PURCHASE AGREEMENT


 


BY AND BETWEEN


 


THE ENTITY SET FORTH UNDER THE HEADING “PURCHASER”

ON THE SIGNATURE PAGES HERETO


 


AND


 


EACH OF THE ENTITIES SET FORTH UNDER THE
HEADING “SELLERS”

ON THE SIGNATURE PAGES HERETO


 


November 18, 2013


 




    	 



    	 



    

TABLE OF CONTENTS


 


Page


	ARTICLE I PURCHASE AND SALE	 	 	 		1
	Section 1.1	 	Transfer	 	 	 	 	 	1
	Section 1.2	 	Closing	 	 	 	 	 	4
	Section 1.3	 	Purchase Price	 	 	 	 	 	4
	Section 1.4	 	Reserved	 	 	 	 	 	4
	Section 1.5	 	Payment of Purchase Price	 	 	 	 	 	5
	Section 1.6	 	Assumed Liabilities	 	 	 	 	 	5
	Section 1.7	 	Excluded Liabilities	 	 	 	 	 	5
	Section 1.8	 	Allocation of Purchase Price	 	 	 	 	 	5
	 	 	 	 	 	 
	ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE SELLERS	 	 	 	 		6
	Section 2.1	 	Organization and Qualification	 	 	 	 	 	7
	Section 2.2	 	Authority; Binding Effect; Approvals; No Conflicts; Capitalization	 	 	 	 	 	7
	Section 2.3	 	Permits; Licenses	 	 	 	 	 	7
	Section 2.4	 	Governmental Approvals	 	 	 	 	 	8
	Section 2.5	 	Financial Statements	 	 	 	 	 	8
	Section 2.6	 	Absence of Certain Changes, Events and Conditions	 	 	 	 	 	8
	Section 2.7	 	Title to Personal Property	 	 	 	 	 	8
	Section 2.8	 	Condition and Sufficiency of Assets	 	 	 	 	 	8
	Section 2.9	 	Real Property	 	 	 	 	 	8
	Section 2.10	 	Compliance with Laws	 	 	 	 	 	9
	Section 2.11	 	Hazardous Substances	 	 	 	 	 	9
	Section 2.12	 	No Litigation	 	 	 	 	 	10
	Section 2.13	 	Employees	 	 	 	 	 	10
	Section 2.14	 	ERISA	 	 	 	 	 	10
	Section 2.15	 	Insurance	 	 	 	 	 	10
	Section 2.16	 	Brokers and Finders	 	 	 	 	 	10
	Section 2.17	 	OFAC	 	 	 	 	 	11
	 	 	 	 	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PURCHASER	 	 	 	 		11
	Section 3.1	 	Organization; Etc	 	 	 	 	 	11
	Section 3.2	 	Authority, Binding Effect	 	 	 	 	 	12
	Section 3.3	 	No Litigation	 	 	 	 	 	12
	Section 3.4	 	Governmental Approvals	 	 	 	 	 	12
	Section 3.5	 	Brokers and Finders	 	 	 	 	 	12
	Section 3.6	 	Available Funds	 	 	 	 	 	13
	 	 	 	 	 	 	 	 	 
	ARTICLE IV COVENANTS OF THE SELLERS	 	 	 	 		13
	Section 4.1	 	Interim Operating Covenants	 	 	 	 	 	13
	Section 4.2	 	Liens	 	 	 	 	 	13
	Section 4.3	 	Inspection Rights	 	 	 	 	 	14
	Section 4.4	 	Title Insurance and Surveys	 	 	 	 	 	14






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	Section 4.5	 	Further Assurances	 	 	 	 	 	16
	Section 4.6	 	8-K Requirements	 	 	 	 	 	16
	Section 4.7	 	Phase I Updates	 	 	 	 	 	18
	 	 	 	 	 	 	 
	ARTICLE V COVENANTS OF THE PURCHASER	 	 	 	 	 	18
	Section 5.1	 	Cooperation	 	 	 	 	 	18
	Section 5.2	 	Further Assurances	 	 	 	 	 	18
	 	 	 	 	 	 	 	 	 
	ARTICLE VI OTHER COVENANTS	 	 	 	 	 	18
	Section 6.1	 	Confidentiality	 	 	 	 	 	18
	Section 6.2	 	Casualty Event	 	 	 	 	 	19
	Section 6.3	 	Condemnation Event	 	 	 	 	 	20
	 	 	 	 	 	 	 	 	 
	ARTICLE VII INDEMNIFICATION	 	 	 	 	 	20
	Section 7.1	 	Indemnification by the Sellers	 	 	 	 	 	20
	Section 7.2	 	Indemnification by the Purchaser	 	 	 	 	 	21
	Section 7.3	 	Notification of Claims	 	 	 	 	 	22
	Section 7.4	 	Survival of Representations	 	 	 	 	 	23
	Section 7.5	 	No Punitive Damages	 	 	 	 	 	24
	Section 7.6	 	Broker’s Fee	 	 	 	 	 	24
	Section 7.7	 	Treatment of Indemnification Payments	 	 	 	 	 	25
	Section 7.8	 	Survival	 	 	 	 	 	25
	 	 	 	 	 	 	 
	ARTICLE VIII CONDITIONS	 	 	 	 	 	25
	Section 8.1	 	Conditions to Each Party’s Obligations	 	 	 	 	 	25
	Section 8.2	 	Conditions to Obligations of the Purchaser	 	 	 	 	 	25
	Section 8.3	 	Conditions to Obligations of the Sellers	 	 	 	 	 	26
	 	 	 	 	 	 	 
	ARTICLE IX CLOSING	 	 	 	 	 	 	 	26
	Section 9.1	 	Possession	 	 	 	 	 	26
	Section 9.2	 	Closing Documents	 	 	 	 	 	26
	Section 9.3	 	Closing Adjustments	 	 	 	 	 	29
	Section 9.4	 	Closing Costs; Transfer Taxes	 	 	 	 	 	29
	Section 9.5	 	Survival	 	 	 	 	 	30
	 	 	 	 	 
	ARTICLE X TERMINATION AND ABANDONMENT	 	 	 	 	 	30
	Section 10.1	 	Method of Termination	 	 	 	 	 	30
	Section 10.2	 	Procedure Upon Termination	 	 	 	 	 	31
	Section 10.3	 	Effect of Termination; Remedies for Default; Break Up Fees	 	 	 	 	 	31
	 	 	 	 	 	 	 
	ARTICLE XI MISCELLANEOUS PROVISIONS	 	 	 	 	 	32
	Section 11.1	 	Amendment and Modification	 	 	 	 	 	32
	Section 11.2	 	Waiver of Compliance; Consent	 	 	 	 	 	32
	Section 11.3	 	Notice	 	 	 	 	 	32
	Section 11.4	 	Bulk Sales Laws	 	 	 	 	 	33
	Section 11.5	 	Expenses	 	 	 	 	 	33
	Section 11.6	 	Assignment	 	 	 	 	 	33



 





 




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	Section 11.7	 	Governing Law	 	 	 	 	 	34
	Section 11.8	 	Business Day	 	 	 	 	 	34
	Section 11.9	 	Counterparts	 	 	 	 	 	34
	Section 11.10	 	Headings	 	 	 	 	 	34
	Section 11.11	 	Entire Agreement	 	 	 	 	 	34
	Section 11.12	 	Warranty of Authority	 	 	 	 	 	34
	Section 11.13	 	Publicity	 	 	 	 	 	34
	 Section 11.14	 	Waiver of Jury Trial	 	 	 	 	 	34
	Section 11.15	 	Third Party Beneficiaries	 	 	 	 	 	34
	Section 11.16	 	Interpretation	 	 	 	 	 	35
	Section 11.17	 	Submission to Jurisdiction	 	 	 	 	 	35
	Section 11.18  	 	Severability	 	 	 	 	 	36







 


 




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LIST OF EXHIBITS AND SCHEDULES


 


 





	Exhibit A	Facilities
	 	 
	Exhibit B	Purchase Price Allocation
	 	 
	Exhibit 9.2(a)(ii)	Form of Bill
of Sale
	 	 
	Exhibit 9.2(a)(iii)	Form of Assignment
and Assumption of Other Property
	 	 
	Exhibit 9.2(a)(v)	Form of FIRPTA
Certificate
	 	 
	Exhibit 9.2(a)(vii)	Form of
Seller Certificate
	 	 
	Exhibit 9.2(a)(xii)	Form of Master
Lease and Sublease
	 	 
	Exhibit 9.2(a)(xiii)	Form of
Assignment of Leasehold Interests
	 	 
	Exhibit 9.2(b)(ii)	Form of Purchaser
Certificate
	 	 
	Schedule 1	Required Approvals
	 	 
	Schedule 2.3	Permits and Licenses
	 	 
	Schedule 2.4	Governmental Approvals
	 	 
	Schedule 2.9	Real Estate Matters
	 	 
	Schedule 2.11 (a)	Environmental
Matters
	 	 
	Schedule 2.11(b)	Hazardous Substances
Storage
	 	 
	Schedule 2.11(c)	CERLCIS
	 	 
	Schedule 2.11(d)	Hazardous Substance
Release
	 	 
	Schedule 2.12	Legal Proceedings
	 	 
	Schedule 2.15	Insurance
	 	 
	Schedule 2.16	Brokers



 


 




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INDEX OF DEFINED TERMS


 


As used herein the following terms shall
have the meanings indicated below:


 


“Affiliate” shall mean,
as applied to any Person, any other Person directly or indirectly controlling, controlled by or under common control with or by
such Person. For purposes of this definition, “control” (including the terms “controlling,” “controlled
by” and “under common control with”) will mean the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or by contract
or otherwise.


 


“Agreement” shall have
the meaning set forth in the preamble.


 


“Ancillary Assets” shall
have the meaning set forth in Section 1.1(b).


 


“Applicable Laws” shall
mean all statutes, laws, ordinances, rules, regulations, requirements, judgments, orders and decrees of any Governmental Authority
applicable to Sellers, Purchaser, and/or the Assets, including applicable zoning, building, safety and environmental laws, ordinances
and codes and other federal, state and municipal requirements.


 


“Approvals” shall mean
(i) all waivers, permits, consents, approvals or other authorizations from Governmental Authorities or third parties including
joint venture partners, and (ii) all registrations, filings and notices with or to Governmental Authorities or third parties, in
each case, as are required for Sellers to consummate the transactions contemplated by this Agreement.


 


“Assets” shall have
the meaning set forth in Section 1.1(a).


 


“Assigned Records” shall
have the meaning set forth in Section 1.1(a)(v).


 


“Assumed Liabilities”
shall have the meaning set forth in Section 1.6.


 


“Books and Records”
shall have the meaning set forth in Section 1.1(a)(vi).


 


“Break Up Fee” shall
mean Ten Million Dollars ($10,000,000).


 


“Business” shall have
the meaning set forth in the recitals.


 


“Business Day” shall
mean any day other than a Saturday, Sunday or any other day on which banks are authorized to be closed in the State of New York.
Time is of the essence with respect to all terms, provisions, covenants and conditions contained in this Agreement.


 


“Casualty Event” shall
mean damage or loss to or destruction by fire or other casualty of any one or more of the Facilities, the costs of repair for which
are reasonably estimated to exceed Ten Million Dollars ($10,000,000) in the aggregate.


 


“Closing” shall have
the meaning set forth in Section 1.2.


 


“Closing Date” shall
have the meaning set forth in Section 1.2.


 




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“Closing Statement”
shall have the meaning set forth in Section 9.2(a)(ix).


 


“Code”
shall mean the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder.


 


“Common Products” shall
have the meaning set forth in Section 2.11(b).


 


“Confidential Information”
shall mean all non-public, proprietary or confidential information that any Party obtains from the other in connection with, or
pursuant to, this Agreement.


 


“Contracts” shall have
the meaning set forth in Section 1.1(b)(vi).


 


“Copied Records” shall
have the meaning set forth in Section 1.1(a)(vi).


 


“Data Site” shall mean
the data site created by Sellers at http://holidayretirement.firmex containing information related to the Assets.


 


“Disclosure Schedules”
shall have the meaning set forth in Article II.


 


“Effective Date” shall
have the meaning set forth in the preamble.


 


“Environmental Laws”
shall have the meaning set forth in Section 2.11.


 


“Excluded Assets” shall
have the meaning set forth in Section 1.1(b).


 


“Excluded Documents”
shall have the meaning set forth in Section 1.1(b)(iii).


 


“Excluded Liabilities”
shall have the meaning set forth in Section 1.7.


 


“Facility” or “Facilities”
shall have the meaning set forth in the recitals.


 


“Facility Balance Sheets and Income
Statements” shall have the meaning set forth in Section 2.5.


 


“Facility Material Adverse Effect”
shall mean, with respect to any Facility, any event, occurrence, change or effect that is, or is reasonably likely in the future
to be, individually or in the aggregate materially adverse to the business, operations, results of operations, condition (financial
or otherwise), properties (including intangible properties), rights, obligations or assets of such Facility; provided, however,
that a Facility Material Adverse Effect shall not include any event, change or effect arising out of or relating to (i) general
political, economic or financial market conditions (or changes in such conditions), (ii) changes generally affecting the industries
in which such Facility operates, (iii) any change in Applicable Law or interpretations thereof by a Governmental Authority thereof
or any change in GAAP or other accounting principles or requirements, (iv) any natural disaster, epidemic, acts of terrorism, sabotage
or war, including any escalation or general worsening of any such events, changes or events, (v) the execution, delivery or announcement
of this Agreement if done in accordance with the terms of this Agreement (including as to the identity of the Purchaser) or the
pendency or consummation of the transactions contemplated hereunder, including any losses or threatened losses of employees, customers,
suppliers, distributors or others having relationships with the Sellers and their




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Affiliates, (vi) any failure to meet any
internal or published projections, forecasts or revenue or earnings predictions for any period ending on or after the Effective
Date, (vii) compliance with the terms of, or the taking of any action permitted or required by, this Agreement or with the prior
written consent or at the direction of the Purchaser (or any action not taken as a result of a failure of the Purchaser to consent
to an action otherwise requiring the Purchaser’s consent) or (viii) any of the items listed in the Disclosure Schedules.


 


“Financial Statements”
shall have the meaning set forth in Section 1.1(a)(vi).


 


“Governmental Authority”
shall mean any court, board, agency, commission, office or authority of any nature whatsoever for any governmental unit (federal,
state, county, district, municipal, city, foreign or otherwise) whether now or hereafter in existence having jurisdiction over
any Seller, any of the Assets, or Purchaser, as applicable.


 


“Hazardous Substance”
shall have the meaning set forth in Section 2.11.


 


“Immaterial Taking”
shall mean any condemnation or taking by any Governmental Authority with respect to one or more Facilities other than a condemnation
or taking which renders such Facility or Facilities less than a functional structure in all material respects within which to continue
to operate the Business thereon and the portion of the Purchase Price allocated to such Facility or Facilities pursuant to Section
1.7 of this Agreement is in excess of Ten Million Dollars ($10,000,000).


 


“Improvements” shall
mean, collectively, the Seller Improvements.


 


“Indebtedness” means,
for any Person, without duplication: (a) all indebtedness of such Person for borrowed money (including the principal amount thereof,
any accrued interest thereon and any prepayment premiums or termination fees with respect thereto), for amounts drawn under a letter
of credit, or for the deferred purchase price of property for which such Person is liable, (b) all unfunded amounts under a loan
agreement, letter of credit (unless secured in full by cash), or other credit facility for which such Person would be liable or
subject, if such amounts were advanced under the credit facility, (c) any indebtedness arising under any capital lease, conditional
sales contract and other similar title retention instrument, whether short term or long term, (d) all liabilities, including judgments,
secured by any Liens on any of the Assets, (e) all liabilities under any interest rate protection agreement, interest rate future
agreement, interest rate option agreement, interest rate swap agreement or other similar agreement designed to protect the Seller
against fluctuations in interest rates, (f) any indebtedness evidenced by any note, bond, debenture mortgage or other debt instrument
or debt security, (g) all interest, fees and other expenses owed with respect to indebtedness described in the foregoing clauses
(a) through (f), and (h) all indebtedness referred to in the foregoing clauses (a) through (g) which is directly or indirectly
guaranteed by any Seller or that is secured by the Assets.


