent Purchaser is entitled thereto pursuant to the terms of the Sublease, Seller’s rights to all awards for the taking of the Real Property or the subject portion thereof.
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10.3 Waiver
. The terms of this Article supersede the provisions of any applicable statutory or decisional law with respect to the subject matter of this Article.
Article 11
DISCLAIMER, WAIVER, RELEASE
11.1 Disclaimer
. AS A MATERIAL INDUCEMENT TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY SELLER AND THE PERFORMANCE BY SELLER OF ITS OBLIGATIONS HEREUNDER, PURCHASER ACKNOWLEDGES, REPRESENTS, WARRANTS AND AGREES, TO AND WITH SELLER, THAT, AS OF THE DATE OF THIS AGREEMENT AND THE CLOSING AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT AND OTHER OBLIGATIONS OF SELLER IN THIS AGREEMENT OR ANY OF THE CLOSING DOCUMENTS THAT SURVIVE THE CLOSING (HEREIN COLLECTIVELY CALLED THE “Seller’s Warranties”): (i) PURCHASER IS PURCHASING THE PROPERTY IN AN “AS IS” CONDITION WITH RESPECT TO ANY FACTS, CIRCUMSTANCES, CONDITIONS AND DEFECTS OF ALL KINDS, AND SELLER HAS NO OBLIGATION TO REPAIR OR CORRECT ANY SUCH FACTS, CIRCUMSTANCES, CONDITIONS OR DEFECTS OR TO COMPENSATE PURCHASER FOR THE SAME; (ii) BASED UPON ALL PHYSICAL INSPECTIONS, EXAMINATIONS AND TESTS OF THE PROPERTY AS PURCHASER DEEMS NECESSARY OR APPROPRIATE, PURCHASER IS AND WILL BE RELYING STRICTLY AND SOLELY UPON SUCH INSPECTIONS AND EXAMINATIONS AND THE ADVICE AND COUNSEL OF ITS OWN AND PURCHASER IS AND WILL BE FULLY SATISFIED THAT THE PURCHASE PRICE IS FAIR AND ADEQUATE CONSIDERATION FOR THE PROPERTY; (iii) EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER IS NOT MAKING AND HAS NOT MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS AN INDUCEMENT TO PURCHASER TO ENTER INTO THIS AGREEMENT AND THEREAFTER TO PURCHASE THE PROPERTY OR FOR ANY OTHER PURPOSE, INCLUDING WITHOUT LIMITATION, REPRESENTATIONS OR WARRANTIES AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ZONING, TAX CONSEQUENCES, LATENT OR PATENT CONDITION, ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, COMPLIANCE OF THE PROPERTY WITH LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF DOCUMENTS, BOOKS, RECORDS OR ANY OTHER INFORMATION PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY; (iv) PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY SELLER, THE MANAGER OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT; AND (v) BY REASON OF ALL OF THE FOREGOING, PURCHASER SHALL ASSUME THE FULL RISK OF ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES AND EXPENSES OCCASIONED BY ANY FACT, CIRCUMSTANCE, CONDITION OR DEFECT PERTAINING TO THE PHYSICAL CONDITION OF, OR ANY OTHER MATTER RELATIVE TO, THE PROPERTY, EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT.
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PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATE AND THAT, EXCEPT FOR THE SELLER’S WARRANTIES, IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS, ADVISORS, REPRESENTATIVES AND AGENTS IN PURCHASING THE PROPERTY AND SHALL MAKE AN INDEPENDENT VERIFICATION OF THE ACCURACY OF ALL DOCUMENTS AND INFORMATION PROVIDED BY SELLER. BY FAILING TO TERMINATE THIS AGREEMENT, PURCHASER ACKNOWLEDGES THAT SELLER HAS AFFORDED PURCHASER A FULL OPPORTUNITY TO CONDUCT SUCH INVESTIGATIONS OF THE PROPERTY AS PURCHASER DEEMED NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY, AND, EXCEPT FOR THE SELLER’S WARRANTIES, WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO.
Except as expressly set forth in this Agreement or in the documents delivered by Seller to Purchaser at Closing, it is understood and agreed that Seller and Seller’s agents or employees have not at any time made and are not now making, and they specifically disclaim, any warranties, representations or guaranties of any kind or character, express or implied, with respect to the Property, including, but not limited to, warranties, representations or guaranties as to (a) matters of title, (b) environmental matters relating to the Property or any portion thereof, including, without limitation, the presence of hazardous materials in, on, under or in the vicinity of the Property, (c) geological conditions, including, without limitation, subsidence, subsurface conditions, water table, underground water reservoirs, limitations regarding the withdrawal of water, and geologic faults and the resulting damage of past and/or future faulting, (d) whether, and to the extent to which the Property or any portion thereof is affected by any stream (surface or underground), body of water, wetlands, flood prone area, flood plain, floodway or special flood hazard, (e) drainage, (f) soil conditions, including the existence of instability, past soil repairs, soil additions or conditions of soil fill, or susceptibility to landslides, or the sufficiency of any undershoring, (g) the presence of endangered species or any environmentally sensitive or protected areas, (h) zoning or building entitlements to which the Property or any portion thereof may be subject, (i) the availability of any utilities to the Property or any portion thereof including, without limitation, water, sewage, gas and electric, (j) usages of adjoining property, (k) access to the Property or any portion thereof, (l) the value, compliance with the plans and specifications, size, location, age, use, design, quality, description, suitability, structural integrity, operation, title to, or physical or financial condition of the Property or any portion thereof, or any income, expenses, charges, liens, encumbrances, rights or claims on or affecting or pertaining to the Property or any part thereof, (m) the condition, construction or use of the Property or compliance of the Property with any or all past, present or future federal, state or local ordinances, rules, regulations or laws, building, fire or zoning ordinances, codes or other similar laws, (n) the existence or non-existence of underground storage tanks, surface impoundments, or landfills, (o) any other matter affecting the stability and integrity of the Property, (p) the potential for further development of the Property, (q) the merchantability of the Property or fitness of the Property for any particular purpose, (r) the truth, accuracy or completeness of the property documents or any survey of the Property, (s) tax consequences, or (t) any other matter or thing with respect to the Property.
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Purchaser acknowledges that it will have the opportunity to inspect the Property and observe its physical characteristics and existing conditions and the opportunity to conduct such investigation and study on and of the Property and adjacent areas as Purchaser deems necessary, and Purchaser hereby FOREVER RELEASES AND DISCHARGES the Seller Parties from all responsibility and liability (other than that arising under representations or warranties of Seller expressly set forth in this Agreement or in the documents delivered by Seller to Purchaser at Closing), including without limitation, liabilities under the Comprehensive Environmental Response, Compensation and Liability Act Of 1980 (42 U.S.C. Sections 9601 et seq.), as amended (“CERCLA”), the Resource Conservation and Recovery Act (42 U.S.C. Section 9601 et seq.), as amended, and the Oil Pollution Act (33 U.S.C. Section 2701 et seq.), regarding the condition, valuation, salability or utility of the Property, or its suitability for any purpose whatsoever (including, but not limited to, with respect to the presence in the soil, air, structures and surface and subsurface waters, of hazardous materials or other materials or substances that have been or may in the future be determined to be toxic, hazardous, undesirable or subject to regulation and that may need to be specially treated, handled and/or removed from the Property under current or future federal, state and local laws, regulations or guidelines, and any structural and geologic conditions, subsurface soil and water conditions and solid and hazardous waste and hazardous materials on, under, adjacent to or otherwise affecting the Property). Except as to representations or warranties of Seller expressly set forth in this Agreement or in the documents delivered by Seller to Purchaser at Closing, Purchaser further hereby WAIVES (and by Closing this transaction will be deemed to have WAIVED) any and all objections and complaints (including, but not limited to, federal, state and local statutory and common law based actions, and any private right of action under any federal, state or local laws, regulations or guidelines to which the Property is or may be subject, including, but not limited to, CERCLA) concerning the physical characteristics and any existing conditions of the Property. Purchaser further hereby assumes the risk of changes in applicable laws and regulations relating to past, present and future environmental conditions on the Property and, except as to representations or warranties of Seller expressly set forth in this Agreement, the risk that adverse physical characteristics and conditions, including, without limitation, the presence of hazardous materials or other contaminants, may not have been revealed by its investigation.
From and after Closing, Purchaser agrees to indemnify, defend and hold the Seller Parties harmless of and from any and all liabilities, claims, demands, and expenses of any kind or nature which are in any way related to the ownership, maintenance, operation or physical condition of the Property, including, without limitation, in connection with hazardous materials and any requirements or demands of governmental agencies with jurisdiction over the Property; provided, however, that this paragraph shall not apply to any fraud, gross negligence, or willful misconduct on the part of any Seller Parties as determined by a final, non-appealable judgment in a court of competent jurisdiction.
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11.2 Release. Purchaser and Seller hereby mutually remise, release, acquit, satisfy, and forever discharge the other said party, and any of their affiliates, legal representatives, successors and assigns, of and from all causes of action, accounts, bills, rents and other payments, liabilities, agreements, promises, claims and demands whatsoever, in law or in equity, which either Purchaser or Seller or any of their affiliates ever had, now has, or which Purchaser or Seller, any of their affiliates, personal representatives, successors or assigns hereafter shall or may have against said other party, effective as of the Closing Date (whether arising prior to or subsequent to the Closing Date), for, upon and by reason of any matter, cause or thing whatsoever arising out of and relating in any way to (1) the Property, the Ground Lease, or the Sublease, (2) the Equity or any related dividends or other payments, (3) the Terminated Agreements and Rights, and (4) any other transactions or agreements between Purchaser and Seller; provided, however, that this release shall only be effective as of the Closing and shall not apply to any terms that expressly survive Closing or any breach of the documents delivered at Closing.
11.3 Definition of Environmental Laws. For purposes of this Agreement, the term “Environmental Laws” shall mean and include all federal, state and local statutes, ordinances, regulations and rules relating to environmental quality, health, safety, contamination and clean-up, including, without limitation: (1) the Clean Air Act, 42 U.S.C. § 7401 et seq.; (2) the Clean Water Act, 33 U.S.C. § 1251 et seq.; (3) the Water Quality Act of 1987; (4) the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et seq.; (5) the Marine Protection, Research and Sanctuaries Act, 33 U.S.C. § 1401 et seq.; (6) the National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; (7) the Noise Control Act, 42 U.S.C. 4901 et seq.; (8) the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.; (9) the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq., as amended by the Hazardous and Solid Waste Amendments of 1984; (10) the Safe Drinking Water Act, 42 U.S.C. § 300f et seq.; (11) the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act, the Emergency Planning and Community Right-to-Know Act, and the Radon Gas and Indoor Air Quality Research Act; (12) the Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2601 et seq.; (13) the Atomic Energy Act, 42 U.S.C. § 2011 et seq.; (14) the Nuclear Waste Policy Act of 1982, 42 U.S.C. § 10101 et seq.; and (15) state superlien and environmental clean-up statutes, with implementing regulations and guidelines.
