8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event Reported): April 11, 2022 (April 5, 2022)

Clearday, Inc.

(Exact Name of Registrant as Specified in Charter)

Delaware	0-21074	77-0158076
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(I.R.S. Employer Identification Number)

8800 Village Drive, Suite 106, San Antonio, TX 78217

(Address of Principal Executive Offices) (Zip Code)

(210) 451-0839

(Registrant’s telephone number, including area code)

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, par value $0.001	CLRD	OTCQB

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2). Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01 Entry into a Material Definitive Agreement.

On April 5, 2022, Clearday, Inc. (the “Company”), entered into a Securities Purchase Agreement (the “Note Purchase Agreement”) to issue an unsecured promissory note (the “Note”) to an institutional lender. We used the proceeds of this financing to fund our operations.

The Note provides for the net funding to Clearday of $150,000 after payment of specified expenses of $3,750 and provides for an original issue discount of $18,450, resulting in a principal obligation of $172,200 and a one-time interest charge of 12% on such principal amount.

The Note provides for a one year maturity. Monthly payments on the Note of $19,286.40 will be made by Clearday with the first payment being on May 20, 2022, which payments are subject to a 10 day grace period. The Note is unsecured. The Note provides specified events of default (an “Event of Default”) including failure to timely pay the monetary obligations under the Note and such breach continues for a period of ten (10) days after written notice from the Noteholder’ a breach of covenants under the Note or the Purchase Agreement that continues for a period of twenty (20) days after written notice by the Noteholder; breach of any representation and warranty in the Note or Purchase Agreement; commencement of bankruptcy or similar proceedings; failure to maintain the listing of Clearday’s common stock on at least one of the Over-the-Counter markets such as the OTCQB; the failure of Clearday to comply with the reporting requirements of the Securities Exchange Act; Clearday’s liquidation, or a financial statement restatement by Clearday.

Upon any Event of Default, the obligations under the Note will accrue interest at an annual rate of 22% and, if such Event of Default is continuing at any time that is 180 days after the date of the Note, provide the Noteholder the right and option to convert the obligations under the Note to shares of Clearday’s common stock. The price for any such conversion is equal to 75% (or a 25% discount) of the average of the five (5) lowest per share daily volume-weighted average price of Clearday’s common stock over the ten (10) consecutive trading days that are not subject to specified market disruptions immediately preceding the date of the conversion. The conversion right of the Noteholder is subject to a customary limitation on beneficial ownership of 4.99% of Clearday’s common stock.

Each of the Note and the Purchase Agreement has customary other covenants and provisions, including representations and warranties, payment of brokers, and indemnification, that Clearday will not sell, lease or otherwise dispose of any significant portion of its assets outside the ordinary course of business without the consent of the Noteholder and Clearday will maintain a reserve of authorized and unissued shares of common stock sufficient for full conversion of the obligations under the Note.

The foregoing descriptions of the Note Purchase Agreement and the Note are not complete and are qualified in their entirety by reference to the full text of each such agreement, which is filed as Exhibit 10.1 and Exhibit 10.2 to this Current Report on Form 8-K and is incorporated herein by reference.

On April 5, 2022, Leander Associates, Ltd., a Texas limited partnership (“Seller”) that is a subsidiary of Clearday, Inc. (the “Company”), entered into a Purchase and Sale Agreement (the “Leander Sale Agreement”) to sell one of Clearday’s non-core assets: a land parcel located in Leander, Texas (the “Property”). The purchase price is approximately $392,040 per acre, subject to customary apportionments, and includes the price applicable to third party reporting and engineering documentation and other studies and analysis delivered by Seller to the purchaser. The purchaser has made an initial deposit of $20,000 and paid an initial non-fundable fee of $5,000, which fee will be applied to the payment of the purchase price upon a closing. The Leander Sale Agreement provides a 90-day period following the April 4, 2022 effective date, or until July 5, 2022 (the “Feasibility Period”), for the purchaser to inspect the Property and conduct their analysis, appraisals and other examination of the Property, including environmental inspections. Onsite testing by the purchaser is subject to customary conditions including notice, indemnification and maintenance of commercial liability insurance naming Seller as an additional insured party. The purchaser may conduct a Phase II environmental inspection subject to Seller’s prior written consent. The purchaser may terminate the Leander Sale Agreement on or prior to the expiration of the Feasibility Period. Upon such termination, the deposits by purchaser under the Leander Sale Agreement will be returned. If the purchaser does not so terminate the Leander Sale Agreement, then it is required to provide an additional $20,000 deposit.

Within 14 days after the effective date, or April 19, 2022, Seller will provide the purchaser with a title insurance commitment and related title documents. The Leander Sale Agreement provides for a customary process for the purchaser to raise, and for the parties to resolve, any purchaser objections to any title issues, which shall not include customary permitted title exceptions. Prior to the end of the Feasibility Period, purchaser shall use its commercially reasonable efforts to obtain a survey of the Property (the “Survey”) to the Seller, and Seller will reimburse 50% of the cost of the Survey, up to $3,000. Seller shall have no obligation to remove, satisfy or cure any title objections, except for liens voluntarily created by Seller that secure monetary obligations of Seller, judgment liens and delinquent real property taxes and assessments (the “Monetary Liens”), which Seller agrees to remove on or before Closing.

The Leander Sale Agreement provides the purchaser with the ability to assess the permitting requirements and obtain land use and related approvals prior to closing the purchase of the Property. If purchaser provides a $10,000 deposit (the “Initial Permitting Fee”) on or before the expiration of the Feasibility Period, then the purchaser shall have a period (the “Permitting Period”) of one hundred eighty (180) days following the expiration of the Feasibility Period, subject to up to three extensions, each for 90 days, to obtain the approvals from the appropriate governmental authorities regarding: (1) the re-zoning of the Property to mixed-use or multi-family zoning (the “Rezoning”); (2) the approval of the purchaser’s site plan (the “Site Plan”); and (3) the civil permit for the horizontal development of the Property in accordance with the Site Plan (the “Civil Permit”, and together with the Rezoning and Site Plan, collectively, the “Approvals”). If, despite purchaser’s diligent efforts to obtain such Approvals, purchaser is unable to obtain such Approvals prior to expiration of the Permitting Period, the purchaser shall be entitled to extend the Permitting Period for three (3) periods of ninety (90) days each (each, an “Permitting Extension Period”) by providing notice prior to expiration of the Permitting Period, as then extended, and providing a $10,000 extension fee (a “Permitting Extension Fee”). The Initial Permitting Fee and all Permitting Extension Fees shall be nonrefundable but will be applied to the purchase price at the closing. Purchaser may terminate the Leander Sale Agreement if purchaser is unable to obtain the Approvals at the end of the Permitting Period, as duly extended. The Leander Sale Agreement also provides that the purchaser is obligated to pay for all “Rollback Taxes,” which is the amount of property taxes to be due upon the change in land usage or ownership of all or part of the Property

The closing of the purchase and sale of the Property is on the date that is not later than 60 days after the expiration of the Permitting Period or the Permitting Extension Period, subject to any adjournment.

The Leander Sale Agreement includes customary terms and conditions including representations and warranties, payment of brokers, conditions to closing, risk of loss, condemnation, remedies, environmental conditions, and indemnification.

The Leander Sale Agreement also provides the Seller the right to invest a portion, up to $600,000, of the Property to the purchaser, which may be exercised by Seller prior to the date that Approvals are received. Should Seller elect to exercise such participation right, then Seller and purchaser will enter into a definitive agreement, in a form and substance acceptable to both parties, whereby Seller shall receive an amount equal to such contributed property multiplied by 115% (the “Contribution Value”). Such participation or investment will provide that all distributions of Cash Flow from the development on the Property will first be paid to Seller pari passu with all other distributions of return of capital paid to the members of purchaser until such time that Seller has received an amount equal to the Contribution Value prior to any other distributions of profits. Following the distribution of the Contribution Value to Seller, Seller will not be entitled to any further distributions. Cash flow is defined be mean gross cash receipts from the ownership, operation, financing, development, sale of all (or a portion of) the Property less all expenses with respect to the purchaser’s development costs, transaction costs incurred, other than any expenses paid to affiliates or related parties or foreign persons, any financing or sale of its assets and properties and customary expenses of the development and any income derived from leasing the Property.

The foregoing description of the Leander Sale Agreement is not complete and is qualified in its entirety by reference to the full text of such agreement, which is filed as Exhibit 10.3 to this Current Report on Form 8-K and is incorporated herein by reference.

Forward Looking Statements

This communication contains forward-looking statements (including within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, and Section 27A of the Securities Act of 1933, as amended) concerning the Company. These statements may discuss goals, intentions and expectations as to future plans, trends, events, results of operations or financial condition, or otherwise, based on current beliefs of the management of the Company, as well as assumptions made by, and information currently available to, management. Forward-looking statements generally include statements that are predictive in nature and depend upon or refer to future events or conditions, and include words such as “may,” “will,” “should,” “would,” “expect,” “anticipate,” “plan,” “likely,” “believe,” “estimate,” “project,” “intend,” and other similar expressions. Statements that are not historical facts are forward-looking statements. Forward-looking statements are based on current beliefs and assumptions that are subject to risks and uncertainties and are not guarantees of future performance. Actual results could differ materially from those contained in any forward-looking statement as a result of various factors, including, without limitation: the risks regarding the Company and its business, generally; risks related to the Company’s ability to correctly estimate and manage its operating expenses and develop its innovate non-acute care businesses and the acceptance of its proposed products and services, including with respect to future financial and operating results; the ability of the Company to protect its intellectual property rights; competitive responses to the Company’s businesses including its innovative non-acute care business; unexpected costs, charges or expenses; regulatory requirements or developments; changes in capital resource requirements; and legislative, regulatory, political and economic developments. The foregoing review of important factors that could cause actual events to differ from expectations should not be construed as exhaustive and should be read in conjunction with statements that are included herein and elsewhere, including the risk factors included in the Company’s most recent Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed with the SEC and the registration statement regarding the Company’s previously announced merger, that was filed and declared effective. The Company can give no assurance that the actual results will not be materially different than those based on the forward looking statements. Except as required by applicable law, the Company undertakes no obligation to revise or update any forward-looking statement, or to make any other forward-looking statements, whether as a result of new information, future events or otherwise.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

No.	Description
10.1	Form of Promissory Note dated April 5, 2022 in the principal amount of $172,200.
10.2	Form of Securities Purchase Agreement, dated as of April 5, 2022, by and between Clearday, Inc. and Sixth Street Lending LLC.
10.3	Purchase and Sale Agreement, effective April 5, 2022, by and between Leander Associates, Ltd., a Texas limited partnership (“Seller”), and the purchaser specified therein.
104	Cover Page Interactive Data File (embedded within the Inline XBRL document).

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	CLEARDAY, INC.
	By:	/s/ James Walesa
	Name:	James Walesa
	Title:	Chief Executive Officer
Dated April 11, 2022

EX-10.1

Exhibit 10.1

THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.

THE ISSUE PRICE OF THIS NOTE IS $172,200.00

THE ORIGINAL ISSUE DISCOUNT IS $18,450.00

Principal Amount: $172,200.00	Issue Date: April 5, 2022
Purchase Price: $153,750.00

PROMISSORY NOTE

FOR VALUE RECEIVED, CLEARDAY, INC., a Delaware corporation (hereinafter called the “Borrower”), hereby promises to pay to the order of SIXTH STREET LENDING LLC, a Virginia limited liability company, or registered assigns (the “Holder”) the sum of $172,200.00 together with any interest as set forth herein, on April 5, 2023 (the “Maturity Date”), and to pay interest on the unpaid principal balance hereof from the date hereof (the “Issue Date”) as set forth herein. This Note may not be prepaid in whole or in part except as otherwise explicitly set forth herein. Any amount of principal or interest on this Note which is not paid when due shall bear interest at the rate of twenty two percent (22%) per annum from the due date thereof until the same is paid (“Default Interest”). All payments due hereunder (to the extent not converted into common stock, $0.001 par value per share (the “Common Stock”) in accordance with the terms hereof) shall be made in lawful money of the United States of America. All payments shall be made at such address as the Holder shall hereafter give to the Borrower by written notice made in accordance with the provisions of this Note. Each capitalized term used herein, and not otherwise defined, shall have the meaning ascribed thereto in that certain Securities Purchase Agreement dated the date hereof, pursuant to which this Note was originally issued (the “Purchase Agreement”).

This Note is free from all taxes, liens, claims and encumbrances with respect to the issue thereof and shall not be subject to preemptive rights or other similar rights of shareholders of the Borrower and will not impose personal liability upon the holder thereof.

The following terms shall apply to this Note:

ARTICLE I. GENERAL TERMS

1.1 Interest. A one-time interest charge of twelve percent (12%) (the “Interest Rate”) shall be applied on the Issuance Date to the Principal ($172,200.00 *.12 = $20,664.00). Interest hereunder shall be paid as set forth herein to the Holder or its assignee in whose name this Note is registered on the records of the Company regarding registration and transfers of Notes in cash or, in the Event of Default, at the Option of the Holder, converted into share of Common Stock as set forth herein.

1.2 Mandatory Monthly Payments. Accrued, unpaid Interest and outstanding principal, subject to adjustment, shall be paid in ten (10) payments each in the amount of $19,286.40 (a total payback to the Holder of $192,864.00). The first payment shall be due May 20, 2022 with nine (9) subsequent payments each month thereafter. The Company shall have a ten (10) day grace period with respect to each payment; provided; however, that, if the expiration of the grace period falls on a Saturday, Sunday or Monday that is a U.S. Federal holiday, such grace period shall expire on the Friday prior. The Company has right to accelerate payments or prepay in full at any time with no prepayment penalty. All payments shall be made by bank wire transfer to the Holder’s wire instructions, attached hereto as Exhibit A. For the avoidance of doubt, a missed payment shall be considered an Event of Default.

1.3 Security. This Note shall not be secured by any collateral or any assets pledged to the Holder

ARTICLE II. CERTAIN COVENANTS

2.1 Sale of Assets. So long as the Borrower shall have any obligation under this Note, the Borrower shall not, without the Holder’s written consent, sell, lease or otherwise dispose of any significant portion of its assets outside the ordinary course of business. Any consent to the disposition of any assets may be conditioned on a specified use of the proceeds of disposition.

ARTICLE III. EVENTS OF DEFAULT

If any of the following events of default (each, an “Event of Default”) shall occur:

3.1 Failure to Pay Principal and Interest. The Borrower fails to pay the principal hereof or interest thereon when due on this Note, whether at maturity, upon acceleration or otherwise and such breach continues for a period of ten (10) days after written notice from the Holder.

