PURCHASE AND MUTUAL INDEMNIFICATION AGREEMENT
Exhibit 10.21
THIS PURCHASE AND MUTUAL INDEMNIFICATION AGREEMENT (this “Agreement”) is effective as
of the 16th day of November, 2009, by and among Greenspring Partners, LP, a Pennsylvania limited
partnership with an address at X.X. Xxx 0000, Xxxx, XX 00000 (“Greenspring”), and Unilife Cross
Farm LLC, a Delaware limited liability company with an address at 000 Xxxxxxx Xxxx, Xxxxxxxxxx, XX
00000 (“Unilife”).
BACKGROUND:
A. Greenspring desires to sell and Unilife desires to purchase that certain real estate known
as 000 Xxxxx Xxxx Xxxx, located in Conewago Township, York County, Pennsylvania (“Lot 1A”) on terms
and conditions contained in that certain agreement of sale dated September 30, 2009, as amended,
between Unilife Medical Solutions, Inc. and Greenspring (“Terminated Agreement”).
B. Certain other parcels of real estate are adjacent to Lot 1A, including a parcel known as
000 Xxxxx Xxxx Xxxx currently owned by Exeter 275 Cross Farm, L.P. (“Lot 1B”) and a parcel known as
000 Xxxxx Xxxx Xxxx currently owned by FR York Property Holdings, L.P. (“Lot 1”).
C. Lots 1A, 1B, and 1 are part of a single development (the “Development”) constructed by
Greenspring.
D. Lot 1A on the one hand, and Lots 1B and 1 on the other hand, are separated by Cross Farm
Lane (the “Road”).
E. A sedimentation basin (the “Basin”) is currently located on Lot 1A for the benefit of the
Development. The Basin is subject to NPDES Permit No. PAG2006705054 (the “Permit”), currently in
the name of Xxxxxxx X. Xxxxx, LLC (“Xxxxx”, a former affiliate of Greenspring) and Greenspring
(“Original Permittees”).
F. In connection with the sale of Lot 1A to Unilife, Unilife must become a co- permittee on
the Permit.
G. In addition, two letters of credit are associated with the Development and obligations of
Greenspring in connection therewith: (1) letter of credit no. 10002731221 from Susquehanna Bank PA
in the face amount of $383,101.62 relating to certain improvements on Lot 1A (the “383 LC”); and
(2) letter of credit no. 10001392561 from Susquehanna Bank PA with a face amount of $1,513,669 and
a current balance of $122,950 relating to common improvements, including but not limited to the
wearing course on, and traffic signaling relating to, the Road (the “123 LC”).
H. The parties hereto desire to confirm the agreement to purchase and assign responsibility
for the various obligations relating to the Basin, the 383 LC and the 123 LC continuing after
closing on the purchase.
NOW THEREFORE, for and in consideration of the mutual promises and covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as follows:
1. Incorporation of Recitals. The recitals set forth above are incorporated herein as
if set forth at length below.
2. Agreement of Sale. Unilife Medical Solutions, Inc. and Greenspring hereby confirm
that the Terminated Agreement has been terminated and is no longer of any force or effect.
Greenspring hereby agrees to sell and Unilife agrees to purchase Lot 1A on the terms and conditions
of the Terminated Agreement.
3. Indemnification.
A. Indemnification by Greenspring. Greenspring hereby agrees to indemnify, defend and
save and hold harmless Unilife, its members, partners, shareholders, officers, agents, successors,
affiliates and assigns from and against, and to reimburse such indemnified party with respect to,
any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses
(including reasonable attorneys’ fees and expenses, and court costs), direct and indirect, asserted
against or incurred by such indemnified party by reason of, or arising in connection with: (1) the
123 LC and the obligations underlying it, including but not limited to the wearing course on the
Road and the traffic signaling related to the Road; or (2) the Permit as it relates to Lots 1 or
1B.
B. Indemnification by Unilife. Unilife hereby agrees to indemnify, defend and save
and hold harmless Xxxxx, Greenspring, their respective members, partners, shareholders officers,
agents, successors, affiliates and assigns from and against, and to reimburse such indemnified
party with respect to, any and all claims, demands, causes of action, losses, damages, liabilities,
costs and expenses (including reasonable attorneys’ fees and expenses, and court costs), direct and
indirect, asserted against or incurred by such indemnified party by reason of, or arising in
connection with: (1) the 383 LC and the obligations underlying it; or (2) the Permit as it relates
to Lot 1A.
4. Covenant to Maintain Assets. Greenspring covenants and agrees to maintain
sufficient liquid assets to satisfy its obligations described herein. Upon the reasonable request
of Unilife, Greenspring shall deliver to Unilife financial or other information appropriate to
confirm this undertaking.
5. No Proceedings or Threatened Proceedings.
A. Each party to this Agreement hereby represents that, as of the date hereof, to the
knowledge of such party:
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i. There is no litigation, arbitration, grievance or other proceeding before any court,
arbitrator or governmental regulatory official, body or authority arising in connection with the
Permit, the 123 LC, the 383 LC and/or the Development, and/or the transactions described in the
recitals above (collectively, a “Proceeding”) pending.
ii. There is no Proceeding threatened.
iii. There has been no act, omission, circumstance or event that is reasonably likely to give
rise to any Proceeding.
B. In the event of a breach of any representation contained in this Section 5 by a party to
this Agreement (the “Breaching Party”), the Breaching Party agrees to indemnify, defend and save
and hold harmless the other parties to this Agreement, their respective shareholders, members,
officers, directors, agents, personal representatives, successors, and assigns from and against,
and to reimburse such indemnified party with respect to, any and all claims, demands, causes of
action, losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and
expenses, and court costs), direct and indirect, asserted against or incurred by the indemnified
party, arising in connection with such breach.
6. Governing Law; Venue. This Agreement has been executed in and shall be construed
and enforced in accordance with, and governed by, the laws of the Commonwealth of Pennsylvania
without regard to conflict of law principles. Any action which in any way involves the rights,
duties and/or obligations of the parties hereto shall be brought in the courts of the Commonwealth
of Pennsylvania located in and for the County of York.
7. Entire Agreement. This Agreement sets forth the entire understanding of the
parties hereto, supersedes any prior agreements, negotiations and understandings of the parties
relating to the Permit, 123 LC or 383 LC. This Agreement may not be changed nor may any provision
hereof be waived except by a writing signed by all of the parties hereto.
8. Counterparts. This Agreement may be executed in any number of counterparts, and
each such counterpart hereof shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
9. Headings. The headings of the sections of this Agreement are inserted for
convenience of reference only, and shall not be considered a part hereof.
10. Binding Effect. This Agreement and all rights and powers granted hereby will bind
and inure to the benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, trustees, successors and assigns.
11. Survival. The indemnification obligations and duties described herein shall
survive any closing on Lot 1A and shall not be merged into the deed therefor.
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IN WITNESS WHEREOF, the parties, intending to be legally bound hereby, have executed this
Agreement as of the day and year first written above.
| Greenspring Partners, LP By: Greenspring Associates, LLC, Sole General Partner |
||
| /s/ Xxxxxxx X. Xxxxx | ||
| By: | Xxxxxxx X. Xxxxx, Managing Member | |
| Unilife Cross Farm LLC By: Unilife Corporation, its sole member |
||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxx X. Xxxxxx | |
| Title: | Assistant Secretary | |
Unilife Medical Solutions, Inc. hereby joins in this Agreement for the sole purpose of
confirming the termination described in Section 2 above.
| Unilife Medical Solutions, Inc. | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxx X. Xxxxxx | |
| Title: | Assistant Secretary | |
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