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Exhibit 10.67.03
[Boise,
Idaho]
PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
By
and Between
HEALTH
CARE PROPERTY INVESTORS, INC.,
a
Maryland corporation
as
“Seller”
and
EMERITUS
CORPORATION,
a
Washington corporation,
as
“Buyer”
TABLE OF CONTENTS
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Page
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1.
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DEFINITIONS
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1
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2.
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SALE
OF THE PROPERTY
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4
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3.
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ESCROW
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4
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4.
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PURCHASE
PRICE; ALLOCATION OF PURCHASE PRICE
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5
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5.
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CONDITIONS
TO CLOSING; AS IS PURCHASE
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5
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6.
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CLOSING
OF ESCROW
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8
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7.
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TERMINATION
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13
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8.
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REPRESENTATIONS
AND WARRANTIES
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15
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9.
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CERTAIN
EVENTS PRIOR TO CLOSING
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17
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10.
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POST-CLOSING
MATTERS
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17
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11.
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BROKERS
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18
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12.
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MISCELLANEOUS
PROVISIONS
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18
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EXHIBITS |
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A
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Description
of Emeritus Master Lease
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B
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Escrow
General Provisions
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C
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[RESERVED]
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D
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Form
of Quitclaim Bill of Sale
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E
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[RESERVED]
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F
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[RESERVED]
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G
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Nominee
and Property/Facility
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H
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[Reserved]
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SCHEDULE |
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1
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Related
Purchase Agreements
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PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS
PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
(this “Agreement”) is made and entered into as of
July 31, 2007 to be effective as of June 14, 2007 (the
“Effective Date”), by and among HEALTH CARE
PROPERTY INVESTORS, INC., a Maryland corporation
(“Seller”) and EMERITUS CORPORATION, a Washington
corporation (“Buyer”), as follows:
RECITALS
A.
Seller is the owner of the Property (as defined
below).
B. The
Property is currently leased, together with certain other
property, by Seller and/or certain Affiliates (as defined
below) of Seller to Buyer and/or certain Affiliates of Buyer
pursuant to the Emeritus Master Lease (as defined
below).
C.
Buyer desires to purchase the Property from Seller and Seller
desires to sell the Property to Buyer on the terms and subject
to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
Buyer and Seller agree as follows:
1.
DEFINITIONS
For
all purposes of this Agreement, except as otherwise expressly
provided herein or unless the context otherwise requires, (i)
the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular; (ii) all references in this Agreement to designated
“Articles,” “Sections” and other
subdivisions are to the designated Articles, Sections and
other subdivisions of this Agreement; (iii) the word
“including” shall have the same meaning as the
phrase “including, without limitation,” and other
phrases of similar import; and (iv) the words
“herein,” “hereof” and
“hereunder” and other words of similar import
refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
1.1
1031 Exchange :
As defined in Section 6.8.
1.2
Additional Charges
: “Additional Charges,” as
defined in the Emeritus Master Lease and allocable to the
Property.
1.3
Additional Rent :
“Additional Rent,” as defined in the
Emeritus Master Lease (including “Percentage Rent” and
“CPI Rent,” as each are defined in the Emeritus Master
Lease) and allocable to the Property.
1.4
Affiliate :
“Affiliate,” as defined in the Emeritus
Master Lease.
1.5
Bill of Sale :
As defined in Section 6.2.2.
1.6
Close of Escrow, Closing Date and/or
Closing : As defined in Section
6.1.
1.7
Closing Funds
: As defined in Section
4.4.
1.8
Condemnation :
“Condemnation,” as defined in the Emeritus
Master Lease.
1.9
Condemnor :
“Condemnor,” as defined in the Emeritus
Master Lease.
1.10
Deed : As
defined in Section 6.2.1.
1.11
Earnest Money Deposit :
As defined in the Master Purchase
Agreement.
1.12
Effective Date
: As defined in the preface to this
Agreement.