3.2 Breach of Covenants. The Borrower breaches any material covenant or other material term or condition contained in this Note and any collateral documents including but not limited to the Purchase Agreement and such breach continues for a period of twenty (20) days after written notice thereof to the Borrower from the Holder.

3.3 Breach of Representations and Warranties. Any representation or warranty of the Borrower made herein or in any agreement, statement or certificate given in writing pursuant hereto or in connection herewith (including, without limitation, the Purchase Agreement), shall be false or misleading in any material respect when made and the breach of which has (or with the passage of time will have) a material adverse effect on the rights of the Holder with respect to this Note or the Purchase Agreement.

3.4 Receiver or Trustee. The Borrower or any subsidiary of the Borrower shall make an assignment for the benefit of creditors, or apply for or consent to the appointment of a receiver or trustee for it or for a substantial part of its property or business, or such a receiver or trustee shall otherwise be appointed.

3.5 Bankruptcy. Bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings, voluntary or involuntary, for relief under any bankruptcy law or any law for the relief of debtors shall be instituted by or against the Borrower or any subsidiary of the Borrower.

3.6 Delisting of Common Stock. The Borrower shall fail to maintain the listing of the Common Stock on at least one of the OTC (which specifically includes the quotation platforms maintained by the OTC Markets Group) or an equivalent replacement exchange, the Nasdaq National Market, the Nasdaq SmallCap Market, the New York Stock Exchange, or the American Stock Exchange.

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3.7 Failure to Comply with the Exchange Act. The Borrower shall fail to comply with the reporting requirements of the Exchange Act; and/or the Borrower shall cease to be subject to the reporting requirements of the Exchange Act.

3.8 Liquidation. Any dissolution, liquidation, or winding up of Borrower or any substantial portion of its business.

3.9 Cessation of Operations. Any cessation of operations by Borrower or Borrower admits it is otherwise generally unable to pay its debts as such debts become due, provided, however, that any disclosure of the Borrower’s ability to continue as a “going concern” shall not be an admission that the Borrower cannot pay its debts as they become due.

3.10 Financial Statement Restatement. The restatement of any financial statements filed by the Borrower with the SEC at any time after 180 days after the Issuance Date for any date or period until this Note is no longer outstanding, if the result of such restatement would, by comparison to the un-restated financial statement, have constituted a material adverse effect on the rights of the Holder with respect to this Note or the Purchase Agreement.

3.11 Replacement of Transfer Agent. In the event that the Borrower proposes to replace its transfer agent, the Borrower fails to provide, prior to the effective date of such replacement, a fully executed Irrevocable Transfer Agent Instructions in a form as initially delivered pursuant to the Purchase Agreement (including but not limited to the provision to irrevocably reserve shares of Common Stock in the Reserved Amount) signed by the successor transfer agent to Borrower and the Borrower.

3.12 Cross-Default. Notwithstanding anything to the contrary contained in this Note or the other related or companion documents, a breach or default by the Borrower of any covenant or other term or condition contained in any of the Other Agreements, after the passage of all applicable notice and cure or grace periods, shall, at the option of the Holder, be considered a default under this Note and the Other Agreements, in which event the Holder shall be entitled (but in no event required) to apply all rights and remedies of the Holder under the terms of this Note and the Other Agreements by reason of a default under said Other Agreement or hereunder. “Other Agreements” means, collectively, all agreements and instruments between, among or by: (1) the Borrower, and, or for the benefit of, (2) the initial Holder and any affiliate of the initial Holder, including, without limitation, promissory notes; provided, however, the term “Other Agreements” shall not include the related or companion documents to this Note. Each of the loan transactions will be cross-defaulted with each other loan transaction and with all other existing and future debt of Borrower to the Holder.

Upon the occurrence and during the continuation of any Event of Default, the Note shall become immediately due and payable and the Borrower shall pay to the Holder, in full satisfaction of its obligations hereunder, an amount equal to 150% times the sum of (w) the then outstanding principal amount of this Note plus (x) accrued and unpaid interest on the unpaid principal amount of this Note to the date of payment (the “Mandatory Prepayment Date”) plus (y) Default Interest, if any, on the amounts referred to in clauses (w) and/or (x) plus (z) any amounts owed to the Holder pursuant to Article IV hereof (the then outstanding principal amount of this Note to the date of payment plus the amounts referred to in clauses (x), (y) and (z) shall collectively be known as the “Default Amount”) and all other amounts payable hereunder shall immediately become due and payable, all without demand, presentment or notice, all of which hereby are expressly waived, together with all costs, including, without limitation, legal fees and expenses, of collection, and the Holder shall be entitled to exercise all other rights and remedies available at law or in equity.

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If the Borrower fails to pay the Default Amount within ten (10) business days of written notice that such amount is due and payable, then the Holder shall have the right at any time, to convert the balance owed pursuant to the note including the Default Amount into shares of common stock of the Company as set forth herein.

ARTICLE IV. CONVERSION RIGHTS

4.1 Conversion Right. At any time following the date which is one hundred eighty (180) days following the date hereof and only following the occurrence of an Event of Default, the Holder shall have the right, to convert all or any part of the outstanding and unpaid amount of this Note into fully paid and non-assessable shares of Common Stock, as such Common Stock exists on the Issue Date, or any shares of capital stock or other securities of the Borrower into which such Common Stock shall hereafter be changed or reclassified at the conversion price determined as provided herein (a “Conversion”); provided, however, that in no event shall the Holder be entitled to convert any portion of this Note in excess of that portion of this Note upon conversion of which the sum of (1) the number of shares of Common Stock beneficially owned by the Holder and its affiliates (other than shares of Common Stock which may be deemed beneficially owned through the ownership of the unconverted portion of the Notes or the unexercised or unconverted portion of any other security of the Borrower subject to a limitation on conversion or exercise analogous to the limitations contained herein) and (2) the number of shares of Common Stock issuable upon the conversion of the portion of this Note with respect to which the determination of this proviso is being made, would result in beneficial ownership by the Holder and its affiliates of more than 4.99% of the outstanding shares of Common Stock. For purposes of the proviso to the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Regulations 13D-G thereunder, except as otherwise provided in clause (1) of such proviso. The beneficial ownership limitations on conversion as set forth in the section may NOT be waived by the Holder. The number of shares of Common Stock to be issued upon each conversion of this Note shall be determined by dividing the Conversion Amount (as defined below) by the applicable Conversion Price then in effect on the date specified in the notice of conversion, in the form attached hereto as Exhibit B(the “Notice of Conversion”), delivered to the Borrower by the Holder in accordance with Section 4.4 below; provided that the Notice of Conversion is submitted by facsimile or e-mail (or by other means resulting in, or reasonably expected to result in, notice) to the Borrower before 6:00 p.m., New York, New York time on such conversion date (the “Conversion Date”); however, if the Notice of Conversion is sent after 6:00pm, New York, New York time the Conversion Date shall be the next business day. The term “Conversion Amount” means, with respect to any conversion of this Note, the sum of (1) the principal amount of this Note to be converted in such conversion plus (2) at the Holder’s option, accrued and unpaid interest, if any, on such principal amount at the interest rates provided in this Note to the Conversion Date, plus (3) at the Holder’s option, Default Interest, if any, on the amounts referred to in the immediately preceding clauses (1) and/or (2) plus (4) at the Holder’s option, any amounts owed to the Holder pursuant to Sections 4.4 hereof.

4.2 Conversion Price.

(a) The conversion price (the “Conversion Price”) shall equal the Variable Conversion Price (as defined herein)(subject to equitable adjustments for stock splits, stock dividends or rights offerings by the Borrower relating to the Borrower’s securities or the securities of any subsidiary of the Borrower, combinations, recapitalization, reclassifications, extraordinary distributions and similar events).

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(b) “Applicable Percentage” shall mean 25%.

(c) The “Variable Conversion Price” shall mean 1.0 minus the Applicable Percentage (as defined herein) multiplied by the Market Price (as defined herein).

(d) “Market Price” shall equal the average of the five (5) lowest Daily VWAP over the ten (10) consecutive VWAP Trading Days immediately preceding the date on which the Market Price is being determined.

(e) “Daily VWAP” shall mean the per share volume-weighted average price of the Common Stock as displayed under the heading “Bloomberg VWAP” on Bloomberg page “MWK <EQUITY> VAP” (or, if such page is not available, its equivalent successor page) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such VWAP Trading Day (or, if such volume-weighted average price is unavailable, the market value of one share of Common Stock on such VWAP Trading Day, determined, using a volume-weighted average price method, by a nationally recognized independent investment banking firm selected by the Company). The Daily VWAP will be determined without regard to after-hours trading or any other trading outside of the regular trading session.

(f) “VWAP Trading Day” shall mean a day on which (A) there is no VWAP Market Disruption Event; and (B) trading in the Common Stock generally occurs on the principal U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded, including the OTCQB or the OTCQX; provided that if the Common Stock is not so listed or traded, then “VWAP Trading Day” means a Business Day.

(g) “VWAP Market Disruption Event” means, with respect to any date, (A) the failure by the principal U.S. national or regional securities exchange on which the Common Stock is then listed, or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, the principal other market on which the Common Stock is then traded including the OTCQB or the OTCQX, to open for trading during its regular trading session on such date; or (B) the occurrence or existence, for more than one half hour period in the aggregate, of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m., New York City time, on such date.

(h) Provided, that If the VWAP cannot be calculated for such security on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the holder of the Note.

(i) All such determinations of VWAP shall be appropriately and equitably adjusted in accordance with the provisions set forth herein for any stock dividend, stock split, stock combination or other similar transaction occurring during any period used to determine the Market Price (or other period utilizing VWAPs).

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4.3 Authorized Shares. The Borrower covenants that during the period that the Note is outstanding, the Borrower will reserve from its authorized and unissued Common Stock a sufficient number of shares, free from preemptive rights, to provide for the issuance of Common Stock upon the full conversion of this Note issued pursuant to the Purchase Agreement. The Borrower is required at all times to have authorized and reserved four times the number of shares that is actually issuable upon full conversion of the Note (based on the Conversion Price of the Note in effect from time to time initially 368,835 shares) (the “Reserved Amount”). The Reserved Amount shall be increased from time to time in accordance with the Borrower’s obligations hereunder. The Borrower represents that upon issuance, such shares will be duly and validly issued, fully paid and non-assessable. In addition, if the Borrower shall issue any securities or make any change to its capital structure which would change the number of shares of Common Stock into which the Notes shall be convertible at the then current Conversion Price, the Borrower shall at the same time make proper provision so that thereafter there shall be a sufficient number of shares of Common Stock authorized and reserved, free from preemptive rights, for conversion of the outstanding Note. The Borrower (i) acknowledges that it has irrevocably instructed its transfer agent to issue certificates for the Common Stock issuable upon conversion of this Note, and (ii) agrees that its issuance of this Note shall constitute full authority to its officers and agents who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for shares of Common Stock in accordance with the terms and conditions of this Note.

If, at any time the Borrower does not maintain the Reserved Amount it will be considered an Event of Default under this Note if such failure continues for a period of ten (10) business days after notice of such failure.

4.4 Method of Conversion.

(a) Mechanics of Conversion. As set forth in Section 4.1 hereof, at any time following an Event of Default, the balance due pursuant to this Note may be converted by the Holder in whole or in part at any time from time to time after the Issue Date, by (A) submitting to the Borrower a Notice of Conversion (by facsimile, e-mail or other reasonable means of communication dispatched on the Conversion Date prior to 6:00 p.m., New York, New York time) and (B) subject to Section 4.4(b), surrendering this Note at the principal office of the Borrower (upon payment in full of any amounts owed hereunder).

(b) Surrender of Note Upon Conversion. Notwithstanding anything to the contrary set forth herein, upon conversion of this Note in accordance with the terms hereof, the Holder shall not be required to physically surrender this Note to the Borrower unless the entire unpaid principal amount of this Note is so converted. The Holder and the Borrower shall maintain records showing the principal amount so converted and the dates of such conversions or shall use such other method, reasonably satisfactory to the Holder and the Borrower, so as not to require physical surrender of this Note upon each such conversion.

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(c) Delivery of Common Stock Upon Conversion. Upon receipt by the Borrower from the Holder of a facsimile transmission or e-mail (or other reasonable means of communication) of a Notice of Conversion meeting the requirements for conversion as provided in this Section 4.4, the Borrower shall issue and deliver or cause to be issued and delivered to or upon the order of the Holder certificates for the Common Stock issuable upon such conversion within three (3) business days after such receipt (the “Deadline”) (and, solely in the case of conversion of the entire unpaid principal amount hereof, surrender of this Note) in accordance with the terms hereof and the Purchase Agreement. Upon receipt by the Borrower of a Notice of Conversion, the Holder shall be deemed to be the holder of record of the Common Stock issuable upon such conversion, the outstanding principal amount and the amount of accrued and unpaid interest on this Note shall be reduced to reflect such conversion, and, unless the Borrower defaults on its obligations hereunder, all rights with respect to the portion of this Note being so converted shall forthwith terminate except the right to receive the Common Stock or other securities, cash or other assets, as herein provided, on such conversion. If the Holder shall have given a Notice of Conversion as provided herein, the Borrower’s obligation to issue and deliver the certificates for Common Stock shall be absolute and unconditional, irrespective of the absence of any action by the Holder to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any person or any action to enforce the same, any failure or delay in the enforcement of any other obligation of the Borrower to the holder of record, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder of any obligation to the Borrower, and irrespective of any other circumstance which might otherwise limit such obligation of the Borrower to the Holder in connection with such conversion.

(d) Delivery of Common Stock by Electronic Transfer. In lieu of delivering physical certificates representing the Common Stock issuable upon conversion, provided the Borrower is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer (“FAST”) program, upon request of the Holder and its compliance with the provisions set forth herein, the Borrower shall use its best efforts to cause its transfer agent to electronically transmit the Common Stock issuable upon conversion to the Holder by crediting the account of Holder’s Prime Broker with DTC through its Deposit and Withdrawal at Custodian (“DWAC”) system.