 


“Inspection Period”
means the period beginning on the Effective Date and ending at 6:00 p.m. ET on the seven (7) day anniversary of the Effective Date.


 


“Indemnified Party”
shall have the meaning set forth in Section 7.3(b).


 


“Indemnifying Party”
shall have the meaning set forth in Section 7.3(b).


 




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“Initial Surveys” shall
have the meaning set forth in Section 4.4(a).


 


“Initial Title Commitments”
shall have the meaning set forth in Section 4.4(a).


 


“Inventory” shall have
the meaning set forth in Section 1.1(b)(x).


 


“Land” shall mean, collectively,
the Seller Land.


 


“Leases” shall have
the meaning set forth in Section 1.1(b)(v).


 


“Leasehold Interests”
(i) the right, title and interest of Santa Clara Retirement Residence Limited Partnership under (a) that certain Ground Lease,
dated August 19, 1988, between Masonic Hall Corporation of Santa Clara, as lessor, and Santa Clara Retirement Residence Limited
Partnership (as successor by assignment to Matrix Properties, Inc.), as lessee (as amended, modified, assigned and supplemented
from time to time) (as further amended, modified, assigned and supplemented from time to time) and (b) that certain Premises Lease,
dated August 19, 1988 between Santa Clara Retirement Residence Limited Partnership, as lessor and Masonic Hall Corporation of Santa
Clara, as lessee (as amended, modified, assigned and supplemented from time to time) and (ii) the right, title and interest of
Rock Hill Land Limited Partnership under that certain Ground Lease, dated February 26, 1999, between LM Rocky Hill Land Holding
Limited Partnership, as lessor, and Rock Hill Land Limited Partnership, as lessee, as amended by that certain Amendment to Ground
Lease, dated June 30, 2003 (as further amended, modified, assigned and supplemented from time to time).


 


“Legal Proceedings”
shall have the meaning set forth in Section 2.12.


 


“License” or “Licenses”
shall have the meaning set forth in Section 2.3.


 


“Lien” shall mean any
lien, claim, charge, encumbrance, security interest, mortgage, pledge, easement, or conditional sale or other title retention contract.


 


“Manager” shall mean
Harvest Management Sub LLC.


 


“Master Lease” shall
have the meaning set forth in Section 9.2(a)(xii).


 


“Master Tenant” shall
have the meaning set forth in Section 9.2(a)(xii).


 


“Monetary Lien Condition”
shall mean the removal of any and all Liens securing the Outstanding Debt.


 


“New Manager” shall
mean Holiday AL Management Sub LLC.


 


“New Title Matter” shall
have the meaning set forth in Section 4.4(b).


 


“OFAC” shall have the
meaning set forth in Section 2.17.


 


“Other Property” shall
have the meaning set forth in Section 1.1(a)(iii).


 


“Outside Date” shall
mean December 31, 2013.


 




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“Outdated Initial Surveys”
shall have the meaning set forth in Section 4.4(b).


 


“Outstanding Debt” means
indebtedness evidenced by the following agreement: Loan Agreement (as amended, restated, supplemented or modified from time to
time), dated as of February 28, 2007, by and among the borrowers identified therein and Citigroup Global Markets Realty Corp.,
and Goldman Sachs Commercial Mortgage Capital, L.P., as succeeded by Fannie Mae, in the original principal amount of $1,756,094,352.47.


 


“Party” or “Parties”
shall have the meaning set forth in the preamble.


 


“Permitted Liens” shall
have the meaning set forth in Section 4.4(b).


 


“Person” shall mean
an individual, partnership, joint venture, corporation, trust, estate, association, Governmental Authority or other legal entity.


 


“Personal Property”
shall have the meaning set forth in Section 1.1(a)(iv).


 


“Proprietary Software”
shall have the meaning set forth in Section 1.1(b)(ix).


 


“Purchase Price” shall
have the meaning set forth in Section 1.3.


 


“Purchaser” shall have
the meaning set forth in the preamble.


 


“Purchaser Basket” shall
have the meaning set forth in Section 7.2(b).


 


“Purchaser Certificate”
shall have the meaning set forth in Section 9.2(b)(ii).


 


“Purchaser Documents”
shall have the meaning set forth in Section 9.2(b).


 


“Purchaser Indemnified Losses”
shall have the meaning set forth in Section 7.1(a).


 


“Purchaser Indemnified Parties”
shall have the meaning set forth in Section 7.1(a).


 


“Purchaser Knowledge Individual”
shall have the meaning set forth in Article III.


 


“Purchaser Material Adverse Effect”
shall mean, with respect to the Purchaser, a material adverse effect on the ability of the Purchaser to timely perform its obligations
hereunder or under any Purchaser Documents or to timely consummate the transactions contemplated by this Agreement.


 


“Purchaser Representative”
shall have the meaning set forth in Section 4.3(b).


 


“Purchaser’s Expenses”
shall mean all actual out-of-pocket costs and expenses incurred by the Purchaser in connection with the transactions contemplated
by this Agreement, including, without limitation, due diligence expenses, legal expenses, and expenses in connection with preparations
for Closing, but, excluding any hedging costs; provided however, Purchaser’s Expenses, for which the Sellers
may have a reimbursement obligation hereunder, shall not include any underwriting fees, discounts, commissions or similar expenses
incurred in connection with any equity offering or debt financing.


 




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“Purchaser’s Knowledge”
shall have the meaning set forth in Article III.


 


“Required Approvals”
shall mean those Approvals listed on Schedule 1.


 


“Reimbursement Cap”
shall mean Seven Hundred and Fifty Thousand Dollars ($750,000).


 


“Resident Records” shall
have the meaning set forth in Section 1.1(b)(viii).


 


“Section 4.3 Indemnified Parties”
shall have the meaning set forth in Section 4.3(b).


 


“Seller” or “Sellers”
shall have the meaning set forth in the preamble.


 


“Seller Basket” shall
have the meaning set forth in Section 7.1(b).


 


“Seller Certificate”
shall have the meaning set forth in Section 9.2(a)(vii).


 


“Seller Documents” shall
have the meaning set forth in Section 9.2(a).


 


“Seller Improvements”
shall have the meaning set forth in Section 1.1(a)(i).


 


“Seller Indemnified Losses”
shall have the meaning set forth in Section 7.2(a).


 


“Seller Indemnified Parties”
shall have the meaning set forth in Section 7.2(a).


 


“Seller Knowledge Individuals”
shall have the meaning set forth in Article II.


 


“Seller Land” shall
have the meaning set forth in Section 1.1(a)(i).


 


“Seller Material Adverse Effect”
shall mean any event, occurrence, change or effect that is, or is reasonably likely in the future to be, individually or in the
aggregate materially adverse to the business, operations, results of operations, condition (financial or otherwise), properties
(including intangible properties), rights, obligations or assets of the Facilities or the Business, in each case taken as a whole;
provided, however, that a Seller Material Adverse Effect shall not include any event, change or effect arising out
of or relating to (i) general political, economic or financial market conditions (or changes in such conditions), (ii) changes
generally affecting the industries in which the Facilities operate, (iii) any change in Applicable Law or interpretations thereof
by a Governmental Authority or any change in GAAP or other accounting principles or requirements, (iv) any natural disaster, epidemic,
acts of terrorism, sabotage or war, including any escalation or general worsening of any such events, changes or events, (v) the
execution, delivery or announcement of this Agreement if done in accordance with the terms of this Agreement (including as to the
identity of the Purchaser) or the pendency or consummation of the transactions contemplated hereunder, including any losses or
threatened losses of employees, customers, suppliers, distributors or others having relationships with the Sellers and their Affiliates,
(vi) any failure to meet any internal or published projections, forecasts or revenue or earnings predictions for any period ending
on or after the Effective Date, (vii) compliance with the terms of, or the taking of any action permitted or required by, this
Agreement or with the prior written consent or at the direction of the Purchaser (or any action not taken as a result of a


 




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failure of the Purchaser to consent to
an action otherwise requiring the Purchaser’s consent) or (viii) any of the items listed in the Disclosure Schedules.


 


“Seller Real Property”
shall have the meaning set forth in Section 1.1(a)(ii).


 


“Seller Representations”
shall have the meaning set forth in Article II.


 


“Seller Response Period”
shall have the meaning set forth in Section 4.4(b).


 


“Sellers’ Knowledge”
shall have the meaning set forth in Article II.


 


“Survival Period” shall
have the meaning set forth in Section 7.4(a).


 


“Surviving Obligations”
shall mean those obligations which expressly survive termination of this Agreement or the Closing, as applicable.


 


“Title Company” shall
have the meaning set forth in Section 4.4(a).


 


“Title Matters” shall
have the meaning set forth in Section 4.4(b).


 


“Title Objection Notice”
shall have the meaning set forth in Section 4.4(b).


 


“Title Objection Response Notice”
shall have the meaning set forth in Section 4.4(b).


 


“Title Policy” or “Title
Policies” shall have the meaning set forth in Section 4.4(c).


 


“Transfer Taxes” shall
have the meaning set forth in Section 9.4(a).


 


“Unsatisfied Party”
shall have the meaning set forth in Section 8.4.


 


“Updated Report” shall
have the meaning set forth in Section 4.7.


 


“Work Product” shall
have the meaning set forth in Section 1.1(a)(iii).


 




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PURCHASE AGREEMENT


 


THIS PURCHASE AGREEMENT
(this “Agreement”), dated as of this 18th day of November, 2013 (the “Effective Date”),
is made and entered into by and among the entity set forth under the heading “Purchaser” on the signature pages hereto
(the “Purchaser”), each entity set forth under the heading “Seller” on the signature pages
hereto (individually a “Seller” and, together, the “Sellers”). Each entity comprising the
Sellers and the Purchaser is sometimes referred to herein individually as a “Party” and collectively as the
“Parties.”


 


RECITALS


 


A.Each Seller is
in the business (the “Business”) of owning, operating and maintaining the senior living facility identified
next to such Seller’s name, on Schedule 2.9 (each such facility, a “Facility” and, collectively,
the “Facilities”).


 


B. The Purchaser
desires to purchase and acquire from the Sellers, and the Sellers desire to sell and transfer to the Purchaser, all of the Assets
(as defined herein), on the terms and conditions set forth in this Agreement.


 


Now, therefore, in
consideration of the representations, warranties and covenants herein contained, the Parties agree as follows.


 


ARTICLE
I



PURCHASE AND SALE


 


Section 1.1           
Transfer.


 


(a)               
For the consideration hereinafter provided, in accordance with the terms and subject to the conditions in this Agreement,
at the Closing the Sellers shall sell, convey, transfer and assign to the Purchaser, and the Purchaser shall purchase and acquire
from the Sellers, free and clear of all Liens, other than Permitted Liens, the Sellers’ right, title and interest in and
to, the following (specifically excluding the Excluded Assets, hereinafter collectively referred to as the “Assets”):


 


(i)                
the land, as more particularly described in Exhibit A (collectively, the “Seller Land”), and all
buildings, structures, fixtures, facilities, amenities, driveways, walkways, parking lots and other improvements located on the
Seller Land (collectively, the “Seller Improvements”);


 


(ii)              
all easements, rights-of-way, rights of ingress and egress, strips, zones, licenses, transferable hereditaments, privileges,
tenements and appurtenances in any way belonging to or appertaining to the Seller Land or the Seller Improvements, and any right
or interest in any open or proposed highways, streets, roads, avenues, alleys, easements, strips, gores and rights-of-way in, across,
in front of, contiguous to, abutting or adjoining the Seller Land (collectively with the Seller Land and the Seller Improvements,
the “Seller Real Property”);


 




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(iii)            
 (A) to the extent any Seller’s interest is assignable pursuant to Applicable Law and to the extent the Purchaser
in its sole discretion elects to assume the same, all licenses, permits, approvals, entitlements, land use applications, land use
permits and approvals, other operating permits and other governmental authorizations (including certificates of occupancy) issued
by any Governmental Authority for the benefit of the Seller Real Property in connection with the ownership, operation, planning,
development, use or maintenance of any Seller Real Property and the Business, as applicable, that an operator of a Facility would
not be required to maintain in its own name but which may be held by the owner of the Seller Real Property separate and apart from
those permits required to be maintained in the name of the operator of a Facility under Applicable Law, (B) all rights and work
product under outstanding construction, service, consulting, engineering, architectural, design and construction agreements relating
exclusively to the Seller Real Property (the “Work Product”), (C) to the extent assignable, all construction
warranties, manufacturers’ warranties and other warranties applicable to the Seller Real Property or the Business, and (D)
all development rights related to any portion of any Seller Real Property (collectively, the “Other Property”);


 


(iv)            
all furniture, appliances, equipment, fixtures, and other tangible personal property owned by the Sellers and which is used
by the Sellers in connection with the Business (collectively, and together with the Inventory, the “Personal Property”);


 


(v)              
except for the Excluded Documents, the following documents that relate exclusively to the Seller Real Property: (A) third
party reports and studies (excluding appraisals), land surveys, structural reviews, environmental assessments or audits, architectural
drawings and engineering, geophysical, soils, seismic, geologic, environmental (including with respect to the impact of materials
used in the construction or renovation of the Improvements) and architectural reports, studies and certificates pertaining to the
Seller Real Property, and (B) building designs ((A) and (B) collectively, the “Assigned Records”);


 


(vi)            
copies of the following records (the parties agreeing that the originals and all other rights associated therewith shall
be retained by the Sellers): (A) accounting records, including billing records and invoices, (B) regulatory surveys and reports
and incident tracking reports and (C) all financial statements and other accounting, tax, financial and other books and records,
in each case, relating exclusively to the use, maintenance and operation of the Seller Real Property and any Facility and/or the
Business (collectively, the “Financial Statements”), but excluding any Excluded Documents (collectively, the
“Copied Records,” and, together with the Assigned Records, the “Books and Records”); and


 


(vii)          
the Leasehold Interests.


 


(b)              
Notwithstanding anything to the contrary contained herein, no Seller shall sell, assign, transfer, convey or deliver to
the Purchaser, and the Purchaser shall not purchase, and the Assets shall not include any of the Sellers’ right, title and
interest in the following items (collectively, the “Excluded Assets”):


 




    	2



    	 



    

(i)                
 any bank accounts, cash, cash equivalents, securities and accounts receivable, prepaid accounts, deposits and advance payments
made by the Sellers and held by third parties with respect to any of the Assets or the Business, real estate tax, insurance, maintenance,
replacement and other escrows, reserves and impounds held in connection with any loans and any causes of action (but only to the
extent such causes of action relate to periods prior to the Closing);


 


(ii)              
refunds, rebates and dividends paid in respect of insurance premiums paid by the Sellers relating to periods prior to the
Closing Date, and refunds and additional recoveries by or payments to the Sellers from any Person for services, goods or supplies
which were provided by such Person to the Sellers prior to the Closing Date;


 


(iii)            
the following books and records: income tax returns and records, minute books and other books and records relating solely
to the corporate or similar governance of each Seller as a legal entity (collectively, the “Excluded Documents”);


 


(iv)            
originals of the Copied Records;


 


(v)              
all leases of all machinery, equipment and other tangible property leased to any Sellers which are used exclusively at the
Seller Real Property and all leases of any portion of each Facility by any Sellers to any third party other than a resident (excluding
the Leasehold Interests) (the “Leases”);


 


(vi)            
the agreements and contracts entered into in connection with the operation of each Facility by the Sellers, Manager or certain
affiliates thereof, as applicable (the “Contracts”);


 


(vii)          the
residency agreements together with any leads regarding prospective residents;


 


(viii)        
all records and reports relating to residents at the Facilities, (collectively, the “Resident Records”);


 


(ix)            all licensed software and proprietary software (the “Proprietary Software”) used in the operation of
the Facilities;


 


(x)             all
materials, supplies, inventory, consumables, perishable and nonperishable food products, and other similar tangible property used
exclusively in connection with the Business and located on the Seller Real Property (collectively, the “Inventory”);


 


(xi)            all
motor vehicles used by the Sellers in connection with the Business; and


 


(xii)          
the trademarks, trade names, service marks, web addresses and telephone numbers used in connection with the Assets.