1.13
Emeritus Master Lease :
That Amended and Restated Master Lease identified on
Exhibit “A” attached hereto
among Lessor and Lessee covering, among other properties, the
Property, as more particularly described therein, as the same may
have been amended or modified from time to time in accordance with
the terms thereof.
1.14
Emeritus/Summerville Merger
: As defined in the Master Purchase
Agreement.
1.15
Escrow Holder :
As defined in Section 3.1.
1.16
Event of Default :
“Event of Default,” as defined in the Emeritus Master
Lease.
1.17
Funds :
Immediately available funds in the form of cash, wire
transfer of funds, or a certified or bank cashier’s check
drawn on a reputable financial institution acceptable to Escrow
Holder.
1.18
Hazardous Substance :
“Hazardous Substance,” as defined in the
Emeritus Master Lease.
1.19
HCP : Health
Care Property Investors, Inc., a Maryland corporation.
1.20
Impositions :
“Impositions,” as defined in the Emeritus
Master Lease with respect to the Property.
1.21
Laws : All
applicable governmental laws, codes, ordinances, regulations,
judgments, permits, approvals or other requirements.
1.22
Lessee :
“Lessee,” as defined in the Emeritus Master
Lease.
1.23
Lessor :
“Lessor,” as defined in the Emeritus Master
Lease.
1.24
Liabilities : Any claim,
liability, loss, cost, action, damage, expense or fees, including
but not limited to reasonable attorney’s and
paralegals’ fees and costs of defense (each, a
“Liability”).
1.25
Master Purchase Agreement
: As defined in Schedule
1 hereto.
1.26
Minimum Rent :
“Minimum Rent,” as defined in the Emeritus Master Lease
with respect to the Property.
1.27
Opening of Escrow :
As defined in Section 3.3.
1.28
Organizational Documents :
Collectively, as applicable, the articles or
certificate of incorporation, certificate of limited partnership or
certificate of limited liability company, bylaws, partnership
agreement, operating company agreement, trust agreement, statements
of partnership, fictitious business name filings and all other
organizational documents relating to the creation, formation and/or
existence of a business entity, together with resolutions of the
board of directors, partner or member consents, trustee
certificates, incumbency certificates and all other documents or
instruments approving or authorizing the transactions contemplated
by this Agreement.
1.29
Outside Closing Date :
Subject to extension as provided Section 6.8 below,
August 15, 2007.
1.30
Permitted Exceptions
: As defined in Section
6.2.1.
1.31
Person : Any
individual, corporation, partnership, joint venture, limited
liability partnership, limited liability company, association,
joint stock company, trust, unincorporated organization, whether or
not a legal entity, or other business or governmental entity or
authority (or any department, agency, or political subdivision
thereof).
1.32
Property : The
“Leased Property” (as defined in the Emeritus Master
Lease) of the “Facility” (as defined in the Emeritus
Master Lease) listed on Exhibit G attached
hereto, less any portion which has been taken by reason of any
Condemnation or other exercise of the power of eminent
domain. The parties acknowledge that the Property for
purposes of this Agreement includes only the “Leased
Property” of the “Facility” listed on
Exhibit G attached hereto, and that the
balance of the “Leased Property” of each
“Facility” covered by the Emeritus Master Lease, but
not covered by this Agreement is being sold and conveyed to Buyer
pursuant to the Master Purchase Agreement or another Related
Purchase Agreement. In other words, pursuant to this
Agreement, the Master Purchase Agreement and the other Related
Purchase Agreements Seller and/or its Affiliates are selling and
Buyer is purchasing all of Seller’s and/or its
Affiliates’ right, title and interest in and to the
“Leased Property” of all of the
“Facilities” covered by the Emeritus Master Lease upon
the Closing hereunder and the Related Purchase Agreement Closing
under each applicable Related Purchase Agreement, but this
Agreement is intended to and only covers the “Leased
Property” of the “Facility” listed on
Exhibit G attached hereto.
1.33
Purchase Price :
As defined in Section 4.1.
