EXHIBIT 2.3.1
EXECUTION
VERSION
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
SHP PACIFIC INN, LLC; SHP XXXX RANCH, LLC; SHP GABLES, LLC;
SHP OAK TREE VILLA, LLC; SHP LEXINGTON, LLC;
SHP INN AT THE PARK, LLC; SHP XXXXXX CREEK, LLC;
SHP MIRAGE INN, LLC; AND SHP OCEAN HOUSE, LLC,
EACH A DELAWARE LIMITED LIABILITY COMPANY
AND
FIT REN LLC,
A DELAWARE LIMITED LIABILITY COMPANY
SHP I PROPERTY NOS.:
PROPERTY NAMES: PACIFIC INN, XXXX RANCH INN, THE GABLES,
OAK TREE, LEXINGTON/VICTORIA, INN AT THE PARK,
THE LODGE AT XXXXXX CREEK, MIRAGE AND OCEAN HOUSE
LOCATION: STATE OF CALIFORNIA
EFFECTIVE DATE: MARCH 16, 2005
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TABLE OF CONTENTS
ARTICLE 1 CERTAIN DEFINITIONS...................................................................... 1
ARTICLE 2 SALE OF PROPERTY......................................................................... 9
ARTICLE 3 PURCHASE PRICE........................................................................... 9
3.1 Xxxxxxx Money Deposit................................................................. 9
3.1.1 Payment of Second Deposit...................................................... 9
3.1.3 Applicable Terms; Failure to Make Deposit...................................... 9
3.2 Cash at Closing....................................................................... 9
ARTICLE 4 TITLE MATTERS............................................................................ 10
4.1 Title to Real Property................................................................ 10
4.2 Title Defects......................................................................... 10
4.2.1 Buyer's Objections to Title; Seller's Obligations and Rights................... 10
4.2.2 Discharge of Title Exceptions.................................................. 11
4.2.3 No New Exceptions.............................................................. 11
4.3 Title Insurance....................................................................... 11
ARTICLE 5 BUYER'S DUE DILIGENCE/CONDITION OF THE PROPERTY.......................................... 12
5.1 Buyer's Due Diligence................................................................. 12
5.1.1 Access to Property............................................................. 12
5.1.2 Limit on Government Contacts................................................... 13
5.1.2 Buyer's Acceptance or Rejection of Contracts................................... 13
5.2 As-Is, Where-Is, With All Faults Sale................................................. 13
5.3 Termination of Agreement During Due Diligence Period.................................. 14
5.4 Buyer's Certificate................................................................... 14
ARTICLE 6 ADJUSTMENTS AND PRORATIONS............................................................... 14
6.1.1 Rents.......................................................................... 14
6.1.2 Other Revenues................................................................. 15
6.2 Real Estate and Personal Property Taxes............................................... 15
6.2.1 Proration of Ad Valorem Taxes.................................................. 15
6.2.2 Insufficient Information....................................................... 15
6.2.3 Special Assessments............................................................ 16
6.3.4 Reassessments.................................................................. 16
6.3 Other Property Operating Expenses..................................................... 16
6.4 Closing Costs......................................................................... 16
6.5 Cash Security Deposits................................................................ 17
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6.6 Apportionment Credit.................................................................. 17
6.7 Delayed Adjustment; Delivery of Operating and Other Statements........................ 17
ARTICLE 7 CLOSING.................................................................................. 17
7.1 Closing Date.......................................................................... 17
7.2 Title Transfer and Payment of Purchase Price.......................................... 18
7.3 Seller's Closing Deliveries........................................................... 18
(a) Conveyance Instrument............................................................. 18
(b) Xxxx of Sale...................................................................... 18
(c) Assignment of Tenant Leases....................................................... 18
(d) Assignment of Intangible Property................................................. 18
(e) Notice to Tenants................................................................. 18
(f) Non-Foreign Status Affidavit...................................................... 19
(g) Evidence of Authority............................................................. 19
(h) Closing Statement................................................................. 19
(i) Title Affidavit................................................................... 19
(j) Tax Returns....................................................................... 19
(k) Withholding Certificate........................................................... 19
(l) Keys and Original Documents....................................................... 19
(m) Estoppels......................................................................... 20
(n) Other Documents................................................................... 20
7.4 Buyer Closing Deliveries.............................................................. 20
(a) Purchase Price.................................................................... 20
(b) Assignment of Leases.............................................................. 20
(c) Assignment of Intangible Property................................................. 20
(d) Buyer's As-Is Certificate......................................................... 20
(e) Buyer's ERISA Certificate......................................................... 20
(f) Evidence of Authority............................................................. 20
(g) Closing Statement................................................................. 21
(h) Other Documents................................................................... 21
(i) Tax Returns....................................................................... 21
7.5 Entire Property....................................................................... 21
ARTICLE 8 CONDITIONS TO CLOSING.................................................................... 21
8.1 Conditions to Seller's Obligations.................................................... 21
(a) Representations True.............................................................. 21
(b) Buyer's Deliveries Complete....................................................... 21
(c) Governmental Approvals............................................................ 21
(d) Buyer's Funding Ability........................................................... 22
8.2 Conditions to Buyer's Obligations..................................................... 22
(a) Representations True.............................................................. 22
(b) Title Conditions Satisfied........................................................ 22
(c) Seller's Deliveries Complete...................................................... 22
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(d) Governmental Approvals............................................................ 22
(e) Estoppels......................................................................... 23
8.3 Waiver of Failure of Conditions Precedent............................................. 23
8.4 Approvals not a Condition to Buyer's Performance...................................... 23
ARTICLE 9 REPRESENTATIONS AND WARRANTIES........................................................... 24
9.1 Buyer's Representations............................................................... 24
9.1.1 Buyer's Authorization.......................................................... 24
9.1.2 Buyer's Financial Condition.................................................... 24
9.2 Seller's Representations.............................................................. 24
9.2.1 Seller's Authorization......................................................... 24
9.2.2 Other Seller's Representations................................................. 25
9.2.3 Delivery of Documents.......................................................... 27
9.3 General Provisions.................................................................... 27
9.3.1 No Representation as to Leases................................................. 27
9.3.2 Not Used....................................................................... 27
9.3.3 Notice of Breach; Seller's Right to Cure....................................... 27
9.3.4 Survival; Limitation on Seller's Liability..................................... 28
ARTICLE 10 COVENANTS............................................................................... 28
10.1 Buyer's Covenants..................................................................... 28
.1.1 Confidentiality.................................................................. 28
.1.2 Buyer's Indemnity................................................................ 29
10.2 Seller's Covenants.................................................................... 29
10.2.1 Service Contracts.............................................................. 30
10.2.2 Maintenance of Property........................................................ 32
10.2.3 Commercial Leases.............................................................. 32
10.2.4 Employees, Compensation and Indemnification.................................... 32
10.3 Mutual Covenants...................................................................... 33
10.3.1 Publicity...................................................................... 33
10.3.2 Brokers........................................................................ 33
10.3.3 Tax Protests, Tax Refunds and Credits.......................................... 33
10.3.4 Survival....................................................................... 34
ARTICLE 11 FAILURE OF CONDITIONS................................................................... 34
11.1 To Seller's Obligations............................................................... 34
11.2 To Buyer's Obligations................................................................ 35
ARTICLE 12 CONDEMNATION/CASUALTY.................................................................. 35
12.1 Right to Terminate.................................................................... 35
12.2 Allocation of Proceeds and Awards..................................................... 36
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12.3 Insurance............................................................................. 36
12.4 Waiver................................................................................ 36
ARTICLE 13 ESCROW.................................................................................. 36
13.1 Deposit............................................................................... 36
13.2 Delivery.............................................................................. 37
13.3 Failure of Closing.................................................................... 37
13.4 Stakeholder........................................................................... 37
13.5 Taxes................................................................................. 37
13.6 Execution by Escrow Agent............................................................. 37
ARTICLE 14 Lease Expenses......................................................................... 37
14.1 Apartment Leasing..................................................................... 37
14.2 Lease Enforcement..................................................................... 38
ARTICLE 15 MISCELLANEOUS.......................................................................... 38
15.1 Buyer's Assignment.................................................................... 38
15.2 Designation Agreement................................................................. 39
15.3 Survival/Merger....................................................................... 39
15.4 Integration/Waiver.................................................................... 39
15.5 Governing Law......................................................................... 40
15.6 Captions Not Binding; Exhibits........................................................ 40
15.7 Binding Effect........................................................................ 40
15.8 Severability.......................................................................... 40
15.9 Notices............................................................................... 40
15.10 Counterparts.......................................................................... 42
15.11 No Recordation........................................................................ 42
15.12 Additional Agreements; Further Assurances............................................. 42
15.13 Construction.......................................................................... 42
15.14 ERISA................................................................................. 42
15.15 Indemnity............................................................................. 43
15.15.1 Seller's Indemnity........................................................ 43
15.15.2 Buyer's Indemnity......................................................... 44
15.15.3 Survival; Notice of Claims................................................ 45
15.16 Time of The Essence................................................................... 45
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15.17 Waiver of Jury Trial.................................................................. 45
15.18 Facsimile Signatures.................................................................. 45
15.19 Jurisdiction.......................................................................... 45
15.20 Waiver; Release....................................................................... 46
15.21 Natural Hazard Disclosures............................................................ 46
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EXHIBITS
A. LEGAL DESCRIPTION
B. LIST OF CONTRACTS
C. FORM OF BUYER'S AS-IS CERTIFICATE AND AGREEMENT
D. FORM OF GRANT DEED
E. FORM OF XXXX OF SALE
F. FORM OF ASSIGNMENT OF TENANT LEASES
G. FORM OF ASSIGNMENT OF INTANGIBLE PROPERTY
H. FORM OF NOTICE TO TENANTS
I. FORM OF SELLER'S NON-FOREIGN CERTIFICATE
J. AUTHORITY CERTIFICATES:
-- 1: CERTIFICATE REGARDING LIMITED LIABILITY COMPANY STATUS AND
AUTHORITY (SELLER)
-- 2: CERTIFICATE REGARDING PARTNERSHIP STATUS AND AUTHORITY (SENIOR
HOUSING PARTNERS I, L.P.)
-- 3: CERTIFICATE REGARDING LIMITED LIABILITY COMPANY STATUS AND
AUTHORITY (SENIOR HOUSING PARTNERS I, L.L.C.)
-- 4: CERTIFICATE OF ASSISTANT SECRETARY (PRUDENTIAL)
K. FORM OF CLOSING STATEMENT AGREEMENT
L. FORM OF SELLER'S TITLE AFFIDAVIT
M. FORM OF BUYER'S ERISA REPRESENTATION
N. LITIGATION NOTICES, CONTRACT DEFAULTS, GOVERNMENTAL VIOLATIONS
O. LIST OF TENANTS (RENT ROLL)
P. DUE DILIGENCE MATERIALS
Q. FORM OF GROUND LEASE ESTOPPEL
R. LIST OF LICENSES AND PERMITS
S. FORMS OF SNF ESTOPPEL
SCHEDULES
1(a) List of Assumed Loans
1(b) Value of Each Facility
8.2(d) Governmental Approvals
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of March 16,
2005, by and between SHP PACIFIC INN, LLC; SHP XXXX RANCH, LLC; SHP GABLES, LLC;
SHP OAK TREE VILLA, LLC; SHP LEXINGTON, LLC; SHP INN AT THE PARK, LLC; SHP
XXXXXX CREEK, LLC; SHP MIRAGE INN, LLC; AND SHP OCEAN HOUSE, LLC, each a
Delaware limited liability company (collectively, "Seller"), and FIT REN LLC, a
Delaware limited liability company ("Buyer").
W I T N E S S E T H:
In consideration of the mutual covenants and agreements set forth herein
and in consideration of the sum of One Hundred and No/100 Dollars ($100.00) paid
in hand by Buyer to Seller, receipt of which is hereby acknowledged, and for
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE 1 - CERTAIN DEFINITIONS
As used herein, the following terms shall have the following meanings:
"ASSUMED CONTRACTS" shall mean those Contracts Buyer elects to or is
obligated to assume pursuant to Subsection 5.1.3 hereof.
"ASSUMED LOAN" shall mean those certain mortgage loans described on
Schedule 1(a) attached to and made a part of this Agreement.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday, or any
federal or state of California holiday. If any period expires on a day which is
not a Business Day or any event or condition is required by the terms of this
Agreement to occur or be fulfilled on a day which is not a Business Day, such
period shall expire or such event or condition shall occur or be fulfilled, as
the case may be, on the next succeeding Business Day.
"BUYER'S BROKER" shall mean any broker, agent, finder or advisor retained
by Buyer in connection with this Transaction, if any.
"BUYER'S REPORTS" shall mean the results of any examinations, inspections,
investigations, tests, studies, analyses, appraisals, evaluations and/or
investigations prepared by or for or otherwise obtained by Buyer or Buyer's
Representatives in connection with Buyer's Due Diligence.
"BUYER'S REPRESENTATIVES" shall mean Buyer, Brookdale Living Communities,
Inc., and any officers and directors of either of them.
"CLOSING" shall mean the closing of the Transaction.
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"CLOSING DATE" shall mean a date not later than April 15, 2005, as the
same may be extended pursuant to the express terms of this Agreement.
"CLOSING TAX YEAR" shall mean the Tax Year in which the Closing Date
occurs.
"CONFIDENTIAL MATERIALS" shall mean any books, computer software, records
or files (whether in a printed or electronic format) that consist of or contain
any of the following: appraisals; strategic plans for the Property; internal
analyses; information regarding the marketing of the Property for sale;
submissions relating to obtaining internal authorization for the sale of the
Property by Seller or any direct or indirect owner of any beneficial interest in
Seller; attorney and accountant work product; attorney-client privileged
documents; internal correspondence of Seller, any direct or indirect owner of
any beneficial interest in Seller, or any of their respective affiliates and
correspondence between or among such parties.
"COMMERCIAL LEASES" shall mean all Leases that are not with residents of
the Property.
"CONTRACTS" shall mean all service, supply, maintenance, utility and
commission agreements, all equipment leases, and all other contracts,
subcontracts and agreements relating to the Real Property and the Personal
Property and to which Seller (or Seller's managing agent) is a party (including
all contracts, subcontracts and agreements relating to the construction of any
unfinished tenant improvements), all of which are described in EXHIBIT B
attached hereto and incorporated herein by this reference, together with any
additional contracts, subcontracts and agreements entered into in accordance
with the terms of Subsection 10.2.1 hereof and as the same may be modified or
terminated in accordance with the terms of Subsections 5.1.3 or 10.2.1.
"DEEMED TO KNOW" (or words of similar import) shall have the following
meaning:
(a) Buyer shall be "deemed to know" of the existence of a fact or
circumstance to the extent that:
(i) any Buyer's Representative actually knows of such fact or
circumstance, or
(ii) such fact or circumstance is disclosed by this Agreement, the
Due Diligence Materials or Buyer's Reports.
(b) Buyer shall be "deemed to know" that any Seller's Warranty is
untrue, inaccurate or incorrect to the extent that:
(i) any Buyer's Representative has actual knowledge of information
which is inconsistent with such Seller's Warranty, or
(ii) this Agreement, the Due Diligence Materials or Buyer's Reports
contain information that is clearly inconsistent with a
Seller's Warranty.
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"DEPOSIT" shall mean the sum of Three Million and No/100 Dollars
($3,000,000.00), together with any interest earned thereon.
"DESIGNATED EMPLOYEES" shall mean Xxxx X. Dark, Xxxx Xxxx, Xxxxx XxXxxx
and Xxxxx Xxxx.
"DOCUMENTS" shall mean the documents and instruments applicable to the
Property or any portion thereof that Seller or any of the other Seller Parties
deliver or make available to Buyer or Buyer's Representatives prior to Closing
or which are otherwise obtained by Buyer or Buyer's Representatives prior to
Closing, including, but not limited to, the Title Commitment, the Survey, the
Title Documents, and the Property Documents.
"DUE DILIGENCE" shall mean examinations, inspections, investigations,
tests, studies, analyses, appraisals, evaluations and/or investigations with
respect to the Property, the Documents, and other information and documents
regarding the Property, including, without limitation, examination and review of
title matters, applicable land use and zoning Laws and other Laws applicable to
the Property, the physical condition of the Property, and the economic status of
the Property.
"DUE DILIGENCE MATERIALS" shall mean those documents, studies, reports and
other information regarding the Property described on EXHIBIT P attached hereto.
"DUE DILIGENCE PERIOD" shall mean the period commencing prior to the
execution of this Agreement and expiring on March 16, 2005.
"EMPLOYMENT CONTRACTS" shall mean any collective bargaining agreements or
contracts for the employment of individuals for work or services to be performed
at the Property.
"ENVIRONMENTAL LAWS" shall mean any and all federal, state and local laws
or statutes that relate to or impose liability or standards of conduct
concerning the environment, as now or hereafter in effect and as have been or
hereafter may be amended, modified or reauthorized, including without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. Section 9601 et seq.), the Hazardous Materials Transportation Act
(42 U.S.C. Section 1802 et seq.), the Resource Conservation and Recovery Act (42
U.S.C. Section 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C.
Section 1251 et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601
et seq.), the Clean Air Act (42 U.S.C. Section 7401 et seq.), and the Safe
Drinking Water Act (42 U.S.C. Section 300(f) et seq.), and all rules,
regulations, codes, ordinances and guidance documents promulgated or published
thereunder, and the provisions of any licenses, permits, orders and decrees
issued pursuant to any of the foregoing.
"ESCROW AGENT" shall mean Fidelity National Title Insurance Company ,
whose mailing address is 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000 , Attention: Xxxxx X. Xxxxx, in its capacity as escrow agent.
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"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"FACILITY" shall mean the portion of Property at any one location as
described in the definition of Real Property.
"GROUND LEASE" shall mean that certain Lease by and between Xxxxxxx Xxxxx
and Xxxxx Xxxxx, collectively the "Original Landlord", and Ocean House
Investment Company ("OHIC"), dated as of July 15, 1983; as amended, assigned,
supplemented, modified and affected by: that certain Letter Agreement, dated as
of July 15, 1983; Assignment by and between OHIC and Senior Inns of America
Venture ("SIA"), dated June 15, 1984; as assigned by Assignment by and between
SIA and Shearson August Property Partnership ("XXXX"), dated March 23, 1987;
assignment documents providing for the transfer of Landlord's interest to RSZ
Partnership; Lease Assignment by and between Senior Income Fund L.P., a Delaware
limited partnership ("SIF") and MSLC, as tenant, dated October 13, 1998; Lessor
Estoppel Certificate and Addendum given to The Sumitomo Bank, Limited, by
Landlord, dated September 9, 1998; a letter agreement from The Sumitomo Bank,
Ltd. And the Landlord, dated October 9, 1998; the Escrow and Security Agreement
(Earthquake Repair Account), by and between MSLC, as tenant, Landlord and The
Sumitomo Bank, Limited, dated September 25, 1998; Subordination, Non-Disturbance
and Attornment Agreement along with the Subordination Agreement, dated as of
September 25, 1998 by and between MSLC, Landlord and City National Bank.
"GROUND LEASE ESTOPPEL" shall mean an estoppel certificate in the form
attached hereto as EXHIBIT Q from the lessor under the Ground Lease.
"HAZARDOUS MATERIAL" shall mean any and all hazardous, toxic, dangerous or
other wastes, substances, chemicals, gases, liquids and materials defined as
such in or regulated by any Environmental Law, including, without limitation,
(i) "hazardous substances" and "toxic substances" as such terms are defined in
the Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. Section 9601 et seq., or the Hazardous Materials Transportation Act, 49
U.S.C. Section 1802 et seq.; (ii) "hazardous wastes", as such term is defined by
the Resource Conservation and Recovery Act, 42 U.S.C. Section 6902 et seq.;
(iii) crude oil or any fraction thereof which iS liquid at standard conditions
of temperature and pressure; (iv) any radioactive material, including any
source, special nuclear or by-product material as defined at 42 U.S.C. Section
2011 et seq.; (v) asbestos in any form or condition; and (vi) polychlorinated
biphenyls and hydrocarbons or substances or compounds containing polychlorinated
biphenyls or hydrocarbons.
"LAWS" shall mean all municipal, county, state or federal statutes, codes,
ordinances, laws, rules or regulations.
"LEASES" shall mean all occupancy agreements or leases for residents or
tenants of the Real Property on the Closing Date.
"LIABILITIES" shall mean, collectively, any and all problems, conditions,
losses, costs, damages, claims, liabilities, expenses, demands or obligations of
any kind or nature whatsoever.
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"LICENSES AND PERMITS" shall mean all licenses and permits for the use and
operation of Property by Seller (or the Property Manager), as described in
EXHIBIT R.
"MAJOR CASUALTY/CONDEMNATION" shall mean:
(a) with respect to any condemnation or eminent domain proceedings that
occurs after the date hereof, the portion of the Property that is
the subject of such proceedings has a value in excess of Five
Hundred Thousand and No/100 Dollars ($500,000.00); and
(b) with respect to any casualty that occurs after the date hereof,
either (i) the casualty is an uninsured casualty and Seller, in its
sole and absolute discretion, does not elect to cause the damage to
be repaired or restored or give Buyer a credit at Closing for such
repair or restoration, or (ii) the portion of the Property that is
damaged or destroyed has a cost of repair that is in excess of Five
Hundred Thousand and no/100 Dollars ($500,000.00).
"OTHER PROPERTY RIGHTS" shall mean, collectively, Seller's interest in and
to all of the following, if and only to the extent the same may be assigned or
quitclaimed by Seller without any expense to Seller: (a) any guaranties and
warranties in effect with respect to any portion of the Real Property or the
Personal Property as of the Closing Date, and (b) the rights of Seller (if any)
to the names "Inn at the Park", "Xxxx Ranch Inn", "Mirage Inn", "Pacific Inn",
"Ocean House", "The Gables", "The Lexington", "Oak Tree Villa" and "Lodge at
Xxxxxx Creek" (it being acknowledged by Buyer that Seller does not have
exclusive rights (and in fact may have no rights) to use such name and that
Seller has not registered the same in any manner).
"OWNER'S TITLE POLICY" shall mean an ALTA Owner's Form of title insurance
policy with extended coverage in the form of the Title Commitment, in the amount
of the Purchase Price.
"PERMITTED EXCEPTIONS" shall mean and include all of the following,
subject to the rights of Buyer to object to matters of title and survey pursuant
to Article 4 hereof and the right of Buyer to terminate this Agreement pursuant
to Article 5 hereof: (a) applicable zoning and building ordinances and land use
regulations, (b) all liens, encumbrances, covenants, conditions, restrictions,
easements and other matters of record, except to the extent that the same are
caused or created by Seller in violation of the terms of Subsection 4.2.3, (c)
such exceptions to title as are listed on Schedule B of the Title Commitment,
including the Title Company's standard printed exceptions, (d) such state of
facts as disclosed in a Survey and physical inspection of the Property, (e) the
lien of taxes and assessments not yet due and payable (it being agreed by Buyer
and Seller that if any tax or assessment is levied or assessed with respect to
the Property after the date hereof and the owner of the Property has the
election to pay such tax or assessment either immediately or under a payment
plan with interest, Seller may elect to pay under a payment plan, which election
shall be binding on Buyer), (f) any exceptions caused by Buyer or any Buyer's
Representative, (g) such other exceptions as may be Removed from the Owner's
Title Policy, (h) the rights of the tenants under the Leases, and (i) any
matters deemed to constitute additional Permitted Exceptions under Subsection
4.2.1 hereof.
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"PERSONAL PROPERTY" shall mean, collectively, (a) all tangible personal
property owned by Seller or the Property Manager that is located on the Real
Property and used in the ownership, operation and maintenance of the Real
Property; and (b) all books, records and files of Seller relating to the Real
Property or the Leases; but specifically excluding from the items described in
both clauses (a) and (b), any Confidential Materials and any computer software
that is licensed to Seller, the license for which cannot be assigned to Buyer
without payment of a fee by Seller or Seller's Manager.
"PROPERTY" shall mean, collectively, (a) the Real Property, (b) the
Personal Property, (c) Seller's interest as landlord in all Leases; (d) if and
to only the extent the same may be assigned or quitclaimed by Seller, the
Assumed Contracts, (e) the Licenses and Permits, and (f) the Other Property
Rights.
"PROPERTY DOCUMENTS" shall mean, collectively, (a) the Leases, (b) the
Assumed Contracts, (c) the Licenses and Permits and (d) any other documents or
instruments which constitute, evidence or create any portion of the Property.
"PROPERTY MANAGER" shall mean Renaissance Senior Living, LLC, in its
capacity as the manager of each Facility on behalf of Seller, pursuant to
separate Management Agreements for each Facility.
"PRUDENTIAL" shall mean The Prudential Insurance Company of America, a New
Jersey corporation, which is the managing member of the general partner of the
managing member of Seller.
"PTE 84-14" shall mean Prohibited Transaction Exemption 84-14 granted by
the U.S. Department of Labor.
"PURCHASE PRICE" shall mean the sum of Two Hundred, Eighty-Two Million
Four Hundred Forty-Seven Thousand and No/100 Dollars ($282,447,000.00).
"REAL PROPERTY" shall mean those certain parcels of real estate located at
00 Xxxxxxxxx, Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx; 000 Xxxxx Xxxxxxx Xxxxx Xxxx,
Xxxxxx Xxxxxx, Anaheim Hills, California; 00000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxx
Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx; 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxx; 000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx; 0000 Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx;
000 Xxxxxxxx Xxxx, Xxxxx Xxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx; 0000 Xxxxx
Xxxxxx, Xxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx; and 0000 Xxxxx Xxxxxx, Xxx
Xxxxxxx County, Santa Monica, California and legally described in EXHIBIT A
attached hereto and incorporated herein by this reference, together with all
buildings, improvements and fixtures located thereon and owned by Seller as of
the Closing Date and all right, title and interest, if any, that Seller may have
in and to all rights, privileges and appurtenances pertaining thereto including
all of Seller's right, title and interest, if any, in and to all rights-of-way,
open or proposed streets, alleys, easements, strips or gores of land adjacent
thereto; provided, however, that in the event of any condemnation or casualty
that occurs after the date hereof, the term "Real
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Property" shall not include any of the foregoing that is destroyed or taken as a
result of any such condemnation proceeding.
"REMOVE" with respect to any exception to title shall mean that Seller
causes the Title Company to remove or affirmatively insure over (pursuant to an
endorsement to the Owner's Title Policy reasonably acceptable to Buyer), the
same as an exception to the Owner's Title Policy for the benefit of Buyer,
without any additional cost to Buyer, whether such removal or insurance is made
available in consideration of payment, bonding, indemnity of Seller or
otherwise.
"RENTS" shall mean all monthly rents due from the tenants of the Property
under the Leases.
"REQUIRED REMOVAL EXCEPTIONS" shall mean, collectively, any Title
Objections to the extent (and only to the extent) that the same (a) have not
been caused by Buyer or any Buyer's Representatives, and (b) are either:
(i) liens evidencing monetary encumbrances (other than liens for
non-delinquent general real estate taxes or assessments) ("Monetary
Liens") which can be Removed by payment of liquidated amounts,
except any Assumed Loans; or
(ii) liens or encumbrances (including, but not limited to, Monetary
Liens) created or suffered by Seller after the date of this
Agreement in violation of Subsection 4.2.3.
"SCHEDULED VALUE" shall mean the value of each respective Facility set
forth on Schedule 1(b) attached hereto and made a part hereof.
"SELLER-ALLOCATED AMOUNTS" shall mean, collectively:
(a) with respect to any condemnation or eminent domain proceedings with
respect to any Facility that occurs after the date hereof, (i) the
costs, expenses and fees, including reasonable attorneys' fees,
expenses and disbursements, incurred by Seller in connection with
obtaining payment of any award or proceeds in connection with any
such condemnation or eminent domain proceedings, and (ii) any
portion of any such award or proceeds that is allocable to loss of
use of such Facility prior to Closing; and
(b) with respect to any casualty to the Facility that occurs after the
date hereof, (i) the costs, expenses and fees, including reasonable
attorneys' fees, expenses and disbursements, incurred by Seller in
connection with the negotiation and/or settlement of any casualty
claim with an insurer with respect to such Facility, (ii) the
proceeds of any rental loss, business interruption or similar
insurance that are allocable to the period prior to the Closing
Date, and (iii) the reasonable and actual costs incurred by Seller
in stabilizing and/or repairing the Facility following a casualty.
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"SELLER'S BROKER" shall mean CB Xxxxxxx Xxxxx, Inc.
"SELLER'S KNOWLEDGE" or words of similar import shall refer only to the
actual knowledge of the Designated Employees and shall not be construed to refer
to the knowledge of any other Seller Party, provided that one of such Designated
Employees shall review all Seller's Warranties in this Agreement with the
executive director (or the person employed by the Property Manager in a similar
capacity) of the applicable Facility and shall be charged with the actual
knowledge that such Designated Employee gains from such executive directors.
There shall be no personal liability on the part of the Designated Employees
arising out of any of the Seller's Warranties.
"SELLER PARTIES" shall mean and include, collectively, (a) Seller; (b) its
counsel; (c) Seller's Broker; (d) the Property Manager, (e) any direct or
indirect owner of any beneficial interest in Seller, (f) any officer, director,
employee, or agent of Seller, its counsel, Seller's Broker, Seller's property
manager or any direct or indirect owner of any beneficial interest in Seller;
and (g) any other entity or individual affiliated or related in any way to any
of the foregoing.
"SELLER'S WARRANTIES" shall mean Seller's representations and warranties
set forth in Section 9.2 as the same may be deemed modified or waived by Buyer
pursuant to this Agreement.
"SNF LEASE" shall mean that certain Lease (Skilled Nursing Facility) by
and between MBK Senior Living Communities Ltd., a California limited
partnership, as Landlord, and Xxxxxxx Enterprises-California, Inc., a California
corporation, as Tenant, dated November 10, 1998, which Lease was supplemented by
that certain Lease Commencement Supplement, dated January 1, 1999, by that
certain Transition Agreement, dated October 26, 1998 and that certain Guaranty
by Xxxxxxx Enterprises, Inc., dated November 10, 1998, the interest of Landlord
having been acquired by SHP Lexington, LLC by virtue of its acquisition of fee
title to the Lexington/Victoria Facility..
"SNF ESTOPPEL" shall mean estoppel certificates in the forms attached
hereto as EXHIBIT S from the tenant and subtenants under the SNF Lease.
"SURVEY" shall mean a survey of the Property to be obtained as set forth
in Article 4.
"TAX YEAR" shall mean the year period commencing on January 1 of each
calendar year and ending on December 31 of each calendar year.
"TITLE COMMITMENT" shall mean, collectively, those certain commitments to
issue the Owner's Policies of Title Insurance with respect to the Property to be
issued by the Title Company.
"TITLE COMPANY" shall mean Fidelity National Title Insurance Company.
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"TITLE DOCUMENTS" shall mean all documents referred to on Schedule B of
the Title Commitment as exceptions to coverage.
"TITLE OBJECTIONS" shall mean any exceptions to title to which Buyer is
entitled and timely objects in accordance with the terms of Subsection 4.2.1(a).
"TRANSACTION" shall mean the transaction contemplated by this Agreement.
ARTICLE 2 - SALE OF PROPERTY
Seller agrees to sell, transfer and assign and Buyer agrees to purchase,
accept and assume, subject to the terms and conditions set forth in this
Agreement and the Exhibits attached hereto, all of Seller's right, title and
interest in and to the Property.
ARTICLE 3 - PURCHASE PRICE
In consideration of the sale of the Property to Buyer, Buyer shall pay to
Seller an amount equal to the Purchase Price, as prorated and adjusted as set
forth in Article 6, Section 7.2, or as otherwise provided under this Agreement.
3.1 XXXXXXX MONEY DEPOSIT.
3.1.1 PAYMENT OF DEPOSIT. If Buyer does not elect to terminate this
Agreement pursuant to the provisions of Section 5.3, Buyer shall make the
Deposit in immediately available funds with Escrow Agent within two (2)
Business Days following the last day of the Due Diligence Period.
3.1.2 APPLICABLE TERMS; FAILURE TO MAKE DEPOSIT. Except as expressly
otherwise set forth herein, the Deposit shall be applied against the
Purchase Price on the Closing Date and shall otherwise be held and
delivered by Escrow Agent in accordance with the provisions of Article 13.
Notwithstanding any provision in this Agreement to the contrary, if Buyer
fails to timely make the Deposit as provided herein, at Seller's option,
Buyer shall be deemed to have elected to terminate this Agreement and, if
Seller elects such option, the parties shall have no further rights or
obligations hereunder except for obligations which expressly survive the
termination of this Agreement.
3.2 CASH AT CLOSING. On the Closing Date, Buyer shall pay to Seller an
amount equal to the Purchase Price in immediately available funds by wire
transfer as more particularly set forth in Section 7.2, as prorated and adjusted
as set forth in Article 6, Section 7.2, or as otherwise provided under this
Agreement, and, as a portion of such payment, Buyer may cause the Escrow Agent
to pay to Seller such portion of the Deposit as Buyer requires in immediately
available funds by wire transfer as more particularly set forth in Section 7.2.
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ARTICLE 4 - TITLE MATTERS
4.1 TITLE TO REAL PROPERTY. Promptly after the date hereof, but in no
event later than seven (7) days after the date hereof, Seller shall deliver to
Buyer copies of Seller's owner's title insurance policy, copies of all of the
title exception documents referenced therein in Seller's possession, and
Seller's existing survey of the Real Property. Thereafter, Buyer shall use good
faith and reasonable efforts to obtain the Title Commitment, copies of all of
the Title Documents, and the Survey as soon as reasonably practicable after the
date hereof. Buyer shall notify Seller when it receives any of the
aforementioned documents and shall promptly furnish Seller copies of the same.
4.2 TITLE DEFECTS.
4.2.1 BUYER'S OBJECTIONS TO TITLE; SELLER'S OBLIGATIONS AND RIGHTS.
(a) Prior to the end of the Due Diligence Period, Buyer shall have
the right to object in writing to any title matters that appear on the
Title Commitment, the Survey, and any supplemental title reports or
updates to the Title Commitment (whether or not such matters constitute
Permitted Exceptions). In addition, after the expiration of the Due
Diligence Period, Buyer shall have the right to object in writing to any
title matters that are not Permitted Exceptions and that materially
adversely affect Buyer's title to the Real Property if such matters appear
on any supplemental title reports or updates to the Title Commitment
issued after the expiration of the Due Diligence Period and if such
matters are placed of record after the effective date of the Title
Commitment received prior to the expiration of the Due Diligence Period,
so long as such objection is made by Buyer within five (5) Business Days
after Buyer becomes aware of the same (but, in any event, prior to the
Closing Date). Unless Buyer is entitled to and timely objects to such
title matters, all such title matters shall be deemed to constitute
additional Permitted Exceptions.
(b) If this Agreement is not terminated by Buyer in accordance
with the provisions hereof, Seller shall, at Closing, Remove or cause to
be Removed any Title Objections to the extent (and only to the extent)
that the same constitute Required Removal Exceptions. In addition, Seller
may elect (but shall not be obligated) to Remove or cause to be Removed
any other Title Objections. To the extent that the same do not constitute
Required Removal Exceptions, Seller may notify Buyer in writing after
receipt of Buyer's notice of Title Objections (but, in any event, prior to
the Closing Date) whether Seller elects to Remove the same (and the
failure to provide such notice within five (5) Business Days after the
date of Buyer's notice of Title Objections shall be deemed to constitute
an election of Seller not to effect any such cure). If Seller elects not
to Remove one or more Title Objections (or is deemed to have so elected),
then, within five (5) Business Days after Seller's election (but, in any
event, prior to the Closing Date), Buyer may elect in writing to either
(i) terminate this Agreement, in which event the Deposit shall be paid to
Buyer and, thereafter, the parties shall have no further rights or
obligations hereunder except for obligations which expressly survive the
termination of this Agreement, or (ii) waive such Title Objections and
proceed to Closing. Failure of
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Buyer to respond in writing within such period shall be deemed an election
by Buyer to waive such Title Objections and proceed to Closing. Any such
Title Objection so waived (or deemed waived) by Buyer shall be deemed to
constitute a Permitted Exception and the Closing shall occur as herein
provided without any reduction of or credit against the Purchase Price.
(c) If Seller is unable to Remove any Required Removal Exceptions
or any other Title Objection that it has previously elected to Remove
prior to the Closing, Buyer may at Closing elect to either (a) terminate
this Agreement, in which event the Deposit shall be paid to Buyer, Seller
shall reimburse Buyer for the out-of-pocket costs and expenses incurred by
Buyer in connection with this Agreement and its inspections of the
Property (not to exceed $1,000,000.00), and, thereafter, the parties shall
have no further rights or obligations hereunder except for obligations
which expressly survive the termination of this Agreement, or (b) waive
such Title Objection and the Closing shall occur as herein provided
without any reduction of or credit against the Purchase Price, other than
Required Removal Exceptions that can be removed by payment of a liquidated
sum.