11.4 Survival
. The terms of this Article shall survive the Closing.
Article 12
MISCELLANEOUS
12.1 Assignment.
(a) Purchaser may not assign any of its rights under this Agreement without first obtaining Seller’s consent, which consent may be given or withheld in Seller’s sole discretion. The assignment of any of Purchaser’s rights under this Agreement without Seller’s prior consent or any transfer, directly or indirectly, of any stock, partnership interest, membership interest or other ownership interest in Purchaser without Seller’s consent, which consent may be given or withheld in Seller’s sole discretion, shall constitute a non-curable default by Purchaser under this Agreement and, at Seller’s election, be null and void.
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(b) Notwithstanding the terms of Subsection 12.1(a) above, Purchaser has the right to assign all of its right, title and interest in and to this Agreement to an entity that is owned or controlled by Purchaser (“Permitted Purchaser Assignee”), by providing written evidence of such assignment executed by Purchaser and Permitted Purchaser Assignee, together with evidence reasonably satisfactory to Seller that Permitted Purchaser Assignee is owned or controlled by Purchaser, and delivered to Seller at least three (3) business days prior to the Closing Date.
12.2 Brokers
. Seller and Purchaser each represent to the other that it has had no dealings with any broker, finder or other party concerning Purchaser’s acquisition of the Property. Seller and Purchaser each hereby agree to indemnify, protect, defend (with counsel satisfactory to the other) and hold harmless the other from and against any and all claims, liabilities, losses, damages, costs and expenses (including reasonable attorney’s fees) suffered or incurred by the other in connection with any claim arising out of the acts of the indemnifying party (or others on its behalf) for a commission, finder’s fee or similar compensation made by any broker, finder or any party who claims to have dealt with the indemnifying party or others on its behalf. The terms of this Section shall survive the termination of this Agreement and the Closing.
12.3 Notices
Any notice, request, demand, consent, approval and other communications (“Notice”) under this Agreement shall be in writing, and shall be sent by (i) personal delivery with proof of delivery thereof, (ii) reputable overnight courier service, sent for next business day delivery, charges prepaid, (iii) certified mail, postage prepaid, return receipt requested, or (iv) electronic mail. Each Notice shall be sent, addressed to the party for whom it is intended at its address set forth below or to such other address as it may designate for the delivery of Notices to it by giving at least five (5) days prior Notice to the other party in accordance with this Section:
| If to Purchaser or Subtenant: | iBio 8800 HSC Parkway Bryan, Texas 77807 Attention: Robert Lutz Email address: ***@***
|
with a copy to:
Venable LLP 750 East Pratt Street, Suite 900 Baltimore, Maryland 21201 Attention: Charles Morton Email address: ***@*** |
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| If to Seller: | College Station Investors LLC 3811 Turtle Creek Blvd., Suite 975 Dallas, Texas 75219 Attention: Timothy Sullivan Email address: ***@***
|
| With a copy to: | Vinson & Elkins L.L.P. Attention: Prentiss Cutshaw Email address: ***@*** Reference: KBD550/16000
|
Any Notice sent by personal delivery in accordance with the foregoing shall be delivered during normal business hours and shall be deemed received when delivered or, if delivery is rejected, when delivery was attempted. Any Notice sent by personal delivery on a business day shall be deemed received upon the date of delivery of same provided the same is delivered prior to 5:00 p.m. local time on a business day, with any such delivery occurring after 5:00 p.m. local time being deemed received on the next business day. Any Notice sent by overnight courier service in accordance with the foregoing shall be deemed received on the first business day following the date sent. Any Notice sent by certified mail in accordance with the foregoing shall be deemed received on the third (3rd) business day following the date mailed. Any Notice sent by electronic mail in accordance with the foregoing prior to 5:00 p.m. local time on a business day shall be deemed received on the date the same was sent and any Notice sent in accordance with the foregoing after 5:00 p.m. local time shall be deemed received on the next business day. Either party may, by notice given pursuant to this Section, change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses, for its Notices, but Notice of a change of address shall only be effective upon that date which occurs five (5) days after delivery of the same to the other party. Seller and Purchaser each agrees that it will not refuse or reject delivery of any notice given hereunder, that it will acknowledge, in writing, receipt of the same upon request by the other party and that any notice rejected or refused by it shall be deemed for all purposes of this Agreement to have been received by the rejecting party on the date so refused or rejected, as conclusively established by the records of the personal delivery service, the U.S. Postal Service or the courier service. All Notices that are required or permitted to be given by either party to the other under this Agreement may be given by such party or its legal counsel, who are hereby authorized to do so on the party’s behalf.
12.4 Calculation of Time Periods
. Unless otherwise specified, in computing any period of time described in this Agreement, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is not a business day in the county in which the Real Property is located, in which event the period shall run until the end of the next business day. The final day of any such period shall be deemed to end at 5 p.m., local time in the local jurisdiction in which the Real Property is located. As used herein, the term “business day” shall mean any day other than a Saturday, Sunday or Federal holiday.
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12.5 Survival/Merger
. Except for the provisions of this Agreement which are explicitly stated to survive the Closing, (a) none of the terms of this Agreement shall survive the Closing, and (b) the delivery of the Assignment of Ground Lease and any other documents and instruments by Seller and the acceptance thereof by Purchaser and Subtenant shall effect a merger, and be deemed the full performance and discharge of every obligation on the part of Purchaser and Seller to be performed hereunder. The provisions of this Article 12 shall survive the termination of this Agreement and the Closing.
12.6 Termination of Agreement
. It is understood and agreed that if Purchaser or Seller terminates this Agreement pursuant to a right of termination granted hereunder, thereafter neither party shall have any further rights, obligations or liabilities under this Agreement except for those which are expressly stated herein to survive the termination of this Agreement.
12.7 Integration; Waiver
. This Agreement (including all Exhibits attached hereto or contemplated hereby) embodies and constitutes the entire understanding between the parties hereto with respect to the Transaction and all prior agreements, understandings, representations and statements, oral or written, are merged into this Agreement. Neither this Agreement nor any provision hereof may be waived, modified, amended, discharged or terminated except by an instrument signed by the party against whom the enforcement of such waiver, modification, amendment, discharge or termination is sought, and then only to the extent set forth in such instrument. No waiver by either party hereto of any failure or refusal by the other party to comply with its obligations hereunder shall be deemed a waiver of any other or subsequent failure or refusal to so comply.
12.8 Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the state or commonwealth in which the Real Property is located, without regard to its conflicts of laws principles.
12.9 Waiver by Jury/Venue
. SELLER, PURCHASER, SUBTENANT AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS AND PARTNERS, IF ANY, WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT IN CONNECTION WITH ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. SELLER, PURCHASER, SUBTENANT AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS AND PARTNERS, IF ANY, WAIVE ANY OBJECTION TO THE VENUE OF ANY ACTION FILED IN A COURT SITUATED IN THE STATE OR COMMONWEALTH IN WHICH THE REAL PROPERTY IS LOCATED AND WAIVE ANY RIGHT UNDER THE DOCTRINE OF FORUM NON-CONVENIENS OR OTHERWISE, TO TRANSFER ANY SUCH ACTION FILED IN ANY SUCH COURT TO ANY OTHER COURT.
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12.10 Professional Fees
. In the event a party hereto brings any action or proceeding against another party hereunder by reason of any breach of any covenant, agreement or provision on the part of the other party arising out of this Agreement, then the prevailing party shall be entitled to recover from the other party all reasonable costs and expenses of the action or proceeding, including reasonable attorneys’ accounting, engineering and other professional fees. For purposes of this Section, a party will be considered to be the “prevailing party” if (a) such party initiated the action or proceeding and substantially obtained the relief which it sought (whether by judgment, voluntary agreement or action of the other party, trial or alternative dispute resolution process), (b) such party did not initiate the action or proceeding and either (i) received a judgment in its favor, or (ii) did not receive judgment in its favor, but the party receiving the judgment did not substantially obtain the relief of which it sought, or (c) the other party to the action or proceeding withdrew its claim or action without having substantially received the relief which it was seeking. The provision of this Section shall survive the Closing or the termination of this Agreement.
12.11 Construction
. The captions in this Agreement are inserted for reference only and in no way define, describe or limit the scope or intent of this Agreement or of any of the provisions hereof. Whenever required by the context of this Agreement, the singular shall include the plural and the masculine shall include the feminine and vice versa. All references in this Agreement to Articles, Sections and Exhibits are references to the Articles and the Sections of this Agreement and the Exhibits attached hereto, as the case may be, unless expressly otherwise designated in the context. The Recitals at the beginning of this Agreement are incorporated herein by this reference. All Exhibits attached hereto are incorporated herein by reference. Each party acknowledges that it and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.
12.12 Binding Effect
. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and, subject to the terms of Section 12.1, their respective permitted successors, assigns and heirs.
12.13 Severability
. If any term or provision of this Agreement or the application thereof to any persons or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.
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12.14 Proper Execution
. The submission by Seller to Purchaser of this Agreement in unsigned form shall be deemed to be a submission solely for Purchaser’s consideration and not for acceptance and execution. Such submission shall have no binding force and effect, shall not constitute an option, and shall not confer any rights upon Purchaser or impose any obligations upon Seller irrespective of any reliance thereon, change of position or partial performance. The submission by Seller of this Agreement for execution by Purchaser and the actual execution and delivery thereof by Purchaser to Seller shall similarly have no binding force and effect on Seller unless and until Seller shall have executed this Agreement and a counterpart thereof shall have been delivered to Purchaser. Signatures of this Agreement (and all documents contemplated for delivery pursuant to this Agreement at Closing or otherwise) transmitted by facsimile or via electronic mail (by pdf or similar file types) shall be valid and effective to bind the party so signing. Each party agrees to promptly deliver to the other party an execution original to this Agreement (and all documents contemplated for delivery pursuant to this Agreement at Closing or otherwise), with its actual signature to the other party, but a failure to do so shall not affect the enforceability of this Agreement (or any document contemplated for delivery pursuant to this Agreement at Closing or otherwise), it being expressly agreed that each party to this Agreement (and any document contemplated for delivery pursuant to this Agreement at Closing or otherwise), shall be bound by its own telecopied or electronically mailed signature and shall accept the telecopied or electronically mailed signature of the other party to this Agreement (and all documents contemplated for delivery pursuant to this Agreement at Closing or otherwise).