1.34
Related Purchase Agreements
: The agreements identified on Schedule
1 attached hereto between and/or among Seller or
certain Affiliates of Seller, and Buyer, or certain Affiliates of
Buyer, relating to certain purchase and sale transactions to be
consummated concurrently with the Closing hereunder, if at all
(each, a “Related Purchase Agreement”).
1.35
Related Purchase Agreement Closing
. The “Closing,” as defined in each Related
Purchase Agreement.
1.36
Related Purchase Agreement Buyer Default
. The occurrence of a default (i.e., after any
applicable notice or cure period) by Buyer or any Affiliate of
Buyer under any Related Purchase Agreement.
1.37
Related Purchase Agreement Seller Default
. The occurrence of a default (i.e.,
after any applicable notice or cure period) by Seller or any
Affiliate of Seller under any Related Purchase
Agreement.
1.38
Release of Claims: As defined
in the Master Purchase Agreement.
1.39
Rent and Charges :
All accrued and unpaid Minimum Rent, Additional Rent,
and any Additional Charges (whether or not billed) payable by the
Lessee under the Emeritus Master Lease with respect to the
Property, through and including the day prior to Closing Date
(prorated to the extent applicable for the month during which the
Closing occurs).
1.40
Summerville :
Summerville Senior Living, Inc., a Delaware
corporation.
1.41
Summerville Master Lease :
As defined in the Master Purchase
Agreement.
1.42
Title Company
: Chicago Title Insurance Company,
Attn: Angie Koetters, Escrow Officer, Fax
No.:(312)223-5888.
1.43
Title Policy :
As defined in Section 6.4.
1.44
Title Endorsements
: As defined in Section
6.4.
1.45
Transaction Documents :
Collectively, this Agreement, the Deed, the Bill of
Sale, each Related Purchase Agreement, and all other agreements,
documents and/or instruments to be executed and/or delivered
pursuant to and in connection with this Agreement, the Related
Purchase Agreements and/or the Exhibits hereto or
thereto.
1.46
Transaction Taxes . Any and all
federal, state, municipal or other local Law documentary transfer,
stamp, sales, use, excise, privilege or similar tax, fee or charge
payable in connection with the delivery of any instrument or
document provided in or contemplated by this Agreement, any Related
Purchase Agreement or the Exhibits hereto and thereto together with
interest and penalties, if any, thereon, including any sales or
similar taxes payable in connection with the transfer of any
personal property comprising a part of the Property.
2.
SALE OF THE PROPERTY
Buyer
agrees to purchase and accept from Seller, and Seller agrees
to sell, convey and assign to Buyer, the Property on the terms
and subject to the conditions set forth herein.
3.
ESCROW
3.1
General Instructions
. Title Company is also hereby designated as escrow
holder (sometimes herein referred to as “Escrow
Holder”). Escrow Holder’s Escrow number,
Escrow Officer for the transactions contemplated hereby and under
the Related Purchase Agreements, address for notices and wiring
information is set forth below Title Company’s acceptance of
this Escrow. Escrow Holder’s general conditions or
provisions, which are attached hereto as Exhibit
“B” are incorporated by reference herein;
provided, however, that in the event of any inconsistency between
Exhibit “B” and any of the
provisions of this Agreement or any Related Purchase Agreement, the
provisions of this Agreement or the Related Purchase Agreement, as
applicable, shall control, respectively. Buyer and
Seller shall each execute, deliver and be bound by such further
escrow instructions or other instruments as may be reasonably
requested by the other party or by Escrow Holder from time to time,
so long as the same are consistent with this
Agreement. Escrow Holder shall not comply with the
unilateral instructions of only one party without the consent of
the other party hereto unless otherwise expressly required to do so
in this Agreement or any Related Purchase Agreement.
3.2
Tax Reporting Person
. For purposes of complying with Internal Revenue Code
§ 6045(e), as amended effective January 1, 1991, Escrow
Holder is hereby designated as the “person responsible for
closing the transaction,” and also as the “reporting
person” for purposes of filing any information returns with
the Internal Revenue Service concerning this transaction, as
required by law.
