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Exhibit 10.67.05
[Escondido,
California]
[Puyallup,
Washington]
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 PROPERTIES
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4
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3.
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ESCROW
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5
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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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18
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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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List
of Nominees, Properties/Facilities and Purchase Price
Allocations
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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 Properties (as defined
below).
B.
The Properties are 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 Properties from Seller and
Seller desires to sell the Properties 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
: With respect to each applicable
Property, “Additional Charges,” as defined in the
Emeritus Master Lease and allocable to such Property.
1.3
Additional Rent :
With respect to each applicable Property,
“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 such Property.
1.4
Affiliate :
“Affiliate,” as defined in the Emeritus
Master Lease.
1.5
Allocated Purchase Price :
As defined in Section 4.1.
1.6
Bill of Sale :
As defined in Section 6.2.2.
1.7
Close of Escrow, Closing Date and/or
Closing : As defined in Section
6.1.
1.8
Closing Funds
: As defined in Section
4.4.
1.9
Condemnation
: “Condemnation,” as
defined in the Emeritus Master Lease.
1.10
Condemnor :
“Condemnor,” as defined in the Emeritus
Master Lease.
1.11
Deed : As
defined in Section 6.2.1.
1.12
Earnest Money Deposit :
As defined in the Master Purchase
Agreement.
1.13
Effective Date
: As defined in the preface to this
Agreement.
1.14
Emeritus Master Lease :
That Amended and Restated Master Lease identified on
Exhibit “A” attached hereto
among Lessor and Lessee covering, among other properties, the
Properties, as more particularly described therein, as the same may
have been amended or modified from time to time in accordance with
the terms thereof.
1.15
Emeritus/Summerville Merger
: As defined in the Master Purchase
Agreement.
1.16
Escrow Holder :
As defined in Section 3.1.
1.17
Event of Default :
“Event of Default,” as defined in the Emeritus Master
Lease.
1.18
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.
1.19
Hazardous Substance :
With respect to each applicable Property,
“Hazardous Substance,” as defined in the Emeritus
Master Lease.
1.20
HCP : Health
Care Property Investors, Inc., a Maryland corporation.
1.21
Impositions :
With respect to each applicable Property,
“Impositions,” as defined in the Emeritus Master Lease
with respect to such Property.
1.22
Laws : All
applicable governmental laws, codes, ordinances, regulations,
judgments, permits, approvals or other requirements.
1.23
Lessee :
“Lessee,” as defined in the Emeritus Master
Lease.
1.24
Lessor :
“Lessor,” as defined in the Emeritus Master
Lease.
1.25
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”).
1.26
Master Purchase Agreement
: As defined in Schedule
1 hereto.
1.27
Minimum Rent :
With respect to each applicable Property,
“Minimum Rent,” as defined in the Emeritus Master Lease
with respect to such Property.
1.28
Opening of Escrow :
As defined in Section 3.3.
1.29
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.
1.30
Outside Closing Date :
Subject to extension as provided Section 6.8 below,
August 15, 2007.
1.31
Permitted Exceptions
: With respect to each Property, as
defined in Section 6.2.1.
1.32
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).
1.33
Properties :
Collectively, the “Leased Property” (as
defined in the Emeritus Master Lease) of the
“Facilities” (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 Properties for purposes of this
Agreement include only the “Leased Property” of the
“Facilities” 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
“Facilities” listed on Exhibit
G attached hereto.
1.34
Purchase Price :
As defined in Section 4.1.
1.35
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”).
1.36
Related Purchase Agreement Closing
. The “Closing,” as defined in each Related
Purchase Agreement.
1.37
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.
1.38
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.
1.39
Release of Claims: As defined
in the Master Purchase Agreement.
1.40
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
applicable Properties, through and including the day prior to
Closing Date (prorated to the extent applicable for the month
during which the Closing occurs).
1.41
Summerville :
Summerville Senior Living, Inc., a Delaware
corporation.
1.42
Summerville Master Lease :
As defined in the Master Purchase
Agreement.
1.43
Title Company
: Chicago Title Insurance Company,
Attn: Angie Koetters, Escrow Officer, Fax
No.:(312)223-5888.
1.44
Title Policy :
As defined in Section 6.4.
1.45
Title Endorsements
: As defined in Section
6.4.
1.46
Transaction Documents :
Collectively, this Agreement, the Deeds, the Bills 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.
1.47
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 either
Property.
2.
SALE OF THE
PROPERTIES
Buyer
agrees to purchase and accept from Seller, and Seller agrees
to sell, convey and assign to Buyer, both of the Properties 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
Properties shall be Thirty Million Four Hundred Three Thousand Five
Hundred Thirty-Two Dollars and 00/100ths ($30,403,532.00) (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
Properties 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
Purchase of All the
Properties . The Closing hereunder shall
occur simultaneous with respect to all of the
Properties.
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 EACH OF THE PROPERTIES “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
EITHER OF THE PROPERTIES, 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 each of the Properties, as
well as the fact that Buyer or its Affiliates originally sold to
and/or developed on behalf of Seller each of the Properties 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 each of the
Properties. 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 Properties as provided
herein, Buyer shall have thereby approved all aspects of each of
the Properties 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 Properties (and each of them)
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
Purchase of Both
Properties . The Closing hereunder shall
occur simultaneously with respect to both of the
Properties.
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 applicable Deed or other conveyance instrument is
actually recorded in the land records in which the applicable
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
Deeds
. With respect to each Property, a duly executed and
acknowledged grant deed, special warranty deed or equivalent
thereof in the applicable State (a “Deed”) conveying
the Property in such State to Buyer, in each case 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 such 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 each 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 any 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
each 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
each Property, insuring good and indefeasible title to such
Property vested in Buyer as of the Closing Date in the amount of
the applicable Allocated Purchase Price, sub
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