[(East)
Ocala, Florida]
[New
Port Richey, Florida]
[Lakeland,
Florida]
[Venice,
Florida]
PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
By
and Between
HCP
AL OF FLORIDA, LLC,
a
Delaware limited liability company,
as
“Seller”
and
EMERITUS
CORPORATION,
a
Washington corporation,
as
“Buyer”
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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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6
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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 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 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 HCP AL OF FLORIDA,
LLC, a Delaware limited liability company
(“Seller”) and EMERITUS CORPORATION, a Washington
corporation (“Buyer”), as follows:
RECITALS
A. Seller
is the owner of (or the holder of all of the equity interests
in the owner of) the Properties (as defined
below).
B. The
Properties are currently leased, together with certain other
property, by Seller and certain Affiliates (as defined below)
of Seller to Lessee (as defined below) pursuant to the
Summerville Master Lease (as defined below).
C. Buyer
desires to purchase the Properties from Seller and Seller
desires to sell (or cause to be sold) 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
Summerville Master Lease and allocable to such
Property.
1.3
Affiliate :
“Affiliate,” as defined in the Emeritus
Master Lease.
1.4
Allocated Purchase Price :
As defined in Section 4.1.
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 :
As defined in the Master Purchase
Agreement.
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 Summerville
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 :
With respect to each applicable Property,
“Hazardous Substance,” as defined in the Summerville
Master Lease.
1.19
HCP : Health
Care Property Investors, Inc., a Maryland corporation.
1.20
Impositions :
With respect to each applicable Property,
“Impositions,” as defined in the Summerville Master
Lease.
1.21
Laws : All
applicable governmental laws, codes, ordinances, regulations,
judgments, permits, approvals or other requirements.
1.22
Lessee :
“Lessee,” as defined in the Summerville
Master Lease.
1.23
Lessor :
“Lessor,” as defined in the Summerville
Master Lease, subject to the terms of the Master Purchase
Agreement.
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 :
With respect to each applicable Property, “Minimum
Rent,” as defined in the Summerville Master Lease with
respect to such 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
: With respect to each Property, 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
Properties :
Collectively, the “Leased Property” (as
defined in the Summerville Master Lease) of those
“Facilities” (as defined in the Summerville Master
Lease) listed on Exhibit G attached hereto,
less any portion of any which has been taken by reason of any
Condemnation or other exercise of the power of eminent domain
(each, a “Property”). The parties
acknowledge and agree that the Properties for purposes of this
Agreement do not include the “Leased Property” of all
of the Facilities covered by the Summerville Master Lease and only
includes those Facilities identified on Exhibit
G attached hereto, 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 Seller and/or its Affiliates to
Buyer pursuant to the Related Purchase Agreements as more
particularly described therein.
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 and any Additional
Charges (whether or not billed) payable by the Lessee under the
Summerville 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).
1.40
Summerville :
Summerville Senior Living, Inc., a Delaware
corporation.
1.41
Summerville Master Lease :
That Amended and Restated Master Lease identified on
Exhibit “A” attached hereto
among Lessor and Lessee covering the Properties 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.
1.42
Title Company
: Chicago Title Insurance Company,
Attn: Angie Koetters, Escrow Officer, Fax
No.:(312)223-5888.
1.43
Title Policies
: As defined in Section
6.4.
1.44
Title Endorsements
: As defined in Section
6.4.
1.45
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.
1.46
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 any Property.
2.
SALE OF THE PROPERTIES
Subject
to the terms of the Addendum attached hereto, Buyer agrees to
purchase and accept from Seller, and Seller agrees 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
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 Forty-One Million Six Hundred
Ninety-Seven Thousand Two Hundred Seven Dollars and 00/100ths
($41,697,207.00) (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. 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 and in the
Addendum attached hereto 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 and the Addendum hereto 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 AND THE
ADDENDUM HERETO. IN PARTICULAR, EXCEPT AS EXPRESSLY SET
FORTH IN SECTION 8 BELOW AND THE ADDENDUM HERETO, SELLER MAKES 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 Summerville 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 each 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 Summerville 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 Summerville Master Lease shall
have occurred and be continuing and (b) all Rent and Charges
shall be paid as and when due under the Summerville 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 and the Addendum hereto
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 and the Addendum hereto 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 (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 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 or in the Addendum
hereto 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 or in the Addendum hereto
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 or the Addendum hereto 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 and the Addendum hereto 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 and the Addendum hereto 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, subject to such
matters of record or apparent as Buyer and Title Company may agree
(each, a “Title Policy”) and including such
endorsements thereto as Buyer may request and Title Company agrees
to issue (the “Title Endorsements”). The
cost of each Title Policy and all Title Endorsements thereto shall
be borne by the parties as provided in Section 6.6
below.