(d) Seller shall be entitled to a reasonable adjournment of the
Closing (not to exceed thirty (30) days) for the purpose of the Removal of
any Required Removal Exceptions or other Title Objections.
4.2.2 DISCHARGE OF TITLE EXCEPTIONS. If on the Closing Date there
are any Required Removal Exceptions or any other Title Objections which
Seller has elected in writing to pay and discharge, Seller may use any
portion of the Purchase Price to satisfy the same, provided Seller shall
cause the Title Company to Remove the same.
4.2.3 NO NEW EXCEPTIONS. From and after the date hereof, Seller
shall not execute any easement, restriction, covenant or other matter
affecting title to the Property unless Buyer has received a copy thereof
(and any ancillary information reasonably necessary for Buyer to evaluate
the effect thereof) and has approved the same in writing. If Buyer fails
to object in writing to any such proposed instrument within five (5)
Business Days after receipt of the aforementioned notice, Buyer shall be
deemed to have approved the proposed instrument. Buyer's consent shall not
be unreasonably withheld or delayed with respect to any such instrument
that is proposed prior to the end of the Due Diligence Period. Buyer, in
its sole and absolute discretion, shall be entitled to grant or withhold
its consent with respect to any such instrument that is proposed between
the end of the Due Diligence Period and the Closing.
4.3 TITLE INSURANCE. At Closing, the Title Company shall issue the
Owner's Title Policy to Buyer, insuring that title to the Real Property is
vested in Buyer subject only to the Permitted Exceptions. Buyer shall be
entitled to request that the Title Company provide such endorsements (or
amendments) to the Owner's Title Policy as Buyer may reasonably require,
provided that (a) such endorsements (or amendments) shall be at no cost to, and
shall impose no additional liability on, Seller, (b) Buyer's obligations under
this Agreement shall not be conditioned upon Buyer's ability to obtain such
endorsements and, if Buyer is unable to obtain
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such endorsements, Buyer shall nevertheless be obligated to proceed to close the
Transaction without reduction of or set off against the Purchase Price, and (c)
the Closing shall not be delayed as a result of Buyer's request.
ARTICLE 5 - BUYER'S DUE DILIGENCE/CONDITION OF THE PROPERTY
5.1 BUYER'S DUE DILIGENCE.
5.1.1 ACCESS TO PROPERTY. On or before the tenth (10th) day
following the date of this Agreement, Seller shall use all reasonable
efforts to deliver the Due Diligence Materials to Buyer. On or before
fifteen (15) days following the date of this Agreement, Buyer may notify
Seller, in writing, if Buyer believes that Seller has failed to deliver
any of the Due Diligence Materials, which notice must include Buyer's
detailed listing of the missing Due Diligence Materials. If Buyer does not
deliver such notice by the fifteenth (15th) day following the date of this
Agreement, Seller will be deemed to have delivered all of the Due
Diligence Materials; provided, however, that nothing herein shall be
deemed to relieve Seller of liability, if Seller breaches the
representation and warranty set forth in Section 9.2.2(j) (i.e. if Seller
knowingly, based on the definition of Seller's Knowledge, fails to deliver
Due Diligence Materials). If Buyer does deliver such notice, Seller will
respond in writing, within five (5) business days, and will include with
such response all of the missing Due Diligence Materials set forth on
Buyer's list which Seller has been able to locate. Upon such response,
Seller will be deemed to have fulfilled its obligation to deliver Due
Diligence Materials; provided, however, that nothing herein shall be
deemed to relieve Seller of liability, if Seller breaches the
representation and warranty set forth in Section 9.2.2(j) (i.e. if Seller
knowingly, based on the definition of Seller's Knowledge, fails to deliver
Due Diligence Materials). Between the date hereof and the Closing Date
Seller shall allow Buyer and Buyer's Representatives access to the
Property upon reasonable prior notice at reasonable times provided (a)
such access does not interfere with the operation of the Property or the
rights of tenants; (b) Buyer shall not contact any tenant without Seller's
prior written consent; and (c) Seller or its designated representative
shall have the right to reasonably pre-approve and be present during any
physical testing of the Property. In addition, Seller will make or cause
to be made available to Buyer for copying, at Buyer's sole cost and
expense, the property files of Seller and the management agent for the
Property (other than those files containing Confidential Materials). Buyer
shall immediately return the Property to the condition existing prior to
any tests and inspections, to the extent not prohibited by any applicable
Laws. Prior to such time as Buyer or any of Buyer's Representatives enter
the Property, Buyer shall (i) obtain policies of general liability
insurance which insure Buyer and Buyer's Representatives with liability
insurance limits of not less than $1,000,000 combined single limit for
personal injury and property damage and name Seller and Seller's property
manager as additional insureds and which are with such insurance
companies, provide such coverages and carry such other limits as Seller
shall reasonably require, and (ii) provide Seller with certificates of
insurance evidencing that Buyer has obtained the aforementioned policies
of insurance.
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5.1.2 LIMIT ON GOVERNMENT CONTACTS. Notwithstanding any provision in
this Agreement to the contrary, except in connection with the preparation
of a so-called "Phase I" environmental report with respect to the Property
and except as may be required by applicable Laws, Buyer shall not contact
any governmental official or representative regarding hazardous materials
on or the environmental condition of the Property without Seller's prior
written consent thereto, which consent shall not be unreasonably withheld
or delayed. In addition, if Seller's consent is obtained by Buyer, Seller
shall be entitled to receive at least five (5) days prior written notice
of the intended contact and to have a representative present when Buyer
has any such contact with any governmental official or representative.
5.1.3 BUYER'S ACCEPTANCE OR REJECTION OF CONTRACTS. At any time, and
from time to time during the Due Diligence Period, Buyer may elect not to
assume one or more of the Contracts, which election shall be made by the
delivery of written notice to Seller (but only if such Contract provides
that the notice period required can expire prior to the Closing Date if
Seller provides notice to the other party to the Contract within five (5)
Business Days of Buyer's notice), in which event, Seller shall terminate
such Contracts which Buyer has elected not to assume on or before the
Closing Date, at no cost or expense to Buyer. Buyer shall be deemed to
have elected to assume the other Contracts with respect to which Buyer has
not delivered written notice pursuant to this Subsection 5.1.3 and any
Contracts which cannot be terminated because the notice period required
will not expire prior to the Closing Date.
5.2 AS-IS, WHERE-IS, WITH ALL FAULTS SALE. Buyer acknowledges and agrees
as follows:
(a) During the Due Diligence Period, Buyer has conducted (or has
waived its right to conduct), and shall continue to conduct, such Due
Diligence as Buyer has deemed or shall deem necessary or appropriate.
(b) The Property shall be sold, and Buyer shall accept possession
of the Property on the Closing Date, "AS IS, WHERE IS, WITH ALL FAULTS",
with no right of setoff or reduction in the Purchase Price other than as
expressly provided in this Agreement.
(c) Except for Seller's Warranties, none of the Seller Parties
have or shall be deemed to have made any verbal or written
representations, warranties, promises or guarantees (whether express,
implied, statutory or otherwise) to Buyer with respect to the Property,
any matter set forth, contained or addressed in the Documents (including,
but not limited to, the accuracy and completeness thereof) or the results
of Buyer's Due Diligence.
(d) Except for that information contained in Seller's Warranties,
Buyer shall independently confirm to its satisfaction all information that
it considers material to its purchase of the Property or the Transaction.
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In addition, Buyer expressly understands and acknowledges that it is possible
that unknown Liabilities may exist with respect to the Property and that Buyer
explicitly took that possibility into account in determining and agreeing to the
Purchase Price, and that a portion of such consideration, having been bargained
for between parties with the knowledge of the possibility of such unknown
Liabilities shall be given in exchange for a full accord and satisfaction and
discharge of all such Liabilities. Notwithstanding the foregoing, such
acknowledgment is not intended to, and shall not be construed to, (i) effect any
contractual assumption of liability as to matters which are not expressly
assumed by Buyer in the documents executed by the parties in connection with the
Transaction, or (ii) affect or impair any rights or remedies that Buyer may have
against Seller as a result of a breach of any of Seller's Warranties.
5.3 TERMINATION OF AGREEMENT DURING DUE DILIGENCE PERIOD. If Buyer, in
its sole and absolute discretion, is not satisfied with the results of its Due
Diligence during the Due Diligence Period, Buyer may terminate this Agreement by
written notice to Seller at any time prior to 5:00 p.m. Eastern Time on the last
day of the Due Diligence Period, and, in the event of such termination, neither
Seller nor Buyer shall have any liability hereunder except for those obligations
which expressly survive the termination of this Agreement and Buyer shall be
entitled to the return of the Deposit. In the event Buyer fails to terminate
this Agreement prior to 5:00 p.m. Eastern Time on the last day of the Due
Diligence Period, Buyer shall be deemed to have waived its rights to terminate
this Agreement in accordance with this Article 5. Buyer and Seller each
acknowledge and agree that Buyer shall have no further right to terminate this
Agreement under this Section 5.3 following the expiration of the Due Diligence
Period.
5.4 BUYER'S CERTIFICATE. Buyer shall deliver to Seller at the Closing, a
certificate in the form of EXHIBIT C attached hereto and incorporated herein by
this reference.
ARTICLE 6 - ADJUSTMENTS AND PRORATIONS
The following adjustments and prorations shall be made at Closing:
6.1 LEASE RENTALS AND OTHER REVENUES.
6.1.1 RENTS. All collected Rents shall be prorated between Seller
and Buyer as of 12:01 a.m. on the Closing Date. Seller shall be entitled
to all Rents attributable to any period prior to but not including the
Closing Date. Buyer shall be entitled to all Rents attributable to any
period on and after the Closing Date. Rents not collected as of the
Closing Date ("Delinquencies") shall not be prorated at the time of
Closing. After Closing, Buyer shall make a reasonable good faith effort
(which shall not be less than that used by the Buyer to collect similar
amounts of similar aging in connection with other properties owned,
directly or indirectly, by Buyer, and which efforts shall not require
litigation or eviction) to collect any Delinquencies on Seller's behalf
and to tender the same to Seller upon receipt (which obligation of Buyer
shall survive the Closing and not be merged therein); provided, however,
that all Rents collected by Buyer on or after the Closing Date shall first
be applied to all amounts due under the Leases at the time of collection
(i.e., current Rents and sums due Buyer as the current owner and landlord)
with the balance (if any) payable to Seller, but only to the extent of the
Delinquencies.
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Buyer shall have the exclusive right to collect the Delinquencies and
Seller hereby waives any rights to pursue claims against any tenant under
the Leases for any Delinquencies.
6.1.2 OTHER REVENUES. Revenues from Property operations other than
Rents (which shall be prorated as provided in Subsection 6.1.1), security
deposits (which will be apportioned as provided in Section 6.5), and
pre-paid installments or other payments under Contracts (which shall be
the sole property of Seller) that are actually collected shall be prorated
between Buyer and Seller as of 12:01 a.m. on the Closing Date. Seller
shall be entitled to all such revenues attributable to any period to but
not including the Closing Date and Buyer shall be entitled to all such
revenues attributable to any period on and after the Closing Date. After
Closing, Buyer shall make a reasonable good faith effort (which shall not
be less than that used by the Buyer to collect similar amounts of similar
aging in connection with other properties owned, directly or indirectly,
by Buyer, and which efforts shall not require litigation or eviction) to
collect any such revenues not collected as of the Closing Date on Seller's
behalf and to tender the same to Seller upon receipt (which obligation of
Buyer shall survive the Closing and not be merged therein). Buyer shall
have the exclusive right to collect such revenues and Seller hereby waives
any rights to pursue claims against any parties for sums due.
6.2 REAL ESTATE AND PERSONAL PROPERTY TAXES.
6.2.1 PRORATION OF AD VALOREM TAXES. Buyer and Seller shall only
prorate ad valorem real estate and personal property taxes for the Property that
are actually payable, based on the maximum discount available for early payment,
during the Closing Tax Year, regardless of the year for which such taxes are
assessed. There shall be no proration of ad valorem real estate or personal
property taxes other than as set forth hereinabove and, as between Buyer and
Seller, Buyer agrees that it shall be solely responsible for all such ad valorem
real estate and personal property taxes due and payable after the Closing. The
proration of the ad valorem real estate and personal property taxes actually due
and payable during the Closing Tax Year shall be calculated as follows:
(a) Seller shall be responsible for that portion of such taxes
equal to (i) the total such taxes due and payable during the Closing Tax
Year, multiplied by (ii) a fraction, the numerator of which shall be the
number of days in the Closing Tax Year prior to the Closing Date, and the
denominator of which shall be the number of days in the Closing Tax Year;
and
(b) Buyer shall be responsible for that portion of such taxes
equal to (i) the total such taxes due and payable during the Closing Tax
Year, multiplied by (ii) a fraction, the numerator of which shall be the
number of days in the Closing Tax Year subsequent to and including the
Closing Date, and the denominator of which shall be the number of days in
the Closing Tax Year.
6.2.2 INSUFFICIENT INFORMATION. If, at Closing, the real estate
and/or personal property tax rate and assessments have not been set for the
taxes due and payable during the
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Closing Tax Year, then the proration of such taxes shall be based upon the rate
and assessments for the preceding Tax Year, and such proration shall be adjusted
between Seller and Buyer after Closing upon presentation of written evidence
that the actual taxes due and payable during the Closing Tax Year differ from
the amounts used at Closing and in accordance with the provisions of Section
6.8. The provisions of this Section 6.2.2 shall survive Closing.
6.2.3 SPECIAL ASSESSMENTS. Seller shall pay all installments of
special assessments due and payable prior to the Closing Date and Buyer shall
pay all installments of special assessments due and payable on and after the
Closing Date; provided, however, that Seller shall not be required by the
foregoing to pay any installments of special assessments which have not been
confirmed or which relate to projects that have not been completed on the date
hereof.
6.2.4 REASSESSMENTS. In the event the Property has been assessed for
property tax purposes at such rates as would result in reassessment (i.e.,
"escape assessment" or "roll-back taxes") based upon the change in land usage or
ownership of the Property on or after the Closing Date, Buyer hereby agrees to
pay all such taxes and to indemnify and save Seller harmless from and against
all Liabilities for such taxes. Such indemnity shall survive the Closing and not
be merged therein.
6.3 OTHER PROPERTY OPERATING EXPENSES. Operating expenses for the
Property shall be prorated as of 12:01 a.m. on the Closing Date. Seller shall
pay all utility charges and other operating expenses attributable to the
Property to, but not including the Closing Date (except for those utility
charges and operating expenses payable by tenants in accordance with the Leases)
and Buyer shall pay all utility charges and other operating expenses
attributable to the Property on or after the Closing Date. To the extent that
the amount of actual consumption of any utility services is not determined prior
to the Closing Date, a proration shall be made at Closing based on the last
available reading and post-closing adjustments between Buyer and Seller shall be
made within twenty (20) days of the date that actual consumption for such
pre-closing period is determined, which obligation shall survive the Closing and
not be merged therein. Seller shall not assign to Buyer any deposits which
Seller has with any of the utility services or companies servicing the Property.
Buyer shall arrange with such services and companies to have accounts opened in
Buyer's name beginning at 12:01 a.m. on the Closing Date.
6.4 CLOSING COSTS. Buyer shall pay the following costs and expenses
associated with the Transaction: (a) all premiums and charges of the Title
Company for the Title Commitments and the Owner's Title Policies (including
endorsements), (b) the cost of the Surveys, (c) all recording and filing charges
in connection with the instruments by which Seller conveys the Property
(excluding all taxes payable by Seller pursuant to clause (iii) of the next
sentence), (d) all escrow or closing charges, (e) all costs of Buyer's Due
Diligence, including fees due its consultants and attorneys, and (f) all
lenders' fees related to any financing to be obtained by Buyer and related to
the assumption or payoff of the Assumed Loans. Seller shall pay the following
costs and expenses associated with the Transaction: (i) the commission due
Seller's Broker, (ii) all fees due its attorneys, (iii) all transfer taxes,
sales taxes, documentary stamp taxes and similar charges, if any, applicable to
the transfer of the Property to Buyer, and (iv) all costs incurred in connection
with causing the Title Company to Remove any Required Removal
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Exceptions or to Remove any other Title Objections to the extent Seller
specifically agrees in writing, at or prior to Closing, to cause Removal of such
matter, it being understood for purposes of this sentence that nothing in this
Agreement or any prior understanding or agreement of the parties shall be
construed to obligate Seller to so Remove or agree to Remove any such matter.
The obligations of the parties under this Section 6.4 shall survive the Closing
(and not be merged therein) or any earlier termination of this Agreement.
6.5 CASH SECURITY DEPOSITS. At Closing, Seller shall give Buyer a credit
against the Purchase Price in the aggregate amount, if any, of any refundable
cash security or other refundable deposits then held by Seller under the Leases
(the "community fee" is not a refundable cash deposit, but is income earned upon
execution of the residency agreement and shall not be credited against the
Purchase Price; provided however that if it is determined that Seller is
required by Law to return any community fees collected by Seller prior to
Closing to the residents, Seller shall return the community fee as required by
Law). Any interest accrued on any security deposits required to be paid to
tenants by the terms of any Lease or applicable Law shall be credited against
the Purchase Price. The provisions of this Section 6.5 shall survive Closing.
6.6 APPORTIONMENT CREDIT. In the event the apportionments to be made at
the Closing result in a credit balance (a) to Buyer, such sum shall be paid at
the Closing by giving Buyer a credit against the Purchase Price in the amount of
such credit balance, or (b) to Seller, Buyer shall pay the amount thereof to
Seller at the Closing by wire transfer of immediately available funds to the
account or accounts to be designated by Seller for the payment of the Purchase
Price.
6.7 DELAYED ADJUSTMENT; DELIVERY OF OPERATING AND OTHER STATEMENTS. If
at any time following the Closing Date, the amount of an item prorated or
credited at Closing pursuant to this Article 6 shall prove to be incorrect
(whether as a result of an error in calculation or a lack of complete and
accurate information as of the Closing), the party in whose favor the error was
made shall promptly pay to the other party the sum necessary to correct such
error upon receipt of proof of such error, provided that such proof is delivered
to the party from whom payment is requested on or before one (1) year after
Closing (such period being referred to herein as the "Post Closing Adjustment
Period"). In order to enable Seller to determine whether any such delayed
adjustment is necessary, Buyer shall provide to Seller current operating and
financial statements (or such excerpts thereof as are sufficient to provide the
information necessary for the determination of such adjustments) for the
Property no later than the date one (1) month prior to the expiration of the
Post-Closing Adjustment Period. The provisions of this Section 6.7 shall survive
the Closing and not be merged therein.
ARTICLE 7 - CLOSING
Buyer and Seller hereby agree that the Transaction shall be consummated as
follows:
7.1 CLOSING DATE. Subject to Seller's right to extend the Closing as
provided in this Agreement, Closing shall occur on the Closing Date. The parties
shall conduct an escrow-style closing through the Title Company (or such other
party selected by Buyer and Seller) so that it
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will not be necessary for any party to attend the Closing (Buyer and Seller
shall have pre-Closings to finalize and sign all documents not later than the
day prior to Closing, and deliver such items to the escrow agent).
7.2 TITLE TRANSFER AND PAYMENT OF PURCHASE PRICE. Provided all
conditions precedent to Seller's obligations hereunder have been satisfied,
Seller agrees to convey the Property to Buyer upon confirmation of receipt of
the Purchase Price (as adjusted by the prorations and credits specified in
Article 6 and a credit for principal amounts of and accrued interest on the
Assumed Loans, and with the Buyer entitled to direct the Escrow Agent to apply
the Deposit to the Purchase Price) by the Escrow Agent. Provided all conditions
precedent to Buyer's obligations hereunder have been satisfied, Buyer agrees to
pay the amount specified in Article 3 by timely delivering the same to the
Escrow Agent no later than 2:00 p.m. Eastern Time on the Closing Date and
causing the Escrow Agent to deposit the same in Seller's designated account by
3:00 p.m. Eastern Time on the Closing Date.
7.3 SELLER'S CLOSING DELIVERIES. At the Closing, Seller shall deliver or
cause to be delivered the following:
(a) CONVEYANCE INSTRUMENT. A grant deed in the form of EXHIBIT D
attached hereto and incorporated herein by this reference ("Conveyance
Instrument") executed and acknowledged by Seller with respect to all of
the Real Property (other than the Facility commonly known as Ocean House),
and an assignment and assumption of ground lease for the Ocean House
Facility in the form of EXHIBIT D attached hereto and incorporated herein
by this reference ("Conveyance Instrument") executed and acknowledged by
Seller.
(b) XXXX OF SALE. A xxxx of sale in the form of EXHIBIT E attached
hereto and incorporated herein by this reference ("Xxxx of Sale") executed
by Seller conveying the Personal Property to Buyer.
(c) ASSIGNMENT OF TENANT LEASES. An assignment and assumption of
tenant Leases, in the form of EXHIBIT F attached hereto and incorporated
herein by this reference ("Assignment of Leases") executed by Seller and
an assignment of Seller's interest in the SNF Lease.
(d) ASSIGNMENT OF INTANGIBLE PROPERTY. An assignment and
assumption of the Assumed Contracts, the Licenses and Permits and the
Other Property Rights (to the extent the same are not transferred by the
Conveyance Instrument, Xxxx of Sale or Assignment of Leases) in the form
of EXHIBIT G attached hereto and incorporated herein by this reference
("Assignment of Intangible Property") executed by Seller.
(e) NOTICE TO TENANTS. A single form letter in the form of EXHIBIT
H attached hereto and incorporated herein by this reference, executed by
Seller, duplicate copies of which shall be sent by Buyer after Closing to
each tenant under the Leases.
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(f) NON-FOREIGN STATUS AFFIDAVIT. A non-foreign status affidavit
in the form of EXHIBIT I attached hereto and incorporated herein by this
reference, as required by Section 1445 of the Internal Revenue Code,
executed by Seller.
(g) EVIDENCE OF AUTHORITY. Documentation to establish to Buyer's
reasonable satisfaction the due authorization of Seller's execution of
this Agreement and all documents contemplated by this Agreement and the
consummation of the Transaction, which shall consist of (i) a certificate
of Seller signed by the Managing Member thereof with respect to Seller's
limited liability company agreement and the authority of the Managing
Member to act on behalf of Seller, in the form of EXHIBIT J-1 attached
hereto and incorporated herein by this reference; (ii) a certificate of
the Managing Member of Seller signed by the general partner thereof with
respect to the partnership agreement of such Managing Member and the
authority of the general partner to act on behalf of the Managing Member
of Seller, in the form of EXHIBIT J-2 attached hereto and incorporated
herein by this reference; (iii) a certificate of the general partner of
the Managing Member of Seller signed by the Managing Member of such
general partner thereof with respect to the general partner's limited
liability company agreement and the authority of the Managing Member
thereof to act on behalf of such general partner, in the form of EXHIBIT
J-3 attached hereto and incorporated herein by this reference; and (iv) a
certificate of an Assistant Secretary of Prudential with respect to the
authority to act on behalf of Prudential of the individual executing on
behalf of Prudential all documents contemplated by this Agreement as the
Managing Member of the general partner of the Managing Member of Seller,
in the form of EXHIBIT J-4 attached hereto and incorporated herein by this
reference.
(h) CLOSING STATEMENT. A Closing Statement Agreement in the form
of EXHIBIT K attached hereto and incorporated herein by this reference,
subject to such changes as may be required to comply with the terms of
this Agreement (the "Closing Statement").
(i) TITLE AFFIDAVIT. A Vendor's Title Affidavit in the form of
EXHIBIT L attached hereto and incorporated herein by this reference.
(j) TAX RETURNS. If applicable, duly completed and signed real
estate transfer tax or sales tax returns.
(k) WITHHOLDING CERTIFICATE. If applicable, a Certificate of
Exemption in form as may be reasonably required by Buyer or the Title
Company with respect to any withholding regulations applicable to the
Transaction.
(l) KEYS AND ORIGINAL DOCUMENTS. Keys to all locks on the Real
Property in Seller's or Seller's building manager's possession and
originals or, if originals are not available, copies, of all of the
Property Documents, to the extent not previously delivered to Buyer.
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(m) ESTOPPELS. Originals of the Ground Lease and SNF Estoppels
signed by the (landlord) (tenant) (subtenant) thereunder.
(n) XXXX RANCH ZONING LETTER. A letter, in a form and substance
reasonably acceptable to Buyer, from the City of Anaheim, California,
confirming that the Facility known as Xxxx Ranch is zoned as R2.1, is in
compliance with its R2.1 zoning classification and that there are no
building and/or zoning violations.
(o) OTHER DOCUMENTS. Such other documents as may be reasonably
required by the Title Company or as may be agreed upon by Seller and Buyer
to consummate the Transaction.
The items to be delivered by Seller in accordance with the terms of this Section
7.3 shall be delivered to Escrow Agent no later than 5:00 p.m. Eastern Time on
the last Business Day prior to the Closing Date or by overnight delivery for
early AM delivery on the Closing Date, except that the items in the paragraph
entitled "Keys and Original Documents" shall be delivered by Seller outside of
escrow and shall be deemed delivered if the same are located at the Property on
the Closing Date.
7.4 BUYER CLOSING DELIVERIES. At the Closing, Buyer shall deliver or
cause to be delivered the following:
(a) PURCHASE PRICE. The Purchase Price, as adjusted for
apportionments and other adjustments required under this Agreement, plus
any other amounts required to be paid by Buyer at Closing.
(b) ASSIGNMENT OF LEASES. The Assignment of Leases executed and
acknowledged by Buyer.
(c) ASSIGNMENT OF INTANGIBLE PROPERTY. The Assignment of
Intangible Property executed and acknowledged by Buyer.
(d) BUYER'S AS-IS CERTIFICATE. The certificate of Buyer required
under Article 5 hereof.
(e) BUYER'S ERISA CERTIFICATE. The certificate of Buyer
substantially in the form of EXHIBIT M attached hereto and incorporated
herein by this reference and any other certificate or other information
reasonably required by Prudential to satisfy Prudential that either (a)
the Transaction would not be a "prohibited transaction" under ERISA or any
similar prohibition under state Law, or (b) the Transaction qualifies for
an exemption under such Laws.
(f) EVIDENCE OF AUTHORITY. Documentation to establish to Seller's
reasonable satisfaction the due authorization of Buyer's acquisition of
the Property and Buyer's execution of this Agreement and the documents
required to be delivered by Buyer pursuant to this Agreement and the
consummation of the Transaction.
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(g) CLOSING STATEMENT. The Closing Statement.
(h) OTHER DOCUMENTS. Such other documents as may be reasonably
required by the Title Company or may be agreed upon by Seller and Buyer to
consummate the Transaction.
(i) TAX RETURNS. If applicable, duly completed and signed real
estate transfer tax or sales tax returns.
The Purchase Price shall be paid in accordance with the terms of Section 7.2
hereof and the items to be delivered by Buyer in accordance with the terms of
Subsections (b) and following of this Section 7.4 shall be delivered to Escrow
Agent no later than 5:00 p.m. Eastern Time on the last Business Day prior to the
Closing Date or by overnight delivery for early AM delivery on the Closing Date.
7.5 ENTIRE PROPERTY. The Transaction to be closed pursuant to this
Agreement is the sale by Seller to Buyer of all of Seller's rights with respect
to the entire Property. Except as provided in Section 10.2.3 or Article 12,
Buyer shall have no right whatsoever to terminate this Agreement with respect to
selected facilities included within the Property and Buyer shall not have any
right to buy any portion of the Property other than the entire Property
described in this Agreement. Similarly, Seller shall have no right to require
Buyer to buy any portion of the Property other than the entire Property and
Buyer shall have no obligation to buy any portion of the Property other than the
entire Property.
ARTICLE 8 - CONDITIONS TO CLOSING
8.1 CONDITIONS TO SELLER'S OBLIGATIONS. Seller's obligation to close the
Transaction is conditioned on all of the following, any or all of which may be
waived by Seller by an express written waiver, at its sole option:
(a) REPRESENTATIONS TRUE. All representations and warranties made
by Buyer in this Agreement shall be true and correct in all material
respects on and as of the Closing Date, as if made on and as of such date
except to the extent they expressly relate to an earlier date; and
(b) BUYER'S DELIVERIES COMPLETE. Buyer shall have delivered the
funds required hereunder and all of the documents to be executed by Buyer
set forth in Section 7.4 and shall have performed all other covenants,
undertakings and obligations, and complied with all conditions required by
this Agreement, to be performed or complied with by Buyer at or prior to
the Closing.
(c) GOVERNMENTAL APPROVALS. On or prior to the Closing Date, Buyer
shall have received the Government Approvals (as defined in Section 8.2(d)
below).
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(d) BUYER'S FUNDING ABILITY. Seller shall be satisfied, in
Seller's discretion, with Buyer's ability to fund the Purchase Price at
Closing, based upon a combination of equity and traditional debt financing
sources, as evidenced by written letters of intent/interest delivered by
Buyer to Seller on or before February 15, 2005. Seller will be authorized
by Buyer to contact and have follow-up discussions with all of Buyer's
proposed funding sources, but Seller will coordinate any such contacts
with Buyer so that Buyer may have a representative participate in any
discussions Seller chooses to have with Buyer's proposed funding sources.
If Buyer fails to deliver such written evidence to Seller or if, after
investigating Buyer's proposed financing sources, Seller is not satisfied
with Buyer's ability to fund the Purchase Price, Seller may terminate this
Agreement by written notice to Buyer on or before February 18, 2005. If
Seller elects to so terminate, this Agreement will be null and void and of
no further force or effect except for any provisions that expressly
survive termination. If Seller does not provide such termination notice on
or before February 18, 2005, this condition to Closing shall be deemed
waived in its entirety by Seller.
8.2 CONDITIONS TO BUYER'S OBLIGATIONS. Buyer's obligation to close the
Transaction is conditioned on all of the following, any or all of which may be
expressly waived by Buyer in writing, at its sole option:
(a) REPRESENTATIONS TRUE. Subject to the provisions of Section
9.3, all representations and warranties made by Seller in this Agreement,
as the same may be amended as provided in Section 9.3, shall be true and
correct in all material respects on and as of the Closing Date, as if made
on and as of such date except to the extent that they expressly relate to
an earlier date;
(b) TITLE CONDITIONS SATISFIED. At the time of the Closing, title
to the Property shall be as provided in Article 4 of this Agreement;
(c) SELLER'S DELIVERIES COMPLETE. Seller shall have delivered all
of the documents and other items required pursuant to Section 7.3 and
shall have performed all other covenants, undertakings and obligations,
and complied with all conditions required by this Agreement, to be
performed or complied with by Seller at or prior to the Closing;
(d) GOVERNMENTAL APPROVALS. Buyer shall have obtained all the
permits and consents identified on Schedule 8.2(d) necessary for it to
acquire and operate the Property for its current use and operation on and
after the Closing Date (or Buyer shall receive a letter, in form
reasonably satisfactory to Buyer, from the applicable governmental
authority that the necessary permits and consents will be issued promptly
by the applicable governmental authority upon its receipt of evidence that
this Transaction has closed). Buyer shall be obligated to apply for all
such permits and consents promptly following the date of this Agreement,
Buyer shall also be obligated to pursue its efforts to obtain the permits
and consents diligently and continuously in order to obtain the permits
and consents as soon as reasonably possible. Provided Buyer has promptly
applied for such permits and consents and has diligently pursued its
efforts to obtain the permits and consents as soon as possible, if such
permits and consents, including the Residential Care
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Facility for the Elderly ("RCFE") license issued by the State of
California, shall not have been issued to Buyer on or prior to the
scheduled Closing Date and Buyer shall not have received a letter from the
applicable governmental authority, as described above, Buyer shall have
the right as its election to (i) defer the Closing for an additional
period of time not to exceed one hundred twenty (120) days (the "RCFE
Extended Closing Date"), as shall be necessary to obtain the RCFE and any
such permits or consents not then obtained (or the letter described
above), (but, if Buyer does so extend, Buyer must continue to diligently
pursue its efforts to obtain the permits and consents as soon as
reasonably possible and the Closing shall occur, if at all, within five
(5) business days of the date they are obtained, but not later than the
RCFE Extended Closing Date), (ii) terminate this Agreement in which event
the Deposit shall be returned to Buyer and the rights and obligations of
the parties hereunder shall terminate except for those which specifically
survive any termination hereof, or (iii) negotiate a mutually acceptable
management agreement ("Management Agreement") and lease agreement
("Sale/Leaseback Lease") with Seller for the Property pursuant to which
Buyer would lease the Property to Seller and Buyer would manage the
Property and, simultaneously with the execution thereof, Closing shall
occur. The Sale/Leaseback Management Agreement would provide for, among
other things, (a) the cost of all operations of the Property, including
the expenses of all Employees, being borne by Buyer subsequent to the
Closing Date and the receipt by Buyer of all revenues generated from
operations at the Property subsequent to the Closing Date, (b) the
obligation for Buyer to be solely responsible for all maintenance, repairs
and operations of the Property, and (c) the obligation for Buyer to
indemnify Seller with respect to any liabilities, claims or damages of any
kind whatsoever, arising out of the maintenance, repair and operation of
the Property from and after the Closing Date and arising out of any acts,
omissions or events that occur from and after the Closing Date. The
Management Agreement and Sale/Leaseback Lease would expire at the earlier
of (i) such time as Buyer obtained the RCFE or, (ii) an outside date to be
agreed upon by the parties at that time; and
(e) ESTOPPELS. Seller shall have delivered executed originals of
the Ground Lease Estoppel and SNF Estoppel.
8.3 WAIVER OF FAILURE OF CONDITIONS PRECEDENT. At any time or times on
or before the date specified for the satisfaction of any condition, Seller or
Buyer may elect in writing to waive the benefit of any such condition set forth
in Section 8.1 or Section 8.2, respectively. By closing the Transaction, Seller
and Buyer shall be conclusively deemed to have waived the benefit of any
remaining unfulfilled conditions set forth in Section 8.1 and Section 8.2,
respectively. In the event any of the conditions set forth in Section 8.1 or
Section 8.2 are neither waived nor fulfilled, Seller or Buyer (as appropriate)
may exercise such rights and remedies, if any, that such party may have pursuant
to the terms of Article 11 hereof.
8.4 APPROVALS NOT A CONDITION TO BUYER'S PERFORMANCE. Subject to Buyer's
right to terminate this Agreement prior to the expiration of the Due Diligence
Period in accordance with the terms of Article 5 hereof, Buyer acknowledges and
agrees that its obligation to perform under this Agreement is not contingent
upon Buyer's ability to obtain any (a) governmental or quasi-governmental
approval of changes or modifications in use or zoning, or (b) modification of
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any existing land use restriction, (c) endorsements to the Owner's Title Policy,
or (d) consents to assignments of any of the Contracts. Furthermore, this
Agreement is not contingent upon Buyer being able to reach agreement with the
lender under the Assumed Loans to allow Buyer to take an assignment of , and
assume Seller's obligations under, the Assumed Loans. If Buyer determines,
during the Due Diligence Period, that Buyer desires to take an assignment of,
and assume Seller's obligations under the Assumed Loans, any such assignment and
assumption agreement must include a release of all of the entities that comprise
Seller, Senior Housing Partners I, L.P. and any affiliates of any of them from
all liability past, present and future under all loan documents (including all
guarantys) evidencing or securing the Assumed Loans. Provided the assignment and
assumption includes the complete release described in the preceding sentence,
Seller (and Senior Housing Partners I, L.P.) will cooperate fully with Buyer
(other than paying any fees) in its efforts to obtain the lender's agreement to
allow Buyer to take an assignment of, and assume Seller's obligations under, the
Assumed Loans.
ARTICLE 9 - REPRESENTATIONS AND WARRANTIES
9.1 BUYER'S REPRESENTATIONS. Buyer represents and warrants to, and
covenants with, Seller as follows:
9.1.1 BUYER'S AUTHORIZATION. Buyer (and as used in this Section
9.1.1, the term Buyer includes any general partners or managing members of
Buyer) (a) is duly organized (or formed), validly existing and in good
standing under the Laws of its State of organization and, as and to the
extent required by Laws for this Transaction, the State in which the
Property is located, (b) is authorized to consummate the Transaction and
fulfill all of its obligations hereunder and under all documents
contemplated hereunder to be executed by Buyer, and (c) has all necessary
power to execute and deliver this Agreement and all documents contemplated
hereunder to be executed by Buyer, and to perform all of its obligations
hereunder and thereunder. This Agreement and all documents contemplated
hereunder to be executed by Buyer, have been duly authorized by all
requisite partnership, corporate or other required action on the part of
Buyer and are the valid and legally binding obligation of Buyer,
enforceable in accordance with their respective terms. Neither the
execution and delivery of this Agreement and all documents contemplated
hereunder to be executed by Buyer, nor the performance of the obligations
of Buyer hereunder or thereunder will result in the violation of any Law
or any provision of the organizational documents of Buyer or will conflict
with any order or decree of any court or governmental instrumentality of
any nature by which Buyer is bound.