(e) Failure to Deliver Common Stock Prior to Deadline. Without in any way limiting the Holder’s right to pursue other remedies, including actual damages and/or equitable relief, the parties agree that if delivery of the Common Stock issuable upon conversion of this Note is not delivered by the Deadline due to action and/or inaction of the Borrower, the Borrower shall pay to the Holder $2,000 per day in cash, for each day beyond the Deadline that the Borrower fails to deliver such Common Stock (the “Fail to Deliver Fee”); provided; however that the Fail to Deliver Fee shall not be due if the failure is a result of a third party (i.e., transfer agent; and not the result of any failure to pay such transfer agent) despite the best efforts of the Borrower to effect delivery of such Common Stock. Such cash amount shall be paid to Holder by the fifth day of the month following the month in which it has accrued or, at the option of the Holder (by written notice to the Borrower by the first day of the month following the month in which it has accrued), shall be added to the principal amount of this Note, in which event interest shall accrue thereon in accordance with the terms of this Note and such additional principal amount shall be convertible into Common Stock in accordance with the terms of this Note. The Borrower agrees that the right to convert is a valuable right to the Holder. The damages resulting from a failure, attempt to frustrate, interference with such conversion right are difficult if not impossible to qualify. Accordingly, the parties acknowledge that the liquidated damages provision contained in this Section 4.4(e) are justified.

4.5 Concerning the Shares. The shares of Common Stock issuable upon conversion of this Note may not be sold or transferred unless: (i) such shares are sold pursuant to an effective registration statement under the Act or (ii) the Borrower or its transfer agent shall have been furnished with an opinion of counsel (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that the shares to be sold or transferred may be sold or transferred pursuant to an exemption from such registration (such as Rule 144 or a successor rule) (“Rule 144”); or (iii) such shares are transferred to an “affiliate” (as defined in Rule 144) of the Borrower who agrees to sell or otherwise transfer the shares only in accordance with this Section 4.5 and who is an Accredited Investor (as defined in the Purchase Agreement).

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Any restrictive legend on certificates representing shares of Common Stock issuable upon conversion of this Note shall be removed and the Borrower shall issue to the Holder a new certificate therefore free of any transfer legend if the Borrower or its transfer agent shall have received an opinion of counsel from Holder’s counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that (i) a public sale or transfer of such Common Stock may be made without registration under the Act, which opinion shall be accepted by the Company so that the sale or transfer is effected; or (ii) in the case of the Common Stock issuable upon conversion of this Note, such security is registered for sale by the Holder under an effective registration statement filed under the Act; or otherwise may be sold pursuant to an exemption from registration. In the event that the Company does not reasonably accept the opinion of counsel provided by the Holder with respect to the transfer of Securities pursuant to an exemption from registration (such as Rule 144), it will be considered an Event of Default pursuant to this Note.

4.6 Effect of Certain Events.

(a) Effect of Merger, Consolidation, Etc. At the option of the Holder, the sale, conveyance or disposition of all or substantially all of the assets of the Borrower, the effectuation by the Borrower of a transaction or series of related transactions in which more than 50% of the voting power of the Borrower is disposed of, or the consolidation, merger or other business combination of the Borrower with or into any other Person (as defined below) or Persons when the Borrower is not the survivor shall be deemed to be an Event of Default (as defined in Article III) pursuant to which the Borrower shall be required to pay to the Holder upon the consummation of and as a condition to such transaction an amount equal to the Default Amount (as defined in Article III). “Person” shall mean any individual, corporation, limited liability company, partnership, association, trust or other entity or organization.

(b) Adjustment Due to Merger, Consolidation, Etc. If, at any time when this Note is issued and outstanding and prior to conversion of all of the Note, there shall be any merger, consolidation, exchange of shares, recapitalization, reorganization, or other similar event, as a result of which shares of Common Stock of the Borrower shall be changed into the same or a different number of shares of another class or classes of stock or securities of the Borrower or another entity, or in case of any sale or conveyance of all or substantially all of the assets of the Borrower other than in connection with a plan of complete liquidation of the Borrower, then the Holder of this Note shall thereafter have the right to receive upon conversion of this Note, upon the basis and upon the terms and conditions specified herein and in lieu of the shares of Common Stock immediately theretofore issuable upon conversion, such stock, securities or assets which the Holder would have been entitled to receive in such transaction had this Note been converted in full immediately prior to such transaction (without regard to any limitations on conversion set forth herein), and in any such case appropriate provisions shall be made with respect to the rights and interests of the Holder of this Note to the end that the provisions hereof (including, without limitation, provisions for adjustment of the Conversion Price and of the number of shares issuable upon conversion of the Note) shall thereafter be applicable, as nearly as may be practicable in relation to any securities or assets thereafter deliverable upon the conversion hereof. The Borrower shall not affect any transaction described in this Section 4.6(b) unless (a) it first gives, to the extent practicable, ten (10) days prior written notice (but in any event at least five (5) days prior written notice) of the record date of the special meeting of shareholders to approve, or if there is no such record date, the consummation of, such merger, consolidation, exchange of shares, recapitalization, reorganization or other similar event or sale of assets (during which time the Holder shall be entitled to convert this Note) and (b) the resulting successor or acquiring entity (if not the Borrower) assumes by written instrument the obligations of this Note. The above provisions shall similarly apply to successive consolidations, mergers, sales, transfers or share exchanges.

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(c) Adjustment Due to Distribution. If the Borrower shall declare or make any distribution of its assets (or rights to acquire its assets) to holders of Common Stock as a dividend, stock repurchase, by way of return of capital or otherwise (including any dividend or distribution to the Borrower’s shareholders in cash or shares (or rights to acquire shares) of capital stock of a subsidiary (i.e., a spin-off)) (a “Distribution”), then the Holder of this Note shall be entitled, upon any conversion of this Note after the date of record for determining shareholders entitled to such Distribution, to receive the amount of such assets which would have been payable to the Holder with respect to the shares of Common Stock issuable upon such conversion had such Holder been the holder of such shares of Common Stock on the record date for the determination of shareholders entitled to such Distribution.

ARTICLE V. MISCELLANEOUS

5.1 Failure or Indulgence Not Waiver. No failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privileges. All rights and remedies existing hereunder are cumulative to, and not exclusive of, any rights or remedies otherwise available.

5.2 Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid, or (iv) transmitted by hand delivery, or electronic mail (receipt confirmed, which may be by automatic confirmation), addressed as set forth below or to such other address as such party shall have specified most recently by written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be:

If to the Borrower, to:

CLEARDAY, INC.

8800 Village Drive, Suite 106

San Antonio, Texas 78217

Attn: James T. Walesa, Chief Executive Officer

Fax:

Email: jim@myclearday.com

If to the Holder:

SIXTH STREET LENDING LLC

1800 Diagonal Road, Suite 623

Alexandria VA 22314

Attn: Curt Kramer, President

Email: ckramer@sixthstreetlending.com

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5.3 Amendments. This Note and any provision hereof may only be amended by an instrument in writing signed by the Borrower and the Holder. The term “Note” and all reference thereto, as used throughout this instrument, shall mean this instrument (and the other Notes issued pursuant to the Purchase Agreement) as originally executed, or if later amended or supplemented, then as so amended or supplemented.

5.4 Assignability. This Note shall be binding upon the Borrower and its successors and assigns, and shall inure to be the benefit of the Holder and its successors and assigns. Each transferee of this Note must be an “accredited investor” (as defined in Rule 501(a) of the Securities and Exchange Commission). Notwithstanding anything in this Note to the contrary, this Note may be pledged as collateral in connection with a bona fide margin account or other lending arrangement; and may be assigned by the Holder without the consent of the Borrower.

5.5 Cost of Collection. If default is made in the payment of this Note, the Borrower shall pay the Holder hereof costs of collection, including reasonable attorneys’ fees.

5.6 Governing Law. This Note shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without regard to principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this Note shall be brought only in the Circuit Court of Fairfax County, Virginia or in the Alexandria Division of the United States District Court for the Eastern District of Virginia. The parties to this Note hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any objection or defense based on lack of jurisdiction or venue or based upon forum non conveniens. The Borrower and Holder waive trial by jury. The Holder shall be entitled to recover from the Borrower its reasonable attorney’s fees and costs incurred in connection with or related to any Event of Default by the Company, as defined in Article III hereof. In the event that any provision of this Note or any other agreement delivered in connection herewith is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision hereof or any agreement delivered in connection herewith. Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Note, any agreement or any other document delivered in connection with this Note by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Note and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.

5.7 Purchase Agreement. By its acceptance of this Note, each party agrees to be bound by the applicable terms of the Purchase Agreement.

5.8 Remedies. The Borrower acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder, by vitiating the intent and purpose of the transaction contemplated hereby. Accordingly, the Borrower acknowledges that the remedy at law for a breach of its obligations under this Note will be inadequate and agrees, in the event of a breach or threatened breach by the Borrower of the provisions of this Note, that the Holder shall be entitled, in addition to all other available remedies at law or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions restraining, preventing or curing any breach of this Note and to enforce specifically the terms and provisions thereof, without the necessity of showing economic loss and without any bond or other security being required.

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IN WITNESS WHEREOF, Borrower has caused this Note to be signed in its name by its duly authorized officer this on April 5, 2022

CLEARDAY, INC.
By:
	James T. Walesa
	Chief Executive Officer

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EXHIBIT A – WIRE INSTRUCTIONS

[to be provided via email]

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EXHIBIT B -- NOTICE OF CONVERSION

The undersigned hereby elects to convert $                             principal amount of the Note (defined below) into that number of shares of Common Stock to be issued pursuant to the conversion of the Note (“Common Stock”) as set forth below, of CLEARDAY, INC., a Delaware corporation (the “Borrower”) according to the conditions of the convertible note of the Borrower dated as of April 5, 2022 (the “Note”), as of the date written below. No fee will be charged to the Holder for any conversion, except for transfer taxes, if any.

Box Checked as to applicable instructions:

[ ]	The Borrower shall electronically transmit the Common Stock issuable pursuant to this Notice of Conversion to the account of the undersigned or its nominee with DTC through its Deposit Withdrawal Agent Commission system (“DWAC Transfer”).
	Name of DTC Prime Broker:
	Account Number:
[ ]	The undersigned hereby requests that the Borrower issue a certificate or certificates for the number of shares of Common Stock set forth below (which numbers are based on the Holder’s calculation attached hereto) in the name(s) specified immediately below or, if additional space is necessary, on an attachment hereto:

Date of conversion:
Applicable Conversion Price:	$
Number of shares of common stock to be issued pursuant to conversion of the Notes:
Amount of Principal Balance due remaining under the Note after this conversion:

SIXTH STREET LENDING LLC
By:
Name:	Curt Kramer
Title:	President
Date:

EX-10.2

Exhibit 10.2

SECURITIES PURCHASE AGREEMENT

This SECURITIES PURCHASE AGREEMENT (the “Agreement”), dated as of April 5, 2022, by and between CLEARDAY, INC., a Delaware corporation, with its address at 8800 Village Drive, Suite 106, San Antonio, Texas 78217 (the “Company”), and SIXTH STREET LENDING LLC, a Virginia limited liability company, with its address at 1800 Diagonal Road, Suite 623, Alexandria VA 22314 (the “Buyer”).

WHEREAS:

A. The Company and the Buyer are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by the rules and regulations as promulgated by the United States Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “1933 Act”); and

B. Buyer desires to purchase and the Company desires to issue and sell, upon the terms and conditions set forth in this Agreement, a promissory note of the Company, in the form attached hereto as Exhibit A, in the aggregate principal amount of $172,200.00 (including $18,450.00 of Original Issue Discount) (the “Note”).

NOW THEREFORE, the Company and the Buyer severally (and not jointly) hereby agree as follows:

1. Purchase and Sale of the Securities.

a. Purchase of the Securities. On the Closing Date (as defined below), the Company shall issue and sell to the Buyer and the Buyer agrees to purchase from the Company the Securities as is set forth immediately below the Buyer’s name on the signature pages hereto.

b. Form of Payment. On the Closing Date (as defined below), (i) the Buyer shall pay the purchase price for the Securities be issued and sold to it at the Closing (as defined below) (the “Purchase Price”) by wire transfer of immediately available funds to the Company, in accordance with the Company’s written wiring instructions, against delivery of the Securities, and (ii) the Company shall deliver such duly executed Note on behalf of the Company against delivery of such Purchase Price.

c. Closing Date. Subject to the satisfaction (or written waiver) of the conditions thereto set forth in Section 6 and Section 7 below, the date and time of the issuance and sale of the Securities pursuant to this Agreement (the “Closing Date”) shall be 12:00 noon, Eastern Standard Time on or about April 5, 2022, or such other mutually agreed upon time. The closing of the transactions contemplated by this Agreement (the “Closing”) shall occur on the Closing Date at such location as may be agreed to by the parties.

2. Buyer’s Representations and Warranties. The Buyer represents and warrants to the Company that:

a. Investment Purpose. As of the date hereof, the Buyer is purchasing the Note and the shares of Common Stock issuable upon conversion of or otherwise pursuant to the Note (such shares of Common Stock being collectively referred to herein as the “Conversion Shares” and, collectively with the Note, the “Securities”) for its own account and not with a present view towards the public sale or distribution thereof, except pursuant to sales registered or exempted from registration under the 1933 Act.

b. Accredited Investor Status. The Buyer is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D (an “Accredited Investor”).

c. Reliance on Exemptions. The Buyer understands that the Securities are being offered and sold to it in reliance upon specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying upon the truth and accuracy of, and the Buyer’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of the Buyer to acquire the Securities.

d. Information. The Company has not disclosed to the Buyer any material nonpublic information and will not disclose such information unless such information is disclosed to the public prior to or promptly following such disclosure to the Buyer.

e. Legends. The Buyer understands that the Securities have not been registered under the 1933 Act; and may bear a restrictive legend in substantially the following form:

“THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE PLEDGED, SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR (2) THE ISSUER OF SUCH SECURITIES RECEIVES AN OPINION OF COUNSEL TO THE BUYER OF SUCH SECURITIES, WHICH COUNSEL AND OPINION ARE REASONABLY ACCEPTABLE TO THE ISSUER’S TRANSFER AGENT, THAT SUCH SECURITIES MAY BE PLEDGED, SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.”

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The legend set forth above shall be removed and the Company shall issue a certificate without such legend to the Buyer of any Security upon which it is stamped, if, unless otherwise required by applicable state securities laws, (a) such Security is registered for sale under an effective registration statement filed under the 1933 Act or otherwise may be sold pursuant to an exemption from registration without any restriction as to the number of securities as of a particular date that can then be immediately sold, or (b) such Buyer provides the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Security may be made without registration under the 1933 Act, which opinion shall be accepted by the Company so that the sale or transfer is effected. The Buyer agrees to sell all Securities, including those represented by a certificate(s) from which the legend has been removed, in compliance with applicable prospectus delivery requirements, if any. In the event that the Company does not reasonably accept the opinion of counsel that properly conforms to applicable securities laws provided by the Buyer with respect to the transfer of any Securities pursuant to an exemption from registration, such as Rule 144, at the Deadline, it will be considered an Event of Default pursuant to Section 3.2 of the Note.

f. Authorization; Enforcement. This Agreement has been duly and validly authorized. This Agreement has been duly executed and delivered on behalf of the Buyer, and this Agreement constitutes a valid and binding agreement of the Buyer enforceable in accordance with its terms.