12.15 No Third Party Beneficiary
. The provisions of this Agreement and of the documents to be executed and delivered at the Closing are and will be for the benefit of Seller, Purchaser, and Subtenant only and are not for the benefit of any third party. Accordingly, no other party shall have the right to enforce the provisions of this Agreement or any documents to be executed and delivered at the Closing.
12.16 Time of Essence
. Seller and Purchaser hereby acknowledge and agree that time is strictly of the essence with respect to each and every term, condition, obligation and provision hereof.
12.17 Mandatory Arbitration
. The parties agree to submit disputes between them related to this Agreement to mandatory binding arbitration administered by the American Arbitration Association (“AAA”), in accordance with AAA’s Consumer Arbitration Rules and all related expedited procedures, and which arbitration shall take place in Dallas, Texas. Each of Seller and Purchaser waive the right to commence an action in any court or other tribunal in connection with this Agreement and expressly agrees to be bound by the decision of the arbitrator rendered pursuant to this Section. Such waiver will not prevent Seller or Purchaser from commencing an action in any court for the sole purposes of enforcing the obligation of the other party to submit to binding arbitration pursuant to the foregoing or the enforcement of an award granted by arbitration as provided above. The terms of this Section shall survive the termination of this Agreement and the Closing.
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12.18 Independent Responsibility/No Alter Ego
. The parties hereby agree that the obligations of the parties under this Agreement are separate and distinct, and that no party’s shareholders, partners, members or owners or any of their respective shareholders, partners, members, owners, affiliates, managers, officers, directors, employees, agents or representatives (of any type or nature) shall be responsible in any manner whatsoever for the debts, liabilities or obligations of any party hereto. As such, the parties agree that no party’s shareholders, partners, members or owners or any of their respective shareholders, partners, members, owners, affiliates, managers, officers, directors, employees, agents or representatives (of any type or nature) is an alter-ego of any other party or in any manner shall be vicariously, derivatively or otherwise liable for the debts, liabilities or obligations of any party (collectively, “Derivative Claims”). The parties further agree that, as a material part of and material inducement for the transactions contemplated by this Agreement, they will not assert any Derivative Claims in any dispute, claim or controversy relating to or arising out of this Agreement. The provisions of this Section shall survive the termination of this Agreement and the Closing.
12.19 Further Assurances
. Each party agrees that it will, without further consideration, execute and deliver such other documents and take such other action, whether prior or subsequent to the Closing, as may be reasonably requested by the other party to consummate more effectively the purposes or subject matter of this Agreement; provided, however, that the execution and delivery of such documents, or action taken, by such party shall not result in any additional liability or cost (other than de minimis) to such party.
12.20 Counterparts
. This Agreement (and all documents contemplated for delivery pursuant to this Agreement at Closing or otherwise), may be executed in counterparts, each of which shall be an original and all of which counterparts taken together shall constitute one and the same agreement.
12.21 Multiple Sellers
. Seller and Purchaser acknowledge and agree, subject to the terms and conditions set forth in this Agreement, that the sale of the Property shall occur on an “all or none” basis, subject to the terms and provisions of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the representations, covenants and obligations of each individual Seller under this Agreement or in any document to be delivered at the Closing shall be limited to the representations, covenants and obligations of such Seller set forth in this Agreement or in such document to be delivered at the Closing, as applicable to such Seller and to such Seller’s Property only. The obligations of Seller under this Agreement are not joint and several. No Seller shall be responsible for the obligations of any other Seller under this Agreement or in any document to be delivered at the Closing. No Seller shall be subject to claims, damages or remedies attributable to any breach of this Agreement or in any document to be delivered at the Closing by another Seller. The provisions of this Section 12.21 shall survive Closing or any termination of this Agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each party hereto has executed and delivered this Agreement as of the date first written above.
| College Station: | |
| COLLEGE STATION INVESTORS LLC, a Texas limited liability company
By: Dart Interests LLC,a Delaware limited liability company, its sole member /s/ Christopher Kelsey Christopher Kelsey, President
Bryan Capital:
Bryan Capital Investors LLC, a Texas limited liability company
By: /s/ Tim Sullivan Name: Tim Sullivan, Chief Financial Officer
|
Signature Page to
Purchase and Sale Agreement
Inc.:
| |
iBIO INC., a Delaware corporation | |
By: /s/Robert Lutz Name: Robert Lutz Title: Chief Financial and Business Officer
| |
CDMO:
| |
iBIO CDMO LLC, a Delaware limited liability company | |
By: /s/ Robert Lutz Name: Robert Lutz Title: Authorized Person
|
Signature Page to
Purchase and Sale Agreement
Exhibit A
LEGAL DESCRIPTION
All that certain lot, tract or parcel of land being 21.401 acres situated in the J.H. Jones Survey, Abstract No. 26, Brazos County, Texas, and being all of that certain called 21.401 acre tract as described in Memorandum of Lease between The Board of Regents of The Texas A&M University System and TEXAS BIOPROPERTIES, LP, as recorded in Volume 9536, Page 255 of the Official Records of Brazos County, Texas, said 21.401 acre tract being more particularly described by metes and bounds as follows:
BEGINNING at a 1/2" Iron Rod with Cap found in the southwest right-of-way line of South Traditions Drive as described in Volume 9267, Page 132 for the most northerly corner, said corner being the most easterly corner of the Texas A&M University System called 198.0559 acre tract as described in Volume 7988, Page 209; THENCE S 51° 09'57" E, along the southerly Right-of-Way line of said South Traditions Drive a distance of 125.17 feet to a 1/2" Iron Rod with Cap found for point of curvature;
THENCE continuing along the southerly Right-of-Way line of said South Traditions Drive around a curve in a counterclockwise direction having a delta angle of 40° 38'12", an arc distance of 425.55 feet, a radius of 600.00 feet, and a chord of S 71° 29'03" E, a distance of 416.68 feet to a 1/2" Iron Rod with Cap found for the northeast corner;
THENCE S 1° 48'09" E, a distance of 221.86 feet to a 1/2" Iron Rod with Cap found for angle point;
THENCE S 48° 08'12" E, a distance of 429.28 feet to a 1/2" Iron Rod with Cap found for the most easterly corner, said corner being located in the southeast City of Bryan City Limits Line as per deed described in Volume 3481, Page 81, said corner also being located in the northwest Right-of-Way line of HSC Parkway;
THENCE S 41° 51'48" W, along the City Limits Line a distance of 464.43 feet to a 1/2" Iron Rod with Cap found for a point of curvature;
THENCE around a curve in a clockwise direction having a delta angle of 31° 10'07", an arc distance of 401.19 feet, a radius of 737.50 feet, and a chord of S 57° 26'51" W, a distance of 396.27 feet to a 1/2" Iron Rod with Cap found for the most southerly corner;
THENCE N 47° 19'28" W, a distance of 981.81 feet to a 1/2" Iron Rod with Cap found in the southeast line of said called 198.0559 acre tract, a 1/2" Iron Rod with Cap found for the most southerly corner of said called 198.0559 Acre Tract bears S 41°44'03" W a distance of 1412.75 feet;
THENCE N 41°44'03" E, along the southeast line of said called 198.0559 acre tract a distance of 820.96 feet to the PLACE OF BEGINNING AND CONTAINING AN AREA OF 21.401 ACRES OF LAND MORE OR LESS.
Exhibit A-1
Exhibit B
GROUND LEASE ESTOPPEL CERTIFICATE
[Follows this page.]
Exhibit B-1
ESTOPPEL CERTIFICATE
This Estoppel Certificate (the “Certificate”) is executed effective as of _________, 2021 by the Board of Regents of The Texas A&M University System, an agency of the State of Texas (the “A&M System”).
R E C I T A L S
| A. | A&M System, as Landlord, and Texas Bioproperties, LP, a Texas limited partnership (“Texas Bioproperties”), as Tenant entered into a Ground Lease Agreement dated March 8, 2010 (the “Original Ground Lease”). Texas Bioproperties assigned its interest as Tenant under the Ground Lease to College Station Investors LLC, a Texas limited liability company (“College Station”), and the A&M System approved the assignment pursuant to the Estoppel Certificate and Amendment to Ground Lease Agreement between the A&M System and College Station dated December 22, 2015 (the “Amendment”, and together with the Original Ground Lease as further modified by the Transaction defined below, the “Ground Lease”). Capitalized terms used by not defined herein shall have the same meaning herein as in the Ground Lease. |
| B. | College Station and iBio CDMO LLC, a Delaware limited liability company (“iBio”) entered into a Sublease Agreement dated January 13, 2016 with respect to the Ground Lease (the “Sublease”). |
| C. | College Station proposes to assign and convey to iBio the leasehold estate and rights of the “Tenant” under the Ground Lease (the “Leasehold Estate”) and to convey to iBio all of the Improvements located on the Land (the foregoing assignments and conveyances, together, the “Assignment”), and to terminate the Sublease (the “Sublease Termination”, and together with the Assignment, the “Transaction”). |
| D. | In connection with the Transaction, iBio is obtaining financing (the “Financing”) from Woodforest National Bank, a national banking association (“Lender”), and iBio and Lender wish to establish certain matters relating to the Ground Lease as a condition to the Transaction and the Financing. |
NOW, THEREFORE, in order to induce iBio to enter into the Transaction, and to induce Lender to provide the Financing to iBio, the A&M System hereby certifies as follows to iBio and Lender, and their affiliates, successors, and assigns, with the understanding that iBio and Lender are relying on the accuracy of the matters set forth herein in deciding to complete the Transaction and the Financing:
1. Attached hereto as Exhibit A is a correct and complete copy of the Ground Lease.
2. The Ground Lease is in full force and effect.
3. The Ground Lease has not been modified or amended in any respect.
4. There are no existing defaults under the Ground Lease known to A&M System.
5. Annual Base Rent payable under the Ground Lease is $151,450.00 through March 7, 2030.
6. All payments required to be made by College Station to A&M System pursuant to the Ground Lease through the date hereof have been made.
7. To the knowledge of A&M System, all Improvements required to be constructed through the date hereof have been constructed and completed in accordance with the requirements in the Ground Lease.
8. To the knowledge of A&M System, all signs and other items listed in Section 3.7 of the Original Ground Lease that require A&M System’s approval, located in or at the Premises visible from adjacent parcels or roads have been approved by A&M System.
Exhibit B-2
9. A&M System has not received any written notice from a third party claiming a violation of any applicable deed or use restrictions affecting the Premises.