9.1.2 BUYER'S FINANCIAL CONDITION. No petition has been filed by or
against Buyer under the Federal Bankruptcy Code or any similar state or
federal Law.
9.2 SELLER'S REPRESENTATIONS. Seller represents and warrants to Buyer as
follows:
9.2.1 SELLER'S AUTHORIZATION. Seller (and as used in this Section
9.2.1, the term Seller includes any general partners or managing members
of Seller) (a) is duly organized (or formed), validly existing and in good
standing under the Laws of its State of
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organization and, as and to the extent required by applicable Laws, of the
State in which the Property is located, (b) is authorized to consummate
the Transaction and fulfill all of its obligations hereunder and under all
documents contemplated hereunder to be executed by Seller, and (c) has all
necessary power to execute and deliver this Agreement and all documents
contemplated hereunder to be executed by Seller, and to perform all of its
obligations hereunder and thereunder. This Agreement and all documents
contemplated hereunder to be executed by Seller, have been duly authorized
by all requisite partnership, corporate or other required action on the
part of Seller and are the valid and legally binding obligation of Seller,
enforceable in accordance with their respective terms. Neither the
execution and delivery of this Agreement and all documents contemplated
hereunder to be executed by Seller, nor the performance of the obligations
of Seller hereunder or thereunder will result in the violation of any Law
or any provision of the organizational documents of Seller or will
conflict with any order or decree of any court or governmental
instrumentality of any nature by which Seller is bound.
9.2.2 OTHER SELLER'S REPRESENTATIONS.
(a) Except as listed in EXHIBIT N attached hereto and
incorporated herein by this reference, there is no current or
pending, or to Seller's Knowledge, threatened, litigation against
Seller or with respect to the Property (including, but not limited
to, condemnation proceedings against the Property).
(b) As of the date of this Agreement, except for (i) the
Contracts listed in EXHIBIT B attached hereto, (ii) the Leases
listed on EXHIBIT O, and (iii) the Permitted Exceptions, Seller has
not entered into any contracts, subcontracts or agreements affecting
the Property that will be binding upon Buyer after the Closing.
(c) Except as listed in EXHIBIT N attached hereto, Seller
has not received any written notice from any parties to the
Contracts that Seller is in default under the Contracts and, to
Seller's Knowledge, neither Seller nor the other parties thereto are
in default under the Contracts.
(d) As of the date of this Agreement, the only tenants under
the Leases at the Property are the tenants listed in EXHIBIT O
attached hereto and incorporated herein by this reference; provided,
however, that the foregoing is not intended (and shall not be
construed) as a representation by Seller of the parties that are in
actual possession of any portion of the Property since there may be
subtenants, licensees or assignees that are in possession of
portions of the Property of which Seller may not be aware.
(e) Except as listed in EXHIBIT N attached hereto, as of the
date of this Agreement and except for violations that have been
cured, Seller has not received any written notice from any
governmental authority with respect to the violation of any Law
regulating the ownership, use or operation of the Property.
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(f) As of the date of this Agreement, except as set forth on
EXHIBIT N attached hereto and except for defaults cured on or before
the date hereof, Seller has neither (i) received any written notice
from any tenant of the Property asserting or alleging that Seller is
in default under such tenant's Lease, nor (ii) sent to any tenant of
the Property any written notice alleging or asserting that such
tenant is in default under such tenant's Lease.
(g) As of the date of this Agreement, the rent roll attached
as EXHIBIT O and incorporated herein by this reference (the "Rent
Roll"), is true, correct and complete in all material respects.
(h) Except as disclosed in the Title Commitment, as of the
date of this Agreement and except as listed in EXHIBIT N attached
hereto, as of the date of this Agreement, Seller has not received
any written notice from any governmental agency that any special
assessments are pending, noted or levied against the Property.
(i) No petition has been filed by Seller, nor has Seller
received written notice of any petition filed against Seller, under
the Federal Bankruptcy Code or any similar state or federal Law.
(j) To Seller's Knowledge, the Due Diligence Materials
delivered to Buyer (i) include all material documents used by Seller
in the day-to-day operations and management of the Property, other
than Confidential Materials, and (ii) are the same documents, other
than Confidential Materials, used in connection with (A) the
performance by Seller of its fiduciary obligations to its clients
and investors, and (B) the preparation of financial statements and
reports submitted to the clients and investors of Seller.
(k) Seller has good and marketable title to the Personal
Property. The Personal Property is all of the personalty that has
been used by Seller and Property Manager in the normal operation of
the Property. No Personal Property will be removed from the Property
prior to the Closing Date (except any that is replaced in the
ordinary course of business with an item of comparable quality and
utility) and no Personal Property has been removed from the Property
since Buyer visited the Property on or about December 15, 2004.
Seller will provide Buyer a detailed list of any Personal Property
replaced and any Personal Property added between the date of this
Agreement and the Closing Date.
(l) Seller has not entered into any commission or other
agreements requiring payment of commissions or referral fees and, to
Seller's Knowledge, there are no commissions or referral fees
relating to the Property, in either case which will not be paid in
full on or before the Closing.
(m) Seller is not a party to any Employment Contract with
respect to the Property and, except for the Contracts, Seller has
not entered into any oral or
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written agreements which would bind or obligate Purchaser to engage
the services of any person as an employee or an independent
contractor relating to the Property.
(n) There are no existing monetary defaults under the Ground
Lease or SNF Lease by Seller and, to Seller's Knowledge, neither
Seller nor the other party thereto is in default (whether monetary
or non-monetary) under the Ground Lease or SNF Lease and each of the
Ground Lease and SNF Lease is in full force and effect and
unmodified, except to the extent delivered to Buyer as part of the
Due Diligence Materials.
(o) Each of the Sellers is, and has been at all times,
classified as a partnership for United States federal income tax
purposes, and has paid all material income, franchise and other
taxes required to be paid to the extent due and payable, including
any interest and penalties in connection therewith, except for any
tax that is currently being contested in good faith and for which
adequate reserves have been established.
9.2.3 DELIVERY OF DOCUMENTS. Seller has requested that the Property
Manager give or otherwise make available to Buyer or Buyer's
Representatives all books, records, and other writings in such manager's
possession related in any material way to the use, ownership or operation
of the Property, other than Confidential Materials.
9.3 GENERAL PROVISIONS.
9.3.1 NO REPRESENTATION AS TO LEASES. Seller does not represent or
warrant that any particular Lease or Leases will be in force or effect on
the Closing Date or that the tenants will have performed their obligations
thereunder.
9.3.2 NOT USED.
9.3.3 NOTICE OF BREACH; SELLER'S RIGHT TO CURE. If, prior to the
Closing, Buyer or any Buyer's Representative obtains actual knowledge that
any of Seller's Warranties are untrue, inaccurate or incorrect in any
material respect, Buyer shall give Seller written notice thereof within
five (5) Business Days of obtaining such knowledge (but, in any event,
prior to the Closing). If at or prior to the Closing, Seller obtains
actual knowledge that any of Seller's Warranties are untrue, inaccurate or
incorrect in any material respect, Seller shall give Buyer written notice
thereof within five (5) Business Days of obtaining such knowledge (but, in
any event, prior to the Closing). In either such event, Seller shall have
the right to cure the underlying cause of such misrepresentation or breach
and shall be entitled to a reasonable adjournment of the Closing (not to
exceed thirty (30) days) for the purpose of such cure. If Seller is unable
to so cure any misrepresentation or breach, then Buyer, as its sole remedy
for any and all such materially untrue, inaccurate or incorrect material
representations or warranties, shall elect either (a) to waive such
misrepresentations or breaches of representations and warranties and
consummate the Transaction without any reduction of or credit against the
Purchase Price, or (b) to
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terminate this Agreement by written notice given to Seller on the Closing
Date, in which event this Agreement shall be terminated, any Deposit shall
be returned to Buyer (and Seller shall also be obligated to reimburse
Buyer for its third party costs and expenses incurred in connection with
this Transaction, but not to exceed One Million and No/100 Dollars
($1,000,000.00)) and, thereafter, neither party shall have any further
rights or obligations hereunder except as provided in any section hereof
that by its terms expressly provides that it survives any termination of
this Agreement. If any of Seller's Warranties are untrue, inaccurate or
incorrect but are not, in the aggregate, untrue, inaccurate or incorrect
in any material respect, Buyer shall be deemed to waive such
misrepresentation or breach of warranty, and Buyer shall be required to
consummate the Transaction without any reduction of or credit against the
Purchase Price. The untruth, inaccuracy or incorrectness of Seller's
Warranties shall be deemed material only if Buyer's aggregate damages
resulting from the untruth, inaccuracy or incorrectness of Seller's
Warranties are reasonably estimated to exceed One Hundred Thousand and
No/100 Dollars ($100,000.00).
9.3.4 SURVIVAL; LIMITATION ON SELLER'S LIABILITY. Seller's
Warranties shall survive the Closing and not be merged therein for a
period of two hundred seventy (270) days after the Closing Date, and
Seller shall only be liable to Buyer hereunder for a breach of Seller's
Warranties made herein or in any of the documents executed by Seller at
the Closing with respect to which a claim is made by Buyer against Seller
on or before two hundred seventy (270) days after the Closing Date.
Anything in this Agreement to the contrary notwithstanding, the maximum
aggregate liability of Seller for breaches of Seller's Warranties shall be
limited as set forth in Section 15.15 hereof. Notwithstanding the
foregoing, however, if the Closing occurs, Buyer hereby expressly waives,
relinquishes and releases any right or remedy available to it at Law, in
equity, under this Agreement or otherwise to make a claim against Seller
for damages that Buyer may incur, or to rescind this Agreement and the
Transaction, as the result of any of Seller's Warranties being untrue,
inaccurate or incorrect if (a) Buyer knew or is deemed to know that such
representation or warranty was untrue, inaccurate or incorrect at the time
of the Closing, or (b) Buyer's damages as a result of such representations
or warranties being untrue, inaccurate or incorrect are reasonably
estimated to aggregate less than One Hundred Thousand and No/100 Dollars
($100,000.00).
ARTICLE 10 - COVENANTS
10.1 BUYER'S COVENANTS. Buyer hereby covenants as follows:
10.1.1 CONFIDENTIALITY. Buyer acknowledges that any information
heretofore or hereafter furnished to Buyer with respect to the Property
has been and will be so furnished on the condition that Buyer maintain the
confidentiality thereof. Accordingly, Buyer shall hold, and shall cause
Buyer's Representatives to hold, in strict confidence, and Buyer shall not
disclose, and shall prohibit Buyer's Representatives from disclosing, to
any other person without the prior written consent of Seller until the
Closing shall have been consummated, (a) the terms of the Agreement, (b)
any of the information in respect of the Property delivered to or for the
benefit of Buyer whether by any Buyer's
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Representatives or by Seller or any of the Seller Parties, including, but
not limited to, any information heretofore or hereafter obtained by Buyer
or any Buyer's Representatives in connection with its Due Diligence other
than information generally known or available to the public, and (c) the
identity of Seller, and, if applicable, the identity of any direct or
indirect owner of any beneficial interest in Seller. In addition, Buyer
hereby agrees that, after Closing, it shall continue to hold, and shall
cause Buyer's Representatives to hold, the terms of this Agreement and the
identity of Seller, and, if applicable, the identity of any direct or
indirect owner of any beneficial interest in Seller in strict confidence,
and Buyer shall not disclose, and shall prohibit Buyer's Representatives
from disclosing, such information to any other person without the prior
written consent of Seller. In the event the Closing does not occur or this
Agreement is terminated, Buyer shall promptly return to Seller all copies
of documents containing any of such information without retaining any copy
thereof or extract therefrom. Notwithstanding anything to the contrary
hereinabove set forth, Buyer may disclose such information (i) on a
need-to-know basis to its employees, members of professional firms serving
it or potential lenders, (ii) as any governmental agency may require in
order to comply with applicable Laws, or (iii) to the extent that such
information is a matter of public record. The provisions of this
Subsection 10.1.1 shall survive any termination of this Agreement.
10.1.2 BUYER'S INDEMNITY. Buyer hereby agrees to indemnify, defend,
and hold Seller and each of the other Seller Parties free and harmless
from and against any and all Liabilities (including reasonable attorneys'
fees, expenses and disbursements) arising out of or resulting from (a) the
breach of the terms of Subsection 10.1.1 or (b) the entry on the Real
Property and/or the conduct of any Due Diligence by Buyer or any of
Buyer's Representatives at any time prior to the Closing; provided,
however, that Buyer's obligations under this clause (b) shall not apply to
the mere discovery of any pre-existing environmental or physical condition
at the Property. The foregoing indemnity shall survive the Closing (and
not be merged therein) or any earlier termination of this Agreement.
10.2 SELLER'S COVENANTS. Seller hereby covenants as follows:
10.2.1 CONFIDENTIALITY. Seller shall hold, and shall cause the other
Seller Parties to hold, in strict confidence, and Seller shall not
disclose, and shall prohibit the other Seller Parties from disclosing to
any other person without the prior written consent of Buyer until the
Closing shall have been consummated, (a) the terms of the Agreement, and
(b) the identity of Buyer, and, if applicable, the identity of any direct
or indirect owner of any beneficial interest in Buyer. In addition, Seller
hereby agrees that, after Closing, it shall continue to hold, and shall
cause the other Seller Parties to hold, the terms of this Agreement and
the identity of Buyer, and, if applicable, the identity of any direct or
indirect owner of any beneficial interest in Buyer in strict confidence,
and Seller shall not disclose, and shall prohibit the other Seller Parties
from disclosing, such information to any other person without the prior
written consent of Buyer. Notwithstanding anything to the contrary
hereinabove set forth, Seller may disclose such information (i) on a
need-to-know basis to its investors, consultants, employees, members of
professional firms serving it or potential lenders, (ii) as any
governmental agency may
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require in order to comply with applicable Laws, or (iii) to the extent
that such information is a matter of public record. The provisions of this
Subsection 10.2.1 shall survive any termination of this Agreement.
10.2.2 SERVICE CONTRACTS.
(a) Without Buyer's prior consent, which consent shall not be
unreasonably withheld or delayed, between the date hereof and the Closing
Date Seller shall not extend, renew, replace or modify any Contract or
enter into any new service contract or agreement unless such Contract,
service contract or agreement (as so extended, renewed, replaced or
modified) can be terminated by the owner of the Property without penalty
on not more than thirty (30) days' notice. Seller shall provide Buyer not
less than five (5) Business Days' prior written notice to provide its
consent to any such contract, extension, renewal, replacement or
modification. If Buyer fails to object in writing to any such proposed
action within five (5) Business Days after receipt of the aforementioned
notice, Buyer shall be deemed to have approved the proposed action.
Buyer's consent shall not be unreasonably withheld or delayed with respect
to any such transaction that is proposed prior to the end of the Due
Diligence Period, but thereafter, Buyer, in its sole and absolute
discretion, shall be entitled to grant or withhold its consent with
respect to any such transaction that is proposed between the end of the
Due Diligence Period and the Closing.
(b) On or before the Closing, Seller shall (i) terminate any
management agreements currently in effect with respect to the Property and
(ii) provide Buyer with an executed termination agreement between Property
Manager and Seller with respect to the management agreement for the
Property between such parties in each case at the sole cost and expense of
Seller.
(c) Seller shall have caused the termite damage described in the
Termite Reports (as defined below) for each of the Designated Projects (as
defined below) to have been repaired and New Reports (as defined below)
for each of the Designated Projects to have been issued (which obligation
of Seller shall survive the Closing and not be merged therein). Seller has
delivered to Buyer copies of those certain pest inspection reports
("TERMITE REPORTS") for the Projects known as Oak Tree Villa, Xxxx Ranch,
Gables and Pacific Inn ("DESIGNATED PROJECTS"), dated February 24, 2005,
February 17, 2005, February 14, 2005 and February 8, 2005, respectively,
each prepared by Western Exterminator Company (or such other exterminator
or contractor reasonably satisfactory to Buyer as "EXTERMINATOR").
Promptly following the execution and delivery of this Agreement, Seller
will retain Exterminator, at Seller's sole cost and expense, to perform
all repair work at the Designated Projects which is recommended by the
Termite Reports and repair, replace and/or refurbish any damaged areas of
the Designated Facilities caused by such work. Prior to the Exterminator
commencing any work, Seller will deliver to Buyer a copy of the
Exterminator's contract describing the scope of work and also describing
the bond/warranty which the Exterminator will provide upon completion of
the work at the Designated Projects. Buyer will have five (5) Business
Days following its receipt of the submitted form of contract to notify
Seller, in writing, of any objections
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that Buyer has to the form of the contract (including the scope of work
and form of the bond/warranty which the Exterminator agrees to deliver
upon completion of the required work). If Buyer does not notify Seller of
any objections within such five (5) Business Day period, Buyer will be
deemed to have approved the form of contract (including the scope of work
and form of the bond/warranty to be issued upon completion of the work)
and Seller will be authorized to cause the Exterminator to perform the
necessary work on each of the Designated Projects in accordance with the
form of the submitted contract and scope of work. If Buyer does notify
Seller, within such five (5) Business Day period, of any objections to the
form of the contract (including the scope of work and form of the
bond/warranty that will be issued by the Exterminator upon completion of
the work), Seller will use commercially reasonable efforts to work with
the Exterminator to obtain a revised contract (including the scope of work
and form of the bond/warranty to be issued by the Exterminator upon
completion of the work) which meets Buyer's objections. Seller will submit
the revised form of the contract (including, if applicable, the revised
and scope of work and form of the bond/warranty that will be issued by the
Exterminator upon completion of the work) to Buyer. Buyer will have five
(5) Business Days after delivery by Seller of the revised form of contract
in which to notify Seller that it elects to terminate this Agreement
because the form of the contract, scope of work and/or bond/warranty is
not satisfactory to Buyer. If Buyer does not so notify Seller within such
five (5) Business Day period, Buyer will be deemed to have approved the
revised form of the contract (including the scope of work and form of the
bond/warranty that will be issued by the Exterminator upon completion of
the work). Buyer reserves the right to hire a consultant, at Buyer's
expense, to observe the work of Exterminator prior to completion. Within
two (2) business days' of completion of the work by the Exterminator
pursuant to the approved contract and scope of work, Buyer (or its
representatives) shall be permitted to review the work and determine, in
Buyer's reasonable discretion, that work has been satisfactorily completed
and will provide written confirmation to Seller of that approval ("BUYER'S
CONFIRMATION"). Upon completion of the work at each Designated Project
(whether before or after Closing) and the receipt of Buyer's Confirmation
with respect to the work at such Designated Project, Seller will cause to
be delivered to Buyer (i) a report from the Exterminator certifying that
the damage described in the Termite Report for the applicable Designated
Project has been repaired, that there is no active infestation and that
any damage to areas of the applicable Designated Project caused by such
repair work has been fully repaired, replaced and/or refurbished, and (ii)
confirmation that the bond/warranty from the Exterminator in the form
required by the approved (or deemed approved) contract in favor of the
owner of the applicable Designated Project is in effect (collectively, the
"NEW REPORTS"). Upon Buyer's Confirmation and delivery by Seller to Buyer
of the New Reports for any Designated Project, Seller's obligations with
respect to any termite damage at the applicable Designated Project shall
be deemed fulfilled, Seller will have no further obligations or
liabilities with respect to any termite damage at the applicable
Designated Project and, thereafter, Buyer shall look solely to
Exterminator with respect to any future termite damage at the applicable
Designated Project or any claim that the previous damage at the applicable
Designated Project was not properly done or was incomplete.
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10.2.3 MAINTENANCE OF PROPERTY. Except to the extent Seller is
relieved of such obligations by Article 12 hereof, between the date hereof
and the Closing Date Seller shall operate, maintain and keep, or shall
cause to be operated, maintained and kept, the Property in a manner
consistent with Seller's past practices with respect to the Property and
in accordance with applicable Laws. Between the date hereof and the
Closing Date, Seller will advise Buyer of any written notice Seller
receives after the date hereof from any governmental authority of the
violation of any Laws regulating the condition or use of the Property. If
any such notice describes a violation of any Laws which can be cured for
Twenty-Five Thousand and No/100 Dollars ($25,000.00) or less, on a per
Facility basis, Seller shall, at its sole cost and expense, cause such
violations to be cured or corrected prior to Closing. If any such notice
describes a violation of any Laws which cannot be cured for Twenty-Five
Thousand and No/100 Dollars ($25,000.00) or less, on a per Facility basis,
Seller will, within ten (10) business days of its receipt of such notice,
notify Buyer, in writing, whether or not Seller shall cause such
violations to be cured or corrected prior to Closing. If Seller notifies
Buyer that it will not cure any such violations (the cure cost for which
will exceed Twenty-Five Thousand No/100 Dollars ($25,000.00)) with respect
to any Facility, Buyer may notify Seller, within ten (10) business days of
its receipt of Seller's notice, that Buyer elects to terminate this
Agreement with respect only to the Facility for which Seller has notified
Buyer that it will not cure such violations. If Buyer exercises such
termination right, the Purchase Price shall be reduced by an amount equal
to the Scheduled Value for such Facility. If Buyer does not so notify
Seller within such ten (10) business day period, Seller shall have no
obligation to cause such violations with respect to that Facility to be
cured or corrected prior to Closing and Buyer will be obligated to accept
the Facility, at Closing, subject to the applicable violations and without
any reduction in the Purchase Price.
10.2.4 COMMERCIAL LEASES. Without Buyer's prior consent, which
consent shall not be unreasonably withheld or delayed, Seller shall not
enter into any new Commercial Lease of the Real Property or modify or
terminate any existing Commercial Lease.
10.2.5 EMPLOYEES, COMPENSATION AND INDEMNIFICATION. To the extent
permitted by law, Buyer shall have the right to review all employment
records and files of, and to interview, employees of Seller or Property
Manager employed at the Property ("Employees"). As of the Closing, Seller
and/or Property Manager, as applicable, shall terminate its
employer-employee relationship with all Employees. Seller and/or Property
Manager, as applicable, shall be solely responsible for all compensation
and other liabilities with respect to Employees and liabilities and
obligations to Employees pursuant to any Employment Contract or any other
agreement entered into with any Employees. Buyer shall not be responsible
for any such liability or obligations, and Seller shall indemnify and hold
harmless Buyer, from and against any such liability or obligations. All
compensation, obligations, liabilities and claims (including any under the
Fair Labor Standards Act) to or by any Employee of Seller and/or Property
Manager, as applicable, arising, occurring or relating to actions, events
or circumstances arising or existing prior to the Closing shall be the
responsibility of Seller and/or Property Manager, as applicable. Buyer
shall not be responsible for any liability or obligations thereof and
Seller shall indemnify and hold harmless Buyer from and against the
foregoing.
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Notwithstanding anything to the contrary contained herein, Buyer shall not
assume or be liable upon any Employment Contract of Seller and/or Property
Manager, as applicable. Seller and/or Property Manager, as applicable,
shall be solely responsible for all incentive pay and vacation pay for all
Employees, and shall provide all such Employees with the vacation pay they
have earned, or the pro rata part of the vacation pay they would have
earned upon the anniversary date of their employment, accrued as o the
Closing Date.
10.2.6 LIABILITY INSURANCE. Seller represents, warrants and
covenants that it currently maintains general and professional liability
insurance with respect to operations on the Property, on an occurrence
basis, in the amount of not less than $1,000,000.00 for any occurence,
$2,000,000.00 in the aggregate, with blanket coverage of $5,000,000.00,
and shall maintain such insurance coverage until Closing.
10.3 MUTUAL COVENANTS.
10.3.1 PUBLICITY. Seller and Buyer each hereby covenant and agree
that (a) prior to the Closing neither Seller nor Buyer shall issue any
Release (as hereinafter defined) with respect to the Transaction without
the prior consent of the other, except to the extent required by
applicable Law, and (b) after the Closing, any Release issued by either
Seller or Buyer shall be subject to the review and approval of both
parties (which approval shall not be unreasonably withheld or delayed),
except to the extent required by applicable Law. If either Seller or Buyer
is required by applicable Law to issue a Release, such party shall, at
least two (2) Business Days prior to the issuance of the same, deliver a
copy of the proposed Release to the other party for its review. As used
herein, the term "Release" shall mean any press release or public
statement with respect to the Transaction or this Agreement.
10.3.2 BROKERS. Seller and Buyer expressly acknowledge that Seller's
Broker has acted as the exclusive brokers with respect to the Transaction
and with respect to this Agreement. Seller shall pay any brokerage
commission due to Seller's Broker in accordance with the separate
agreement between Seller and Seller's Broker. Seller agrees to hold Buyer
harmless and indemnify Buyer from and against any and all Liabilities
(including reasonable attorneys' fees, expenses and disbursements) without
regard to any limitation on the liability fo Seller set forth in this
Agreement, suffered or incurred by Buyer as a result of any claims by
Seller's Broker or any other party claiming to have represented Seller as
broker in connection with the Transaction. Buyer agrees to hold Seller
harmless and indemnify Seller from and against any and all Liabilities
(including reasonable attorneys' fees, expenses and disbursements)
suffered or incurred by Seller as a result of any claims by any party
claiming to have represented Buyer as broker in connection with the
Transaction other than Seller's Broker.
10.3.3 TAX PROTESTS, TAX REFUNDS AND CREDITS. Seller shall have the
right to continue and to control the progress of and to make all decisions
with respect to any contest of the real estate taxes and personal property
taxes for the Property due and payable during the Closing Tax Year and all
prior Tax Years. Buyer shall have the right to control the progress of and
to make all decisions with respect to any tax contest of the
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real estate taxes and personal property taxes for the Property due and
payable during all Tax Years subsequent to the Closing Tax Year. All real
estate and personal property tax refunds and credits received after
Closing with respect to the Property shall be applied in the following
order of priority: first, to pay the costs and expenses (including
reasonable attorneys' fees, expenses and disbursements) incurred in
connection with obtaining such tax refund or credit; second, to pay any
amounts due to any past or present tenant of the Property as a result of
such tax refund or credit to the extent required pursuant to the terms of
the Leases; and third, apportioned between Buyer and Seller as follows:
(a) with respect to any refunds or credits attributable to
real estate and personal property taxes due and payable during the
Closing Tax Year (regardless of the year for which such taxes are
assessed), such refunds and credits shall be apportioned between
Buyer and Seller in the manner provided in Section 6.3;
(b) with respect to any refunds or credits attributable to
real estate and personal property taxes due and payable during any
period prior to the Closing Tax Year (regardless of the year for
which such taxes are assessed), Seller shall be entitled to the
entire refunds and credits; and
(c) with respect to any refunds or credits attributable to
real estate and personal property taxes due and payable during any
period after the Closing Tax Year (regardless of the year for which
such taxes are assessed), Buyer shall be entitled to the entire
refunds and credits.
10.3.4 SURVIVAL. The provisions of this Section 10.3 shall survive
the Closing (and not be merged therein) of this Agreement.
ARTICLE 11 - FAILURE OF CONDITIONS
11.1 TO SELLER'S OBLIGATIONS. IF, ON OR BEFORE THE CLOSING DATE, (I)
BUYER IS IN DEFAULT OF ANY OF ITS OBLIGATIONS HEREUNDER, OR (II) ANY OF BUYER'S
MATERIAL REPRESENTATIONS OR WARRANTIES ARE UNTRUE IN ANY MATERIAL RESPECT, OR
(III) THE CLOSING OTHERWISE FAILS TO OCCUR BY REASON OF BUYER'S FAILURE OR
REFUSAL TO PERFORM ITS OBLIGATIONS HEREUNDER IN A PROMPT AND TIMELY MANNER, AND
SUCH CIRCUMSTANCE IN (I), (II) OR (III) CONTINUES FOR FIVE (5) DAYS AFTER
WRITTEN NOTICE FROM SELLER TO BUYER, WHICH WRITTEN NOTICE SHALL DETAIL SUCH
DEFAULT, UNTRUTH OR FAILURE, AS APPLICABLE, THEN SELLER SHALL HAVE THE RIGHT, TO
ELECT, AS ITS SOLE AND EXCLUSIVE REMEDY, TO (A) TERMINATE THIS AGREEMENT BY
WRITTEN NOTICE TO BUYER; OR (B) WAIVE THE CONDITION AND PROCEED TO CLOSE THE
TRANSACTION IF THIS AGREEMENT IS SO TERMINATED, THEN SELLER SHALL BE ENTITLED TO
THE DEPOSIT AS LIQUIDATED DAMAGES, AND THEREAFTER NEITHER PARTY TO THIS
AGREEMENT SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER OTHER THAN ANY
ARISING UNDER ANY SECTION HEREIN WHICH EXPRESSLY PROVIDES THAT IT SURVIVES THE
TERMINATION OF THIS AGREEMENT. THE
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SELLER'S ACTUAL DAMAGES IN THE EVENT OF A DEFAULT BY BUYER WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICABLE TO ASCERTAIN AND THE AMOUNT OF THE DEPOSIT PLUS ANY
INTEREST ACCRUED THEREON REPRESENTS THE PARTIES' REASONABLE ESTIMATE OF SUCH
DAMAGES. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A
FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275
OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO
CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. NOTWITHSTANDING ANYTHING TO
THE CONTRARY CONTAINED IN THIS SECTION 11.1, SELLER AND BUYER AGREE THAT THIS
LIQUIDATED DAMAGES PROVISION IS NOT INTENDED AND SHOULD NOT BE DEEMED OR
CONSTRUED TO LIMIT IN ANY WAY BUYER'S INDEMNITY OBLIGATIONS UNDER THIS
AGREEMENT.
/s/ JMD
____________________ /s/ WBD
Seller's Initials ------------------------
Buyer's Initials
11.2 TO BUYER'S OBLIGATIONS. If, at the Closing, (i) Seller is in default
of any of its obligations hereunder, or (ii) any of Seller's material
representations or warranties are untrue in any material respect, or (iii) the
Closing otherwise fails to occur by reason of Seller's failure or refusal to
perform its obligations hereunder in a prompt and timely manner, and such
circumstance in (i), (ii) or (iii) continues for five (5) days after written
notice from Buyer to Seller, which written notice shall detail such default,
untruth or failure, as applicable, Buyer shall have the right, to elect, as its
sole and exclusive remedy, to (a) terminate this Agreement by written notice to
Seller, promptly after which any Deposit shall be returned to Buyer and Seller
shall reimburse Buyer for all third party costs and expenses incurred by Buyer
in connection with this Transaction (but not in excess of One Million and No/100
Dollars ($1,000,000.00)), or (b) waive the condition and proceed to close the
Transaction, or (c) seek specific performance of this Agreement by Seller. As a
condition precedent to Buyer exercising any right it may have to bring an action
for specific performance hereunder, Buyer must commence such an action within
one hundred eighty (180) days after Buyer has knowledge the occurrence of
Seller's default. Buyer agrees that its failure to timely commence such an
action for specific performance within such one hundred eighty (180) day period
shall be deemed a waiver by it of its right to commence an action for specific
performance as well as a waiver by it of any right it may have to file or record
a notice of lis pendens or notice of pendency of action or similar notice
against any portion of the Property.
ARTICLE 12 - CONDEMNATION/CASUALTY
12.1 RIGHT TO TERMINATE. If, after the date hereof, (a) any Facility or
portion thereof is taken by condemnation or eminent domain (or is the subject of
a pending taking which has not yet been consummated), or (b) any Facility or
portion thereof is damaged or destroyed (excluding routine wear and tear),
Seller shall notify Buyer in writing of such fact promptly after obtaining
knowledge thereof. If the Facility is the subject of a Major
Casualty/Condemnation that occurs after the date hereof, Buyer shall have the
right to terminate this Agreement with respect to such Facility (but not with
respect to any other portion of the Property), in which case
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the Purchase Price shall be reduced by an amount equal to the Scheduled Value of
such Facility by giving written notice to Seller no later than ten (10) Business
Days after the giving of Seller's notice, and the Closing Date shall be
extended, if necessary, to provide sufficient time for Buyer to make such
election. The failure by Buyer to so elect in writing to terminate this
Agreement with respect to such Facility within such ten (10) Business Day period
shall be deemed an election not to terminate this Agreement with respect to such
Facility.
12.2 ALLOCATION OF PROCEEDS AND AWARDS. If a condemnation or casualty
occurs after the date hereof and this Agreement with respect to such Facility is
not terminated as permitted pursuant to the terms of Section 12.1, then this
Agreement shall remain in full force and effect, Buyer shall acquire the
Facility and other Property upon the terms and conditions set forth herein and
at the Closing:
(a) if the awards or proceeds, as the case may be, have been paid
to Seller prior to Closing, Buyer shall receive a credit at Closing equal
to (i) the amount of any such award or proceeds on account of such
condemnation or casualty, plus (ii) if a casualty has occurred and such
casualty is an insured casualty, an amount equal to Seller's deductible
with respect to such casualty, less (iii) an amount equal to the
Seller-Allocated Amounts; and
(b) to the extent that such award or proceeds have not been paid
to Seller prior to Closing, (i) if a casualty has occurred and such
casualty is an insured casualty, Buyer shall receive a credit at Closing
equal to Seller's deductible with respect to such casualty, less an amount
equal to the Seller-Allocated Amounts, and (ii) Seller shall assign to
Buyer at the Closing (without recourse to Seller) the rights of Seller to,
and Buyer shall be entitled to receive and retain, such awards or
proceeds; provided, however, that within one (1) Business Day after
receipt of such awards or proceeds, Buyer shall pay to Seller an amount
equal to the Seller-Allocated Amounts not previously paid to Seller.
12.3 INSURANCE. Seller shall maintain the property insurance coverage
currently in effect for the Property, or comparable coverage, through the
Closing Date. Seller will provide Buyer copies of its insurance certificates as
part of the Due Diligence Materials.
12.4 WAIVER. The provisions of this Article 12 supersede the provisions
of any applicable Laws with respect to the subject matter of this Article 12.
ARTICLE 13 - ESCROW
The Deposit and any other sums (including, without limitation, any interest
earned thereon) which the parties agree shall be held in escrow (herein
collectively called the "Escrow Deposits"), shall be held by the Escrow Agent,
in trust, and disposed of only in accordance with the following provisions:
13.1 DEPOSIT. The Escrow Agent shall invest the Escrow Deposits in
government insured interest-bearing instruments reasonably satisfactory to both
Buyer and Seller, and shall promptly provide Buyer and Seller with confirmation
of the investments made.
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13.2 DELIVERY. If the Closing occurs, the Escrow Agent shall deliver the
Escrow Deposits to, or upon the instructions of, Seller on the Closing Date.
13.3 FAILURE OF CLOSING. If for any reason the Closing does not occur,
the Escrow Agent shall deliver the Escrow Deposits to Seller or Buyer only upon
receipt of a written demand therefor from such party, subject to the following
provisions of this Section 13.3. If for any reason the Closing does not occur
and either party makes a written demand upon the Escrow Agent for payment of the
Escrow Deposits, the Escrow Agent shall give written notice to the other party
of such demand. If the Escrow Agent does not receive a written objection from
the other party to the proposed payment within ten (10) days after the giving of
such notice, the Escrow Agent is hereby authorized to make such payment. If the
Escrow Agent does receive such written objection within such period, the Escrow
Agent shall continue to hold such amount until otherwise directed by written
instructions signed by Seller and Buyer or a final judgment of a court.
13.4 STAKEHOLDER. The parties acknowledge that the Escrow Agent is acting
solely as a stakeholder at their request and for their convenience, that the
Escrow Agent shall not be deemed to be the agent of either of the parties, and
that the Escrow Agent shall not be liable to either of the parties for any
action or omission on its part taken or made in good faith, and not in disregard
of this Agreement, but shall be liable for its negligent acts and for any
Liabilities (including reasonable attorneys' fees, expenses and disbursements)
incurred by Seller or Buyer resulting from the Escrow Agent's mistake of Law
respecting the Escrow Agent's scope or nature of its duties. Seller and Buyer
shall jointly and severally indemnify and hold the Escrow Agent harmless from
and against all Liabilities (including reasonable attorneys' fees, expenses and
disbursements) incurred in connection with the performance of the Escrow Agent's
duties hereunder, except with respect to actions or omissions taken or made by
the Escrow Agent in bad faith, in disregard of this Agreement or involving
negligence on the part of the Escrow Agent.
13.5 TAXES. Seller shall pay any income taxes on any interest earned on
the Escrow Deposit, except to the extent that the Closing does not occur and
such interest is paid over to Buyer pursuant to Section 13.3, in which case
Buyer shall pay any income taxes on such interest. Seller represents and
warrants to the Escrow Agent that its taxpayer identification number is as set
forth in Section 15.2(c) Buyer represents and warrants to the Escrow Agent that
its taxpayer identification number is 00-0000000.
13.6 EXECUTION BY ESCROW AGENT. The Escrow Agent has executed this
Agreement in the place indicated on the signature page hereof in order to
confirm that the Escrow Agent has received and shall hold the Escrow Deposits,
in escrow, and shall disburse the Escrow Deposits pursuant to the provisions of
this Article 13.