3.3
Opening of Escrow
. Escrow shall be deemed open when not less than four
(4) originals of this Agreement and each Related Agreement, fully
signed by all parties hereto or thereto either together or in
counterparts, are delivered to Escrow Holder (the “Opening of
Escrow”), which shall occur within one (1) business day after
execution of this Agreement by Buyer and Seller and each Related
Purchase Agreement by the Parties thereto. Escrow Holder
shall immediately notify Buyer, Seller and their respective
attorneys in writing of the official date of the Opening of
Escrow.
4.
PURCHASE PRICE; ALLOCATION OF PURCHASE
PRICE
4.1
Purchase
Price . The purchase price for the Property
shall be Nine Million Three Hundred Seventy-One Thousand Five
Hundred Ninety Dollars and 00/100ths ($9,371,590.00) (the
“Purchase Price”).
4.2
[Intentionally
Deleted.]
4.3
[Intentionally
Deleted.]
4.4
Closing Funds
. No later than 2:00 p.m., Pacific Standard Time, on the
Closing Date, Escrow Holder shall calculate and Buyer shall wire
Funds into Escrow (using wiring instructions reasonably
satisfactory to Escrow Holder) in an amount which shall equal the
Purchase Price plus any other sums payable by Buyer hereunder (the
“Closing Funds”).
5.
CONDITIONS TO CLOSING; AS IS
PURCHASE
5.1
Buyer’s
Conditions . Provided that Buyer is not in breach or
default of any provisions of this Agreement, the obligation of
Buyer to purchase the Property shall be subject to satisfaction of
each of the conditions set forth in this Section 5.1 on and as of
the Closing Date. Seller and Buyer expressly acknowledge
and agree that each of the conditions set forth in this Section 5.1
is for the benefit of and may be waived only by Buyer as herein
provided.
5.1.1
Seller’s Representations
and Warranties . The representations and
warranties of Seller set forth in Section 8 below shall be true and
correct in all material respects on the Closing Date as if made
again on the Closing Date.
5.1.2
Seller’s
Performance . Seller shall have performed
all of its obligations under this Agreement which by the terms of
this Agreement are required to be performed by Seller as of or
prior to the Closing Date.
5.1.3
[Intentionally
Omitted] .
5.1.4
Occurrence of the Closing by the
Outside Date . The Closing hereunder shall
occur on or before the Outside Closing Date.
5.1.5
Related Purchase
Agreements . The Related Purchase Agreement
Closing under each Related Purchase Agreement shall occur
simultaneous with the Closing. In addition, no Related
Purchase Agreement Seller Default under any Related Purchase
Agreement shall have occurred and be continuing.
5.2
Buyer’s Approval,
Disapproval or Waiver of Conditions
. Prior to Closing Buyer shall notify
Seller and Escrow Holder in writing in the event that as of the
date of Closing, any of the conditions set forth in Section 5.1
have not been satisfied or waived by Buyer; provided, however, that
if any of the conditions set forth in Sections 5.1.3,
5.1.4 or 5.1.5 have not been satisfied as a result of
any act or omission of Buyer or any Affiliate of Buyer, then Buyer
shall not be entitled to disapprove such condition, but rather the
same shall, following any applicable notice and cure period
pursuant to Section 7.2 below, constitute a default by Buyer
hereunder. In the event that Buyer is not entitled to
disapprove a condition or Buyer fails to approve, disapprove or
waive such condition, if applicable, within the time and in the
manner herein specified, then such condition shall be deemed
conclusively satisfied or waived by Buyer and thereafter shall not
be a condition precedent to the performance by Buyer of its
respective obligations hereunder.