3. Representations and Warranties of the Company. The Company represents and warrants to the Buyer that:

a. Organization and Qualification. The Company and each of its Subsidiaries (as defined below), if any, is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated, with full power and authority (corporate and other) to own, lease, use and operate its properties and to carry on its business as and where now owned, leased, used, operated and conducted. “Subsidiaries” means any corporation or other organization, whether incorporated or unincorporated, in which the Company owns, directly or indirectly, any equity or other ownership interest.

b. Authorization; Enforcement. (i) The Company has all requisite corporate power and authority to enter into and perform this Agreement, the Note and to consummate the transactions contemplated hereby and thereby and to issue the Securities, in accordance with the terms hereof and thereof, (ii) the execution and delivery of this Agreement, the Note by the Company and the consummation by it of the transactions contemplated hereby and thereby (including without limitation, the issuance of the Note has been duly authorized by the Company’s Board of Directors and no further consent or authorization of the Company, its Board of Directors, or its shareholders is required, (iii) this Agreement has been duly executed and delivered by the Company by its authorized representative, and such authorized representative is the true and official representative with authority to sign this Agreement and the other documents executed in connection herewith and bind the Company accordingly, and (iv) this Agreement constitutes, and upon execution and delivery by the Company of the Note, each of such instruments will constitute, a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms.

c. Capitalization. As of the date hereof, the authorized common stock of the Company consists of 80,000,000 authorized shares of Common Stock, $0.001 par value per share, of which 14,910,568 shares are issued and outstanding. All of such outstanding shares of capital stock are, or upon issuance will be, duly authorized, validly issued, fully paid and non-assessable.

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d. Issuance of Shares. The Securities are duly authorized and reserved for issuance in accordance with its respective terms, will be validly issued, fully paid and non-assessable, and free from all taxes, liens, claims and encumbrances with respect to the issue thereof and shall not be subject to preemptive rights or other similar rights of shareholders of the Company and will not impose personal liability upon the Buyer thereof.

e. No Conflicts. The execution, delivery and performance of this Agreement, the Note by the Company and the consummation by the Company of the transactions contemplated hereby and thereby will not (i) conflict with or result in a violation of any provision of the Certificate of Incorporation or By-laws, or (ii) violate or conflict with, or result in a breach of any provision of, or constitute a default (or an event which with notice or lapse of time or both could become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture, patent, patent license or instrument to which the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations and regulations of any self-regulatory organizations to which the Company or its securities are subject) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect). The businesses of the Company and its Subsidiaries, if any, are not being conducted, and shall not be conducted so long as the Buyer owns any of the Securities, in violation of any law, ordinance or regulation of any governmental entity. “Material Adverse Effect” means any material adverse effect on the business, operations, assets, financial condition or prospects of the Company or its Subsidiaries, if any, taken as a whole, or on the transactions contemplated hereby or by the agreements or instruments to be entered into in connection herewith.

f. SEC Documents; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “1934 Act”) (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents (other than exhibits to such documents) incorporated by reference therein, being hereinafter referred to herein as the “SEC Documents”). Upon written request the Company will deliver to the Buyer true and complete copies of the SEC Documents, except for such exhibits and incorporated documents. As of their respective dates or if amended, as of the dates of the amendments, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the statements made in any such SEC Documents is, or has been, required to be amended or updated under applicable law (except for such statements as have been amended or updated in subsequent filings prior the date hereof). As of their respective dates or if amended, as of the dates of the amendments, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with United States generally accepted accounting principles, consistently applied, during the periods involved and fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). The Company is subject to the reporting requirements of the 1934 Act.

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g. Absence of Certain Changes. Since September 30, 2021, except as set forth in the SEC Documents, there has been no material adverse change and no material adverse development in the assets, liabilities, business, properties, operations, financial condition, results of operations, prospects or 1934 Act reporting status of the Company or any of its Subsidiaries.

h. Absence of Litigation. Except as set forth in the SEC Documents, there is no action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company or any of its Subsidiaries, threatened against or affecting the Company or any of its Subsidiaries, or their officers or directors in their capacity as such, that could have a Material Adverse Effect. The Company and its Subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing.

i. No Integrated Offering. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has directly or indirectly made any offers or sales in any security or solicited any offers to buy any security under circumstances that would require registration under the 1933 Act of the issuance of the Securities to the Buyer. The issuance of the Securities to the Buyer will not be integrated with any other issuance of the Company’s securities (past, current or future) for purposes of any shareholder approval provisions applicable to the Company or its securities.

j. No Brokers. The Company has taken no action which would give rise to any claim by any person for brokerage commissions, transaction fees or similar payments relating to this Agreement or the transactions contemplated hereby.

k. No Investment Company. The Company is not, and upon the issuance and sale of the Securities as contemplated by this Agreement will not be an “investment company” required to be registered under the Investment Company Act of 1940 (an “Investment Company”). The Company is not controlled by an Investment Company.

l. Breach of Representations and Warranties by the Company. If the Company breaches any of the material representations or warranties set forth in this Section 3 which is continuing after the applicable cure period as set forth in the Note, if any, and in addition to any other remedies available to the Buyer pursuant to this Agreement, it will be considered an Event of default under Section 4.4 of the Note.

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4. COVENANTS.

a. Best Efforts. The Company shall use its reasonable commercial efforts to satisfy timely each of the conditions described in Section 7 of this Agreement.

b. Use of Proceeds. The Company shall use the proceeds for general working capital purposes.

c. Expenses. At the Closing, the Company’s obligation with respect to the transactions contemplated by this Agreement is to reimburse Buyer’ expenses shall be $3,750.00 for Buyer’s legal fees and due diligence fee.

d. Corporate Existence. So long as the Buyer beneficially owns any Note, the Company shall maintain its corporate existence and shall not sell all or substantially all of the Company’s assets, except with the prior written consent of the Buyer.

e. Breach of Covenants. If the Company breaches any of the material covenants set forth in this Section 4, and in addition to any other remedies available to the Buyer pursuant to this Agreement which is continuing after the applicable cure period as set forth in the Note, it will be considered an event of default under Section 4.4 of the Note.

f. Failure to Comply with the 1934 Act. So long as the Buyer beneficially owns the Note, the Company shall comply with the reporting requirements of the 1934 Act; and the Company shall continue to be subject to the reporting requirements of the 1934 Act.

g. The Buyer is Not a “Dealer”. The Buyer and the Company hereby acknowledge and agree that the Buyer has not: (i) acted as an underwriter; (ii) acted as a market maker or specialist; (iii) acted as “de facto” market maker; or (iv) conducted any other professional market activities such as providing investment advice, extending credit and lending securities in connection; and thus that the Buyer is not a “Dealer” as such term is defined in the 1934 Act.

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5. Transfer Agent Instructions. The Company shall issue irrevocable instructions to its transfer agent to issue certificates, registered in the name of the Buyer or its nominee, for the shares underlying any conversion of the Note upon default of the Note (the “Conversion Shares”) in such amounts as specified from time to time by the Buyer to the Company upon conversion of the Note in accordance with the terms thereof (the “Irrevocable Transfer Agent Instructions”). In the event that the Company proposes to replace its transfer agent, the Company shall provide, prior to the effective date of such replacement, a fully executed Irrevocable Transfer Agent Instructions in a form as initially delivered pursuant to this Agreement (including but not limited to the provision to irrevocably reserve shares of Common Stock in the Reserved Amount as such term is defined in the Note) signed by the successor transfer agent to Company and the Company. Prior to registration of the Conversion Shares under the 1933 Act or the date on which the Conversion Shares may be sold pursuant to an exemption from registration, all such certificates shall bear the restrictive legend specified in Section 2(e) of this Agreement. The Company warrants that: (i) no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 5, will be given by the Company to its transfer agent and that the Securities shall otherwise be freely transferable on the books and records of the Company as and to the extent provided in this Agreement and the Note; (ii) it will not direct its transfer agent not to transfer or delay, impair, and/or hinder its transfer agent in transferring (or issuing)(electronically or in certificated form) any certificate for Conversion Shares to be issued to the Buyer upon conversion of or otherwise pursuant to the Note as and when required by the Note and this Agreement; and (iii) it will not fail to remove (or directs its transfer agent not to remove or impairs, delays, and/or hinders its transfer agent from removing) any restrictive legend (or to withdraw any stop transfer instructions in respect thereof) on any certificate for any Conversion Shares issued to the Buyer upon conversion of or otherwise pursuant to the Note as and when required by the Note and/or this Agreement. If the Buyer provides the Company and the Company’s transfer, at the cost of the Buyer, with an opinion of counsel in form, substance and scope customary for opinions in comparable transactions, to the effect that a public sale or transfer of such Securities may be made without registration under the 1933 Act, the Company shall permit the transfer, and, in the case of the Conversion Shares, promptly instruct its transfer agent to issue one or more certificates, free from restrictive legend, in such name and in such denominations as specified by the Buyer. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Buyer, by vitiating the intent and purpose of the transactions contemplated hereby. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Section 5 may be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Section, that the Buyer shall be entitled, in addition to all other available remedies, to an injunction restraining any breach and requiring immediate transfer, without the necessity of showing economic loss and without any bond or other security being required.

6. Conditions to the Company’s Obligation to Sell. The obligation of the Company hereunder to issue and sell the Securities to the Buyer at the Closing is subject to the satisfaction, at or before the Closing Date of each of the following conditions thereto, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion:

a. The Buyer shall have executed this Agreement and delivered the same to the Company.

b. The Buyer shall have delivered the Purchase Price in accordance with Section 1(b) above.

c. The representations and warranties of the Buyer shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and the Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Buyer at or prior to the Closing Date.

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d. No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement.

7. Conditions to The Buyer’s Obligation to Purchase. The obligation of the Buyer hereunder to purchase the Securities at the Closing is subject to the satisfaction, at or before the Closing Date of each of the following conditions, provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion:

a. The Company shall have executed this Agreement and delivered the same to the Buyer.

b. The Company shall have delivered to the Buyer the duly executed Note, in accordance with Section 1(b) above.

c. The Irrevocable Transfer Agent Instructions, in form and substance satisfactory to the Buyer, shall have been delivered to and acknowledged in writing by the Company’s Transfer Agent.

d. The representations and warranties of the Company shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at such time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Buyer shall have received a certificate or certificates, executed by the chief executive officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Buyer including, but not limited to certificates with respect to the Board of Directors’ resolutions relating to the transactions contemplated hereby.

e. No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement.

f. No event shall have occurred which could reasonably be expected to have a Material Adverse Effect on the Company including but not limited to a change in the 1934 Act reporting status of the Company or the failure of the Company to be timely in its 1934 Act reporting obligations.

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8. Governing Law; Miscellaneous.

a. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without regard to principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this Agreement shall be brought only in the Circuit Court of Fairfax County, Virginia or in the Alexandria Division of the United States District Court for the Eastern District of Virginia. The parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any objection or defense based on lack of jurisdiction or venue or based upon forum non conveniens. The Company and Buyer waive trial by jury. The Buyer shall be entitled to recover from the Company its reasonable attorney’s fees and costs incurred in connection with or related to any Event of Default by the Company, as defined in Article III of the Note. Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Agreement, the Note or any related document or agreement by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.

b. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party.

c. Headings. The headings of this Agreement are for convenience of reference only and shall not form part of, or affect the interpretation of, this Agreement.

d. Severability. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision hereof.

e. Entire Agreement; Amendments. This Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be waived or amended other than by an instrument in writing signed by the majority in interest of the Buyer.

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f. Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed as set forth below or to such other address as such party shall have specified most recently by written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be as set forth in the heading of this Agreement with a copy by fax only to (which copy shall not constitute notice) to Naidich Wurman LLP, 111 Great Neck Road, Suite 214, Great Neck, NY 11021, Attn: Allison Naidich, facsimile: 516-466-3555, e-mail: allison@nwlaw.com. Each party shall provide notice to the other party of any change in address.

g. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. Neither the Company nor the Buyer shall assign this Agreement or any rights or obligations hereunder without the prior written consent of the other. Notwithstanding the foregoing, the Buyer may assign its rights hereunder to any person that purchases Securities in a private transaction from the Buyer or to any of its “affiliates,” as that term is defined under the 1934 Act, without the consent of the Company.

h. Survival. The representations and warranties of the Company and the agreements and covenants set forth in this Agreement shall survive the closing hereunder notwithstanding any due diligence investigation conducted by or on behalf of the Buyer. The Company agrees to indemnify and hold harmless the Buyer and all their officers, directors, employees and agents for loss or damage arising as a result of or related to any breach or alleged breach by the Company of any of its representations, warranties and covenants set forth in this Agreement or any of its covenants and obligations under this Agreement, including advancement of expenses as they are incurred.

i. Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.

j. No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.

k. Remedies. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Buyer by vitiating the intent and purpose of the transaction contemplated hereby. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Agreement will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Agreement, that the Buyer shall be entitled, in addition to all other available remedies at law or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions restraining, preventing or curing any breach of this Agreement and to enforce specifically the terms and provisions hereof, without the necessity of showing economic loss and without any bond or other security being required.

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IN WITNESS WHEREOF, the undersigned Buyer and the Company have caused this Agreement to be duly executed as of the date first above written.

CLEARDAY, INC.
By:
	James T. Walesa
	Chief Executive Officer
SIXTH STREET LENDING LLC
By:
	Curt Kramer President

Aggregate Principal Amount of Note:	$	172,200.00
Original Issue Discount	$	18,450.00
Aggregate Purchase Price:	$	153,750.00

EX-10.3

Exhibit 10.3

PURCHASE AND SALE AGREEMENT

THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made as of the _5th _ day of April, 2022, by and between LEANDER ASSOCIATES, LTD., a Texas limited partnership (collectively, “Seller”), and LEANDER RIDGE, LLC, a Texas limited liability company (“Buyer”).

