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EXHIBIT 2.7
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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 KG
Capital Company, LLC, a Delaware
limited liability company ("KG Capital");
and
WHEREAS,
KG Capital owns all of the issued and outstanding membership
interests (the "KG Capital Membership
Interests") in KG Missouri-CC Member, LLC,
a Delaware limited liability company
("Creve Coeur Member");
WHEREAS,
Creve Coeur Member owns all of the issued and outstanding
membership interests (the "Creve Coeur
Membership Interests") in KG Missouri-CC
Owner, LLC, a Delaware limited liability
company ("Creve Coeur Owner",
collectively, Creve Coeur Owner, Creve
Coeur Member and KG Capital are the
"Creve Coeur Entities");
WHEREAS,
the Subject Interests, the KG Capital Membership Interests and
the Creve Coeur Membership Interests are
described on Exhibit A attached hereto;
and
WHEREAS,
Creve Coeur Owner owns and holds title to certain real property
located in Creve Coeur, Missouri (the "Real
Property"), on which a senior
independent and assisted living facility,
known as The Hallmark of Creve Coeur,
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.
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"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
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).
"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.
"Creve
Coeur Entities" shall have the meaning set forth in the
Recitals.
"Creve
Coeur Member" shall have the meaning set forth in the Recitals.
"Creve
Coeur Membership Interests" shall have the meaning set forth in
the
Recitals.
"Creve
Coeur Owner" shall have the meaning set forth in the Recitals.
"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.
"KG
Capital" shall have the meaning set forth in the Recitals.
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"KG
Capital Membership Interests" shall have the meaning set forth in
the
Recitals.
"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 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,
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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.
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,
Creve Coeur Member and Creve Coeur Owner,
subject to the Mortgage Loan, the
Mezzanine Loan and all liabilities relating
to the Facility and the maintenance
of the existence of the Creve Coeur
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)
KG
Capital is a limited liability company duly
organized, validly existing and in
good standing under the laws of the State
of Delaware, has the requisite power
and authority to carry on its business as
now conducted and as proposed to be
conducted, (b) Creve Coeur Member is a
limited liability
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company duly organized, validly existing
and in good standing under the laws of
the State of Delaware, has the requisite
power and authority to carry on its
business as now conducted and as proposed
to be conducted, and (c) Creve Coeur
Owner is a limited liability company duly
organized, validly existing and in
good standing under the laws of the State
of Delaware, 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. 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 Creve Coeur Entities is true
and correct.
3.5
Validity of Subject Interests. To the Company's Knowledge, each of
the
Subject Interests, the KG Capital
Membership Interests and the Creve Coeur
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. To the Company's Knowledge, none of the Creve Coeur
Entities has any employees.
3.7
Employee Benefit Plans. To the Company's Knowledge, none of the
Creve
Coeur 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 Creve
Coeur Entities or their respective assets
or properties before or by any
Governmental Authority other than those
related to the Mortgage Loan, the
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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 Creve Coeur
Entities
owns any assets other than (i) equity
interests in one or more of the other
Creve Coeur 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 Creve Coeur 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 Creve Coeur Entity, and (ii)
other Liens, liabilities and obligations
related to the Facility.
3.10
Depository and Other Accounts. To the Company's Knowledge, none
of
the Creve Coeur 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 Creve Coeur 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 CREVE
COEUR ENTITIES, THE FACILITY OR THE
FINANCIAL CONDITION OF THE CREVE COEUR
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,
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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 here