ARTICLE 14 - LEASE EXPENSES
14.1 APARTMENT LEASING. Except as otherwise provided herein, between the
date hereof and the Closing Date, Seller shall not change its current leasing or
management practices without the prior written approval of Buyer, which approval
shall not be unreasonably withheld
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or delayed. Seller shall provide Buyer with information outlining any such
proposed changes to such leasing or management practices, and Buyer shall have
five (5) Business Days to provide written approval or disapproval of such
proposed changes; provided, however, that failure of Buyer to respond within
such five (5) Business Day period shall be deemed to constitute approval of such
proposed changes. Between the date hereof and the Closing Date, Seller will
cause vacant apartment units at the Property to be "made ready" for reletting
and occupancy in accordance with Seller's current standards and timetable for
turning units over. It is not the intention of Seller to have all of the vacant
units "made ready" as of the Closing Date, but only those units that would have
been "made ready" in the ordinary course of business.
14.2 LEASE ENFORCEMENT. Seller shall have the right, but not the
obligation (except to the extent that Seller's failure to act shall constitute a
waiver of such rights or remedies), to enforce the rights and remedies of the
landlord under any Lease, by summary proceedings or otherwise (including,
without limitation, the right to remove any tenant), and to apply all or any
portion of any security deposits then held by Seller toward any loss or damage
incurred by Seller by reason of any defaults by tenants, and the exercise of any
such rights or remedies shall not affect the obligations of Buyer under this
Agreement in any manner or entitle Buyer to a reduction in, or credit or
allowance against, the Purchase Price or give rise to any other claim on the
part of Buyer; provided, however, prior to exercising any right to terminate a
Commercial Lease or the tenant's right of possession thereunder, Seller shall
first obtain Buyer's prior written consent thereto, which consent shall not be
unreasonably withheld or delayed.
ARTICLE 15 - MISCELLANEOUS
15.1 BUYER'S ASSIGNMENT. Buyer shall have the right to cause Seller to
convey the Property to an affiliate of Buyer which is wholly owned by Buyer or
wholly owned by the owners of Buyer, or to an affiliate which is owned, in part,
by Buyer and which is controlled by Buyer as to property operating and
management issues, and which assignee shall be designated in writing by Buyer by
the delivery to Seller of a written assignment of this Agreement pursuant to
which Buyer's obligations hereunder are expressly assumed by such assignee and
by delivery to Seller of evidence reasonably satisfactory to Seller of the valid
legal existence of Buyer's assignee, its qualification (if necessary) to do
business in the jurisdiction in which the Property is located and of the
authority of Buyer's assignee to execute and deliver any and all documents
required of Buyer under the terms of this Agreement, which items shall be
received by Seller not less than three (3) Business Days prior to the Closing
Date; notwithstanding the foregoing, the exercise of such right by Buyer shall
not relieve Buyer of any of its obligations and liabilities hereunder including
obligations and liabilities which survive the Closing or the termination of this
Agreement, nor shall any such assignment alter, impair or relieve such assignee
from the waivers, acknowledgements and agreements of Buyer set forth herein,
including, but not limited to, those set forth in Article 5, Article 9 and
Article 10 hereof, all of which are binding upon the assignee of Buyer. Except
as expressly provided to the contrary by the immediately preceding sentence,
Buyer shall not assign this Agreement or its rights hereunder to any individual
or entity without the prior written consent of Seller, which consent Seller may
grant or withhold in its sole and absolute discretion, and any such assignment
shall be null and void ab initio. In the event of any permitted assignment by
Buyer, any assignee shall assume any and all obligations and
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liabilities of Buyer under this Agreement but, notwithstanding such assumption,
Buyer shall continue to be liable hereunder.
15.2 DESIGNATION AGREEMENT. Section 6045(e) of the United States Internal
Revenue Code and the regulations promulgated thereunder (herein collectively
called the "Reporting Requirements") require an information return to be made to
the United States Internal Revenue Service, and a statement to be furnished to
Seller, in connection with the Transaction. Escrow Agent is either (i) the
person responsible for closing the Transaction (as described in the Reporting
Requirements) or (ii) the disbursing title or escrow company that is most
significant in terms of gross proceeds disbursed in connection with the
Transaction (as described in the Reporting Requirements). Accordingly:
(a) Escrow Agent is hereby designated as the "Reporting Person"
(as defined in the Reporting Requirements) for the Transaction. Escrow
Agent shall perform all duties that are required by the Reporting
Requirements to be performed by the Reporting Person for the Transaction.
(b) Seller and Buyer shall furnish to Escrow Agent, in a timely
manner, any information requested by Escrow Agent and necessary for Escrow
Agent to perform its duties as Reporting Person for the Transaction.
(c) Escrow Agent hereby requests Seller to furnish to Escrow Agent
Seller's correct taxpayer identification number. Seller acknowledges that
any failure by Seller to provide Escrow Agent with Seller's correct
taxpayer identification number may subject Seller to civil or criminal
penalties imposed by Law. Accordingly, Seller hereby certifies to Escrow
Agent, under penalties of perjury, that Seller's correct taxpayer
identification numbers are as follows: (i) SHP Xxxxxx Creek, LLC,
00-0000000, (ii) SHP Oak Tree Villa, LLC, 00-0000000, (iii) SHP Mirage
Inn, LLC, 00-0000000, (iv) SHP Lexington, LLC, 00-0000000, (v) SHP Inn at
the Park, LLC, 00-0000000, (vi) XXX Xxxx Xxxxx, XXX, 00-0000000, (vii) SHP
Pacific Inn, LLC, 00-0000000, (viii) SHP Gables, LLC, 00-0000000, and (ix)
SHP Ocean House, LLC, 00-0000000.
(d) Each of the parties hereto shall retain this Agreement for a
period of four (4) years following the calendar year during which Closing
occurs.
15.3 SURVIVAL/MERGER. Except for the provisions of this Agreement which
are explicitly stated to survive the Closing, (a) none of the terms of this
Agreement shall survive the Closing, and (b) the delivery of the Conveyance
Instrument and any other documents and instruments by Seller and the acceptance
thereof by Buyer shall effect a merger, and be deemed the full performance and
discharge of every obligation on the part of Buyer and Seller to be performed
hereunder.
15.4 INTEGRATION; WAIVER. This Agreement, together with the Exhibits
hereto, embodies and constitutes the entire understanding between the parties
with respect to the Transaction and all prior agreements, understandings,
representations and statements, oral or written, are merged into this Agreement.
Neither this Agreement nor any provision hereof may
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be waived, modified, amended, discharged or terminated except by an instrument
signed by the party against whom the enforcement of such waiver, modification,
amendment, discharge or termination is sought, and then only to the extent set
forth in such instrument. No waiver by either party hereto of any failure or
refusal by the other party to comply with its obligations hereunder shall be
deemed a waiver of any other or subsequent failure or refusal to so comply.
15.5 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the Law of the State in which the Property is located.
15.6 CAPTIONS NOT BINDING; EXHIBITS. The captions in this Agreement are
inserted for reference only and in no way define, describe or limit the scope or
intent of this Agreement or of any of the provisions hereof. All Exhibits
attached hereto shall be incorporated by reference as if set out herein in full.
15.7 BINDING EFFECT. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
15.8 SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable shall not be affected thereby, and each term
and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by Law.
15.9 NOTICES. Any notice, request, demand, consent, approval and other
communications under this Agreement shall be in writing, and shall be deemed
duly given or made at the time and on the date when received by facsimile
(provided that the sender of such communication shall orally confirm receipt
thereof by the appropriate parties and send a copy of such communication to the
appropriate parties within one (1) Business Day of such facsimile) or when
personally delivered as shown on a receipt therefor (which shall include
delivery by a nationally recognized overnight delivery service such as Federal
Express, UPS Next Day Air, Purolator Courier or Airborne Express), to the
address for each party set forth below. Any party, by written notice to the
other in the manner herein provided, may designate an address different from
that set forth below.
IF TO BUYER: FIT REN LLC
c/o Fortress Investment Group LLC
1251 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy No.: 000-000-0000
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WITH A COPY TO: Brookdale Living Communities, Inc.
000 X. Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: R. Xxxxxxx Xxxxx and Xxxxxxx Xxxxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
WITH A COPY TO: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopy No.: 000-000-0000
IF TO SELLER: SHP Pacific Inn, LLC
SHP Xxxx Ranch, LLC
SHP Gables, LLC
SHP Oak Tree Villa, LLC
SHP Lexington, LLC
SHP Inn at the Park, LLC
SHP Xxxxxx Creek, LLC;
SHP Mirage Inn, LLC
SHP Ocean House, LLC,
c/o Prudential Real Estate Investors
Xxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Dark
Telephone No.: 000.000.0000
Telecopy No.: 770.399.5363
WITH A COPY TO: The Prudential Insurance Company of America
c/o PREI Law Department
Arbor Circle South
0 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Law Department (Xxxxxxx Xxxxx)
Telephone No.: 000.000.0000
Telecopy No.: 973.683.1788
WITH A COPY TO: Xxxxxx & Bird LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx
Telephone No.: 000.000.0000
Telecopy No.: 404.881.7777
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15.10 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be an original and all of which counterparts taken together shall
constitute one and the same agreement.
15.11 NO RECORDATION. Seller and Buyer each agrees that neither this
Agreement nor any memorandum or notice hereof shall be recorded and Buyer agrees
(a) not to file any notice of pendency or other instrument (other than a
judgment) against the Property or any portion thereof in connection herewith and
(b) to indemnify Seller against all Liabilities (including reasonable attorneys'
fees, expenses and disbursements) incurred by Seller by reason of the filing by
Buyer of such notice of pendency or other instrument. Notwithstanding the
foregoing, if the same is permitted pursuant to applicable Laws, Buyer shall be
entitled to record a notice of lis pendens if Buyer is entitled to seek (and is
actually seeking) specific performance of this Agreement by Seller in accordance
with the terms of Section 11.2 hereof.
15.12 ADDITIONAL AGREEMENTS; FURTHER ASSURANCES. Subject to the terms and
conditions herein provided, each of the parties hereto shall execute and deliver
such documents as the other party shall reasonably request in order to
consummate and make effective the Transaction; provided, however, that the
execution and delivery of such documents by such party shall not result in any
additional liability or cost to such party.
15.13 CONSTRUCTION. The parties acknowledge that each party and its
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendment hereof or Exhibit hereto.
15.14 ERISA. Buyer acknowledges and agrees that it is dealing solely with
Seller in connection with the Transaction and that it is not dealing with
Prudential Securities Incorporated, or any other entity affiliated with Seller
(hereinafter "a Prudential affiliate") in connection with any aspect of the
Transaction. Buyer, subsequent to the date hereof, shall not deal with any
Prudential affiliate in connection with any aspect of the Transaction without
Seller's consent, which may be given or withheld for any reason or no reason. In
addition, to satisfy compliance with ERISA, Buyer represents and warrants to
Seller (as used in this Section, Seller shall be deemed to mean "Seller and
Prudential") that:
(a) Buyer is not an employee pension benefit plan subject to the
provisions of Title IV of ERISA or subject to the minimum funding
standards under Part 3, Subtitle B, Title I of ERISA or Section 412 of the
Internal Revenue Code or Section 302 of ERISA, and none of its assets
constitutes or will constitute assets of any such employee benefit plan
subject to Part 4, Subtitle B, Title I of ERISA.
(b) Buyer is not a "governmental plan" within the meaning of
Section 3(32) of ERISA and the funds used by Buyer to acquire the Property
are not subject to state statutes regulating investments of and fiduciary
obligations with respect to governmental plans.
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(c) Neither Buyer nor any of its affiliates (within the meaning of
Part V(c) of PTE 84-14 has, or during the immediately preceding year has
exercised, the authority to appoint or terminate Prudential as investment
manager of any assets of the employee benefit plans whose assets are held
by Prudential or to negotiate the terms of any management agreement with
Seller on behalf of any such plan.
(d) The terms of the Transaction have been negotiated and
determined at arm's length, as such terms would be negotiated and
determined by unrelated parties.
Buyer hereby agrees to execute such documents or provide such information as
Seller (or Prudential, if Seller is not Prudential) may require in connection
with the Transaction or to otherwise assure Seller (or Prudential, if Seller is
not Prudential) that: (i) the Transaction is not a prohibited transaction under
ERISA or any applicable similar prohibition under state Law, (ii) that the
Transaction is otherwise in full compliance with ERISA and such applicable
similar state Laws, and (iii) that Seller (and Prudential, if Seller is not
Prudential) is not in violation of ERISA or any applicable similar state Laws by
compliance with this Agreement and by closing the Transaction. Seller shall not
be obligated to consummate the Transaction unless and until the Transaction
complies with ERISA and applicable similar state Laws and Seller (and
Prudential, if Seller is not Prudential) is satisfied that the Transaction
complies in all respects with ERISA and any applicable similar state Laws. The
obligations of Buyer under this Section shall survive the Closing and shall not
be merged therein. Notwithstanding any provision in this Agreement to the
contrary, the representations, warranties, covenants and agreements set forth in
this Section 15.14 are intended to inure to the benefit of both Seller and
Prudential and Prudential shall be entitled to rely hereon and enforce the
provisions hereof.
15.15 INDEMNITY.
15.15.1 SELLER'S INDEMNITY. Seller shall indemnify, defend (with
Buyer having the right to retain counsel for the purpose of participating
in such defense, at its sole cost and expense) and hold harmless Buyer,
its successors, assigns, members, lenders, directors, officers, agents and
representatives (collectively, "Buyer's Group") against and with respect
to any and all losses, claims, suits, damages, costs, expenses and fees
(including reasonable attorneys' fees), demands, judgments and liabilities
of whatsoever nature or kind (including, but not limited to, any
litigation and court costs, amounts paid in settlement by or with the
approval of the Seller and amounts paid to discharge judgments) suffered
or incurred by Buyer or any other member of Buyer's Group (collectively,
"Buyer's Losses") resulting from or arising out of:
(i) any inaccuracy in or breach of any of Seller's Warranties not
discovered by Buyer until after Closing, provided that the
aggregate amount of Buyer's Losses is in excess of One Hundred
Thousand and No/100 Dollars ($100,000.00), in which case
Seller shall indemnify Buyer Group for all Buyer's Losses,
including such losses below the One Hundred Thousand and
No/100 Dollars ($100,000.00) threshold; and provided further
that Seller's liability under this Section 15.15.1(i), in the
aggregate, shall not exceed Ten Million and No/100 Dollars
($10,000,000.00), with
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respect to any claims made by Buyer on or before the earlier
to occur of one hundred eighty (180) days after the Closing
Date or December 31, 2005, and shall not exceed Three Million
and No/100 Dollars ($3,000,000.00) with respect to any claims
made by Buyer after the earlier of such dates and or before
the end of the two hundred seventy (270) day survival period
described in Section 15.15.3 below.
(ii) any claim with respect to any personal injury or death to a
resident resulting from, or allegedly resulting from, the act
or omission of Seller, Property Manager or any of the
Employees prior to the Closing Date; provided, however, that
Seller's liability under this Section 15.15.1(ii), in the
aggregate, shall not exceed Five Million and No/100 Dollars
($5,000,000.00); and provided, further, however, that if
Seller's insurance carrier pays damages, attorneys fees and
court costs with respect to any matter covered by the
indemnity set forth herein, Seller's aggregate liability
obligation set forth in the preceding clause shall be reduced
on a dollar-for-dollar basis for all amounts so paid by
Seller's insurance carrier; and provided, further, however,
regardless of any limitation on Seller's liability in
connection with Seller's indemnification obligations under
this Section 15.15.1(ii), in no event shall Buyer be deemed to
have assumed any responsibility or liability for any claim
made with respect to any personal injury or death to a
resident resulting from or allegedly resulting from the act or
omission of Seller, Property Manager or any of the Employees
prior to the Closing Date.
15.15.2 BUYER'S INDEMNITY. Buyer shall indemnify, defend (with
Seller having the right to retain counsel for the purpose of participating
in such defense, at its sole cost and expense), and hold harmless Seller,
its successors, assigns, partners, lenders, directors, officers,
employees, agents and representatives (collectively, the "Seller's Group")
against and with respect to any and all losses, claims, suits, damages,
costs, expenses and fees (including reasonable attorneys fees), demands,
judgments and liabilities of whatsoever nature or kind (including, but not
limited to, any litigation and court costs, amounts paid in settlement by
or with the approval of the Buyer and amounts paid to discharge judgments)
suffered or incurred by Seller or any other member of the Seller's Group
(collectively, "Seller's Losses") resulting from or arising out of:
(i) any inaccuracy in or breach of any representation, warranty or
covenant of Buyer, and not discovered by Seller until after
Closing, provided that the aggregate amount of Seller's Losses
is in excess of One Hundred Thousand and No/100 Dollars
($100,000.00), in which case Buyer shall indemnify the Seller
Group for all Seller's Losses, including such losses below the
One Hundred Thousand and No/100 Dollars ($100,000.00)
threshold; and provided further that Buyer's liability under
this Section 15.15.2(i) shall not exceed Ten Million and
No/100 Dollars ($10,000,000.00), with respect to any claims
made by Seller on or before the earlier to occur of one
hundred eighty (180) days after the Closing
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Date or December 31, 2005, and shall not exceed Three Million
and No/100 Dollars ($3,000,000.00) with respect to any claims
made by Seller after the earlier of such dates and or before
the end of the two hundred seventy (270) day survival period
described in Section 15.15.3 below.
(ii) any claim arising out of any event, act or omission that
occurs on the Property from and after the Closing Date or
arises out of Buyer's ownership, operation, maintenance or
repair of the Property from and after the Closing Date;
provided, however, that Buyer's liability under this Section
15.15.2(ii) shall not exceed Five Million and No/100 Dollars
($5,000,000.00) in the aggregate.
15.15.3 SURVIVAL; NOTICE OF CLAIMS. Any claim made under this
Section 15.15 must be made on or before two hundred seventy (270) days
after the Closing Date or such claim shall expire and be of no further
force or effect. Seller and Buyer, as applicable, shall, during such two
hundred seventy (270) day period, promptly notify the other in the event
any claim is made against Seller or Buyer as to which the other party has
agreed to indemnify and the indemnitor shall thereupon undertake to defend
and hold the indemnitee harmless therefrom.
15.16 TIME OF THE ESSENCE. Time is of the essence with respect to this
Agreement.
15.17 WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES TRIAL BY JURY IN ANY
PROCEEDINGS BROUGHT BY THE OTHER PARTY IN CONNECTION WITH ANY MATTER ARISING OUT
OF OR IN ANY WAY CONNECTED WITH THE TRANSACTION, THIS AGREEMENT, THE PROPERTY OR
THE RELATIONSHIP OF BUYER AND SELLER HEREUNDER. THE PROVISIONS OF THIS SECTION
SHALL SURVIVE THE CLOSING (AND NOT BE MERGED THEREIN) OR ANY EARLIER TERMINATION
OF THIS AGREEMENT.
15.18 FACSIMILE SIGNATURES. Signatures to this Agreement transmitted by
telecopy shall be valid and effective to bind the party so signing. Each party
agrees to promptly deliver an execution original to this Agreement with its
actual signature to the other party, but a failure to do so shall not affect the
enforceability of this Agreement, it being expressly agreed that each party to
this Agreement shall be bound by its own telecopied signature and shall accept
the telecopied signature of the other party to this Agreement.
15.19 JURISDICTION. WITH RESPECT TO ANY SUIT, ACTION OR PROCEEDINGS
RELATING TO THE TRANSACTION, THIS AGREEMENT, THE PROPERTY OR THE RELATIONSHIP OF
BUYER AND SELLER HEREUNDER ("PROCEEDINGS") EACH PARTY IRREVOCABLY (A) SUBMITS TO
THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE COUNTY OF NEW CASTLE, STATE OF
DELAWARE AND THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, AND
(B) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF
ANY PROCEEDINGS BROUGHT IN ANY SUCH COURT, WAIVES ANY CLAIM THAT SUCH
PROCEEDINGS HAVE BEEN BROUGHT IN AN INCONVENIENT
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FORUM AND FURTHER WAIVES THE RIGHT TO OBJECT, WITH RESPECT TO SUCH PROCEEDINGS,
THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER SUCH PARTY. THE PROVISIONS OF
THIS SECTION SHALL SURVIVE THE CLOSING (AND NOT BE MERGED THEREIN) OR ANY
EARLIER TERMINATION OF THIS AGREEMENT.
15.20 WAIVER; RELEASE. BUYER WAIVES THE PROVISIONS OF CALIFORNIA CIVIL
CODE SECTION 1542, WHICH PROVIDES: "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."
15.21 NATURAL HAZARD DISCLOSURES. As used herein, the term "Natural Hazard
Area" shall mean those areas identified as natural hazard areas or natural
hazards in California Government Code Sections 8589.3, 8589.4 and 51183.5, and
California Public Resources Code Section 2621.9, 2694 and 4136, and any
successor statutes or laws (collectively, the "Act"). Within ten (10) days of
the date of this Agreement, Seller shall provide Buyer with a Natural Hazard
Disclosure Statement (the "Disclosure Statements") in a form required by the Act
for each Facility. Buyer acknowledges that Seller retained the services of LGS
Reports, Inc. to examine the maps and other information made available to the
public by government agencies for the purpose of enabling Seller to fulfill its
disclosure obligations with respect to the Act and to prepare the written report
of the results of its examination (the "Reports"). Provided Seller delivers the
Disclosure Statements to Buyer within such ten (10) day period, Buyer
acknowledges that the Reports will fully and completely discharge Seller from
its disclosure obligations under the Act. Buyer acknowledges and agrees that
nothing contained in the Disclosure Statements will release Buyer from its
obligation to fully investigate and satisfy itself with the condition of the
Property during the Due Diligence Period, including, without limitation, whether
any Facility is located in any Natural Hazard Area. Buyer further acknowledges
and agrees that the matters set forth in the Disclosure Statements or Reports
may change on or prior to the Closing and that Seller has no obligation to
update, modify or supplement the Disclosure Statements or Reports. Buyer is
solely responsible for preparing and delivering its own Disclosure Statements to
subsequent prospective purchasers of the Property.
15.22 PURCHASE PRICE ALLOCATION. The Purchase price shall be allocated
among the Property in accordance with Section 1060 of the Internal Revenue Code
and the regulations thereunder, as provided in Schedule 1(b) or as reasonably
agreed upon by Seller and Buyer prior to the Closing. Such allocation shall be
binding on Buyer and Seller.
15.23 ASSISTANCE WITH FINANCIAL STATEMENTS. Upon not less than five (5)
days prior notice from Buyer to Seller, Seller hereby agrees to provide Buyer's
auditors, at Buyer's sole cost and expense, sufficient access to information and
personnel to obtain all of the information they require to prepare audited
financial statements of the Property for fiscal years 2002, 2003 and 2004 and
comparative unaudited interim financial statements through closing. Sellers also
agree to cause an executive officer of Sellers and/or Property Manager with
knowledge concerning the financials affairs of the Property to execute and
deliver a representation letter (the
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"Representation Letter") to Buyer's auditors with respect to all financial
information delivered to Buyer and its auditors, in a form and substance
substantially similar to what would have been executed and delivered to their
auditors had the Sellers been preparing audited financial statements for such
time periods with respect to the Property.
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly
executed on its behalf on the day and year first above written.
SELLER:
SHP PACIFIC INN, LLC, a Delaware limited
liability company
By: Senior Housing Partners I, L.P., a Delaware
limited partnership, as the sole Managing
Member thereof
By: Senior Housing Partners I, L.L.C., a
Delaware limited liability company, its
general partner
By: The Prudential Insurance Company of
America, a New Jersey corporation,
its Managing Member
By: /s/ Xxxx X. Dark
-----------------------------
Name: Xxxx X. Dark
Title: Vice President
SHP XXXX RANCH, LLC, a Delaware limited
liability company
By: Senior Housing Partners I, L.P., a Delaware
limited partnership, as the sole Managing
Member thereof
By: Senior Housing Partners I, L.L.C., a
Delaware limited liability company, its
general partner
By: The Prudential Insurance Company of
America, a New Jersey corporation,
its Managing Member
By: /s/ Xxxx X. Dark
-----------------------------
Name: Xxxx X. Dark
Title: Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGES]
Purchase Agreement
SHP/Renaissance Portfolio Contract
SHP GABLES, LLC, a Delaware limited liability
company
By: Senior Housing Partners I, L.P., a Delaware
limited partnership, as the sole Managing
Member thereof
By: Senior Housing Partners I, L.L.C., a
Delaware limited liability company, its
general partner
By: The Prudential Insurance Company of
America, a New Jersey corporation,
its Managing Member
By: /s/ Xxxx X. Dark
-----------------------------
Name: Xxxx X. Dark
Title: Vice President
SHP OAK TREE VILLA, LLC, a Delaware limited
liability company
By: Senior Housing Partners I, L.P., a Delaware
limited partnership, as the sole Managing
Member thereof
By: Senior Housing Partners I, LLC., a
Delaware limited liability company, its
general partner
By: The Prudential Insurance Company of
America, a New Jersey corporation,
its Managing Member
By: /s/ Xxxx X. Dark
-----------------------------
Name: Xxxx X. Dark
Title: Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGES]
Purchase Agreement
SHP/Renaissance Portfolio Contract
- 2 -
SHP LEXINGTON, LLC, a Delaware limited liability
company
By: Senior Housing Partners I, L.P., a Delaware
limited partnership, as the sole Managing
Member thereof
By: Senior Housing Partners I, L.L.C., a
Delaware limited liability company, its
general partner
By: The Prudential Insurance Company of
America, a New Jersey corporation,
its Managing Member
By: /s/ Xxxx X. Dark
-----------------------------
Name: Xxxx X. Dark
Title: Vice President
SHP INN AT THE PARK, LLC, a Delaware limited
liability company
By: Senior Housing Partners I, L.P., a Delaware
limited partnership, as the sole Managing
Member thereof
By: Senior Housing Partners I, L.L.C., a
Delaware limited liability company, its
general partner
By: The Prudential Insurance Company of
America, a New Jersey corporation,
its Managing Member
By: /s/ Xxxx X. Dark
-----------------------------
Name: Xxxx X. Dark
Title: Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGES]
Purchase Agreement
SHP/Renaissance Portfolio Contract
- 3 -
SHP XXXXXX CREEK, LLC, a Delaware limited
liability company
By: SHP Xxxxxx Creek Manager, LLC, a Delaware
limited liability company, its managing
member
By: Senior Housing Partners I, L.P., a
Delaware limited partnership, as the
sole Managing Member thereof
By: Senior Housing Partners I, LLC, a
Delaware limited liability company,
its general partner
By: The Prudential Insurance Company
of America, a New Jersey
corporation, its Managing Member
By: /s/ Xxxx X. Dark
----------------------------
Name: Xxxx X. Dark
Title: Vice President
SHP MIRAGE INN, LLC, a Delaware limited
liability company
By: Senior Housing Partners I, L.P., a Delaware
limited partnership, as the sole Managing
Member thereof
By: Senior Housing Partners I, L.L.C., a
Delaware limited liability company, its
general partner
By: The Prudential Insurance Company of
America, a New Jersey corporation,
its Managing Member
By: /s/ Xxxx X. Dark
----------------------------
Name: Xxxx X. Dark
Title: Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGES]
Purchase Agreement
SHP/Renaissance Portfolio Contract
- 4 -
SHP OCEAN HOUSE, LLC, a Delaware limited
liability company
By: Senior Housing Partners I, L.P., a Delaware
limited partnership, as the sole Managing
Member thereof
By: Senior Housing Partners I, L.L.C., a
Delaware limited liability company, its
general partner
By: The Prudential Insurance Company of
America, a New Jersey corporation,
its Managing Member
By: /s/ Xxxx X. Dark
----------------------------
Name: Xxxx X. Dark
Title: Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGES]
Purchase Agreement
SHP/Renaissance Portfolio Contract
- 5 -
BUYER:
FIT REN LLC, a Delaware limited liability
company
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------------
Title: COO & Secretary
---------------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Purchase Agreement
SHP/Renaissance Portfolio Contract
- 6 -
The undersigned has executed this Agreement solely for the purpose of
guaranteeing the obligations of Seller under Section 9.3.4 and Section 15.15 of
this Agreement. Seller shall not otherwise have any liability whatsoever with
respect to Seller's duties, obligations or liabilities under this Agreement. The
undersigned hereby covenants and agrees to maintain a net worth, determined in
accordance with generally accepted accounting principles, of at least Ten
Million and No/100 Dollars ($10,000,000.00), until the earlier to occur of one
hundred eighty (180) days following the Closing Date or December 31, 2005, and,
thereafter, until the date which is two hundred seventy (270) days following the
Closing Date, the undersigned shall maintain a net worth, determined in
accordance with generally accepted accounting principles, of Three Million and
No/100 Dollars ($3,000,000.00).
Senior Housing Partners I, L.P., a Delaware
limited partnership
By: Senior Housing Partners I, L.L.C., a
Delaware limited liability company, its
general partner
By: The Prudential Insurance Company of
America, a New Jersey corporation, its
Managing Member
By: /s/ Xxxx X. Dark
----------------------------
Name: Xxxx X. Dark
Title: Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGES]
Purchase Agreement
SHP/Renaissance Portfolio Contract
- 7 -
The undersigned has executed this Agreement solely to confirm its agreement to
(i) hold the Escrow Deposits in escrow in accordance with the provisions hereof
and (ii) comply with the provisions of Article 13 and Section 15.2.
ESCROW AGENT:
FIDELITY NATIONAL TITLE INSURANCE COMPANY
By: /s/ Xxxxx Xxxxxxx
_____________________________________________
Name: Xxxxx Xxxxxxx
________________________________________
Title: VP
_______________________________________
Date: March 22 , 2005
_____________
Purchase Agreement
SHP/Renaissance Portfolio Contract
- 8 -
EXHIBIT A
(TO PURCHASE AND SALE AGREEMENT)
LEGAL DESCRIPTION
00 Xxxxxxxxx, Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx - Inn at the Park (Page 2)
380 South Anaheim Hills Road, Orange County, Anaheim Hills, California - Xxxx
Ranch (Page 3)
00000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx - Mirage
(Pages 4-6)
0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx County, Torrance, California - Pacific
Inn (Pages 7-8)
000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx - Gables
(Page 9)
0000 Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx - Lexington (Page 10)
000 Xxxxxxxx Xxxx, Xxxxx Xxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx - Oak Tree
(Pages 11-12)
0000 Xxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx - Lodge at Xxxxxx Creek
(Pages 13-14)
0000 Xxxxx Xxxxxx, Xxx Xxxxxxx County, Santa Monica, California - Ocean House
(Page 15)
Purchase Agreement
SHP/Renaissance Portfolio Contract
Inn at the Park
PARCEL 1 IN THE CITY OF IRVINE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER
MAP FILED IN BOOK 211, PAGES 38 AND 39 OF PARCEL MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS
RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND ALL
PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE
PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE PERPETUAL RIGHT OF
DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND STORING IN AND REMOVING
THE SAME FROM SAID LAND, OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR
DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE HEREINABOVE DESCRIBED,
OIL OR GAS XXXXX, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF
THE LAND HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY
DRILLED XXXXX, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND
OPERATE ANY SUCH XXXXX OR MINES, WITHOUT HOWEVER, THE TO DRILL, MINE, STORE,
EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE
OF THE LAND HEREINABOVE DESCRIBED AS RESERVED BY THE IRVINE COMPANY IN DEED
RECORDED JULY 15, 1986 AS INSTRUMENT NO. 86-302417 OF OFFICIAL RECORDS.
ALSO EXCEPTING ANY AND ALL WATER, WATER RIGHTS OR INTEREST THEREIN APPURTENANT
OR RELATING TO THE LAND HEREINABOVE DESCRIBED OR OWNED OR USED BY GRANTOR IN
CONNECTION WITH OR WITH RESPECT TO SAID LAND (NO MATTER HOW ACQUIRED BY
GRANTOR), WHETHER SUCH RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE,
LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR CONTRACTUAL,
TOGETHER WITH THE RIGHT AND POWER TO EXPLORE, DRILL, REDRILL, REMOVE AND STORE
THE SAME FROM OR IN THE LAND HEREINABOVE DESCRIBED OR TO DIVERT OR OTHERWISE
UTILIZE SUCH WATER, RIGHTS OR INTEREST ON ANY OTHER PROPERTY OWNED OR LEASED BY
GRANTOR; BUT WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE
PROPERTY DESCRIBED HEREIN IN THE EXERCISE OF SUCH RIGHTS, AS RESERVED BY THE
IRVINE COMPANY IN DEED RECORDED JULY 15, 1986 AS INSTRUMENT NO. 86-302417 OF
OFFICIAL RECORDS.
Legal Description
SHP/Renaissance Portfolio Contract
- 2 -
Xxxx Ranch
DESCRIPTION
PARCEL A:
THAT PORTION OF PARCEL 1, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 50, PAGE 43 OF PARCEL MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING MORE PARTICULARLY
DESCRIBED AS PARCEL A OF LOT LINE ADJUSTMENT PLAT RECORDED JUNE 7, 1978 IN BOOK
12706, PAGE 1364 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
EXCEPTING THEREFROM ALL OIL, GAS, HYDROCARBONS AND OTHER MINERALS LYING BELOW A
DEPTH OF 500 FEET FROM THE SURFACE THEREOF, BUT EXCLUDING ANY SURFACE RIGHTS IN
CONNECTION THEREWITH, AND ALSO EXCEPTING THE RIGHT TO DRILL INTO AND THROUGH
SAID LAND BELOW A DEPTH OF 500 FROM THE SURFACE, AS RESERVED BY ANAHEIM HILLS
DEVELOPMENT CORPORATION (FORMERLY KNOWN AS TEXACO ANAHEIM HILLS INC.), IN DEED
RECORDED SEPTEMBER 19, 1984 AS INSTRUMENT NO. 84-387329 OF OFFICIAL RECORDS OF
SAID COUNTY.
PARCEL B:
THAT CERTAIN NON-EXCLUSIVE EASEMENT FOR INGRESS, EGRESS AND UNDERGROUND PUBLIC
UTILITY PURPOSES, AS RESERVED BY ANAHEIM HILLS, INC., AND TEXACO ANAHEIM HILLS
INC. (FORMERLY KNOWN AS TEXACO VENTURES, INC.) BY DEED RECORDED OCTOBER 30, 1973
IN BOOK 10967, PAGE 525 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA, OVER
THAT PORTION OF PARCEL 1 AS SHOWN ON PARCEL MAP NO. 361 FILED IN BOOK 55, PAGE
21 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,
DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THAT CERTAIN COURSE IN THE NORTHERLY BOUNDARY OF PARCEL
1, DISTANT THEREON SOUTH 70 degrees 51' 57" WEST 207.46 FEET FROM THE EASTERLY
TERMINUS OF SAID COURSE SHOWN AS NORTH 70 degrees 51' 57" EAST 317.67 FEET;
THENCE ALONG SAID CERTAIN COURSE AND ITS SOUTHWESTERLY PROLONGATION SOUTH 70
degrees 51' 57" WEST 273.95 FEET TO A POINT ON A NON-TANGENT CURVE CONCAVE
WESTERLY WITH A RADIUS OF 645.00 FEET SAID CURVE BEING THE WESTERLY BOUNDARY OF
PARCEL 2 AS SHOWN ON SAID PARCEL MAP; THENCE RADIAL TO SAID CURVE SOUTH 80
degrees 53' 49" WEST 45.00 FEET TO A POINT ON A NON-TANGENT CURVE CONCAVE
WESTERLY WITH A RADIUS OF 600.00 FEET SAID CURVE ALSO BEING THE BOUNDARY OF SAID
PARCEL, A RADIAL TO SAID POINT BEARS NORTH 80 degrees 53' 49" EAST; THENCE
SOUTHERLY ALONG SAID BOUNDARY THROUGH A CENTRAL ANGLE OF 7 degrees 19' 09" A
DISTANCE OF 76.65 FEET; THENCE RADIAL TO SAID CURVE NORTH 88 degrees 12' 58"
EAST 45.00 FEET; THENCE NORTH 70 degrees 51' 57" EAST 293.44 FEET; THENCE NORTH
19 degrees 08' 03" WEST 80.00 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION INCLUDED WITHIN ANAHEIM HILLS ROAD.
PARCEL C:
AN EASEMENT FOR MUTUAL INGRESS, EGRESS, PUBLIC UTILITIES AND DRAINAGE AND
CONSTRUCTION OF A ROADWAY OVER THE NORTHWESTERLY 75.00 FEET MEASURED AT RIGHT
ANGLES TO THE NORTHWESTERLY LINE OF PARCEL 2 OF PARCEL MAP RECORDED SEPTEMBER
26, 1973 IN BOOK 55, PAGE 21 AND ADJUSTED THROUGH LOT LINE ADJUSTMENT RECORDED
JUNE 7, 1978 IN BOOK 12706, PAGE 1364 ALL IN MISCELLANEOUS MAPS, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS RESERVED BY TEXACO ANAHEIM HILLS, INC., A
CORPORATION, IN THE DEED RECORDED MAY 9, 1979 IN BOOK 13138, PAGE 458 OF
OFFICIAL RECORDS.
