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EXHIBIT 2.10
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MEMBERSHIP INTEREST PURCHASE AGREEMENT
between
BROOKDALE DEVELOPMENT, LLC,
a Delaware limited liability company
and
DBF CONSULTING, LLC,
a Pennsylvania limited liability company
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Dated as of March 1, 2005
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MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS
MEMBERSHIP INTEREST PURCHASE AGREEMENT (this "Agreement") is made
as
of March 1, 2005, by and between DBF
CONSULTING, LLC, a Pennsylvania limited
liability company (the "Company"), and
BROOKDALE DEVELOPMENT, LLC, a Delaware
limited liability company (the
"Purchaser").
WITNESSETH:
WHEREAS,
the Company owns all of the issued and outstanding membership
interests (the "Subject Interests") in AH
Ohio-Columbus Member, LLC, an Ohio
limited liability company ("Columbus
Member"); and
WHEREAS,
Columbus Member owns all of the issued and outstanding
membership
interests (the "Columbus Membership
Interests") in AH Ohio-Columbus Owner, LLC,
an Ohio limited liability company
("Columbus Owner", collectively, Columbus
Owner and Columbus Member are the "Columbus
Entities");
WHEREAS,
the Subject Interests and the Columbus Membership Interests are
described on Exhibit A attached hereto;
and
WHEREAS,
Columbus Owner owns and holds title to certain real property
located in Columbus, Ohio (the "Real
Property"), on which a senior independent
and assisted living facility, known as
Trillium Place, is located (the
"Facility");
WHEREAS,
Purchaser has offered to purchase from the Company, and the
Company has agreed to sell to Purchaser,
the Subject Interests for the price and
upon the terms and subject to the
conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants and
conditions
hereinafter set forth, and for other good
and valuable consideration, the
receipt and legal sufficiency of which are
hereby acknowledged, the parties
hereto hereby agree as follows.
1. DEFINITIONS.
1.1 Defined
Terms. As used in this Agreement, the following terms shall
have the following meanings:
"Affiliate" with respect to any Person means any other Person
directly or
indirectly controlling or controlled by or
under direct or indirect common
control with such Person. For the purposes
of this definition, "control" when
used with respect to any Person means the
power to direct the management and
policies of such Person, directly or
indirectly, whether through the ownership
of voting securities, by contract or
otherwise; and the terms "controlling" and
"controlled" have meanings correlative to
the foregoing.
"Agreement" shall mean this Agreement, together with the Exhibits,
in each
case as amended, restated, supplemented or
otherwise modified from time to time.
"Applicable Law" shall mean all applicable provisions of all
(i)
constitutions, treaties, statutes, laws,
rules, regulations, and ordinances of
any Governmental Authority and common
law
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duties, (ii) Consents of any Governmental
Authority and (iii) orders, decisions,
rulings, judgments, directives or decrees
of any Governmental Authority.
"BLCI"
shall mean Brookdale Living Communities, Inc., a Delaware
corporation.
"Business
Day" shall mean any day that is not a Saturday, a Sunday, or a
day on which banking institutions in the
City of Philadelphia, Pennsylvania, are
authorized or required by law to close.
"Closing"
shall have the meaning specified in Section 2.2(a).
"Closing
Date" shall have the meaning specified in Section 2.2(a).
"Columbus
Entities" shall have the meaning set forth in the Recitals.
"Columbus
Member" shall have the meaning set forth in the Recitals.
"Columbus
Membership Interests" shall have the meaning set forth in the
Recitals.
"Columbus
Owner" shall have the meaning set forth in the Recitals.
"Company"
shall have the meaning set forth in the Preamble.
"Company
Indemnified Parties" shall have the meaning specified in
Section
6.2.
"Company's
Knowledge" means the actual knowledge without investigation of
David B. Fenkell and John Hollyday.
"Consent"
shall mean any consent, approval, authorization, waiver,
permit,
grant, franchise, license, exemption or
order of, or any registration,
certificate, qualification, declaration or
filing with, or any notice to, any
Person.
