PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS
PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
(this “Agreement”) is made and entered into as of
July 31, 2007 to be effective as of June 14, 2007 (the
“Effective Date”), by and among HEALTH CARE
PROPERTY INVESTORS, INC., a Maryland corporation
(“Seller”) and EMERITUS CORPORATION, a Washington
corporation (“Buyer”), as follows:
RECITALS
A.
Seller is the owner of the Property (as defined
below).
B.
The Property is currently leased, together
with certain other property, by Seller and/or certain
Affiliates (as defined below) of Seller to Buyer and/or
certain Affiliates of Buyer pursuant to the Emeritus Master
Lease (as defined below).
C.
Buyer desires to purchase the Property from Seller and
Seller desires to sell the Property to Buyer on the terms and
subject to the conditions set forth herein.
AGREEMENT
NOW,
THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Buyer and
Seller agree as follows:
1.
DEFINITIONS
For
all purposes of this Agreement, except as otherwise expressly
provided herein or unless the context otherwise requires, (i)
the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular; (ii) all references in this Agreement to designated
“Articles,” “Sections” and other
subdivisions are to the designated Articles, Sections and
other subdivisions of this Agreement; (iii) the word
“including” shall have the same meaning as the
phrase “including, without limitation,” and other
phrases of similar import; and (iv) the words
“herein,” “hereof” and
“hereunder” and other words of similar import
refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
1.1
1031 Exchange :
As defined in Section 6.8.
1.2
Additional Charges
: “Additional Charges,” as
defined in the Emeritus Master Lease and allocable to the
Property.
1.3
Additional Rent :
“Additional Rent,” as defined in the
Emeritus Master Lease (including “Percentage Rent” and
“CPI Rent,” as each are defined in the Emeritus Master
Lease) and allocable to the Property.
1.4
Affiliate :
“Affiliate,” as defined in the Emeritus
Master Lease.
1.5
Bill of Sale :
As defined in Section 6.2.2.
1.6
Close of Escrow, Closing Date and/or
Closing : As defined in Section
6.1.
1.7
Closing Funds
: As defined in Section
4.4.
1.8
Condemnation :
“Condemnation,” as defined in the Emeritus
Master Lease.
1.9
Condemnor :
“Condemnor,” as defined in the Emeritus
Master Lease.
1.10
Deed : As
defined in Section 6.2.1.
1.11
Earnest Money Deposit :
As defined in the Master Purchase
Agreement.
1.12
Effective Date
: As defined in the preface to this
Agreement.
1.13
Emeritus Master Lease :
That Amended and Restated Master Lease identified on
Exhibit “A” attached hereto
among Lessor and Lessee covering, among other properties, the
Property, as more particularly described therein, as the same may
have been amended or modified from time to time in accordance with
the terms thereof.
1.14
Emeritus/Summerville Merger
: As defined in the Master Purchase
Agreement.
1.15
Escrow Holder :
As defined in Section 3.1.
1.16
Event of Default :
“Event of Default,” as defined in the Emeritus Master
Lease.
1.17
Funds :
Immediately available funds in the form of cash, wire
transfer of funds, or a certified or bank cashier’s check
drawn on a reputable financial institution acceptable to Escrow
Holder.
1.18
Hazardous Substance :
“Hazardous Substance,” as defined in the
Emeritus Master Lease.
1.19
HCP : Health
Care Property Investors, Inc., a Maryland corporation.
1.20
Impositions :
“Impositions,” as defined in the Emeritus
Master Lease with respect to the Property.
1.21
Laws : All
applicable governmental laws, codes, ordinances, regulations,
judgments, permits, approvals or other requirements.
1.22
Lessee :
“Lessee,” as defined in the Emeritus Master
Lease.
1.23
Lessor :
“Lessor,” as defined in the Emeritus Master
Lease.
1.24
Liabilities : Any claim,
liability, loss, cost, action, damage, expense or fees, including
but not limited to reasonable attorney’s and
paralegals’ fees and costs of defense (each, a
“Liability”).
1.25
Master Purchase Agreement
: As defined in Schedule
1 hereto.
1.26
Minimum Rent :
“Minimum Rent,” as defined in the Emeritus Master Lease
with respect to the Property.
1.27
Opening of Escrow :
As defined in Section 3.3.