Legal Description
SHP/Renaissance Portfolio Contract
- 3 -
DESCRIPTION OF LAND
The Mirage Project
PARCEL 1:
THE WEST HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF THE SOUTHEAST
QUARTER OF SECTION 6, TOWNSHIP 5 SOUTH, RANGE 6 EAST, SAN BERNARDINO MERIDIAN,
IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT
THEREOF.
EXCEPT THE SOUTHERLY 44.00 FEET THEREOF DESCRIBED IN THE DEED TO THE COUNTY OF
RIVERSIDE, RECORDED APRIL 14, 1958 AS INSTRUMENT NO. 26930 IN BOOK 2254, PAGE
000 XX XXXXXXXX XXXXXXX XX XXXXXXXXX XXXXXX, XXXXXXXXXX;
ALSO EXCEPTING ALL OIL, GAS AND OTHER MINERAL DEPOSITS PURSUANT TO THE
PROVISIONS OF AN ACT OF CONGRESS ON JUNE 1, 1938 AND ALL URANIUM, THORIUM, OR
ANY OTHER MINERAL WHICH IS OR MAY BE DETERMINED TO BE PECULIARLY ESSENTIAL TO
THE PRODUCTION OF FISSIONABLE MATERIALS, WHETHER OR NOT OF COMMERCIAL
VALUE,TOGETHER WITH THE RIGHT OF THE UNITED STATES THROUGH ITS AUTHORIZED AGENTS
OR REPRESENTATIVES AT ANY TIME TO ENTER UPON THE LAND AND PROSPECT FOR, MINE AND
REMOVE THE SAME, PURSUANT TO THE PROVISIONS OF THE ACT OF AUGUST 1, 1946 (60
STAT.755) IN CONGRESS, AS RESERVED IN PATENT FROM THE UNITED STATES OF AMERICA,
RECORDED MARCH 6, 1952 IN BOOK 1347, PAGE 000 XX XXXXXXXX XXXXXXX XX XXXXXXXXX
XXXXXX, XXXXXXXXXX.
ALSO EXCEPTING ALL COAL, OIL, GAS AND OTHER MINERAL DEPOSITS IN THE LAND SO
PATENTED, TOGETHER WITH THE RIGHT TO PROSPECT FOR, MINE AND REMOVE THE SAME
ACCORDING TO THE PROVISIONS OF SAID ACT OF JUNE 1, 1938 AS RESERVED BY THE
UNITED STATES OF AMERICA IN PATENT RECORDED AUGUST 24, 1956 IN BOOK 1962, PAGE
500, OFFICIAL RECORDS.
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF THE SOUTHWEST QUARTER OF THE SOUTHEAST
QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 6 (REFERRED TO HEREAFTER AS
QUARTER, QUARTER, QUARTER SECTION), SAID SOUTHEAST CORNER ALSO BEING THE
INTERSECTION OF THE CENTERLINE OF COUNTRY CLUB DRIVE (88.00 FEET WIDE) WITH THE
CENTERLINE OF VISTA DUNES ROAD (60.00 FEET WIDE);
Legal Description
SHP/Renaissance Portfolio Contract
- 4 -
THENCE SOUTH 89 degrees 59'28" WEST ALONG THE SOUTHERLY LINE OF SAID QUARTER,
QUARTER, QUARTER SECTION, BEING ALSO SAID CENTERLINE OF COUNTRY CLUB DRIVE,
332.41 FEET TO THE INTERSECTION WITH THE COMMON LINE BETWEEN THE EAST HALF AND
THE WEST HALF OF SAID QUARTER, QUARTER, QUARTER SECTION;
THENCE NORTH 01 degrees 19'31" EAST ALONG SAID COMMON LINE 44.01 FEET TO A LINE
PARALLEL WITH AND 44.00 FEET NORTHERLY OF, MEASURED AT RIGHT ANGLES TO SAID
CENTERLINE OF COUNTRY CLUB DRIVE, BEING THE TRUE POINT OF BEGINNING FOR THIS
DESCRIPTION;
THENCE SOUTH 89 degrees 59'28" WEST ALONG SAID PARALLEL LINE 332.39 FEET TO THE
WESTERLY LINE OF SAID QUARTER, QUARTER, QUARTER SECTION;
THENCE NORTH 01 degrees 20'19" WEST ALONG SAID WESTERLY LINE 620.36 FEET TO THE
NORTHWEST CORNER OF SAID QUARTER, QUARTER, QUARTER SECTION;
THENCE NORTH 89 degrees 59'58" EAST ALONG WESTERLY LINE 332.25 FEET TO AN
INTERSECTION WITH THE HEREINBEFORE DESCRIBED COMMON LINE;
THENCE SOUTH 01 degrees 19'31" WEST ALONG SAID COMMON LINE 620.31 FEET TO THE
TRUE POINT OF BEGINNING OF THIS DESCRIPTION.
PARCEL 2:
THE EAST HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF THE SOUTHEAST
QUARTER OF SECTION 6, TOWNSHIP 5 SOUTH, RANGE 6 EAST, SAN BERNARDINO MERIDIAN,
IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT
THEREOF.
EXCEPT THE SOUTHERLY 44.00 FEET DESCRIBED IN THE DEED TO THE COUNTY OF
RIVERSIDE, RECORDED APRIL 28, 1958, AS INSTRUMENT NO. 30641 IN BOOK 2262, PAGE
000 XX XXXXXXXX XXXXXXX XX XXXXXXXXX XXXXXX, XXXXXXXXXX;
ALSO EXCEPT THE EASTERLY RECTANGULAR 30.00 FEET AS CONVEYED TO THE COUNTY OF
RIVERSIDE BY DEED RECORDED DECEMBER 19, 1960 AS INSTRUMENT NO. 106828, OFFICIAL
RECORDS.
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF THE SOUTHWEST QUARTER OF THE SOUTHEAST
QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 6 (REFERRED TO HEREAFTER AS
QUARTER, QUARTER, QUARTER SECTION), SAID SOUTHEAST CORNER ALSO BEING THE
INTERSECTION OF THE CENTERLINE OF COUNTRY CLUB DRIVE (88.00 FEET WIDE) WITH THE
CENTERLINE OF VISTA DUNES ROAD (60.00 FEET WIDE);
Legal Description
SHP/Renaissance Portfolio Contract
- 5 -
THENCE SOUTH 89 degrees 59'28" WEST ALONG THE SOUTHERLY LINE OF SAID QUARTER,
QUARTER, QUARTER SECTION, BEING ALSO SAID CENTERLINE OF COUNTRY CLUB DRIVE,
332.41 FEET TO THE INTERSECTION WITH THE COMMON LINE BETWEEN THE EAST HALF AND
THE WEST HALF OF SAID QUARTER, QUARTER, QUARTER SECTION;
THENCE NORTH 01 degrees 19'31" EAST ALONG SAID COMMON LINE 44.01 FEET TO A LINE
PARALLEL WITH AND 44.00 FEET NORTHERLY OF, MEASURED AT RIGHT ANGLES TO SAID
CENTERLINE OF COUNTRY CLUB DRIVE, BEING THE TRUE POINT OF BEGINNING FOR THIS
DESCRIPTION;
THENCE NORTH 89 degrees 59'28" EAST ALONG SAID PARALLEL LINE 620.26 FEET TO A
LINE PARALLEL WITH AND 30.00 FEET WESTERLY OF, MEASURED AT RIGHT ANGLES TO SAID
CENTERLINE OF VISTA DUNES ROAD, SAID CENTERLINE ALSO BEING THE EASTERLY LINE OF
SAID QUARTER, QUARTER, QUARTER SECTION;
THENCE NORTH 01 degrees 18'43" EAST ALONG SAID PARALLEL LINE 620.26 FEET TO THE
NORTHERLY LINE OF SAID QUARTER, QUARTER, QUARTER SECTION;
THENCE SOUTH 89 degrees 59'58" WEST ALONG SAID NORTHERLY LINE 302.24 FEET TO AN
INTERSECTION WITH THE HEREINBEFORE DESCRIBED COMMON LINE;
THENCE SOUTH 01 degrees 19'31" WEST ALONG SAID COMMON LINE 620.31 FEET TO THE
TRUE POINT OF BEGINNING OF THIS DESCRIPTION.
Legal Description
SHP/Renaissance Portfolio Contract
- 6 -
PACIFIC INN
DESCRIPTION
PARCEL A:
PARCEL 2 OF PARCEL MAP NO. 16677, IN THE CITY OF TORRANCE, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 179 PAGES 56 AND 57 OF
PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ALL OIL, GAS, PETROLEUM AND OTHER MINERAL OR HYDROCARBON
SUBSTANCES IN AND UNDER OR WHICH MAY PRODUCED FROM SAID LAND, TOGETHER WITH
RIGHT TO USE THAT PORTION ONLY OF SAID LAND WHICH UNDERLIES A PLANE PARALLEL TO
AND 500 FEET BELOW THE PRESENT SURFACE OF SAID LAND, FOR THE PURPOSE OF
PROSPECTING FOR DEVELOPING AND/OR EXTRACTING SAID OIL, GAS, PETROLEUM AND OTHER
MINERALS OR HYDROCARBON SUBSTANCES FROM SAID LAND BY MEANS OF XXXXX DRILLED INTO
SAID SUBSURFACE OF SAID LAND FROM DRILL SITES LOCATED ON OTHER LAND, IT BEING
EXPRESSLY UNDERSTOOD AND AGREED THAT THE GRANTOR, ITS SUCCESSORS AND ASSIGNS
SHALL HAVE NO RIGHT TO ENTER UPON SURFACE OF SAID LAND OR TO USE SAID LAND OR
ANY PORTION THEREOF TO SAID DEPTH OF 500 FEET FOR ANY PURPOSE WHATSOEVER, AS
RESERVED BY SOUTHERN INVESTMENT COMPANY, A CORPORATION, IN DEED RECORDED OCTOBER
30, 1970 AS INSTRUMENT NO. 461.
ALSO EXCEPT THEREFROM ALL OIL, GAS, PETROLEUM AND OTHER MINERAL OR HYDROCARBON
SUBSTANCES IN AND UNDER SAID LAND TOGETHER WITH THE RIGHT TO USE THAT PORTION
ONLY OF SAID LAND WHICH UNDERLIES A PLANE PARALLEL WITH AND 100 FEET BELOW THE
PRESENT SURFACE OF SAID LAND, FOR THE PURPOSE OF PROSPECTING FOR, DEVELOPING
AND/OR EXTRACTING SAID OIL, GAS, PETROLEUM AND OTHER MINERAL OR HYDROCARBON
SUBSTANCES FROM SAID LAND BY MEANS OF XXXXX DRILLED INTO SAID SUBSURFACE OF SAID
LAND FROM DRILL SITES LOCATED ON OTHER LAND, IT BEING EXPRESSLY UNDERSTOOD THAT
XXXXXXXXX ESTATE COMPANY, A CORPORATION, ITS SUCCESSORS AND ASSIGNS SHALL HAVE
NO RIGHT TO ENTER UPON THE SURFACE OF SAID LAND FOR THE PURPOSE OF PROSPECTING
FOR DEVELOPING AND/OR EXTRACTING SAID OIL, GAS, PETROLEUM AND/OR MINERAL OR
HYDROCARBON SUBSTANCES FROM SAID LAND, OR FOR ANY PURPOSES WHATSOEVER, AS
RESERVED IN THE DEED FROM XXXXXXXXX ESTATE COMPANY, A CORPORATION, TO SOUTHERN
CALIFORNIA EDISON COMPANY, A CORPORATION, RECORDED AUGUST 5, 1950, IN BOOK
33898, PAGE 111, OFFICIAL RECORDS.
ALSO EXCEPT ALL WATER, OIL, GAS, PETROLEUM AND OTHER MINERAL OR HYDROCARBON
SUBSTANCES IN AND UNDER WHICH MAY BE PRODUCED FROM SAID LAND, TOGETHER WITH THE
RIGHT TO USE THAT PORTION ONLY OF SAID LAND WHICH UNDERLIES A PLANE PARALLEL TO
AND 500 FEET BELOW THE PRESENT SURFACE OF SAID LAND, FOR THE PURPOSE OF
PROSPECTING FOR, DEVELOPING AND/OR EXTRACTING SAID WATER, OIL, GAS, PETROLEUM
AND OTHER MINERAL OR HYDROCARBON SUBSTANCES FROM SAID LAND BY MEANS OF XXXXX
DRILLED INTO SAID SUBSURFACE OF SAID LAND FROM DRILL SITES LOCATED ON OTHER
LAND, WITHOUT, HOWEVER, THE RIGHT TO ENTER UPON THE SURFACE OF SAID LAND OR ANY
PORTION THEREOF TO SAID DEPTH OF 500 FEET FOR ANY PURPOSE WHATSOEVER, AS
RESERVED BY XXXXXXXXX ESTATE COMPANY, A CORPORATION, IN DEED RECORDED APRIL 8,
1957 IN BOOK 54148, PAGE 325, OFFICIAL RECORDS.
PARCEL B:
AN EASEMENT FOR INSTALLING AND MAINTAINING A STORM DRAIN, SEWER LINE AND CABLE
TELEVISION SERVICE, IN, OVER AND ACROSS THOSE PORTIONS OF PARCEL 1 OF PARCEL MAP
NO. 16677, AS PER MAP RECORDED IN BOOK 179 PAGES 56 AND 57 OF PARCEL MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SHOWN AND DEFINED ON EXHIBIT
"B" OF A GRANT OF BASEMENT RECORDED AUGUST 22, 1985 AS INSTRUMENT NO. 85-969732
AND RECORDED APRIL 4, 1986 AS INSTRUMENT NO. 86-417689, BOTH OF OFFICIAL
RECORDS.
Legal Description
SHP/Renaissance Portfolio Contract
-7-
PARCEL C:
AN EASEMENT FOR UNOBSTRUCTED VIEW, AS CREATED BY THAT CERTAIN LICENSE AND
EASEMENT AGREEMENT, RECORDED MAY 16, 1991 AS INSTRUMENT NO. 91-715471, OVER AND
ACROSS THAT PORTION OF XXX 00 XX XXXXX XX. 00000, XX THE CITY OF TORRANCE,
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1173
PAGES 68 THROUGH 73 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, AS AMENDED BY CERTIFICATE OF CORRECTION RECORDED SEPTEMBER 10, 1991
AS INSTRUMENT NO. 00-0000000 OFFICIAL RECORDS AND AMENDED BY CERTIFICATION
RECORDED JANUARY 27, 1992 AS INSTRUMENT NO. 92-136150 OFFICIAL RECORDS,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 91; THENCE ALONG THE EASTERLY
LINE OF SAID LOT 91, NORTH 0 degrees 05' 13" EAST 3.27 FEET; THENCE NORTH 67
degrees 24' 00" WEST 58.03 FEET TO A POINT ON THE CURVED SOUTHWESTERLY LINE OF
SAID LOT 91, SAID CURVE BEING CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF
948.00 FEET, A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS SOUTH 27 degrees
18' 36" WEST; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 3
degrees 35' 17" AN ARC DISTANCE OF 59.37 FEET TO THE POINT OF BEGINNING.
Legal Description
SHP/Renaissance Portfolio Contract
-8-
DESCRIPTION OF LAND
The Gables Project
PARCEL 1 OF PARCEL MAP 00000 XXXXXX XX XXX XXXXXXX, XXXXX XX XXXXXXXXXX, AS PER
MAP RECORDED IN BOOK 224, PAGE 100 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
OF SAID COUNTY (ALSO KNOWN AS: 000 XXXX XXXXXXXX XXXXXXXXX, XXXXXXXX, XX 00000,
A.P.# 0000-000-000/052/053)
Legal Description
SHP/Renaissance Portfolio Contract
-9-
DESCRIPTION OF LAND
The Lexington Project
PARCEL 1, OF PARCEL MAP NO. LD-566, IN THE CITY OF SAN BUENAVENTURA, COUNTY OF
VENTURA, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 44, PAGE 65 OF PARCEL
MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY;
EXCEPT THEREFROM ALL OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES UNDER
OF SAID LAND LYING BELOW A DEPTH OF 500 FEET, WITHOUT, HOWEVER, THE RIGHT OF
ENTRY TO THE SURFACE OF SAID LAND, AS SPECIFICALLY DESCRIBED IN AN INSTRUMENT OF
RECORD.
Legal Description
SHP/Renaissance Portfolio Contract
-10-
DESCRIPTION OF LAND
The Oak Tree Project
SITUATE IN THE SAN AUGUSTINE RANCHO, IN THE CITY OF SCOTTS VALLEY, COUNTY OF
SANTA CRUZ, CALIFORNIA, BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT A ONE-HALF INCH PIPE, COUNTY SURVEYOR SANTA XXXX, AT THE MOST
WESTERN CORNER OF PARCEL ONE OF THE LANDS CONVEYED TO THE COUNTY OF SANTA XXXX
BY DEED RECORDED IN VOLUME 3618, PAGE 625, OFFICIAL RECORDS OF SANTA XXXX
COUNTY, SAID PIPE ALSO BEING A REPLACEMENT OF THE 4" X 4" POST AT THE WESTERN
TERMINUS OF THE LINE SHOWN AS "NORTH 57 degrees 10' 10" WEST 109.04" ON THE
SOUTHWESTERN BOUNDARY OF MT. HERMON ROAD, AS SAID SOUTHWESTERN BOUNDARY IS SHOWN
ON THE RECORD OF SURVEY RECORDED IN VOLUME 32 OF MAPS, PAGE 62, SANTA XXXX
COUNTY RECORDS; THENCE FROM SAID POINT OF BEGINNING ALONG THE SOUTHWESTERN
BOUNDARY OF SAID LANDS CONVEYED TO THE COUNTY OF SANTA XXXX
1) SOUTH 39 degrees 38' 52" EAST 135.93 FEET TO A ONE-HALF INCH PIPE, LS
3233; THENCE
2) SOUTH 57 degrees 51' 13" EAST 88.01 FEET TO A ONE-HALF INCH PIPE, LS 3233,
AT THE SOUTHWESTERN CORNER OF PARCEL TWO OF THE SAID LANDS CONVEYED TO
SANTA XXXX COUNTY; THENCE ALONG THE SOUTHWESTERN BOUNDARY THEREOF
3) SOUTH 53 degrees 09' 12" EAST 298.09 FEET TO A ONE-HALF INCH PIPE, LS
3233; THENCE
4) SOUTH 44 degrees 26' 37" EAST 203.26 FEET TO A ONE-HALF INCH PIPE, COUNTY
SURVEYOR SANTA XXXX, ON THE WESTERN BOUNDARY OF XXXXXXXX XXXX, A COUNTY
ROAD, AS SHOWN ON THE RECORD OF SURVEY RECORDED IN VOLUME 40 OF MAPS, PAGE
74, SANTA XXXX COUNTY RECORDS; THENCE ALONG THE WESTERN BOUNDARY THEREOF
5) SOUTH 18 degrees 06' 15" WEST 62.32 FEET TO A PLUG AND TAG IN THE
SIDEWALK, LS 3233; THENCE
6) SOUTH 49 degrees 51' 20" WEST 95.02 FEET TO A ONE-HALF INCH PIPE, LS 3233;
THENCE
Legal Description
SHP/Renaissance Portfolio Contract
-11-
7) SOUTH 18 degrees 06' 15" WEST 164.96 FEET TO A ONE-HALF INCH PIPE, LS
3233, AT THE SOUTHEAST CORNER OF THE SAID LANDS OF 1ST XXXXXXXX XXXX;
THENCE ALONG THE SOUTHERN AND WESTERN BOUNDARIES THEREOF
8) NORTH 71 degrees 39' 15" WEST 615.49 FEET TO A THREE-QUARTER INCH PIPE;
THENCE
9) NORTH 18 degrees 20' 45" EAST 588.86 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE CITY OF SCOTTS VALLEY BY DEED
RECORDED APRIL 24, 1995, IN BOOK 5663, AT PAGE 000, XXXXXXXX XXXXXXX XX XXXXX
XXXX XXXXXX.
A.P. NO.: 000-000-00
Legal Description
SHP/Renaissance Portfolio Contract
-12-
Lodge at Xxxxxx Creek
LEGAL DESCRIPTION
Situated in the State of California, City of Santa Xxxx, County of Sonoma, and
described as follows:
A tract of land in the Rancho San Xxxxxx in Township 7 North, Range 8 West,
M.D.B. & M. and a portion of the Tract conveyed to Xxxx X. Xxxxxxx by Deed dated
September 23,1935 and recorded in Book 393 of Official Records at Page 68,
Sonoma County Records, said portion being more particularly described as:
Beginning at a point on the Easterly line of said tract so conveyed to Xxxxxxx,
which point is South 1478.37 feet from the Northeast corner of said Xxxxxxx
tract; thence continuing South along the said Easterly line, a distance of
732.84 feet thence North 87 degrees 25' West, 731.45 feet to the center of a 50
foot road; thence along said road, North 0 degrees 50' West, a distance of
634.90 feet to the center of a drainage ditch; thence North 84 degrees 56' East
along the center of said drainage ditch, a distance of 736.51 feet to the
place of beginning.
Excepting therefrom that portion thereof included within the boundaries of the
50 foot strip of land conveyed to the County of Sonoma by B. Xxxxxxxx Xxxxxxx,
et al, by Deed dated March 13, 1944 and recorded in Book 604 of Official Records
at page 260, Sonoma County Records.
Also excepting therefrom that portion thereof conveyed to Sonoma County Flood
Control and Water Conservation District, by Deed dated July 27, 1964 and
recorded October 7, 1964 in Book 2079 of Official Records at page 152, Sonoma
County Records and recorded on April 16, 1965 in Book 2121 of Official Records,
Page 892, Sonoma County Records.
Also excepting therefrom any portion contained in the Deed to City of Santa
Xxxx, recorded November 30, 1976 in Book 3158 of Official Records at page 520,
Serial No. R-73298, Sonoma County Records.
Also excepting therefrom any portion contained in the Deed to City of Santa
Xxxx, recorded November 20, 1980, Instrument No. 80070634, Sonoma County
Records.
Also excepting therefrom that portion described in deed to the City of Santa
Xxxx, recorded September 27, 1988 as Document No. 88081918, Sonoma County
Records, and as described in the Deed recorded August 2, 1989, as Recorders
Document No. 89-71477, Sonoma County Records
THE LAND IS ALSO DESCRIBED AS FOLLOWS;
A tract of land in the Rancho San Xxxxxx in Township 7 North, Range 8 West,
M.D.B. & M. and a portion of the Tract conveyed to Xxxx X. Xxxxxxx by Deed dated
September 23, 1935 and recorded in Book 393 of Official Records at Page 68,
Sonoma County Records, said portion being more particularly described as:
Legal Description
SHP/Renaissance Portfolio Contract
-13-
Beginning at a point lying on the easterly line of Xxxxxxx Xxxx as conveyed to
the City of Santa Xxxx by document filed in Book 3158 of Official Records at
Page 520 and recorded on November 30, 1976 in the Office of the County Recorder,
County of Sonoma, State of California, said point being on the northerly line of
the lands of Redwood Empire Ice Arena, Inc. as described by document filed in
Book 2337 of Official Records at Page 750, Sonoma County Records; thence from
said Point of Beginning and along the easterly line of Xxxxxxx Xxxx, North 0
degrees 16' 55" East 561.72 feet to a point in the southerly line of the lands
of the Sonoma County Flood Control and Water Conservation District as described
by Document No. 2079 of Official Records at Page 152, Sonoma County Records;
thence along said southerly line North 81 degrees 02' 34" East 641.28 feet to
the westerly line of Range Avenue as conveyed to the City of Santa Xxxx by
Document No. 89-071477, Sonoma County Records; thence along said westerly line
the following ten (10) courses South 00 degrees 24' 07" West 9.98 feet; thence
on a curve to the left having a radius of 2,335 feet through a central angle of
1 degrees 27' 24" for an arc distance of 59.36 feet to a point of reverse
curvature; thence on a curve to the right having a radius of 92.51 feet through
a central angle of 18 degrees 12' 42" for an arc distance of 29.40 feet to a
point of reverse curvature; thence on a curve to the left having a radius 92.27
feet through a central angle of 19 degrees 40' 48" for an arc length of 31.69
feet to a point of compound curvature; thence on a curve to the left, having a
radius of 2,345 feet through a central angle of 1 degrees 13' 18" for an arc
length of 50.00 feet to a point of compound curvature; thence continuing on a
curve to the left, having a radius of 92.27 feet through a central angle of 19
degrees 40' 41" for an arc length of 31.69 feet to a point of reverse curvature;
thence on a curve to the right having a radius of 92.51 feet through a central
angle of 18 degrees 12' 47" for an arc length of 29.41 feet to a point of
reverse curvature; thence on a curve to the left having a radius of 2,335 feet
through a central angle of 1 degrees 27' 23" for an arc length of 59.35 feet to
a point of compound curvature, thence on a curve to the right having a radius of
2,265 feet through a central angle of 7 degrees 04' 21" for an arc length of
279.59 feet; and South 0 degrees 24' 52" West 119.67 feet to a point on the
easterly extension of the Northerly line of the aforementioned lands of Redwood
Empire Ice Arena, Inc.; thence along said line and said northerly line of
Redwood Empire ice Arena, Inc. North 87 degrees 01' 07" West 667.22 feet to the
Point of Beginning of the parcel of land herein above-described.
Basis of Bearing: North 00 degrees 16' 55" East along the centerline of Xxxxxxx
Xxxx as shown on Record of Survey filed in Book 365 of Maps, Pages 6,7,8 and 9.
(148-140-012-000)
Legal Description
SHP/Renaissance Portfolio Contract
-14-
OCEAN HOUSE
LEGAL DESCRIPTION
DESCRIPTION: THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
XXXX 0, 0 XXX 0 XX XXXXX 3 OF SOUTH SANTA XXXXXX, IN THE CITY OF SANTA XXXXXX,
AS PER MAP RECORDED IN BOOK 3 PAGES 86 AND 87 OF MISCELLANEOUS RECORDS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
Legal Description
SHP/Renaissance Portfolio Contract
-15-
EXHIBIT B
(TO PURCHASE AND SALE AGREEMENT)
LIST OF CONTRACTS
SENIOR HOUSING PARTNERS I
LIST OF CONTRACTS AND TERMS
PREPARED: JANUARY 18, 2004
PROPERTY VENDOR PRICE PER MONTH DESCRIPTION OF TERMS
------------------------ ---------------------------------- --------------- ---------------------------------------------
OAK TREE VILLA
HVAC AIRTECH SERVICE 966 per visit Month to month contract with two visits per
year recommended.
Elevator ELEVATOR SERVICE COMPANY, INC. 736.50 Can be cancelled with 90 days notice prior to
anniversary Date of August 7th
Pest Control MATRIX 375.00 Can be canceled with 30 days notice.
Fire Systems Maintenance FIRST ALARM INC. Varies Can be cancelled with 60 days notice prior to
09/23/06
Fire Systems Maintenance Tri County Fire Protection Varies No formal contract
Cable T.V. Comcast 3,338.25 No formal contract
Landscaping BACK TO EDEN LANDSCAPING, INC 2,150.00 Can be canceled with 30 days notice.
Answering Service Quicksilver Voice Mail 270.00
Copy Machine Ikon Office Solutions Varies on usage Contract not available typically long term
Beauty Salon Lease Lockewood Hair Design-Xxxxxx Xxxxx 300.00 Term 6/1/04 - 6/1/05
Lockewood Hair Design-Xxxxx Xxxxxx 300.00 Term 6/1/04 - 6/1/05; 2005 Budget shows both
remaining at $300
XXXX RANCH INN
HVAC BAT MECHANICAL 450 per quarter No formal contract
Elevator AMTECH ELEVATOR SERVICE 413.64 Can be canceled with 30 days notice.
Pest Control Western Exterminator Co. 264.00 Can be canceled with 30 days notice.
Fire Systems Maintenance XXXXXXXX X. XXXXXX Varies No formal contract
Cable T.V. Adelphia Cable 2,182.33 Old contract not a current binding contract
Landscaping Tru Green Land Care 1,186.00 Can be canceled with 30 days notice.
Copy Machine GE CAPITAL 159.00 Five years beginning 9/29/03
Beauty Salon Lease XXXXXXXX XXXXXXXX 650.00 Term 8/1/04 - 8/1/05; Increased from $525 to
$650 on 8/1/04. Did not do another increase
121/04 as $125 was a substantial increase.
Next increase 12/1/05.
List of Contracts
SHP/Renaissance Portfolio Contract
- 1 -
PROPERTY VENDOR PRICE PER MONTH DESCRIPTION OF TERMS
------------------------ --------------------------- --------------------- ----------------------------------------------
THE GABLES
HVAC BAT MECHANICAL 620 bi-monthly Terminable at any time
Elevator Amtech Elevator Service 230.25 Can be canceled with 30 days notice.
Pest Control Western Exterminator Co. 143.00 Can be canceled with 30 days notice.
Grease Trap Cleaning XXXXX EXHAUST 625 Quarterly Can be canceled with 30 days notice.
Fire Systems Maintenance XXXXXXXX X. XXXXXX Varies No formal contract
Fire Systems Maintenance FIRE SAFETY SERVICES, INC. 70 per drill Can be canceled with 30 days notice.
Cable T.V. ADELPHIA CABLE 850.00 Beg 11/1/2000 for five years, renew 1 year
unless notified 30 day prior to end
Landscaping Xxxxxxx Xxxxx 525.00 Can be canceled with 30 days notice.
Copy Machine GE CAPITAL 159.00 Five years beginning 9/29/03
Beauty Salon Lease Xxx Och 17% of Gross Receipts Term 1/1/05 - 1/1/06; Tenant only comes in
once a week so lease is based on % of gross
receipts.
XXXXXX CREEK
Elevator KONE ELEVATOR & ESCALATORS 1,526.22 10 year contract Can Be terminated with 90
days written notice prior to 06/01/08
Pest Control THE HITMEN TERMITE & PEST 270.00 Can be canceled with 30 days notice.
Pool & Spa North Bay Pool Service II 300.00 Can be canceled with 30 days notice.
Grease Trap Cleaning PORTOSAN 192.26 Can be canceled with 30 days notice.
Fire Systems Maintenance Santa Xxxx Fire Equip. Svc. Varies No formal contract
Dish Machine ECOLAB 204.19 Can be canceled with 30 days notice.
Cable T.V. COMCAST 3,793.62 15 year contract started on 09/24/04
Landscaping XXXXXX & XXXXXXX 2,751.00 Contract dated 2/2/2002, new price commencing
9/1/04 now month to month.
Copy Machine DE LAGE FINL. SERVICES 640.77 63 month lease commencing 09/02/04
Postage Machine Pitney Xxxxx 527.77 Quarterly 60 month lease aging
Bus Loan TUSTIN COMMUNITY BANK 998.83 Loan date 4/2/04, maturity date 4/2/08 Loan
# 00-000000-0
Beauty Salon Lease Xxxx Xxxxxxx 20% of Gross Receipts Term 2/20/04 - 2/20/05; 2005 budget includes
$1,100 for the 20% gross receipts.
List of Contracts
SHP/Renaissance Portfolio Contract
- 2 -
PROPERTY Vendor Price per month Description of Terms
----------------------- ------------------------ --------------- --------------------------------------------------------
OCEAN HOUSE
HVAC Maintenance BAT MECHANICAL 525.00 No formal contract
Elevator Maintenance XXXXXXXXX ELEVATOR CORP. 3332.52 Year to year Terminable with cert. letter 30 days prior
Quarterly to contract year end
Pest Control WESTERN EXTERMINATOR 201.50 Can be canceled with 30 days notice.
Soft Water Service EVERSOFT 54.13 Can be canceled with 30 days notice.
Equipment Rental Ecolab 64.90 Can be canceled with 30 days notice.
Fire Systems Maint. GALLUP FIRE PROTECTION Varies No formal contract
Fire Systems Maint. SECURITY MAINT. SERVICES 124.50 Can be canceled with 30 days notice.
Backflow Testing Xxxx Xxxxxxx Plumbing 105.00 Can be canceled with 30 days notice.
Aquarium Service Ocean Galleries 499.00 Can be canceled with 30 days notice.
Cable TV Adelphia 2,375.45 Can be canceled with 30 days notice.
Landscaping TRUE GREEN LANDCARE 201.00 Terminable upon 60 days notice
Copy Machine Lease GE CAPITAL 213.00 60 Months as of 05/13/04
Beauty Salon Lease Xxxxxxx Xxxxx 700.00 Term 10/15/03-10/15/04; This beautician has not had an
increase since 10/15/03 and is one of the highest in our
system. 2005 Budget shows $700 and no increase.
PACIFIC INN
HVAC Maintenance AIR RITE 220.00 No current contract vendor ignored renewal
Elevator Maintenance THYSSENKRUPP ELEVATOR 505.83 60 month contract as of 12/16/03
Plant Watering Service ASSOCIATED GROUP 278.00 12 month contract terminable with 30 days notice at end
of contract
Pest Control WESTERN EXTERMINATOR 204.50 Can be canceled with 30 days notice.
Soft Water Service EVERSOFT 41.14 Can be canceled with 30 days notice.
Equipment Rental ECOLAB 119.02 12 month contract terminable with 30 days notice at end
of contract
Fire Systems Maint. Gallup Fire Protection Varies No formal contract
Fire Systems Maint. PROTECT FROM FIRE 500 Semi-annual Terminable with 60 days notice prior to end of current
term
Parking Lot Rental VERIZON CALIFORNIA INC. 300.00 Can be canceled with 30 days notice.
Aquarium/Pond Service AQUATIC FANTASY 410 Average Can be canceled with 30 days notice.
Cable TV TIME WARNER CABLE 2,850.99 Year to year contract terminable/120 days notice prior
to the end of curr. Term
Landscaping TRUE GREEN LANDCARE 1,300.00 Can be canceled with 60 days notice.
Copy Machine FLEET CAPITAL LEASING 224.19 60 month contract as of 10/24/01
Vehicle Financing TUSTIN THRIFT & LOAN 1,052.15 48 month contract as of 07/29/02
Office Equipment Leases ABM BUSINESS MACHINES 110.00 Can be canceled with 30 days notice.
Continuing Education FIRE SAFETY SERVICES 80.00 Can be canceled with 30 days notice.
List of Contracts
SHP/Renaissance Portfolio Contract
- 3 -
Property VENDOR Price per month Description of Terms
-------------------------- ----------------------------- ----------------- ----------------------------------------------
Beauty Salon Lease XXXX XXXXXXXXXX 200.00 Term 3/1/05 - 3/1/06; 2005 Budget has a
combined amount of $450
XXXXXXXX XXXXXXX 250.00
Mirage Inn
HVAC Maintenance BAT MECHANICAL 600.00 No formal contract
Elevator Maintenance XXXXXXXXX ELEVATOR CORP. 1723.02 Quarterly Year to year Terminable with cert. letter 30
days prior to contract year end
Pest Control WESTERN EXTERMINATOR 296.00 Can be canceled with 30 days notice.
Pool Service DESERT MIRAGE POOL SERVICES 275.00 Month to Month
Soft Water Service EVERSOFT 163.22 36 month contract as of 09/21/04
Fire Systems Maint. GALLUP FIRE PROTECTION Varies No formal contract
Fire Systems Maint. PYRO-COMM SYSTEMS, INC. 135.00 Can be canceled with 30 days notice.
Cable TV TIME WARNER 1,324.51 60 month contract as of 12/01/04
Landscaping XXXXXXXX LANDSCAPE SERVICE 3,400.00 12 Month contract expires 05/01/05
Office Equipment Leases PITNEY XXXXX CREDIT CORP. 640.52 Quarterly 60 month lease started 08/20/99
Office Equipment Leases FLEET CAPITAL/GE CAPITAL 284.00 60 Month lease started 03/10/03
Continuing Education FIRE SAFETY SERVICES 80.00 Can be canceled with 30 days notice.
Beauty Salon Lease XXXX XXX XXXXXX 580.00 Term 6/1/04 - 6/1/05; 2005 Budget reflects
$580 the entire year.
The Lexington
HVAC Maintenance BAT MECHANICAL 600.00 No formal contract
Elevator Maintenance AMTECH RELIABLE ELEVATOR CO. 541.50 Terminable with 90 days notice prior to July
1st of every year
Pest Control WESTERN EXTERMINATOR 189.00 Can be canceled with 30 days notice.
Grease Trap Cleaning COUNTY SANITATION COMPANY 550.00 No formal contract
Equipment Rental ECOLAB 214.45 Can be canceled with 30 days notice.