10. A&M System has not established any rules or regulations pursuant to Section 6.5 of the Original Ground Lease.
11. A&M System has received no notice of any pending or threatened condemnation affecting the Premises.
12. To the knowledge of A&M System, use of the Premises by College Station and iBio provided the benefits described in Section 2.2(f) of the Original Ground Lease.
13. The A&M System has no objection to the manner of construction of the original Improvements.
14. The Transaction and the transactions related thereto, including the Assignment and the Sublease Termination, are permitted under the Original Ground Lease (as amended by the Amendment) and, to the extent necessary, are approved by A&M System.
15. The A&M System has not incurred any extensions of credit from any person for which the Premises, the Land, or the Ground Lease are pledged as collateral therefor.
16. All notices to be sent related to the Ground Lease shall be addressed to:
If to the A&M System:
Chancellor
The Texas A&M University System
301 Tarrow, 7th Floor
College Station, Texas ###-###-####
with a copy to:
Office of General Counsel
The Texas A&M University System
301 Tarrow, 6th Floor
College Station, Texas ###-###-####
If to iBio:
iBio CDMO
8800 HSC Parkway
Bryan, Texas 77807
Attention: Robert Lutz
Email address: ***@***
with a copy to:
Venable LLP
750 East Pratt Street, Suite 900
Baltimore, Maryland 21201
Attention: Charles Morton
Email address: ***@***
Exhibit B-3
EXECUTED effective as of the date first set forth above.
SIGNATURE PAGE TO FOLLOW
Exhibit B-4
| THE BOARD OF REGENTS OF THE TEXAS A&M UNIVERSITY SYSTEM (an Agency of the STATE OF TEXAS) | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit B-5
EXHIBIT A
Ground Lease
[Attached]
Exhibit B-6
Exhibit B-7
Exhibit B-8
Exhibit B-9
Exhibit B-10
Exhibit B-11
Exhibit B-12
Exhibit B-13
Exhibit B-14
Exhibit B-15
Exhibit B-16
Exhibit B-17
Exhibit B-18
Exhibit B-19
Exhibit B-20
Exhibit B-21
Exhibit B-22
Exhibit B-23
Exhibit B-24
Exhibit B-25
Exhibit B-26
Exhibit B-27
Exhibit B-28
Exhibit B-29
Exhibit B-30
Exhibit B-31
Exhibit B-32
Exhibit B-33
Exhibit B-34
Exhibit B-35
Exhibit B-36
Exhibit B-37
Exhibit B-38
Exhibit B-39
Exhibit B-40
Exhibit B-41
Exhibit B-42
Exhibit B-43
Exhibit B-44
Exhibit B-45
Exhibit B-46
Exhibit B-47
Exhibit B-48
Exhibit B-49
Exhibit B-50
Exhibit B-51
Exhibit B-52
Exhibit B-53
Exhibit B-54
Exhibit B-55
Exhibit B-56
Exhibit B-57
Exhibit B-58
Exhibit B-59
Exhibit C
SPECIAL WARRANTY DEED AND ASSIGNMENT OF GROUND LEASE
| STATE OF TEXAS | § | |
| § | KNOW ALL MEN BY THESE PRESENTS: | |
| COUNTY OF BRAZOS | § |
This SPECIAL WARRANTY DEED AND ASSIGNMENT OF GROUND LEASE (this “Assignment”) is executed and entered into effective as of ______________, 2021 (the “Effective Date”), by and between COLLEGE STATION INVESTORS LLC, a Texas limited liability company (“Assignor”), and iBIO CDMO LLC, a Delaware limited liability company (“Assignee”), whose address is 8800 HSC Parkway, Bryan, Texas 77807.
RECITALS:
Assignor is the tenant under a Ground Lease Agreement (the “Original Ground Lease”) with The Board of Regents of The Texas A&M University System (“Landlord”) dated as of March 8, 2010, as amended by the Estoppel Certificate and Amendment to Ground Lease Agreement between A&M and College Station dated December 22, 2015 (the “Amendment”, and together with the Original Ground Lease, the “Ground Lease”). The Ground Lease demises a tract of land in Brazos County, Texas containing approximately 21.401 acres, more or less, described in Exhibit “A” attached hereto (the “Property”). All capitalized terms used herein not expressly defined shall have the meaning given to them in the Original Ground Lease.
Assignor desires to (i) grant, bargain, sell, and convey to Assignee all of the interests of the “tenant” or “lessee” under the Ground Lease in and to all buildings, fixtures, mechanical systems and other improvements on the Property and all appurtenances, easements and rights, if any, to the Property and the improvements thereon (collectively, the “Improvements”), and (ii) assign, set over and convey to Assignee all of the interests of the “tenant” or “lessee” in, to and under the Ground Lease, and Assignee desires to obtain such conveyance and assignment and assume the obligations of Assignor, upon the terms and conditions hereinafter provided.
AGREEMENTS:
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed, Assignor and Assignee hereby agree as follows:
1. Conveyance.
(a) Assignor has GRANTED, BARGAINED, SOLD, and CONVEYED and by these presents does GRANT, BARGAIN, SELL, and CONVEY unto Assignee all of the interests of the “tenant” or “lessee” under the Ground Lease in and to all the Improvements.
Exhibit C-1
(b) TO HAVE AND TO HOLD the Improvements, together with all and singular the rights and appurtenances thereunto in anywise belonging unto Assignee, its successors and assigns forever, subject only to the Permitted Exceptions; and Assignor does hereby bind itself and its successors and assigns to WARRANT AND FOREVER DEFEND all and singular the title to the Improvements unto Assignee, its successors and assigns, against every person lawfully claiming by, through or under Assignor, but not otherwise, subject to all easements, restrictions, reservations and covenants now of record and further subject to all matters that a current, accurate survey of the Property would show (the “Permitted Exceptions”).
2. Assignment.
(a) Assignor hereby transfers and assigns to Assignee all of the interests of the “tenant” or “lessee” in the Ground Lease and the leasehold estate arising pursuant to the Ground Lease. Assignee hereby accepts such assignment, and assumes and agrees to make all payments and to perform all other obligations of “Tenant” under the Ground Lease first arising from and after the Effective Date, subject to the terms and conditions contained therein. This Assignment is specifically subject to the terms of the Ground Lease.
(b) TO HAVE AND TO HOLD the interests of the “tenant” or “lessee” in the Ground Lease and the leasehold estate arising pursuant to the Ground Lease unto Assignee, its successors and assigns forever, subject only to the Permitted Exceptions; and Assignor does hereby bind itself and its successors to WARRANT AND FOREVER DEFEND all of the interests of the “tenant” or “lessee” in the Ground Lease and the leasehold estate arising pursuant to the Ground Lease unto Assignee, its successors and assigns, against every person lawfully claiming by, through or under Assignor, but not otherwise, subject only to the Permitted Exceptions.
(c) Assignor shall indemnify, defend and hold Assignee harmless from and against any and all loss, costs, damages or expense, including, without limitation, reasonable attorneys’ fees and collection costs that Assignee may suffer by reason of Assignor’s failure to perform any of the obligations of the “Tenant” under the Ground Lease first arising and accruing prior to the Effective Date hereof but only during the period of Assignor’s ownership and excluding any matters caused by, through or under Assignee or its affiliates. Assignee shall indemnify, defend and hold Assignor harmless from and against any and all loss, costs, damages or expense, including, without limitation, reasonable attorneys’ fees and collection costs that Assignor may suffer by reason of Assignee’s failure to perform any of the obligations of the “Tenant” under the Ground Lease first arising and accruing on and after the Effective Date hereof but only during the period of Assignee’s ownership.
3. Approval by Landlord. Landlord has approved this Assignment as evidenced by the executed letter agreement attached hereto as Exhibit “B”.
4. Binding Effect. This Assignment is binding upon and shall inure to the benefit of the parties hereto, and their respective authorized agents and representatives, successors and assigns. This Assignment has been entered into by Assignor and Assignee solely for their benefit, and the benefit of their respective successors, assigns, authorized agents and representatives, and not for the benefit of any other persons not a party to this Assignment.
Exhibit C-2
5. Counterparts. This Assignment may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
Exhibit C-3
EXECUTED as of the date first above written.
ASSIGNOR:
COLLEGE STATION INVESTORS LLC,
a Texas limited liability company
| By: | _____________________ |
| Name: | _____________________ |
| Title: | _____________________ |
| STATE OF __________ | § | |
| § | ||
| COUNTY OF _________ | § |
This instrument was acknowledged before me on ______________________________, 2021, by ______________________________, ____________________ of College Station Investors LLC, a Texas limited liability company, on behalf of said limited liability company.
__________________________________________
Notary Public, State of _________________________
Exhibit C-4
ASSIGNEE:
iBIO CDMO LLC,
a Delaware limited liability company
| By: | _____________________ |
| Name: | _____________________ |
| Title: | _____________________ |
| STATE OF __________ | § | |
| § | ||
| COUNTY OF _________ | § |
This instrument was acknowledged before me on ______________________________, 2021, by ______________________________, ____________________ of iBio CDMO LLC, a Delaware limited liability company, on behalf of said limited liability company.
__________________________________________
Notary Public, State of _________________________
Exhibit C-5
Exhibit A to the Special Warranty Deed and Assignment of Ground Lease
LEGAL DESCRIPTION OF THE PROPERTY
All that certain lot, tract or parcel of land being 21.401 acres situated in the J.H. Jones Survey, Abstract No. 26, Brazos County, Texas, and being all of that certain called 21.401 acre tract as described in Memorandum of Lease between The Board of Regents of The Texas A&M University System and TEXAS BIOPROPERTIES, LP, as recorded in Volume 9536, Page 255 of the Official Records of Brazos County, Texas, said 21.401 acre tract being more particularly described by metes and bounds as follows:
BEGINNING at a 1/2" Iron Rod with Cap found in the southwest right-of-way line of South Traditions Drive as described in Volume 9267, Page 132 for the most northerly corner, said corner being the most easterly corner of the Texas A&M University System called 198.0559 acre tract as described in Volume 7988, Page 209; THENCE S 51° 09'57" E, along the southerly Right-of-Way line of said South Traditions Drive a distance of 125.17 feet to a 1/2" Iron Rod with Cap found for point of curvature;
THENCE continuing along the southerly Right-of-Way line of said South Traditions Drive around a curve in a counterclockwise direction having a delta angle of 40° 38'12", an arc distance of 425.55 feet, a radius of 600.00 feet, and a chord of S 71° 29'03" E, a distance of 416.68 feet to a 1/2" Iron Rod with Cap found for the northeast corner;
THENCE S 1° 48'09" E, a distance of 221.86 feet to a 1/2" Iron Rod with Cap found for angle point;
THENCE S 48° 08'12" E, a distance of 429.28 feet to a 1/2" Iron Rod with Cap found for the most easterly corner, said corner being located in the southeast City of Bryan City Limits Line as per deed described in Volume 3481, Page 81, said corner also being located in the northwest Right-of-Way line of HSC Parkway;
THENCE S 41° 51'48" W, along the City Limits Line a distance of 464.43 feet to a 1/2" Iron Rod with Cap found for a point of curvature;
THENCE around a curve in a clockwise direction having a delta angle of 31° 10'07", an arc distance of 401.19 feet, a radius of 737.50 feet, and a chord of S 57° 26'51" W, a distance of 396.27 feet to a 1/2" Iron Rod with Cap found for the most southerly corner;
THENCE N 47° 19'28" W, a distance of 981.81 feet to a 1/2" Iron Rod with Cap found in the southeast line of said called 198.0559 acre tract, a 1/2" Iron Rod with Cap found for the most southerly corner of said called 198.0559 Acre Tract bears S 41°44'03" W a distance of 1412.75 feet;
THENCE N 41°44'03" E, along the southeast line of said called 198.0559 acre tract a distance of 820.96 feet to the PLACE OF BEGINNING AND CONTAINING AN AREA OF 21.401 ACRES OF LAND MORE OR LESS.
