PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS By and Between HCPI TRUST, a Maryland real estate investment trust, “Seller” and EMERITUS CORPORATION, a Washington corporation, as “Buyer”
Back
to 10-Q
AND
JOINT
ESCROW INSTRUCTIONS
By
and
Between
HCPI
TRUST,
a
Maryland real estate investment trust,
“Seller”
and
EMERITUS
CORPORATION,
a
Washington corporation,
as
“Buyer”
TABLE
OF CONTENTS
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Page
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1
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DEFINITIONS
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1
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2
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SALE
OF THE PROPERTIES
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4
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3
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ESCROW
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4
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4
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PURCHASE
PRICE; ALLOCATION OF PURCHASE PRICE
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5
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5
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CONDITIONS
TO CLOSING
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6
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6
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CLOSING
OF ESCROW
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10
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7
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TERMINATION
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15
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8
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REPRESENTATIONS
AND WARRANTIES
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18
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9
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CERTAIN
EVENTS PRIOR TO CLOSING
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20
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10
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POST-CLOSING
MATTERS
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20
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11
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BROKERS
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21
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12
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MISCELLANEOUS
PROVISIONS
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21
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EXHIBITS
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A
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Master
Lease
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B
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Escrow
General Provisions
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C
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Form
of Deed
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D
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Form
of Xxxx of Sale
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E
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Form
of Amendment to Master Lease
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F
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Release
of Claims
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G
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Purchase
Price Allocation
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i
AND
JOINT ESCROW INSTRUCTIONS
THIS
PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this “Agreement”) is
made and entered into as of March __, 2007 (the “Effective Date”), by and
between HCPI TRUST, a Maryland real estate investment trust (“Seller”), and
EMERITUS CORPORATION, a Washington corporation (“Buyer”), as
follows:
RECITALS
A. Seller
is
the owner of the Properties (as defined below), which are currently leased,
together with certain other property, to Buyer and certain Affiliates (as
defined below) of Buyer pursuant to the Master Lease (as defined
below).
B. Buyer
desires to purchase the Properties from Seller and Seller desires to sell the
Properties to Buyer on the terms and subject to the conditions set forth herein.
AGREEMENT
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, Buyer and Seller agree as follows:
1. DEFINITIONS
For
all
purposes of this Agreement, except as otherwise expressly provided herein or
unless the context otherwise requires, (i) the terms defined in this Article
have the meanings assigned to them in this Article and include the plural as
well as the singular; (ii) all references in this Agreement to designated
“Articles,” “Sections” and other subdivisions are to the designated Articles,
Sections and other subdivisions of this Agreement; (iii) the word “including”
shall have the same meaning as the phrase “including, without limitation,” and
other phrases of similar import; and (iv) the words “herein,” “hereof” and
“hereunder” and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision.
1.1 1031
Exchange:
As
defined in Section 6.8.
1.2 Additional
Charges:
As
defined in the Master Lease.
1.3 Additional
Rent:
As
defined in the Master Lease (including Percentage Rent and CPI Rent, as each
are
defined in the Master Lease).
1.4 Affiliate:
As
defined in the Master Lease.
1.5 ALTA
Survey:
As
defined in Section 5.1.1.1(c).
1.6 Base
Gross Revenues:
As
defined in the Master Lease.
1.7 Xxxx
of Sale:
As
defined in Section 6.2.2.
1.8 Cash
Security Deposit:
As
defined in the Master Lease.
1.9 Cash
Security Deposit Credit.
As
defined in Section 4.2.
1.10 Close
of Escrow, Closing Date and/or Closing:
As
defined in Section 6.1.
1.11 Closing
Breakpoint:
As
defined in Section 6.5.2 below.
1.12 Closing
Funds:
As
defined in Section 4.3.
1.13 Condemnation:
As
defined in the Master Lease.
1.14 Condemnor:
As
defined in the Master Lease.
1.15 Contingency
Period:
The
period commencing on the Effective Date and expiring on March 15,
2007.
1.16 Cost
of Living Index:
As
defined in the Master Lease.
1.17 Deed:
As
defined in Section 6.2.1.
1.18 Effective
Date:
As
defined in the preface to this Agreement.
1.19 Escrow
Holder:
As
defined in Section 3.1.
1.20 Event
of Default:
As
defined in the Master Lease.
1.21 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.
1.22 Gross
Revenues:
As
defined in the Master Lease.
1.23 Guarantor:
As
defined in the Master Lease.
1.24 Hazardous
Substance:
As
defined in the Master Lease.
1.25 Impositions:
As
defined in the Master Lease.
1.26 Intervening
Liens:
As
defined in Section 5.1.1.1.
1.27 Laws:
All
applicable governmental laws, codes, ordinances, regulations, judgments,
permits, approvals or other requirements.
1.28 Lease
Year:
As
defined in the Master Lease.
1.29 Lessee:
As
defined in the Master Lease.
2
1.30 Lessor:
As
defined in the Master Lease.
1.31 Liabilities:
Any
claim, liability, loss, cost, action, damage, expense or fees, including but
not
limited to reasonable attorney’s fees and costs of defense.
1.32 Lien
and Litigation Reports:
As
defined in Section 5.1.1.4.
1.33 Major
Loss:
shall
mean, as to any Property, a casualty loss or damage to such Property or any
loss
due to a Condemnation which, in either such event, results in a loss of Buyer’s
financing for the transactions contemplated hereby.
1.34 Master
Lease:
That
Amended and Restated Master Lease identified on Exhibit
“A”
attached
hereto among Seller and certain Affiliates of Seller, collectively as “Lessor,”
and Buyer and certain Affiliates of Buyer, collectively as “Lessee” covering the
Properties and certain other 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 .
1.35 Master
Lease Amendment:
A
certain Sixth Amendment to Amended and Restated Master Lease among the Lessor
and the Lessee, and consented to by the Guarantor, in the form attached hereto
as Exhibit
“E”,
to be
executed and delivered by Lessor, Lessee and Guarantor, on the Closing Date.
1.36 Minimum
Rent:
As
defined in the Master Lease.
1.37 Opening
of Escrow:
As
defined in Section 3.3.
1.38 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.
1.39 Outside
Closing Date:
Subject
to extension as provided in the last sentence of Section 5.1.1.1(b) and in
Section 6.8 below, March 31, 2007.
1.40 Permitted
Exceptions:
As
defined in Section 5.1.1.1.
1.41 Properties:
Collectively, the “Leased Property” as defined in the Master Lease of each of
the “Easley, SC (Countryside) Facility,” the “Easley, SC (Summit Place)
Facility,” and the “Spartanburg, SC Facility,” 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”).
1.42 Purchase
Price:
As
defined in Section 4.1.
3
1.43 Release
of Claim:
As
defined in Section 6.3.2.
1.44 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 Master Lease with
respect to the Properties, through and including the day prior to Closing Date
(prorated to the extent applicable for the month during which the Closing
occurs).
1.45 Seller’s
Legal Costs:
Collectively,
the legal fees, expenses and disbursements to counsel incurred by Seller in
connection with the preparation and negotiation of this Agreement and the
Exhibits hereto and the consummation of the transactions contemplated hereunder
and thereunder.
1.46 Seller’s
Transaction Costs:
Collectively, Seller’s Legal Costs and the other fees and expenses of and
disbursements made by Seller in connection with the transactions contemplated
by
this Agreement and the Exhibits hereto, including accountants and other
professional fees and travel expenses, excluding,
however,
any
third-party escrow and accommodator costs incurred by Seller and attributable
solely to the 1031 Exchange.
1.47 Title
Company:
Old
Republic Title, 0000 Xxxxx Xxxxxx, Xxx. 0000, Xxxxxxx, Xxxxxxxxxx 00000, Attn:
Xxxxxxx Xxxx, Fax No.: (000) 000-0000.
1.48 Title
Documents:
As
defined in Section 5.1.1.1.
1.49 Title
Policies:
As
defined in Section 6.4.
1.50 Title
Reports:
As
defined in Section 5.1.1.1.
2. SALE
OF THE PROPERTIES
Buyer
agrees to purchase from Seller, and Seller agrees to sell 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, 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, the provisions of this Agreement shall
control. Buyer and Seller each shall 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.
4
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,
fully signed by all parties either together or in counterparts, are delivered
to
Escrow Holder (the “Opening of Escrow”), which shall occur within two (2)
business days after execution of this Agreement by Buyer and Seller. 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 Twenty-Eight Million Six Hundred
Fifty Thousand Dollars ($28,650,000.00) (the “Purchase Price”). The Purchase
Price shall be allocated among the Properties and the various components thereof
as set forth on Exhibit
“G”
attached
hereto and incorporated herein by this reference. Such allocation is final
and
conclusive for all purposes and neither Seller nor Buyer shall use a different
allocation, including in any state or federal tax returns filed by such
party.