Fire Systems Maint. GALLUP FIRE PROTECTION Varies No formal contract
Maint. & Service Contracts DIGITAL SECURITY & ELEC. INC. 219.99 Quarterly Contract dated back to 1997
Maint. & Service Contracts XXXXX POWER SYSTEMS Varies Can be canceled with 30 days notice.
Cable TV ADELPHIA 3,529.11 7 year contract as of 12/01/02
Landscaping U.S. LAWNS 850.00 Can be canceled with 30 days notice.
Office Equipment Leases CITICORP 225.23 60 month lease started 10/19/00
List of Contracts
SHP/Renaissance Portfolio Contract
- 4 -
Property VENDOR Price per month Description of Terms
------------------------ ----------------------------- ----------------- ---------------------------------------------
Inn at The Park
HVAC Maintenance BAT MECHANICAL 525.00 No formal contract
Elevator Maintenance THYSSEN ELEVATORS 2535.07 Quarterly 60 Month Contract
Pest Control WESTERN EXTERMINATOR 422.00 Can be canceled with 30 days notice.
Soft Water Service THE WATER MAN 260.00 Can be canceled with 30 days notice.
Equipment Rental ECOLAB 64.60 Can be canceled with 30 days notice.
Equipment Rental FIELDS PIANOS 199.34
Fire Systems Maint. ALL FIRE PROTECTION SERVICE Varies No formal contract
Maint. Service Contracts REFRIGERATION UNLIMITED, INC. Varies Quarterly Can be canceled with 30 days notice.
Cable TV XXX COMMUNICATIONS 1,744.25 Can be cancelled 60 days prior to anniversary
date Feb. 29th
Landscaping TRUE GREEN LANDCARE 1,854.00 Can be canceled with 60 days notice.
On Hold Music XXX BUSINESS SERVICES 39.95 Can be canceled with 30 days notice.
Office Equipment Rental XXXXXX 552.79 48 month lease started 08/11/04
Beauty Salon Lease XXXXXXXX XXXXXX 720.00 2005 budget reflects $720 per month. Increase
went into effect 4/1/05.
List of Contracts
SHP/Renaissance portfolio Contract
- 5 -
EXHIBIT C
(TO PURCHASE AND SALE AGREEMENT)
BUYER'S AS-IS CERTIFICATE AND AGREEMENT
THIS BUYER'S AS-IS CERTIFICATE AND AGREEMENT (this "Agreement"), is made
as of [Closing Date: _________________] by [PURCHASER: _______________________],
[Purchaser: a _______________________] ("Contract Buyer") and [PURCHASER
ASSIGNEE: _______________________], [Assignee: a _______________________]
("Assignee"; Contract Buyer and Assignee are herein referred to collectively as
"Buyer") to and for the benefit of [SELLER: ____________________], a Delaware
limited liability company ("Seller").
RECITALS
WHEREAS, pursuant to the terms of that certain Purchase and Sale
Agreement, dated as of January ___, 2005, by and between Seller and Buyer (the
"Sale Agreement"), Seller agreed to sell to Buyer, inter alia, that certain real
property legally described on EXHIBIT A attached hereto and incorporated herein
by this reference, the improvements located thereon and certain rights
appurtenant thereto, all as more particularly described in the Sale Agreement.
Initially capitalized terms not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Sale Agreement; and
WHEREAS, the Sale Agreement requires, inter alia, that, as a condition
precedent to Seller's obligations under the Sale Agreement, Buyer shall execute
and deliver this Agreement to Seller at Closing.
NOW, THEREFORE, in consideration of TEN AND NO/100 DOLLARS ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Buyer hereby certifies and agrees as follows:
1. For purposes of this Agreement, the following terms shall have the
following meanings:
"Assumed Liabilities" shall mean any and all Liabilities attributable to
the Property, arising or accruing on or after the date hereof (notwithstanding
that the liability is related to an agreement, namely, a lease or contract
created prior to such date, or a physical condition, namely, the current
physical condition of the Property that exists as of the date hereof) and which
are attributable to events or circumstances which occur on or after the Closing
Date (and including ongoing obligations under the Leases and Assumed Contracts
conveyed to Buyer at Closing, which shall consist of those Leases and Assumed
Contracts set forth in the assignment of leases and the assignment of contracts
from Seller to Buyer as of Closing, pursuant to the terms of the Sale
Agreement), including, without limitation, (a) all Liabilities with respect to
the structural, physical, or environmental condition of the Property; (b) all
Liabilities relating to the release of or the presence, discovery or removal of
any Hazardous Materials in, at, about or under the Property, or for, connected
with or arising out of any and all claims or causes of action
Buyer's As-Is Certificate
SHP/Renaissance Portfolio Contract
based upon CERCLA (Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., as amended by
XXXX (Superfund Amendment and Reauthorization Act of 1986) and as may be further
amended from time to time), the Resource Conservation and Recovery Act of 1976,
42 U.S.C. Sections 6901 et seq., or any related claims or causes of
action or any other federal, state or municipal based statutory or regulatory
causes of action for environmental contamination at, in, about or under the
Property; (c) any tort claims made or brought with respect to the Property or
the use or operation thereof; and (d) all Liabilities relating to the condition
or status of Seller's or Buyer's title to the Property.
"Buyer's Representatives" shall mean Buyer, any direct or indirect owner
of any beneficial interest in Buyer, and any officers, directors, employees,
agents, representatives and attorneys of Buyer or any such direct or indirect
owner of any beneficial interest.
"deemed to know" (or words of similar import) shall have the following
meaning:
(a) Buyer shall be "deemed to know" of the existence of a fact or
circumstance to the extent that:
(i) any Buyer's Representative knows of such fact or circumstance,
or
(ii) such fact or circumstance is disclosed by the Sale Agreement,
any documents executed by Seller for the benefit of Buyer in
connection with the Closing, the Due Diligence Materials, any
estoppel certificate executed by any tenant of the Property
and delivered to Buyer or any Buyer's Representatives, or any
Buyer's Reports.
(b) Buyer shall be "deemed to know" that any Seller's Warranty is
untrue, inaccurate or incorrect to the extent that:
(i) any Buyer's Representative has knowledge of information which
is inconsistent with such Seller's Warranty, or
(ii) the Sale Agreement, any documents executed by Seller for the
benefit of Buyer in connection with the Closing, the Due
Diligence Materials, any estoppel certificate executed by any
tenant of the Property and delivered to Buyer or any Buyer's
Representatives, or any Buyer's Reports contains information
which is inconsistent with such Seller's Warranty.
"Documents" shall mean the documents and instruments applicable to the
Property or any portion thereof that Seller or any of the other Seller Parties
deliver or make available to Buyer or Buyer's Representatives prior to Closing
or which are otherwise obtained by Buyer or Buyer's Representatives prior to
Closing, including, but not limited to, the Title Commitment, the Survey, the
Title Documents, and the Property Documents.
"Due Diligence" shall mean examinations, inspections, investigations,
tests, studies, analyses, appraisals, evaluations and/or investigations with
respect to the Property, the
Buyer's As-Is Certificate
SHP/Renaissance Portfolio Contract
- 2 -
Documents, and other information and documents regarding the Property,
including, without limitation, examination and review of title matters,
applicable land use and zoning Laws and other Laws applicable to the Property,
the physical condition of the Property, and the economic status of the Property.
"Hazardous Materials" shall mean any substance, chemical, waste or
material that is or becomes regulated by any federal, state or local
governmental authority because of its toxicity, infectiousness, radioactivity,
explosiveness, ignitability, corrosiveness or reactivity, including, without
limitation, asbestos or any substance containing more than 0.1 percent asbestos,
the group of compounds known as polychlorinated biphenyls, flammable explosives,
oil, petroleum or any refined petroleum product.
"Liabilities" shall mean, collectively, any and all problems, conditions,
losses, costs, damages, claims, liabilities, expenses, demands or obligations of
any kind or nature whatsoever.
"Property Documents" shall mean, collectively, (a) the Leases, (b) the
Contracts, and (c) any other documents or instruments which constitute, evidence
or create any portion of the Property.
"Seller Parties" shall mean and include, collectively, (a) Seller; (b) its
counsel; (c) Seller's Broker; (d) Seller's property manager; (e) any direct or
indirect owner of any beneficial interest in Seller; (f) any officer, director,
employee, or agent of Seller, its counsel, Seller's Broker, Seller's property
manager or any direct or indirect owner of any beneficial interest in Seller;
and (g) any other entity or individual affiliated or related in any way to any
of the foregoing.
"Seller's Warranties" shall mean Seller's representations and warranties
set forth in Section 9.2 of the Sale Agreement and any documents executed by
Seller for the benefit of Buyer in connection with Closing, as the same may be
deemed modified or waived by Buyer pursuant to the terms of the Sale Agreement.
2. Buyer acknowledges and agrees that, prior to the date hereof: (a)
Seller has made available to Buyer, or otherwise allowed Buyer access to, the
Property and all books, records and files of Seller and of the management agent
for the Property related to the Property (other than those books, records or
files containing Confidential Materials); (b) Buyer has conducted (or has waived
its right to conduct) all Due Diligence (including Due Diligence with respect to
Hazardous Materials) as Buyer considered necessary or appropriate; (c) Buyer has
reviewed, examined, evaluated and verified the results of its Due Diligence to
the extent it deems necessary or appropriate with the assistance of such experts
as Buyer deemed appropriate; (d) Buyer has determined to its satisfaction the
assignability of any Documents to be assigned as part of the Transaction; and
(e) except for, and only to the extent of, Seller's Warranties, is acquiring the
Property based exclusively upon its own Due Diligence.
3. Buyer acknowledges and agrees that, except for, and only to the extent
of, Seller's Warranties:
Buyer's As-Is Certificate
SHP/Renaissance Portfolio Contract
- 3 -
(a) The Property is being sold, and Buyer is accepting possession of the
Property on the date hereof, "AS IS, WHERE IS, WITH ALL FAULTS",
with no right of setoff or reduction in the Purchase Price.
(b) None of the Seller Parties have or shall be deemed to have made any
verbal or written representations, warranties, promises or
guarantees (whether express, implied, statutory or otherwise) to
Buyer with respect to the Property, any matter set forth, contained
or addressed in the Documents (including, but not limited to, the
accuracy and completeness thereof) or the results of Buyer's Due
Diligence.
(c) Buyer has confirmed independently all information that it considers
material to its purchase of the Property or the Transaction.
(d) Buyer is not relying on (and Seller and each of the other Seller
Parties does hereby disclaim and renounce) any representations or
warranties of any kind or nature whatsoever, whether oral or
written, express, implied, statutory or otherwise, from Seller or
any other Seller Parties, as to:
(i) the operation or performance of the Property, the income
potential, economic status, uses, or the merchantability,
habitability or fitness of any portion of the Property for a
particular purpose;
(ii) the physical condition of the Property or the condition or
safety of the Property or any component thereof, including,
but not limited to, plumbing, sewer, heating, ventilating and
electrical systems, roofing, air conditioning, foundations,
soils and geology, including Hazardous Materials, lot size, or
suitability of the Property or any component thereof for a
particular purpose;
(iii) the presence or absence, location or scope of any Hazardous
Materials in, at, about or under the Property;
(iv) whether the appliances, if any, plumbing or utilities are in
working order;
(v) the habitability or suitability for occupancy of any structure
and the quality of its construction;
(vi) whether the improvements are structurally sound, in good
condition, or in compliance with applicable Laws;
(vii) the accuracy of any statements, calculations or conditions
stated or set forth in the Documents, other books and records
concerning the Property, or any of Seller's offering materials
with respect to the Property;
Buyer's As-Is Certificate
SHP/Renaissance Portfolio Contract
- 4 -
(viii) the dimensions of the Property or the accuracy of any floor
plans, square footage, lease abstracts, sketches, or revenue
or expense projections related to the Property;
(ix) the locale of the Property, the leasing market for the
Property, or the market assumptions Buyer utilized in its
analysis of the Property and determination of the Purchase
Price (such as rental rates, leasing costs, vacancy and
absorption rates, land values, replacement costs, maintenance
and operating costs, financing costs, etc.);
(x) whether the Property is or would likely constitute a target
of terrorist activity or other acts of war;
(xi) the ability of Buyer to obtain any and all necessary
governmental approvals or permits for Buyer's intended use
and development of the Property;
(xii) the leasing status of the Property or the intentions of any
parties with respect to the negotiation and/or execution of
any lease for any portion of the Property; and
(xiii) Seller's ownership of any portion of the Property.
(e) Seller is under no duty to make any affirmative disclosures or
inquiry regarding any matter which may or may not be known to Seller
or any of the other Seller Parties, and Buyer, for itself and for
its successors and assigns, hereby specifically waives and releases
Seller and each of the other Seller Parties from any such duty that
otherwise might exist.
4. Except as expressly provided herein below in this Section 4, Buyer, for
Buyer and Buyer's successors and assigns, hereby releases Seller and each of the
other Seller Parties from, and waives any and all Liabilities against Seller and
each of the other Seller Parties for or attributable to or in connection with
the Property, whether arising or accruing before, on or after the date hereof
and whether attributable to events or circumstances which have heretofore or may
hereafter occur, including, without limitation, the following:
(a) any and all statements or opinions heretofore or hereafter made,
or information furnished, by the Seller Parties to Buyer or any of Buyer's
Representatives; and
(b) any and all Liabilities with respect to the structural,
physical, or environmental condition of the Property; and
(c) any and all Liabilities relating to the release of or the
presence, discovery or removal of any Hazardous Materials in, at, about or
under the Property, or for, connected with or arising out of any and all
claims or causes of action based upon
Buyer's As-Is Certificate
SHP/Renaissance Portfolio Contract
- 5 -
CERCLA (Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, 42 U.S.C. Sections 9601 et seq., as amended by XXXX
(Superfund Amendment and Reauthorization Act of 1986) and as may be
further amended from time to time), the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. Sections 6901 et seq., or any related claims or
causes of action or any other federal, state or municipal based statutory
or regulatory causes of action for environmental contamination at, in,
about or under the Property; and
(d) any and all tort claims made or brought with respect to the
Property or the use or operation thereof (except any claim made with
respect to any personal injury or death to a resident resulting from, or
allegedly resulting from the act or omission of Seller, Property Manager
or any of the Employees prior to the Closing Date, with respect to which
Seller has retained liability pursuant to Section 15.15.1(ii), subject to
the limitations on Seller's liability set forth therein); and
(e) any implied or statutory warranties or guaranties of fitness,
merchantability or any other statutory or implied warranty or guaranty of
any kind or nature regarding or relating to any portion of the Property.
The release and waiver set forth in this Section 5 is not intended and shall not
be construed to affect or impair any rights or remedies that Buyer may have
against Seller as a result of a breach of any of Seller's Warranties or any
indemnities, representations, warranties, covenants or agreements made in any
other documents or instrument executed by Seller in connection with the
Transaction, including, without limitation, the Sale Agreement, to the extent
such representations, warranties, covenants, or agreements specifically survive
Closing or were made in a document or instrument delivered at Closing.
5. Buyer hereby (a) assumes and takes responsibility and liability for all
Assumed Liabilities, and (b) agrees to indemnify, defend and hold harmless
Seller and each of the other Seller Parties from all Assumed Liabilities
(including reasonable attorneys' fees, expenses and disbursements). By its
execution of this Agreement, Buyer hereby agrees that it shall at all times
comply with all applicable Laws involving Hazardous Materials in, at, under or
about the Property or the removal of Hazardous Materials from the Property.
6. Buyer acknowledges and agrees that the provisions of this Agreement
were a material factor in Seller's acceptance of the Purchase Price and, while
Seller has provided the Documents and cooperated with Buyer, Seller is unwilling
to sell the Property unless Seller and the other Seller Parties are expressly
released as set forth in Section 4 and Buyer assumes the obligations specified
in, and provides the indemnifications set forth in, Section 5. Accordingly,
Buyer acknowledges that Buyer has received valid consideration for the releases
and indemnities provided by Buyer herein.
7. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
Buyer's As-Is Certificate
SHP/Renaissance Portfolio Contract
- 6 -
8. If any term or provision of this Agreement or the application thereof
to any persons or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement or the application of such term
or provision to persons or circumstances other than those as to which it is held
invalid or unenforceable shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforced to the fullest extent
permitted by law.
9. BUYER WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542,
WHICH PROVIDES: "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."
10. This Agreement is being executed by Buyer on the same date that the
Property is being conveyed by Seller to Buyer pursuant to the Sale Agreement.
Buyer acknowledges and agrees that this Agreement was executed immediately after
such conveyance, as a material inducement for Seller to make such conveyance and
that this Agreement was not merged into the deed and all of Buyer's agreements,
waivers and indemnities survive the Closing.
IN WITNESS WHEREOF, Buyer has executed this Agreement as of the date first
set forth hereinabove.
BUYER:
[PURCHASER: __________________________],
[Purchaser: a _________________________]
By: ____________________________________
Name: ______________________________
Title: _____________________________
[PURCHASER ASSIGNEE:
_______________________], [Assignee: a
_______________________]
By: ____________________________________
Name: ______________________________
Title: _____________________________
Buyer's As-Is Certificate
SHP/Renaissance Portfolio Contract
- 7 -
EXHIBIT D
(TO PURCHASE AND SALE AGREEMENT)
RECORDING REQUESTED BY
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx
WHEN RECORDED MAIL THIS DEED TO:
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx
MAIL TAX STATEMENTS TO:
[Purchaser Assignee: _______________________]
[Purchaser Address: _______________________]
[Purchaser City/State/Zip: _______________________]
________________________________________
SPACE ABOVE THIS LINE FOR RECORDER USE
TITLE OF DOCUMENT: GRANT DEED
Deed
SHP/Renaissance Portfolio Contract
GRANT DEED
APN NO.______________ TITLE NO.______________ ESCROW NO._________________
THE UNDERSIGNED GRANTOR(s) DECLARE(s)
DOCUMENTARY TRANSFER TAX is $____________CITY TAX $_______________________
computed on full value of property conveyed, or computed on full value
less value of liens or encumbrances remaining at time of sale
Unincorporated area: City of _______________, and
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, [SELLER:
____________________], a Delaware limited liability company ("Grantor"), whose
mailing address is c/o Prudential Real Estate Investors, Xxx Xxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, does hereby GRANT(s) to [PURCHASER ASSIGNEE:
_______________________], [Assignee: a _____________________] ("Grantee"), whose
mailing address is [Purchaser Address: _______________________], [Purchaser
City/State/Zip: _______________________], the real property described on EXHIBIT
A attached hereto and made a part hereof, which real property is located in the
County of [County: _________________], State of California.
Assessor's ID Number: ____________________
Deed
SHP/Renaissance Portfolio Contract
- 2 -
Dated: [Closing Date: _________________].
[SELLER: ____________________], a
Delaware limited liability company
By: SENIOR HOUSING PARTNERS I, L.P., a
Delaware limited partnership, as the
sole Managing Member thereof
By: Senior Housing Partners I, L.L.C., a
Delaware limited liability company, as
the sole General Partner thereof
By: The Prudential Insurance Company of
America, a New Jersey corporation,
as the sole Managing Member thereof
By:
----------------------------
Name: Xxxx X. Dark
Title: Vice President
Deed
SHP/Renaissance Portfolio Contract
- 3 -
STATE OF GEORGIA
SS.
COUNTY OF DEKALB
On __________________, 2005 before me, _____________________________, a
Notary Public, personally appeared Xxxx X. Dark, 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 all
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.
_______________________________
(Notary Public)
Print Name: ___________________
AFFIX SEAL (Impressed Seal Only)
Deed
SHP/Renaissance Portfolio Contract
- 4 -
EXHIBIT A
LEGAL DESCRIPTION
Assessor's ID Number: _____________________________
Being the same property that was conveyed to the party of the first part by
__________________________________, by deed dated _____________, of record in
the Office of the Clerk of [County: _________________] County, California, in
Deed Book _____ page _____, reference to which deed is here made for all
pertinent purposes.
Deed
SHP/Renaissance Portfolio Contract
- 5 -
EXHIBIT D
(TO PURCHASE AND SALE AGREEMENT)
(LEASEHOLD ESTATE)
RECORDING REQUESTED BY
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx
WHEN RECORDED MAIL THIS DEED TO:
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx
MAIL TAX STATEMENTS TO:
[Purchaser Assignee:
_____________________________]
[Purchaser Address:
_____________________________]
[Purchaser City/State/Zip:
_____________________________]
_______________________________________
SPACE ABOVE THIS LINE FOR
RECORDER USE
TITLE OF DOCUMENT: ASSIGNMENT AND ASSUMPTION OF GROUND LEASE
Assignment and Assumption of Ground Lease
SHP/Renaissance Portfolio Contract
ASSIGNMENT AND ASSUMPTION OF GROUND LEASE
THIS ASSIGNMENT AND ASSUMPTION OF GROUND LEASE (this "Assignment"), made
as of this [Closing Date: _________________], by [SELLER: ____________________],
a Delaware limited liability company (herein called "Assignor"), and [PURCHASER
ASSIGNEE: _______________________], [Assignee: a _______________________]
(herein called "Assignee").
WITNESSETH:
WHEREAS, Assignor is the owner of a leasehold estate (hereinafter, said
leasehold estate is referred to as the "Leasehold Estate") under that certain
Lease described in EXHIBIT A (the "Ground Lease"); said Leasehold Estate covers
real estate located in [County: _________________] County, California, which
land (hereinafter, said land is referred to as the "Leasehold Property") is more
particularly described on EXHIBIT B attached hereto and made a part hereof;
WHEREAS, Assignor has agreed to assign, transfer, sell and convey to
Assignee all the right, title and interest of the tenant or lessee in, to and
under the Leasehold Estate, the Ground Lease and the Leasehold Property; and
WHEREAS, Assignee has agreed to assume the due and full performance of all
of Assignor's obligations, duties and covenants accruing on and after the date
hereof under the Ground Lease.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration in hand paid and
delivered by Assignee to Assignor, the receipt and sufficiency of which are
hereby acknowledged, Assignor does hereby assign, transfer, sell and convey to
Assignee, its successors and assigns, without recourse or warranty except as
hereinafter provided, all of assignor's right, title and interest in and to the
Leasehold Estate, the Ground Lease and the Leasehold Property, subject to those
items set forth on EXHIBIT C attached hereto and made a part hereof (the
"Permitted Title Exceptions").
TO HAVE AND TO HOLD the Leasehold Estate, and all of Assignor's right,
title and interest in and to the Leasehold Property and the Ground Lease,
together with any easements appurtenant thereto and any improvements thereon,
and together with all other appurtenances thereunto belonging, or in any manner
appertaining, unto Assignee, its successors and assigns, forever. Assignor does
hereby covenant and warrant that the Leasehold Estate is free and clear of any
and all liens, restrictions and encumbrances arising from the lawful claims of
all persons owing, holding or claiming by, through or under Assignor, but not
otherwise, other than (i) those set forth in the Ground Lease, (ii) zoning
ordinances and restrictions and (iii) the Permitted Title Exceptions.
Assignment and Assumption of Ground Lease
SHP/Renaissance Portfolio Contract
- 2 -
Assignee assumes and agrees to perform any and all obligations and duties
of Assignor as "tenant" or "lessee" or otherwise under the Ground Lease for that
period of time from and after the date hereof.
IN WITNESS WHEREOF, Assignor has executed and delivered this Assignment
under seal on the day and year first above written.
ASSIGNOR:
[SELLER: ____________________], a Delaware
limited liability company
By: SENIOR HOUSING PARTNERS I, L.P., a
Delaware limited partnership, as the sole
Managing Member thereof
By: Senior Housing Partners I, L.L.C., a
Delaware limited liability company, as the sole
General Partner thereof
By: The Prudential Insurance Company of America,
a New Jersey corporation, as the sole
Managing Member thereof
By:
----------------------------
Name: Xxxx X. Dark
Title: Vice President
Assignment and Assumption of Ground Lease
SHP/Renaissance Portfolio Contract
- 3 -
STATE OF GEORGIA
SS.
COUNTY OF DEKALB
On __________________, 2005 before me, _____________________________, a
Notary Public, personally appeared Xxxx X. Dark, 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 all
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.
____________________________________
(Notary Public)
Print Name: ________________________
AFFIX SEAL (Impressed Seal Only)
Assignment and Assumption of Ground Lease
SHP/Renaissance Portfolio Contract
- 4 -
ASSIGNEE:
[PURCHASER ASSIGNEE:
_______________________], [Assignee: a
_______________________],
By: __________________________________
Name: ____________________________
Title: ___________________________
STATE OF ___________________
SS.
COUNTY OF ___________________
On __________________, 2005 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
all 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.
___________________________________
(Notary Public)
Print Name: _______________________
AFFIX SEAL (Impressed Seal Only)
Assignment and Assumption of Ground Lease
SHP/Renaissance Portfolio Contract
- 5 -
EXHIBIT E
(TO PURCHASE AND SALE AGREEMENT)
XXXX OF SALE
THIS XXXX OF SALE ("Xxxx of Sale"), is made as of [Closing Date:
_________________] by and between [SELLER: ____________________], a Delaware
limited liability company ("Seller") and [PURCHASER ASSIGNEE:
_______________________], [Assignee: a _______________________] ("Buyer").
WHEREAS, pursuant to the terms of that certain Purchase and Sale
Agreement, dated as of January ___, 2005, by and between [Purchaser:
_______________________] and Seller (the "Sale Agreement"), Seller agreed to
sell to Buyer, inter alia, certain real property, the improvements located
thereon and certain rights appurtenant thereto, all as more particularly
described in the Sale Agreement (collectively, the "Real Property") as more
particularly described in Exhibit A attached thereto and incorporated herein by
this reference, known as [Property Name: _____________________], [County:
_________________] County, California; and
WHEREAS, by deed of even date herewith, Seller conveyed the Real Property
to Buyer and by assignment of even date herewith Seller assigned to Buyer
Seller's rights under certain leases relating to the Real Property, as more
particularly described in such assignment (collectively, the "Leases"); and
WHEREAS, in connection with the above described conveyance Seller desires
to sell, transfer and convey to Buyer certain items of tangible personal
property as hereinafter described.
NOW, THEREFORE, in consideration of the receipt of TEN AND NO/100 DOLLARS
($10.00) and other good and valuable consideration paid in hand by Buyer to
Seller, the receipt and sufficiency of which are hereby acknowledged, Seller has
GRANTED, CONVEYED, SOLD, TRANSFERRED, SET OVER and DELIVERED and by these
presents does hereby GRANT, SELL, TRANSFER, SET OVER and DELIVER to Buyer, its
legal representatives, successors and assigns, and Buyer hereby accepts all
right, title and interest in and to (a) all tangible personal property owned by
Seller that is located on the Real Property and used in the ownership, operation
and maintenance of the Real Property, and (b) all books, records and files of
Seller relating to the Real Property and the Leases, but specifically excluding
therefrom the items described as Confidential Materials (as such term is defined
in the Sale Agreement) and any computer software that is licensed to Seller
(herein collectively called the "Personal Property").
Reference is made to that certain As-Is Certificate and Agreement, bearing
even date herewith, executed by Buyer for the benefit of Seller (the "As-Is
Certificate"), pursuant to which Buyer has (a) agreed to certain limitations on
representations, warranties, and liabilities of Seller; (b) waived and released
certain rights and claims against Seller and certain of its affiliates; and (c)
agreed to assume and indemnify Seller and certain of its affiliates from and
against certain
Xxxx of Sale
SHP/Renaissance Portfolio Contract
Assumed Liabilities (as defined in the As-Is Certificate) relating to, arising
out of or otherwise attributable to the Property (as defined in the Sale
Agreement), including the Personal Property. The As-Is Certificate is binding
upon Buyer and its successors and assigns, including successor owners of the
Personal Property.
This Xxxx of Sale is made without any covenant, warranty or representation
by, or recourse against, Seller, as more expressly set forth in the Sale
Agreement and the documents executed in connection therewith.
This Xxxx of Sale may be executed in counterparts, each of which shall be
an original and all of which counterparts taken together shall constitute one
and the same agreement.
If any term or provision of this Xxxx of Sale or the application thereof
to any persons or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Xxxx of Sale or the application of such
term or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable shall not be affected thereby, and each term and
provision of this Xxxx of Sale shall be valid and enforced to the fullest extent
permitted by law.
IN WITNESS WHEREOF, the undersigned have executed this Xxxx of Sale as of
the date first set forth hereinabove.
[SELLER: ____________________], a Delaware
limited liability company
By: SENIOR HOUSING PARTNERS I, L.P., a
Delaware limited partnership, as the sole
Managing Member thereof
By: Senior Housing Partners I, L.L.C., a
Delaware limited liability company, as the
sole General Partner thereof
By: The Prudential Insurance Company of America,
a New Jersey corporation, as the sole
Managing Member thereof
By:
----------------------------
Name: Xxxx X. Dark
Title: Vice President
Xxxx of Sale
SHP/Renaissance Portfolio Contract
- 2 -
ACCEPTED:
[PURCHASER ASSIGNEE:
_______________________], [Assignee: a
_______________________],
By: ___________________________________
Name: _____________________________
Title: ____________________________
Xxxx of Sale
SHP/Renaissance Portfolio Contract
- 3 -
EXHIBIT F
(TO PURCHASE AND SALE AGREEMENT)
ASSIGNMENT AND ASSUMPTION OF SPACE LEASES
THIS ASSIGNMENT AND ASSUMPTION OF SPACE LEASES (this "Assignment"), is
made as of [Closing Date: _________________] by and between [SELLER:
____________________], a Delaware limited liability company ("Assignor") and
[PURCHASER ASSIGNEE: _______________________], [Assignee: a
_______________________] ("Assignee").
WITNESSETH:
WHEREAS, pursuant to the terms of that certain Purchase and Sale
Agreement, dated as of January ___, 2005, by and between Assignor and
[Purchaser: _______________________] (the "Sale Agreement"), Assignor agreed to
sell to Assignee, inter alia, certain real property, the improvements located
thereon and certain rights appurtenant thereto, all as more particularly
described in the Sale Agreement (collectively, the "Real Property"), known as
[Property Name: _____________________], [County: _________________] County,
California. Initially capitalized terms not otherwise defined herein shall have
the respective meanings ascribed to such terms in the Sale Agreement; and
WHEREAS, the Sale Agreement provides, inter alia, that Assignor shall
assign to Assignee certain leases and that Assignor and Assignee shall enter
into this Assignment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. ASSIGNMENT. Assignor hereby assigns, sets over and transfers to
Assignee all of Assignor's right, title and interest in, to and under the space
leases ("Leases") with the tenants of the Real Property identified on EXHIBIT A
attached hereto and incorporated herein by this reference. Assignee hereby
accepts the foregoing assignment of the Leases.
2. AS-IS CERTIFICATE. Reference is made to that certain As-Is Certificate
and Agreement, bearing even date herewith, executed by Assignee for the benefit
of Assignor (the "As-Is Certificate"), pursuant to which Assignee has (a) agreed
to certain limitations on representations, warranties, and liabilities of
Assignor; (b) waived and released certain rights and claims against Assignor and
certain of its affiliates; and (c) agreed to assume and indemnify Assignor and
certain of its affiliates from and against certain Assumed Liabilities (as
defined in the As-Is Certificate) relating to, arising out of or otherwise
attributable to the Property, including the Leases. The As-Is Certificate is
binding upon Assignee and its successors and assigns, including successor owners
of an interest in the Leases.
3. MISCELLANEOUS. This Assignment and the obligations of the parties
hereunder shall survive the closing of the transaction referred to in the Sale
Agreement and shall not be
Assignment of Leases
SHP/Renaissance Portfolio Contract
merged therein, shall be binding upon and inure to the benefit of the parties
hereto, their respective legal representatives, successors and assigns, shall be
governed by and construed in accordance with the laws of the State of California
applicable to agreements made and to be wholly performed within said State and
may not be modified or amended in any manner other than by a written agreement
signed by the party to be charged therewith.
4. SEVERABILITY. If any term or provision of this Assignment or the
application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Assignment or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable shall not be affected thereby, and each term
and provision of this Assignment shall be valid and enforced to the fullest
extent permitted by law.
5. COUNTERPARTS. This Assignment may be executed in counterparts, each of
which shall be an original and all of which counterparts taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the undersigned have executed this Assignment as of
the date first set forth hereinabove.
ASSIGNOR:
[SELLER: ____________________], a Delaware
limited liability company
By: SENIOR HOUSING PARTNERS I, L.P., a
Delaware limited partnership, as the sole
Managing Member thereof
By: Senior Housing Partners I, L.L.C., a
Delaware limited liability company, as
the sole General Partner thereof
By: The Prudential Insurance Company of
America, a New Jersey corporation,
as the sole Managing Member thereof
By:
----------------------------
Name: Xxxx X. Dark
Title: Vice President
Assignment of Leases
SHP/Renaissance Portfolio Contract
- 2 -
ASSIGNEE:
[PURCHASER ASSIGNEE:
_______________________], [Assignee: a
_______________________]
By: ___________________________________
Name: _____________________________
Title: ____________________________
Assignment of Leases
SHP/Renaissance Portfolio Contract
- 3 -
EXHIBIT A
LIST OF TENANTS
Assignment of Leases
SHP/Renaissance Portfolio Contract
- 4 -
EXHIBIT G
(TO PURCHASE AND SALE AGREEMENT)
ASSIGNMENT OF INTANGIBLE PROPERTY
THIS ASSIGNMENT OF INTANGIBLE PROPERTY (this "Assignment"), is made as of
[Closing Date: _________________] by and between [SELLER: ____________________],
a Delaware limited liability company ("Assignor") and [PURCHASER ASSIGNEE:
_______________________], [Assignee: a _______________________] ("Assignee").
WITNESSETH:
WHEREAS, pursuant to the terms of that certain Purchase and Sale
Agreement, dated as of January ___, 2005, by and between Assignor and
[Purchaser: _______________________] (the "Sale Agreement"), Assignor agreed to
sell to Assignee, inter alia, certain real property, the improvements located
thereon and certain rights appurtenant thereto, all as more particularly
described in the Sale Agreement (collectively, the "Real Property"), known as
[Property Name: _____________________], [County: _________________] County,
California. Initially capitalized terms not otherwise defined herein shall have
the respective meanings ascribed to such terms in the Sale Agreement; and
WHEREAS, the Sale Agreement provides, inter alia, that Assignor shall
assign to Assignee rights to certain intangible property and that Assignor and
Assignee shall enter into this Assignment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS. Assignor hereby assigns,
sets over and transfers to Assignee all of Assignor's right, title and interest
in, to and under the following, if and only to the extent the same may be
assigned or quitclaimed by Assignor without expense to Assignor:
(a) all service, supply, maintenance, utility and commission agreements,
all equipment leases, and all other contracts, subcontracts and
agreements relating to the Real Property and the Personal Property
(including all contracts, subcontracts and agreements relating to
the construction of any unfinished tenant improvements), all of
which are described in EXHIBIT A attached hereto and incorporated
herein by this reference (herein collectively called the
"Contracts"); and
(b) to the extent that the same are in effect as of the date hereof, any
licenses, permits and other written authorizations necessary for the
use, operation or ownership of
Assignment of Intangible Property
SHP/Renaissance Portfolio Contract
the Real Property described on Exhibit B attached hereto and
incorporated herein by this reference (herein collectively called
the "Licenses and Permits"); and
(c) the rights of Assignor (if any) to the name "[Property Name:
_____________________]" (it being acknowledged by Assignee that
Assignor does not have exclusive rights (and in fact may have no
rights) to use such name and Assignor has not registered the same in
any manner); and
(d) any guaranties and warranties in effect with respect to any portion
of the Real Property or the Personal Property as of the date hereof.
Assignee hereby accepts the foregoing assignment of the interests described in
this Section 1.
2. AS-IS CERTIFICATE. Reference is made to that certain As-Is Certificate
and Agreement, bearing even date herewith, executed by Assignee for the benefit
of Assignor (the "As-Is Certificate"), pursuant to which Assignee has (a) agreed
to certain limitations on representations, warranties, and liabilities of
Assignor; (b) waived and released certain rights and claims against Assignor and
certain of its affiliates; and (c) agreed to assume and indemnify Assignor and
certain of its affiliates from and against certain Assumed Liabilities (as
defined in the As-Is Certificate) relating to, arising out of or otherwise
attributable to the Property, including the Contracts and the Licenses and
Permits. The As-Is Certificate is binding upon Assignee and its successors and
assigns, including successor owners of an interest in the Contracts and the
Licenses and Permits.
3. MISCELLANEOUS. This Assignment and the obligations of the parties
hereunder shall survive the closing of the transaction referred to in the Sale
Agreement and shall not be merged therein, shall be binding upon and inure to
the benefit of the parties hereto, their respective legal representatives,
successors and assigns, shall be governed by and construed in accordance with
the laws of the State of California applicable to agreements made and to be
wholly performed within said State and may not be modified or amended in any
manner other than by a written agreement signed by the party to be charged
therewith.
4. SEVERABILITY. If any term or provision of this Assignment or the
application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Assignment or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable shall not be affected thereby, and each term
and provision of this Assignment shall be valid and enforced to the fullest
extent permitted by law.
