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Exhibit 10.67.06
[Lewiston, Idaho
Morristown,
Tennessee
Stockton,
California]
PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
By
and Between
HEALTH
CARE PROPERTY INVESTORS, INC.,
a
Maryland corporation
and
FAEC
HOLDINGS (EP), LLC,
a
Delaware limited liability company,
each
a “Seller,” and collectively, as
“Sellers”
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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5
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3.
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ESCROW
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6
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4.
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PURCHASE
PRICE; ALLOCATION OF PURCHASE PRICE
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6
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5.
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CONDITIONS
TO CLOSING; AS IS PURCHASE
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7
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6.
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CLOSING
OF ESCROW
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9
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7.
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TERMINATION
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14
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8.
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REPRESENTATIONS
AND WARRANTIES
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16
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9.
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CERTAIN
EVENTS PRIOR TO CLOSING
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18
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10.
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POST-CLOSING
MATTERS
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19
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11.
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BROKERS
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19
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12.
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MISCELLANEOUS
PROVISIONS
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19
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EXHIBITS
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A-1
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Description
of Emeritus Master Lease
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A-2
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Description
of Summerville 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 Sellers, 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
(“HCP”), and FAEC HOLDINGS (EP), LLC, a Delaware
limited liability company (“FAEC”) (each, a
“Seller,” and collectively, “Sellers”)
and EMERITUS CORPORATION, a Washington corporation
(“Buyer”), as follows:
RECITALS
A.
Each
Seller is the owner of one or more the Properties (as defined
below) as indicated opposite the name of such Property on
Exhibit “G” attached
hereto.
B.
The
Properties comprising the Emeritus Properties (as defined
below) are currently leased by the applicable Seller or
Sellers to Buyer and/or certain Affiliates (as defined below)
of Buyer pursuant to the Emeritus Master Lease (as defined
below).
C.
The
Property comprising the Summerville Property (as defined
below) is currently leased, together with certain other
property, by the applicable Seller or Sellers to Summerville
Lessee (as defined below) pursuant to the Summerville Master
Lease (as defined below).
D.
Buyer
desires to purchase the Properties from Sellers and Sellers
desire 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
Sellers 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
applicable Master Lease and allocable to such
Property.
1.3
Additional Rent :
With respect to each applicable Emeritus
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 Lessee :
“Lessee,” as defined in the Emeritus Master
Lease
1.15
Emeritus Lessor :
“Lessor,” as defined in the Emeritus Master
Lease.
1.16
Emeritus Master Lease :
That Amended and Restated Master Lease identified on
Exhibit “A-1” attached hereto
among the Emeritus Lessor and the Emeritus Lessee covering, among
other properties, the Emeritus 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.
1.17
Emeritus Properties :
Collectively, the “Leased Property” (as
defined in the Emeritus Master Lease) of each
“Facility” (as defined in the Emeritus Master Lease)
listed on Exhibit G attached hereto as
“Emeritus Properties,” less any portion of any which
has been taken by reason of any Condemnation or other exercise of
the power of eminent domain (each, an “Emeritus
Property”). The parties acknowledge that the
Emeritus 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 Sellers and/or their Affiliates are selling and
Buyer is purchasing all of the respective 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 each “Facility” listed on
Exhibit G attached hereto.
1.18
Emeritus/Summerville Merger
: As defined in the Master Purchase
Agreement.
1.19
Escrow Holder :
As defined in Section 3.1.
1.20
Event of Default :
“Event of Default,” as defined in the applicable Master
Lease with respect to such Property.
1.21
FAEC : As
defined in the preface to this Agreement.
1.22
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.
1.23
Hazardous Substance :
With respect to each applicable Property,
“Hazardous Substance,” as defined in the applicable
Master Lease with respect to such Property.
1.24
HCP : As
defined in the preface to this Agreement.
1.25
Impositions :
With respect to each applicable Property,
“Impositions,” as defined in the applicable Master
Lease with respect to such Property.
1.26
Laws : All
applicable governmental laws, codes, ordinances, regulations,
judgments, permits, approvals or other requirements.
1.27
Lessee : With
respect to (i) the Emeritus Master Lease, the Emeritus Lessee and
(ii) the Summerville Master Lease, the Summerville
Lessee.
1.28
Lessor : With
respect to (i) the Emeritus Master Lease, the Emeritus Lessor and
(ii) the Summerville Master Lease, the Summerville
Lessor.
1.29
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”).
1.30
Master Leases :
Collectively, the Emeritus Master Lease and the
Summerville Master Lease (each, a “Master
Lease”).
1.31
Master Purchase Agreement
: As defined in Schedule
1 hereto.
1.32
Minimum Rent :
With respect to each applicable Property, “Minimum
Rent,” as defined in the applicable Master Lease with respect
to such Property.
1.33
Opening of Escrow :
As defined in Section 3.3.
1.34
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.
1.35
Outside Closing Date :
Subject to extension as provided Section 6.8 below,
August 15, 2007.
1.36
Permitted Exceptions
: With respect to each Property, as
defined in Section 6.2.1.
1.37
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).
1.38
Properties :
Collectively, the Emeritus Properties and the
Summerville Property (each, a “Property”).
1.39
Purchase Price :
As defined in Section 4.1.
1.40
Related Purchase Agreements
: The agreements identified on Schedule
1 attached hereto between and/or among Sellers or
certain Affiliates of Sellers, 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”).
1.41
Related Purchase Agreement Closing
. The “Closing,” as defined in each Related
Purchase Agreement.
1.42
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.