4.2 Cash
Security Deposit Credit.
Buyer
and Seller acknowledge and agree that, as of the Effective Date, the Lessee
has
deposited with the Lessor pursuant to Article XXI of the Master Lease a Cash
Security Deposit in the approximate amount of $5,554,524, of which approximately
$1,401,195 is allocable to the Properties. In addition, as of the Effective
Date, accrued and unpaid interest on such Cash Security Deposit is approximately
$1,925,637. Pursuant to the Master Lease Amendment, the Lessor has agreed the
Lessee may cause the Lessor to apply all or a portion of the sum of the
following to the Purchase Price payable hereunder: (i) that portion of the
Cash
Security Deposit allocable to the Properties, plus (ii) all accrued and unpaid
interest on the entire Cash Security Deposit as of the Closing Date, plus (iii)
up to an additional $1,158,000 of the Cash Security Deposit. The amount of
the
forgoing that Buyer elects to cause the Lessee to apply towards the Purchase
Price shall be referred to herein as the “Cash Security Deposit Credit.” No
later than 2:00 p.m., Pacific Standard Time, on the day prior to the Closing
Date, Buyer shall cause the Lessee to deliver to the Lessor written instructions
as to the amount of Cash Security Deposit Credit, and at the Closing, the Lessor
shall deliver outside of Escrow the Cash Security Deposit Credit from the Cash
Security Deposit under the Master Lease.
4.3 Closing
Funds.
No
later than 10:00 a.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,
when
added to the Cash Security Deposit Credit, shall equal the Purchase Price plus
any other sums payable by Buyer hereunder (the “Closing Funds”).
5
5. CONDITIONS
TO CLOSING
5.1 Buyer’s
Conditions.
5.1.1 Contingency
Period 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 5.1.1
within the Contingency Period. Seller and Buyer expressly acknowledge and agree
that each of the conditions in this Section 5.1.1 is for the benefit of and
may
be waived only by Buyer as hereinafter provided.
5.1.1.1 Title
and Survey Approval.
(a) Buyer
shall have reasonably approved the condition of title to each Property as
provided in this Section 5.1.1.1. As soon as practicable following the Opening
of Escrow, Buyer shall order and shall cause to be delivered to Buyer and
Seller, at Buyer’s sole cost and expense, a current preliminary title report or
title commitment for each Property (each, a “Title Report,” and collectively,
the “Title Reports”) prepared by Title Company, together with legible copies of
all documents (the “Title Documents”) shown on each Title Report as exceptions
affecting title to the applicable Property. Buyer shall take title to each
Property subject to (collectively, the “Permitted Exceptions”): (a) all
matters described in Section 6.4 and (b) all other items shown on the
applicable Title Report, excepting only such other items or matters as Buyer
disapproves in writing within the time and in the manner provided in
Section 5.2.1 below. Buyer shall be deemed to have approved each Title
Report and all such other items or matters referenced therein, unless Buyer
has
delivered written notice of its disapproval thereof within the time and in
the
manner provided in Section 5.2.1 below and all such matters so deemed
approved shall become additional “Permitted Exceptions” hereunder.
(b) Any
liens, encumbrances, easements, restrictions, conditions, covenants, rights,
rights-of-way, and other matters materially affecting title to any Property
which are created or which may appear of record after the date of the applicable
Title Report for such Property but before the Closing Date and which are
not
Permitted Exceptions (collectively, the “Intervening Liens”) shall also be
subject to Buyer’s reasonable approval and Buyer shall have until the later of
(i) the expiration of the Contingency Period and (ii) five (5) days
after notice from Seller or Title Company of any Intervening Lien to submit
written reasonable objections thereto in the manner set forth herein. If Buyer
fails to submit any such objections in the manner and within the time herein
provided then Buyer shall be deemed to have approved the Intervening Lien with
respect to such Property and the same shall become an additional “Permitted
Exception” hereunder with respect to such Property. If, on the other hand, Buyer
makes any such reasonable objection in the manner and within the time herein
provided, then the provisions of Section 5.2.2 shall apply with respect to
Seller’s right to cure the same and Buyer’s right to terminate the Agreement.
The Outside Closing Date will be extended, if necessary, to provide the parties
with the time needed to review, object and respond to any Intervening Lien
in
accordance with the provisions of this Section 5.1.1.1(b) and Section 5.2.2.
below.
6
(c) Buyer
shall have received, at Buyer’s sole cost and expense, and reasonably approved
an ALTA survey of each Property completed in accordance with the current Minimum
Standard Detail requirements for ALTA/ACSM Land Title Surveys, jointly
established and adopted by ALTA and ACSM that meet the requirements of a Class
A
Survey as defined therein, certified to Buyer, any lender of Buyer, Seller
and
Title Company as being true and accurate (each, an “ALTA Survey”). As soon as
practicable following the Opening of Escrow, Buyer shall order an ALTA Survey
of
each Property and upon receipt thereof shall furnish copies of the same to
Seller. Buyer shall be deemed to have approved each ALTA Survey for a Property
unless Buyer has delivered written notice of its disapproval thereof within
the
time and in the manner provided in Section 5.2.1. For purposes of Buyer’s
approval of each ALTA Survey, it is agreed that Buyer shall not be entitled
to
disapprove any matter disclosed by such ALTA Survey if the same (i) was
previously disclosed on the survey of the applicable Property at the xxxx Xxxxxx
acquired the same or otherwise relates to a Permitted Exception, or (ii) was
created or suffered after the date of Seller’s acquisition of such Property
either by the Lessee or at the request or with the consent of the
Lessee.
5.1.1.2 Approval
of Financing.
Buyer
shall have obtained a satisfactory loan commitment from a lender satisfactory
to
Buyer in its sole and absolute discretion in order to finance Buyer’s purchase
of the Properties (the “Loan Commitment”). Buyer shall be fully and solely
responsible for compliance with all lender requirements, and for payment of
all
fees and charges imposed by Escrow Holder, Title Company, lender or others
in
connection with such loan. Buyer shall be deemed to have approved the Loan
Commitment, unless Buyer has delivered written notice of its disapproval thereof
within the time and in the manner provided in Section 5.2.1 below.
5.1.1.3 Phase
1 Environmental Report.
Buyer
shall have received, at Buyer’s sole cost and expense, and reasonably approved a
written Phase 1 environmental assessment for each Property from one or more
qualified geotechnical or engineering firms acceptable to and retained by Buyer,
concerning the presence, handling, treatment and disposal of Hazardous
Substances on, in or under each Property. As soon as practicable following
the
Opening of Escrow, Buyer shall order such Phase 1 assessments for each Property
and upon receipt thereof shall furnish copies of the same to Seller. Buyer
shall
be deemed to have approved each Phase 1 environmental assessment for a
Property unless Buyer has delivered written notice of its reasonable disapproval
thereof within the time and in the manner provided in Section
5.2.1.
5.1.1.4 Liens.
Buyer
shall have received, at Buyer’s sole cost and expense, and reasonably approved
UCC, tax lien and judgment search reports on Seller and each of the Properties
(the “Lien and Litigation Reports”) from a reputable search firm (e.g., CT
Corporation or Xxxxxxxx-Xxxx Corporation) showing no liens or judgments
affecting any of the Properties created or suffered by reason of any acts or
omissions of Seller or any Affiliate thereof. As soon as reasonably practicable
following the Opening of Escrow, Buyer shall order such Lien and Litigation
Reports, and upon receipt thereof shall furnish copies of the same to Seller.
Buyer shall be deemed to have approved the Lien and Litigation Reports unless
Buyer has delivered written notice of its disapproval thereof within the time
and in the manner provided in Section 5.2.1 below.
7
5.1.2 Additional
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 also be
subject to satisfaction of each of the conditions set forth in this Section
5.1.2 on and as of the Closing Date. Seller and Buyer expressly acknowledge
and
agree that each of the conditions set forth in this Section 5.1.2 is for the
benefit of and may be waived only by Buyer as herein provided.
5.1.2.1 Seller’s
Representations and Warranties.
Seller’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.
5.1.2.2 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.
5.1.2.3 Purchase
of All the Properties.
The
Closing hereunder shall occur simultaneous with respect to all of the
Properties.
5.1.2.4 Occurrence
of the Closing by the Outside Date.
The
Closing shall occur on or before the Outside Closing Date.
5.2 Buyer’s
Approval, Disapproval or Waiver of Conditions and Seller’s Specific Cure
Rights.
5.2.1 Buyer’s
Approval, Disapproval or Waiver of Conditions.