5.3
“ AS
IS” SALE . IT IS EXPRESSLY UNDERSTOOD
AND AGREED THAT BUYER IS ACQUIRING THE PROPERTY “AS
IS,” IN ITS PRESENT STATE AND CONDITION, WITHOUT ANY
REPRESENTATIONS OR WARRANTIES FROM SELLER OF ANY KIND WHATSOEVER,
EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY SET FORTH IN SECTION
8 BELOW. IN PARTICULAR, EXCEPT AS EXPRESSLY SET FORTH IN
SECTION 8 BELOW, SELLER MAKES NO REPRESENTATION OR WARRANTY
RESPECTING THE USE, CONDITION, TITLE, OPERATION OR MANAGEMENT OF
THE PROPERTY, OR COMPLIANCE WITH ANY APPLICABLE LAWS RELATING TO
ZONING, SUBDIVISION, PLANNING, BUILDINGS, FIRE, SAFETY, EARTHQUAKE,
HEALTH OR ENVIRONMENTAL MATTERS, THE PRESENCE OR ABSENCE OF
HAZARDOUS SUBSTANCES, OR COMPLIANCE WITH ANY OTHER COVENANTS,
CONDITIONS AND RESTRICTIONS (WHETHER OR NOT OF
RECORD). Buyer represents that it is knowledgeable in
real estate matters and is relying upon Buyer’s own
investigation and analysis in purchasing the Property, as well as
the fact that Buyer or its Affiliates originally sold to and/or
developed on behalf of Seller the Property and at all times
thereafter have leased and exclusively controlled the
same. Buyer further represents that it has had ample
opportunity to inspect and has, in fact, made all of the
investigations Buyer deems necessary in purchasing the
Property. As a result, Buyer hereby expressly waives any
notice requirements which may be imposed upon Seller pursuant to
§ 25359.7 of the California Health & Safety Code or any
other similar and applicable Laws. If this Agreement is
not terminated and Buyer acquires the Property as provided herein,
Buyer shall have thereby approved all aspects of the Property and
this transaction and thereby waives any claim or Liability against
Seller. In furtherance of the foregoing, at the Closing,
Buyer shall and shall cause Lessee to execute and deliver to Seller
the Release of Claims. The provisions of this Section 5.3 shall
survive the Closing.
5.4
Seller’s
Conditions . Provided that Seller is not in
breach or default of any provision of this Agreement, the
obligation of Seller to sell the Property shall be subject to
satisfaction of each of the conditions set forth in this Section
5.4. Seller and Buyer expressly acknowledge and agree
that each of the conditions set forth in this Section 5.4 is for
the benefit of and may be waived only by Seller in
writing.
5.4.1
No Default Under Emeritus Master
Lease . Prior to the Closing, (a) no
Event of Default, or event which with notice and/or passage of time
would constitute an Event of Default by Lessee under the Emeritus
Master Lease shall have occurred and be continuing and (b) all
Rent and Charges shall be paid as and when due under the Emeritus
Master Lease, through but not including the Closing
Date.
5.4.2
[Intentionally
Omitted] .
5.4.3
Occurrence of Closing by the
Outside Closing Date . The Closing shall
occur on or before the Outside Closing Date.
5.4.4
Related Purchase
Agreements . The Related Purchase Agreement
Closing under each Related Purchase Agreement shall occur
simultaneous with the Closing. In addition, no Related
Purchase Agreement Buyer Default under any Related Purchase
Agreement shall have occurred and be continuing.
5.4.5
Buyer’s Representations and
Warranties . Buyer’s representations
and warranties set forth in Section 8 below shall be true and
correct in all material respects on the Closing Date as if made
again on the Closing Date.
5.4.6
Buyer’s
Performance . Buyer shall have performed
all of its obligations under this Agreement which by the terms of
the Agreement are required to be performed by Buyer as of or prior
to the Closing Date.
5.5
Seller’s Approval,
Disapproval or Waiver of Conditions .