Exhibit C-6
Exhibit B to the Assignment of Ground Lease
APPROVAL LETTER
[Attached]
Exhibit C-7
COLLEGE STATION INVESTORS LLC
3811 Turtle Creek Boulevard, Suite 975
Dallas, Texas 75219
October __, 2021
VIA OVERNIGHT DELIVERY
Chancellor
The Texas A&M University System
301 Tarrow, 7th Floor
College Station, Texas ###-###-####
| Re: | Ground Lease Agreement (the “Original Lease”) dated March 8, 2010 between the Board of Regents of the Texas A&M University System (the “Landlord”) and College Station Investors LLC, a Texas limited liability company (“Tenant”), as amended by the Estoppel Certificate and Amendment to Ground Lease Agreement (the “Agreement”, and together with the Original Lease, the “Lease”) dated December 22, 2015 between Landlord and Tenant |
Dear Chancellor:
Tenant is sending this letter to inform Landlord that Tenant has entered into a Purchase and Sale Agreement to assign Tenant’s interest as the tenant under the Lease to iBio CDMO LLC, a Delaware limited liability company (the “Proposed Assignee”). The Proposed Assignee will assume the obligations of Tenant under the Lease (the “Assignment”). Terms that are capitalized but not defined in this letter have the meanings given in the Lease.
The Proposed Assignee is the current occupant of the Premises pursuant to a Sublease Agreement between Tenant and the Proposed Assignee dated January 13, 2016 (the “Sublease”). Tenant and the Proposed Assignee have agreed to terminate the Sublease as part of the Assignment (the “Sublease Termination”), and the Proposed Assignee will continue to occupy the Premises as the tenant under the Lease pursuant to the Assignment.
The Proposed Assignee is financing the proposed transaction with a loan from Woodforest National Bank, a national banking association (“Lender”), to allow the Proposed Assignee to complete the Assignment (the “Financing”). the Financing includes granting a Leasehold Mortgage on the Proposed Assignee’s interest in the Premises under the Lease.
Accordingly, Tenant is requesting that Landlord approve (1) the assignment of Tenant’s interest in the Lease to the Proposed Assignee pursuant to Section 10.1 of the Lease, and that following the Assignment, Landlord will recognize the Proposed Assignee as the tenant under the Lease, (2) the Sublease Termination, and (3) the Financing pursuant to Article IV of the Lease, by counter-signing this letter.
We look forward to receiving your response.
[Signature Page Follows]
Exhibit C-8
| Respectfully, | |||
College Station Investors LLC, a Texas limited liability company | |||
| By: | |||
| Name: | |||
| Title: | |||
Landlord hereby executes this letter to acknowledge the foregoing and to confirm its approval of the assignment of the Lease to Proposed Assignee, the Sublease Termination, and the Financing.
The Board of Regents of The Texas A&M University System | ||
| By: | ||
| Name: | ||
| Title: | ||
| cc: | Office of General Counsel |
The Texas A&M University System
301 Tarrow, 6th Floor
College Station, Texas ###-###-####
System Real Estate Office
The Texas A&M University System
301 Tarrow, 6th Floor
College Station, Texas ###-###-####
Exhibit C-9
Exhibit D
BILL OF SALE
THIS BILL OF SALE is made as of ______________________, 2021, between COLLEGE STATION INVESTORS LLC, a Texas limited liability company (“Seller”), and iBIO CDMO LLC, a Delaware limited liability company (“Purchaser”).
RECITALS
WHEREAS, pursuant to that certain Purchase and Sale Agreement dated as of __________________, 2021, between Seller (and Bryan Capital Investors LLC) and Purchaser (and iBio, Inc.) (the “Sale Agreement”), Seller agreed to sell to Purchaser Seller’s ground lease interest in that certain real property described in Schedule 1 attached hereto and made a part hereof, and all of Seller’s right, title and interest to the improvements located thereon (collectively, the “Real Property”).
WHEREAS, concurrently with the execution and delivery of this Bill of Sale, Seller is conveying Seller’s ground lease interest in the Real Property to Purchaser.
WHEREAS, the Purchase Agreement provides, among other matters, that Seller shall convey to Purchaser all of Seller’s right, title and interest in and to the Tangible Personal Property (as defined in the Agreement).
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiently of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Conveyance. Seller hereby sells, transfers, sets over, assigns and conveys to Purchaser, and Purchaser hereby accepts, all of Seller’s right, title and interest in and to the Tangible Personal Property, with the exception of those rights and interests expressly reserved by Seller under the Sale Agreement. This Bill of Sale is made by Seller and accepted by Purchaser subject to the terms of the Sale Agreement.
2. Miscellaneous. This Bill of Sale and the obligations of the parties hereunder: (i) shall survive the closing of the transaction referred to in the Sale Agreement and shall not be merged therein; (ii) shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns and heirs; (iii) shall be governed by the laws of the state or commonwealth in which the Real Property is located, without regard to its conflicts of laws principles; and (iv) may not be modified, amended, waived, discharged or terminated other than by a written agreement signed by the party to be charged therewith. The Recitals at the beginning of this Bill of Sale are incorporated herein by this reference. In the event either party hereto brings any action or proceeding against the other party with respect to any matter pertaining to this Bill of Sale, the prevailing party shall be entitled to recover from the other party all costs and expenses incurred by it in connection with the subject action or proceeding, including reasonable attorneys’ fees. This Bill of Sale may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument.
Exhibit D-1
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this Bill of Sale under seal as of the date first written above.
| SELLER | |||
| COLLEGE STATION INVESTORS LLC, a Texas limited liability company | |||
By: |
| ||
| Name: | |||
| Title: | |||
| PURCHASER | |||
| iBIO CDMO LLC, a Delaware limited liability company | |||
By: |
| ||
| Name: | |||
| Title: | |||
Exhibit D-2
Schedule 1 to Bill of Sale
LEGAL DESCRIPTION OF THE PROPERTY
All that certain lot, tract or parcel of land being 21.401 acres situated in the J.H. Jones Survey, Abstract No. 26, Brazos County, Texas, and being all of that certain called 21.401 acre tract as described in Memorandum of Lease between The Board of Regents of The Texas A&M University System and TEXAS BIOPROPERTIES, LP, as recorded in Volume 9536, Page 255 of the Official Records of Brazos County, Texas, said 21.401 acre tract being more particularly described by metes and bounds as follows:
BEGINNING at a 1/2" Iron Rod with Cap found in the southwest right-of-way line of South Traditions Drive as described in Volume 9267, Page 132 for the most northerly corner, said corner being the most easterly corner of the Texas A&M University System called 198.0559 acre tract as described in Volume 7988, Page 209; THENCE S 51° 09'57" E, along the southerly Right-of-Way line of said South Traditions Drive a distance of 125.17 feet to a 1/2" Iron Rod with Cap found for point of curvature;
THENCE continuing along the southerly Right-of-Way line of said South Traditions Drive around a curve in a counterclockwise direction having a delta angle of 40° 38'12", an arc distance of 425.55 feet, a radius of 600.00 feet, and a chord of S 71° 29'03" E, a distance of 416.68 feet to a 1/2" Iron Rod with Cap found for the northeast corner;
THENCE S 1° 48'09" E, a distance of 221.86 feet to a 1/2" Iron Rod with Cap found for angle point;
THENCE S 48° 08'12" E, a distance of 429.28 feet to a 1/2" Iron Rod with Cap found for the most easterly corner, said corner being located in the southeast City of Bryan City Limits Line as per deed described in Volume 3481, Page 81, said corner also being located in the northwest Right-of-Way line of HSC Parkway;
THENCE S 41° 51'48" W, along the City Limits Line a distance of 464.43 feet to a 1/2" Iron Rod with Cap found for a point of curvature;
THENCE around a curve in a clockwise direction having a delta angle of 31° 10'07", an arc distance of 401.19 feet, a radius of 737.50 feet, and a chord of S 57° 26'51" W, a distance of 396.27 feet to a 1/2" Iron Rod with Cap found for the most southerly corner;
THENCE N 47° 19'28" W, a distance of 981.81 feet to a 1/2" Iron Rod with Cap found in the southeast line of said called 198.0559 acre tract, a 1/2" Iron Rod with Cap found for the most southerly corner of said called 198.0559 Acre Tract bears S 41°44'03" W a distance of 1412.75 feet;
THENCE N 41°44'03" E, along the southeast line of said called 198.0559 acre tract a distance of 820.96 feet to the PLACE OF BEGINNING AND CONTAINING AN AREA OF 21.401 ACRES OF LAND MORE OR LESS.
Exhibit D-3
Exhibit E
TERMINATION OF SUBLEASE
This Termination of Sublease (this “Agreement”) is executed as of November ___, 2021 between COLLEGE STATION INVESTORS LLC, a Texas limited liability company (“Landlord”), and iBIO CDMO LLC, a Delaware limited liability company (“Tenant”), for the purpose of amending the Sublease Agreement between Landlord and Tenant dated January 13, 2016 (the “Lease”). Capitalized terms used herein but not defined shall be given the meanings assigned to them in the Lease.
RECITALS:
A. Pursuant to the terms of the Lease, Tenant is currently leasing land and improvements located in Bryan, Brazos County, Texas, as more particularly described in the Lease. The Lease is subject to the Ground Lease dated March 8, 2010 (as amended or assigned, the “Ground Lease”).