On or
before 5:00 p.m., Pacific Standard Time, on the day the Contingency
Period expires, Buyer shall approve, disapprove or waive each of the conditions
set forth in Section 5.1.1.1(a), 5.1.1.1(c), 5.1.1.2, 5.1.1.3 and 5.1.1.4
by delivery of a reasonably detailed writing with respect to each such condition
to Seller and Escrow Holder, including the specific grounds for disapproval
thereof. In addition, 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 5.1.2 have not been satisfied or waived by
Buyer; provided, however, that if either of the conditions set forth in Sections
5.1.2.3 or 5.1.2.4 have not been satisfied as a result of any act or omission
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.
5.2.2 Seller’s
Cure Rights with Respect to Title and Liens.
If
Buyer is entitled to and in fact disapproves either of the conditions set forth
in Section 5.1.1.1(a), 5.1.1.1(c) or 5.1.1.4 within the time and in the
manner provided in Section 5.2.1 above or the condition in
Section 5.1.1.1(b) with respect to any Intervening Lien in the manner and
within the time therein provided, then Seller shall have until 5:00 p.m.,
Pacific Standard Time, on the fifth
8
(5th)
day
following the date of its receipt of Buyer’s written notice of disapproval
thereof in which to investigate the disapproved item and to notify Buyer and
Escrow Holder in writing that Seller in its sole discretion either:
(a) Has
cured
or will cure the disapproved item prior to the Close of Escrow; or
(b) Cannot
or
will not cure the disapproved item. Seller’s inability or failure to elect to
cure any item so disapproved within the time and in the manner herein provided
shall be deemed to constitute Seller’s election not to cure the
same.
5.3 “AS
IS” SALE.
It is
expressly understood and agreed that Buyer is acquiring each of the Properties
“AS IS,” in its present state and condition, without any representations or
warranties from Seller of any kind whatsoever, either express or implied, except
as expressly set forth in Section 8 below. In particular, except as expressly
set forth in Section 8 below, Seller makes no representation or warranty
respecting the use, condition, title, operation or management of 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 or its Affiliate originally sold
to
Seller 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 but 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.
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 as in writing.
5.4.1 No
Default Under 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 Master
Lease shall have occurred and (b) all Rent and Charges shall be paid as and
when due under the 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.
9
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 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.
5.4.5 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 either
of the conditions set forth in Sections 5.4.2 or 5.4.3 have not been satisfied
as a result of any act or omission 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 respective obligations
hereunder.
6. CLOSING
OF ESCROW
6.1 Closing
Date.
Subject
to extension in order to implement the provisions of Sections 5.1.1.1(b) or
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 January 5, 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 title is insured in Buyer’s name
in accordance with the provisions of Section 6.4 below, regardless whether
the
applicable Deed 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 2:00 p.m., Pacific Standard Time, on that date which is not less than
one
(1) business day before the Close of Escrow, Seller shall deliver to Escrow
Holder the following items for handling as described below; provided,
that
Escrow need not be concerned with the form or content but only with manual
delivery of all of the following other than items 6.2.1 and 6.2.3:
10
6.2.1 Deeds.
With
respect to each Property, a duly executed and acknowledged deed (each, a “Deed”)
conveying the real property comprising such Property to Buyer in the form of
(a)
Exhibit
“C”
attached;
6.2.2 Xxxx
of Sale.
A duly
executed and acknowledged quit claim xxxx 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 of attached Exhibit
“D”
(the
“Xxxx of Sale”);
6.2.3 Master
Lease Amendment.
The
Master Lease Amendment duly executed by the Lessor;
6.2.4 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 be liable
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 5.1.2.1
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 such
certificate;
6.2.5 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;
provided, however, that in no event shall Seller be required to execute a
so-called owner’s affidavit/indemnity or a mechanics’ lien indemnity with
respect to any Property;
6.2.6 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
6.2.7 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 10:00 a.m., Pacific Standard Time, on the date of the Close of Escrow,
Buyer shall deliver or cause to be delivered to Escrow Holder:
11
6.3.1 Funds.
Immediately available Closing Funds by wire transfer into Escrow Holder’s
depository bank account in an amount which, when added to the Cash Security
Deposit Credit 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 Release
of Claims:
A
Release of Claims duly executed by Buyer and the Lessee in the form attached
hereto as Exhibit
“F”
(the
“Release of Claims”);
6.3.3 Master
Lease Amendment:
The
Master Lease, duly executed by Buyer and each Affiliate of Buyer as Lessee
thereunder, and Guarantor.
6.3.4 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
be liable 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 5.4.4 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;
6.3.5 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;
6.3.6 Closing
Statement.
A duly
executed and acknowledged counterpart of the Closing Statement; and
6.3.7 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 Issuance
of Title Policies.
At the
Close of Escrow, Title Company shall be in a position to issue to Buyer, with
a
copy 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, free of all encumbrances except: (a) liens for Impositions; (b)
those liens or encumbrances which were in effect on the date Seller or Seller’s
Affiliate(s) first acquired title to or an interest in the Property; (c) those
liens or encumbrances consented to by the Lessee during the term of the Master
Lease with respect to the Properties (or the Original Leases, as defined in
the
Master
12
Lease
with respect to the Properties) or which were created or suffered by Buyer
or
Lessee prior to the Closing; and (d) all other exceptions shown on the
applicable Title Report (or any supplements thereto issued prior to the Closing)
or disclosed by the applicable ALTA Survey for such Property and not disapproved
by Buyer pursuant to Sections 5.2.1 or 5.1.1.1(b) above. Each policy (a “Title
Policy”), when issued, shall:
(i) be
in
current ALTA extended coverage form;
(ii) include
such endorsements as Buyer may reasonably require (subject to availability);
and
(iii) be
issued
in the amount of the Purchase Price allocated to the respective Property
pursuant to Exhibit
“G”
attached
hereto.
The
cost
of each Title Policy and all endorsements thereto shall be borne by Buyer as
provided in Section 6.6 below.
6.5 Prorations.
6.5.1 Impositions
and Other Expenses.
Buyer
and Seller acknowledge and agree that the Master Lease is absolutely net to
the
Lessor, and that the Lessee is solely responsible for any and all Impositions,
insurance premiums, utility charges and other expenses incurred in connection
with the operation, maintenance and use of the respective Property. Accordingly,
Buyer and/or the Lessee shall be solely responsible for all such amounts whether
accruing prior to or after the Closing and there shall be no prorations on
account thereof between Buyer and Seller hereunder.
6.5.2 Rents.
Notwithstanding anything to the contrary herein, all Rents and Charges shall
belong to and be paid over to the Lessor by the Lessee, on the Closing Date.
Minimum Rent shall be prorated based upon the actual number of days in the
month
in which the Closing occurs. For purposes of prorating any Additional Rent
payable under the Master Lease with respect to the Property, the following
shall
apply:
(a) To
the
extent Additional Rent payable for the then-current Lease Year for any Property
is calculated and determined on the basis of a percentage of Gross Revenues
in
excess of the applicable Base Gross Revenues, such Additional Rent with respect
to such Property shall be equal to the applicable percentage of Gross Revenues
for such Property for such Lease Year in excess of the applicable Closing
Breakpoint. For purposes of the foregoing, the “Closing Breakpoint” shall mean
the applicable Base Gross Revenues multiplied by a fraction the numerator of
which is the number of days in the current Lease Year for such applicable
Property through, but not including the Closing Date, and that the denominator
of which is three hundred sixty-five (365).
(b) To
the
extent Additional Rent payable for the then-current Lease Year for any Property
is calculated and determined on the basis of an increase in the Cost of Living
Index, such Additional Rent shall be determined and paid in accordance with
the
13
applicable
provisions of the Master Lease for the number of days in such Lease Year
through, but not including, the Closing Date.
(c) In
the
event that the amount of Additional Rent payable under such Lease is subject
to
either a floor or a ceiling, the amount of such floor or ceiling, as the case
may be, shall also be prorated based upon a three hundred sixty-five (365)
day
year.
(d) Buyer
and
Seller shall cooperate to estimate the proration amount for Additional Rent
as
of the Closing in good faith, and shall submit such amount to Escrow Holder
at
least one (1) business day prior to the Close of Escrow. In determining such
proration amount, Buyer shall be credited with any payments on account of
Additional Rent previously paid to the Lessor for the applicable current Lease
Year. Within thirty (30) days after the Closing Date, the Lessee shall make
a
final calculation of Additional Rent up to the Closing for each Property,
together with an Officer’s Certificate (as defined in the Master Lease) setting
forth the calculation thereof. Buyer shall promptly pay to Seller any deficiency
in the payment of Additional Rent for each Property made at the Closing, and
Seller shall promptly pay to Buyer the amount of any overpayment of Additional
Rent for any Property.