1.28
Organizational Documents :
Collectively, as applicable, the articles or
certificate of incorporation, certificate of limited partnership or
certificate of limited liability company, bylaws, partnership
agreement, operating company agreement, trust agreement, statements
of partnership, fictitious business name filings and all other
organizational documents relating to the creation, formation and/or
existence of a business entity, together with resolutions of the
board of directors, partner or member consents, trustee
certificates, incumbency certificates and all other documents or
instruments approving or authorizing the transactions contemplated
by this Agreement.
1.29
Outside Closing Date :
Subject to extension as provided Section 6.8 below,
August 15, 2007.
1.30
Permitted Exceptions
: As defined in Section
6.2.1.
1.31
Person : Any
individual, corporation, partnership, joint venture, limited
liability partnership, limited liability company, association,
joint stock company, trust, unincorporated organization, whether or
not a legal entity, or other business or governmental entity or
authority (or any department, agency, or political subdivision
thereof).
1.32
Property : The
“Leased Property” (as defined in the Emeritus Master
Lease) of the “Facility” (as defined in the Emeritus
Master Lease) listed on Exhibit G attached
hereto, less any portion which has been taken by reason of any
Condemnation or other exercise of the power of eminent
domain. The parties acknowledge that the Property for
purposes of this Agreement includes only the “Leased
Property” of the “Facility” listed on
Exhibit G attached hereto, and that the
balance of the “Leased Property” of each
“Facility” covered by the Emeritus Master Lease, but
not covered by this Agreement is being sold and conveyed to Buyer
pursuant to the Master Purchase Agreement or another Related
Purchase Agreement. In other words, pursuant to this
Agreement, the Master Purchase Agreement and the other Related
Purchase Agreements Seller and/or its Affiliates are selling and
Buyer is purchasing all of Seller’s and/or its
Affiliates’ right, title and interest in and to the
“Leased Property” of all of the
“Facilities” covered by the Emeritus Master Lease upon
the Closing hereunder and the Related Purchase Agreement Closing
under each applicable Related Purchase Agreement, but this
Agreement is intended to and only covers the “Leased
Property” of the “Facility” listed on
Exhibit G attached hereto.
1.33
Purchase Price :
As defined in Section 4.1.
1.34
Related Purchase Agreements
: The agreements identified on Schedule
1 attached hereto between and/or among Seller or
certain Affiliates of Seller, and Buyer, or certain Affiliates of
Buyer, relating to certain purchase and sale transactions to be
consummated concurrently with the Closing hereunder, if at all
(each, a “Related Purchase Agreement”).
1.35
Related Purchase Agreement Closing
. The “Closing,” as defined in each Related
Purchase Agreement.
1.36
Related Purchase Agreement Buyer Default
. The occurrence of a default (i.e., after any
applicable notice or cure period) by Buyer or any Affiliate of
Buyer under any Related Purchase Agreement.
1.37
Related Purchase Agreement Seller Default
. The occurrence of a default (i.e.,
after any applicable notice or cure period) by Seller or any
Affiliate of Seller under any Related Purchase
Agreement.
1.38
Release of Claims: As defined
in the Master Purchase Agreement.
1.39
Rent and Charges :
All accrued and unpaid Minimum Rent, Additional Rent,
and any Additional Charges (whether or not billed) payable by the
Lessee under the Emeritus Master Lease with respect to the
Property, through and including the day prior to Closing Date
(prorated to the extent applicable for the month during which the
Closing occurs).
1.40
Summerville :
Summerville Senior Living, Inc., a Delaware
corporation.
1.41
Summerville Master Lease :
As defined in the Master Purchase
Agreement.
1.42
Title Company
: Chicago Title Insurance Company,
Attn: Angie Koetters, Escrow Officer, Fax
No.:(312)223-5888.
1.43
Title Policy :
As defined in Section 6.4.
1.44
Title Endorsements
: As defined in Section
6.4.
1.45
Transaction Documents :
Collectively, this Agreement, the Deed, the Bill of
Sale, each Related Purchase Agreement, and all other agreements,
documents and/or instruments to be executed and/or delivered
pursuant to and in connection with this Agreement, the Related
Purchase Agreements and/or the Exhibits hereto or
thereto.
1.46
Transaction Taxes . Any and all
federal, state, municipal or other local Law documentary transfer,
stamp, sales, use, excise, privilege or similar tax, fee or charge
payable in connection with the delivery of any instrument or
document provided in or contemplated by this Agreement, any Related
Purchase Agreement or the Exhibits hereto and thereto together with
interest and penalties, if any, thereon, including any sales or
similar taxes payable in connection with the transfer of any
personal property comprising a part of the Property.