1.43
Related Purchase Agreement Seller Default
. The occurrence of a default (i.e.,
after any applicable notice or cure period) by Sellers or any
Affiliate of Sellers under any Related Purchase
Agreement.
1.44
Release of Claims: As defined
in the Master Purchase Agreement.
1.45
Rent and Charges :
All accrued and unpaid Minimum Rent, Additional Rent,
and any Additional Charges (whether or not billed) payable by the
applicable Lessee under the applicable 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).
1.46
Summerville :
Summerville Senior Living, Inc., a Delaware
corporation.
1.47
Summerville Lessee :
“Lessee,” as defined in the Summerville
Master Lease.
1.48
Summerville Lessor :
“Lessor,” as defined in the Summerville
Master Lease, subject to the terms of the Master Purchase
Agreement.
1.49
Summerville Master Lease :
That Amended and Restated Master Lease identified on
Exhibit “A-2” attached hereto
among the Summerville Lessor and the Summerville Lessee covering
the Summerville Property and certain other property as more
particularly described therein, as the same may have been or may
hereafter be further amended or modified from time to time in
accordance with the terms thereof.
1.50
Summerville Property :
Collectively, the “Leased Property” (as
defined in the Summerville Master Lease) of that
“Facility” (as defined in the Summerville Master Lease)
listed on Exhibit G attached hereto as the
“Summerville Property,” less any portion of any which
has been taken by reason of any Condemnation or other exercise of
the power of eminent domain. The parties acknowledge and
agree that the Summerville Property for purposes of this Agreement
does not include the “Leased Property” of all of the
Facilities covered by the Summerville Master Lease and only
includes the Facility identified on Exhibit
G attached hereto as the “Summerville
Property,” and that the “Leased
Property” of certain other
“Facilities” (but not all other
“Facilities”) covered by the Summerville Master Lease
are being sold and conveyed by Sellers and/or their Affiliates to
Buyer pursuant to a Related Purchase Agreement as more particularly
described therein.
1.51
Title Company
: Chicago Title Insurance Company,
Attn: Angie Koetters, Escrow Officer, Fax
No.:(312)223-5888.
1.52
Title Policies
: As defined in Section
6.4.
1.53
Title Endorsements
: As defined in Section
6.4.
1.54
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.
1.55
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 any Property.
2.
SALE OF THE PROPERTIES
Buyer
agrees to purchase and accept from Sellers, and Sellers agree
to sell, convey and assign to Buyer, all 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 each
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 Sellers and each Related Purchase Agreement by the
Parties thereto. Escrow Holder shall immediately notify
Buyer, Sellers 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 Twenty-Five Million Eight Hundred
Ninety-Four Thousand Three Hundred Ninety-Nine Dollars and
00/100ths ($25,894,399.00) (the “Purchase
Price”). The Purchase Price shall be allocated
among the Properties as set forth on Exhibit
“G” attached hereto and incorporated
herein by this reference (with respect each Property, the
“Allocated 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. Sellers
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
Sellers’ Representations
and Warranties . The representations and
warranties of each 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
Sellers’
Performance . Each Seller shall have
performed all of its obligations under this Agreement which by the
terms of this Agreement are required to be performed by such 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 Sellers 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 SELLERS, OR ANY OF THEM, 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, SELLERS MAKE NO REPRESENTATION OR WARRANTY
RESPECTING THE USE, CONDITION, TITLE, OPERATION OR MANAGEMENT OF
ANY 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, Summerville or their respective
Affiliates originally sold to and/or developed on behalf of each
applicable 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 any 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 Sellers, and each of them. In
furtherance of the foregoing, at the Closing, Buyer shall and shall
cause each Lessee to execute and deliver to Sellers the Release of
Claims. The provisions of this Section 5.3 shall survive the
Closing.
5.4
Seller’s Conditions
. Provided that Sellers are not in breach or default of
any provision of this Agreement, the obligation of each 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. Sellers 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 Sellers in
writing.
5.4.1
No Default Under Master Leases
. 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 the applicable Lessee under any Master Lease
shall have occurred and be continuing and (b) all Rent and
Charges shall be paid as and when due under each Master Lease,
through but not including the Closing Date.
5.4.2
Purchase of All Properties .
The Closing hereunder shall occur
simultaneously with respect to all 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
Sellers’ Approval, Disapproval or Waiver of
Conditions . Prior to the Closing,
Sellers 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 Sellers;
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 Sellers or any Affiliate of Sellers, then
Sellers 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
Sellers hereunder. In the event that Sellers are not
entitled to disapprove a condition or Sellers fail to approve,
disapprove or waive such condition, if applicable, prior to the
Closing, then such condition shall be deemed conclusively satisfied
or waived by Sellers and thereafter shall not be a condition
precedent to the performance by Sellers of their respective
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 Sellers 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 Sellers . 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, Sellers 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 (each 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 each applicable 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 Sellers 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 any Seller set forth in Section 8 hereof needs to be
modified due to changes since the Effective Date, a certificate of
such Seller, dated as of the Closing Date and executed on behalf of
such 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 any 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 such Seller to
prevent. The occurrence of a change in a representation
or warranty which is permitted hereunder or is beyond the
reasonable control of any 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,
any applicable 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 such 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 any 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
such Seller in its sole, but reasonable discretion, and in any
event any such affidavit shall be limited to (a) the actual
knowledge of such 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 Sellers and Buyer (the “Closing
Statement”); and
6.2.8
Additional Items . Any
additional funds and/or instruments, signed and properly
acknowledged by Sellers, if appropriate, as may be necessary to
comply with Sellers’ 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 Sellers, 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.&nbs
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