ARTICLE 1 PURCHASE AND SALE

1.01 Agreement of Purchase and Sale. Subject to the terms and conditions set forth in this Agreement, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller, approximately 4.7 acres of land located at the northwest corner of S. Bagdad Rd. and Vista Ridge in Leander, Williamson County, Texas (the “Land”), which Land is more particularly depicted on Exhibit A attached hereto, together with Seller’s rights, title and interest, if any, in and to all and singular the rights, privileges, hereditaments and appurtenances pertaining to such real property, which shall include the following: (a) all adjacent streets, roads, alleys, easements and rights-of-way, public or private, open or proposed, in, across, abutting or adjacent to or used in connection with the Land; (b) strips and gores, if any, between the Land and any abutting properties, whether owned or claimed by deed, limitations or otherwise; (c) all entitlements and development rights relating, belonging or appurtenant to or associated with, the Land, including all right, title, and interest of Seller in and to any and all: (i) utilities, utility capacity, sewage treatment capacity, water rights, water and well permits, water capacity, drainage, and detention rights (including any form of reservation which may be granted by any governmental subdivision), if any to serve or which will serve the Land and improvements now or hereafter constructed thereon; (ii) assignable existing licenses, permits, governmental approvals and authorizations issued by any governmental authority in connection with the Land; (iii) rights under zoning cases, preliminary plans, plats, and other development applications and approvals; and (iv) all other development rights, powers, privileges, options, or other benefits associated with, that pertain to, are attributable to, are appurtenant to, apply to, or which otherwise benefit the Land.

The Land and all the above-described property rights and interests are collectively referred to herein as the “Property”.

1.02 Purchase Price. The purchase price for the Property is $392,040 per acre ($9.00/sf) of developable land, for an approximate total amount of One Million Eight Hundred Forty-Two Thousand Five Hundred Eighty-Eight and 00/100 Dollars ($1,842,588.00) (the “Purchase Price”).

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1.03 Deposit. Within three (3) business days after the Effective Date (as defined in the Receipt attached hereto to be executed by the Escrow Agent), Buyer shall deposit the sum of Twenty Thousand and No/100 Dollars ($20,000.00) (the “Initial Deposit”) in immediately available funds, by federal wire transfer to Presidio Title, LLC, Attn: Danita Sherrill (the “Escrow Agent” or “Title Company”), having its office at 7373 Broadway, #105, San Antonio, Texas 78209, tel: (210)-757-9600; email: dsherrill@presidiotitle.com, to be held by the Escrow Agent as earnest money in accordance with the terms and provisions of this Agreement. If Buyer does not elect to terminate this Agreement prior to the expiration of the Feasibility Period or the Permitting Period in accordance with Section 3.02 and Section 3.06 below, then Buyer shall deliver to the Title Company as an additional earnest money deposit an amount equal to Twenty Thousand and No/100 Dollars ($20,000.00) (the “Additional Deposit”) within three (3) business days following the expiration of the Permitting Period. As used in this Agreement, “Deposit” means the Initial Deposit and the Additional Deposit. The Escrow Agent shall hold the Deposit in an interest bearing account reasonably acceptable to Seller and Buyer, in accordance with the terms and conditions of this Agreement. All interest accruing on the Deposit while being held by the Escrow Agent shall be deemed a part thereof and shall be delivered to the party entitled to receive the Deposit. The failure of Buyer to timely deliver the Initial Deposit or Additional Deposit shall immediately be deemed a material default, and shall entitle Seller, at Seller’s sole option, to terminate this Agreement by providing written notice to Buyer, and any all Deposits that have been received by the Title Company shall be released to Seller. The Deposit shall be applied as a credit to the Purchase Price at the Closing and is refundable to Buyer as set forth below; provided, that as set forth in Section 3.06, the Deposit will become non-refundable if this Agreement is not terminated prior to the end of the Permitting Period or any Permitting Extension Period and shall be immediately released to Seller.

1.04 Independent Consideration. Contemporaneously with the payment of the Deposit to the Title Company, Buyer shall make a payment to Title Company in an amount equal to Five Thousand and No/100 Dollars ($5,000.00) (the “Independent Consideration”) for Seller’s account, which Title Company shall deliver to Seller upon receipt. The Independent Consideration is additional and separate consideration for Seller’s execution of this Agreement and Buyer’s right to terminate this Agreement during the Feasibility Period and the Permitting Period as provided herein. The Independent Consideration is non-refundable but will be applicable to the Purchase Price if Closing occurs.

1.05 Escrow Agent. Escrow Agent shall hold and dispose of the Deposit in accordance with the terms of this Agreement. Seller and Buyer agree that the duties of the Escrow Agent hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Deposit in accordance with this Agreement. Escrow Agent shall incur no liability in connection with the safekeeping or disposition of the Deposit for any reason other than Escrow Agent’s willful misconduct or gross negligence. In the event that Escrow Agent shall be in doubt as to its duties or obligations with regard to the Deposit, or in the event that Escrow Agent receives conflicting instructions from Buyer and Seller with respect to the Deposit, Escrow Agent shall not be required to disburse the Deposit and may, at its option, continue to hold the Deposit until both Buyer and Seller agree as to its disposition, or until a final judgment is entered by a court of competent jurisdiction directing its disposition, or Escrow Agent may interplead the Deposit in accordance with the laws of the state in which the Property is located. Escrow Agent shall not be responsible for any interest on the Deposit except as is actually earned, or for the loss of any interest resulting from the withdrawal of the Deposit prior to the date interest is posted thereon.

Escrow Agent shall execute this Agreement and the Escrow Agreement, if any, solely for the purpose of being bound by the provisions of Sections 1.04 and 1.05 hereof.

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1.06 Participation Option. At any time prior to the receipt of the Approvals (as defined below) by Buyer, Seller shall have the option (the “Participation Option”) to elect to contribute a portion of the Property in the minimum value of $600,000 (the “Contributed Property”) to Buyer. Should Seller elect to exercise the Participation Option, Seller will deliver notice of such election in writing to Buyer, which notice will also indicate the value that Seller desires to contribute. In exchange for the Contributed Property, Seller and Buyer will enter into an agreement in a form and substance acceptable to both parties whereby Seller shall receive an amount equal to the Contributed Property multiplied by 115% (the “Contribution Value”). At Closing, Buyer and Seller will enter into an agreement mutually acceptable to Buyer and Seller (the “Participation Agreement”), which Participation Agreement will provide that all distributions of cash flow from the development on the Property will first be paid to Seller pari passu with all other distributions of return of capital paid to the members of Buyer until such time that Seller has received an amount equal to the Contribution Value prior to any distributions of profits to any other owners. Following the distribution of the Contribution Value to Seller, Seller will not be entitled to any further distributions. As used herein, the term cash flow shall mean the gross cash receipts from the ownership, operation, financing, development, sale of all (or a portion of) the Property less all expenses with respect to the Buyer’s development costs, transaction costs incurred (other than any expenses paid to affiliates or related parties or foreign persons, as defined in Section 4.02(c)), any financing or sale of its assets and properties and customary expenses of the development and any income derived from leasing the Property. Buyer and Seller shall agree on the form of the Participation Agreement, which agreement shall not be unreasonably withheld, delayed, or conditioned, on or prior to the later of (a) the expiration of the Permitting Period, or (b) twenty (20) days after Seller notifies Buyer that it elects to exercise the Participation Option.

ARTICLE 2

TITLE AND SURVEY

2.01 Title Commitment. Within fourteen (14) days of the Effective Date, Seller will provide or cause to be provided to Buyer, a commitment for title insurance on the Property (the “Title Commitment”) from the Title Company, dated no earlier than the Effective Date, setting forth the status of the title of the Property, (b) tax lien and judgment searches of Seller, and (c) legible copies of all documents referenced in the Title Commitment as exceptions or as otherwise noted in the Title Commitment (the “Title Documents”).

2.02 Survey. As soon as reasonably practicable after the Effective Date but prior to the expiration of the Feasibility Period as defined in Section 3.02, Buyer shall use commercially reasonable efforts to obtain a survey of the Property (the “Survey”) issued by a surveyor licensed as a professional surveyor in the State of Texas. Buyer agrees to deliver a copy of such Survey upon receipt to Seller and Title Company. At Closing, Seller agrees to reimburse Buyer one-half of the cost of the Survey, up to $3,000 (the “Survey Reimbursement”).

2.03 Title and Survey Review. Buyer shall have a period of ten (10) days after receipt of the Title Commitment, Title Documents and the Survey (the “Title Review Period”), to notify Seller in writing of any objections (“Title Objections.”) to any matters reflected in the Title Commitment and/or Survey (the “Objection Notice”). If Buyer fails to deliver an Objection Notice prior to the end of the Title Review Period, then Buyer will be deemed to have accepted all such exceptions to title and all other matters shown on the Title Commitment and Survey and such exceptions and matters shall be included in the term “Permitted Exceptions” (as defined herein). If Buyer delivers an Objection Notice to Seller, Seller may, within ten (10) days after receipt of the Objection Notice, notify Buyer that (a) Seller will attempt to cure and remove Title Objections prior to the Closing Date or (b) Seller elects not to cause such exceptions (including Survey matters objected to by Buyer) to be removed. If after the expiration of such ten-day period, Seller has not responded to the Objection Notice, Seller will be deemed to have elected to proceed in accordance with clause (b), i.e., to take no action with respect to Buyer’s Title Objections. Seller shall have no obligation to remove, satisfy or cure any Title Objections, except for liens voluntarily created by Seller that secure monetary obligations of Seller, judgment liens and delinquent real property taxes and assessments (the “Monetary Liens”), which Seller agrees to remove on or before Closing. For this purpose, Seller shall be entitled to a reasonable extension of the Closing Date if additional time is required, but in no event shall the extension extend for more than thirty (30) days. If Seller elects (or is deemed to have elected) not to cure such Title Objections, Buyer shall have ten (10) business days after the expiration of Seller’s ten-day response period, but in no event later than the expiration of the Feasibility Period, to either (i) terminate this Agreement by delivering written notice to Seller and the Title Company, whereupon the Title Company shall deliver the Deposit and any other amounts refundable herein, together with any interest thereon to Buyer less the Independent Consideration, and Seller’s obligation to sell and Buyer’s obligation to purchase the Property shall terminate absolutely; or (ii) elect to purchase the Property subject to the Title Objections which Seller has refused or failed to cure or remove, in which event such Title Objections shall be deemed “Permitted Exceptions” for all purposes hereunder. In the event Buyer does not elect (i) or (ii) above within ten (10) business days after the expiration of Seller’s ten-day response period, Buyer shall be deemed to have elected (ii) above.

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2.04 Pre-Closing “Gap” Title Defects. Buyer may, at or prior to Closing, notify Seller in writing (the “Gap Notice Letter”) of any objections to title (a) raised by the Escrow Agent/Title Company or subsequently identified between the expiration of the Title Review Period and the Closing, other than a Permitted Exception, and (b) not disclosed by the Title Company or otherwise known to Buyer prior to the expiration of the Title Review Period as set forth in Section 2.03 (“Gap Title Defects”); provided that Buyer must notify Seller of such Gap Title Defects within five (5) business days of knowledge of the existence of such exception. If Buyer sends a Gap Notice Letter to Seller, Buyer and Seller shall have the same rights and obligations with respect to such notice as applies to Buyer’s Title Objections under Section 2.03 hereof. Notwithstanding anything contained in this Agreement to the contrary, Buyer shall have no right to object to any matters affecting title which arise after the Effective Date if such matters are expressly contemplated by this Agreement.

2.05 Permitted Exceptions. The term “Permitted Exceptions” as used herein includes: (a) any easement, right-of-way, encroachment, conflict, discrepancy, overlapping of improvements, protrusion, lien, encumbrance, restriction, condition, covenant or other matter with respect to the Property that is reflected or addressed on the Survey or the Title Commitment and either (i) to which Buyer fails to timely object pursuant to Sections 2.03 or 2.04, or (ii) waived by Buyer; (b) the lien of all ad valorem real estate taxes and assessments not yet due and payable as of Closing, subject to adjustment as herein provided; and (c) local, state and federal laws, ordinances or governmental regulations, including but not limited to, building, zoning and land use laws, ordinances and regulations, now or hereafter in effect relating to the Property.

2.06 Conveyance of Title. At Closing, Seller shall convey and transfer to Buyer fee simple title to the Property, by execution and delivery of a special warranty deed (the “Deed”) in substantially the form attached hereto as Exhibit B, utilizing the legal description from the Survey or if the Land is platted, utilizing the platted legal description of the Land. Seller’s special warranty of title in the Deed shall be subject to the Permitted Exceptions. Evidence of delivery of such title shall be the Title Company’s binding commitment to issue to Buyer an Owner’s Policy of Title Insurance (the “Title Policy”) covering the Property, in the full amount of the Purchase Price or other amount agreed to by Buyer, subject only to the Permitted Exceptions. Prior to the Closing, Seller will not further encumber the Property, other than as may be otherwise expressly contemplated by this Agreement or upon obtaining the prior written consent of Buyer.

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ARTICLE 3

REVIEW AND PERMITTING OF PROPERTY

3.01 Items to Be Delivered by Seller. Seller has previously delivered to Buyer, for Buyer’s review the following items (collectively, the “Property Information”) to the extent they are in Seller’s possession or reasonable control: (a) copies of all permits, if any, regarding the Property; (b) copies of all written rental agreements, leases, contracts and any other agreements with respect to the Property if any, that will not be terminated prior to Closing; (c) all environmental inspection reports or audits and information regarding the existence of “Hazardous Materials” (hereinafter defined) or underground storage tanks on the Property or the use or storage of Hazardous Materials on the Property, if any; (d) soil studies, engineering reports, plans, specifications, permits, and other similar materials relating to the physical and environmental condition and the development of the Property; (e) any other reports and audits with respect to the compliance of the Property with any state or local laws, if any. In the event this transaction does not close, then Buyer shall return to Seller all documents and other items received from Seller and/or procured by Buyer during its due diligence and/or inspections of the Property.