(e) The
obligation to prorate and pay Additional Rent for each Property shall survive
the Closing.
6.6 Closing
and Transaction Costs.
6.6.1 Upon
the
Closing, Buyer shall be responsible for:
(a) any
and
all state, municipal or other documentary, transfer, stamp, sales, use or
similar taxes payable in connection with the delivery of any instrument or
document provided in or contemplated by this Agreement or the Exhibits hereto,
any agreement or commitment described or referred to herein or the transactions
contemplated herein together with interest and penalties, if any,
thereon;
(b) all
expenses of or related to the issuance of the Title Policy (including the costs
of any ALTA Survey required by Buyer and the Title Company), chain of title
reports, and all escrow fees and charges;
(c) the
charges for or in connection with the recording and/or filing of any instrument
or document provided herein or contemplated by this Agreement or any agreement
or document described or referred to herein;
(d) Buyer’s
legal, accounting and other professional fees and expenses and the cost of
all
instruments and documents required to be delivered, or to be caused to be
delivered, by Buyer hereunder;
(e) Seller’s
Transaction Costs; and
(f) All
other
costs and expenses incurred in connection with the transactions contemplated
hereunder and the Exhibits hereto.
14
6.6.2 If
the
Closing does not occur for any reason other than Seller’s default hereunder,
Buyer shall pay all title and Escrow cancellation charges and expenses and
shall
pay to Seller all of Seller’s Transaction Costs. If the Closing does not occur
by reason of Seller’s default hereunder, then in such event Seller shall be
solely responsible for Seller’s Transaction Costs and for any title and Escrow
cancellation charges and expenses.
6.7 Completion
and Distribution of Documents.
Escrow
Holder shall also undertake the following at or promptly after the Close of
Escrow:
6.7.1 If
necessary, Escrow Holder is authorized and instructed to insert the date Escrow
closes as the date of any documents conveying or terminating interests herein
or
to become operative as of the Closing Date.
6.7.2 Cause
each Deed and any other recordable instrument which the parties so direct to
be
recorded in the appropriate land records office where the respective property
is
located; and
6.7.3 Cause
each non-recorded document to be delivered to the party acquiring rights
thereunder, or for whose benefit such document was obtained.
6.8 Seller’s
Election of 1031 Exchange.
Seller
may elect to sell the Properties to Buyer in the form of a tax-deferred exchange
pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended (“1031
Exchange”); provided, however, such 1031 Exchange shall not be a condition to
Seller’s obligation to close the transactions contemplated by this Agreement;
provided further, however, that Seller shall be entitled, in its sole
discretion, to extend the Closing Date (including the Outside Closing Date)
for
up to ten (10) days by written notice delivered to Buyer and Escrow Holder
no
less than three
(3)
days
prior to the scheduled Closing Date in order to accommodate such a 1031
Exchange. In the event that Seller shall so elect a 1031 Exchange, Seller shall
give written notice to Buyer and Escrow Holder of such election. Buyer shall
fully cooperate with any such 1031 Exchange, including executing and delivering
additional documents requested or approved by Seller; provided, that Buyer
shall
not be required to incur any additional Liabilities or financial obligations
as
a consequence of any of the foregoing exchange transactions. Seller hereby
indemnifies and holds Buyer harmless from any Liabilities to which Buyer may
be
exposed due to any participation by Buyer in such a 1031 Exchange transaction.
7. TERMINATION
7.1 Early
Termination for Failure of Conditions or Major Loss.
7.1.1 Termination
by Buyer.
(a) If
Buyer
is entitled to and in fact disapproves any of the conditions set forth in
Section 5.1.1.1(a), 5.1.1.1(c) or 5.1.1.4 within the time provided in
Section 5.2.1 or the condition set forth in Section 5.1.1.1(b) with respect
to
any Intervening Lien in the manner or within the time therein provided, and
Seller notifies Buyer and Escrow Holder that Seller cannot or will not cure
such
disapproved condition, or if Seller fails to notify Buyer and Escrow Holder
15
that
Seller intends to cure such disapproved condition within the time and in the
manner provided in Section 5.2.2 above, if at all, then Buyer shall have
until 5:00 p.m., Pacific Standard Time, on the fifth (5th) day following (i)
its
receipt of Seller’s notice or (ii) the date Seller is deemed to have elected not
to cure pursuant to Section 5.2.2(b), to notify Seller and Escrow Holder in
writing that Buyer in its sole discretion either:
(1) Waives
its prior objections to such condition and will proceed to purchase all of
the
Properties, subject to any then remaining conditions, without any reduction
or
offset to the Purchase Price; or
(2) Thereby
terminates Escrow and this Agreement.
(b) If
Buyer
is entitled to and in fact disapproves any of the conditions set forth in
Sections 5.1.1.2, 5.1.1.3 or 5.1.2.1 through 5.1.2.4, inclusive, then Escrow
and
this Agreement shall automatically terminate upon receipt by Seller and Escrow
Holder of Buyer’s written notice of disapproval of such condition within the
time and in the manner provided in Section 5.2.1; provided, however, that if
the
failure of (i) the condition set forth in Section 5.1.2.2 results from a breach
or default by Seller of its obligations under this Agreement or (ii) the
condition set forth in Section 5.1.2.1 results from a breach of an express
representation or warranty of Seller pursuant to Section 8 when made, then
in
lieu of terminating this Agreement and Escrow pursuant to this Section 7.1,
Buyer shall be entitled to exercise its rights pursuant to Section 7.2
below.
(c) In
the
event of a Major Loss prior to the Closing, Buyer may terminate Escrow and
this
Agreement by written notice to Seller in accordance with the provisions of
Section 9.2 below.
7.1.2 Termination
by Seller.
If
Seller disapproves any of the conditions set forth in Section 5.4 above, then
Escrow and this Agreement shall automatically terminate upon receipt by Buyer
and Escrow Holder of Seller’s written notice of disapproval thereof at any time
prior to the Closing; provided, however, that if the failure of any of the
conditions set forth in Sections 5.4.2, 5.4.3, 5.4.4 or 5.4.5 results from
a
breach or a default by Buyer of its obligations under this Agreement or from
a
breach of any express representation or warranty of Buyer pursuant to Section
8
when made, then in lieu of terminating this Agreement and Escrow pursuant to
this Section 7.1.2, Seller shall be entitled to exercise its remedies pursuant
to Section 7.2 below. In addition, notwithstanding the foregoing, the parties
acknowledge and agree that the occurrence of any event of the type described
in
Section 5.4.1(a) above which results in the failure of the conditions set forth
therein shall also constitute and be deemed a default by Buyer under this
Agreement entitling Seller to exercise its remedies pursuant to Section 7.2
below.
7.1.3 Rights
and Obligations Upon Termination for Failure of
Conditions.
If
Escrow and this Agreement are terminated in the manner and within the applicable
time period(s) provided pursuant to either Section 7.1.1 or Section 7.1.2 above,
(b) all instruments in Escrow shall be returned to the party depositing the
same, (c) Buyer shall return all items previously delivered by Seller to Buyer,
(d) the provisions of Section 6.6.2 above shall apply and (e) neither party
shall have any further rights, obligations or Liabilities whatsoever to the
other
16
party
concerning the purchase and sale of the Property pursuant to this Agreement,
except for those Liabilities which are expressly stated in this Agreement to
survive termination.
7.2 Termination
by Reason of Default.
If the
Closing fails to occur when and as provided in Section 6 above by reason of
a
breach or default (or deemed default as provided in the last sentence of Section
7.1.2 above) of either party of any of its duties, obligations, representations
or warranties under this Agreement, then the nondefaulting party may elect,
by
written notice to the defaulting party and to Escrow Holder, to terminate Escrow
and this Agreement. Such termination shall be effective five (5) days after
delivery of such notice (the “Effective Termination Date”); provided,
that
(i) the nondefaulting party has performed or is in a position to perform
all obligations on its part to be performed as of the Effective Termination
Date
other than those obligations which the non-defaulting party is prevented from
having performed by reason of the defaulting party’s breach or default; and
(ii) the defaulting party has not cured the default and the nondefaulting
party has not waived such default by the Effective Termination Date. Except
as
otherwise provided below in this Section 7.2 and Section 6.6.2 above, Escrow
Holder and the parties shall, upon such termination, return all of the other
party’s funds and documents then held by them to the party depositing or
delivering the same. Thereafter, each of the parties shall be discharged and
released from all obligations and Liabilities except as otherwise provided
in
this Section 7.2 and Section 6.6.2 above and except for those obligations and
Liabilities which are expressly intended to survive the termination of this
Agreement, including those Liabilities set forth in Section 12.2
below.