2.
SALE OF THE PROPERTY
Buyer
agrees to purchase and accept from Seller, and Seller agrees
to sell, convey and assign to Buyer, the Property on the terms
and subject to the conditions set forth herein.
3.
ESCROW
3.1
General Instructions . Title
Company is also hereby designated as escrow holder (sometimes
herein referred to as “Escrow
Holder”). Escrow Holder’s Escrow number,
Escrow Officer for the transactions contemplated hereby and under
the Related Purchase Agreements, address for notices and wiring
information is set forth below Title Company’s acceptance of
this Escrow. Escrow Holder’s general conditions or
provisions, which are attached hereto as Exhibit
“B” are incorporated by reference herein;
provided, however, that in the event of any inconsistency between
Exhibit “B” and any of the
provisions of this Agreement or any Related Purchase Agreement, the
provisions of this Agreement or the Related Purchase Agreement, as
applicable, shall control, respectively. Buyer and
Seller shall each execute, deliver and be bound by such further
escrow instructions or other instruments as may be reasonably
requested by the other party or by Escrow Holder from time to time,
so long as the same are consistent with this
Agreement. Escrow Holder shall not comply with the
unilateral instructions of only one party without the consent of
the other party hereto unless otherwise expressly required to do so
in this Agreement or any Related Purchase Agreement.
3.2
Tax Reporting Person . For
purposes of complying with Internal Revenue Code § 6045(e), as
amended effective January 1, 1991, Escrow Holder is hereby
designated as the “person responsible for closing the
transaction,” and also as the “reporting person”
for purposes of filing any information returns with the Internal
Revenue Service concerning this transaction, as required by
law.
3.3
Opening of Escrow . Escrow shall
be deemed open when not less than four (4) originals of this
Agreement and each Related Agreement, fully signed by all parties
hereto or thereto either together or in counterparts, are delivered
to Escrow Holder (the “Opening of Escrow”), which shall
occur within one (1) business day after execution of this Agreement
by Buyer and Seller and each Related Purchase Agreement by the
Parties thereto. Escrow Holder shall immediately notify
Buyer, Seller and their respective attorneys in writing of the
official date of the Opening of Escrow.
4.
PURCHASE PRICE; ALLOCATION OF PURCHASE
PRICE
4.1
Purchase Price . The purchase
price for the Property shall be Eight Million One Hundred
Ninety-Five Thousand Four Hundred Forty-Five Dollars and 00/100ths
($8,195,445.00) (the “Purchase Price”).
4.2
[Intentionally Deleted.]
4.3
[Intentionally Deleted.]
4.4
Closing Funds . No later than
2:00 p.m., Pacific Standard Time, on the Closing Date, Escrow
Holder shall calculate and Buyer shall wire Funds into Escrow
(using wiring instructions reasonably satisfactory to Escrow
Holder) in an amount which shall equal the Purchase Price plus any
other sums payable by Buyer hereunder (the “Closing
Funds”).
5.
CONDITIONS TO CLOSING; AS IS PURCHASE
5.1
Buyer’s Conditions . Provided that
Buyer is not in breach or default of any provisions of this
Agreement, the obligation of Buyer to purchase the Property shall
be subject to satisfaction of each of the conditions set forth in
this Section 5.1 on and as of the Closing Date. Seller
and Buyer expressly acknowledge and agree that each of the
conditions set forth in this Section 5.1 is for the benefit of and
may be waived only by Buyer as herein provided.
5.1.1
Seller’s Representations and
Warranties . The representations and
warranties of Seller set forth in Section 8 below shall be true and
correct in all material respects on the Closing Date as if made
again on the Closing Date.
5.1.2
Seller’s Performance
. Seller shall have performed all of its obligations
under this Agreement which by the terms of this Agreement are
required to be performed by Seller as of or prior to the Closing
Date.
5.1.3
[Intentionally Omitted] .
5.1.4
Occurrence of the Closing by the Outside
Date . The Closing hereunder shall occur on
or before the Outside Closing Date.
5.1.5
Related Purchase Agreements
. The Related Purchase Agreement Closing under each
Related Purchase Agreement shall occur simultaneous with the
Closing. In addition, no Related Purchase Agreement
Seller Default under any Related Purchase Agreement shall have
occurred and be continuing.