 




    	3



    	 



    

Notwithstanding anything
to the contrary contained in this Agreement, any correspondence and/or communications between counsel, on the one hand, and the
Sellers whether or not covered by attorney-client privilege, and whether or not related to the transactions contemplated by this
Agreement shall remain the property of the Sellers and the Sellers shall have no obligation to deliver the same to the Purchaser.


 


Purchaser and each
Seller agree that, upon entry into the Master Lease, all property, assets, contracts and permits necessary for the operation of
the Assets consistent with past practice that are owned or controlled by the Sellers immediately prior to the Closing, including,
without limitation, the Contracts, the Leases and residency agreements (the “Ancillary Assets”), shall be leased,
assigned, licensed or otherwise made available to Master Tenant pursuant to the terms of the Master Lease. In connection therewith,
Purchaser hereby directs the Sellers to, upon the Closing, assign all Ancillary Assets owned or leased by Sellers after taking
into account the transactions described herein, excluding the Work Product (which Work Product shall be licensed to the Master
Tenant pursuant to the Master Lease), to Master Tenant, for and on behalf of Purchaser.


 


Section 1.2           
Closing.


 


(a)               Unless this Agreement shall have been terminated pursuant to Article X, the closing of the transactions contemplated
herein (the “Closing”) shall occur on December 20, 2013 or as soon as possible thereafter. The date on which
the Closing occurs is hereinafter referred to as the “Closing Date”. The Closing hereunder shall be deemed to
be effective as of 11:59 p.m. (ET) on the Closing Date.


 


(b)              If
the Purchaser does not obtain equity or debt financing for the acquisition of the Assets on or prior to December 20, 2013, the
Purchaser, at its option, may extend the Closing up to and including the Outside Date by delivering written notice thereof to
the Sellers on or prior to such date, provided that, in no event may the Purchaser extend the Closing beyond the Outside Date
(except as provided pursuant to Section 4.4(b)).


 


(c)              If the Sellers do not satisfy the Monetary Lien Condition on or prior to December 20, 2013, the Sellers, at their option,
may extend the Closing up to and including the Outside Date by delivering written notice thereof to the Purchaser on or prior to
such date, provided that, in no event may the Sellers extend the Closing beyond the Outside Date (except as provided pursuant to
Section 4.4(b)).


 


(d)              Notwithstanding
anything to the contrary contained herein, if the Purchaser elects to extend the date of Closing pursuant to Section 1.2(b),
any closing condition that was satisfied as of December 20, 2013 shall be deemed satisfied as of the extended closing date (notwithstanding
any change of circumstance that would result in the failure of such condition).


 


Section 1.3           Purchase Price. The aggregate purchase price for the Assets shall be One Billion Nine Million Dollars ($1,009,000,000)
(the “Purchase Price”), subject to the prorations and further adjustments as provided for in this Agreement.


 


Section 1.4           
Reserved. Reserved.


         







    	4



    	 



    

 


Section 1.5    
   Payment of Purchase Price. At the Closing, the Purchaser shall pay to Sellers the Purchase Price adjusted
for any credits and additions for the benefit of the Purchaser and/or the Sellers as specified in Article IX. The
Purchase Price as adjusted per the foregoing sentence, shall be paid by wire transfer of immediately available federal funds
to the Escrow Agent and such funds shall then be disbursed to or for the benefit of the Sellers in accordance with the
Closing Statement.


 


Section 1.6           
Assumed Liabilities. From and after the Closing, the Purchaser shall assume and thereafter pay, perform or otherwise
discharge, as and when the same shall become due and payable, subject to the terms and conditions of the Master Lease, all liabilities
and all obligations arising out of or related to periods from and after the Closing, or as otherwise expressly set forth herein,
with respect to all of the Assets (the “Assumed Liabilities”).


 


Section 1.7           
Excluded Liabilities. “Excluded Liabilities” shall mean (i) any obligation or liability accruing,
arising out of, or relating to acts or omissions of any Person in connection with the Assets, the Excluded Assets, the Facilities
or the operation of the Business, in each case, prior to the Closing, (ii) any Indebtedness of any Seller, (iii) any obligation
or liability accruing, arising out of, or relating to any of the Leases or Contracts for the period, in each case, prior to the
Closing, (iv) any obligation or liability for any federal, state or local taxes, whether or not accrued, assessed or currently
due and payable, related to the Assets, the Facilities or the Business for the period, in each case, prior to the Closing, (v)
any civil or criminal obligation or liability accruing, arising out of, or relating to any acts or omissions of any Seller, any
of their respective Affiliates or any of their respective directors, officers, employees and agents claims to violate any Applicable
Laws, (vi) any obligation or liability accruing, arising out of, or relating to any federal, state or local investigations, claims
or actions with respect to acts or omissions (or suspected or alleged acts or omissions) of any Seller, their respective Affiliates
or any of their respective employees, agents, or vendors, (vii) any other obligation or liability, fixed or contingent, known or
unknown, relating to or arising out of the ownership, operation or use of the Assets or the Facilities, or the operation of the
Business, in each case, prior to Closing; and (viii) any liability or obligation of the Sellers or its affiliates that is not an
Assumed Liability.


 


Section 1.8           
Allocation of Purchase Price. Sellers and the Purchaser agree that the Purchase Price shall be allocated among the
Assets at the Closing as provided and as described in the allocation statement attached hereto as Exhibit B, which Exhibit
B shall show the aggregate amount of the Purchase Price being allocated to each Facility. Within forty five (45) days following
the Closing Date (or such other time period as reasonably agreed by Purchaser and Sellers), the Parties will mutually agree on
the amount of the Purchase Price allocated to the Personal Property. The Sellers shall timely and properly prepare, execute (with
the Purchaser, as required), file and deliver all such documents, forms and other information as the Purchaser may reasonably request
to prepare and determine such allocation. Each Party hereby covenants and agrees (i) to timely file all forms (including IRS Form
8594) and tax returns required to be filed in connection with such allocation and (ii) to take no position on any income tax return
or form, before any governmental agency charged with the collection of any income tax, in any judicial proceeding or otherwise
with any Governmental Authority that is any way inconsistent with the terms of this Section 1.7, unless otherwise required
by Applicable Law.








 




    	5



    	 



    



ARTICLE
II




REPRESENTATIONS AND WARRANTIES OF THE SELLERS


 


The disclosure schedules
attached hereto (the “Disclosure Schedules”) are arranged in sections and subsections corresponding to the numbered
and lettered sections and subsections contained in this Agreement to which such sections and subsections of the Disclosure Schedules
relate. Notwithstanding the foregoing, information disclosed in any section or subsection of the Disclosure Schedules shall be
deemed to be disclosed with respect to all other sections or subsections of this Agreement. An exception to a representation or
warranty in this Article II set forth in the Disclosure Schedules effectively modifies the corresponding representation
or warranty in this Article II, notwithstanding whether such representation and warranty specifically references the Disclosure
Schedules. Any fact or item disclosed in any section of the Disclosure Schedules shall not be deemed, solely by reason of such
inclusion, to be material and shall not be employed as a point of reference in determining any standard of materiality under this
Agreement. In connection with the remaking of representations and warranties as of the Closing (but not as to representations and
warranties made as of the Effective Date), Sellers shall be permitted to update the Disclosure Schedules to accurately reflect
the current state of matters as of the Closing.


 


Notwithstanding anything
to the contrary contained herein, any reference in this Agreement to “Sellers’ Knowledge,” or words of
similar import, shall be deemed to refer exclusively to the matters within the actual knowledge of Kai Hsiao, Scott Shanaberger
and Christopher Bouchard (“Seller Knowledge Individuals”), which individuals are the individuals in the Sellers’
organization who are most knowledgeable of the matters set forth herein. As regards any representations or warranties in this Agreement
that are qualified to the extent of “Sellers’ Knowledge”, the Seller Knowledge Individuals shall have a duty
of reasonable inquiry of the appropriate persons employed by the Manager into the matters which are the subject of such representations
or warranties; provided that, in no event will the Seller Knowledge Individuals have any duty of reasonable inquiry
with respect to persons employed at the Facility level.


 


The Purchaser acknowledges
and agrees that neither the Sellers nor any of their representatives or agents have made, nor are they making, any representations
or warranties whatsoever regarding the Assets or the subject matter of this Agreement, express or implied, except for the Seller
Representations, and that the Purchaser is not relying, and has not relied, on any representations or warranties whatsoever regarding
the Assets or the subject matter of this Agreement, express or implied, except for the representations and warranties in this Agreement
or in the Seller Documents delivered to Purchaser at the Closing (collectively, the “Seller Representations”).


 


Each Seller represents
and warrants, as applicable, to the Purchaser, as of the Effective Date and as of the Closing Date (unless otherwise expressly
provided), that except as set forth in the Disclosure Schedules:     


 




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Section 2.1 
Organization and Qualification.


 


(a)               
(i) Each Seller is duly organized and validly existing and in good standing under the laws of the jurisdiction in which
it is formed with all requisite power and authority to carry on its respective business as currently being conducted and to own
or lease and operate the assets it owns or leases as and in the places now owned, leased or operated, respectively; and (ii) each
Seller is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business
or the ownership, management or operation of the Facilities makes such qualification or licensing necessary, other than in such
jurisdictions where the failure to be so qualified or licensed, individually or in the aggregate, has not resulted in, and would
not be reasonably expected to result in, a Seller Material Adverse Effect.


 


Section 2.2           
Authority; Binding Effect; Approvals; No Conflicts; Capitalization.


 


(a)               
(i) Each Seller has, and at the Closing each Seller will have, the requisite limited liability company or limited partnership
right, power and authority, as applicable, to execute, deliver and perform its obligations with respect to this Agreement and its
Seller Documents and (ii) the execution, delivery, performance and consummation of this Agreement, the applicable Seller Documents
and all of the transactions contemplated herein and therein have been duly authorized and approved by all necessary partnership
or limited liability company action of each Seller, as applicable.


 


(b)              
This Agreement and each Seller Document, upon due execution and delivery by each Seller party thereto, will constitute the
legal, valid, and binding obligation of such Seller, enforceable against such Seller in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights
generally or by application of equitable principles.


 


(c)               
The execution, delivery and performance of this Agreement and the Seller Documents by each Seller party thereto does not
and will not: (i) conflict with or result in any breach or violation of the provisions of, or constitute a default under the organizational
documents of any Seller, (ii) subject to obtaining the Required Approvals, violate (or give rise to any right of termination, cancellation
or acceleration under) any mortgage, deed of trust, license, permit, lease, indenture, contract, agreement, obligation, commitment,
arrangement, understanding, instrument or other agreement or instrument, whether oral or written, to which any Seller is a party,
or by which it or any of its assets are bound, or result in the termination of any such instrument or termination of any provisions
in such instrument, in each case that would, individually or in the aggregate, have a Facility Material Adverse Effect; (iii) result
in the creation or imposition of any Lien (other than Permitted Liens, and whether arising by contract or by operation of law)
upon the Assets that would, individually or in the aggregate, have a Facility Material Adverse Effect; or (iv) violate any Applicable
Law that would, individually or in the aggregate, have a Facility Material Adverse Effect.


 


Section 2.3           
Permits; Licenses. Schedule 2.3 sets forth all material permits, licenses and other authorizations issued
and required by any Governmental Authority in connection with the ownership or operation of any Facility as conducted by the Sellers
in accordance with past practice (each a “License”, collectively, the “Licenses”). Except
as disclosed on Schedule 2.3, 



    	7



    	 



    

each License is in good standing and the Sellers have not received written notice that the
Sellers are in violation of any License or any restriction, rule or regulation affecting possession and use thereof that would,
individually or in the aggregate, have a Facility Material Adverse Effect.


 


Section 2.4           
Governmental Approvals. Except as set forth in Schedule 2.4, to Sellers’ Knowledge (a) no Seller is
required to submit any notice, report or other filing with any Governmental Authority in connection with its execution or delivery
of this Agreement or any Seller Documents or the consummation of the transactions contemplated hereby, and (b) no consent, approval
or authorization of any Governmental Authority is required to be obtained by any Seller in connection with the execution, delivery
and performance of this Agreement.


 


Section 2.5           
Financial Statements. The Sellers have provided the following financial statements with respect to each Facility
in the Data Site at least five (5) days prior to the Effective Date: (i) balance sheets of each Facility as of December 31, 2011,
December 31, 2012 and September 30, 2013, and (ii) income statements of each Facility for the twelve (12) month periods ended December
31, 2011 and December 31, 2012 and for the nine (9) month period ended September 30, 2013 ((i) and (ii) collectively, the “Facility
Balance Sheets and Income Statements”). The Facility Balance Sheets and Income Statements are true, correct and complete
in all material respects and present fairly the financial condition of each Facility as of their respective dates or for the periods
indicated.


 


Section 2.6           
Absence of Certain Changes, Events and Conditions. Since September 30, 2013, there has not been any event, occurrence
or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse
Effect.


 


Section 2.7           
Title to Personal Property. Seller has good and valid title to, or interest in, all of the Personal Property owned
by the Sellers.


 


Section 2.8           
Condition and Sufficiency of Assets. The Assets, when taken together with the Ancillary Assets, are sufficient for
the continued conduct of the Business after the Closing in substantially the same manner as conducted prior to the Closing and
constitute, when taken together with the Ancillary Assets, all of the rights, property and assets necessary to conduct the Business
as currently conducted.


 


Section 2.9           
Real Property. (a) Exhibit A sets forth the complete and accurate legal description of each parcel of Seller
Real Property. Schedule 2.9 sets forth an accurate street address of each parcel of Seller Real Property. The Seller Real
Property is all of the real property used in or necessary for the conduct of the Business as currently conducted. With respect
to each parcel of the Sellers Real Property, the Sellers have good, valid and insurable fee simple title, free and clear of all
Liens, except Permitted Liens.


 


(b)              
To Sellers’ Knowledge, Sellers have not received any written notice of (i) violations that remain pending or unresolved
of building codes and/or zoning ordinances or other governmental or regulatory laws affecting the Seller Real Property, (ii) existing,
pending or threatened condemnation proceedings affecting the Seller Real Property, (iii) existing, pending or threatened zoning,
building code or other moratorium proceedings, or similar matters, or (iv) any violation that remains pending or unresolved of
any Applicable Law affecting the Seller Real


 




    	8



    	 



    

Property, in each case, which could reasonably
be expected to have, individually or in the aggregate, a Facility Material Adverse Effect.


 


Section 2.10       
Compliance with Laws. The Sellers have operated the Business and have maintained the Assets in compliance with all
Applicable Laws in all material respects.


 


Section 2.11       
Hazardous Substances. For purposes of this Agreement, “Environmental Laws” means the Resource
Conservation and Recovery Act (RCRA), 42 U.S.C. Section 6901 et seq., the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA), 42 U.S.C. Sections 9601 et seq., the Clean Water Act, 33 U.S.C. Section 1251 et seq., the Toxic Substances
Control Act, the Clean Air Act, 42 U.S.C. Section 7401 et seq., the Safe Drinking Water Act 42 U.S.C. Section 300(f) et seq. and
all other applicable state, county, municipal, administrative or other environmental, hazardous waste or substance, ordinances,
rules, regulations, judgments, and orders relating or pertaining to (A) the protection, preservation or reclamation of the environment
or natural resources or (B) the management, release and threatened release of Hazardous Substances. For purposes of this Agreement,
“Hazardous Substance” shall mean any and all substances, wastes, materials, pollutants, contaminants, compounds,
chemicals or elements which are defined or classified as a “hazardous substance,” “hazardous material,”
“toxic substance,” “hazardous waste,” “pollutant,” “contaminant” or words of similar
import under any Environmental Law, including all dibenzodioxins and dibenzofurans, polychlorinated biphenyls (PCBs), petroleum
hydrocarbon, including crude oil or any derivative thereof, asbestos-containing materials in any form, and radon gas.