7.2.1 Seller’s
Damages.
If
the
Closing fails to occur by reason of a breach or default of this Agreement by
Buyer, then Seller may either (a) terminate this Agreement as of the Effective
Termination Date as provided in Section 7.2 above, in which case Buyer shall
be
liable for the cancellation and other charges and expenses as provided for
in
Section 6.6.2 and all of Seller’s Transaction Costs, or (b) enforce specific
performance of the obligations of Buyer here-under; provided, however, that
any
action by Seller to seek such specific performance must be commenced within
thirty (30) calendar days of the occurrence of the alleged default by Buyer;
provided further, however, that, except as provided in Section 6.2.2 and except
for Seller’s Transaction Costs, in no event whatsoever shall Buyer ever have any
Liability (whether in law or equity) for damages as a result of a default by
Buyer under this Agreement.
7.2.2 Buyer’s
Remedies.
If the
Closing fails to occur by reason of a breach or default of this Agreement by
Seller, then Buyer may either (a) terminate this Agreement as of the Effective
Termination Date as provided in Section 7.2 above, in which case Seller shall
be
liable for the cancellation and other charges and expenses provided for in
Section 6.6.2, or (b) enforce specific performance of the obligations of Seller
here-under; provided, however, that any action by Buyer to seek such specific
performance must be commenced within thirty (30) calendar days of the occurrence
of the alleged default by Seller; provided further, however, that, except as
provided in Section 6.2.2, in no event whatsoever shall Seller ever have any
Liability (whether in law or equity) for damages as a result of a default by
Seller under this Agreement.
7.3 Relationship
to Master Lease.
Notwithstanding
anything to the contrary in this Agreement, no termination of this Agreement
and
Escrow by Seller or Buyer regardless of the reason therefor shall affect the
rights or obligations of the Lessor or Lessee under the Master
17
Lease,
which Master Lease shall remain in full force and effect (and unmodified by
the
Master Lease Amendment), following any such termination of this Agreement prior
to the Closing.
8. REPRESENTATIONS
AND WARRANTIES
8.1 In
General.
In
addition to any express agreements of either party contained herein, the
following constitute representations and warranties by each party to the other,
which shall be true and correct as of the date hereof, and the truth and
accuracy of such representations and warranties as of the Close of Escrow by
each party shall also constitute a condition to the Close of Escrow for the
benefit of the party to whom such representations and warranties were
made.
8.2 By
Each Party.
Each
party hereto represents and warrants to the other as follows:
8.2.1 Authority.
Such
party has full power and authority to enter into and comply with the terms
of
this Agreement, and the individuals executing this Agreement on behalf of such
party have actual right and authority to bind that party to the terms of this
Agreement.
8.2.2 Binding
Effect.
No
action or consent which has not been obtained is necessary to make this
Agreement, and this Agreement and all documents to be executed hereunder are
or
will be when executed the valid and legally binding obligations of such party,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by creditors’ rights laws and general principles
of equity.
8.2.3 No
Conflict.
The
execution and delivery of this Agreement and all other documents to be executed
by such party hereunder, compliance with the provisions thereof and hereof
and
the consummation of the transactions contemplated hereunder and thereunder
will
not result in (a) a breach or violation of (i) any Laws applicable to such
party
now in effect, (ii) the Organizational Documents of such party, (iii) any
judgment, order or decree of any governmental authority with jurisdiction
binding on such party or (iv) any material agreement or instrument to which
such
party is a party or by which it is bound.
8.2.4 Patriot
Act.
To
the
actual knowledge of such party, such party and its respective Affiliates
are in
compliance with the requirements of Executive Order No. 13224, 66 Fed. Reg.
49079 (Sept. 25, 2001) (the “Order”) and other similar requirements contained in
the rules and regulations of the Office of Foreign Assets Control, Department
of
Treasury (“OFAC”) and in any enabling legislation or other Executive Orders or
regulations in respect thereof (the Order and such other rules, regulations,
legislation or orders collecting called the “Orders”). Neither such party nor
any of their Affiliates (A) is listed on the Specially Designated Nationals
and
Blocked Person List maintained by OFAC pursuant to the Order and/or on any
other
list of terrorists or terrorist organizations maintained pursuant to any of
the
rules and regulations of OFAC or pursuant to any other applicable Orders (such
lists are collectively referred to as the “Lists”), (B) is a Person (as defined
in the Order) who has been determined by competent authority to be subject
to
the prohibitions contained in the Orders; or (C) is owned or controlled
18
by
(including without limitation by virtue of such person being a director or
owning voting shares or interests), or acts for or on behalf of, any person
on
the Lists or any other person who has been determined by competent authority
to
be subject to the prohibitions contained in the Orders. As used herein, the
term
“actual knowledge” as it relates to Seller shall mean the actual knowledge
(without investigation or the duty to conduct investigation) of Xxxx Xxxxx
and
Xxxxx X. Xxxx and as it relates to Buyer shall mean the actual knowledge
(without investigation or the duty to conduct investigation) of Xxxx
Xxxxxxxxxx.
8.3 By
Seller Only.
Seller
represents and warrants to Buyer as follows:
8.3.1 Authority
of Lessor.
The
Lessor has full power and authority to execute and deliver the Master Lease
Amendment pursuant to the terms of this Agreement and that when so executed
and
delivered, such Master Lease Amendment shall constitute the valid and binding
obligations of the Lessor, enforceable against such Lessor in accordance with
its respective terms, except as such enforceability may be limited by creditors’
rights laws and general principles of equity.
8.3.2 No
Tax Withholding.
In
accordance with Section 1445 of the Internal Revenue Code and the
applicable provisions of the California Revenue and Taxation Code, (a) Seller
is
not now, and at Closing will not be, a “foreign person,” and (b) Buyer need not
withhold tax at the Closing as a result of this transfer. Seller shall deliver
a
separate nonforeign/residency affidavit, executed by Seller, if reasonably
required to do so by Escrow Holder.
8.3.3 Litigation,
Etc.
To the
actual knowledge of Seller (without investigation and without the duty to
conduct any investigation), there are no actions, proceedings or investigations
pending or threatened against or affecting Seller seeking to enjoin, challenge
or collect damages in connection with the transactions contemplated by this
Agreement or which would reasonably be expected to materially and adversely
affect the ability of Seller to carry out the transactions contemplated by
this
Agreement or which in any way challenge or affect Seller’s ownership of the
Properties, or any of them.
8.4 By
Buyer Only.
Buyer
represents and warrants to Seller as follows:
8.4.1 Authority
of Lessees.
The
Lessee and Guarantor have full power and authority to execute and deliver the
documents and instruments required to be delivered by them pursuant to the
terms
of this Agreement (including the Master Lease Amendment) and that when so
executed and delivered, such instruments shall constitute the valid and binding
obligations of the Lessee and Guarantor, enforceable against them in accordance
with their respective terms, except as such enforceability may be limited by
creditors’ rights laws and general principles of equity.
8.4.2 Litigation,
Etc.
To the
actual knowledge of Buyer (without investigation and without the duty to conduct
any investigation), there are no actions, proceedings or investigations pending
or to the knowledge of Buyer threatened against or affecting Buyer seeking
to
enjoin, challenge or collect damages in connection with the transactions
contemplated
19
by
this
Agreement or which would reasonably be expected to materially and adversely
affect the ability of Buyer to carry out the transactions contemplated herein.
9. CERTAIN
EVENTS PRIOR TO CLOSING
9.1 Minor
Loss.
In the
event of loss (including a loss due to a Condemnation) or damage to a Property
or any portion thereof which is not a Major Loss and which occurs prior to
the
Closing, this Agreement shall remain in full force and effect, Buyer shall
nonetheless proceed to purchase the Properties and consummate this Agreement
in
accordance with the terms hereof and all insurance proceeds or Condemnation
awards payable by reason thereof shall belong to Buyer.
9.2 Major
Loss.
In
the
event of a Major Loss which occurs to any Property or portion thereof prior
to
the Closing, Buyer may by written notice to Seller given within ten (10) days
after the occurrence of such Major Loss terminate this Agreement. If Buyer
fails
to elect to terminate this Agreement by written notice to Seller given within
such ten (10) day period following the occurrence of such Major Loss, then
Buyer
shall be deemed to have elected to proceed with Closing with respect to the
Properties, this Agreement shall remain in full force and effect, Buyer shall
proceed to purchase the Properties and consummate this Agreement in accordance
with the terms hereof and all insurance proceeds or Condemnation awards payable
by reason thereof shall belong to Buyer.