5.2
Buyer’s Approval, Disapproval or Waiver of
Conditions . Prior to
Closing Buyer shall notify Seller and Escrow Holder in writing in
the event that as of the date of Closing, any of the conditions set
forth in Section 5.1 have not been satisfied or waived by Buyer;
provided, however, that if any of the conditions set forth in
Sections 5.1.3, 5.1.4 or 5.1.5 have not been satisfied
as a result of any act or omission of Buyer or any Affiliate of
Buyer, then Buyer shall not be entitled to disapprove such
condition, but rather the same shall, following any applicable
notice and cure period pursuant to Section 7.2 below, constitute a
default by Buyer hereunder. In the event that Buyer is
not entitled to disapprove a condition or Buyer fails to approve,
disapprove or waive such condition, if applicable, within the time
and in the manner herein specified, then such condition shall be
deemed conclusively satisfied or waived by Buyer and thereafter
shall not be a condition precedent to the performance by Buyer of
its respective obligations hereunder.
5.3
“ AS IS” SALE
. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT BUYER IS
ACQUIRING THE PROPERTY “AS IS,” IN ITS PRESENT STATE
AND CONDITION, WITHOUT ANY REPRESENTATIONS OR WARRANTIES FROM
SELLER OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED, EXCEPT AS
EXPRESSLY SET FORTH IN SECTION 8 BELOW. IN PARTICULAR,
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 BELOW, SELLER MAKES NO
REPRESENTATION OR WARRANTY RESPECTING THE USE, CONDITION, TITLE,
OPERATION OR MANAGEMENT OF THE PROPERTY, OR COMPLIANCE WITH ANY
APPLICABLE LAWS RELATING TO ZONING, SUBDIVISION, PLANNING,
BUILDINGS, FIRE, SAFETY, EARTHQUAKE, HEALTH OR ENVIRONMENTAL
MATTERS, THE PRESENCE OR ABSENCE OF HAZARDOUS SUBSTANCES, OR
COMPLIANCE WITH ANY OTHER COVENANTS, CONDITIONS AND RESTRICTIONS
(WHETHER OR NOT OF RECORD). Buyer represents that it is
knowledgeable in real estate matters and is relying upon
Buyer’s own investigation and analysis in purchasing the
Property, as well as the fact that Buyer or its Affiliates
originally sold to and/or developed on behalf of Seller the
Property and at all times thereafter have leased and exclusively
controlled the same. Buyer further represents that it
has had ample opportunity to inspect and has, in fact, made all of
the investigations Buyer deems necessary in purchasing the
Property. As a result, Buyer hereby expressly waives any
notice requirements which may be imposed upon Seller pursuant to
§ 25359.7 of the California Health & Safety Code or any
other similar and applicable Laws. If this Agreement is
not terminated and Buyer acquires the Property as provided herein,
Buyer shall have thereby approved all aspects of the Property and
this transaction and thereby waives any claim or Liability against
Seller. In furtherance of the foregoing, at the Closing,
Buyer shall and shall cause Lessee to execute and deliver to Seller
the Release of Claims. The provisions of this Section 5.3 shall
survive the Closing.
5.4
Seller’s Conditions
. Provided that Seller is not in breach or default of
any provision of this Agreement, the obligation of Seller to sell
the Property shall be subject to satisfaction of each of the
conditions set forth in this Section 5.4. Seller and
Buyer expressly acknowledge and agree that each of the conditions
set forth in this Section 5.4 is for the benefit of and may be
waived only by Seller in writing.
5.4.1
No Default Under Emeritus Master Lease
. Prior to the Closing, (a) no Event of Default, or
event which with notice and/or passage of time would constitute an
Event of Default by Lessee under the Emeritus Master Lease shall
have occurred and be continuing and (b) all Rent and Charges
shall be paid as and when due under the Emeritus Master Lease,
through but not including the Closing Date.
5.4.2
[Intentionally Omitted] .
5.4.3
Occurrence of Closing by the Outside Closing
Date . The Closing shall occur on or before
the Outside Closing Date.
5.4.4
Related Purchase Agreements
. The Related Purchase Agreement Closing under each
Related Purchase Agreement shall occur simultaneous with the
Closing. In addition, no Related Purchase Agreement
Buyer Default under any Related Purchase Agreement shall have
occurred and be continuing.