3.02 Right of Inspection. Beginning upon the Effective Date and ending at 5:00 p.m. (local time at the Property) on the date that is ninety (90) days following the Effective Date (the “Feasibility Period”), Buyer shall have the right to perform its physical inspection of the Property and shall have the right to enter upon the Property to perform such investigations, inspections, audits, analyses, surveys, tests, examinations, studies, and appraisals of the Property, as Buyer reasonably deems necessary or desirable, provided that any such inspections are at Buyer’s sole cost and expense, and are conducted to determine if the Property is suitable for Buyer’s purposes. Buyer understands and agrees that any on-site inspections of the Property shall occur at reasonable times agreed upon by Seller and Buyer after at least 24 hours’ prior written notice to Seller and shall be conducted so as not to interfere unreasonably with the use of the Property by Seller. Seller reserves the right to have a representative present during any such inspections. If Buyer desires to do any invasive testing at the Property, Buyer shall do so only after notifying Seller and obtaining Seller’s prior written consent thereto, which consent shall not be unreasonably withheld or delayed, but which consent shall be in Seller’s sole discretion, and which shall be at Buyer’s sole cost and expense. At Seller’s option, Buyer will furnish to Seller copies of any reports received by Buyer relating to any inspections of the Property. Buyer, its engineers, architects, employees, contractors, consultants, and agents shall maintain commercial liability insurance policies (in an amount not less than One Million Dollars ($1,000,000 or as approved by Seller or Seller’s representative)) insuring against claims arising as a result of the inspection of the Property. Prior to commencing any inspections, Buyer shall deliver to Seller a certificate of insurance evidencing the existence of the aforesaid policies and naming Seller as an additional insured.

3.03 Environmental Inspections. During the Feasibility Period, Buyer shall have the right to employ one or more environmental consultants or other professional(s) to perform or complete a Phase I environmental inspection and assessment of the Property and Seller consents to such environmental inspections. Should Buyer determine that a Phase II environmental inspection is desired or necessary, Buyer shall deliver to Seller a copy of the Phase I report and the scope of the Phase II assessment desired prior to proceeding with the Phase II assessment. Buyer shall obtain Seller’s prior written consent prior to conducting a Phase II assessment on the Property.

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3.04 Right of Termination. If for any reason whatsoever Buyer determines that the Property or any aspect thereof is unsuitable for Buyer’s acquisition, Buyer shall have the right to terminate this Agreement within the Feasibility Period by giving written notice thereof to Seller and if Buyer gives such notice of termination, this Agreement shall terminate. If this Agreement is terminated pursuant to the foregoing provisions of this Section 3.04 prior to the expiration of Feasibility Period, then neither party shall have any further rights or obligations hereunder (except for those rights, obligations or liabilities which expressly survive the termination of this Agreement), the Deposit shall be returned to Buyer and each party shall bear its own costs incurred hereunder. If Buyer fails to give Seller a notice of termination prior to the expiration of the Feasibility Period, Buyer shall be deemed to have waived its right to terminate this Agreement during the Feasibility Period and the Escrow Agent shall immediately release the Deposit to Seller.

3.05 Indemnification. Buyer shall pay for all work and inspections performed on or in connection with the Property by or on behalf of Buyer and shall not permit the creation of any lien in favor of any contractor, materialman, mechanic, surveyor, architect or laborer in connection therewith. BUYER SHALL BE RESPONSIBLE FOR AND SHALL AND HEREBY DOES INDEMNIFY AND HOLD HARMLESS SELLER FROM AND AGAINST ANY CLAIM, COSTS, EXPENSE, LIABILITY, INJURY OR DAMAGE ARISING OUT OF OR IN ANY MANNER CONNECTED WITH SUCH DUE DILIGENCE ACTIVITIES BY BUYER OR BUYER’S EMPLOYEES, AGENTS, REPRESENTATIVES, OR CONTRACTORS OR THEIR SUB-AGENTS OR SUB-CONTRACTORS ON THE PROPERTY, including, without limitation, (i) any and all reasonable attorneys’ fees or court costs incurred by Seller in connection with any such claims or activities and (ii) mechanic’s liens or claims that may be filed against the Property by contractors, subcontractors or materialmen performing such work for Buyer. Buyer’s obligations under this Section 3.05 shall survive the Closing or the termination of this Agreement.

3.06 Permitting Period. Provided Buyer deposits with Escrow Agent the sum of $10,000.00 (the “Initial Permitting Fee”) on or before the expiration of the Feasibility Period, Buyer shall have a period of one hundred eighty (180) days following the expiration of the Feasibility Period (the “Permitting Period”), as such period may be extended herein, to obtain the following approvals from the appropriate governmental authorities: the re-zoning of the Property to mixed-use or multi-family zoning (the “Rezoning”); the approval of the Buyer’s site plan (the “Site Plan”); the civil permit for the horizontal development of the Property in accordance with the Site Plan (the “Civil Permit”, and together with the Rezoning and Site Plan are collectively referred to herein as the “Approvals”). Buyer’s efforts to obtain the Approvals shall always comply with the following requirements:

(a) The Civil Permit shall be deemed obtained by Buyer upon such permits being made available to the Buyer by the applicable governmental authority, notwithstanding the issuance of such permit.

(b) At Buyer’s request, Seller shall reasonably cooperate with Buyer to obtain the Approvals, but without having to incur any out-of-pocket costs and expenses. As a part of the process of seeking the Approvals, Buyer may enter into agreements restricting the use of, or granting easements over, the Property, provided such agreements, easements or other instruments are conditioned upon Buyer closing and obtaining title to the Property, and that such agreements, easements or other instruments shall not be recorded against the Property until after the Closing.

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(c) Buyer will engage design professionals and appropriate consultants to prepare the Site Plan and other documents and applications necessary to obtain the Approvals and thereafter Buyer will use all commercially reasonable efforts to file its application for approval of the Site Plan and all other Approvals with the appropriate city and county governmental agencies and any neighborhood associations, if required, as soon as possible and thereafter diligently prosecute such Approvals to completion using all commercially reasonable efforts within the time periods set forth in this Section 3.06.

(d) During the Permitting Period and any Permitting Extension Period, Buyer will keep Seller informed of all matters related to the Approvals and provide Seller a monthly update of the Approvals process and submissions. Prior to submitting the Site Plan, any applications, documents, building plans or other plans to the appropriate governmental authorities, Buyer will submit such items for Seller’s review and approval, which approval will not unreasonably be withheld or delayed. Seller agrees to review the items submitted in a timely and commercially reasonable time period, but not exceeding ten (10) business days. Should Seller fail to respond in the foregoing time period and such failure results in the Buyer not being able to submit the items to the appropriate governmental agencies on the next scheduled submittal deadline (e.g., a submittal deadline for a planning commission hearing is missed due to a delay by Seller), such that Buyer must wait for the next governmental agency submittal period, then Seller agrees to extend the Permitting Period or Permitting Extension Period, as the case may be, for thirty (30) days or longer if necessary to allow Seller time to review and Seller and Buyer to agree on the submission of the items to the agencies.

(e) Subject to any timelines and review periods contained in this Agreement that relate to a specific Approval, Buyer agrees to submit the preliminary Site Plan for initial staff review with the City of Leander within sixty (60) days of the Effective Date, and thereafter diligently pursue obtaining the Approvals following the submission of the various Approval applications. If Buyer fails to timely submit the preliminary Site Plan to the City of Leander in the foregoing sixty (60) days period, Seller shall have the option to (a) terminate this Agreement and receive the Deposit, (b) extend the time to submit the Approvals. Buyer shall provide Seller or Seller’s representatives with a copy of all submitted Approvals, in a timely manner but no more than five (5) business days after such Approvals are submitted to the respective reviewing authority.

Provided Buyer is in compliance with the provisions of this Section 3.06, and despite Buyer’s diligent efforts to obtain such Approvals, Buyer is unable to obtain such Approvals prior to expiration of the Permitting Period, Buyer shall be entitled to extend the Permitting Period for three (3) periods of ninety (90) days each (each, an “Permitting Extension Period”) by delivering written notice to Seller of such extension (a “Permitting Extension Notice”) prior to expiration of either the original Permitting Period or the then-expiring Permitting Extension Period as the case may be. Upon delivery of a Permitting Extension Notice to Seller of Buyer’s exercise of a Permitting Extension Period, Buyer shall deposit with Escrow Agent the sum of $10,000.00 as an extension fee for each Permitting Extension Period exercised (the “Permitting Extension Fee”). The Initial Permitting Fee and all Permitting Extension Fees shall be nonrefundable but applicable to the Purchase Price at Closing and Title Company is hereby instructed, upon receipt of such fees, to release the funds to Seller immediately upon receipt. If at the end of the Permitting Period, as the same may be extended herein, Buyer is unable to obtain the Approvals, Buyer shall have the right to terminate this Agreement by written notice to Seller and Escrow Agent prior to expiration of the Permitting Period or of the then expiring Permitting Extension Period, as the case may be, whereupon the Deposit shall be returned to Buyer. If Buyer fails to give Seller a notice of termination prior to the expiration of the Permitting Period or the then expiring Permitting Extension Period, Buyer shall have no further right to terminate the Agreement pursuant to this Section 3.06 and will be deemed to have elected to proceed with the Closing, shall pay the Additional Deposit, and the Deposit shall become non-refundable to Buyer, except as elsewhere provided herein. The Permitting Period or Permitting Extension Period will immediately terminate at such time that Buyer obtains the Approvals, and Buyer shall pay the Additional Deposit.

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ARTICLE 4

CLOSING

4.01 Time and Place. The consummation of the transaction contemplated hereby (the “Closing”) shall be held at the offices of Title Company on or before the day that is sixty (60) days following the termination of the Permitting Period or Permitting Extension Period or as otherwise agreed to in writing by Seller and Buyer (the “Closing Date”).

4.02 Seller’s Obligations at Closing. At Closing, Seller shall:

(a) deliver to Buyer a duly executed and acknowledged Deed conveying the Property, subject only to the Permitted Exceptions, utilizing the legal description derived from the new Survey.

(b) deliver to Escrow Agent such evidence as the Escrow Agent may reasonably require as to the authority of the person or persons executing documents on behalf of Seller;

(c) deliver to Buyer a certificate in the form required by Title Company duly executed by Seller stating that Seller is not a “foreign person” as defined in the Foreign Investment in Real Property Tax Act of 1980;

(d) deliver such affidavits as may be customarily and reasonably required by the Escrow Agent, in a form reasonably acceptable to Seller, including an affidavit sufficient to delete the standard printed exceptions as to “rights of parties in possession” and “rights of tenants in possession “from the Title Policy;

(e) deliver to Buyer possession of the Property, subject to the Permitted Exceptions;

(f) execute a closing statement reasonably acceptable to Seller;

(g) if Seller has exercised the Participation Option, execute the Participation Agreement in the form mutually agreed upon by Seller and Buyer in accordance with Section 1.06; and

(h) deliver such additional documents as shall be reasonably required to consummate the transaction contemplated by this Agreement,

All of the foregoing must be in form and content acceptable to Seller, which acceptance shall not be unreasonably withheld, delayed, or conditioned.

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4.03 Buyer’s Obligations at Closing. At Closing, Buyer shall:

(a) pay to Seller the full amount of the Purchase Price, less the Deposit and such other fees and other funds paid that are applicable to the Purchase Price (e.g., Permitting and Permitting Extension Fees), as the Purchase Price may be increased or decreased by prorations and price adjustments as herein provided, in immediately available funds;

(b) deliver to Escrow Agent such evidence as the Escrow Agent may reasonably require as to the authority of the person or persons executing documents on behalf of Buyer;

(c) deliver such affidavits as may be customarily and reasonably required by the Escrow Agent, in a form reasonably acceptable to Buyer;

(d) execute a closing statement reasonably acceptable to Buyer;

(e) if Seller has exercised the Participation Option, execute the Participation Agreement in the form mutually agreed upon by Seller and Buyer in accordance with Section 1.06; and

(f) deliver such additional documents as shall be reasonably required to consummate the transaction contemplated by this Agreement.

All of the foregoing must be in form and content satisfactory to Buyer.

4.04 Credits and Prorations.

(a) All normal and customary expenses of the Property shall be apportioned as of 12:01 a.m., on the day of Closing, as if Buyer were vested with title to the Property during the entire day upon which Closing occurs.

(b) Notwithstanding anything contained in Section 4.04(a) hereof, any taxes paid at or prior to Closing shall be prorated based upon the amounts accruing during such calendar year. If taxes and assessments due and payable during the year of Closing have not been paid before Closing, Seller shall be charged at Closing an amount equal to that portion of such taxes and assessments which relates to the period before Closing and Buyer shall pay the taxes and assessments prior to their becoming delinquent. Any such apportionment made with respect to a tax year for which the tax rate or assessed valuation, or both, have not yet been fixed shall be based upon the tax rate and/or assessed valuation last fixed. To the extent that the actual taxes and assessments for the current year differ from the amount apportioned at Closing, the parties shall make all necessary adjustments by appropriate payments between themselves within sixty (60) days after such amounts are determined following Closing, subject to the provisions of Section 4.04(c) hereof. Notwithstanding anything to the contrary contained herein, if all or part of the Property has been assessed for tax purposes at a value that will cause “roll-back” taxes to be due upon the change in land usage or ownership of all or part of the Property (“Rollback Taxes”), the Rollback Taxes will be paid at Closing and Buyer will be responsible for 100% of the Rollback Taxes. The provisions of this Section 4.04(b) shall survive Closing; € Except as otherwise provided herein, any expense amount which cannot be ascertained with certainty as of Closing shall be prorated on the basis of the parties’ reasonable estimates of such amount and shall be the subject of a final proration ninety (90) days after Closing, or as soon thereafter as the precise amounts can be ascertained. Buyer shall promptly notify Seller when it becomes aware that any such estimated amount has been ascertained. Once all expense amounts have been ascertained, Buyer shall prepare, and certify as correct, a final proration statement which shall be subject to Seller’s approval. Upon Seller’s acceptance and approval of any final proration statement submitted by Buyer, such statement shall be conclusively deemed to be accurate and final.

(d) Subject to the first sentence of Section 4.04(c) hereof, the provisions of this Section 4.04 shall survive Closing.

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4.05 Transaction Taxes and Closing Costs.

(a) Seller shall pay at Closing the following costs and expenses:

(i) the fees of any counsel representing Seller in connection with this transaction; and

(ii) the costs for removing any Buyer’s Title Objections if Seller so elects to remedy any Buyer’s Title Objections, but Seller shall not be obligated to do so; and

(iii) the fee for the title examination and the Title Commitment and the base premium for the Title Policy; and

(iv) the Survey Reimbursement.

(b) Buyer shall pay the following costs and expenses:

(i) the fees of any counsel representing Buyer in connection with this transaction;

(ii) any endorsements to the Title Policy requested by Buyer, including, without limitation, deletion of the survey exception;

(iii) any roll back taxes payable by Buyer pursuant to Section 4.04(b); and

(vi) all other costs of the Title Company for Closing. All costs and expenses incident to this transaction and the Closing thereof, and not specifically described above, shall be paid by the party incurring same; and

(d) The provisions of this Section 4.05 shall survive the Closing.