9.3 Prompt
Notices.
Seller
shall give prompt notice to Buyer, and Buyer shall give prompt notice to Seller,
of (i) the occurrence, or failure to occur, of any event which occurrence
or failure would be likely to cause (A) any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material respect
or (B) any covenant, condition or agreement contained in this Agreement not
to be complied with or satisfied in all material respects and (ii) any
failure of Seller or Buyer, as the case may be, to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied under this
Agreement.
9.4 Satisfaction
of Conditions.
From and
after the Effective Date, each party covenants and agrees with the other to
use
good faith, commercially reasonable efforts to satisfy or cause to be satisfied
all conditions precedent to such party’s obligations hereunder which are in such
party’s control or over which such party exercises control.
10. POST-CLOSING
MATTERS
10.1 Confidentiality.
Each
party shall hold in strict confidence all information received from the other
party concerning this transaction and shall not release any such information
to
third parties (other than attorneys, accountants or other professional
consultants, or lenders of the parties) without the prior written consent of
the
other party unless otherwise required by Law. Buyer and Seller will jointly
prepare and issue any and all releases of information to the public relating
to
the sale of the Properties. Each party will undertake to consult with the other
prior to responding to any inquiries made by any third party respecting the
transactions contemplated by this Agreement.
20
10.2 Indemnification
by Buyer.
In
addition to the other indemnities of Buyer contained herein, Buyer shall
protect, indemnify, save harmless and defend Seller and its partners,
predecessors, successors and assigns, and their respective past, present and
future officers, directors, employees, agents, representatives, attorneys and
all persons acting by, through, under or in concert with any of the foregoing,
from and against all Liabilities, based upon, relating or arising out of the
Properties, or any of them, whether accruing before or after the Closing Date,
including any Liabilities relating to the presence or existence of Hazardous
Substances of any kind, on, under or about the Properties, or any of them,
or on
adjoining or neighboring property, or arising from any use of the Properties,
or
any of them; provided, however, the foregoing indemnity shall not extend to
any
Liabilities which are solely and proximately caused by the gross negligence
or
willful misconduct of Seller. Payment shall not be condition precedent to
enforcement of the foregoing indemnification. The provisions of Section 10.2
shall specifically survive the execution and delivery of this Agreement and
the
Deeds and the occurrence of the Closing.
11. BROKERS
Seller
and Buyer each represents and warrants to the other that no broker or finder
or
other real estate agent is entitled to any commission, finder’s fee or other
compensation resulting from any action on its part. Each party agrees to
indemnify, defend, protect and hold the other party and the Properties harmless
against any Liabilities for any broker’s commission or finder’s fee for which it
is responsible or which is asserted as a result of its own act or omission
in
connection with this transaction.
12. MISCELLANEOUS
PROVISIONS
12.1 Assignment;
Binding on Successors.
This
Agreement shall be binding upon and shall inure to the benefit of Buyer and
Seller and their respective representatives, successors and assigns; provided,
however, that Buyer shall not have the right to assign this Agreement or any
interest or right under this Agreement or under the Escrow or to appoint a
nominee to act as Buyer under this Agreement without obtaining the prior written
consent of Seller, which consent may be given or withheld in the sole and
absolute discretion of Seller; provided, however, that without in any way
relieving Buyer of any of its duties, covenants or obligations hereunder, upon
written notice to Seller given not less than five (5) business days prior to
the
scheduled Closing Date, Buyer may, without the consent of Seller, assign its
rights and obligations hereunder to one or more Affiliates of Buyer. Any
attempted assignment in violation of this provision shall be null and void.
12.2 Attorneys’
Fees.
In any
dispute or action between the parties arising out of this Agreement or the
Escrow, or in connection with the Properties, or any of them, the prevailing
party shall be entitled to have and recover from the other party its costs
and
attorneys’ fees related thereto, whether by final judgment or by out of court
settlement.
12.3 Notices.
Any
notice, consent, approval, demand or other communication required or permitted
to be given hereunder (a "notice") must be in writing and may be served
personally or by U.S. Mail. If served by U.S. Mail, it shall be addressed as
follows:
21
If
to
Seller: Health
Care Property Investors, Inc.
0000
Xxxxxx
Xxxxxxx Xxx, Xxxxx 000
Xxxx
Xxxxx,
Xxxxxxxxxx 00000
Attn: Legal
Department
Fax: (000)
000-0000
with
a
Copy to: Xxxxxx
& Xxxxxxx LLP
000
Xxxx
Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx
Xxxx,
Xxxxxxxxxx 00000-0000
Attn: Xxxxx
X.
Xxxxxxx, Esq.
Fax: (000)
000-0000
If
to
Buyer: Emeritus
Corporation
0000
Xxxxxxx
Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxxx 00000
Phone: (000)
000-0000
Fax:
(000)
000-0000
Attn:
Xxxx
Xxxxxxxxx
with
a
copy to: Xxxxxxx
Xxxxxxxx X.X.
0000
Xxxxxx
Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX
00000
Fax: (000)
000-0000
Attn: Xxxxx
X.
Xxxx, Esq.
Any
notice which is personally served shall be effective upon the date of service;
any notice given by U.S. Mail shall be deemed effectively given, if deposited
in
the United States Mail, registered or certified with return receipt requested,
postage prepaid and addressed as provided above, on the date of receipt, refusal
or non-delivery indicated on the return receipt. In addition, either party
may
send notices by facsimile or by a nationally recognized overnight courier
service which provides written proof of delivery (such as U.P.S. or Federal
Express). Any notice sent by facsimile shall be effective upon confirmation
of
receipt in legible form, and any notice sent by a nationally recognized
overnight courier shall be effective on the date of delivery to the party at
its
address specified above as set forth in the courier's delivery receipt. Either
party may, by notice to the other from time to time in the manner herein
provided, specify a different address for notice purposes.
12.4 Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF CALIFORNIA, EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAWS. EACH
OF
BUYER AND SELLER HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE STATE
AND
FEDERAL COURTS OF THE STATE OF CALIFORNIA AND CONSENT TO SERVICE OF PROCESS
IN
ANY LEGAL PROCEEDING ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT,
BY
ANY MEANS AUTHORIZED BY CALIFORNIA LAW.
22
12.5 Interpretation.
All
provisions herein shall be construed in all cases as a whole according to its
fair meaning, neither strictly for nor against either Buyer or Seller and
without regard for the identity of the party initially preparing this Agreement.
Titles and captions are inserted for convenience only and shall not define,
limit or construe in any way the scope or intent of this Agreement. References
to Sections are to Sections as numbered in this Agreement unless expressly
stated otherwise.
12.6 Gender;
Joint Obligations.
As used
in this Agreement, the masculine, feminine or neuter gender and the singular
or
plural number shall each be deemed to include the others where and when the
context so dictates. If more than one party, trust or other entity is the Buyer
hereunder, the obligations of all such parties shall be joint and
several.
12.7 No
Waiver.
A
waiver by either party of a breach of any of the covenants, conditions or
agreements to be performed by the other party shall be in writing to be
effective and no such written waiver shall be construed as a waiver of any
succeeding breach of the same or other covenants, conditions or
Agreements.
12.8 Modifications.
Any
alteration, change or modification of or to this Agreement, in order to become
effective, must be made in writing and in each instance signed on behalf of
each
party to be charged.
12.9 Severability.
If any
term, provision, condition or covenant of this Agreement or its application
to
any party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term,
provision, condition or covenant to persons or circumstances other than those
as
to whom or which it is held invalid or unenforceable, shall not be affected,
and
shall be valid and enforceable to the fullest extent permitted by
law.
12.10 Survival.
The
conveyance of the Properties to Buyer shall constitute full performance and
discharge of every representation, warranty and covenant and agreement of Seller
to be performed hereunder by the Closing, notwithstanding anything herein to
the
contrary. Thereupon, all representations or warranties, covenants or agreements
by either Buyer or Seller contained in this Agreement will terminate and will
not survive the Closing, except for the representations and agreements which
contemplate performance after Closing such as post-closing matters set forth
in
Section 10, payment of brokerage fees set forth in Section 11, all matters
set
forth in this Section 12.10 and the Release of Claims to be executed and
delivered by Buyer and the Lessee in favor of Seller at the Closing.
12.11 Merger
of Prior Agreements.
This
Agreement contains the entire understanding between the parties relating to
the
transaction contemplated by this Agreement. All prior or contemporaneous
agreements, understandings, representations and statements, whether direct
or
indirect, oral or written, are merged into and superseded by this Agreement,
and
shall be of no further force or effect.
12.12 Time
of Essence.
Time is
of the essence of this Agreement.