5.4.5
Buyer’s Representations and
Warranties . Buyer’s representations
and warranties set forth in Section 8 below shall be true and
correct in all material respects on the Closing Date as if made
again on the Closing Date.
5.4.6
Buyer’s Performance
. Buyer shall have performed all of its obligations
under this Agreement which by the terms of the Agreement are
required to be performed by Buyer as of or prior to the Closing
Date.
5.5
Seller’s Approval, Disapproval or Waiver of
Conditions . Prior to the Closing,
Seller shall notify Buyer and Escrow Holder in writing in the event
that as of the date of Closing, any of the conditions set forth in
Section 5.4 have not been satisfied or waived by Seller; provided,
however, that if any of the conditions set forth in Sections 5.4.2
, 5.4.3 or 5.4.4 have not been satisfied as a result of any act or
omission of Seller or any Affiliate of Seller, then Seller shall
not be entitled to disapprove such condition, but rather the same
shall, following any applicable notice and cure period pursuant to
Section 7.2 below, constitute a default by Seller
hereunder. In the event that Seller is not entitled to
disapprove a condition or Seller fails to approve, disapprove or
waive such condition, if applicable, prior to the Closing, then
such condition shall be deemed conclusively satisfied or waived by
Seller and thereafter shall not be a condition precedent to the
performance by Seller of its obligations hereunder.
6.
CLOSING OF ESCROW
6.1
Closing Date . Subject to
extension in order to implement the provisions of Section 6.8, and
unless this Agreement has been earlier terminated in accordance
with the applicable provisions of Section 7 below, Escrow shall
close on the Outside Closing Date; provided, however, that subject
to satisfaction or waiver of each of the conditions set forth in
Sections 5.1 and 5.4, Buyer shall be entitled to close Escrow prior
to the Outside Closing Date upon not less than five (5) days’
notice to Seller and Escrow Holder; provided further, however, that
in no event shall the closing occur prior to July 31,
2007. The terms “Close of Escrow” and/or
“Closing” are used in this Agreement to mean the time
and date the transactions contemplated hereby are closed and the
Deed or other applicable conveyance instrument has been delivered
to Buyer through Escrow, regardless whether the Deed or other
conveyance instrument is actually recorded in the land records in
which the Property is situated. The term “Closing
Date” as used in this Agreement means the date that the
Closing occurs.
6.2
Deposits by Seller . At or
before 5:00 p.m., local time in Los Angeles, California, on that
date which is not less than one (1) business day before the Close
of Escrow, Seller shall deliver or cause to be delivered to Escrow
Holder the following items for handling as described below;
provided, however, that Escrow need not be concerned with the form
or content but only with manual delivery of all of the following
other than item 6.2.1:
6.2.1
Deed . A duly executed and
acknowledged grant deed, special warranty deed or equivalent
thereof in the State (a “Deed”) conveying the Property
to Buyer, subject to (collectively the “Permitted
Exceptions”): (i) all Impositions, whether past due or
delinquent, and (ii) all covenants, conditions, restrictions,
rights of way, easements and other matters of record or which would
be disclosed by an accurate survey or physical inspection of the
Property;
6.2.2
Bill of Sale . A duly executed
and acknowledged quit claim bill of sale conveying any right, title
and interest of Seller in and to any tangible personal property
located on or within the Property to Buyer, without warranty except
as expressly set forth therein, in the form attached hereto as
Exhibit “D” or such other form
as reasonably acceptable to Seller and Buyer.