"Facility"
shall have the meaning set forth in the Recitals.
"Governmental Authority" shall mean any nation or government, and
any
state or political subdivision thereof, any
entity exercising executive,
legislative, judicial, regulatory or
administrative functions of or pertaining
to government, and any court, tribunal or
arbitrator(s) of competent
jurisdiction, and any self-regulatory
organization.
"Indemnified Party" shall have the meaning specified in Section
6.3.
"Indemnifying Party" shall have the meaning specified in Section
6.3.
"Lien"
shall mean any lien (statutory or other), pledge, mortgage, deed
of
trust, assignment, deposit arrangement,
priority, security interest, adverse
claim, charge or encumbrance or other
preferential arrangement of any kind or
nature whatsoever (including, without
limitation, the interest of a lessor under
a capital lease having substantially the
same economic effect), any agreement to
give or refrain from giving any lien,
pledge, mortgage, security interest,
charge or other encumbrance of any kind,
any conditional sale or other title
retention agreement, any lease in the
nature of any of the foregoing and the
filing or existence of any financing
statement or other
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similar form of notice under the laws of
any jurisdiction or any security
agreement authorizing any Person to file
such a financing statement, whether
arising by contract, operation of law, or
otherwise.
"Losses"
shall have the meaning specified in Section 6.1.
"Mezzanine
Loan" shall mean the loan described on Exhibit B attached
hereto.
"Mezzanine
Loan Documents" shall mean agreements and other documents
evidencing or securing repayment of the
Mezzanine Loan.
"Mortgage
Loan" shall mean the loan described on Exhibit C attached
hereto.
"Mortgage
Loan Documents" shall mean agreements and other documents
evidencing or securing repayment of the
Mortgage Loan.
"Notices"
shall have the meaning specified in Section 7.1.
"Organizational Documents" shall the articles of organization,
certificate
of formation or certificate of organization
and limited liability company
agreement or operating agreement of a
limited liability company.
"Person"
shall mean any individual, trustee, sole proprietorship,
partnership, joint venture, trust,
unincorporated organization, association,
corporation, limited liability company,
limited liability partnership and other
entity or any Governmental Authority.
"Purchase
Price" shall have the meaning specified in Section 2.1.
"Purchaser" shall have the meaning set forth in the Preamble.
"Purchaser
Indemnified Parties" shall have the meaning specified in
Section 6.1.
"Real
Property" shall have the meaning set forth in the Recitals.
"Subject
Interests" shall have the meaning specified in the Recitals.
"Tax" or
"Taxes" shall mean all federal, state, local, foreign and other
net income, gross income, gross receipts,
sales, use, ad valorem, transfer,
franchise, profits, license, lease,
service, add on or alternative minimum,
occupancy, withholding, payroll,
employment, social security, excise, severance,
stamp, value added, occupation, premium,
property (including, without
limitation, real property and any
assessments, special or otherwise), windfall
profits, customs, duties or other taxes of
any kind whatever, together with any
interest and any penalties, additions to
tax or additional amounts with respect
thereto.
"Third
Party Claim" shall have the meaning specified in Section 6.3.
"Transaction Documents" shall mean this Agreement and all other
agreements
and instruments referred to herein to be
entered into by the parties referenced
therein in connection with the consummation
of the transactions contemplated
hereby and thereby.
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1.2
Headings; Construction and Interpretation. The headings in this
Agreement are for convenience of reference
only, do not constitute a part of
this Agreement and are not to be considered
in construing or interpreting this
Agreement. All section, preamble, recital,
exhibit, schedule, disclosure
schedule, annex, clause and party
references are to this Agreement unless
otherwise stated. No party, nor its
counsel, shall be deemed the drafter of this
Agreement for purposes of construing the
provisions of this Agreement, and all
provisions of this Agreement shall be
construed in accordance with their fair
meaning, and not strictly for or against
any party.