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4.06 Conditions Precedent to Obligation of Buyer. The obligation of Buyer to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing of all of the following conditions, any or all of which may be waived by Buyer in its sole discretion:

(a) Seller shall have delivered to Buyer all of the items required to be delivered to Buyer, as provided for in Section 4.02 hereof;

(b) All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing (with appropriate modifications permitted under this Agreement).

In the event that any one of the foregoing conditions is outstanding or unsatisfied as of the Closing other than due to a default by Buyer under this Agreement, then Buyer shall have as its sole remedies the right to either (i) terminate this Agreement, whereupon the Deposit shall be promptly returned to Buyer less the Independent Consideration and neither party shall have any further rights or obligations hereunder (except for those obligations which expressly survive the termination of this Agreement), or (ii) waive any of such requirements and complete the purchase as herein provided.

4.07 Conditions Precedent to Obligation of Seller. The obligation of Seller to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing of all of the following conditions, any or all of which may be waived by Seller in its sole discretion:

(a) Seller shall have received the Purchase Price as adjusted as provided herein, pursuant to and payable in the manner provided for in this Agreement;

(b) Buyer shall have delivered to Seller all of the items required to be delivered to Seller, as provided for in Section 4.03 hereof.

(c) All of the representations and warranties of Buyer contained in this Agreement shall be true and correct in all material respects as of the date of Closing (with appropriate modifications permitted under this Agreement).

In the event that any one of the foregoing conditions is outstanding or unsatisfied as of the Closing other than due to a default by Seller under this Agreement, then Seller shall have as its sole remedies the right to either (i) terminate this Agreement, whereupon the Deposit shall be promptly released by Escrow Agent to Seller less the Independent Consideration and neither party shall have any further rights or obligations hereunder (except for those obligations which expressly survive the termination of this Agreement), or (ii) waive any of such requirements and complete the purchase as herein provided.

4.08 Waiver of Condition Precedent. Either party may at any time or times, at its election, waive any of the conditions to its obligations hereunder, but any such waiver shall be effective only if contained in writing signed by such party. No such waiver shall reduce the rights or remedies of a party by reason of any breach by the other party (but if a condition is waived, the party waiving the same may not terminate this Agreement or seek other remedies on the basis of the failure of such waived condition). In the event that for any reason any item required to be delivered to a party by the other party hereunder shall not be delivered when required, then such other party shall nevertheless remain obligated to deliver the same to the first party, and nothing (including, but not limited to, the closing of the transaction hereunder) shall be deemed a waiver by the first party of such requirement.

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ARTICLE 5

REPRESENTATIONS, WARRANTIES AND COVENANTS

5.01 Representations and Warranties of Seller. Seller hereby makes the following representations and warranties to Buyer as of the Effective Date, which representations and warranties shall be deemed to have been made again as of the Closing:

(a) Pending Actions. To Seller’s knowledge, Seller has not received written notice of any action, suit, arbitration, unsatisfied order or judgment, government investigation or proceeding pending against Seller with respect to the Property which, if adversely determined, could individually or in the aggregate materially interfere with the consummation of the transaction contemplated by this Agreement.

(c) Condemnation. Except as otherwise disclosed to Buyer, to Seller’s knowledge, Seller has not received written notice of any condemnation proceedings relating to the Property.

(d) Litigation. There is no litigation which has been filed against Seller that arises out of the ownership of the Property that, if adversely determined, would materially affect the Property or use thereof, or Seller’s ability to perform hereunder.

(e) Violations. To Seller’s knowledge, Seller has not received written notice of any uncured violation of any federal, state or local law relating to the use or operation of the Property which would materially adversely affect the Property or use thereof.

(f) Agreements. To Seller’s knowledge, there are no agreements regarding the operation or management of the Property, except as have been disclosed to Buyer during the Feasibility Period.

(g) Lease Agreements. There are no lease agreements affecting the Property that will be in effect as of Closing.

(h) Applicable Laws. To Seller’s knowledge, Seller has received no written notice from any governmental authority that the Property is in violation of any of the applicable laws governing the Property

Seller’s representations and warranties contained in this Section 5.01 and Section 5.02 below shall survive Closing for a period of three (3) months.

5.02 Environmental Matters. Seller represents and warrants to the best of Seller’s knowledge, and excluding agricultural production, as of the Effective Date (which representation and warranty shall be remade as of the Closing Date): that no notice, demand, claim or other communication has been given or served on Seller from any entity, governmental body or individual claiming any violation of any environmental law or demanding payment, contribution, indemnification, remedial action, removal action or any other action or inaction with respect to any actual or alleged environmental damage or injury to persons, property or natural resources (any of the foregoing, whether now existing or hereafter brought, is herein called a “Claim”), and no basis for any Claim exists; or (b) that no investigation, administrative order, consent order, agreement, litigation or settlement is proposed or in existence, or threatened, with respect to or arising from the presence of any Hazardous Material with respect to the Property.

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As used herein, the term “Hazardous Materials” shall mean any substance which is or contains: (i) any “hazardous substance” as now or hereafter defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.) or any regulations promulgated thereunder; (ii) any “hazardous waste” as now or hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) or regulations promulgated thereunder; (iii) lead and any substance regulated by the Toxic Substances Control Act (15 U.S.C. Section 2601 et. seq.). The term “Environmental Laws” shall mean all statutes specifically described in the foregoing sentence and all federal, state and local environmental, health and safety statutes, ordinances, codes, rules, regulations and orders regulating, relating to or imposing liability or standards concerning or in connection with Hazardous Materials.

5.03 Covenants of Seller. From and after the Effective Date and until Closing or any termination or cancellation of this Agreement, Seller, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, delayed, conditioned, or denied), shall not (i) enter into a contract, option, right of first refusal or other agreement for the sale, transfer or conveyance, exchange, encumbrance or other disposition of all or any portion of the Property; (ii) execute, grant, amend or modify a lien, pledge, encumbrance, security interest, charge, license, lease, right of way, dedication or easement against or across the Property which will not be released or removed prior to Closing; (iii) enter into any maintenance, management or service contracts for the Property which will remain in force and effect after the Closing; (iv) terminate any liability or hazard insurance for the Property prior to Closing; (v) commit or permit to be committed any waste to the Property; or (vi) enter into any agreement or perform any action which would cause a lien to attach to all or any portion of the Property or which would cause any subsequent mechanics’ lien to relate back to such agreement or action or (vii) fail to operate the Property in substantially the same manner that the Property is operated on the Effective Date. Seller shall promptly furnish Buyer with any notice concerning the Property that Seller receives from any appraisal district, taxing authority or other governmental entity. If at any time prior to Closing there are any parties in possession of any portion of the Property as lessees or tenants or otherwise, Seller shall cause any lease or other agreement with such parties to be terminated prior to the Closing Date and shall cause such parties to vacate the Property prior to the Closing Date. Seller’s termination of any lease or agreement allowing for possession of any portion of the Property shall be at Seller’s sole expense and shall not impose any cost, obligation, encumbrance, or liability upon the Property or upon Buyer. Further, Seller agrees to pay all liabilities arising under any lease or agreement allowing for possession of any portion of the Property, whether arising by virtue of termination of same or otherwise, which obligation shall survive the Closing.

5.05 Representations and Warranties of Buyer. Buyer hereby makes the following representations and warranties to Seller as of the Effective Date, which representations and warranties shall be deemed to have been made again as of the Closing:

(a) Authority. Buyer has the full right and authority to enter into this Agreement and to consummate or cause to be consummated the transaction contemplated by this Agreement and such transactions does not violate or breach (assuming the passage of time, notice or both) any agreement of Buyer or which affects the properties or assets of Buyer.

(b) Pending Actions. Buyer has not received written notice of any action, suit, arbitration, unsatisfied order or judgment, government investigation or proceeding pending against Buyer which, if adversely determined, could individually or in the aggregate materially interfere with the consummation of the transaction contemplated by this Agreement.

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ARTICLE 6

DEFAULT

6.01 Default by Buyer. In the event the sale of the Property as contemplated hereunder is not consummated due to Buyer’s default hereunder, Seller shall be entitled, as its sole remedy, to terminate this Agreement and receive the Deposit, as liquidated damages for the breach of this Agreement, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Deposit is a reasonable estimate thereof. Seller expressly waives its rights to seek damages in the event of Buyer’s default hereunder. Notwithstanding the foregoing, nothing in this Section 6.01 shall limit any recovery by Seller under any indemnities made by Buyer herein or Seller’s rights to any attorneys’ fees or costs recoverable by Seller hereunder.

6.02 Default by Seller. In the event the sale of the Property as contemplated hereunder is not consummated due to Seller’s default hereunder, Buyer shall be entitled, as its sole remedy, either (a) to receive the return of the Deposit, all Permitting and Permitting Extension Fees, and Feasibility and Feasibility Extension Fees, which return shall operate to terminate this Agreement and release Seller from any and all liability hereunder, or (b) to enforce specific performance of Seller’s obligation to convey the Property to Buyer in accordance with the terms of this Agreement, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. The remedy of specific performance shall be commenced within sixty (60) days after such default, or Buyer shall no longer have the remedy of specific performance. Except as expressly set forth in the preceding sentence, Buyer expressly waives its rights to seek damages in the event of Seller’s default hereunder.

6.03 Waiver. In no event shall either party be liable for, and each party hereby waives any claim for, any punitive, indirect, special, speculative or consequential damages, such as lost profits, as a result of the breach of a representation or warranty or any other default hereunder.

ARTICLE 7

RISK OF LOSS

7.01 Condemnation. If during the pendency of this Agreement and prior to Closing, condemnation proceedings are commenced or threatened with respect to any Material Condemnation (as hereinafter defined), Buyer may, at Buyer’s election, terminate this Agreement by written notice to Seller within ten (10) days after Buyer has been notified in writing of the commencement or threat of such condemnation proceedings. In the event of such termination, the Deposit shall be returned to Buyer and neither party shall have any further rights or obligations hereunder except as specifically provided herein. If Buyer does not exercise such right to terminate within the period prescribed, then Seller and Buyer, by their respective attorneys, will have the right to appear and to defend their respective interests in the Property in such condemnation proceedings, and any award in condemnation will be assigned to Buyer at Closing or if received by Seller prior to Closing, credited against the Purchase Price in the same amount. As used herein, the term “Material Condemnation” shall mean (i) a condemnation of any portion of the Property having a fair market value of more than Five Hundred Thousand Dollars ($500,000), or (ii) any other condemnation which would result in the remaining Property not conforming with any and all applicable private deed restrictions, required zoning Approvals or which would otherwise materially impair Buyer’s intended use and development of the Property or result in Buyer’s intended development of the Property not being economically feasible.

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ARTICLE 8

BROKERS AND COMMISSIONS

8.01 Brokerage Commissions. The parties represent and warrant to each other that no broker or finder was instrumental in arranging or bringing about this transaction other than MSL Investments, Attn: Sarah Teel, representing the Seller (“Seller’s Broker”), and _N/A representing the Buyer (“Buyer’s Broker”), (collectively, the “Brokers”). Each party hereto agrees that if any person or entity makes a claim for brokerage commissions or finder’s fees (except Brokers) related to the sale of the Property by Seller to Buyer, and such claim is made by, through or on account of any acts or alleged acts of said party or its representatives, said party will protect, indemnify, defend and hold the other party free and harmless from and against any and all loss, liability, cost, damage and expense (including reasonable attorneys’ fees) in connection therewith. Seller agrees to pay a commission (the “Commission”) at Closing pursuant to the terms of a separate written agreement between Seller and Seller’s Broker. Buyer’s Broker will be paid 0% Commission at Closing by the Seller. The provisions of this paragraph shall survive Closing or any termination of this Agreement.

Article 9

Disclaimers and Waivers

9.01 No Reliance on Documents. Except as expressly stated herein and in the documents to be executed by Seller at the Closing, Seller makes no representation or warranty as to the truth, accuracy or completeness of any materials, data or information prepared by third parties and delivered by Seller or its brokers or agents to Buyer in connection with the transaction contemplated hereby. Buyer acknowledges and agrees that all materials, data and information delivered by Seller to Buyer in connection with the transaction contemplated hereby are provided to Buyer as a convenience only and that any reliance on or use of such materials, data or information by Buyer shall be at the sole risk of Buyer, except as otherwise expressly stated herein. Neither Seller, nor any affiliate of Seller, nor the person or entity which prepared any report or reports delivered by Seller to Buyer shall have any liability to Buyer for any inaccuracy in or omission from any such reports.

9.02 AS-IS SALE; DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE DOCUMENTS TO BE EXECUTED BY SELLER AT THE CLOSING, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

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PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY “AS IS, WHERE IS, WITH ALL FAULTS”, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT AND IN THE DOCUMENTS TO BE EXECUTED BY SELLER AT THE CLOSING. 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, OFFERING PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY SELLER, THE MANAGERS OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT OR IN THE DOCUMENTS TO BE EXECUTED BY SELLER AT THE CLOSING. PURCHASER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD “AS-IS.”

9.03 Survival of Disclaimers. The provisions of this Article 9 shall survive Closing or any termination of this Agreement.

Article 10

Miscellaneous

10.01 Confidentiality. Seller and Buyer agree that neither shall, without the prior written consent of the other party, make any public announcement about the purchase and sale transaction contemplated hereby or of any of the terms, conditions, or provisions hereof, including without limitation, the Purchase Price, or the results of any inspection, test, survey, or study conducted by Buyer pursuant to this Agreement, including in the event this Agreement is terminated by either party. Each party and its representatives shall hold in strictest confidence all data and information obtained with respect to the other party, whether obtained before or after the execution and delivery of this Agreement and shall not disclose the same to others, except as otherwise may be required by law; provided, however, that it is understood and agreed that (a) Buyer may disclose such data and information regarding the Property to the employees, lenders, consultants, accountants and attorneys of Buyer provided that such persons agree to treat such data and information confidentially. In addition, Buyer shall be entitled to disclose to representatives of Bexar County, Texas, and such other governmental authorities such facts as may be reasonably required in order to obtain confirmation from such governmental authorities of any licenses, rights, exemptions or agreements as may be necessary or required. Seller will not advertise the price of the Property in the public domain, on any website(s), brochures or any other document, internet platform or portal whatsoever. Each party agrees to indemnify and hold the other party harmless from and against any actual loss, injury, damage, claim, lien, cost or expenses, including attorneys’ fees, arising from a breach of the foregoing confidentiality agreement, provided that in no event shall either party be liable to the other for any special, indirect, consequential or punitive damages. The provisions of this Section 10.01 shall survive any termination of this Agreement or Closing of this transaction.