 


(a)               
Except as would not reasonably be expected to result in a Facility Material Adverse Effect or except as disclosed on Schedule
2.11(a) or in any Phase I environmental report made available to the Purchaser on the Data Site: (i) to Sellers’ Knowledge
the operations of Sellers with respect to the Facilities and the other Assets are and have been in compliance with all material
applicable Environmental Laws; and (ii) the Sellers have not received from any Person, with respect to the Seller Real Property,
any (A) written notice or claim alleging liability or a breach of any Environmental Laws or (B) written request for information
pursuant to Environmental Law, which, in each case, either remains pending or unresolved, or is the source of ongoing obligations
or requirements as of the Closing Date.


 


(b)              
Except as would not reasonably be expected to result in a Facility Material Adverse Effect or except as disclosed on Schedule
2.11(b) or in any Phase I environmental report made available to Purchaser on the Data Site, to Sellers’ Knowledge, Sellers
do not currently store or use any Hazardous Substances at any Seller Real Property, except for Hazardous Substances used in the
ordinary course of business at any Facility, including cleaning fluids, insecticides, medicines and similar items (the “Common
Products”), which Common Products have been used, transported, stored and disposed of by the Sellers in compliance, in
all material respects, with all applicable Environmental Laws.


 


(c)               
Except as would not reasonably be expected to result in a Facility Material Adverse Effect or except as disclosed on Schedule
2.11(c) or in any Phase I environmental report made available to the Sellers on the Data Site, to Sellers’ Knowledge
none of the Seller Real Property is listed on, or has been proposed for listing on, the National Priorities List or the


 




    	9



    	 



    

CERCLIS pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. § 9601, et. seq. or any similar state list.


 


(d)              
Except as would not reasonably be expected to result in a Facility Material Adverse Effect or except as disclosed on Schedule
2.11(d) or in any Phase I environmental report made available to the Purchaser on the Data Site, to Sellers’ Knowledge
there has been no release of Hazardous Substances in contravention of Environmental Law with respect to the Seller Real Property,
and the Sellers have not received any written notice of any such release which would reasonably be expected to result in a claim
under Environmental Laws or a violation of Environmental Laws or a violation of the term of any License issued to Sellers pursuant
to applicable Environmental Laws.


 


(e)               
The Sellers have, prior to the Effective Date, made available to the Purchaser on the Data Site for each Facility a copy
of the most recent Phase I environmental reports, none of which are dated prior to the date which is six (6) months prior
to the Effective Date, other than the report for the Westmont Facility, which is dated June 20, 2012 and for the Simi Hills Facility,
which is dated June 20, 2012.


 


Section 2.12       
No Litigation. As of the Effective Date, and except as set forth in Schedule 2.12, there are no actions, suits,
claims, arbitrations, governmental investigations or other legal or administrative proceedings (“Legal Proceedings”),
or any orders, decrees or judgments in progress or pending in any state or federal court, or, any other local court or other tribunal,
or, to Sellers’ Knowledge, threatened against any Seller relating to the Assets or the Seller Real Property which could reasonably
be expected to have a Seller Material Adverse Effect.


 


Section 2.13       
Employees. None of the Sellers has any employees. Seller is not a party to any collective bargaining agreement, and
no collective bargaining agreement is currently being negotiated by the Sellers. To the Sellers’ Knowledge, no petitions
for representation are currently filed against any Facility nor have any demands been made for recognition.


 


Section 2.14       
ERISA. Seller does not hold any “plan assets” within the meaning of Section 3(42) of the Employee Retirement
Income Security Act of 1974, as amended.


 


Section 2.15       
Insurance. Schedule 2.15 contains a description of all insurance policies insuring the Facilities, as of the
Effective Date. All such policies are in full force and effect, and to Sellers’ Knowledge, have been issued by licensed insurers,
all premiums with respect thereto covering all periods up to and including the Closing Date have been paid, and none of the Sellers
has received written notice of cancellation or termination with respect to any such policies that remains pending or unresolved.
The insurance policies described in Schedule 2.15 are not being assigned or transferred to the Purchaser.


 


Section 2.16       
Brokers and Finders. Except as set forth in Schedule 2.16, no Seller has employed or engaged any investment
banker, broker or finder in connection with the transactions contemplated by this Agreement who might be entitled to any fee or
any commission in connection with or upon consummation of the Closing.





 




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Section 2.17 
   OFAC. Neither the Sellers nor, to the Sellers’ Knowledge, any of their respective direct
equity owners nor their respective officers or directors, is a person or entity with whom U.S. persons or entities are
restricted from doing business under regulations of the Office of Foreign Asset Control of the Department of the
Treasury (“OFAC”), (including those named on OFAC’s Specially Designated and Blocked Persons List)
or under any similar statute, executive order (including the September 24, 2001, Executive Order Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism) or other similar
governmental regulations.


 


THE PURCHASER HEREBY ACKNOWLEDGES AND AGREES
THAT, EXCEPT WITH RESPECT TO THE SELLER REPRESENTATIONS, THE ASSETS ARE HEREBY SOLD, AND THE PURCHASER SHALL TAKE AND ACCEPT TITLE
TO AND POSSESSION OF THE ASSETS ON THE CLOSING DATE, “AS IS, WHERE IS, WITH ALL FAULTS,” WITH NO RIGHT OF SET-OFF,
CONTRIBUTION, COST RECOVERY OR REDUCTION IN THE PURCHASE PRICE, AND THAT, EXCEPT FOR THE SELLER REPRESENTATIONS, SUCH SALE SHALL
BE WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE WHATSOEVER BY THE SELLERS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE, INCLUDING, WARRANTY OF INCOME POTENTIAL, OPERATING EXPENSES, USES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
AND EACH SELLER DOES HEREBY DISCLAIM AND RENOUNCE ANY SUCH REPRESENTATION OR WARRANTY. THE PURCHASER SPECIFICALLY ACKNOWLEDGES
THAT, EXCEPT FOR THE SELLER REPRESENTATIONS, THE PURCHASER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE
WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, FROM SELLER AS TO ANY MATTERS CONCERNING THE ASSETS.
THE PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT (A) EXCEPT FOR THE SELLER REPRESENTATIONS, THE PURCHASER IS RELYING SOLELY UPON
THEIR OWN INSPECTION OF THE ASSETS AND NOT UPON ANY REPRESENTATIONS OR WARRANTIES MADE TO THEM BY ANY PERSON WHOMSOEVER, (B) EXCEPT
AS PROVIDED HEREIN, ANY REPORTS, REPAIRS, OR WORK REQUIRED BY THE PURCHASER OR PROVIDED BY THE SELLERS TO THE PURCHASER IN CONNECTION
WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT ARE TO BE THE SOLE RESPONSIBILITY OF THE PURCHASER AND (C) EXCEPT AS PROVIDED
HEREIN, THERE IS NO OBLIGATION ON THE PART OF THE SELLERS TO MAKE ANY CHANGES, ALTERATIONS, OR REPAIRS TO THE ASSETS.


 


ARTICLE
III



REPRESENTATIONS AND WARRANTIES OF THE PURCHASER


 


The Purchaser represents
and warrants to the Sellers, as of the Effective Date, as follows:


 


Section 3.1           
Organization; Etc. The Purchaser is (i) duly organized and validly existing and in good standing under the laws of
the jurisdiction in which it is formed with all requisite power and authority to carry on its business as currently being conducted
and to own or lease and operate the assets it owns or leases as and in the places now owned, leased or operated; 



    	11



    	 



    

and (ii) the Purchaser
is duly qualified or licensed to do business and is in good standing in the jurisdiction in which the nature of its business or
the ownership, construction, management or operation of its assets makes such qualification or licensing necessary, other than
in such jurisdictions where the failure to be so qualified or licensed, individually or in the aggregate, has not resulted in,
and would not reasonably be expected to result in, a Purchaser Material Adverse Effect.


 


Section 3.2           
Authority, Binding Effect.


 


(a)               
The Purchaser has, and at the Closing the Purchaser will have, the requisite limited liability company right, power and
authority, to execute, deliver and perform its obligations with respect to this Agreement and the Purchaser Documents. The execution,
delivery, performance and consummation of this Agreement, the Purchaser Documents and all of the transactions contemplated herein
and therein have been duly authorized and approved by all necessary limited liability action of the Purchaser.


 


(b)              
This Agreement and the Purchaser Documents, upon due execution and delivery by the Purchaser, will constitute the legal,
valid, and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights
generally or by application of equitable principles.


 


(c)               
The execution, delivery and performance of this Agreement and the Purchaser Documents by the Purchaser does not and will
not: (i) conflict with or result in any breach or violation of the provisions of, or constitute a default under its organizational
documents, (ii) violate any mortgage, deed of trust, license, permit, lease, indenture, contract, agreement, obligation, commitment,
arrangement, understanding, instrument or other agreement or instrument, whether oral or written, to which the Purchaser is a party,
or by which it or any of its assets are bound, or result in the termination of any such instrument or termination of any provisions
in such instrument in each case that would, individually or in the aggregate, have a Purchaser Material Adverse Effect, or (ii)
violate any Applicable Law.


 


Section 3.3           
No Litigation. As of the Effective Date, the Purchaser is not a party to, or defending or subject to, any Legal Proceeding,
nor, to Purchaser’s Knowledge, is any such Legal Proceeding threatened in each case, which would have a Purchaser Material
Adverse Effect on the Purchaser’s ability to execute, deliver and perform this Agreement, the Purchaser Documents and any
other documents and transaction contemplated hereby.


 


Section 3.4           
Governmental Approvals. To the Purchaser’s Knowledge, the Purchaser is not required to submit any notice, report
or other filing with any Governmental Authority in connection with its execution or delivery of this Agreement or any Purchaser
Document or the consummation of the transactions contemplated hereby and no consent, approval or authorization of any Governmental
Authority is required to be obtained by the Purchaser in connection with the execution, delivery and performance of this Agreement.


 


Section 3.5           
Brokers and Finders. Except as set forth in Section 3.5, the Purchaser has not employed or engaged any investment
banker, broker or finder in connection with the 



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transactions contemplated by this Agreement who might be entitled to any fee or
any commission in connection with or upon consummation of the Closing.


 


Section 3.6           
Available Funds. Upon the Closing, Purchaser will have immediately available to it, sufficient funds to pay the Purchase
Price and all costs and expenses as required by this Agreement.


 


Notwithstanding anything
to the contrary contained herein, any reference in this Agreement to “Purchaser’s Knowledge” or words
of similar import shall be deemed to refer exclusively to matters within the actual knowledge of Jonathan Brown (“Purchaser
Knowledge Individual”), which individual is the individual in Purchaser’s organization who is most knowledgeable
of the matters set forth herein, but without any obligation to investigate or make inquiries of other Persons with respect to any
of the representations and warranties contained in this Agreement. Without limiting the foregoing, the Sellers acknowledges that
the Purchaser Knowledge Individual has not performed and is not obligated to perform any investigation or review of any files or
other information in the possession of the Purchaser, or to make any inquiry of any persons, or to take any other actions in connection
with the representations and warranties of the Purchaser set forth in this Agreement other than as required herein. Neither the
actual, present, conscious knowledge of any other individual or entity, nor the constructive knowledge of the Purchaser Knowledge
Individual or of any other individual or entity, shall be imputed to the Purchaser Knowledge Individual. Notwithstanding anything
to the contrary contained in this Agreement, the Purchaser’s Knowledge shall be deemed to include the information provided
on the Disclosure Schedules and the Phase I environmental reports and property condition reports for the Seller Real Property posted
to the Data Site on or prior to the Effective Date.


 


ARTICLE
IV



COVENANTS OF THE SELLERS


 


From and after the
Effective Date and, subject to earlier termination of this Agreement, until the Closing, except as otherwise consented to or approved
by the Purchaser in writing, the Sellers covenant and agree as follows:


 


Section 4.1           
Interim Operating Covenants. Except as expressly contemplated by this Agreement, the Business shall be conducted
in the ordinary course of business consistent with past practice, and the Sellers shall use commercially reasonable efforts to
(a) maintain the Facilities, or cause the Facilities to be maintained, in substantially their condition as of the Effective Date,
reasonable wear and tear, and casualty and condemnation, excepted; (b) comply in all material respects with all Applicable Laws;
and (c) keep in full force and effect insurance policies with substantially the same terms as existing policies.


 


Section 4.2           
Liens. The Sellers shall not create or permit to become effective any Liens upon the Assets, other than the Permitted
Liens and any other Lien arising in the ordinary course of business and consistent with past practice so long as such other Lien
is removed, satisfied or otherwise bonded over at or prior to the Closing, such that such Lien is not included as an exception
to a Title Policy.







 




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Section 4.3           Inspection Rights




 


(a)               
The Sellers shall, upon not less than forty-eight (48) hours prior notice from the Purchaser, at reasonable business hours
and subject to the rights of residents under the residency agreements, the Leases and all Applicable Laws, afford to the Purchaser
reasonable access, subject to the Purchaser’s obligation to comply with this Agreement, (i) to the Seller Real Property in
order to examine and inspect such Seller Real Property, including the Books and Records and (ii) to meet with the managers at the
Facilities; provided, however, such access shall not include the right to meet with any residents, any tenants or
any other employees of the Manager; provided, further, however, Sellers and/or their agents shall be given
the opportunity and permitted to supervise all meetings, calls or other contact or communications with the Sellers’ personnel
including but not limited to meetings with the managers at the Facilities.


 


(b)              
The Purchaser shall use commercially reasonable efforts to not cause damage, loss, cost or expense to the Seller Real Property,
the Facilities, the Sellers, any residents, any tenants, the Manager and its employees or any invitee at any Facility (collectively,
the “Section 4.3 Indemnified Parties”). To the extent of any damage caused by the Purchaser or any agent, representative
or contractor or other Person entering onto the Seller Real Property on behalf of, or at the direction of, the Purchaser (each
a “Purchaser Representative”) to the Seller Real Property, any Facility or assets located thereat, the Purchaser
shall promptly restore such property to its condition immediately preceding such inspections and examinations and shall keep all
such property free and clear of any mechanic’s liens or materialmen’s liens arising as a result such inspections and
investigations (and promptly cause, at the Purchaser’s sole cost and expense, the removal of any such mechanic’s liens
or materialmen’s liens). The Purchaser shall indemnify, defend, and hold harmless for, from, and against any and all claims,
liabilities costs and/or expenses incurred by any such Section 4.3 Indemnified Party in connection with, or as a result of, the
entry of any Purchaser Representative onto the Seller Real Property or resulting from the action or inaction of any of the Purchaser
Representatives while at the Seller Real Property prior to the Closing Date including, costs and expenses arising or resulting
from (i) loss, injury to or death of any Purchaser Representative or any Section 4.3 Indemnified Party, as applicable (waiving
all limitations under workers’ compensation), and (ii) any loss, damage, cost and/or expense to or destruction of any property
owned by any Section 4.3 Indemnified Party (including claims or liabilities for loss of use of any property).


 


(c)               
The obligations of the Purchaser under this Section 4.3 shall survive the Closing or earlier termination of this
Agreement.


 


Section 4.4           
Title Insurance and Surveys.


 


(a)               
Prior to the Effective Date, the Sellers have provided to the Purchaser (i) title commitments for each Seller Real Property
(collectively, the “Initial Title Commitments”), issued by First American Title Insurance Company (the “Title
Company”), together with copies of all recorded exceptions to title referred to therein and (ii) a survey of each Seller
Real Property (collectively, the “Initial Surveys”). All matters contained in the Initial Title Commitments
and Initial Surveys are hereinafter referred to as the “Existing Title Matters”. On or before the expiration
of the Inspection Period, the Purchaser shall have the right to object, in writing and in its reasonable discretion, to an Existing
Title Matter that (i) has a material adverse effect on the


 




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current use and value of a Facility or
(ii) may be removed or cured by the payment of a readily ascertainable amount, by delivering a written notice to Sellers specifying
any Existing Title Matter to which the Purchaser objects (such notice being referred to herein as the “Existing Title
Objection Notice”). The failure of the Purchaser to object to any Existing Title Matter within said period shall be deemed
a waiver by the Purchaser of its right to object to such Existing Title Matter and, in such event, such Existing Title Matter shall
be deemed approved by the Purchaser and shall be a Permitted Lien.