B. Landlord has agreed to assign, and Tenant has agreed to assume, all of Landlord’s right, title and interest to the Ground Lease in accordance with the terms of the Purchase and Sale Agreement dated of even date herewith (as amended or assigned, the “Purchase Agreement”).
C. The Term of the Lease is currently scheduled to expire at 11:59 p.m. on the day immediately preceding the expiration or termination of the initial term of the Ground Lease. Landlord and Tenant desire to accelerate the natural expiration of the Term on the terms and conditions contained herein.
AGREEMENTS:
For valuable consideration, whose receipt and sufficiency are acknowledged, Landlord and Tenant agree as follows:
1. Acceleration of Expiration of the Term. The expiration of the Term is hereby accelerated such that it expires at 12:00 a.m., Bryan, Texas, time, on the date hereof, on the terms and conditions of the Lease, except that Tenant shall have no obligation to repair or restore the Property. Landlord and Tenant shall have no rights or remedies against each other related to the Lease following the date hereof other than with respect to (a) those indemnification obligations under the Lease that survive the expiration or termination of the Lease and (b) the terms of the Purchase Agreement. Tenant shall have no further rights to extend or renew the Term.
2. Binding Effect; Arms’-Length Negotiation; Governing Law; No Reliance. This Agreement shall be binding upon Landlord and Tenant and their respective successors and assigns. If any inconsistency exists or arises between the terms of the Lease and the terms of this Agreement, the terms of this Agreement shall prevail. This Agreement shall be governed by the laws of the State of Texas. Except for those set forth in the Purchase Agreement, no representations, warranties, or agreements have been made by Landlord or Tenant to the other with respect to this Agreement or the obligations of Landlord or Tenant in connection therewith. Further, Landlord and Tenant each disclaims any reliance upon any and all representations, warranties or agreements not expressly set forth in the Purchase Agreement. Landlord and Tenant agree that they have both had the opportunity to retain legal counsel to review, revise, and negotiate this Agreement on their individual behalf. Landlord and Tenant stipulate that this Agreement has been reviewed and revised by both Landlord and Tenant and their respective legal counsel and that the Lease, as amended hereby, is the result of an arms’-length negotiation and compromise. Landlord and Tenant further stipulate that they are both sophisticated individuals or business entities capable of understanding and negotiating the terms of the Lease, as amended hereby.
Exhibit E-1
3. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original and all of which counterparts taken together shall constitute one and the same agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
Exhibit E-2
Executed as of the date first written above.
| LANDLORD: | COLLEGE STATION INVESTORS LLC, a Texas limited liability company | ||
By: |
| ||
| Name: | |||
| Title: | |||
Exhibit E-3
| TENANT: | iBIO CDMO LLC, a Delaware limited liability company | ||
By: |
| ||
| Name: | |||
| Title: | |||
Exhibit E-4
Exhibit F
TERMINATION OF MEMORANDUM OF SUBLEASE
| STATE OF TEXAS | § | |
| § | KNOW ALL MEN BY THESE PRESENTS: | |
| COUNTY OF BRAZOS | § |
This Termination of Memorandum of SUBLease (this “Termination”) is dated as of ______________, 2021 (the “Effective Date”) by and between iBIO CDMO LLC, a Delaware limited liability company, formerly known as iBIO CMO LLC, a Delaware limited liability company (“Tenant”), and College Station Investors LLC, a Texas limited liability company (“Landlord”).
1. Landlord and Tenant entered into a Sublease Agreement (the “Sublease”) dated January 13, 2016 whereby Landlord subleased to Tenant, and Tenant subleased from Landlord, certain land located in Brazos County, Texas, as more particularly described on Exhibit A attached hereto. A Memorandum of Sublease (the “Sublease Memorandum”) was recorded in the Official Records of Brazos County, Texas, on January 21, 2016 as Document Number 01253855 in Book OR, Volume 13141, Page 94.
2. Landlord and Tenant have agreed to terminate the Sublease pursuant to a separate Sublease Termination Agreement effective as of the Effective Date (the “Sublease Termination”).
3. Landlord and Tenant hereby terminate the Sublease Memorandum as of the Effective Date, which termination is coterminous with the Sublease Termination. This Termination is for informational purposes only and nothing contained herein shall be deemed to modify the Sublease Termination.
[SIGNATURES APPEAR ON NEXT PAGE]
Exhibit F-1
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Termination as of the day and year first above written.
| LANDLORD: | ||
| COLLEGE STATION INVESTORS LLC, a Texas limited liability company | ||
| By: | _____________________ | |
| Name: | _____________________ | |
| Title: | _____________________ | |
| STATE OF __________ | § | |
| § | ||
| COUNTY OF _________ | § |
This instrument was acknowledged before me on ______________________________, 2021, by ______________________________, ____________________ of College Station Investors LLC, a Texas limited liability company, on behalf of said limited liability company.
__________________________________________
Notary Public, State of _________________________
Exhibit F-2
| TENANT: | ||
iBIO CDMO LLC, a Delaware limited liability company | ||
| By: | _____________________ | |
| Name: | _____________________ | |
| Title: | _____________________ | |
| STATE OF __________ | § | |
| § | ||
| COUNTY OF _________ | § |
This instrument was acknowledged before me on ______________________________, 2021, by ______________________________, ____________________ of iBio CDMO LLC, a Delaware limited liability company, on behalf of said limited liability company.
__________________________________________
Notary Public, State of _________________________
Exhibit F-3
Exhibit A to Termination of Memorandum of Sublease
Legal Description
All that certain lot, tract or parcel of land being 21.401 acres situated in the J.H. Jones Survey, Abstract No. 26, Brazos County, Texas, and being all of that certain called 21.401 acre tract as described in Memorandum of Lease between The Board of Regents of The Texas A&M University System and TEXAS BIOPROPERTIES, LP, as recorded in Volume 9536, Page 255 of the Official Records of Brazos County, Texas, said 21.401 acre tract being more particularly described by metes and bounds as follows:
BEGINNING at a 1/2" Iron Rod with Cap found in the southwest right-of-way line of South Traditions Drive as described in Volume 9267, Page 132 for the most northerly corner, said corner being the most easterly corner of the Texas A&M University System called 198.0559 acre tract as described in Volume 7988, Page 209; THENCE S 51° 09'57" E, along the southerly Right-of-Way line of said South Traditions Drive a distance of 125.17 feet to a 1/2" Iron Rod with Cap found for point of curvature;
THENCE continuing along the southerly Right-of-Way line of said South Traditions Drive around a curve in a counterclockwise direction having a delta angle of 40° 38'12", an arc distance of 425.55 feet, a radius of 600.00 feet, and a chord of S 71° 29'03" E, a distance of 416.68 feet to a 1/2" Iron Rod with Cap found for the northeast corner;
THENCE S 1° 48'09" E, a distance of 221.86 feet to a 1/2" Iron Rod with Cap found for angle point;
THENCE S 48° 08'12" E, a distance of 429.28 feet to a 1/2" Iron Rod with Cap found for the most easterly corner, said corner being located in the southeast City of Bryan City Limits Line as per deed described in Volume 3481, Page 81, said corner also being located in the northwest Right-of-Way line of HSC Parkway;
THENCE S 41° 51'48" W, along the City Limits Line a distance of 464.43 feet to a 1/2" Iron Rod with Cap found for a point of curvature;
THENCE around a curve in a clockwise direction having a delta angle of 31° 10'07", an arc distance of 401.19 feet, a radius of 737.50 feet, and a chord of S 57° 26'51" W, a distance of 396.27 feet to a 1/2" Iron Rod with Cap found for the most southerly corner;
THENCE N 47° 19'28" W, a distance of 981.81 feet to a 1/2" Iron Rod with Cap found in the southeast line of said called 198.0559 acre tract, a 1/2" Iron Rod with Cap found for the most southerly corner of said called 198.0559 Acre Tract bears S 41°44'03" W a distance of 1412.75 feet;
THENCE N 41°44'03" E, along the southeast line of said called 198.0559 acre tract a distance of 820.96 feet to the PLACE OF BEGINNING AND CONTAINING AN AREA OF 21.401 ACRES OF LAND MORE OR LESS.
Exhibit F-4
Exhibit G
GENERAL ASSIGNMENT
THIS GENERAL ASSIGNMENT (“Assignment”) is made as of ________________, 2021, between COLLEGE STATION INVESTORS LLC, a Texas limited liability company (“Assignor”), and iBIO CDMO LLC, a Delaware limited liability company (“Assignee”).
RECITALS
WHEREAS, pursuant to that certain Purchase and Sale Agreement dated as of ___________________, 2021, between Assignor (and Bryan Capital Investors LLC) and Assignee (and iBio, Inc.) (the “Sale Agreement”), Assignor agreed to sell to Assignee Assignor’s ground lease interest in that real property described in Schedule 1 attached hereto and made a part hereof, and the improvements located thereon (collectively, the “Real Property”). Capitalized terms used but not defined herein shall have the meanings given to them in the Sale Agreement;
WHEREAS, concurrently with the execution and delivery of this Assignment, Assignor is conveying Assignor’s ground lease interest in the Real Property to Assignee; and
WHEREAS, the Sale Agreement provides, among other matters, that Assignor shall assign to Assignee, to the extent assignable by Assignor without expense to Assignor and not otherwise transferred by Assignor pursuant to any of the Assignment of Ground Lease or the Bill of Sale, all dated on or about the date of this Assignment, executed by Assignor in favor of Assignee, all of Assignor’s right, title and interest in and to the Other Property Rights; provided, however, Other Property Rights shall not include: (1) any management agreement or insurance policy for all or a portion of the Real Property; (2) any defenses, claims or causes of action Assignor may have against third parties with respect to matters arising or accruing prior to the date of this Assignment; (3) all cash on hand or on deposit in any bank, operating account or other account maintained in connection with the ownership, operation or management of the Property, cash equivalents (including certificates of deposit), deposits held by third parties (e.g., utility companies) and bank accounts, (4) all insurance policies maintained in connection with the ownership, operation or management of the Property, (5) any appraisals or other economic evaluations of, or projections with respect to, all or any portion of the Property, including, without limitation, budgets prepared by or on behalf of Seller or any affiliate of Seller, (6) any documents, materials or information which are subject to attorney/client, work product or similar privilege, which constitute attorney communications with respect to the Property and/or Seller, or which are subject to a confidentiality agreement, and (7) any documents pertaining solely to the marketing of the Property and any direct or indirect interest therein for sale to prospective purchasers.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Assignment. Assignor hereby assigns to Assignee all of Assignor’s right, title and interest in and to the Other Property Rights, with the exception of those rights and interests expressly reserved by Assignor under the Sale Agreement. Assignee hereby accepts such assignment and assumes and agrees to perform all of the terms, covenants and conditions to be observed or performed by Assignor under the Other Property Rights to the extent accruing or arising on or after the date of this Assignment. This Assignment is made by Assignor and Assignee subject to the terms of the Sale Agreement.