5. COUNTERPARTS. This Assignment may be executed in counterparts, each of
which shall be an original and all of which counterparts taken together shall
constitute one and the same agreement.
Assignment of Intangible Propertys
SHP/Renaissance Portfolio Contract
- 2 -
IN WITNESS WHEREOF, the undersigned have executed this Assignment as of
the date first set forth hereinabove.
ASSIGNOR:
[SELLER: ____________________], a Delaware
limited liability company
By: SENIOR HOUSING PARTNERS I, L.P., a
Delaware limited partnership, as
the sole Managing Member thereof
By: Senior Housing Partners I, L.L.C., a
Delaware limited liability company, as
the sole General Partner thereof
By: The Prudential Insurance Company of
America, a New Jersey corporation,
as the sole Managing Member thereof
By:
----------------------------
Name: Xxxx X. Dark
Title: Vice President
Assignment of Intangible Propertys
SHP/Renaissance Portfolio Contract
- 3 -
ASSIGNEE:
[PURCHASER ASSIGNEE:
_______________________], [Assignee: a
_______________________]
By: __________________________________
Name: ____________________________
Title: ___________________________
Assignment of Intangible Propertys
SHP/Renaissance Portfolio Contract
- 4 -
EXHIBIT A
LIST OF CONTRACTS
(SERVICE, SUPPLY, MAINTENANCE, UTILITY AND COMMISSION AGREEMENTS,
AND ALL EQUIPMENT LEASES, AND GUARANTIES AND WARRANTIES, IF ANY)
Assignment of Intangible Propertys
SHP/Renaissance Portfolio Contract
- 5 -
EXHIBIT H
(TO PURCHASE AND SALE AGREEMENT)
NOTICE OF SALE
(TO TENANTS, REGARDING ASSIGNMENT AND ASSUMPTION OF SPACE LEASES)
TO: All Tenants of [Property Name: [Closing Date:
_________________________] _______________________]
[Property Address:
_________________________]
[Property City:
_____________________],
California
RE: Notice of Change of Ownership of [Property Name: _________________],
[County: _________________] County, California
To Whom It May Concern:
You are hereby notified as follows:
1. That as of the date hereof, [SELLER: ____________________] has
transferred, sold, assigned, and conveyed all of its interest in and to
the above-described property (the "Property") to [Purchaser Assignee:
_______________________], [Assignee: a _______________________] (the "New
Owner").
2. Future notices and rental payments with respect to your leased premises at
the Property should be made to the New Owner in accordance with your Lease
terms at the following address:
[Purchaser Assignee: _______________________]
[Purchaser Address: _______________________]
[Purchaser City/State/Zip: ______________________]
3. If there is a security deposit with respect to your lease, it has been
transferred to the New Owner and as such the New Owner shall be
responsible for holding the same in accordance with the terms of your
lease.
Notice of Sale to Tenants
SHP/Renaissance Portfolio Contract
[SELLER: _________________________], a Delaware
limited liability company
By: SENIOR HOUSING PARTNERS I, L.P., a
Delaware limited partnership, as the sole
Managing Member thereof
By: Senior Housing Partners I, L.L.C., a
Delaware limited liability company, as
the sole General Partner thereof
By: The Prudential Insurance Company of
America, a New Jersey corporation,
as the sole Managing Member thereof
By:
----------------------------
Name: Xxxx X. Dark
Title: Vice President
Notice of Sale to Tenants
SHP/Renaissance Portfolio Contract
- 2 -
[PURCHASER ASSIGNEE:
_______________________], [Assignee: a
_______________________]
By: __________________________________
Name: ____________________________
Title: ___________________________
Notice of Sale to Tenants
SHP/Renaissance Portfolio Contract
- 3 -
EXHIBIT I
(TO PURCHASE AND SALE AGREEMENT)
NON-FOREIGN CERTIFICATE
Section 1445 of the Internal Revenue Code provides that a transferee of a
United States real property interest must withhold tax if the transferor is a
foreign person. For U.S. tax purposes (including Section 1445), the owner of a
disregarded entity (which has legal title to a U.S. real property interest under
local law) will be the transferor of the property and not the disregarded
entity. To inform [Purchaser Assignee: _______________________], [Assignee: a
_______________________] (the "Transferee") that withholding of tax is not
required upon the disposition of a United States real property interest by
[SELLER: ____________________], a Delaware limited liability company (the
"Seller"), the undersigned hereby certifies the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations); and
2. Seller is not a disregarded entity as defined in Section
1.1445-2(b)(2)(iii) of the Income Tax Regulations issued under the
Internal Revenue Code.
3. Seller's U.S. employer tax identification number is [Insert Seller's
Tax ID No.: __________]; and
4. Seller's office address is c/o Prudential Real Estate Investors, Xxx
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000.
Seller understands that this certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Non-Foreign Affidavit
SHP/Renaissance Portfolio Contract
The undersigned declares that the undersigned has examined this
certification and to the best of the undersigned's knowledge and belief it is
true, correct and complete, and the undersigned further declares that such party
has authority to sign this document on behalf of Seller.
Certified, sworn to and subscribed before [SELLER: ____________________], a
me this ___ day of ____________, 2005. Delaware limited liability company
By: SENIOR HOUSING PARTNERS I, L.P.,
_________________________________ a Delaware limited
partnership, as the sole
Notary Public Managing Member thereof
My Commission Expires: By: Senior Housing Partners I,
L.L.C., a Delaware limited
_________________________________ liability company, as the
sole General Partner
thereof
(NOTARIAL SEAL) By: The Prudential Insurance
Company of America, a
New Jersey corporation,
as the sole Managing
Member thereof
By:
---------------------
Name: Xxxx X. Dark
Title: Vice President
Non-Foreign Affidavit
SHP/Renaissance Portfolio Contract
- 2 -
EXHIBIT J-1
(TO PURCHASE AND SALE AGREEMENT)
CERTIFICATE REGARDING LIMITED LIABILITY COMPANY
STATUS AND AUTHORITY
The undersigned is the sole Managing Member of [SELLER:
____________________], a Delaware limited liability company (the "Company"), and
does hereby certify to [PURCHASER: _______________________], [Purchaser: a
_______________________], its successors and assigns, as follows:
1. The Company is in good standing under the laws of such state and under
the laws of any other state in which it is required to qualify to do business.
2. No suit or proceeding for the dissolution, annulment or liquidation of
the Company has been instituted or is now threatened.
3. The Company has approved the execution and delivery of all documents to
be executed and delivered by the Company in connection with the [Purchase Price:
$_____________] sale (the "Transaction") of certain property located in [County:
_________________] County, California from [Seller: ____________________] to
[Purchaser: _______________________], or its successors and assigns
("Purchaser"). The undersigned is duly authorized by the members of the Company
and pursuant to the provisions of the Operating Agreement of the Company, and
such Managing Member, acting alone, is duly authorized to convey all real and
personal property necessary to consummate the Transaction, and to execute any
and all instruments necessary to consummate the Transaction, including but not
limited to deeds, assignments, agreements, bills of sale, affidavits,
certificates, closing statements, and any and all other instruments, all upon
such terms and conditions as said Managing Member deems advantageous to the
Company.
Partnership Certificate
SHP/Renaissance Portfolio Contract
IN WITNESS WHEREOF, the undersigned have hereunto signed and sealed this
Certificate as of [Closing Date: _________________].
SENIOR HOUSING PARTNERS I, L.P., a
Delaware limited partnership
By: SENIOR HOUSING PARTNERS I, L.L.C.,
a Delaware limited liability company, as the
sole General Partner thereof
By: The Prudential Insurance Company of
America, a New Jersey corporation, as
the sole Managing Member thereof
By:
----------------------------
Name: Xxxx X. Dark
Title: Vice President
Partnership Certificate
SHP/Renaissance Portfolio Contract
- 2 -
EXHIBIT J-2
(TO PURCHASE AND SALE AGREEMENT)
CERTIFICATE REGARDING PARTNERSHIP STATUS AND AUTHORITY
The undersigned is the sole general partner of SENIOR HOUSING PARTNERS I,
L.L.C., a Delaware limited liability company (the "Partnership"), and does
hereby certify to [PURCHASER: _______________________], [Purchaser: a
_______________________], its successors and assigns, as follows:
1. The Partnership is in good standing under the laws of such state and
under the laws of any other state in which it is required to qualify to do
business.
2. No suit or proceeding for the dissolution, annulment or liquidation of
the Partnership has been instituted or is now threatened.
3. The Partnership has approved the execution and delivery of all
documents to be executed and delivered by the Partnership in connection with the
[Purchase Price: $_____________] sale (the "Transaction") of certain property
located in [County: _________________] County, California from [Seller:
____________________] to [Purchaser: _______________________], or its successors
and assigns ("Purchaser"). The undersigned general partner is duly authorized by
the partners of the Partnership and pursuant to the provisions of the
Partnership Agreement of the Partnership, and such partner, acting alone, is
duly authorized to convey all real and personal property necessary to consummate
the Transaction, and to execute any and all instruments necessary to consummate
the Transaction, including but not limited to deeds, assignments, agreements,
bills of sale, affidavits, certificates, closing statements, and any and all
other instruments, all upon such terms and conditions as said partner deems
advantageous to the Partnership.
Partnership Certificate
SHP/Renaissance Portfolio Contract
- 3 -
IN WITNESS WHEREOF, the undersigned have hereunto signed and sealed this
Certificate as of [Closing Date: _________________].
SENIOR HOUSING PARTNERS I, L.L.C., a
Delaware limited liability company
By: THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, a New Jersey
corporation, as the sole Managing Member
thereof
By:
----------------------------
Name: Xxxx X. Dark
Title: Vice President
Partnership Certificate
SHP/Renaissance Portfolio Contract
- 4 -
EXHIBIT J-3
(TO PURCHASE AND SALE AGREEMENT)
CERTIFICATE REGARDING LIMITED LIABILITY COMPANY
STATUS AND AUTHORITY
The undersigned is the sole Managing Member of SENIOR HOUSING PARTNERS I,
L.L.C., a Delaware limited liability company (the "Company"), and does hereby
certify to [PURCHASER: _______________________], [Purchaser: a
_______________________], its successors and assigns, as follows:
1. The Company is in good standing under the laws of such state and under
the laws of any other state in which it is required to qualify to do business.
2. No suit or proceeding for the dissolution, annulment or liquidation of
the Company has been instituted or is now threatened.
3. The Company has approved the execution and delivery of all documents to
be executed and delivered by the Company in connection with the [Purchase Price:
$_____________] sale (the "Transaction") of certain property located in [County:
_________________] County, California from [Seller: ____________________] to
[Purchaser: _______________________], or its successors and assigns
("Purchaser"). The Prudential Insurance Company of America, a New Jersey
corporation, as the sole Managing Member of the Company, is duly authorized by
the managers and members of the Company and pursuant to the provisions of the
Operating Agreement of the Company, and such member, acting alone, is duly
authorized to convey all real and personal property necessary to consummate the
Transaction, and to execute any and all instruments necessary to consummate the
Transaction, including but not limited to deeds, assignments, agreements, bills
of sale, affidavits, certificates, closing statements, and any and all other
instruments, all upon such terms and conditions as said Managing Member deems
advantageous to the Company.
IN WITNESS WHEREOF, the undersigned have hereunto signed and sealed this
Certificate as of [Closing Date: _________________].
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey
corporation
By:
----------------------------
Name: Xxxx X. Dark
Title: Vice President
LLC Certificate
SHP/Renaissance Portfolio Contract
EXHIBIT J-4
(TO PURCHASE AND SALE AGREEMENT)
CERTIFICATE OF ASSISTANT SECRETARY
STATE OF NEW JERSEY )
COUNTY OF XXXXXX )
Before me, a Notary Public in and for the above County and State, personally
appeared ___________________, to me personally known and known to me to be an
Assistant Secretary of THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, who, being
by me duly sworn according to law, on his/her oath deposes and says that (s)he
is an Assistant Secretary of The Prudential Insurance Company of America, having
custody of the records of the said Company, and that Article VI of the By-Laws
of The Prudential Insurance Company of America, as now in full and force and
effect, contains among other provisions, the following, with:
"Except as provided in the following sentence, the Chief Executive
Officer, the President, and any one of the Vice Presidents (however
denominated) shall have power to execute on behalf of the
corporation all investments, deeds, contracts, and other corporate
acts and papers."
Deponent further says that sentence that follows the above-quoted sentence in
Article VI of the By-Laws deals only with contracts of insurance and annuity.
Deponent further says that Xxxx X. Dark is one of the Vice Presidents of the
said Company, and that __________________ is one of the Assistant Secretaries,
and that the above officers were and are Vice President and Assistant Secretary,
respectively, having authority to perform the above-mentioned duties on the ___
day of __________, 2005, and that furthermore, Xxxx X. Dark has the authority to
execute such documents as are permitted by the above-referenced Article VI
without attestation by an Assistant Secretary on such date.
Subscribed and sworn to before me ____________________________________
this _____ day of _________, 2005. Name: ______________________________
______________________________ Title: Assistant Secretary
Notary Public
My Commission Expires: (AFFIX CORPORATE SEAL)
_________________________________
Corporate Secretary's Certificate
SHP/Renaissance Portfolio Contract
EXHIBIT K
(TO PURCHASE AND SALE AGREEMENT)
CLOSING STATEMENT AGREEMENT
SELLER: [SELLER: ____________________]
PURCHASER: [PURCHASER ASSIGNEE: _______________________]
TRANSACTION: [PURCHASE PRICE: $_____________] PURCHASE AND SALE
PROPERTY: [PROPERTY NAME: _____________________], LOCATED IN [COUNTY:
_________________] COUNTY, CALIFORNIA
PREI PROPERTY NO.: [PREI NO.: ____]
DATE CLOSED: [CLOSING DATE: _________________]
CLOSING AGENT: [ESCROW COMPANY: _____________]
PURCHASE PRICE: [PURCHASE PRICE:
$____________]
A. ADJUSTMENTS INCREASING PURCHASE PRICE:
1. Utility Deposits held by utility companies $_________
and transferred to Purchaser by Seller, as
set forth on EXHIBIT A attached hereto
2. Purchaser's Share of prepaid service $_________
contracts paid by Seller, as set forth on
EXHIBIT A attached hereto
3. __________________________ $_________
TOTAL ADJUSTMENTS INCREASING PURCHASE PRICE $_____________
B. ADJUSTMENTS DECREASING PURCHASE PRICE:
1. Seller's share of taxes to be paid by ($________)
Purchaser, as set forth on EXHIBIT A
attached hereto
Closing Statement Agreement
SHP/Renaissance Portfolio Contract
2. Escrow for Seller's share of utilities to be ($ 0.00)
paid by Purchaser (utilities to be prorated
by reading of utility meters as of Closing;
utility meters to be read as of [Closing
Date: _________________]), as set forth on
EXHIBIT A attached hereto
3. Credit for Cash Security Deposits held and ($________)
retained by Seller on Space Leases, as set
forth on EXHIBIT A attached hereto; all
such funds to be retained by Seller for its
own account, and Purchaser to fund its own
security deposit accounts
4. Advance Rent Proration (Purchaser's share of ($________)
advance rent collected and retained by
Seller), as set forth on EXHIBIT A attached
hereto
5. Current Rent Proration (Purchaser's share of ($________)
current rent collected and retained by
Seller), as set forth on EXHIBIT A attached
hereto
6. Credit for Seller's prorata share of Service ($________)
Contract Payments to be paid by Purchaser,
as set forth on EXHIBIT A attached hereto
7. Credit for one half of Escrow Charges (if ($________)
applicable)
8. Credit for Escrow for ($________)
_______________________
TOTAL ADJUSTMENTS DECREASING PURCHASE PRICE $______________
ADJUSTED PURCHASE PRICE: $______________
CALCULATION OF AMOUNT DUE SELLER:
ADJUSTED PURCHASE PRICE: $______________
Closing Statement Agreement
SHP/Renaissance Portfolio Contract
-2-
LESS DISBURSEMENTS ON BEHALF OF SELLER:
1. To [Seller Broker Company: _____________] for $______________
Real Estate Commission to be paid by wire
transfer pursuant to instructions as set forth on
EXHIBIT B attached hereto
2. To __________________ for payoff of existing loan $______________
(payoff as of [Closing Date: _________________];
per diem equal to $________ per day), to be paid
by wire transfer pursuant to instructions as set
forth on EXHIBIT B attached hereto
3. To Xxxxxx & Bird LLP for legal fees and expenses $______________
to be paid by wire transfer pursuant to
instructions as set forth on EXHIBIT B attached
hereto
4. To _________________________ for $______________
_______________________________
TOTAL SELLER'S DISBURSEMENTS ($__________)
BALANCE CASH DUE SELLER AT CLOSING $__________
CALCULATION OF AMOUNTS DUE FROM PURCHASER:
ADJUSTED PURCHASE PRICE: $__________
PLUS DISBURSEMENTS ON BEHALF OF PURCHASER:
1. To ________________ for Real Estate Commission to $______________
be paid by wire transfer pursuant to instructions
as set forth on EXHIBIT B attached hereto
2. To ____________________________ for Recording $______________
Costs
3. To ____________________________ for Transfer Tax $______________
Closing Statement Agreement
SHP/Renaissance Portfolio Contract
-3-
4. To [Title Company: _____________] for Title $______________
Insurance Premium and Expenses
5. To _________________________ for Survey Costs $______________
6. To [Escrow Company: _____________] for Escrow $______________
Charges
7. To _________________________ for engineering $______________
report
8. To _________________________ for environmental $______________
report
9. To _________________________ for $______________
______________________________________________
TOTAL PURCHASER'S DISBURSEMENTS $___________
TOTAL CASH DUE FROM PURCHASER AT CLOSING (ADJUSTED PURCHASE PRICE PLUS $___________
TOTAL PURCHASER'S DISBURSEMENTS)
LESS XXXXXXX MONEY DEPOSITED WITH CLOSING AGENT ([XXXXXXX MONEY:
$__________])
BALANCE CASH DUE FROM PURCHASER AT CLOSING (CERTIFIED FUNDS) $___________
AMOUNT DEPOSITED BY PURCHASER AT CLOSING $___________
EXCESS OF AMOUNT DEPOSITED BY PURCHASER AT CLOSING OVER BALANCE CASH DUE
(TO BE RETURNED TO PURCHASER BY WIRE TRANSFER PURSUANT TO SEPARATE $___________
INSTRUCTIONS FROM PURCHASER)
SPECIAL STIPULATIONS:
The parties hereto hereby agree that the following stipulations shall survive
the closing hereof and shall not be merged by the delivery of the Deed:
1. Possession of the property is granted Purchaser immediately upon
closing of this purchase and sale.
Closing Statement Agreement
SHP/Renaissance Portfolio Contract
-4-
2. Seller directs Closing agent to disburse the Balance Cash Due Seller
by wire transfer as follows:
Bank: ____________________________________
Bank Address: ____________________________________
____________________________________
Bank ABA No.: ____________________________________
Account Name: ____________________________________
Account No.: ____________________________________
Special Instructions (if any): ____________________________________
3. Seller and Purchaser acknowledge that the taxes for the current year
prorated herein are based upon the tax bills for the preceding year.
In the event the real estate taxes for the current year are greater
than the amount apportioned between Seller and Purchaser herein,
then Seller shall pay Seller's prorata share of the deficiency to
Purchaser upon demand therefor from Purchaser at the time the tax
xxxx is paid. If the taxes are less than the amount so apportioned,
then Purchaser shall pay Purchaser's prorata share of the excess to
Seller at the time the tax xxxx is paid.
4. All of the terms and conditions of that certain Purchase and Sale
Agreement (the "Sale Agreement") dated as of January ___, 2005 by
and between [Purchaser: _______________________] and Seller are
hereby satisfied and merged into the deed, this Closing Statement
Agreement and the other conveyance documents delivered in connection
herewith, and shall not survive the Closing of this purchase and
sale, except as and to the extent otherwise expressly set forth in
the Sale Agreement.
5. The undersigned Broker(s) hereby acknowledges payment in full of all
brokerage commissions and fees due and payable in connection with
the purchase and sale of the Property.
6. The parties agree to reprorate any of the Closing Statement
Agreement adjustments which ultimately are determined to be in error
because of a miscalculation or mutual mistake of fact.
7. Purchaser hereby acknowledges receipt of all items required by the
Sale Agreement to be delivered to Purchaser at or prior to Closing.
8. Purchaser has received and reviewed at the Property (or in the
office of the property manager for the Property) a schedule of the
delinquencies with respect to the Property, which shall be collected
and prorated in accordance with the Sale Agreement.
9. Purchaser hereby reaffirms as of the date hereof the representations
and warranties of Purchaser set forth in Paragraph 9 of the Sale
Agreement, and
Closing Statement Agreement
SHP/Renaissance Portfolio Contract
-5-
Purchaser confirms that all of the aforesaid representations and
warranties are true, correct and complete on the date hereof without
exception.
10. Seller hereby reaffirms as of the date hereof the representations
and warranties of Seller set forth in Paragraph 9 of the Sale
Agreement, and Seller confirms that all of the aforesaid
representations and warranties are true, correct and complete on the
date hereof without exception, except as set forth in the documents
delivered by Seller to Purchaser of even date, and subject to all of
the provisions of Paragraph 9 of the Sale Agreement. With respect
thereto, attached hereto as EXHIBIT C are the following items, which
constitute exceptions or updates to the representations and
warranties of Seller: (a) a Rent Roll current as of the date set
forth thereon, and (b) a delinquency report current as of the date
set forth thereon.
The undersigned Seller and Purchaser (and any undersigned Broker), having read
the foregoing Closing Statement Agreement and having checked, reviewed and
approved each of the foregoing credit and disbursement amounts and other
provisions, do hereby acknowledge and approve each of the credits and
disbursements above set forth and do hereby authorize and direct Closing agent
to disburse funds in accordance herewith.
CLOSING AGENT:
[ESCROW COMPANY: _____________]
By:____________________________
Name:_______________________
Title:______________________
Closing Statement Agreement
SHP/Renaissance Portfolio Contract
-6-
SELLER:
[SELLER: ____________________], a Delaware limited
liability company
By: SENIOR HOUSING PARTNERS I, L.P., a Delaware limited
partnership, as the sole Managing Member thereof
By: Senior Housing Partners I, L.L.C., a Delaware
limited liability company, as the sole General
Partner thereof
By: The Prudential Insurance Company of
America, a New Jersey corporation, as
the sole Managing Member thereof
By: _____________________________
Name: Xxxx X. Dark
Title: Vice President
PURCHASER:
[PURCHASER ASSIGNEE: _______________________], [Assignee:
a _____________________]
By:______________________________________________
Name:_______________________________________
Title:______________________________________
BROKER:
[SELLER BROKER COMPANY: _____________]
By:______________________________________________
Name:_______________________________________
Title:______________________________________
Closing Statement Agreement
SHP/Renaissance Portfolio Contract
-7-
BROKER:
[BUYER BROKER COMPANY: _____________]
By:______________________________________________
Name:_______________________________________
Title:______________________________________
Closing Statement Agreement
SHP/Renaissance Portfolio Contract
-8-
EXHIBIT A
SCHEDULE OF PRORATIONS AND CREDITS
Closing Statement Agreement
SHP/Renaissance Portfolio Contract
-9-
EXHIBIT B
OTHER WIRE INSTRUCTIONS
[Seller Broker Company: _____________] wire transfer instructions:
Bank: _______________
Address: _______________
_______________
Account Name: _______________
Account No.: _______________
ABA Routing No.: _______________
Reference: _______________
Xxxxxx & Bird wire transfer instructions:
Bank: Bank of America
Address: 000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Account Name: Xxxxxx & Bird Operating Account
Account No.: 00-000-000-0000
ABA Routing No.: 026 009 593
Reference: 604042/______
Closing Statement Agreement
SHP/Renaissance Portfolio Contract
-10-
EXHIBIT C
RENT ROLL AND DELINQUENCY REPORT
Closing Statement Agreement
SHP/Renaissance Portfolio Contract
-11-
EXHIBIT L
(TO PURCHASE AND SALE AGREEMENT)
VENDOR'S AFFIDAVIT OF TITLE
[SELLER: ____________________], a Delaware limited liability company (the
"Vendor"), by its undersigned officer(s), being first duly sworn, states that
Vendor is this day conveying to [PURCHASER ASSIGNEE: _______________________],
[Assignee: a _______________________] (the "Purchaser"), by Grant Deed (the
"Deed"), certain real estate commonly known as [Property Name:
_____________________], located in [County: _________________] County,
California, more particularly described in Exhibit A attached hereto and made a
part hereof (the "Real Estate"), pursuant to that certain Purchase and Sale
Agreement (the "Sale Agreement") dated as of January ___, 2005 by and between
[Purchaser: _______________________] and Seller. In addition, Vendor, by its
undersigned officer, and to such undersigned officer's actual knowledge, states
that
In connection with the sale of the Real Estate, Purchaser has obtained a
commitment for an owner's policy of title insurance for the Real Estate issued
by [Title Company: _____________] (the "Title Company") as Commitment No. [Title
Commitment No.: _____________] (the "Commitment"). Purchaser has also obtained a
survey of the Real Estate (the "Survey").
Vendor's estate in fee simple in the Real Estate is free and clear of
every kind or description of lien, lease or encumbrance arising by, through or
under Vendor, except as follows:
1. Current taxes not delinquent, and easements, agreements,
restrictions and other matters of record, which, to the extent
within Vendor's knowledge, are disclosed or referenced in the Deed.
2. All matters disclosed in the Survey.
3. All matters more particularly described in Exhibit B attached hereto
and made a part hereof.
4. The rights of the Tenants (as hereinafter defined).
Vendor has not executed, or permitted anyone in Vendor's behalf to
execute, any conveyance, mortgage, lien, lease, security agreement, financing
statement or encumbrance of or upon the Real Estate or any fixtures attached
thereto, except as stated above, which is now outstanding or enforceable against
the Real Estate. Vendor has made no contract to sell all or a part of the Real
Estate to any person other than the Purchaser, and Vendor has not given to any
person an option to purchase all or any part of the Real Estate, which is
enforceable or exercisable now or at any time in the future. There are no unpaid
claims for labor done upon or materials furnished for the Real Estate by or on
behalf of Vendor in respect of which liens have been or may be filed and there
have been no improvements or repairs made to the Real Estate during the 120 days
preceding the date hereof that have not been paid in full.
Affidavit of Title
SHP/Renaissance Portfolio Contract
There is no judgment against Vendor of any court of the State of
California or of any court of the United States that is or may become a lien on
the Real Estate. No petition for bankruptcy has been filed by or against Vendor
within the last six months, nor is any petition now pending with respect to
Vendor for bankruptcy, insolvency or incompetency. Vendor is neither principal
nor surety on any bond payable to the State of California.
The Real Estate is now in possession of Vendor, subject to the rights of
the tenants in possession identified on Exhibit C under their respective written
leases (the "Tenants"), and no other person has a right to possession or claims
possession of all or any part of the Real Estate arising by, through or under
Vendor.
Vendor will deliver possession of the Real Estate to Purchaser on or
before the date of closing, free and clear of any right or claim to the
possession of the Real Estate of any person claiming by, through or under
Vendor, except the Tenants.
This Affidavit is given to, and may be relied on by, only the Title
Company in connection with the issuance of the Title Policy referred to in the
Commitment, and by no other party and for no other purpose.
Certified, sworn to and
subscribed before me this
___ day of ____________, 2005. [SELLER: ____________________], a Delaware
limited liability company
______________________________ By: SENIOR HOUSING PARTNERS I, L.P., a
Notary Public Delaware limited partnership, as the sole
Managing Member thereof
My Commission Expires: By: Senior Housing Partners I, L.L.C., a
Delaware limited liability company, as
______________________________ the sole General Partner thereof
(NOTARIAL SEAL) By: The Prudential Insurance
Company of America, a New
Jersey corporation, as the sole
Managing Member thereof
By:
---------------------------
Name: Xxxx X. Dark
Title: Vice President
Affidavit of Title
SHP/Renaissance Portfolio Contract
-2-
EXHIBIT A
LEGAL DESCRIPTION
Affidavit of Title
SHP/Renaissance Portfolio Contract
-3-
EXHIBIT B
PERMITTED TITLE EXCEPTIONS
1. Real Estate Ad Valorem Taxes for the year 2005 and subsequent years, not
yet due and payable.
2. All other matters of record recorded or filed in the applicable records of
[County: _________________] County, California with respect to the real
property conveyed hereby.
3. Rights of tenants (and subtenants) and/or lessees (and sublessees) in
possession under any recorded or unrecorded leases or rental agreements,
as listed on Exhibit C.
Affidavit of Title
SHP/Renaissance Portfolio Contract
-4-
EXHIBIT C
LIST OF TENANTS
Affidavit of Title
SHP/Renaissance Portfolio Contract
-5-
EXHIBIT M
(TO PURCHASE AND SALE AGREEMENT)
BUYER'S ERISA REPRESENTATION (QPAM)
[Closing Date: _________________]
[Seller: ____________________]
c/o Prudential Real Estate Investors
Xxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
RE: Sale of [Property Name: _____________________], [Property Address:
_____________________], [Property City: _____________________], [County:
_________________] County, California (the "Property")
Ladies and Gentlemen:
In connection with the above referenced Sale and in order to satisfy compliance
with The Employee Retirement Income Security Act of 1974, as amended, the
undersigned (hereinafter referred to as "Buyer") represents and warrants to
Seller (and, if The Prudential Insurance Company of America ("Prudential") is
not the Seller, to Prudential), as follows:
(1) Buyer is not an employee pension benefit plan subject to the
provisions of Title IV of ERISA or subject to the minimum funding
standards under Part 3, Subtitle B, Title I of ERISA or Section 412
of the Internal Revenue Code or Section 302 of ERISA, and none of
its assets constitutes or will constitute assets of any such
employee benefit plan subject to Part 4, Subtitle B, Title I of
ERISA.
(2) Buyer is not a "governmental plan" within the meaning of Section
3(32) of ERISA and the funds used by Buyer to acquire the Property
are not subject to state statutes regulating investments of and
fiduciary obligations with respect to governmental plans.
(3) Neither the undersigned nor any of its affiliates (within the
meaning of Part V(c) of Prohibited Transaction Exemption 84-14
granted by the U.S. Department of Labor ("PTE 84-14")) has, or
during the immediately preceding year has exercised, the authority
to appoint or terminate Seller (or, if Prudential is not the Seller,
Prudential) as investment manager of any assets of the employee
benefit plans whose assets are held by Seller (or, if Prudential is
not the Seller, Prudential) or to negotiate the terms of any
management agreement with Seller (or, if Prudential is not the
Seller, Prudential) on behalf of any such plan.
(4) The transaction contemplated hereunder is not specifically excluded
by Part I(b) of PTE 84-14);
Buyer's ERISA Certificate
SHP/Renaissance Portfolio Contract
(5) Buyer is not a related party of Seller (or, if Prudential is not
Seller, Prudential) (as defined in Part V(h) of PTE 84-14);
(6) The terms of the transaction contemplated hereunder have been
negotiated and determined at arm's length, as such terms would be
negotiated and determined by unrelated parties; and
(7) Neither Buyer nor its affiliates (as described in Part V(c) of PTE
84-14) manages or has any discretionary authority with respect to
any of the assets of Prudential which are being used to effect this
transaction.
[PURCHASER: _______________________],
[Purchaser: a ______________________]
By:________________________________________
Name:_________________________________
Title:________________________________
[PURCHASER ASSIGNEE: ____________________],
[Assignee: a _______________________]
By:________________________________________
Name:___________________________________
Title:__________________________________
Buyer's ERISA Certificate
SHP/Renaissance Portfolio Contract
-2-
EXHIBIT N
(TO PURCHASE AND SALE AGREEMENT)
NOTICES REGARDING LITIGATION, CONTRACT DEFAULTS AND
GOVERNMENTAL VIOLATIONS (IF ANY)
1. California Public Interest Group, Inc. v Altera Healthcare, et al (the
properties are part of a class action suit)
2. Xxxx Ranch (city is requiring a new Plan Check to verify that the property
is compliant with R2.1 standards)
3. Workmans Comp claims
Seller has provided Purchaser with a two lists summarizing of all
potential workers comp claims known to Seller which lists are incorporated
by reference
List 1- dated 12/29/2004 prepared by Xxxxx Services Inc summarizing
potential claims through 12/17/2004
List 2 - dated 02/02/2004 prepared by Majestic Insurance entitled "Claims
Management Report summarizing potential claims after 12/17/2004
Notices Regarding Litigation, Contract Defaults and Governmental Violations
SHP/Renaissance Portfolio Contract
EXHIBIT O
(TO PURCHASE AND SALE AGREEMENT)
LIST OF TENANTS (RENT ROLL)
List of Tenants (Rent Roll)
SHP/Renaissance Portfolio Contract
EXHIBIT P
(TO PURCHASE AND SALE AGREEMENT)
DUE DILIGENCE MATERIALS
1) Section 1. Building & Zoning
a) Final Occupancy Certificates
b) Original Building Permits, if available
c) Any letters or documentation regarding Code Violations & Citations
2) Section 2. ALTA Survey and Title Endorsements
a) ALTA/ACSM Land Title Survey, including Table A Requirements, Items
1-4, 6-7(b), 8-11,13.
3) Section 3. Operating Information
a) Business and/or Operating Licenses and Permits
b) Copy of all resident agreements/leases
c) Copy of all commercial leases
d) Insurance summary, including limits, deductibles, certificates for
each policy
e) Workers Compensation Program Type
f) Insurance loss history for the previous 2 years (for all insurance
policies)
g) Property Tax Bills with Valuations (past 3 yrs.)
h) Current Rent Schedule
i) Unit number or ID
ii) Tenant's Name
iii) Unit Type (IL/AL/SNF/dementia, No. of Beds and Baths)
iv) Square footage
v) Current Market/street rental rates, including service premiums
& care levels
vi) Monthly Rent
vii) Other fess (2nd person, pet, care levels, etc.)
viii) Lease commencement date
ix) Lease expiration date
x) Amount of security deposit held
i) List of residents currently receiving personal care assistance
services through facility and/or outside vendor
j) List of - residents that are temporary - in respite program,
short-term stay program, modified lease arrangement, etc.
k) List and Copies of Existing Service Contracts, Leases and Vendor
Agreements
l) Personal Property Schedule (FF&E)
m) List of all Employees with the following for each employee:
i) Job Titles / Descriptions
ii) Current Salaries/wages
iii) Hours worked - Typical Week & Total for prior calendar year
and trailing 12 mos.
Due Diligence Materials
SHP/Renaissance Portfolio Contract
iv) For Sales and Marketing Staff include resumes, length of
employment, and compensation and bonus plans.
n) Most recent payroll register
o) Staffing Plans, including responsibilities of each position
p) Employee handbook and/or information regarding benefit eligibility,
life insurance coverage, short and long term disability insurance,
medical, prescription, dental, and vision coverage including
premiums, vacation, sick time, personal time, holidays, employee
assistance program, tuition reimbursement program, service
recognition program
q) All warranties (including, without limitation, the roof warranty),
indemnitities and other contractual rights in connection with the
ownership, operation and management of the Property, including any
such items in respect of Yr. 2000 matters.
r) Results of the Facility inspection reports performed by the
applicable governmental regulatory agency for the past 3 yrs.
s) Copies of any notices and/or documents relating to any EEOC claims
or lawsuits filed in the past 5 years alleging discrimination or
unfair treatment.
t) All data related to past and on-going negotiations with any Labor
Organizations (if applicable).
u) Copies of all electric, gas, water, sewer, tv, cable bills.