 


(b)              
The Sellers acknowledge that certain of the Initial Surveys provided in the Data Site were completed more than ninety (90)
days prior to the Effective Date (the “Outdated Initial Surveys”). On or before the expiration of the Inspection
Period, Seller will provide in the Data Site updates (or new surveys, as the case may be) to the Outdated Initial Surveys that
will have been prepared recently enough to reasonably satisfy the Purchaser and the Title Company. Prior to the Closing Date, the
Purchaser shall have the right to order updates to the Initial Title Commitments and/or Initial Surveys, and in the event that
any such update reveals any new matter not previously shown or disclosed on the Initial Title Commitments or Initial Surveys which
(i) would reasonably be expected to have a material adverse effect on the current use and value of a Facility or (ii) may be removed
or cured by the payment of a readily ascertainable amount (each, a “New Title Matter”), the Purchaser shall
have the right to object, in writing and in its reasonable discretion, to such New Title Matter by the earlier of (i) the Closing
Date and (ii) the date which is three (3) Business Days after receipt of such update, as applicable, with any such objection notice
specifying any New Title Matter to which the Purchaser objects (such notice being referred to herein as the “New Title
Objection Notice”) (the Existing Title Objection Notice and the New Title Objection Notice are hereinafter collectively
referred to as the “Title Objection Notice”). The failure of the Purchaser to object to any New Title Matter
within said period shall be deemed a waiver by the Purchaser of its right to object to such New Title Matter and, in such event,
such New Title Matter shall be deemed approved by the Purchaser and shall be a Permitted Lien. Notwithstanding the foregoing, the
Purchaser shall not have the right to disapprove any of the following, all of which (together with all other matters deemed approved
by the Purchaser pursuant to terms hereof) shall be deemed to be “Permitted Liens” hereunder: (A) matters created
or consented to in a separate written consent by the Purchaser, (B) the Assumed Liabilities, (C) all Liens for taxes, assessments,
water rates, water meter charges, water frontage charges and sewer taxes, rents and charges, if any, provided that such items are
not due and payable. If the Purchaser delivers a Title Objection Notice to the Sellers within either of the above-described periods,
the Sellers shall have three (3) Business Days after receipt of the Title Objection Notice (such period is the “Seller
Response Period”) in which to send the Purchaser a written notice (the “Title Objection Response Notice”)
informing the Purchaser of which Existing or New Title Matters (collectively the “Title Matters”), as applicable,
the Sellers will and will not agree to cure prior to the Closing Date (as the same may be extended as provided herein). If the
Sellers fail to deliver the Title Objection Response Notice with respect to any Title Matters to the Purchaser on or before the
expiration of the Seller Response Period, the Sellers shall be deemed to have refused to cure such Title Matter. The Closing Date
may be extended by the Sellers to accommodate the giving of notices and the cure periods contemplated herein, provided that the
Closing Date shall not be extended by the Sellers for a period beyond the date which is ten (10) days after the last Title Objection
Notice is delivered by Purchaser, for the purposes of curing any Title Matter to which the Purchaser has objected and which the
Sellers have informed the Purchaser they have agreed to cure and, in


 




    	15



    	 



    

such event, the Closing shall occur upon
the curing of such Title Matters. If the Sellers are unable after using commercially reasonable efforts (considered in the context
of the allotted time) during such period to cure any such Title Matter, the Sellers shall be deemed to have refused to cure such
Title Matter. If the Sellers refuse (or are deemed to have refused) to cure any Title Matter set forth in the Title Objection Notice,
the Purchaser shall have three (3) Business Days after receipt of Sellers’ Title Objection Response Notice (or, if Seller
has not responded to the Title Objection Notice, then within three (3) Business Days following the expiration of the Seller Response
Period) in which to advise the Sellers in writing of the Purchaser’s election (x) to waive its objection to the Title Matters
that Sellers either refused to cure, or could not cure, and to proceed to the Closing or (y) to terminate this Agreement, in which
event the Parties shall have no further obligations or liabilities under this Agreement other than the Surviving Obligations, which,
solely to the extent this Agreement was terminated due to Purchaser objecting to Title Matters consented to or created by the Sellers,
shall include the obligation of the Sellers to reimburse the Purchaser in the amount equal to the lesser of (i) Purchaser Expenses
and (ii) the Reimbursement Cap in accordance with Section 10.1(d) hereof. If the Purchaser does not terminate this Agreement
pursuant to the preceding sentence, then all Title Matters appearing in the Title Objection Notice that Sellers either did not
agree to cure (as set forth in the Title Objection Response Notice) or could not cure by Closing shall be deemed Permitted Liens.
The Purchaser agrees that the Sellers may cure any objectionable matter by causing the Title Company to remove the same as an exception
in the applicable Title Policy or to affirmatively insure over such matter.


 


(c)               
The title insurance policies issued to the Purchaser as of the Closing shall be dated as of the date of Closing, insure
the fee simple interest or leasehold interest, as applicable, of the Purchaser in the Seller Real Property or Leasehold Interests,
as applicable, in the form of the Pro Forma 2006 ALTA Title Policies (except for Facilities located in the state of Texas), each
subject to only the Permitted Liens (each a “Title Policy” and collectively the “Title Policies”)
and cover the “gap period”. The Sellers and the Purchaser shall execute customary affidavits, gap indemnities and other
instruments, in forms reasonably agreed by the party(ies) thereto, as reasonably requested by the Title Company to cause the Title
Company to issue the Title Policies.


 


Section 4.5          Further Assurances. In addition to the acts and deeds recited herein and contemplated to be performed, executed or
delivered by the Sellers, the Sellers hereby agree to perform, execute and deliver, or cause to be performed, executed and delivered,
on the Closing Date or thereafter any and all such further acts, deeds and assurances the Purchaser may reasonably require in order
to consummate fully the transactions contemplated hereunder The obligation of the Parties under this Section 4.5 shall survive
the Closing.


 


Section 4.6           
8-K Requirements.


 


(a)               
For a period from the date hereof until three (3) years after Closing, the Sellers shall from time to time upon Purchaser’s
request, make the Facility Balance Sheets and Income Statements, Financial Statements, any underlying financial data associated
therewith, and all other books, records and files relating to any period prior to the Closing (whether in paper or electronic format)
available to the Purchaser for inspection, copying and audit by Purchaser and Purchaser’s designated accountants, at the
Purchaser’s expense. Provided that Purchaser


 




    	16



    	 



    

agrees to bear any associated third-party
expense (i.e. excluding expenses of Sellers’ personnel and other overhead expenses), the Sellers shall provide the Purchaser
with copies of, or access to, such factual information as may be reasonably requested by the Purchaser, and in the possession or
under the direct or indirect control of the Sellers, to enable the Purchaser or an affiliate (or their respective successors) to
(x) include such information in registration statements, offering memoranda or prospectuses, or similar disclosure documents in
connection with syndications, private placements or public offerings of equity or debt securities or interests of the Purchaser
or any of its affiliates, and (y) comply with all reporting and disclosure requirements of Purchaser or any of its affiliates under
applicable federal and state laws and the rules and regulations promulgated thereunder, as such requirements are interpreted in
good faith by Purchaser or any such affiliate.


 


(b)              
Without limiting the foregoing, the Purchaser or its designated independent or other accountants may audit the Financial
Statements and any other financial statements of the Sellers, and the Sellers shall supply such documentation in their possession
or under their direct or indirect control as the Purchaser or its accountants may reasonably request in order to complete such
audit, and the Sellers shall execute the form of audit and representation letter reasonably required by such accountants, and take
such other actions as shall be reasonably necessary, in order to (i) permit such accountants to provide an unqualified audit opinion
in accordance with generally accepted accounting principles with respect to such audit, (ii) obtain the consent of such accountants
to the inclusion of such opinion in one or more reports or registration statements that may be filed by Purchaser or an affiliate
with the Securities and Exchange Commission, or in any offering memorandum or similar disclosure documents in connection with any
syndications or private placements, (iii) cause such accounting firm to issue one or more customary comfort letters with respect
to financial information of the Sellers, and (iv) cause such accounting firm to perform a review of any interim financial periods
in accordance with AU 722 in order to be able to provide customary comfort with respect to such periods. The Sellers shall otherwise
reasonably cooperate with the Purchaser and its affiliates, accountants and auditors in connection with any public or private offering
of equity or debt securities which, in Purchaser’s (or such affiliate’s) good faith judgment, may require disclosure
of information relating to Seller Real Property or the Business for any period prior to the Closing. In this connection, Sellers
shall cause to be made reasonably available to the Purchaser and its affiliates, accountants and auditors such personnel of Sellers
or of any affiliate of Sellers (including, without limitation, management personnel employed in connection with any of the Seller
Real Property) to address questions relating to the financial statements, financial data, and/or the ownership, operation and/or
financial performance of the Seller Real Property and the Business for any period prior to the Closing.


 


(c)               
In addition, from the date hereof in connection with any financing sought to be obtained by the Purchaser for its acquisition
of Seller Real Property at the Closing, the Sellers shall reasonably cooperate (and shall cause associated management personnel
reasonably to cooperate) to expedite and assist with the consummation such financing, provided that Purchaser bears any associated
third-party expense. Without limitation, such cooperation shall include, upon the Purchaser’s request (with the Purchaser
bearing any associated third-party expenses): establishing special purpose entities and associated structuring changes, implementing
documentation and other changes to facilitate “sale” treatment of the Purchaser’s acquisition of the Assets for
accounting and/or “true sale” legal purposes, implementing changes in accounts as


 




    	17



    	 



    

the lender may reasonably request, and
making appropriate personnel reasonably available to address questions and issues. The obligations of the Parties under this Section
4.6 shall survive the Closing.


 


Section 4.7           
Phase I Updates. The Sellers shall provide an updated Phase I environmental report for the Westmont Facility and
the Simi Hills Facility on the Data Site (the “Updated Report”) on or prior to Closing. If the Updated Report
recommends that the Sellers take any further action with respect to any environmental matter not already disclosed on the prior
Phase I environmental report that was provided on the Data Site on or prior to the Effective Date, the Sellers, as applicable,
shall either (i) take such recommended action at the Sellers’ sole cost and expense, or (ii) cause the Master Tenant under
the Master Lease, or the applicable Subtenant, to take such recommended action at Master Tenant’s or such Subtenant’s
sole cost and expense; provided, however, that any costs or expenses incurred by tenant or such subtenant to take such recommended
action shall not be counted towards the satisfaction of the obligation of Master Tenant to incur capital expenditures under the
Master Lease.


 


ARTICLE
V



COVENANTS OF THE PURCHASER


 


The Purchaser covenants
and agrees with the Sellers that:


 


Section 5.1           
Cooperation. After the Closing Date, the Purchaser, at Sellers’ expense, shall cooperate with the Sellers and
provide reasonable access to the Books and Records in the Purchaser’s possession that are required by the Sellers to respond
to any third party litigation, government audit, other audit or any other reasonable purpose, upon reasonable advance notice. The
Sellers shall be responsible for the cost and expense of copying any records in the Purchaser’s possession. The obligation
of the Parties under this Section 5.1 shall survive the Closing.


 


Section 5.2           
Further Assurances. In addition to the acts and deeds recited herein and contemplated to be performed, executed or
delivered by the Purchaser, the Purchaser hereby agrees to perform, execute and deliver, or cause to be performed, executed and
delivered, on the Closing Date or thereafter any and all such further acts, deeds and assurances Sellers may reasonably require
in order to consummate fully the transactions contemplated hereunder. The obligation of the Parties under this Section 5.2
shall survive the Closing.


 


ARTICLE
VI



OTHER COVENANTS


 


Section 6.1           
Confidentiality. From and after the Effective Date through the Closing and thereafter, each Party shall use all information
that it obtains from the other in connection with, or pursuant to, this Agreement and observe the terms of this Section 6.1.
Except as otherwise permitted under this Agreement, each Party shall use the Confidential Information solely for the effectuation
of the transactions contemplated by this Agreement or for other 



    	18



    	 



    

purposes consistent with the intent of this Agreement and shall
not use any of such information for any other purpose, including the competitive detriment of the other Parties.


 


(a)               
Each Party may disclose (i) such information to its respective Affiliates, counsel, accountants, underwriters, tax advisors
and consultants as necessary to consummate this transaction. Additionally, the Parties hereby agree that neither Party shall make
any announcement or press release regarding the nature or existence of this Agreement without the consent of the other Party; provided
that, each Party shall reasonably cooperate with the other Party in connection with the wording of any press release or other public
announcement. The terms of this Section 6.1 shall not prohibit the use or disclosure of confidential any information pursuant
to court order or which has otherwise become publicly available through no fault of the recipient party;


 


(b)              
Purchaser (or any of its Affiliates) shall be able to disclose such Confidential Information as is, in the good faith judgment
of Purchaser’s counsel, accountants or advisors, required or reasonably advisable to be disclosed because of the operation
of law, rule, regulation or legal process, a governmental agency such as the Internal Revenue Service or Securities and Exchange
Commission, or a stock exchange such as the New York Stock Exchange, court order or requirement of any Governmental Authority;
and


 


(c)               
Purchaser (or any of its Affiliates) shall be able to disclose such Confidential Information as is, in the good faith judgment
of Purchaser’s counsel, accountants or advisors, required or reasonably advisable to be disclosed in connection with Purchaser’s
(or any of its Affiliates’) quarterly earnings results or financing activities.


 


(d)              
Notwithstanding anything to the contrary contained herein, prior to the expiration of the Inspection Period, the terms and
existence of this Agreement shall be strictly confidential subject to any disclosure requirements imposed by any applicable Governmental
Authority and to the extent this Agreement is terminated at the expiration of the Inspection Period, its existence and terms shall
remain strictly confidential subject to any disclosure requirements imposed by any applicable Governmental Authority. This Section
6.1(d) shall survive termination of this Agreement.


 


If this Agreement is terminated for any
reason prior to Closing, the provisions of this Section 6.1 shall survive the Closing for a period of twenty-four (24) months.


 


Section 6.2           
Casualty Event. If between the Effective Date and the Closing a Casualty Event shall occur with respect to any one
or more Facilities, the Sellers shall be required to provide the Purchaser with prompt written notice of such occurrence and the
Purchaser or the Sellers may elect, within ten (10) Business Days of receipt of such notice, to terminate this Agreement, in which
event the Parties shall have no further obligations or liabilities under this Agreement. If between the Effective Date and the
Closing (i) a Casualty Event shall occur with respect to any one or more Facilities and neither the Purchaser nor the Sellers have
elected to terminate this Agreement in accordance with this Section 6.2 and not to proceed to Closing or (ii) a casualty
has occurred with respect to one or more Facilities that does not constitute a Casualty Event (provided the Sellers shall be required
to provide the Purchaser with prompt written notice of such occurrence in any event), all insurance proceeds and/or awards attributable
to any such 



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casualty shall be assigned to the Purchaser at Closing and the Sellers shall provide a credit against the Purchase
Price in the amount of any applicable insurance deductible payable or uninsured amount in connection therewith (and if any casualty
is uninsured, the amount of such uninsured casualty), and Purchaser agrees to make all such amounts immediately available to Master
Tenant if, as and when required under the Master Lease, which funds will be treated as if the Casualty Event or casualty occurred
during the term of the Master Lease.


 


Section 6.3           
Condemnation Event. If, prior to Closing, Sellers receive notice of any actual or threatened taking in condemnation
or by eminent domain (or a sale in lieu thereof) of all or any portion of any Seller Real Property, Sellers will notify the Purchaser
promptly thereof. Other than with respect to an Immaterial Taking, any actual or threatened taking or condemnation for any public
or quasi-public purpose or use by any competent authority in appropriate proceedings or by any right of eminent domain of all or
any part of a Seller Real Property between the Effective Date and the Closing shall, at the Purchaser’s or the Sellers’
option, cause a termination of this Agreement in which event the Parties shall have no further obligations or liabilities under
this Agreement with respect to such Facility or Facilities. The election to terminate provided hereby must be exercised by the
Purchaser or the Sellers (and if not timely exercised, shall be deemed waived by Purchaser or the Sellers) by written notice to
the other party given within ten (10) Business Days following the Purchaser’s receipt of Sellers’ notice of the condemnation
of all or any portion of any Seller Real Property. If neither party shall elect to terminate this Agreement or in the event of
an Immaterial Taking, Sellers shall assign at Closing to the Purchaser all net proceeds of any such taking or condemnation to the
extent not yet expended for the restoration of the Seller Real Property by the Sellers, and the Purchaser agrees to make all such
amounts immediately available to Master Tenant if, as and when required under the Master Lease, which funds will be treated as
if the condemnation or taking occurred during the term of the Master Lease.