Prior to the Closing, Seller shall notify Buyer and Escrow Holder
in writing in the event that as of the date of Closing, any of the
conditions set forth in Section 5.4 have not been satisfied or
waived by Seller; provided, however, that if any of the conditions
set forth in Sections 5.4.2 , 5.4.3 or 5.4.4 have not been
satisfied as a result of any act or omission of Seller or any
Affiliate of Seller, then Seller shall not be entitled to
disapprove such condition, but rather the same shall, following any
applicable notice and cure period pursuant to Section 7.2 below,
constitute a default by Seller hereunder. In the event
that Seller is not entitled to disapprove a condition or Seller
fails to approve, disapprove or waive such condition, if
applicable, prior to the Closing, then such condition shall be
deemed conclusively satisfied or waived by Seller and thereafter
shall not be a condition precedent to the performance by Seller of
its obligations hereunder.
6.
CLOSING OF ESCROW
6.1
Closing Date . Subject to
extension in order to implement the provisions of Section 6.8, and
unless this Agreement has been earlier terminated in accordance
with the applicable provisions of Section 7 below, Escrow shall
close on the Outside Closing Date; provided, however, that subject
to satisfaction or waiver of each of the conditions set forth in
Sections 5.1 and 5.4, Buyer shall be entitled to close Escrow prior
to the Outside Closing Date upon not less than five (5) days’
notice to Seller and Escrow Holder; provided further, however, that
in no event shall the closing occur prior to July 31,
2007. The terms “Close of Escrow” and/or
“Closing” are used in this Agreement to mean the time
and date the transactions contemplated hereby are closed and the
Deed or other applicable conveyance instrument has been delivered
to Buyer through Escrow, regardless whether the Deed or other
conveyance instrument is actually recorded in the land records in
which the Property is situated. The term “Closing
Date” as used in this Agreement means the date that the
Closing occurs.
6.2
Deposits by Seller . At or
before 5:00 p.m., local time in Los Angeles, California, on that
date which is not less than one (1) business day before the Close
of Escrow, Seller shall deliver or cause to be delivered to Escrow
Holder the following items for handling as described below;
provided, however, that Escrow need not be concerned with the form
or content but only with manual delivery of all of the following
other than item 6.2.1:
6.2.1
Deed . A
duly executed and acknowledged grant deed, special warranty deed or
equivalent thereof in the State (a “Deed”) conveying
the Property to Buyer, subject to (collectively the
“Permitted Exceptions”): (i) all Impositions, whether
past due or delinquent, and (ii) all covenants, conditions,
restrictions, rights of way, easements and other matters of record
or which would be disclosed by an accurate survey or physical
inspection of the Property;
6.2.2
Bill of Sale
. A duly executed and acknowledged quit claim bill of
sale conveying any right, title and interest of Seller in and to
any tangible personal property located on or within the Property to
Buyer, without warranty except as expressly set forth therein, in
the form attached hereto as Exhibit
“D” or such other form as reasonably
acceptable to Seller and Buyer.
6.2.3
[Intentionally
Deleted] ;
6.2.4
[Intentionally
Deleted] ;
6.2.5
Seller’s
Certificate . If any
express representation or warranty of Seller set forth in Section 8
hereof needs to be modified due to changes since the Effective
Date, a certificate of Seller, dated as of the Closing Date and
executed on behalf of Seller by a duly authorized representative
thereof, identifying any such representation or warranty which is
not, or no longer is, true and correct and explaining the state of
facts giving rise to the change. In no event shall
Seller have any Liability to Buyer for, or be deemed to be in
default hereunder by reason of any breach of a representation or
warranty set forth in Section 8 hereof which results from any
change that (i) occurs between the Effective Date and the Closing
Date, and (ii) is either expressly permitted under the terms of
this Agreement or beyond the reasonable control of Seller to
prevent. The occurrence of a change in a representation
or warranty which is permitted hereunder or is beyond the
reasonable control of Seller to prevent shall, if materially
adverse to Buyer, constitute the non-fulfillment of the conditions
set forth in Section 5.1.1 hereof. If, despite changes
or other matters described in such certificate, the Closing occurs,
Seller’s representations and warranties set forth in this
Agreement shall be deemed to have been modified by all statements
made in any certificate of Seller delivered pursuant to this
Section 6.2.4;
6.2.6
Evidence of
Authority . Such certificates or documents
as may be reasonably required by Escrow Holder in order to cause
any Title Policy requested by Buyer as provided in Section 6.4
below to be issued and the Close of Escrow to occur; provided,
however, that in no event shall Seller be required to execute and
deliver a so-called owner’s or ALTA affidavit or indemnity or
a mechanics’ lien indemnity with respect to the Property,
except in form and substance acceptable to Seller in its sole, but
reasonable discretion, and in any event any such affidavit shall be
limited to (a) the actual knowledge of Seller (without
investigation or the duty to investigate) and (b) the direct
actions of Seller;
6.2.7
Closing Statement
. A duly executed and acknowledged counterpart of a
joint buyer/seller estimated closing statement to be prepared by
Escrow Holder and delivered to Seller and Buyer (the “Closing
Statement”); and
6.2.8
Additional Items
. Any additional funds and/or instruments, signed and
properly acknowledged by Seller, if appropriate, as may be
necessary to comply with Seller’s obligations under this
Agreement.