10.02 Exclusivity. In consideration for the considerable amount of time and expense that Buyer will devote to the evaluation of the transaction described herein, Seller agrees that neither Seller nor anyone acting on its behalf will (i) advertise, promote and market the property for sale nor (ii) enter into contracts, options or letters of intent or conclude in any way any offer from any person or entity other than Buyer with respect to the Property unless and until this Agreement terminates; provided, however, that if Seller shall receive an unsolicited offer for the purchase of the Property, Seller’s execution of any so-called “back-up” letter of intent, contract or other agreement shall not be deemed a violation of the foregoing so long as such “back-up” agreement is subject and subordinate to the rights of Buyer hereunder.

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10.03 Public Disclosure. Prior to and after the Closing, any press release or similar release to the public of information with respect to the sale contemplated herein or any matters set forth in this Agreement will be made only upon the mutual agreement of Buyer and Seller and only in the form approved by Buyer and Seller. The provisions of this Section 10.03 shall survive the Closing or any termination of this Agreement.

10.04 Assignment. Buyer shall not assign this Agreement without prior written consent from Seller except to a Permitted Assignee. For purposes of this Section 10.04, the term “Permitted Assignee” shall mean (i) an entity owned by, or affiliated with or that controls, is controlled by or under common control with Buyer (each, an “Affiliate”) or by the principals of Buyer, (ii) any entity of which Buyer or an Affiliate of Buyer acts as the managing member or general partner or (iii) any entity of which Buyer or an Affiliate of Buyer acts as a co-managing member or co-general partner and is materially involved in the management of such entity. Notwithstanding an assignment to a Permitted Assignee, Buyer shall remain liable for all obligations under this Agreement.

10.05 Notices. Any notice pursuant to this Agreement shall be given in writing by (a) personal delivery, (b) reputable overnight delivery service with proof of delivery, (c) United States Mail, postage prepaid, registered or certified mail, return receipt requested, (d) legible facsimile transmission or (e) e-mail, sent to the intended addressee at the address set forth below, or to such other address or to the attention of such other person as the addressee shall have designated by written notice sent in accordance herewith, and shall be deemed to have been given upon receipt or refusal to accept delivery, or, in the case of facsimile or e-mail transmission, as of the date of the facsimile or e- mail transmission provided that an original of such facsimile is also promptly sent to the intended addressee by means described in clauses (a), (b) or (c) above. Unless changed in accordance with the preceding sentence, the addresses for notices given pursuant to this Agreement shall be as follows:

If to Seller:	Leander Associates, Ltd. c/o Clearday, Inc.
	8800 Village Drive, Suite 106 San Antonio, Texas 78217 Attention: COO
	Telephone: (210) 451-0839 Email: BJ@myclearday.com
with a copy to:	Rosenthal Pauerstein Sandoloski Agather LLP
	Attn: Susan Rogers
	755 E. Mulberry Ave., Ste. 200 San Antonio, Texas 78212 Telephone: (210) 244-8873 Email: srogers@rpsalaw.com
If to Buyer:	Leander Ridge, LLC Attn: Nathan Ruggles
	1902 Jentsch Court, Unit B, Austin, TX 78745 Telephone: (512) 565-3501
	Email: nathan@derive-dev.com
with a copy to:	Kendrick A. James, PC
	16420 Park Ten Place, Suite 125
	Houston, Texas 77084
	Telephone: (281) 646-2905
	Cell: (713) 303-3242
	Email: kaj@kajlawfirm.com

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10.06 Modifications. This Agreement cannot be changed orally, and no executory agreement shall be effective to waive, change, modify or discharge it in whole or in part unless such executory agreement is in writing and is signed by the parties against whom enforcement of any waiver, change, modification or discharge is sought.

10.07 Entire Agreement. This Agreement, including the exhibits and schedules hereto, contains the entire agreement between the parties hereto pertaining to the subject matter hereof and fully supersedes all prior written or oral agreements and understandings between the parties pertaining to such subject matter, other than any confidentiality agreement executed by Buyer in connection with the Property.

10.08 Further Assurances. Each party agrees that it will execute and deliver such other documents and take such other action, whether prior or subsequent to Closing, as may be reasonably requested by the other party to consummate the transaction contemplated by this Agreement. The provisions of this Section 10.08 shall survive Closing.

10.09 Counterparts. This Agreement may be executed in counterparts, all such executed counterparts shall constitute the same agreement, and the signature of any party to any counterpart shall be deemed a signature to, and may be appended to, any other counterpart.

10.10 Electronic Signatures. In order to expedite the transaction contemplated herein, electronically transmitted signatures (whether by facsimile or email) in place of original signatures on this Amendment is expressly allowed. The parties intend to be bound by the signatures on the electronically transmitted document, are aware that the other parties will rely on the electronically transmitted signatures, and hereby waive any defenses to the enforcement of the terms of this Agreement based on the form of signature.

10.11 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall nonetheless remain in full force and effect; provided that the invalidity or unenforceability of such provision does not materially adversely affect the benefits accruing to any party hereunder.

10.12 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas.

10.13 No Third-Party Beneficiary. The provisions of this Agreement and of the documents to be executed and delivered at Closing are and will be for the benefit of Seller and Buyer only and are not for the benefit of any third party, and accordingly, no third party shall have the right to enforce the provisions of this Agreement or of the documents to be executed and delivered at Closing.

18

10.14 Captions. The Section headings appearing in this Agreement are for convenience of reference only and are not intended, to any extent and for any purpose, to limit or define the text of any Section or any subsection hereof.

10.15 Construction. The parties acknowledge that the parties and their 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 or any exhibits or amendments hereto.

10.16 Attorneys’ Fees. Should either party employ attorneys to enforce any of the provisions hereof, the party losing in any final judgment agrees to pay the prevailing party all reasonable costs, charges and expenses, including reasonable attorneys’ fees, expended or incurred in connection therewith.

10.17 Recordation. This Agreement may not be recorded by any party hereto without the prior written consent of the other party hereto; provided, however, this prohibition shall not apply to any recordings expressly contemplated by this Agreement. The provisions of this Section 10.17 shall survive the Closing or any termination of this Agreement.

10.18 Calculation of Time Periods and Performance. Time is of the essence with respect to this Agreement. Unless otherwise specified, in computing any period of time described herein, 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 a Saturday, Sunday or legal holiday for national banks in the location where the Property is located, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday. The last day of any period of time described herein and the time during any day by which an event must occur shall be deemed to end at 5:00 p.m., according to the time at the location of the Property. As used in this Agreement, the term “business day” means every day other than Saturday, Sunday and any other day which is a legal holiday under the laws of the state of Texas or is a day on which banking institutions in such state are required or authorized to close

10.19 1031 Exchange. The parties acknowledge that either may sell or purchase the Property as part of an exchange being made pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated with respect thereto (or such other similar or replacement provisions). The parties agree to cooperate fully with one another in the completion of an exchange; provided, however, that (a) the party not involved in the exchange does not incur any type of out-of-pocket expense or additional liability as a result of such cooperation; and (b) the exchange shall not delay any of the time periods or other obligations of the parties under this Agreement.

10.21 Effective Date. The “Effective Date” of this Agreement shall be the date that a fully executed copy of this Agreement is receipted by the Escrow Agent as indicated by the execution of this Agreement by the Escrow Agent in the space provided therefore below, and the Escrow Agent shall provide notice of such receipt to all parties listed in Section 10.05 hereinabove.

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Article 11

Disclosures

11.01 District. If the Property is situated in a utility or other statutorily created district providing water, sewer, drainage, or flood control facilities and services, Chapter 49 of the Texas Water Code requires Seller to deliver and Buyer to sign the statutory notice relating to the tax rate, bonded indebtedness, or standby fee of the district prior to final execution of this Agreement.

11.02 Title Examination or Policy. The Buyer should have the Property examined by an attorney of the Buyer’s choosing or the Buyer should be furnished with or obtain a title policy.

11.03 Certificated Service Area of a Utility Service Provider. If the Property is situated in a certificated service area of a utility service provider, Section 13.257 of the Texas Water Code requires Seller to deliver and the Buyer to sign the required statutory notice.

11.04 Pipelines. If a transportation pipeline, including a pipeline for the transportation of natural gas, natural gas liquids, synthetic gas, liquified petroleum gas, petroleum or a petroleum product or hazardous substance, is located on or within the Property, Seller shall give Buyer statutory notice regarding such pipeline(s) as required by Section 5.013 of the Texas Property Code.

11.05 Public Improvement District. If the Property is in a public improvement district, Section 5.014 of the Texas Property Code requires Seller to deliver and the Buyer to sign the required statutory notice.

[Remainder of Page Intentionally Left Blank – Signature Page Follows]

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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement to be effective as of the Effective Date.

SELLER:
LEANDER ASSOCIATES, LTD.,
a Texas limited partnership
By:	Shadow Retail Partners, L.P.,
	a Delaware limited partnership, its General Partner
By:
	Name, Title
BUYER:
LEANDER RIDGE, LLC
a Texas limited liability company
By:
	Nathan Ruggles, Manager

RECEIPT

An original, fully executed copy of this Agreement has been received by the Escrow Agent this ____day of __________________________, 2022 (the “Effective Date”), and by execution hereof the Escrow Agent hereby covenants and agrees to be bound by the terms of this Agreement.

ESCROW AGENT:

PRESIDIO TITLE COMPANY

By:

Name:

Title:

21

EXHIBIT A

DESCRIPTION OF PROPERTY

Exhibit A - Page 1

EXHIBIT B

FORM OF SPECIAL WARRANTY DEED

NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER’S LICENSE NUMBER.

THE STATE OF TEXAS	§
	§
COUNTY OF WILLIAMSON	§

That Leander Associates, Ltd., a Texas limited partnership (“Grantor”), for and in consideration of the sum of Ten and No/100 Dollars ($10.00) cash and other good and valuable consideration in hand paid by ____________________a Texas limited liability company (“Grantee”), whose address is 16420 Park Ten Place, Suite 125, Houston, Texas 77084, the receipt and sufficiency of which is hereby acknowledged and confessed, has, subject to the exceptions hereinafter set forth, GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY unto Grantee, subject to the Permitted Exceptions, the real property, together with all improvements situated thereon LIST MORE (hereinafter referred to as the “Property”) described on Exhibit A attached hereto and made a part hereof together with all and singular the rights, privileges, hereditaments and appurtenances pertaining to such real property, including, but not limited to the following: (a) all adjacent streets, roads, alleys, easements and rights-of-way, public or private, open or proposed, in, across, abutting or adjacent to or used in connection with the Land; (b) strips and gores, if any, between the Land and any abutting properties, whether owned or claimed by deed, limitations or otherwise; (c) all entitlements and development rights relating, belonging or appurtenant to or associated with, the Land, including all right, title, and interest of Seller in and to any and all: (i) utilities, utility capacity, sewage treatment capacity, water rights, water and well permits, water capacity, drainage, and detention rights (including any form of reservation which may be granted by any governmental subdivision), if any to serve or which will serve the Land and improvements now or hereafter constructed thereon; (ii) assignable existing licenses, permits, governmental approvals and authorizations issued by any governmental authority in connection with the Land; (iii) rights under zoning cases, preliminary plans, plats, and other development applications and approvals; and (iv) all other development rights, powers, privileges, options, or other benefits associated with, that pertain to, are attributable to, are appurtenant to, apply to, or which otherwise benefit the land.

TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions, together with the rights and appurtenances thereto belonging, unto Grantee and Grantee’s successors and assigns, forever; and Grantor does hereby bind Grantor and Grantor’s successors and assigns to warrant and forever defend the Property, subject to the Permitted Exceptions, unto Grantee and Grantee’s successors and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise.

Exhibit B - Page 1

This conveyance is further made subject to the liens securing standby fees, taxes and assessments by any taxing authority for the year 2022 and subsequent years (collectively, the “Ad Valorem Taxes”), as well as to all those covenants, conditions, easements, restrictions, encumbrances and exceptions set forth on Exhibit B attached hereto and made a part hereof (collectively, the “Permitted Exceptions”). Grantee, by acceptance of delivery of this Deed, assumes and agrees to perform all of Grantor’s obligations under the Permitted Exceptions and to pay the Ad Valorem Taxes.

EXCEPT AS SPECIFICALLY PROVIDED IN THE PURCHASE AND SALE AGREEMENT, DATED _____________________, 2022 (THE “AGREEMENT”), BETWEEN GRANTOR AND GRANTEE AND IN THE CLOSING DOCUMENTS EXECUTED BY GRANTOR THEREUNDER, THE PROPERTY IS CONVEYED “AS IS” AND “WITH ALL FAULTS.” EXCEPT AS SPECIFICALLY PROVIDED IN THE AGREEMENT AND IN THE CLOSING DOCUMENTS EXECUTED BY GRANTOR THEREUNDER, GRANTOR DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR GUARANTIES OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW (EXCEPT AS TO TITLE AS PROVIDED IN THIS DEED), WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF HABITABILITY, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.

TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions, together with all the rights and appurtenances thereto in anyway belonging, to Grantee FOREVER; and Grantor binds itself to WARRANT and FOREVER DEFEND, title to the Property to Grantee against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through, or under Grantor, but not otherwise, subject to the matters set forth in this Deed.

Ad Valorem Taxes for the current year shall be prorated and adjusted to the date of this Deed, and, by acceptance of this Deed, Grantee hereby assumes payment of all such taxes and assessments.

IN WITNESS WHEREOF, this Special Warranty Deed has been executed by Grantor on this _____ day of _______, 202_

GRANTOR:

THE STATE OF TEXAS	§
	§
COUNTY OF _______________	§

This instrument was acknowledged before me on the _____ day of _____________, 2022, by _____ ___________, ________________ of ________________________.

	Notary Public in and for the State of South Carolina
	Printed Name
AFTER RECORDING RETURN TO:
Attention:

Exhibit B - Page 2

XML

Cover	Apr. 11, 2022
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Apr. 11, 2022
Entity File Number	0-21074
Entity Registrant Name	Clearday, Inc.
Entity Central Index Key	0000895665
Entity Tax Identification Number	77-0158076
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	8800 Village Drive
Entity Address, Address Line Two	Suite 106
Entity Address, City or Town	San Antonio
Entity Address, State or Province	TX
Entity Address, Postal Zip Code	78217
City Area Code	(210)
Local Phone Number	451-0839
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, par value $0.001
Trading Symbol	CLRD
Entity Emerging Growth Company	false