2. SALE AND PURCHASE.
2.1 Sale
of the Subject Interests. On the Closing Date, and upon the
terms
and subject to the conditions set forth in
this Agreement, the Company shall
sell, transfer and assign to the Purchaser,
and the Purchaser shall purchase
from the Company, all of the Subject
Interests for the aggregate purchase price
of One Hundred and no/100 Dollars ($100.00)
(the "Purchase Price"). The
Purchaser acknowledges and agrees that it
is purchasing the Subject Interests.
The Purchaser acknowledges and agrees that
it is purchasing the Subject
Interests, and accordingly, is acquiring
the equity interests in, and assets of,
Columbus Owner, subject to the Mortgage
Loan, the Mezzanine Loan and all
liabilities relating to the Facility and
the maintenance of the existence of the
Columbus Entities.
2.2
Closing.
(a) The closing of the purchase and sale of the Subject
Interests
(the "Closing") shall take place at 4:00
p.m., local time, on March 18, 2005,
provided all of the conditions set forth in
Section 7 hereof shall have been
satisfied or duly waived or at such other
time and date as the parties hereto
shall agree (the "Closing Date"), at the
offices of the Purchaser, or at such
other place as the parties hereto shall
agree.
(b) At the Closing, the Company shall deliver an Assignment of
Membership Interests ("Assignment")
transferring the Subject Interests to
Purchaser.
3. REPRESENTATIONS AND
WARRANTIES OF THE COMPANY.
To induce the Purchaser to enter
into this Agreement, the Company hereby
represents and warrants to the Purchaser as
follows:
3.1
Organization and Qualification. To the Company's Knowledge, (a)
Columbus Member is a limited liability
company duly organized, validly existing
and in good standing under the laws of the
State of Ohio, has the requisite
power and authority to carry on its
business as now conducted and as proposed to
be conducted, and (b) Columbus Owner is a
limited liability company duly
organized, validly existing and in good
standing under the laws of the State of
Ohio, has the requisite power and authority
to own or lease and operate its
properties and assets and to carry on its
business as now conducted and as
proposed to be conducted, and is duly
qualified or licensed to do business in
each jurisdiction in which the character of
the properties or assets owned,
leased or operated by it or the nature of
its activities makes such
qualification or licensing necessary.
3.2
Corporate or Other Power. The Company is duly organized and
validly
existing in good standing as a limited
liability company under the laws of
Commonwealth of Pennsylvania.
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The Company has the requisite power and
authority to execute, deliver, carry
out, and perform its obligations under each
Transaction Document to which it is
a party, including, without limitation, the
power and authority to sell, assign,
transfer and deliver the Subject Interests
to the Purchaser as contemplated
hereunder.
3.3
Authorization; Binding Obligations. The execution, delivery and
performance by the Company of this
Agreement and each of the other Transaction
Documents to which the Company is a party,
and the consummation by the Company
of the transactions contemplated hereby and
thereby, have been duly authorized
by all requisite action on the Company's
part. The sale, transfer, assignment,
and delivery by the Company of the Subject
Interests as contemplated hereunder
at Closing have been duly authorized, or
will be duly authorized prior to the
Closing. This Agreement constitutes, and
the other Transaction Documents to
which the Company is a party when executed
and delivered by the Company will
constitute, the legal, valid and binding
obligations of the Company, enforceable
against the Company in accordance with
their terms, except as enforceability may
be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or
similar laws affecting the enforcement of
creditors' rights generally and by
general principles of equity (regardless of
whether enforcement is sought in a
proceeding in equity or at law).
3.4
Entities. The information contained on Exhibit A attached
hereto
concerning the Columbus Entities is true
and correct.
3.5
Validity of Subject Interests. To the Company's Knowledge, each of
the
Subject Interests and the Columbus
Membership Interests have been duly
authorized and duly and validly issued,
fully paid and non- assessable, and are,
and at the Closing shall be, free and clear
of any Liens created by, through, or
under the Company, except as contemplated
by the Mortgage Loan Documents and the
Mezzanine Loan Documents.
3.6
Employees. None of the Columbus Entities has any employees.
3.7
Employee Benefit Plans. None of the Columbus Entities has any
employee
benefit or welfare plan.