6.3
Deposits by Buyer
. At or before 1:00 p.m., local time in Los Angeles,
California, on the date of the Close of Escrow, Buyer shall deliver
or cause to be delivered to Escrow Holder:
6.3.1
Funds
. Immediately available Closing Funds by wire transfer
into Escrow Holder’s depository bank account in an amount
which shall equal the Purchase Price plus all Closing costs,
charges or prorations payable by Buyer hereunder, as the same shall
be more particularly set forth on the Closing
Statement;
6.3.2
[Intentionally
Deleted] ;
6.3.3
[Intentionally
Deleted] ; .
6.3.4
[Intentionally
Deleted] ;
6.3.5
[Intentionally
Deleted] ;
6.3.6
Buyer’s
Certificate . If any
representation or warranty of Buyer set forth in Section 8 hereof
needs to be modified due to changes since the Effective Date, a
certificate of Buyer addressed to Seller, dated as of the Closing
Date and executed on behalf of Buyer by a duly authorized
representative thereof, identifying any such representation or
warranty which is not, or no longer is, true and correct and
explaining the state of facts giving rise to the
change. In no event shall Buyer have any Liability to
Seller for, or be deemed to be in default hereunder by reason of
any breach of a representation or warranty set forth in Section 8
hereof which results from any change that (i) occurs between the
Effective Date and the Closing Date and (ii) is either expressly
permitted under the terms of this Agreement or is beyond the
reasonable control of Buyer to prevent. The occurrence
of a change in a representation or warranty which is permitted
hereunder or is beyond the reasonable control of Buyer to prevent
shall, if materially adverse to Seller, constitute the
non-fulfillment of the conditions set forth in Section 5.4.5
hereof. If, despite changes or other matters described
in such certificate, the Closing occurs, Buyer’s
representations and warranties set forth in this Agreement shall be
deemed to have been modified by all statements made in such
certificate;
6.3.7
Evidence of
Authority . Such certificates or documents
as may be reasonably required by Escrow Holder in order to cause
the Title Policy to be issued and the Close of Escrow to
occur;
6.3.8
Closing Statement
. A duly executed and acknowledged counterpart of the
Closing Statement; and
6.3.9
Additional Items
. Any additional Funds and/or instruments, signed and
properly acknowledged by Buyer, if appropriate, as may be necessary
to comply with Buyer’s obligations under this
Agreement.
6.4
Title Policies . At
the Close of Escrow, but not as a condition thereto, Buyer shall be
entitled to request and obtain from Title Company if so requested
by Buyer, with a copy to be delivered to Seller, a policy of title
insurance with respect to the Property, insuring good and
indefeasible title to the Property vested in Buyer as of the
Closing Date in the amount of the Purchase Price, subject to such
matters of record or apparent as Buyer and Title Company may agree
(a “Title Policy”) and including such endorsements
thereto as Buyer may request and Title Company agrees to issue (the
“Title Endorsements”). The cost of any Title
Policy and all Title Endorsements thereto
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