23
12.13 Counterparts.
This
Agreement may be signed in multiple counterparts which, when duly delivered
and
taken together, shall constitute a binding Agreement between all
parties.
12.14 Exhibits.
All
exhibits attached to this Agreement are incorporated herein by
reference.
12.15 Cooperation
of Parties.
Each
party agrees to sign any other and further instruments and documents and take
such other actions as may be reasonably necessary or proper in order to
accomplish the intent of this Agreement.
12.16 No
Third Party Beneficiaries.
Except
as otherwise expressly provided herein, the provisions of this Agreement are
intended to be solely for the benefit of the parties hereto, and the execution
and delivery of this Agreement shall not be deemed to confer any rights upon,
nor obligate any of the parties hereunder, to any person or entity other than
the parties to this Agreement.
12.17 Dates.
If,
pursuant to this Agreement, any date indicated herein falls on an official
United States holiday, or a Saturday or Sunday, the date so indicated shall
mean
the next business day following such date.
12.18 Property
Disclosures.
Buyer
hereby waives the right to receive and any obligation of Seller to deliver
any
disclosures applicable to any Property and required by Law; provided, however,
if such waiver is permitted by applicable Law, then Buyer shall promptly notify
Seller in writing thereof and Seller shall provide, at Buyer’s expense, any such
required disclosures as soon as practicable following Seller’s receipt of
Buyer’s notice.
[Signature
Page Follows]
24
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
|
SELLER:
|
HCPI
TRUST, a Maryland real estate investment
trust
|
|
By:/s/
Xxxxx X. Xxxx
|
|
Its:
Senior Vice President
|
|
BUYER:
|
EMERITUS
CORPORATION,
|
a
Delaware corporation
|
By:
/s/ Xxxx Xxxxxxxxxx
|
|
Its:
Director of Real Estate and Legal Affairs
|
ACCEPTANCE
BY TITLE COMPANY
Title
Company hereby agrees to establish an Escrow and act as the “Escrow Holder” in
accordance with the provisions of the Agreement. Title Company further agrees
to
deliver immediately to Buyer and Seller fully executed copies of the Agreement.
Title Company’s Escrow Number and Escrow Officer for the transaction
contemplated hereby, address for notices for this Escrow, Escrow Account No.
and
wiring information is set forth below.
/s/
Xxxxxxx Xxxx
By:
Xxxxxxx Xxxx
Its:
Escrow Officer
Date:
_March 15, 2007
Escrow
No.: Emersky
-
Emerpark
-
Emerville
-
Escrow
Officer: Xxxxxxx
Xxxx
Telephone
No.: (000) 000-0000
Fax
No.:
(000) 000-0000
Address
for Notices: 0000
0xx
Xxxxxx
Xxxxx
0000
Xxxxxxx,
XX 00000
Wiring
Information:
Bank:
ABA
No.:
Credit
to: Old
Republic Title,
Account
No.:
Reference: HCPI/Emeritus
Attention:
Xxxxxxx Xxxxx
Re:
HCP/Emeritus
EXHIBIT
A
LEASES
That
certain Amended and Restated Master Lease dated as of September 18, 2002, as
amended by that certain First Amendment to Amended and Restated Master Lease
dated August 31, 2003, that certain Second Amendment to Amended and Restated
Master Lease dated January 26, 2004, that certain Third Amendment to Amended
and
Restated Master Lease dated April 22, 2004, that certain Fourth Amendment to
Amended and Restated Master Lease dated July 30, 2004, and that certain Fifth
Amendment to Amended and Restated Master Lease dated as of December 13,
2005.
A-1
EXHIBIT
B
GENERAL
ESCROW PROVISIONS
|
1.
|
All
funds received in this escrow shall be deposited in a separate escrow
fund
account or accounts of Old Republic Title & Escrow (for the
benefit of the parties hereto) with a State or National Bank qualified
to
do business in the State of Washington, such that each account shall
be
fully insured at all times by the Federal Deposit Insurance Corporation,
to the maximum extent permitted by law. We shall have no obligation
to
account to you in any manner for the value of, or pay to you any
benefit
received by us, directly or indirectly, by reason of the deposit
of the
escrowed funds or the maintenance of such accounts with that
bank.
|
All
disbursements shall be made by wire transfer of funds to the account of the
applicable party to whom such disbursements are owed as directed by such party.
In the absence of written instruction from the party to whom such disbursement
is owed naming the banking instruction, bank routing number and appropriate
account number for deposit, the disbursement shall be made by check of Title
Company. Any commitment made in writing to Title Company by any bank, trust
company, insurance company, savings and loan association or other lender to
deliver its check or funds into this escrow may, in the sole discretion of
Title
Company, be treated as the equivalent of a deposit in this escrow of the amount
thereof, pursuant to the rules of RCW 48.29.190.
|
2.
|
You
are authorized to prepare, obtain, record and deliver the necessary
instruments to carry out the terms and conditions of this escrow
and to
order to be issued at close of escrow the policy of title insurance
as
called for in these instructions. Close of escrow shall mean the
date
instruments are recorded.
|
|
3.
|
All
adjustments and prorations shall be made on the basis of a 30-day
month.
In all acts relating to fire insurance, rents and rental deposits,
you
shall be fully protected in assuming that the information provided
you by
the parties to this escrow, or their agent(s), is correct and that
insurance premiums have been paid.
|
|
4.
|
[Reserved]
|
|
5.
|
Subject
to the provisions of Section 15 below, you are not to be held accountable
or liable for the sufficiency or correctness as to form, manner of
execution, or validity of any instrument deposited in this escrow,
nor as
to the identity, authority or rights of any person executing the
same.
Your duties hereunder shall be limited to the proper handling of
such
money and the proper safekeeping of such instruments, or other documents
received by you as escrow holder, and for the disposition of same
in
accordance with the written instructions accepted by you in this
escrow.
The foregoing shall not be deemed or construed to relieve you of
any
liability resulting from your gross negligence or willful
misconduct.
|
|
6.
|
You
shall have no responsibility of notifying me or any of the parties
to this
escrow of any sale, resale, loan, exchange or other transaction involving
any property herein described or of any profit realized by any person,
firm or corporation in connection
|
B-1
therewith,
regardless of the fact that such transaction(s) may be handled by you in this
escrow or in another escrow.
|
7.
|
No
notice, demand or change of instruction shall be of any effect in
this
escrow unless given in writing by all parties affected thereby and
except
as otherwise specifically provided in the Agreement to which these
General
Provisions are attached. In the event a demand for the funds on deposit
in
this escrow is made, not concurred in by all parties hereto, the
escrow
holder, regardless of who made demand therefor, may elect to do any
of the
following:
|
|
i.
|
Withhold
and stop all further proceeding in, and performance of, this escrow
pending a resolution of any conflict by and between the parties hereto;
or
|
|
ii.
|
File
a suit in interpleader and obtain an order from the court allowing
escrow
holder to deposit all funds and documents in court and have no further
liability hereunder, except for its own negligent or willful misconduct
or
any breach by escrow holder of any obligations in this
Agreement.
|
|
8.
|
If
the conditions of this escrow have not been complied with at the
time
herein provided, you are nevertheless to complete the same as soon
as the
conditions (except as to time) have been complied with, unless Buyer
has
made written demand upon you for the return of money and instruments
deposited by Buyer.
|
|
9.
|
All
parties hereto agree, jointly and severally, to pay on demand, as
well as
to indemnify and hold you harmless from and against all advances,
charges,
costs, damages, expenses, including cancellation fees, that are
properly
chargeable
to the undersigned, judgments, attorney’s fees, expenses, obligations and
liabilities of any kind or nature which, in good faith, you may incur
or
sustain in connection with this escrow, whether arising before or
subsequent to the close of this escrow, including any and all balance
for
fees, costs or shortages due in connection with these instructions,
except
to the extent caused by the negligence or willful misconduct of the
escrow
holder.
|
|
10.
|
Unless
the Agreement otherwise provides or unless otherwise instructed by
either
Buyer or Seller, you are authorized to furnish copies of these
instructions, any supplements or amendments thereto, notices of
cancellation and closing statements to the attorneys, real estate
broker(s) and lender(s) named in this
escrow.
|
|
11.
|
[Reserved]
|
|
12.
|
[Reserved]
|
|
13.
|
Any
funds held in escrow which are unclaimed for a period of six (6)
months by
the parties entitled thereto shall be assessed a service/holding
fee of
$10.00 each month. Said service/holding fee may be withdrawn from
any such
funds being held to the extent allowed by law. After three (3) years
from
the deposit of funds into escrow, any amounts thereafter remaining
unclaimed may be escheated to the State of Washington in compliance
with
the State of Washington’s Unclaimed Property Law and
Regulations.