3.8
Litigation. To the Company's Knowledge, there are no pending or
threatened claims, actions, suits, labor
disputes, grievances, administrative or
arbitration or other proceedings or,
investigations against any of the Columbus
Entities or their respective assets or
properties before or by any Governmental
Authority other than those related to the
Mortgage Loan, the Mezzanine Loan or
those known to Purchaser, BLCI or one of
their Affiliates.
3.9 Asset
and Liabilities.
(a) To the Company's Knowledge, none of the Columbus Entities
owns
any assets other than (i) equity interests
in one or more of the other Columbus
Entity as described in the Recitals to this
Agreement and on Exhibit A attached
hereto, (ii) other assets related to such
equity interests or to the Facility.
(b) To the Company's Knowledge, none of the Columbus Entities
has
any liabilities or obligations, known or
unknown, fixed or contingent, other
than (i) liabilities or obligations
incurred to maintain the existence of the
applicable Columbus Entity, and (ii)
other
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Liens, liabilities and obligations related
to the Facility.
3.10
Depository and Other Accounts. To the Company's Knowledge, none
of
the Columbus Entities maintains deposit
accounts, spread accounts, yield
supplement reserve accounts, operating
accounts, trust accounts, trust
receivable accounts or other accounts of
any kind or nature into which funds of
any Columbus Entity are deposited from time
to time other than those of which
Purchaser or one of its Affiliates is
aware.
EXCEPT AS
SPECIFICALLY SET FORTH IN THIS SECTION 3, THE COMPANY MAKES NO
REPRESENTATIONS AND WARRANTIES OF ANY KIND
OR NATURE WITH REGARD TO THE COLUMBUS
ENTITIES, THE FACILITY OR THE FINANCIAL
CONDITION OF THE COLUMBUS ENTITIES OR
THE FACILITY.
4. REPRESENTATIONS AND
WARRANTIES OF THE PURCHASER.
The
Purchaser hereby represents and warrants to the Company as
follows:
4.1
Authorization;
Enforceability; No Violations.
(a) The Purchaser is duly organized and validly existing in
good
standing as a limited liability company
under the laws of State of Delaware. The
Purchaser has the power to execute, deliver
and perform its obligations under
the Transaction Documents to which it is a
party and has taken all requisite
action (including pursuant to its
constitutive documents) to authorize the
execution, delivery and performance by it
of such Transaction Documents and to
consummate the transactions contemplated
thereby.
(b) The execution, delivery and performance by the Purchaser of
the
Transaction Documents to which it is a
party and the consummation of the
transactions contemplated thereby do not
and will not violate any provision of
the operating agreement or certificate of
formation of the Purchaser or of any
other agreement or instrument to which the
Purchaser is a party or by which it
is bound, or to which any of its properties
or assets is subject, or of any
Applicable Law. The Purchaser has duly
executed and delivered this Agreement
and, at the Closing, will have duly
executed and delivered the other Transaction
Documents to which it is a party. This
Agreement constitutes, and the other
Transaction Documents to which the
Purchaser is a party when executed and
delivered by the Purchaser will constitute,
the legal, valid and binding
obligations of the Purchaser, enforceable
against the Purchaser in accordance
with their terms, except as enforceability
may be limited by applicable
bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the
enforcement of creditors' rights generally
and by general principles of equity
(regardless of whether enforcement is
sought in a proceeding in equity or at
law).
4.2
Consents. No Consent, authorization or order of, or filing or
registration with, any Person is required
to be obtained or made by the
Purchaser for the execution, delivery and
performance by the Purchaser of this
Agreement or the other Transaction
Documents to which it is a party or the
consummation of any of the transactions
contemplated hereby or thereby other
than those that will have been made or
obtained on or prior to the Closing Date.
4.3 Net
Worth of BLCI. BLCI has and will maintain a net worth, computed
on
a market value basis, in excess of
$10,000,000.
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5. CONDITIONS PRECEDENT
TO CLOSING.
5.1
Conditions