4) Section 4. Financial Information
a) Monthly Detailed Operating Statements (Trailing 24 Months)
b) Year- End Detailed Operating Statements (Past 3 Years)
c) Current Year (2005) and 2004 Budgets
d) Historical Capital Expenditures (Past 3 Years)
e) Annual Avg. Historical Occupancy (Past 3 Years)
f) Monthly Historical Occupancy (Prior 2 Calendar years & Trailing 24
Mos.)
g) Historical Monthly Turnover Schedule (Prior 2 Calendar years &
Trailing 24 Mos.). Include number of and reason for move outs by
month.
h) Sample menus
5) Section 5. Architectural/Engineering/Environmental
a) Copies of past Geotechnical and Seismic Reports (if available).
b) Copies "As-built" Architectural, Structural and MEP (on-site
availability is acceptable)
c) Copies of past Termite reports / Pest Inspections / Certifications
(if available)
d) Copies of past Physical Property Inspection Reports (report on
property condition)
e) Number of Parking Spaces.
f) Copies of past Phase I Environmental Reports
g) Section 7. Market Analysis - Profile of current residents - age,
gender mix, previous location, marital status, marketing source,
influencer involvement, and average length of residency. At a
minimum, list of previous addresses (street, city, state and zip
code) for current residents and their influencers.
h) Copies of marketing plans and budgets (Past 2 Years)
i) List of top 20 referral sources
Due Diligence Materials
SHP/Renaissance Portfolio Contract
j) Marketing and sales reports used for tracking marketing events,
advertising, closing ratios, tours, deposits, etc.
k) Profile of current active lead bank - size/number of l - ads, any
profile information - age, gender mix, previous location, marital
status, marketing source, current location
l) Procedures/forms used for tracking leads
m) Copies of any 3rd party market feasibility reports (if available)
6) Section 8. Collateral Materials
a) All Floor Plans, Brochures and Materials
b) Copy of Current Lease Forms
c) Current Credit Check Forms
d) Copies of current yellow page advertisements for all directories and
corresponding directory order information
e) Current Advertising Program
f) List of Member Associations & Schedule of Advertising
7) Section 9. Assisted Living, Skilled Nursing, Dementia Licensing (if
applicable or available)
a) Copies of all licenses (assisted living, home care, dementia care,
Medicaid waivers, Medicare/Medicaid certification)
b) Copies of initial survey reports and subsequent surveys, if any
c) Copies of any complaint reports (or State activity against facility)
d) Copies of Plans of Correction (POC) addressing previous survey
results
e) Staffing patterns (current AL FTEs)
f) Assisted Living Collateral Materials (price sheet and service
descriptions)
g) Copy of Administrator's License
h) Copy of Administrator's Resume (credentials)
i) Inservice training plans/records
j) Copy of Disaster Plan and Evacuation Routes
k) Copy of Activity Calendars for past 12 months
l) Records of Staff Orientation
m) Information on on-site outside providers (i.e., Home Care Agencies,
if applicable)
n) Record of Administrator/Direct Care Staff Criminal Background
Checks, if applicable
o) Record of fingerprinting for Administrator and other applicable
staff, if required
p) Record of health clearance for Administrator and other applicable
staff, if required
Due Diligence Materials
SHP/Renaissance Portfolio Contract
EXHIBIT Q
(TO PURCHASE AND SALE AGREEMENT)
GROUND LEASE ESTOPPEL CERTIFICATE
THIS ESTOPPEL CERTIFICATE ("Certificate"), dated as of the ____ day of
___________________, 2005, is executed by RSZ Partnership, a California general
partnership ("Landlord"), in favor of ________________________________, a
____________________________ ("Assignee").
RECITALS
A. Xxxxxxx Xxxxx and Xxxxx Xxxxx (collectively, the "Original Landlord")
and Ocean House Investment Company, a general partnership ("OHIC"), entered into
(i) that certain Lease, dated as of July 15, 1983 (the "Original Lease"), and
(ii) that certain Letter Agreement, dated as of July 15, 1983 (the
"Amendment")(the Original Lease, the Amendment and all previous amendments,
assignments, modifications and supplements as set forth in Section 1, below, the
"Ocean House Lease"), for certain premises commonly known as "Ocean House"
located in 0000 Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx, as more particularly
described on Exhibit A attached hereto (the "Ocean House Project").
B. Landlord is the Original Landlord's successor-in-interest, as landlord,
under the Ocean House Lease. SHP Ocean House, LLC a Delaware limited liability
company, as tenant ("SHP"), is OHIC's successor-in-interest, as tenant under the
Ocean House Lease.
C. Landlord has been informed that SHP, as "Seller", and Assignee, as
"Buyer", have entered into that certain Agreement for Purchase and Sale, dated
as ___________, 2005 (the "Purchase Agreement"), whereby Assignee has agreed,
among other things, to assume SHP's obligations under the Ocean House Lease.
D. Pursuant to Article 28 of the Lease, Landlord has agreed that upon the
tenant's request, Landlord would execute and deliver an estoppel certificate as
specified therein.
E. In connection with the Purchase Agreement, SHP, as tenant, has
requested that Landlord execute this Certificate.
NOW THEREFORE, Landlord hereby certifies, warrants and represents to
Assignee as follows:
AGREEMENT
1. The Ocean House Lease has not been amended, modified or supplemented
except as follows: (a) the Amendment to Lease (Letter) dated July 15, 1983, (b)
the Assignment of the
Ground Lease Estoppel
SHP/Renaissance Portfolio Contract
Ocean House Lease dated June 15, 1984 between Ocean House Investment Company, a
general partnership, and Senior Inns of America Venture ("SIA"), the Assignment
of the Ocean House Lease dated March 23, 1987 between SIA and Shearson August
Property Partnership ("XXXX"), (d) the assignment documents providing for the
transfer of Landlord's interest to RSZ Partnership, (e) the Lease Assignment,
dated October 13, 1998, made and entered into between Senior Income Fund L.P., a
Delaware limited partnership ("SIF") and MBK Senior Living Communities, Ltd.
("MSLC"), (f) Lessor Estoppel Certificate and Addendum given to The Sumitomo
Bank, Limited, by Landlord, dated September 9, 1998, (g) a letter agreement,
dated October 9, 1998, from The Sumitoto Bank, Ltd. and the Landlord, (h) the
Escrow and Security Agreement (Earthquake Repair Account), dated as of September
25, 1998, by MSLC, as tenant, Landlord and The Sumitomo Bank, Limited (the
"Earthquake Escrow Agreement"), (i) Subordination, Non-Disturbance and
Attornment Agreement, dated as of May 1, 1987, (j) an Amendment to
Subordination, Non-Disturbance and Attornment Agreement, dated as of September
25, 1998, among MSLC, Landlord and City National Bank, along with the
Subordination Agreement, as defined therein, and (k) Lease Assignment, dated
December 5, 2000 between MBK Senior Living Communities, Ltd. And SHP Ocean
House, LLC, and the Ocean House Lease as so amended, modified and supplemented
represents the entire agreement between Landlord and tenant with respect to the
use, occupancy and maintenance of the Ocean House Project. Landlord has not
transferred, conveyed, assigned, mortgaged or otherwise encumbered any of its
right, title or interest in the Ocean House Project or the Ocean House Lease.
2. The "Term Commencement Date" of the Ocean House Lease (as such term is
defined therein) is August 1, 1983 and the initial term of the Ocean House Lease
expires __________, 20_____. The tenant has the right to extend the term for
_______________. All rentals and other payments to be made under the Ocean House
Lease have been paid to and including _________, 2005.
3. As of the date hereof, the Ocean House Lease is in full force and
effect and has not been terminated. SHP, as tenant, is not in default and
Landlord is not aware of any event which might (with the giving of notice or the
passage of time, or both) constitute a default under the Ocean House Lease.
4. Annual rent is currently $________________ and is next subject to
readjustment on _______________, 200___.
5. Notwithstanding any provision of the Ocean House Lease to the contrary,
Landlord hereby consents to (a) the assignment of the Ocean House Lease to
Assignee, (b) the management of the Ocean House Project by ___________________,
and (c) any transfer to or by any leasehold mortgagee or its designee or any
purchaser at a foreclosure sale subsequent to a foreclosure of the leasehold
deed of trust or delivery of a deed-in-lieu thereof, subject to and in
accordance with the provisions of Section 18 of the Ocean House Lease.
6. Pursuant to Section 18 of the Ocean House Lease, immediately upon
confirmation in writing by any leasehold mortgagee to Landlord at the address
set forth in the Ocean House Lease that a deed of trust has been executed, such
leasehold mortgagee shall have all of the rights
Ground Lease Estoppel
SHP/Renaissance Portfolio Contract
and privileges of a leasehold mortgagee under the Ocean House Lease.
Notwithstanding any provision of the Ocean House Lease to the contrary, if
Lessor gives a termination notice under the Ocean House Lease it will
concurrently give such notice to such leasehold mortgagee at the following
address.
_____________________________
_____________________________
_____________________________
_____________________________
as such other address as may be specified by notice to Landlord. No agreement
between Landlord and tenant modifying, amending, canceling, terminating or
surrendering the Ocean House Lease, or any part thereof, shall be effective
without the prior written consent of such leasehold mortgagee.
7. Landlord agrees to give all notices given to Assignee, as tenant under
the Ocean House Lease at the following addresses:
if to tenant:
FIT REN LLC
c/o Fortress Investment Group LLC
1251 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
and will give a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Nothing herein shall be deemed to provide any release of SHP from any
obligations under the Ocean House Lease. Nothing contained herein shall, or nor
shall the delivery of this Certificate, alter, modify or waive the terms of
Section 28 of the Ocean House Lease, nor shall the form or substance thereof
provide a precedent for any future statements or certificates pursuant to such
Section.
Landlord makes this Certificate with the knowledge that it will be relied
upon by Assignee in agreeing to assume the Ocean House Lease, by
________________ Title Insurance Company, and by
_____________________________________, or any lender who make a loan which is
secured in whole or in part by Assignee's interest in the Ocean House Lease, and
by their successors and assigns. Landlord has executed this Certificate as of
the date first written above.
Ground Lease Estoppel
SHP/Renaissance Portfolio Contract
LANDLORD:
RSZ PARTNERSHIP, a California partnership
By: /s/ Xxxxx X. Xxxxx
------------------------------------------------
Xxxxx X. Xxxxx
By: /s/ Xxxxx Xxxxx
--------------------------------
Xxxxx Xxxxx
By: /s/ Xxxxxx Xxxxxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxxxxx
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Xxxxx Xxxxxxx
Ground Lease Estoppel
SHP/Renaissance Portfolio Contract
EXHIBIT R
(TO PURCHASE AND SALE AGREEMENT)
LIST OF LICENSES AND PERMITS
1. State of California - Department of Social Services (DSS) Assisted Living
Licenses for the following communities.
a. The Gables
b. Inn at the Park
c. The Lexington
d. Mirage Inn
x. Xxxx Ranch Inn
f. Oak Tree Villa
g. Ocean House
2. DSS Residential Elderly Administrator's License for the following:
a. Xxxxxxx XxXxxxx - The Gables
b. Xxxx Xxxxxx - Mirage Inn
c. Xxxxxxxx Xxxxxx - Xxxx Ranch Inn
d. Xxxxxx Xxxxxx - The Lexington
e. Xxxxxxx Xxxxx-Xxx - Oak Tree Villa
f. Xx Xxxxx - Ocean House
g. Xxxxxxx Xxxxxxx - Inn at the Park
3. Certificates of Occupancy for all communities, except Xxxxxx Creek.
4. Inn at the Park License and Permits provided to Brookdale:
x. Xxxx 1999 vehicle registration
b. Mercury 2003 vehicle registration
c. Elevator permit - conveyance number 088952
d. Elevator permit - conveyance number 088953
e. Elevator permit - conveyance number 088954
f. Beauty Salon operating permit
5. Oak Tree Villa License and Permits provided to Brookdale:
x. Xxxx 1997 vehicle registration
x. Xxxxx 1996 vehicle registration
c. Elevator permit - conveyance number 088182
d. Elevator permit - conveyance number 088183
e. Elevator permit - conveyance number 088184
f. Elevator permit - conveyance number 088185
g. Elevator permit - conveyance number 088186
6. Ocean House License and Permits provided to Brookdale:
x. Xxxx 1996 vehicle registration
x. Xxxx 2000 vehicle registration
c. Elevator permit - conveyance number 036858
d. Elevator permit - conveyance number 036859
List of Licenses and Permits
SHP/Renaissance Portfolio Contract
7. Mirage Inn License and Permits provided to Brookdale:
a. Elevator permit - conveyance number 118001 Expired 6/25/04 -
(Renaissance in progress of obtaining current ones)
b. Elevator permit - conveyance number 118002 Expired 6/25/04 -
(Renaissance in progress of obtaining current ones)
c. Elevator permit - conveyance number 118003 Expired 6/25/04 -
(Renaissance in progress of obtaining current ones)
d. Elevator permit - conveyance number 118004 Expired 6/25/04 -
(Renaissance in progress of obtaining current ones)
e. Certificate of Occupancy
x. Xxxxxxx 2000 vehicle registration
x. Xxxxx 1999 vehicle registration
8. Xxxx Ranch Inn License and Permits provided to Brookdale:
x. Xxxx 1996 vehicle registration
b. Anaheim Fire Department Fire Code Permit
c. Elevator permit - conveyance number 085017
d. Elevator permit - conveyance number 085018 - Expired
6/16/2004(Renaissance in progress of obtaining a current one)
9. Pacific Inn License and Permits provided to Brookdale:
a. Supra 1997 vehicle registration
b. Champ 2002 vehicle registration
c. Elevator permit - conveyance number 084737
d. Elevator permit - conveyance number 084738
e. Certificate of Occupancy
f. City of Torrance Health Permit
g. City of Torrance Business License
10. The Gables License and Permits provided to Brookdale:
x. Xxxx 2001 vehicle registration
b. Elevator permit - conveyance number 094072
11. Xxxxxx Creek License and Permits provided to Brookdale:
a. Dodge 2000 vehicle registration
x. Xxxx 2004 vehicle registration
x. Xxxx 1992 vehicle registration
d. Elevator permit - conveyance number 096321
e. Elevator permit - conveyance number 096322
f. Elevator permit - conveyance number 096323
g. Elevator permit - conveyance number 096433
h. Elevator permit - conveyance number 096434
i. Two City of Santa Xxxx Fire Department Consolidated Permit to
Operate
j. County of Sonoma Dept of Health Services Retail Food Facility Permit
k. Beauty salon operators permit
List of Licenses and Permits
SHP/Renaissance Portfolio Contract
12. The Lexington License and Permits provided to Brookdale:
x. Xxxx 1991 vehicle registration
b. Mercury 2000 vehicle registration
c. Elevator permit - conveyance number 099048
d. Elevator permit - conveyance number 099268
e. Elevator permit - conveyance number 099269
f. Certificate of Occupancy
g. Beauty salon operators permit
List of Licenses and Permits
SHP/Renaissance Portfolio Contract
EXHIBIT S
(TO PURCHASE AND SALE AGREEMENT)
FORMS OF SNF ESTOPPEL
LEASE ESTOPPEL CERTIFICATE
VICTORIA CARE CENTER
THIS ESTOPPEL CERTIFICATE ("Certificate") is made by Xxxxxxx
Enterprises-California, Inc., a California corporation ("Tenant") in favor of
________________________, a _______________ limited partnership (the "Landlord')
and _______________________, a _______________ limited partnership, and its
successors and assignees ("Purchaser").
A. Landlord is the owner of certain real property and a nursing home
located thereon known as the Victoria Care Center, a 188 bed long-term
care nursing facility located at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000 (the "Facility", as hereinafter more fully defined and
described), and Tenant leased the Facility and certain personal property
located thereon which is owned by Landlord (the "Personal Property"), from
Landlord on the terms, conditions, covenants and agreements in a Lease
(Skilled Nursery Facility) by and between Landlord and Tenant dated
November 10, 1998, which is attached hereto and incorporated herein as
Exhibit A, which lease was supplemented by that certain Lease Commencement
Supplement dated January 1, 1999, which is attached hereto and
incorporated herein as Exhibit B, that certain Transition Agreement dated
October 26, 1998 which is attached hereto and incorporated herein as
Exhibit C and that certain Guaranty by Xxxxxxx Enterprises, Inc. dated
November 10, 1998, which is attached hereto and incorporated herein as
Exhibit D (as so supplemented, the "Lease"). All defined terms as used
herein shall have the same meaning as in the Lease unless otherwise
specifically defined herein.
B. Pursuant to that certain Sublease Agreement dated October 31,
2003, which is attached hereto as Exhibit E (the "Sublease"), Tenant, as
Sublandlord, subleased all of Tenant's interest in the Lease to Ventura
Investments, L.P., a California limited partnership (the "Subtenant") with
Longwood Management Corporation, a California corporation, as Guarantor.
Subtenant subleased Subtenant's interest in the Sublease pursuant to that
certain Second Sublease Agreement dated November 1, 2003, attached hereto
as Exhibit F (the "Second Sublease"), to Xxxxxxxx Xxxxxxx Healthcare LLC,
a Nevada limited liability company (the "Second Subtenant") with The
Ensign Group, Inc., a Delaware corporation, as Guarantor.
C. Landlord is also the owner of certain real property and an
assisted living facility located thereon known as the Victorian, at 0000
Xxxxxxx Xxxxxx Xxxxxxx, Xxxxxxxxxx 00000 (the "Adjoining Property," as
hereinafter more fully defined and described) the Facility and the
Adjoining Property are herein collectively referred to as the "Combined
Premises").
SNF Estoppel
SHP/Renaissance Portfolio Contract
D. Landlord intends to sell the Combined Premises and assign the
Lease to Purchaser. In connection with the sale, the Purchaser has
requested this Certificate.
The undersigned Tenant hereby acknowledges for the benefit of the
Landlord, Purchaser, any title insurance company insuring the Combined Premises
any lender making a loan secured by the Combined Premises, and their respective
successors and assigns, the following:
1. The Lease sets forth the entire agreement between Tenant and Landlord
with respect to the leasing of the Facility and, other than the Sublease and the
Second Sublease, there are no other agreements, modifications or amendments,
written or oral, which affect Tenant's occupancy of the Facility.
2. Each of the Lease and Sublease has been duly authorized, executed and
delivered by Tenant is in full force and effect, and is binding on the Tenant,
and has not been modified, changed altered or amended.
3. Second Subtenant is in possession of, and occupies the Facility for the
purposes permitted under the Lease. The Landlord has fully performed all
construction obligations, if any, under the Lease and Tenant has received all
tenant improvement allowances or other construction funds, if any, payable by
Landlord under the Lease.
4. The Term of the Lease commenced on January 1, 1999, and will expire on
December 31, 2013. Tenant has no right to renew or extend the Term of the Lease
or any expansion rights under the Lease, except that Tenant has the right to
renew and extend this Lease for three (3) additional five (5) year terms under
Section 1.02 of the Lease.
5. Notwithstanding any provision of the Lease to the contrary, including,
without limitation, Article 29 of the Lease, Tenant hereby acknowledges and
agrees that it no longer has any rights pursuant to Article 29 of the Lease and
has no right of first offer, right of first refusal or similar right to purchase
the Combined Premises.
6. No security deposit has been deposited with Landlord.
7. No Monthly Rent, Impositions, Additional Rent or charges payable under
the Lease have been paid more than one (1) month in advance. All Monthly Rent,
Impositions, Additional Rent or other charges under the Lease have been paid
through ________, 2005.
8. The current Monthly Rent payable under the Lease is
_____________________ Dollars ($___________.00).
9. Tenant is not the subject of any pending bankruptcy, insolvency,
debtor's relief, reorganization, receivership, or similar proceedings, nor the
subject of a ruling with respect to any of the foregoing
10. Tenant has not made any agreement with Landlord or any agent,
representative or employee of Landlord concerning free rent, partial rent,
rebate of rental payments or any other
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SHP/Renaissance Portfolio Contract
similar rent concession. Tenant is not entitled to any credit, setoff, defense
or counterclaim against any rent or other charge or rent concession under the
Lease except as set forth in the Lease.
11. The interest of Tenant in the Lease has not been assigned or
encumbered, other than pursuant to the Sublease and the Second Sublease.
12. There exists no defense to, or right of offset against, enforcement of
the Lease by Landlord. There are no uncured defaults by Landlord or Tenant under
the Lease and the undersigned knows of no events or conditions which with the
passage of time or notice or both, would constitute a default by Landlord or
Tenant under the Lease.
13. No guarantor of the Lease has been released or discharged, voluntarily
or involuntarily, or by operation of law from any obligation under or in
connection with the Lease.
14. Tenant hereby consents to the purchase of the Combined Premises by
Purchaser and the encumbrancing of the Combined Premises by any lender(s)
selected by Purchaser. Further, Tenant hereby consents to Purchaser entering
into a management agreement ("Management Agreement") with BLC Lexington, L.P.
("Manager") and acknowledges that Manager shall be obligated on and responsible
for all of the duties, responsibilities and obligations of the "ASL Operator"
during the term of the Management Agreement.
15. Tenant confirms that it has obtained and maintains all necessary
licenses from the State of California Department of Health Services or such
other agencies or government instrumentalities as are necessary to operate the
Facility and Tenant has not received notice of any violations from the
California Department of Social Services or any other governmental authority,
which have not been cured. Tenant has not received any notice of any violation
of any federal, state, county or municipal laws, regulations, or ordinances,
orders or directives relating to the use or condition of the Facility, which
violation remains uncured.
It is understood that Landlord is relying on this Certificate and that
this Certificate will also be relied upon by Purchaser, the title insurance
company insuring the title to the Combined Premises, and any lender who will
make a loan to be secured by a deed of trust on the Combined Premises and all of
their respective successors and assigns. Tenant acknowledges the right of
Purchaser, any lender of Purchaser, and any title insurance company to rely upon
the statements and representations of Tenant contained in this Certificate.
This Certificate has been executed effective as of ______________, 2005
"Tenant"
XXXXXXX ENTERPRISES-CALIFORNIA, INC.,
a California corporation
By:__________________________________
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SHP/Renaissance Portfolio Contract
Its:_________________________________
THE UNDERSIGNED GUARANTOR OF THE LEASE ACKNOWLEDGES AND CONFIRMS THE TRUTH AND
ACCURACY OF ALL OF THE MATTERS SET FORTH IN THE CERTIFICATE AND AGREES TO BE
BOUND BY ALL SUCH MATTERS.
XXXXXXX ENTERPRISES, INC., a Delaware
corporation
By:__________________________________
Its:_________________________________
By:__________________________________
Its:_________________________________
SNF Estoppel
SHP/Renaissance Portfolio Contract
SUBLEASE ESTOPPEL CERTIFICATE
VICTORIA CARE CENTER
THIS ESTOPPEL CERTIFICATE ("Certificate") is made by Ventura Investments,
L.P., a California limited partnership ("Subtenant") in favor of Xxxxxxx
Enterprises-California, Inc., a California corporation (the "Prime Tenant") and
_______________________, a _______________ limited partnership, and its
successors and assignees ("Purchaser").
A. _______________, a ________________________ (the "Owner") is the owner of
certain real property and a nursing home located thereon known as the
Victoria Care Center, a 188 bed long-term care nursing facility located at
0000 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (the "Facility", as
hereinafter more fully defined and described), and Prime Tenant leased the
Facility and certain personal property located thereon which is owned by
Owner (the "Personal Property"), from Owner on the terms, conditions,
covenants and agreements in a Lease (Skilled Nursery Facility) by and
between Owner and Prime Tenant dated November 10, 1998, which is attached
hereto and incorporated herein as Exhibit A, which lease was supplemented
by that certain Lease Commencement Supplement dated January 1, 1999, which
is attached hereto and incorporated herein as Exhibit B, that certain
Transition Agreement dated October 26, 1998 which is attached hereto and
incorporated herein as Exhibit C and that certain Guaranty by Xxxxxxx
Enterprises, Inc. dated November 10, 1998, which is attached hereto and
incorporated herein as Exhibit D (as so supplemented, the "Lease"). All
defined terms as used herein shall have the same meaning as in the Lease
unless otherwise specifically defined herein.
B. Pursuant to that certain Sublease Agreement dated October 31, 2003, which
is attached hereto as Exhibit E (the "Sublease"), Prime Tenant, as
Sublandlord, subleased all of Prime Tenant's interest in the Lease to
Subtenant, with Longwood Management Corporation, a California corporation,
as Guarantor. Subtenant subleased Subtenant's interest in the Lease
pursuant to that certain Second Sublease Agreement dated November 1, 2003,
attached hereto as Exhibit F (the "Second Sublease"), to Xxxxxxxx Xxxxxxx
Healthcare LLC, a Nevada limited liability company (the "Second
Subtenant") with The Ensign Group, Inc., a Delaware corporation, as
Guarantor.
C. Owner is also the owner of certain real property and an assisted living
facility located thereon known as the Victorian, at 0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000 (the "Adjoining Property," as hereinafter more
fully defined and described) the Facility and the Adjoining Property are
herein collectively referred to as the "Combined Premises").
D. Owner intends to sell the Combined Premises and assign the Lease to
Purchaser. In connection with the sale, the Purchaser has requested this
Certificate.
The undersigned Subtenant hereby acknowledges for the benefit of the
Owner, Prime Tenant and Purchaser, any title insurance company insuring the
Combined Premises any lender making a loan secured by the Combined Premises, and
their respective successors and assigns, the following:
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SHP/Renaissance Portfolio Contract
1. The Lease sets forth the entire agreement between the Prime Tenant and
Owner and the Sublease sets forth the entire agreement between the Prime Tenant
and the Subtenant with respect to the leasing of the Facility and, other than
the Second Sublease, there are no other agreements, modifications or amendments,
written or oral, which affect Subtenant's occupancy of the Facility.
2. Each of the Sublease and Second Sublease has been duly authorized,
executed and delivered by Subtenant is in full force and effect, and is binding
on the Subtenant, and has not been modified, changed altered or amended.
3. Second Subtenant is in possession of, and occupies the Facility for the
purposes permitted under the Lease.
4. The Term of the Sublease commenced on October 31. 2003, and will expire
on December 31, 2013. Subtenant has no right to renew or extend the Term of the
Sublease or any expansion rights under the Sublease.
5. No security deposit has been deposited with Owner.
6. No Monthly Rent, Impositions, Additional Rent or charges payable under
the Sublease have been paid more than one (1) month in advance. All Monthly
Rent, Impositions, Additional Rent or other charges under the Sublease have been
paid through ________, 2005.
7. The current Monthly Rent payable under the Sublease is
_____________________ Dollars ($___________.00).
8. Subtenant is not the subject of any pending bankruptcy, insolvency,
debtor's relief, reorganization, receivership, or similar proceedings, nor the
subject of a ruling with respect to any of the foregoing
9. Subtenant has not made any agreement with Owner, Prime Tenant, any
agent, representative or employee of either concerning free rent, partial rent,
rebate of rental payments or any other similar rent concession. Subtenant is not
entitled to any credit, setoff, defense or counterclaim against any rent or
other charge or rent concession under the Sublease.
10. The interest of Subtenant in the Sublease has not been assigned or
encumbered, other than pursuant to the Second Sublease.
11. There exists no defense to, or right of offset against, enforcement of
the Sublease by Prime Tenant. There are no uncured defaults by Prime Tenant or
Subtenant under the Sublease and the undersigned knows of no events or
conditions which with the passage of time or notice or both, would constitute a
default by Prime Tenant or Subtenant under the Sublease.
12. Subtenant confirms that it has obtained and maintains all necessary
licenses from the State of California Department of Health Services or such
other agencies or government instrumentalities as are necessary to operate the
Facility and Subtenant has not received notice of any violations from the
California Department of Social Services or any other governmental authority,
which have not been cured. Subtenant has not received any notice of any
violation of
SNF Estoppel
SHP/Renaissance Portfolio Contract
any federal, state, county or municipal laws, regulations, or ordinances, orders
or directives relating to the use or condition of the Facility, which violation
remains uncured.
It is understood that Owner is relying on this Certificate and that this
Certificate will also be relied upon by Purchaser, the title insurance company
insuring the title to the Combined Premises, and any lender who will make a loan
to be secured by a deed of trust on the Combined Premises and all of their
respective successors and assigns. Subtenant acknowledges the right of
Purchaser, any lender of Purchaser, and any title insurance company to rely upon
the statements and representations of Subtenant contained in this Certificate.
This Certificate has been executed effective as of ______________, 2005
"Subtenant"
VENTURA INVESTMENTS, L.P., a California
limited partnership
By:______________________________________
Its:_____________________________________
THE UNDERSIGNED GUARANTOR OF THE SUBLEASE ACKNOWLEDGES AND CONFIRMS THE TRUTH
AND ACCURACY OF ALL OF THE MATTERS SET FORTH IN THE CERTIFICATE AND AGREES TO BE
BOUND BY ALL SUCH MATTERS.
LONGWOOD MANAGEMENT CORPORATION,
a California corporation
By:______________________________________
Its:_____________________________________
SNF Estoppel
SHP/Renaissance Portfolio Contract
SECOND SUBLEASE ESTOPPEL CERTIFICATE
VICTORIA CARE CENTER
THIS ESTOPPEL CERTIFICATE ("Certificate") is made by Xxxxxxxx Xxxxxxx
Healthcare, LLC, a Nevada limited liability company ("Second Subtenant"), in
favor of Ventura Investments, L.P., a California limited partnership (the
"Subtenant") and _______________________, a _______________ limited partnership,
and its successors and assignees ("Purchaser").
A. _____________________, a ____________________________ (the "Owner") is the
owner of certain real property and a nursing home located thereon known as
the Victoria Care Center, a 188 bed long-term care nursing facility
located at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (the
"Facility", as hereinafter more fully defined and described), and Xxxxxxx
Heathcare-California, Inc. (the "Prime Tenant") leased the Facility and
certain personal property located thereon which is owned by Owner (the
"Personal Property"), from Owner on the terms, conditions, covenants and
agreements in a Lease (Skilled Nursery Facility) by and between Owner and
Prime Tenant dated November 10, 1998, which is attached hereto and
incorporated herein as Exhibit A, which lease was supplemented by that
certain Lease Commencement Supplement dated January 1, 1999, which is
attached hereto and incorporated herein as Exhibit B, that certain
Transition Agreement dated October 26, 1998 which is attached hereto and
incorporated herein as Exhibit C and that certain Guaranty by Xxxxxxx
Enterprises, Inc. dated November 10, 1998, which is attached hereto and
incorporated herein as Exhibit D (as so supplemented, the "Lease"). All
defined terms as used herein shall have the same meaning as in the Lease
unless otherwise specifically defined herein.
B. Pursuant to that certain Sublease Agreement dated October 31, 2003, which
is attached hereto as Exhibit E (the "Sublease"), Prime Tenant subleased
all of Prime Tenant's interest in the Lease to Subtenant with Longwood
Management Corporation, a California corporation, as Guarantor. Subtenant
subleased Subtenant's interest in the Lease pursuant to that certain
Second Sublease Agreement dated November 1, 2003, attached hereto as
Exhibit F (the "Second Sublease"), to Second Subtenant with The Ensign
Group, Inc., a Delaware corporation, as Guarantor.
C. Owner is also the owner of certain real property and an assisted living
facility located thereon known as the Victorian, at 0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000 (the "Adjoining Property," as hereinafter more
fully defined and described) the Facility and the Adjoining Property are
herein collectively referred to as the "Combined Premises").
D. Owner intends to sell the Combined Premises and assign the Lease to
Purchaser. In connection with the sale, the Purchaser has requested this
Certificate.
The undersigned Second Subtenant hereby acknowledges for the benefit of
the Owner, Prime Tenant, Subtenant and Purchaser, any title insurance company
insuring the Combined Premises any lender making a loan secured by the Combined
Premises, and their respective successors and assigns, the following:
SNF Estoppel
SHP/Renaissance Portfolio Contract
1. The Lease sets forth the entire agreement between Prime Tenant and
Owner, the Sublease sets forth the entire agreement between the Prime Tenant and
the Subtenant and the Second Sublease sets forth the entire agreement between
the Subtenant and the Second Subtenant with respect to the leasing of the
Facility and there are no other agreements, modifications or amendments, written
or oral, which affect Second Subtenant's occupancy of the Facility.
2. The Second Sublease has been duly authorized, executed and delivered by
Second Subtenant is in full force and effect, and is binding on the Second
Subtenant, and has not been modified, changed altered or amended.
3. Second Subtenant is in possession of, and occupies the Facility for the
purposes permitted under the Lease.
4. The Term of the Second Sublease commenced on November 1, 2003, and will
expire on December 31, 2013. Second Subtenant has no right to renew or extend
the Term of the Second Sublease or any expansion rights under the Second
Sublease.
5. No security deposit has been deposited with Owner.
6. No Monthly Rent, Impositions, Additional Rent or charges payable under
the Second Sublease have been paid more than one (1) month in advance. All
Monthly Rent, Impositions, Additional Rent or other charges under the Second
Sublease have been paid through ________, 2005.
7. The current Monthly Rent payable under the Second Sublease is
_____________________ Dollars ($___________.00).
8. Second Subtenant is not the subject of any pending bankruptcy,
insolvency, debtor's relief, reorganization, receivership, or similar
proceedings, nor the subject of a ruling with respect to any of the foregoing
9. Second Subtenant has not made any agreement with Owner, Prime Tenant or
Subtenant or any agent, representative or employee of any of them concerning
free rent, partial rent, rebate of rental payments or any other similar rent
concession. Second Subtenant is not entitled to any credit, setoff, defense or
counterclaim against any rent or other charge or rent concession under the
Second Sublease.
10. The interest of Second Subtenant in the Second Sublease has not been
assigned or encumbered.
11. There exists no defense to, or right of offset against, enforcement of
the Second Sublease by Subtenant. There are no uncured defaults by Subtenant or
Second Subtenant under the Second Sublease and the undersigned knows of no
events or conditions which with the passage of time or notice or both, would
constitute a default by Subtenant or Second Subtenant under the Second Sublease.
SNF Estoppel
SHP/Renaissance Portfolio Contract
12. Second Subtenant confirms that it has obtained and maintains all
necessary licenses from the State of California Department of Health Services or
such other agencies or government instrumentalities as are necessary to operate
the Facility and Second Subtenant has not received notice of any violations from
the California Department of Social Services or any other governmental
authority, which have not been cured. Second Subtenant has not received any
notice of any violation of any federal, state, county or municipal laws,
regulations, or ordinances, orders or directives relating to the use or
condition of the Facility, which violation remains uncured.
It is understood that Owner is relying on this Certificate and that this
Certificate will also be relied upon by Purchaser, the title insurance company
insuring the title to the Combined Premises, and any lender who will make a loan
to be secured by a deed of trust on the Combined Premises and all of their
respective successors and assigns. Second Subtenant acknowledges the right of
Purchaser, any lender of Purchaser, and any title insurance company to rely upon
the statements and representations of Second Subtenant contained in this
Certificate.
This Certificate has been executed effective as of ______________, 2005
"Second Subtenant"
XXXXXXXX XXXXXXX HEALTHCARE, LLC, a
Nevada limited liability company
By:_______________________________________
Its:______________________________________
THE UNDERSIGNED GUARANTOR OF THE SECOOND SUBLEASE LEASE ACKNOWLEDGES AND
CONFIRMS THE TRUTH AND ACCURACY OF ALL OF THE MATTERS SET FORTH IN THE
CERTIFICATE AND AGREES TO BE BOUND BY ALL SUCH MATTERS.
THE ENSIGN GROUP, INC.,
a Delaware corporation
By:_______________________________________
Its:______________________________________
SNF Estoppel
SHP/Renaissance Portfolio Contract
EXHIBIT A
LEASE
SNF Estoppel
SHP/Renaissance Portfolio Contract
EXHIBIT B
LEASE COMMENCEMENT SUPPLEMENT
SNF Estoppel
SHP/Renaissance Portfolio Contract
EXHIBIT C
TRANSITION AGREEMENT
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SHP/Renaissance Portfolio Contract
EXHIBIT D
GUARANTY
SNF Estoppel
SHP/Renaissance Portfolio Contract
EXHIBIT E
NOTICE OF INTENT
SNF Estoppel
SHP/Renaissance Portfolio Contract
SCHEDULE 1(a)
(TO PURCHASE AND SALE AGREEMENT)
LIST OF ASSUMED LOANS
$26,250,000 Loan evidenced by Multifamily Note and Multifamily Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing, among SHP Xxxxxx
Creek, LLC, as Borrower, Fidelity National Title Insurance Company, as Trustee,
and Berkshire Mortgage Finance Limited Partnership, as Lender, made as of March
24, 2003.
$14,250,000 Loan evidenced by Multifamily Note and Multifamily Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing, among SHP Oak Tree
Villa, LLC, as Borrower, Fidelity National Title Insurance Company, as Trustee,
and Berkshire Mortgage Finance Limited Partnership, as Lender, made as of March
24, 2003.
List of Mortgage Loans
SHP/Renaissance Portfolio Contract
SCHEDULE 1(b)
(TO PURCHASE AND SALE AGREEMENT)
VALUE OF EACH FACILITY
BROOKDALE LIVING COMMUNITIES, INC.
RENAISSANCE PURCHASE PRICE ALLOCATION
PROPERTY VALUATION
Inn at the Park 32,880.100
Xxxx Ranch Inn 15,245.569
Mirage Inn 31,692.500
Pacific Inn 38,420.459
Ocean House 27,883.000
The Gables 9,398.475
The Lexington 25,200.350
Oak Tree Villa 38,432.850
Lodge at Xxxxxx Creek 63,293.697
Total 282,447,000
Value of Facilities
SHP/Renaissance Portfolio Contract
SCHEDULE 8.2(d)
(TO PURCHASE AND SALE AGREEMENT)
GOVERNMENTAL APPROVALS
1. Department of Social Services Assisted Living Licenses and Residential
Elderly Administrator's Licenses (a/k/a RCFE) for the following
Facilities:
a) The Gables
b) Inn at the Park
c) The Lexington
d) Mirage Inn
e) Xxxx Ranch inn
f) Oak Tree Village
g) Ocean House
2. City of Torrance Business License for Pacific Inn
Governmental Approvals
SHP/Renaissance Portfolio Contract