 


ARTICLE
VII



INDEMNIFICATION


 


Section 7.1           
Indemnification by the Sellers.


 


(a)               
Subject to the limitations set forth in this Article VII, each Seller shall, jointly and severally, indemnify, protect,
defend, exculpate and hold the Purchaser and their Affiliates and their respective partners, directors, managers, members, shareholders,
officers, employees and agents (collectively, the “Purchaser Indemnified Parties”) harmless from and against,
and defend the Purchaser Indemnified Parties from and reimburse the Purchaser Indemnified Parties for, any and all actual losses,
damages, costs, expenses, liabilities, obligations and claims of any kind (including costs of investigation, reasonable attorneys’
fees and other legal costs and expenses, but not including consequential, punitive, treble or other similar damages, lost profits,
special or indirect damages, including loss of future revenue, profits or income or loss of business reputation or opportunity
related to the breach or alleged breach of this Agreement) (the “Purchaser Indemnified Losses”) which the Purchaser
Indemnified Parties shall at any time suffer or incur, or become subject to, as a result of or in connection with:


 




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(i)                
 Any breach or inaccuracy in any of the representations or warranties (other than a breach of Section 2.2(d)) as and when
made by the Sellers in or pursuant to this Agreement or any Seller Documents;


 


(ii)              
Any breach of any covenant, agreement or undertaking made by the Sellers under this Agreement;


 


(iii)            
Any failure by any Seller to satisfy any Excluded Liability; and


 


(iv)            
Any breach of Section 2.2(d) as and when made by the Sellers in or pursuant to this Agreement.


 


(b)              
Except as provided otherwise herein, (i) the aggregate liability of the Sellers for Purchaser Indemnified Losses under Section
7.1(a)(i) and Section 7.1(a)(ii) shall not exceed the amount of Fifteen Million ($15,000,000) in the aggregate, and
(ii) the Sellers shall be liable for Purchaser Indemnified Losses under Section 7.1(a)(i) or Section 7.1(a)(ii) only
if the aggregate Purchaser Indemnified Losses exceed the amount of Five Hundred Thousand Dollars ($500,000) (the “Seller
Basket”), at which point the Sellers shall be liable for all Purchaser Indemnified Losses (i.e., from the first dollar
of such Purchaser Indemnified Losses); provided, that Sellers’ obligations hereunder shall be reduced by the amount
of insurance proceeds, tax benefits, indemnification payments and other third-party payments, actually received in connection with
such claims (net of any costs incurred in recovering such amounts). For the avoidance of doubt, the limitations set forth in this
Section 7.1(b) shall not apply in the case of any claim made pursuant to Section 7.1(a)(iii).


 


Section 7.2           
Indemnification by the Purchaser.


 


(a)               
The Purchaser shall indemnify, protect, defend, exculpate and hold the Sellers and their Affiliates and their respective
partners, directors, managers, members, shareholders, officers, employees and agents (collectively, the “Seller Indemnified
Parties”), harmless from and against, and defend the Seller Indemnified Parties from and reimburse the Seller Indemnified
Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including costs of
investigation, reasonable attorneys’ fees and other legal costs and expenses, but not including consequential, punitive,
treble or other similar damages, lost profits, special or indirect damages, including loss of future revenue, profits or income
or loss of business reputation or opportunity related to the breach or alleged breach of this Agreement) (the “Seller
Indemnified Losses”) which the Seller Indemnified Parties shall at any time suffer or incur, or become subject to, as
a result of or in connection with:


 


(i)                
Any breach or inaccuracy of any of the representations or warranties made by the Purchaser in this Agreement;


 


(ii)              
Any breach of any covenant, agreement or undertaking made by the Purchaser under this Agreement; and


 


(iii)            
Any failure by Purchaser to satisfy the Assumed Liabilities.


 




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(b)              
 Except as provided otherwise herein, (i) the aggregate liability of the Purchaser for Seller Indemnified Losses pursuant
to Section 7.2(a)(i) and Section 7.2(a)(ii) shall not exceed the amount of Fifteen Million Dollars ($15,000,000)
in the aggregate and (ii) the Purchaser shall be liable for Seller Indemnified Losses pursuant to Section 7.2(a)(i) or Section
7.2(a)(ii) only if the aggregate Seller Indemnified Losses exceed the amount of Five Hundred Thousand Dollars ($500,000) (the
“Purchaser Basket”), at which point the Purchaser shall be liable for all Seller Indemnified Losses (i.e., from
the first dollar of such Seller Indemnified Losses); provided, that Purchaser’s obligations hereunder shall be reduced by
the amount of insurance proceeds, tax benefits, indemnification payments and other third-party payments, actually received in connection
with such claims (net of any costs incurred in recovering such amounts). For the avoidance of doubt, the limitations set forth
in this Section 7.2(b) shall not apply in the case of any claim made pursuant to Section 7.2(a)(iii).


 


Section 7.3           
Notification of Claims.


 


(a)               
Any and all claims by any Indemnified Party pursuant to this Article VII must be made in writing prior to 5:00 p.m.
(ET) on the last day of the Survival Period. Failure by any Section VII Indemnified Party to provide written notice of claim to
the Indemnifying Party prior to 5:00 p.m. (ET) on the last day of the Survival Period shall forever bar such Indemnified Party
from making any claim of any sort, including claims under this Agreement and all other agreements related to the sale and purchase
of the Assets, by statute, at common law or otherwise, and whether known or unknown, contingent, liquidated or unliquidated.


 


(b)              
A Party entitled to be indemnified pursuant to Sections 7.1 or 7.2 (the “Indemnified Party”)
shall notify the Party liable for such indemnification (the “Indemnifying Party”) in writing of any claim or
demand which the Indemnified Party has determined gives rise or will likely give rise to a right of indemnification under this
Agreement, promptly after the Indemnified Party becomes aware of such claim or demand and has made such determination; provided,
however, that the Indemnified Party’s failure to give such notice to the Indemnifying Party in a timely fashion shall
not result in the loss of the Indemnified Party’s rights with respect thereto except to the extent any Party to this Agreement
is prejudiced by the delay, and then only to the extent of such prejudice. Subject to the Indemnifying Party’s right to defend
in good faith third party claims as hereinafter provided, the Indemnifying Party shall satisfy its obligations under this Article
VII within thirty (30) days after the receipt of written notice thereon from the Indemnified Party.


 


(c)               
If the Indemnified Party shall notify the Indemnifying Party of any claim or demand pursuant to Section 7.3(a), and
if such claim or demand relates to a claim or demand asserted by a third party against the Indemnified Party which the Indemnifying
Party acknowledges is a claim or demand for which it must indemnify or hold harmless the Indemnified Party under Sections 7.1
or 7.2, the Indemnifying Party shall have the right to either (i) pay such claim or demand or (ii) employ counsel reasonably
acceptable to the Indemnifying Party to defend any such claim or demand asserted against the Indemnified Party. The Indemnified
Party, at its own expense, shall have the right to participate in the defense of any such claim or demand. The Indemnifying Party
shall notify the Indemnified Party in writing, as promptly as possible (but in any case reasonably in advance of the due date for
the answer or response to a claim) after the date of the notice of claim given by the Indemnified Party to the


 




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Indemnifying Party under Section 7.3(a)
of its election to defend in good faith any such third party claim or demand. So long as the Indemnifying Party is defending in
good faith any such claim or demand asserted by a third party against the Indemnified Party, the Indemnified Party shall not settle
or compromise such claim or demand. The Indemnified Party shall make available to counsel engaged by the Indemnifying Party all
records and other materials in the Indemnified Party’s possession reasonably requested for its use in contesting any third
party claim or demand. Whether or not the Indemnifying Party elects to defend any such claim or demand, the Indemnified Party shall
have no obligations to do so. Notwithstanding the foregoing, if the actual or potential defendants in, or targets of, such third
party claim include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party shall have reasonably concluded
that there are or are reasonably likely to be legal defenses available to it that are different from or additional to those available
to the Indemnifying Party or that there exists or is reasonably likely to exist a conflict of interest, in either case that would
make it inappropriate in the reasonable judgment of the Indemnified Party for the same counsel to represent both the Indemnified
Party and the Indemnifying Party, then the Indemnified Party shall be entitled to participate in the defense of such third party
claim, in which case the Indemnifying Party shall bear the reasonable fees, costs and expenses of one separate counsel to the Indemnified
Party in each jurisdiction (and shall pay reasonable fees, costs and expenses as incurred); provided that the Indemnified
Party shall use diligent and good faith efforts in such defense.


 


(d)              
An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim
against an Indemnified Party or consent to the entry of any judgment with respect to which indemnification is being sought hereunder
unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising
out of such claim and does not contain any equitable order, judgment or term which in any manner affects, restrains or interferes
with the business of the Indemnified Party or any of the Indemnified Party’s Affiliates.


 


Section 7.4           
Survival of Representations.


 


(a)               
Except as otherwise provided in this Section 7.4, (i) all representations and warranties contained in this Agreement
other than those set forth in Section 2.2(d) (and any claims for any breach thereof) or any Seller Document or Purchaser Document
(and any claims for any breach thereof) shall survive the Closing for a period of eighteen (18) months, and (ii) obligations of
the Parties with respect to Assumed Liabilities, Excluded Liabilities and for breaches of Section 2.2(d) shall survive indefinitely
(the “Survival Period”).


 


(b)              
Unless another date is specified herein, all of the representations and warranties made by Sellers or the Purchaser in this
Agreement are made as of the Effective Date and (without prejudice to the representations and warranties made as of the Effective
Date) shall be deemed remade as of the Closing pursuant to the Seller Certificate or the Purchaser Certificate, as applicable.
In connection with the remaking of representations and warranties as of the Closing (but not as to representations and warranties
made as of the Effective Date), Sellers and the Purchaser shall be permitted to update their representations and warranties (for
all purposes under this Agreement other than for purposes of satisfying the condition to Closing contained in Article VIII),
to accurately reflect the current state of matters as of the Closing, provided neither


 




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Sellers nor the Purchaser shall be permitted
to update their respective representations and warranties to reflect matters caused by the willful or intentional breach of this
Agreement by the Purchaser or Sellers, as applicable.


 


(c)               
All covenants and agreements contained in this Agreement (and any claims for any breach thereof) that by their terms apply
or are to be performed in whole or in part after the Closing shall remain in full force and effect after the Closing in accordance
with their terms (or, if no survival period is stated therein, then such covenants and agreements shall survive indefinitely).
All covenants and agreements contained in this Agreement that by their terms apply or are to be performed in their entirety on
or prior to the Closing shall terminate at the Closing.


 


(d)              
Notwithstanding the foregoing, if prior to 5:00 p.m. (ET) on the last day of the Survival Period, an Indemnifying Party
shall have been properly notified of a claim for indemnity hereunder and such claim shall not have been finally resolved or disposed
of at such date, such claim shall continue to survive and shall remain a basis for indemnity hereunder until such claim is finally
resolved or disposed of in accordance with the terms in this Agreement.


 


(e)               
Notwithstanding anything to the contrary contained in this Agreement, Sellers shall have no liability with respect to any
of Sellers’ representations or warranties herein or in any representations or warranties in any Seller Document if, prior
to the Closing, the Purchaser has actual knowledge of any breach by Sellers of such representation or warranty, or the Purchaser
obtains actual knowledge (from whatever source, as a result of the Purchaser’s due diligence tests, investigations and inspections
of the Assets, or as a result of written disclosure by Sellers or any of Sellers’ agents, representatives or employees) that
contradicts any of Sellers’ representations or warranties herein or in any representation or warranty in any Seller Document
(and the representations and warranties of Sellers shall be deemed modified thereby to be accurate), and the Purchaser nevertheless
consummates the transaction contemplated by this Agreement (in which event any such breach or contradiction shall be deemed waived
by the Purchaser).


 


Section 7.5           
No Punitive Damages. No Indemnified Party shall be entitled to indemnification for any punitive, consequential, special
or indirect damages, including business interruption, loss of future revenue, profits or income or loss of business reputation
or opportunity related to the breach or alleged breach of this Agreement.


 


Section 7.6           
Broker’s Fee. Sellers agree to indemnify and hold harmless the Purchaser from and against any loss, liability,
damage, cost or expense (including court costs and reasonable attorneys’ fees) paid or incurred by the Purchaser by reason
of any claim to any broker’s, finder’s or other fee in connection with this transaction by any party, claiming by,
through or under Sellers. The Purchaser agrees to indemnify and hold harmless Sellers from and against any loss, liability, damage
or expense (including court costs and reasonable attorneys’ fees) paid or incurred by Sellers by reason of any claim to any
broker’s, finder’s or other fee in connection with this transaction claiming by, through or under the Purchaser.







 




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Section 7.7           
Treatment of Indemnification Payments. Any payments made pursuant to the indemnification obligations arising under this Article VII shall be treated as adjustments
to the Purchase Price for all tax purposes.


 


Section 7.8           
Survival. The provisions of this Article VII shall survive the Closing or earlier termination of this Agreement.


 


ARTICLE
VIII



CONDITIONS


 


Section 8.1           
Conditions to Each Party’s Obligations. The respective obligations of each Party to effect the Closing are
subject to the satisfaction or waiver delivered to the other Party of each of the following conditions precedent:


 


(a)              There shall not be in force any order, decree, judgment or injunction of any Governmental Authority enjoining or prohibiting
the consummation of the transactions contemplated by this Agreement or any Seller Document or Purchaser Document; and


 


(b)              No Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i)
prevent consummation of the transactions contemplated by this Agreement, or (ii) cause the transaction contemplated by this Agreement
to be rescinded following consummation.


 


Section 8.2           
Conditions to Obligations of the Purchaser. The obligation of the Purchaser to effect the Closing is subject to the
satisfaction or waiver delivered to the Sellers of each of the following conditions precedent:


 


(a)             The representations and warranties of the Sellers set forth in this Agreement and in the Seller Documents that are qualified
as to materiality shall be true and correct and the representations and warranties of the Sellers that are not qualified as to
materiality shall be true and correct in all material respects, in each case, as of the Closing as though made as of the Closing;
provided that, to the extent that any such representation or warranty speaks as of a specified date, it need only be true and correct
as of such date.


 


(b)            
Each of the Sellers shall have performed and complied, in all material respects, with its agreements and covenants (in each
case, disregarding any materiality qualifiers contained therein) required to be performed or complied with under this Agreement
as of or prior to the Closing.


 


(c)              The Title Company shall, at the Closing, be irrevocably and unconditionally committed to issue each of the Title Policies
upon payment of the premium and the application of the Purchase Price to the repayment of any Indebtedness encumbering the Assets
, and such Title Policies shall not contain any exceptions to title other than the standard preprinted exceptions (unless the Purchaser
pays for extended coverage, in which case the standard preprinted exceptions shall not appear in the Title Policy) and the Permitted
Liens.


 




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(d)              
 Each of the Sellers shall have executed and delivered to the Purchaser or the Title Company their respective Seller Documents
and provided the Purchaser the items listed in Section 9.2(a).


 


(e)               Purchaser shall have obtained from a bank, insurance company, institutional lender or other financing source satisfactory
to Purchaser, a loan secured by a first priority security Lien on the Seller Real Property in such amount and upon such other terms
as Purchaser may approve in Purchaser’s sole and absolute discretion, and such loan shall be funded contemporaneously with
the Closing.