|
B-2
|
14.
|
All
documents, closing statements, and balances due the parties to this
escrow
are to be mailed by ordinary mail to said parties at the addresses
shown
opposite their signatures, unless otherwise
instructed.
|
|
15.
|
Notwithstanding
the foregoing, if escrow holder is also acting as Title Company under
this
Agreement, nothing set forth in these General Escrow Provisions shall
limit any liability set forth in the Title Policy provided in the
Agreement. However, you are not to be responsible or liable for
determination that there has been compliance with any matters that
are
excluded from coverage under the title insurance policy to be issued
in
conjunction with close of this escrow including, but not limited
to,
county or municipal ordinances and state, county or municipal subdivision
or land division regulations or
laws.
|
|
16.
|
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.
|
|
17.
|
The
undersigned acknowledge that escrow holder is relieved of any obligation
to order or obtain any of the inspections or reports required by
this
transaction.
|
|
18.
|
The
undersigned acknowledge that escrow is relieved of any obligation
to
monitor, schedule the timing of, or obtain any party’s compliance with,
any of the contingencies required by this
transaction.
|
X-0
XXXXXXX
X
XXXX
XXXX
XXXXX
XX
XXXXX XXXXXXXX )
) SPECIAL
WARRANTY DEED
COUNTY
OF
________________ )
Grantee’s
Address:
c/o
Emeritus Corporation
0000
Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxxx 00000
KNOW
ALL
MEN BY THESE PRESENTS, that HCPI TRUST, a Maryland real estate investment trust,
hereinafter called “Grantor,” for and in consideration of the sum of
__________________________________________ Dollars ($_________.00) paid by
EMERITUS CORPORATION, a Delaware corporation, hereinafter called “Grantee,” the
receipt of which is hereby acknowledged, granted, bargained, sold and released,
and by these presents grant, bargain, sell and release until the Grantee,
his/her heirs, successors and assigns:
SEE
ATTACHED EXHIBIT “A” FOR
LEGAL
DESCRIPTION
TAX
MAP
NO.:
This
conveyance is made subject to all covenants, conditions, restrictions,
reservations, rights, rights of way, easements, encumbrances, liens and title
matters of record or which would be discovered by an accurate survey or physical
inspection of the premises as of the date hereof (the “Permitted
Exceptions”).
TOGETHER
with all and singular the rights, members, hereditaments and appurtenances
to
the said premises belonging, or in anywise incident and
appertaining.
TO
HAVE
AND TO HOLD, all and singular the premises before mentioned unto the said
Grantee, its heirs, successors and assigns forever.
And,
subject to the Permitted Exceptions, the Grantor does hereby bind itself and
its
heirs, to warrant and forever defend all and singular the said premises until
the Grantee, its heirs and assigns against itself and its heirs and against
every person whomsoever lawfully claiming or to claim the same, or any part
thereof, by, through or under Grantor, but against none other.
[Signature
pages follow]
C-1
WITNESS
the hand and seal this ___ day of ___________ in the year of our Lord Two
Thousand and Seven (2007) in the Two Hundred and Thirty-First (231st)
year of
Sovereignty and Independence of the United States of America.
Signed,
Sealed and Delivered in the Presence of:
Witness
No. 1 Name
of
Witness Xx. 0
Xxxxxxx
Xx. 0 Name
of
Witness No. 2
HCPI
TRUST, a Maryland
real
estate investment trust
By:
Name:
Its:
|
STATE
OF CALIFORNIA
|
)
|
|
|
)
ss.
|
||
|
COUNTY
OF LOS ANGELES
|
)
|
|
On
_______________________, 2007 before me, ______________________________, a
Notary Public, personally appeared ________________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS
my hand and official seal.
Signature
_____________________________
C-2
EXHIBIT
A
LEGAL
DESCRIPTION
C-3
EXHIBIT
D
FORM
OF QUITCLAIM XXXX OF SALE
FOR
VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby
acknowledged, HCPI TRUST, a Maryland real estate investment trust (“Seller”)
does hereby convey to EMERITUS
CORPORATION, a Delaware corporation (“Buyer”),
“AS IS” and without warranty of any kind, other than the warranty that Seller
has not encumbered the same, all of Seller’s right, title and interest, if any,
in and to any tangible personal property located upon the land described on
Schedule
1
attached
hereto and hereby made a part hereof (the “Land”) or within the improvements
located thereon.
TO
HAVE
AND TO HOLD all of said personal property unto Buyer, its successors and
assigns, to its own use forever.
IN
WITNESS WHEREOF, Seller has executed this Xxxx of Sale as of the ____ day of
________, 200_.
Seller:
HCPI
TRUST, a Maryland real estate investment trust
|
By:
|
|
Its:
|
D-1
Schedule
1
LEGAL
DESCRIPTION OF LAND
Schedule
1
Xxxx
of Sale
EXHIBIT
E
FORM
OF MASTER LEASE AMENDMENT
[See
Attached]
E-1
EXHIBIT
F
FORM
OF RELEASE OF CLAIMS
For
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the undersigned, EMERITUS CORPORATION, a Delaware corporation
(“Emeritus”) and [name
of each Lessee]
(collectively with Emeritus, the “Releasors”), and hereby release and forever
discharge the “Releasees” hereunder, consisting of HCPI TRUST, a Maryland real
estate investment trust (“HCP”) and [name
of each Lessor],
and
each of their predecessors, successors, partners, members and assigns, and
its
and their past, present and future partners, members, officers, directors,
trustees, employees, agents, lenders, representatives, attorneys, and all
persons acting by, through, under or in concert with Releasees, or any of them,
of and from any and all manner of action or actions, cause or causes of action,
in law or in equity, suits, debts, liens, contracts, agreements, promises,
liabilities, claims, demands, damages, losses, costs or expenses, of any nature
whatsoever, known or unknown, fixed or contingent, which Releasors, or any
of
them, now has or may hereafter have against each or any of the Releasees by
reason of any matter, cause or thing whatsoever from the beginning of time
to
the date hereof arising out of, based upon or relating to those certain
“Properties” described in that certain Purchase and Sale Agreement Joint Escrow
Agreement dated as of March ___, 2007, between Emeritus, as “Buyer,” and HCP, as
“Seller” (the “Purchase Agreement”), including, without limitation, the
condition of the Properties and/or the presence or existence of any Hazardous
Substances (as defined in the Purchase Agreement) in, on, under or about the
Properties. The execution and delivery of this Release of Claims by Releasors
is
a condition to the Closing of the transaction contemplated by the Purchase
Agreement
EACH
RELEASOR ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY LEGAL COUNSEL AND IS FAMILIAR
WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS
FOLLOWS:
“A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.”
EACH
RELEASOR, BEING AWARE OF THIS CODE SECTION, HEREBY EXPRESSLY WAIVES ANY RIGHTS
IT MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW
PRINCIPLES OF SIMILAR EFFECT.
Each
Releasor represents and warrants that it has not assigned or transferred any
interest in any claim released by this Release of Claims which it may have
against the Releasees, or any of them, and each Releasor agrees to indemnify,
defend and hold Releasees, and each of them, harmless from and against any
liabilities, claims, demands, damages, costs, expenses and attorneys’ fees
incurred by Releasees, or any of them, as a result of any person asserting any
such assignment or transfer. It is the intention of the parties that this
indemnity does not require payment as a condition precedent to recovery
thereunder by the Releasees.
F-1
Each
Releasor agrees that if it hereafter commences any suit arising out of, based
upon, or relating to, or in any manner asserts against Releasees, or any of
them, any of the claims or obligations released in this Release of Claims,
such
Releasor shall pay to Releasees, and each of them, in addition to any other
damages caused to Releasees thereby, all attorneys’ fees incurred by Releasees
in defending or otherwise responding to such suit or claim.
Each
Releasor further understands and agrees that the execution of this Release
of
Claims shall not constitute or be construed as an admission of any obligation
of, or of the validity of any claim whatsoever by, the Releasees, or any of
them, who have each consistently taken the position that they have no obligation
whatsoever to such Releasor.
Notwithstanding
the date of execution of this Release of Claims, this Release of Claims shall
be
and become effective only at the time of Closing (as defined in the Purchase
Agreement).
IN
WITNESS WHEREOF, the undersigned Releasors have executed this Release of Claims
as of the ____ day of ___________, 200__.
|
“Releasors”
EMERITUS
CORPORATION,
a
Delaware corporation
By:
Title:
|
|
|
,
a
By:
Title:
|
|
|
,
a
By:
Title:
|
F-2
|
,
a
By:
Title:
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F-3
EXHIBIT
G
PURCHASE
PRICE ALLOCATION
G-1