6.2.3
[Intentionally Deleted] ;
6.2.4
[Intentionally Deleted] ;
6.2.5
Seller’s Certificate
. If any express representation or
warranty of Seller set forth in Section 8 hereof needs to be
modified due to changes since the Effective Date, a certificate of
Seller, dated as of the Closing Date and executed on behalf of
Seller by a duly authorized representative thereof, identifying any
such representation or warranty which is not, or no longer is, true
and correct and explaining the state of facts giving rise to the
change. In no event shall Seller have any Liability to
Buyer for, or be deemed to be in default hereunder by reason of any
breach of a representation or warranty set forth in Section 8
hereof which results from any change that (i) occurs between the
Effective Date and the Closing Date, and (ii) is either expressly
permitted under the terms of this Agreement or beyond the
reasonable control of Seller to prevent. The occurrence
of a change in a representation or warranty which is permitted
hereunder or is beyond the reasonable control of Seller to prevent
shall, if materially adverse to Buyer, constitute the
non-fulfillment of the conditions set forth in Section 5.1.1
hereof. If, despite changes or other matters described
in such certificate, the Closing occurs, Seller’s
representations and warranties set forth in this Agreement shall be
deemed to have been modified by all statements made in any
certificate of Seller delivered pursuant to this Section
6.2.4;
6.2.6
Evidence of Authority . Such
certificates or documents as may be reasonably required by Escrow
Holder in order to cause any Title Policy requested by Buyer as
provided in Section 6.4 below to be issued and the Close of Escrow
to occur; provided, however, that in no event shall Seller be
required to execute and deliver a so-called owner’s or ALTA
affidavit or indemnity or a mechanics’ lien indemnity with
respect to the Property, except in form and substance acceptable to
Seller in its sole, but reasonable discretion, and in any event any
such affidavit shall be limited to (a) the actual knowledge of
Seller (without investigation or the duty to investigate) and (b)
the direct actions of Seller;
6.2.7
Closing Statement . A duly
executed and acknowledged counterpart of a joint buyer/seller
estimated closing statement to be prepared by Escrow Holder and
delivered to Seller and Buyer (the “Closing
Statement”); and
6.2.8
Additional Items . Any
additional funds and/or instruments, signed and properly
acknowledged by Seller, if appropriate, as may be necessary to
comply with Seller’s obligations under this
Agreement.
6.3
Deposits by Buyer . At or before
1:00 p.m., local time in Los Angeles, California, on the date of
the Close of Escrow, Buyer shall deliver or cause to be delivered
to Escrow Holder:
6.3.1
Funds . Immediately available
Closing Funds by wire transfer into Escrow Holder’s
depository bank account in an amount which shall equal the Purchase
Price plus all Closing costs, charges or prorations payable by
Buyer hereunder, as the same shall be more particularly set forth
on the Closing Statement;
6.3.2
[Intentionally Deleted] ;
6.3.3
[Intentionally Deleted] ; .
6.3.4
[Intentionally Deleted] ;
6.3.5
[Intentionally Deleted] ;
6.3.6
Buyer’s Certificate
. If any representation or warranty of
Buyer set forth in Section 8 hereof needs to be modified due to
changes since the Effective Date, a certificate of Buyer addressed
to Seller, dated as of the Closing Date and executed on behalf of
Buyer by a duly authorized representative thereof, identifying any
such representation or warranty which is not, or no longer is, true
and correct and explaining the state of facts giving rise to the
change. In no event shall Buyer have any Liability to
Seller for, or be deemed to be in default hereunder by reason of
any breach of a representation or warranty set forth in Section 8
hereof which results from any change that (i) occurs between the
Effective Date and the Closing Date and (ii) is either expressly
permitted under the terms of this Agreement or is beyond the
reasonable control of Buyer to prevent. The occurrence
of a change in a representation or warranty which is permitted
hereunder or is beyond the reasonable control of Buyer to prevent
shall, if materially adverse to Seller, constitute the
non-fulfillment of the conditions set forth in Section 5.4.5
hereof. If, despite changes or other matters described
in such certificate, the Closing occurs, Buyer’s
representations and warranties set forth in this Agreement shall be
deemed to have been modified by all statements made in such
certificate;
6.3.7
Evidence of Authority . Such
certificates or documents as may be reasonably required by Escrow
Holder in order to cause the Title Policy to be issued and the
Close of Escrow to occur;
6.3.8
Closing Statement . A duly
executed and acknowledged counterpart of the Closing Statement;
and
6.3.9
Additional Items . Any
additional Funds and/or instruments, signed and properly
acknowledged by Buyer, if appropriate, as may be necessary to
comply with Buyer’s obligations under this
Agreement.
6.4
Title Policies . At the Close of
Escrow, but not as a condition thereto, Buyer shall be entitled to
request and obtain from Title Company if so requested by Buyer,
with a copy to be delivered to Seller, a policy of title insurance
with respect to the Property, insuring good and indefeasible title
to the Property vested in Buyer as of the Closing Date in the
amount of the Purchase Price, subject to such matters of record or
apparent as Buyer and Title Company may agree (a “Title
Policy”) and including such endorsements thereto as Buyer may
request and Title Company agrees to issue (the
“Ti