 


Section 8.3           
Conditions to Obligations of the Sellers. The obligation of each of the Sellers to effect the Closing is subject
to the satisfaction or waiver delivered to the Purchaser of each of the following conditions precedent:


 


(a)               The representations and warranties of the Purchaser set forth in this Agreement and the Purchaser Documents that are qualified
as to materiality shall be true and correct and the representations and warranties of the Purchaser that are not qualified as to
materiality shall be true and correct in all material respects, in each case, as of the Closing as though made as of the Closing;
provided that, to the extent that any such representation or warranty speaks as of a specified date, it need only be true and correct
as of such date.


 


(b)             
The Purchaser shall have performed and complied with in all material respects its agreements and covenants (in each case,
disregarding any materiality qualifiers contained therein) required to be performed or complied with under this Agreement as of
or prior to the Closing.


 


(c)              
The Purchaser shall have executed and delivered their respective Purchaser Documents and provided the Sellers the items
listed in Section 9.2(b).


 


(d)              
The Purchaser shall have wired the balance of the Purchase Price to be paid at the Closing to the Sellers.


 


(e)               
The Monetary Lien Condition has been, or simultaneously with the Closing will be, satisfied.


 


ARTICLE
IX



CLOSING


 


Section 9.1           
Possession. Possession of all Facilities and the other Assets sold hereunder shall be delivered to the Purchaser
on the Closing Date.


 


Section 9.2           
Closing Documents.


 


(a)            The Sellers shall deliver to the Purchaser on the Closing Date, the following:


 




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(i)                Deeds. Duly executed grant deeds for the Seller Real Property located in the State of California and special warranty
deeds (or the state equivalent) for the Seller Real Property located in the remaining states, in recordable form and otherwise
sufficient to convey such Seller Real Property to the Purchaser, subject to no Liens except Permitted Liens, and pursuant to the
laws of the state in which such Seller Real Property is located, as reasonably approved by the Purchaser and the Title Company;


 


(ii)              
Bill of Sale. A Bill of Sale duly executed by the Sellers, in the form of Exhibit 9.2(a)(ii) , sufficient
to convey such Personal Property to the Purchaser, subject to no Liens except Permitted Liens;


 


(iii)            
Assignment of Other Property. An Assignment and Assumption of Other Property duly executed by the Sellers in the
form of Exhibit 9.2(a)(iii);


 


(iv)            
Other Conveyance Instruments. Such other appropriate instruments of assignment and conveyance, in form mutually but
reasonably satisfactory to the Parties, dated as of the Closing Date, conveying all of the Sellers’ right, title and interest
in and title to the Assets, free and clear of all Liens except as otherwise permitted herein;


 


(v)              FIRPTA Certificate. Certificate and affidavit of the Sellers’ non-foreign status that complies with Section
1445 of the Code, in the form attached hereto as Exhibit 9.2(a)(v);


 


(vi)            
Evidence of Seller Authority. Evidence of the authority of each Seller to execute and deliver the applicable Seller
Documents in order to effectuate the Closing, including certificates of foreign qualification of the applicable Seller from the
Secretary of State or other applicable Governmental Authority in the jurisdiction where the applicable Seller Real Property is
located;


 


(vii)          
Bring-Down Certificate. A bring-down certificate executed by Sellers reaffirming that the representations and warranties
are true and correct as of the Closing Date in the form of Exhibit 9.2(a)(vii) (the “Seller Certificate”);


 


(viii)        
Tax Declarations. Such applicable sales tax or real property transfer tax forms or declarations or similar forms
as prepared by Purchaser and executed by Sellers as required by Applicable Law;


 


(ix)            
Closing Statement. The Closing Statement, executed by the Sellers and in form agreed to by the Sellers and the Purchaser
(the “Closing Statement”);


 


(x)              
Rent Roll. A rent roll for each Facility for the period ending not earlier than thirty (30) days prior to Closing,
certified by the Sellers as of the Closing Date as true, complete and accurate in all material respects as of the date indicated
therein;


 


(xi)            
Title Insurance. Customary owners’ affidavits, gap indemnities, in form reasonably agreed by the parties thereto,
as reasonably requested by the Title Company to cause the Title Company to issue the Title Policies; and


 




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(xii)          
 Master Lease. Seller shall cause an Affiliate of Sellers (“Master Tenant”) to (A) execute (i)
a Master Lease and Sublease in the form attached hereto as Exhibit 9.2(a)(xii) (the “Master Lease”) pursuant
to which Master Tenant will lease the Facilities from the Purchaser, and (ii) all documents required to be delivered in connection
with the Master Lease, including all guaranty agreements, security agreements, pledge agreements and subleases, and (B) execute
an agreement with the New Manager (or other manager party thereto) subordinating its interests in and to the management agreement(s)
set forth in accordance with the Master Lease.


 


(xiii)        
Assignment of Leasehold Interests. An Assignment and Assumption of Leasehold Interests duly executed by applicable
Sellers in the form of Exhibit 9.2(a)(xiii)


 


(xiv)        
Other Deliveries. Such other documents a reasonably necessary to effectuate the transactions described herein.


 


(Items (i) through (xiii) hereafter are
referred to as the “Seller Documents.”)


 


(b)              
The Purchaser shall deliver to the Sellers or cause to be delivered to the Sellers on the Closing Date the following:


 


(i)                
Assignment of Other Property. An Assignment of Other Property duly executed by the Purchaser in the form of Exhibit
9.2(a)(iii);


 


(ii)              
Bring-Down Certificate. A bring-down certificate executed by the Purchaser reaffirming that the representations and
warranties are true and correct as of the Closing Date in the form of Exhibit 9.2(b)(ii) (the “Purchaser Certificate”);


 


(iii)            
Tax Declarations. Such applicable sales tax or real property transfer tax forms or declarations or similar forms
as prepared and executed by the Purchaser as required by Applicable Law;


 


(iv)            
Closing Statement. The Closing Statement executed by the Purchaser;


 


(v)              
Title Insurance. Customary owners’ affidavits, gap indemnities and other instruments, in form reasonably acceptable
to the parties thereto, as reasonably requested by the Title Company to cause the Title Company to issue the Title Policies;


 


(vi)            
Evidence of Purchaser Authority. Evidence of the authority of the Purchaser to execute and deliver the applicable
Purchaser Documents in order to effectuate the Closing, including a good standing certificate of the Purchaser from the Secretary
of State in its state of organization; and


 


(vii)          
Master Lease. The Master Lease duly executed by Purchaser and all other documents required to be delivered by the
Master Lease to the extent such documents require Purchaser’s signature.


 




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(viii)        
 Other Deliveries. Such other documents a reasonably necessary to effectuate the transactions described herein;


 


(Items (i) through (viii) hereafter are
referred to as the “Purchaser Documents”).


 


Section 9.3           
Closing Adjustments. As the Master Lease is a triple net lease and the Master Tenant (as the tenant thereunder) is
entitled thereunder to all revenue of the Facilities and is liable for all expenses of the Facilities from and after Closing, including
the payment of real property taxes, there shall be no credits or prorations at the Closing between Purchaser and Sellers with respect
to the revenues or costs associated with owning or operating the Facilities. As applicable, all such credits and prorations shall
be made between Sellers and Master Tenant under terms outside of this Agreement.


 


Section 9.4           
Closing Costs; Transfer Taxes.


 


(a)               
Each Party shall pay its own legal, accounting and other professional fees incurred by such Party in connection with the
transactions described in this Agreement and any other cost or expense not specifically enumerated in Section 9.4(b). Purchaser
shall pay one hundred percent (100%) of any and all costs and expenses, including all documentary or similar taxes and recording
fees, that relate solely to borrowings by Purchaser to finance the acquisition of the Assets.


 


(b)              
Subject to Section 9.4(c), at or before the Closing, the Sellers shall pay all of the following transaction expenses
incurred in connection with the transactions described in this Agreement: (i) any escrow or closing charges of the Title Company;
(ii) any and all sales, documentary, stamp, transfer, sales, use, gross receipts or similar taxes or recording fees related to
the transfer of the Assets (collectively, the “Transfer Taxes”); (iii) any search fees and costs for the Initial
Title Commitments and any updates Purchaser deems reasonably necessary thereto; (iv) the cost of the Initial Surveys and any updates
Purchaser deems reasonably necessary thereto; (v) the cost of any reasonable U.C.C., judgment, bankruptcy, tax and other appropriate
searches reasonably acceptable to Purchaser, (vi) the premium for each Title Policy issued to the Purchaser, which premium shall
include the cost to obtain extended coverage and the following endorsements, to the extent available: zoning, comprehensive,
access, tax parcel (single or multiple as need), same as survey, contiguity (as needed), utility facility, (vii) the cost of any
endorsement required to cure or insure over any exceptions identified by the Purchaser in any Title Objection Notice which Sellers
agreed to cure, and (viii) the costs associated any Phase I environmental reports, property inspection reports and all other reports,
inspections and investigations placed in the Data Site by the Sellers.


 


(c)               
At Closing, the Closing Statement will reflect that Purchaser shall reimburse or pay, as the case may be, One Million Five
Hundred Thousand Dollars ($1,500,000) toward the expenses incurred by Sellers pursuant to Section 9.4(b).


 


(d)              
The Purchaser shall prepare and cause to be filed at Closing all applicable sales tax or real property transfer tax forms
or declarations or similar forms as required by Applicable Law. Sellers agree to reasonably cooperate in the preparation of such
declarations or forms.


 




 




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Section 9.5           
Survival. The terms of this Article
IX shall survive the Closing.


 


ARTICLE
X



TERMINATION AND ABANDONMENT


 


Section 10.1       
Method of Termination. This Agreement may be terminated and the transactions herein contemplated may be abandoned
at any time on or before the Closing:


 


(a)               by either Party in its sole discretion prior to the expiration of the Inspection Period;


 


(b)              
by mutual written consent of the Parties;


 


(c)               
by the Purchaser giving written notice to the Sellers at any time prior to the Closing in the event the Sellers have breached
any representation, warranty or covenant contained in this Agreement in any material respect, provided that the Purchaser has notified
the Sellers of the breach and the breach has continued without cure for a period of fifteen (15) days following the notice of breach;


 


(d)              
by the Purchaser giving written notice to the Sellers at any time after the later to occur of (i) the Outside Date (regardless
of whether the cure period set forth in Section 10.1(c) has expired) and (ii) the date to which the Sellers have postponed
the Closing pursuant to and in accordance with Section 4.4(b) hereof, if (i) Purchaser is ready, willing and able to close
on the date such notice is provided, which for purposes hereof, shall be based upon the Purchaser’s ability to demonstrate
the ability to fund all amounts necessary to consummate the Closing; provided however, the Purchaser shall be able to demonstrate
such ability to fund without having to actually fund such required amounts, and (ii) Sellers are unwilling or unable to close on
the date of such notice despite all of the conditions to Sellers’ obligation to close being satisfied in full, including,
without limitation, the Monetary Lien Condition (other than those conditions that by their nature cannot be satisfied or waived
until the Closing Date);


 


(e)               
by the Purchaser giving written notice to the Sellers at any time after the Outside Date if the Sellers are unable or unwilling
to close the transaction described herein on the basis that the Monetary Lien Condition has not been and simultaneously with the
Closing will not have been, satisfied;


 


(f)               
by the Sellers giving written notice to the Purchaser at any time prior to the Closing in the event the Purchaser has breached
any representation, warranty or covenant contained in this Agreement in any material respect, provided that the Sellers have notified
the Purchaser of the breach and the breach has continued without cure for a period of fifteen (15) days following the notice of
breach;


 


(g)              
by the Sellers giving written notice to the Purchaser at any time after the Outside Date (regardless of whether the cure
period set forth in Section 10.1(f) has expired) if (i) Sellers are is ready, willing and able to close on the date such
notice is provided, and (ii) Purchaser is unwilling or unable to close on the date of such notice despite all of the conditions


 




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to Purchaser’s obligation to close
being satisfied in full (other than those conditions that by their nature cannot be satisfied or waived until the Closing Date);


 


(h)              
by the Purchaser or the Sellers pursuant to Sections 4.4(b), 6.2 or 6.3; or


 


(i)                
by either Party, by giving written notice to the other Party, if a court of competent jurisdiction or other Governmental
Authority shall have issued a non-appealable final order, decree or ruling or taken any other action, in each case having the effect
of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated hereby, unless the Party relying on
such order, decree or ruling or other action has not complied in all material respects with its obligations under this Agreement.


 


Section 10.2       
Procedure Upon Termination. In the event either party exercises its right to terminate this Agreement pursuant to
Section 10.1, this Agreement shall immediately terminate and shall be abandoned, without further action by any of the Parties.
If this Agreement is terminated for any reason, no Party shall have any liability or further obligation except as set forth in
Section 10.3 and for the Surviving Obligations.


 


Section 10.3       
Effect of Termination; Remedies for Default; Break Up Fees.


 


(a)               
Reserved.


 


(b)              
Purchaser Defaults. If the Sellers terminate this Agreement pursuant to Section 10.1(f) or Section 10.1(g),
then within three (3) Business Days following such termination the Purchaser shall pay to the Sellers cash in good funds in the
amount of the Break Up Fee. In addition, the Surviving Obligations shall remain in effect.


 


(c)               
Specific Performance. If the Purchaser has the right to terminate this Agreement pursuant to Section 10.1(d),
the Parties agree that because Purchaser will not have an adequate remedy at law, Purchaser shall have the right, in lieu of termination
of this Agreement, to seek specific performance.


 


(d)              
Representation and Warranty Defaults. In the event that the Purchaser terminates this Agreement pursuant to Section
10.1(c), as a result of the Sellers’ breach of a material representation and warranty which breach (i) existed as of
Effective Date or (ii) occurred after the Effective Date but prior to the Closing Date as a result of the Sellers’ intentional,
willful or negligent actions, the Sellers shall pay to the Purchaser an amount equal to the lesser of (i) Purchaser’s Expenses
and (ii) the Reimbursement Cap within three (3) Business Days following such termination.


 


(e)               
Other Termination. If this Agreement is terminated pursuant to Section 10.1(a), Section 10.1(b), Section
10.1(c) (other than as a result of breaches covered by Section 10.3(d)(i) or Section 10.3(d)(ii)), Section
10.1(e), Section 10.1(h) or Section 10.1(i), then the only obligations of the Parties shall be the Surviving
Obligations.


 


(f)               
Liquidated Damages. The Parties have agreed that the actual damages of either Party, in the event of a failure of
the other Party to consummate the transactions described herein due to a default or breach of its covenants hereunder, would be
extremely difficult or


 




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impracticable to determine. After negotiation,
the Parties have agreed that, considering all the circumstances existing on the date of this Agreement, in the circumstances set
forth in this Agreement requiring payment of the same, an amount equal to the Break Up Fee is a reasonable estimate of the damages
that the applicable Party would incur in such event.


 


ARTICLE
XI



MISCELLANEOUS PROVISIONS


 


Section 11.1       
Amendment and Modification. This Agreement may be amended, modified and supplemented only by written agreement signed
by all of the Parties.


 


Section 11.2       
Waiver of Compliance; Consent. Any failure of the Sellers on the one hand, or the Purchaser, on the other hand, to
comply with any obligation, covenant agreement or condition herein may be waived in writing by the other Party, but such waiver
or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver
of, or estoppel with respect to, any subsequent or other failure. Whenever this Agreement requires or permits consent by or on
behalf of any Party, such consent shall be given in writing in a manner consistent with the requirements for a waiver of compliance
as set forth in this Section 11.2.