Exhibit G-1
2. Miscellaneous. This Assignment and the obligations of the parties hereunder: (i) shall survive the closing of the transaction referred to in the Sale Agreement and shall not be merged therein; (ii) shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assignees and heirs; (iii) shall be governed by the laws of the state or commonwealth in which the Real Property is located, without regard to its conflicts of laws principles; and (iv) may not be modified, amended, waived, discharged or terminated in any manner other than by a written agreement signed by the party to be charged therewith. The Recitals at the beginning of this Assignment and the Schedules attached hereto are incorporated herein by this reference. In the event either party hereto brings any action or proceeding against the other party with respect to any matter pertaining to this Assignment, the prevailing party in such action shall be entitled to recover from the other party all costs and expenses incurred by it in connection with the subject action or proceeding, including reasonable attorneys’ fees. This Assignment may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument.
Exhibit G-2
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this Assignment under seal as of the date first written above.
ASSIGNOR | |||
COLLEGE STATION INVESTORS LLC, a Texas limited liability company | |||
By: |
| ||
| Name: | |||
| Title: | |||
ASSIGNEE | |||
iBIO CDMO LLC, a Delaware limited liability company | |||
By: |
| ||
| Name: | |||
| Title: | |||
Exhibit G-3
SCHEDULE 1
DESCRIPTION OF REAL PROPERTY
All that certain lot, tract or parcel of land being 21.401 acres situated in the J.H. Jones Survey, Abstract No. 26, Brazos County, Texas, and being all of that certain called 21.401 acre tract as described in Memorandum of Lease between The Board of Regents of The Texas A&M University System and TEXAS BIOPROPERTIES, LP, as recorded in Volume 9536, Page 255 of the Official Records of Brazos County, Texas, said 21.401 acre tract being more particularly described by metes and bounds as follows:
BEGINNING at a 1/2" Iron Rod with Cap found in the southwest right-of-way line of South Traditions Drive as described in Volume 9267, Page 132 for the most northerly corner, said corner being the most easterly corner of the Texas A&M University System called 198.0559 acre tract as described in Volume 7988, Page 209; THENCE S 51° 09'57" E, along the southerly Right-of-Way line of said South Traditions Drive a distance of 125.17 feet to a 1/2" Iron Rod with Cap found for point of curvature;
THENCE continuing along the southerly Right-of-Way line of said South Traditions Drive around a curve in a counterclockwise direction having a delta angle of 40° 38'12", an arc distance of 425.55 feet, a radius of 600.00 feet, and a chord of S 71° 29'03" E, a distance of 416.68 feet to a 1/2" Iron Rod with Cap found for the northeast corner;
THENCE S 1° 48'09" E, a distance of 221.86 feet to a 1/2" Iron Rod with Cap found for angle point;
THENCE S 48° 08'12" E, a distance of 429.28 feet to a 1/2" Iron Rod with Cap found for the most easterly corner, said corner being located in the southeast City of Bryan City Limits Line as per deed described in Volume 3481, Page 81, said corner also being located in the northwest Right-of-Way line of HSC Parkway;
THENCE S 41° 51'48" W, along the City Limits Line a distance of 464.43 feet to a 1/2" Iron Rod with Cap found for a point of curvature;
THENCE around a curve in a clockwise direction having a delta angle of 31° 10'07", an arc distance of 401.19 feet, a radius of 737.50 feet, and a chord of S 57° 26'51" W, a distance of 396.27 feet to a 1/2" Iron Rod with Cap found for the most southerly corner;
THENCE N 47° 19'28" W, a distance of 981.81 feet to a 1/2" Iron Rod with Cap found in the southeast line of said called 198.0559 acre tract, a 1/2" Iron Rod with Cap found for the most southerly corner of said called 198.0559 Acre Tract bears S 41°44'03" W a distance of 1412.75 feet;
THENCE N 41°44'03" E, along the southeast line of said called 198.0559 acre tract a distance of 820.96 feet to the PLACE OF BEGINNING AND CONTAINING AN AREA OF 21.401 ACRES OF LAND MORE OR LESS.
Exhibit G-4
Exhibit H
CERTIFICATION OF NON-FOREIGN STATUS
To inform iBio CDMO LLC, a Delaware limited liability company (“Purchaser”), that withholding of tax under Section 1445 of the Internal Revenue Code of 1986, as amended (“Code”), will not be required upon the transfer of certain real property interests to Purchaser by COLLEGE STATION INVESTORS LLC, a Texas limited liability company (“Seller”), Seller hereby certifies the following:
1. It is not a foreign corporation, foreign partnership, foreign trust or foreign estate or disregarded entity (as those terms are defined in the Code and the Income Tax Regulations promulgated thereunder);
2. Its U.S. employer identification number is 81-0841930; and
3. Its principal office address is 3811 Turtle Creek Blvd., Suite 900, Baltimore Maryland 21201.
Seller understands that this Certification may be disclosed to the Internal Revenue Service by Purchaser and that any false statement contained herein could be punished by fine, imprisonment, or both.
Under penalty of perjury, Seller declares that it has examined this Certification and to the best of its knowledge and belief this Certification is true, correct and complete.
Date: _______________, 2021
Exhibit H-1
| SELLER | |
COLLEGE STATION INVESTORS LLC, a Texas limited liability company
By: Third Palm Capital LLC, a Delaware limited liability company, its sole member
| |
_____________________________________ Timothy J. Sullivan, Chief Financial Officer and Secretary
| |
| THE STATE OF TEXAS | § | |
| § | ||
| COUNTY OF DALLAS | § |
This instrument was acknowledged before me on October __, 2021, by Timothy J. Sullivan, Chief Financial Officer and Secretary of Third Palm Capital LLC, a Delaware limited liability company, the sole member of College Station Investors LLC, a Texas limited liability company, on behalf of said limited liability companies.
| __________________________________________ | |
| Notary Public, State of Texas |
SWORN TO AND SUBSCRIBED BEFORE ME by Timothy J. Sullivan on October __, 2021.
| __________________________________________ | |
| Notary Public, State of Texas |
Exhibit H-2
Exhibit I
FORM OF WARRANT AGREEMENT
See Exhibit 4.2 attached to this Current Report on Form 8-K
Exhibit I-1
Exhibit J
EQUITY PURCHASE AGREEMENT
THIS EQUITY PURCHASE AGREEMENT (this “Agreement”) is entered into as of _____________, 2021 by and between Bryan Capital Investors LLC, a Texas limited liability company (“Seller”) and iBio, Inc., a Delaware corporation (“Buyer”).
RECITALS
WHEREAS, Seller owns certain equity in Buyer more specifically described in Article V of iBio’s Certificate of Designation as iBio CMO Preferred Tracking Stock (the “Tracking Stock”) and certain equity interest in iBio CDMO LLC, a Delaware limited liability company (the “CDMO Equity”, and together with the Tracking Stock, the “Equity”); and
WHEREAS, Seller desires to sell, convey, assign and transfer to Buyer, and Buyer desires to purchase and accept the Equity on the terms and subject to the conditions set forth within this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual and dependent promises set forth herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
THE TRANSACTION
1.1 Purchase and Sale. Upon the terms and subject to the conditions set forth in this Agreement and effective upon the execution hereof, Buyer shall purchase and accept from Seller, and Seller shall sell, convey, assign and transfer to Buyer, the Equity. The Equity shall be purchased at an aggregate purchase price of Fifty Thousand Dollars ($50,000) and the issuance of Warrants (the “Purchase Price”) and the other good and valuable consideration described herein. Buyer shall pay the Purchase Price to Seller concurrently with the execution of this Agreement by wire transfer of immediately available funds in accordance with the wire transfer instructions delivered by Seller to Buyer.
1.2 Further Assurances. Each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances, and assurances and take such further actions as may be required to carry out the provisions hereof and give effect to the transactions contemplated hereby. Seller shall instruct the Company to execute and deliver such additional documents, instruments, and certificates as may be required to carry out the provisions hereof and give effect to the transactions contemplated hereby.
1.3 Fees and Expenses. Buyer and Seller shall each be responsible for its own respective fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby.
Exhibit J-1
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
2.1 Authorization of Agreement. Seller has all requisite power, authority and legal capacity to execute and deliver this Agreement and Seller has all requisite power, authority and legal capacity to perform Seller’s obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Seller and, assuming the due authorization, execution and delivery by Buyer, this Agreement constitutes a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting creditors’ rights generally and subject to general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law).
2.2 Title to Equity. Seller has good, valid and marketable title to the Equity, free and clear of any and all security interests, liens, claims, pledges, encumbrances or other rights or claims of any other person of any kind or any preemptive or similar rights (collectively, “Encumbrances”), other than as set forth in the formation documents of the Company (collectively, “Permitted Encumbrances”). Upon the execution hereof and payment of the Purchase Price, Buyer will acquire all of Seller’s right, title and interest in and to, the Equity purchased from Seller hereunder, free and clear of any and all Encumbrances other than Permitted Encumbrances. The Equity being sold represents all of Seller’s interest in iBio, Inc. and iBio CDMO, LLC.
2.3 Non-Contravention. Neither Seller’s execution and delivery of, and performance under, this Agreement nor the consummation of the transactions contemplated hereunder conflict with, violate, or constitute a default under any contract or agreement to which Seller is a party or create or impose of any Encumbrance or any additional liability on Seller.
2.4 Absence of Claims. To the actual knowledge of Seller, there are no facts or circumstances that would give rise to or relate in any way to any claim, action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), prosecution, contest, hearing, inquiry, inquest, audit, examination or investigation (collectively, “Actions”) that are pending Seller as relates to the Equity.
2.5 No Consent. No consent, approval or other authorization of, or filing with, any individual, corporation, partnership, trust or unincorporated organization or any government or an agency or political subdivision thereof, or any other person or entity is required for the valid execution, delivery and performance of this Agreement by Seller and the consummation by Seller of the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
3.1 Authorization of Agreement. Buyer has all requisite power, authority and legal capacity to execute and deliver this Agreement and Buyer has all requisite power, authority and legal capacity to perform Buyer’s obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Buyer and, assuming the due authorization, execution and delivery by Seller, this Agreement constitutes a legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting creditors’ rights generally and subject to general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law).
Exhibit J-2
3.2 Non-Contravention. Neither Buyer’s execution and delivery of, and performance under, this Agreement nor the consummation of the transactions contemplated hereunder conflict with, violate, or constitute a default under any contract or agreement to which Buyer is a party or create or impose of any Encumbrance or any additional liability on Buyer.
3.3 Absence of Claims. There are no facts or circumstances that would give rise to or relate in any way to any Actions that are pending or could be potentially be brought against Buyer or Seller, as relates to the Equity, or otherwise relating to the Equity.
3.4 No Consent. No consent, approval or other authorization of, or filing with, any individual, corporation, partnership, trust or unincorporated organization or any government or an agency or political subdivision thereof, or any other person or entity is required for the valid execution, delivery and performance of this Agreement by Buyer and the consummation by Buyer of the transactions contemplated hereby.
3.5 Investment Purpose. Buyer is acquiring the Equity solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof. Buyer acknowledges that the Equity is not registered under the Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and that the Equity may not be transferred or sold except pursuant to the registration provisions of the Securities Act or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable.
ARTICLE IV
MISCELLANEOUS
4.1 Notices. All notices and other communications to be given or made in connection with this Agreement shall be in writing and shall be deemed to have been given or made when given or made if such notice or communication is in writing and delivered personally, sent by commercial carrier or registered or certified mail (postage prepaid) or transmitted by facsimile or email to the parties at the following addresses and numbers (or at such other addresses as shall be furnished by the parties by like notice):
| To Seller: | Timothy Sullivan, | |
| c/o Bryan Capital LLC, | ||
| 3811 Turtle Creek Blvd., Suite 975, | ||
| Dallas, TX, 75219. | ||
| Email: ***@*** | ||
Exhibit J-3
| with a copy to: | Vinson & Elkins L.L.P. | |
| 2001 Ross Avenue, Suite 3900 | ||
| Dallas, Texas 75201 | ||
| Attention: Prentiss Cutshaw | ||
| Email address: ***@*** | ||
| Reference: KBD550/16000 |
| To Buyer: | iBio, Inc. | |
| 8800 HSC Parkway | ||
| Bryan, Texas 77807 | ||
| Attention: Robert Lutz | ||
| Email address: ***@*** |
| with a copy to: | Venable LLP | |
| 750 East Pratt Street, Suite 900 | ||
| Baltimore, Maryland 21201 | ||
| Attention: Charles Morton | ||
| Email address: ***@*** |
4.2 Indemnification.
(a) Following the Closing, Seller agrees to indemnify and hold harmless Buyer, and any of Buyer’s representatives and agents, from and against any Claims (as defined below) directly or indirectly arising from or related to (i) any breach of any representation or warranty made by Seller in this Agreement; or (ii) any breach by Seller of any covenant or obligation of Seller under this Agreement.
(b) Following the Closing, Buyer agrees to indemnify and hold harmless each Seller Released Party (as defined below) from and against any Claims directly or indirectly arising from or related to (i) any breach of any representation or warranty made by Buyer in this Agreement; (ii) any breach by Buyer of any covenant or obligation of Buyer under this Agreement; or (iii) the business, ownership, assets, liabilities, or operations of Buyer, iBio CDMO LLC or their respective subsidiaries and affiliates.
4.3 Release. Buyer, on behalf of itself and each of its equityholders, officers, agents, employees, and representatives, and any of its or their successors, assigns, and affiliates, in each case (collectively, the “Buyer Releasing Parties”), hereby absolutely, unconditionally, and irrevocably releases and discharges Seller, and each of its, members, equityholders, managers, directors, officers, agents, employees, and representatives, and any of its or their successors, assigns, and affiliates (collectively, the “Seller Released Parties”) from any and all claims, counterclaims, actions, causes of action, suits, defenses, debts, obligations, promises, expenses, liabilities, setoffs, accounts, covenants, contracts, agreements, costs, judgments, and demands whatsoever, whether at law, in equity, contract, tort, or otherwise (whether fixed or contingent, known or unknown, liquidated or unliquidated) (each, a “Claim”) which any of the Buyer Releasing Parties now has, or may hereafter have, against any of the Seller Released Parties, arising out of or relating to events, actions, omissions, facts, or circumstances occurring, arising, or existing at or prior to execution of this Agreement, including any Claim arising from or related to the business, ownership, assets, liabilities, or operations of Buyer, iBio CDMO LLC or their respective subsidiaries and affiliates prior to the execution of this Agreement. For the avoidance of doubt, Seller Released Parties shall include, without limitation, Tim Sullivan. Each of the Buyer Releasing Parties shall refrain from, directly or indirectly, asserting any Claim or demand or commencing, instituting, or causing to be commenced, any Action of any kind against any Seller Released Party based upon any matter released pursuant to this Section 4.3. In entering into this release of claims, Buyer acknowledges and agrees, on behalf of itself and each Buyer Releasing Party, that Claims or facts in addition to or different from what they now know, believe, or suspect to exist might hereafter be discovered; nevertheless, it is its intention by entering into this Agreement to fully, finally, and forever release, discharge, and settle all of the Claims described in the release contained in this Section 4.3, notwithstanding the existence or possible future discovery of any such additional or different Claim or fact, and the existence or possible future discovery of any such additional or different Claim or fact will in no manner affect this Agreement or the release set forth herein.
Exhibit J-4
4.4 Termination of Other Agreements. Subject to Section 4.3, all agreements between Buyer and Seller, including all affiliates of either party contained in any agreement, including, without limitation, any obligations contained in any organizational document of Inc., including its Charter, the Amended and Restated Limited Liability Company Agreement of CDMO dated January 13, 2016 (as amended), the License Agreement between Inc. and CDMO dated January 13, 2016, and any other agreements related to the Equity are hereby terminated and all claims relating thereto, including but not limited to any entitlement to dividends, are waived and released.
4.5 Headings; Entire Agreement; Counterparts; Amendments; Third Party Beneficiaries. The headings contained in this Agreement are inserted for convenience only and do not constitute a part of this Agreement. This Agreement constitutes the entire agreement among the parties and supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, email (including pdf or any electronic signature complying with the United States federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. This Agreement may not be amended except by an instrument in writing duly executed by each of the parties hereto. Except as set forth in Section 4.2, this Agreement is not intended to confer upon any other person other than the parties hereto any rights or remedies hereunder.
4.6 Assignees. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party. No assignment shall relieve the assigning party of any of its obligations hereunder.
4.7 Governing Law; No Jury Trial. The validity and interpretation of this Agreement shall be governed by the laws of the State of Delaware, without reference to the conflict of laws principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. The parties hereby waive their respective rights to a jury trial of any claim or cause of action based upon or arising out of this Agreement or any of the transactions contemplated herein, including contract claims, tort claims, breach of duty claims and all other common law or statutory claims.
Exhibit J-5
4.8 Drafting. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
4.9 Specific Performance. The parties hereto shall acknowledge that, in view of the uniqueness of the parties hereto, the parties hereto would not have an adequate remedy at law for money damages in the event that this Agreement were not performed in accordance with its terms, and therefore agree that the parties shall be entitled to specific enforcement of the terms hereof in addition to any other remedy to which the parties hereto may be entitled at law or in equity.
4.10 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Agreement or the application of any such provision to any Person or circumstance shall be held to be prohibited by, illegal or unenforceable under applicable Law in any respect by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition, illegality or unenforceability, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
4.11 Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Exhibit J-6
IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of the date first set forth above.
SELLER:
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BUYER:
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Exhibit J-7
Exhibit K
FORM OF APPROVAL LETTER
[Follows this page.]
Exhibit K-1
COLLEGE STATION INVESTORS LLC
3811 Turtle Creek Boulevard, Suite 975
Dallas, Texas 75219
October __, 2021
VIA OVERNIGHT DELIVERY
Chancellor
The Texas A&M University System
301 Tarrow, 7th Floor
College Station, Texas ###-###-####
| Re: | Ground Lease Agreement (the “Original Lease”) dated March 8, 2010 between the Board of Regents of the Texas A&M University System (the “Landlord”) and College Station Investors LLC, a Texas limited liability company (“Tenant”), as amended by the Estoppel Certificate and Amendment to Ground Lease Agreement (the “Agreement”, and together with the Original Lease, the “Lease”) dated December 22, 2015 between Landlord and Tenant |
Dear Chancellor:
Tenant is sending this letter to inform Landlord that Tenant has entered into a Purchase and Sale Agreement to assign Tenant’s interest as the tenant under the Lease to iBio CDMO LLC, a Delaware limited liability company (the “Proposed Assignee”). The Proposed Assignee will assume the obligations of Tenant under the Lease (the “Assignment”). Terms that are capitalized but not defined in this letter have the meanings given in the Lease.
The Proposed Assignee is the current occupant of the Premises pursuant to a Sublease Agreement between Tenant and the Proposed Assignee dated January 13, 2016 (the “Sublease”). Tenant and the Proposed Assignee have agreed to terminate the Sublease as part of the Assignment (the “Sublease Termination”), and the Proposed Assignee will continue to occupy the Premises as the tenant under the Lease pursuant to the Assignment.
The Proposed Assignee is financing the proposed transaction with a loan from Woodforest National Bank, a national banking association (“Lender”), to allow the Proposed Assignee to complete the Assignment (the “Financing”). the Financing includes granting a Leasehold Mortgage on the Proposed Assignee’s interest in the Premises under the Lease.
Accordingly, Tenant is requesting that Landlord approve (1) the assignment of Tenant’s interest in the Lease to the Proposed Assignee pursuant to Section 10.1 of the Lease, and that following the Assignment, Landlord will recognize the Proposed Assignee as the tenant under the Lease, (2) the Sublease Termination, and (3) the Financing pursuant to Article IV of the Lease, by counter-signing this letter.
We look forward to receiving your response.
[Signature Page Follows]
Exhibit K-2
| Respectfully, | |||
College Station Investors LLC, a Texas limited liability company | |||
| By: | |||
| Name: | |||
| Title: | |||
Landlord hereby executes this letter to acknowledge the foregoing and to confirm its approval of the assignment of the Lease to Proposed Assignee, the Sublease Termination, and the Financing.
The Board of Regents of The Texas A&M University System | ||
| By: | ||
| Name: | ||
| Title: | ||
| cc: | Office of General Counsel |
The Texas A&M University System
301 Tarrow, 6th Floor
College Station, Texas ###-###-####
System Real Estate Office
The Texas A&M University System
301 Tarrow, 6th Floor
College Station, Texas ###-###-####
Exhibit K-3