 


Section 11.3       
Notice. All notices, requests, demands and other communications required or permitted hereunder shall be in writing
and shall be personally delivered, or sent by facsimile transmission or electronic mail (provided a copy is thereafter promptly
mailed or delivered as hereinafter provided), or sent by overnight commercial delivery service (provided a receipt is available
with respect to such delivery), and shall be effective when received during business hours (a business hour being the hours from
8:00 a.m. to 5:00 p.m. on Business Days and if notice is received after business hours it shall be deemed delivered on the next
Business Day), if sent by personal delivery, by facsimile transmission, electronic mail or by overnight delivery service:


 


(a)           If to the Purchaser, to:


 


NIC Acquisitions LLC

c/o Fortress Investment Group LLC

1345 Avenue of the Americas, 46th Floor

New York, NY  10105

Telephone:     (212) 798-6100

Attention: Jonathan Brown




    	32



    	 



    

With a copy to:


 


Donald A. Stern

Cleary Gottlieb Steen & Hamilton LLP

c/o Donald A. Stern  

One Liberty Plaza, New York NY 10006

Telephone: (212) 225-2640

Facsimile: (212) 225-3999

Email: dstern@cgsh.com


 


(b)           If to the Sellers, to:


 


c/o - Holiday Retirement

5885 Meadows Rd., Suite 500

Lake Oswego, OR 97035

Attn: Chief Legal Officer

E-mail: legal@holidaytouch.com


 


with a copy (which shall not constitute
notice) to:


 


Skadden, Arps, Slate, Meagher
& Flom LLP

4 Times Square

New York, New York 10036

Attn: Neil Rock

Tel: (212) 735-3787

Fax: (917) 777-3787

Email: neil.rock@skadden.com


 


or to such other person or address as any
Party shall furnish to the other Party in writing pursuant to this Section 11.3. Notice shall be deemed given to any Person
in accordance with the terms of this Section 11.3 if and when rejected by such Person.


 


Section 11.4       Bulk Sales Laws. The Purchaser and Sellers hereby waive compliance by the other with the provisions of any bulk sales,
bulk transfer or similar laws of any jurisdiction that may otherwise be applicable with respect to the sale of all or any portion
of the Assets to the Purchaser.


 


Section 11.5       
Expenses. Except as otherwise provided herein, each Party shall bear its own costs and expenses (including legal
fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby.


 


Section 11.6       
Assignment. This Agreement and all of the terms, covenants and conditions in this Agreement shall be binding upon
and inure to the benefit of the Parties and their respective heirs, successors and permitted assigns. Neither the Purchaser nor
the Sellers may assign this Agreement without first obtaining the other Party’s prior written consent, which may be withheld
in the other Party’s sole discretion. No permitted assignment of this Agreement shall release the Purchaser from its obligations
hereunder. Notwithstanding the foregoing, this Agreement may be assigned by Purchaser to one or more Affiliates of Purchaser at
Closing; 



    	33



    	 



    

provided that (i) Purchaser and any assignees by accepting assignment of this Agreement, expressly agrees to defend and
indemnify the Sellers from any litigation arising out of the assignment; (ii) no further assignment shall occur without the prior
written consent of the Seller; and (iii) written notice of the assignment, is provided to the Sellers no fewer than five (5) Business
Days prior to Closing.


 


Section 11.7       
Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of New York,
without giving effect to any principles regarding conflict of laws to the extent such principles would require or permit the application
of the laws of another jurisdiction.


 


Section 11.8       
Business Day. If the date for giving of notice or performance of any duty or obligation hereunder falls on a day
that is not a Business Day hereunder, such date shall be automatically extended to the next Business Day hereunder.


 


Section 11.9       
Counterparts. This Agreement may be executed by facsimile signature or other electronic form of signature, (including
“pdf”) and in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.


 


Section
11.10     Headings. The Article and
Section headings and table of contents contained in this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.


 


Section 11.11   
Entire Agreement. This Agreement, as such term is used throughout, includes the Exhibits and Disclosure Schedules
hereto and embodies the entire agreement and understanding of the Parties in respect of the subject matter contained herein. There
are no restrictions, promises, representations, warranties, covenants, agreements or undertakings, other than those expressly set
forth or referred to herein. This Agreement supersedes all prior agreements and understandings among the Parties with respect to
such subject matters contained herein.


 


Section 11.12   
Warranty of Authority. Each of the Parties warrants that the persons signing on their behalf have the right and power
to enter into this Agreement and to bind them to the terms of this Agreement.


 


Section 11.13   
Publicity. All pre-Closing publicity concerning the transactions contemplated by this Agreement and all notices respecting
publicity shall be jointly planned, coordinated and released by and among the Parties; provided, however, that nothing
herein shall prohibit either Party from making any press release or disclosure as may be required to comply with Applicable Law,
regulation or stock market rule provided that the releasing or disclosing Party provides notice to the other of the substance of
such release or disclosure in advance thereof.


 


Section 11.14   
Waiver of Jury Trial. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION BROUGHT ON IN CONNECTION WITH ANY MATTER ARISING




    	34



    	 



    

OUT OF OR IN ANY WAY CONNECTED WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 11.14
SHALL SURVIVE THE CLOSING OR EARLIER TERMINATION OF THIS AGREEMENT.


 


Section 11.15   
Third Party Beneficiaries. Nothing in this Agreement, expressed or implied, is intended or shall be construed to
confer upon any third party other than the Parties hereto and the Indemnified Parties as set forth in Article IV and Article
VII any right, remedy or claim under or by reason of this Agreement.


 


Section 11.16   
Interpretation. When a reference is made in this Agreement to an Article, a Section, Exhibit or section of the Disclosure
Schedules, such reference shall be to an Article of, a Section of, or an Exhibit or section of the Disclosure Schedules to, this
Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including”
are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,”
“herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement. All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions
contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any
agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified
or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession
of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to
a person are also to its permitted successors and assigns. The Parties have participated jointly in the negotiating and drafting
of this Agreement. In the event of an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue
of the authorship of any provisions of this Agreement. In the event of a conflict between this Agreement and any Exhibit hereto,
this Agreement shall govern.


 


Section 11.17   
Submission to Jurisdiction. Each Party (i) submits to the exclusive jurisdiction of the state courts of the State
of New York in New York County and to the jurisdiction of the United States District Court for the Southern District of New York
for the purposes of each and every suit, action or other proceeding arising out of or based upon this Agreement or the subject
matter hereof brought by the Parties, it being expressly understood and agreed that this consent to jurisdiction shall be self-operative
and no further instrument or action, other than service of process as required by law, shall be necessary in order to confer jurisdiction
upon a party in any such court; and (ii) waives, and agrees not to assert, by way of motion, as a defense, or otherwise, in any
suit, action or proceeding brought in any such court, any claim that either the Purchaser or Sellers are not subject personally
to the jurisdiction of the above-named courts, that the Purchaser’s or Sellers’ property is exempt or immune from attachment
or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding
is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court, and further agrees to
waive, to the fullest extent permitted under Applicable Law, the benefit of any defense that would hinder, fetter or delay the




    	35



    	 



    

levy, execution or collection of any amount to which Sellers, the Purchaser or its respective successors or assigns are entitled
pursuant to the final judgment of any court having jurisdiction.


 


Section 11.18   
Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced
by any rule of Applicable Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain
in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced,
the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely
as possible to the fullest extent permitted by Applicable Law in an acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the extent possible.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT
BLANK]


 




    	36



    	 



    

IN WITNESS WHEREOF,
each of the Parties has executed this Agreement as of the date first written above.


 





	 	 	SELLERS: 
	 	 	 
	 	 	Blair House Retirement Residence LP


St. Louis Retirement Residence
LP


Denton Retirement Residence
LP


Lemoyne Retirement Residence
LP


Greeley Retirement Residence
LP


Harrisburg Retirement Residence
LP


Flower Mound Retirement Residence
LP


Holiday Retirement Associates
III LP


Simi Valley Retirement Residence
LP


Boyertown Retirement Residence
LP


Durham Retirement Residence
LP



	 	 	 
	 	 	By: Harvest General Partner II LLC, Its
	 	 	General Partner
	 	 	 
	 	 	By:	 
	 	 	Name:	Scott Shanaberger
	 	 	Title:	Chief Financial Officer
	 	 	 



 


 


Signature Pages
to NCT Purchase Agreement






    	 



    	 



    


 


	 	 	 
	 	 	

Yorktown Retirement Residence
LLC


Sarasota Retirement Residence
LLC


Greece Retirement Residence,
LLC


Paducah Retirement Residence
LLC


Cary Retirement Residence
LLC


Rocky Hill Retirement Residence
LLC


Fayetteville Retirement Residence
LLC


Eau Claire Retirement Residence
LLC


St. Louis Retirement Residence
III LLC


Logan Retirement Residence
LLC


Madrona Ridge, L.L.C.


Rock Creek Retirement Residence
LLC


Corvallis Retirement Residence
LLC


Shreveport Retirement Residence
II LLC


Topeka Retirement Residence
LLC


Surprise Retirement Residence
LLC





	 	 	 
	 	 	By: Harvest General Partner II LLC, Its
	 	 	General Partner
	 	 	 
	 	 	By:	 
	 	 	Name:	Scott Shanaberger
	 	 	Title:	Chief Financial Officer
	 	 	 




 





 


Signature Pages
to NCT Purchase Agreement








    	 



    	 



    
	 	 	 
	 	 	



Harvest Arlington Retirement
Residence LLC


Harvest Bentley Retirement Residence
LLC


Port Huron Retirement Residence
LLC


Harvest Citation - Chateau Ridgeland
Retirement Residence LLC


Tallahassee Retirement Residence
LLC


Harvest Country Squire Retirement
Residence LLC


Harvest Citation - Lakewood
LLC


Harvest El Dorado Retirement
Residence LLC


Harvest Hidden Lakes Retirement
Residence LLC


Harvest Grasslands Estates Retirement
Residence LLC


Harvest Grizzly Peak Retirement
Residence LLC


Harvest Fountains at Hidden
Lakes Retirement Residence LLC


Harvest Illahee Hills Retirement
Residence LLC


Harvest Madison Estates LLC


Harvest Palmer Hills Retirement
Residence LLC


Harvest Parkwood Estates Retirement
Residence LLC


Harvest Pueblo Regent Retirement
Residence LLC


Harvest Regency Residence Retirement
Residence LLC


Harvest Sky Peaks Retirement
Residence LLC


Harvest Uffelman Estates Retirement
Residence LLC


Harvest Ventura Place Retirement
Residence LLC


Harvest Village Gate Retirement
Residence LLC


Harvest Westmont Retirement
Residence LLC


Harvest Whiterock Court Retirement
Residence LLC




	 	 	 
	 	 	By: Harvest Mezzanine II LLC
	 	 
	 	 	 
	 	 	By:	 
	 	 	Name:	Scott Shanaberger
	 	 	Title:	Chief Financial Officer
	 	 	 


 


Signature Pages
to NCT Purchase Agreement






 
    	 



    	 



    

 

	 	 	 
	 	 	HARVEST REGENT CORVALLIS LLC
	 	 	 
	 	 	By: Harvest Facility Holdings II LP,
	 	 	 	 	 
	 	 		By:	Harvest Facility Holdings II GP
	 	 	 	 	LLC, Its General Partner
	 	 	 

                    

	 	 	 
	 	 	By:	 
	 	 	Name:	Scott Shanaberger
	 	 	Title:	Chief Financial Officer
	 	 	 



 


 


[END OF SELLERS’
SIGNATURE PAGES]


 


 


Signature Pages
to NCT Purchase Agreement 



 




    	 



    	 



    

 








	PURCHASER:	 
	 	 	 
	NIC ACQUISITIONS LLC 	 
	 	 	 
	By:	
        
	 
	Name:	Jonathan Brown	 
	Title:	Chief Financial
Officer	 







 


 


 


[END OF PURCHASER’S SIGNATURE
PAGES]


 




    	 



    	 



    

 


JOINDER BY HARVEST FACILITY HOLDINGS
LP:


 


Harvest Facility Holdings
LP (“Sellers’ Guarantor”), hereby joins in the execution of this Agreement and hereby unconditionally
guaranties to the Purchaser the full and faithful payment and performance by the Sellers of all of their obligations to the Purchaser
under this Agreement. The liability of Sellers’ Guarantor hereunder shall in no way be affected, diminished or released by
any extension of time or forbearance that may be granted by the Purchaser to the Sellers or by the acceptance by the Purchaser
of additional security for performance of the Agreement or any release, substitution or changes in any such security, or by any
modifications, amendments or extensions of the Agreement agreed upon by the Sellers and the Purchaser. The Purchaser, in its sole
discretion, may waive or release any provision or provisions of the Agreement as the Purchaser may deem proper or desirable, without
any notice to or further assent from Sellers’ Guarantor and without in any manner impairing or affecting this guaranty as
to any provision(s) not so waived or released or any of the Sellers’ Guarantor’s obligations hereunder. Sellers’
Guarantor waives all rights and defenses arising out of an election of remedies by the Purchaser, even though that election of
remedies has destroyed Sellers’ Guarantor’s rights of subrogation and reimbursement against the Sellers. Sellers’
Guarantor waives all suretyship rights or defenses under applicable law. The Purchaser may enforce this guaranty against the Sellers’
Guarantor without the necessity at any time of resorting to or exhausting any other remedy or any other security or collateral
and without the necessity at any time of having recourse to any of its rights or remedies under the Agreement, and without the
necessity of proceeding against the Sellers. This is a guaranty of payment and performance and not merely of collection. The obligations
of Sellers’ Guarantor hereunder are absolute, primary, unconditional and irrevocable obligations, enforceable by the Purchaser
at the Purchaser’s election, simultaneously with or after proceeding against Sellers or without the necessity of any suit
or proceedings against the Sellers, and in any event, without the necessity of any notice of non-payment, non-performance or non-observance,
or of any notice of acceptance of this guaranty or any other notice or demand to which Sellers’ Guarantor might otherwise
be entitled or that may be required to preserve any rights against Sellers’ Guarantor, all of which Sellers’ Guarantor
expressly waives.


 





 








	HARVEST FACILITY HOLDINGS LP	 
	 	 	 
	 	 	 
	By:	
        	 
	 	 	 
	Name:		 
	 	 
	Title: 	 







 









    	 



    	 



    

 


JOINDER BY NEWCASTLE SENIOR LIVING
HOLDINGS LLC:


 


Newcastle Senior Living
Holdings LLC (“Purchaser’s Guarantor”), hereby joins in the execution of this Agreement and hereby unconditionally
guaranties to the Sellers the full and faithful payment and performance by the Purchaser of all of their obligations to the Sellers
under this Agreement. The liability of Purchaser’s Guarantor hereunder shall in no way be affected, diminished or released
by any extension of time or forbearance that may be granted by the Sellers to the Purchaser or by the acceptance by the Sellers
of additional security for performance of the Agreement or any release, substitution or changes in any such security, or by any
modifications, amendments or extensions of the Agreement agreed upon by the Purchaser and the Sellers. The Sellers, in their sole
discretion, may waive or release any provision or provisions of the Agreement as the Sellers may deem proper or desirable, without
any notice to or further assent from Purchaser’s Guarantor and without in any manner impairing or affecting this guaranty
as to any provision(s) not so waived or released or any of the Purchaser’s Guarantor’s obligations hereunder. Purchaser’s
Guarantor waives all rights and defenses arising out of an election of remedies by the Sellers, even though that election of remedies
has destroyed Purchaser’s Guarantor’s rights of subrogation and reimbursement against the Purchaser. Purchaser’s
Guarantor waives all suretyship rights or defenses under applicable law. The Sellers may enforce this guaranty against the Purchaser’s
Guarantor without the necessity at any time of resorting to or exhausting any other remedy or any other security or collateral
and without the necessity at any time of having recourse to any of its rights or remedies under the Agreement, and without the
necessity of proceeding against the Purchaser. This is a guaranty of payment and performance and not merely of collection. The
obligations of Purchaser’s Guarantor hereunder are absolute, primary, unconditional and irrevocable obligations, enforceable
by the Sellers at the Sellers’ election, simultaneously with or after proceeding against Purchaser or without the necessity
of any suit or proceedings against the Purchaser, and in any event, without the necessity of any notice of non-payment, non-performance
or non-observance, or of any notice of acceptance of this guaranty or any other notice or demand to which Purchaser’s Guarantor
might otherwise be entitled or that may be required to preserve any rights against Purchaser’s Guarantor, all of which Purchaser’s
Guarantor expressly waives.


 






	NEWCASTLE SENIOR LIVING HOLDINGS LLC	 
	 	 	 
	 	 	 
	By:	
        	 
	 	 	 
	Name:		 
	 	 
	Title: