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EXHIBIT 2.8
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STOCK 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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STOCK PURCHASE AGREEMENT
THIS STOCK
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 shares of
stock (the "Subject Interests") in AH North
Carolina Investor, Inc., an Ohio
corporation ("AH Investor"); and
WHEREAS,
AH Investor owns all of the issued and outstanding membership
interests (the "Membership Interests") in
AH North Carolina Subordinated, LLC,
an Ohio limited liability company ("AH
Subordinated"); and
WHEREAS,
AH Subordinated owns all of the issued and outstanding shares
of
stock (the "CGP Shares") in AH North
Carolina CGP, Inc., an Ohio corporation
("AH CGP"); and
WHEREAS,
(A) AH CGP is the sole general partner of, and owns a one
percent
(1%) partnership interest in, AH North
Carolina Owner Limited Partnership, an
Ohio limited partnership ("AH Owner"); and
(B) AH LLC is the sole limited
partner of, and owns a ninety-nine percent
(99%) partnership interest in, AH
Owner; and
WHEREAS,
the Subject Interests, Membership Interests, CGP Shares, and
the
equity interests in AH Owner are described
on Exhibit A attached hereto; and
WHEREAS,
AH Owner owns and holds title to certain real property located
in
Raleigh, North Carolina (the "Real
Property"), on which a senior independent and
assisted living facility, known as The
Heritage of Raleigh, located (the
"Facility"); and
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
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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.
"AH CGP"
shall have the meaning specified in the Recitals.
"AH
Entities" shall mean, collectively, AH Investor, AH Subordinated,
AH
CGP and AH Owner.
"AH
Entity" shall mean any one of the AH Entities.
"AH
Investor" shall have the meaning specified in the Recitals.
"AH Owner"
shall have the meaning specified in the Recitals.
"AH
Subordinated" shall have the meaning specified in the Recitals.
"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.
"Facility"
shall have the meaning specified 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
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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.
"Investor
Loan" shall mean the loans described on Exhibit B attached
hereto.
"Investor
Loan Documents" shall mean agreements and other documents
evidencing or securing repayment of the
Investor Loan.
"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.
"Mortgage
Loan" shall mean the loans 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 mean (a) with respect to any
corporation,
the certificate of incorporation or
articles of incorporation and by-laws of
such corporation, (b) with respect to any
limited partnership, the certificate
of limited partnership and agreement of
limited partnership of such limited
partnership, and (c) with respect to any
limited liability company, the
certificate of formation or certificate of
organization and limited liability
company agreement or operating agreement of
such 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 specified in the Recitals.
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"Subject
Interests" shall have the meaning specified in the Recitals.
"Subordinated Loan" shall mean the loans described on Exhibit D
attached
hereto.
"Subordinated Loan Documents" shall mean agreements and other
documents
evidencing or securing repayment of the
Subordinated Loan.
"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.
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,
and accordingly, is acquiring the equity
interests in, and assets of, AH
Subordinated, AH CGP and AH Owner, subject
to the Mortgage Loan, the
Subordinated Loan, the Investor Loan and
all liabilities relating to the
Facility and the maintenance of the
existence of the AH 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.
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(b) At the Closing, the Company shall deliver the original
certificates representing the Subject
Interests (the "Stock Certificates") as
well as an executed Stock Power (the "Stock
Power").
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, each
AH
Entity is a corporation, limited liability
company, or limited partnership duly
organized, validly existing and in good
standing under the laws of the
jurisdiction of its incorporation or
formation, 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 the
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 AH
Investor. The information contained on Exhibit A attached
hereto
concerning the AH Entities is true and
correct.
3.5
Validity of Subject Interests. To the Company's Knowledge, the
Subject
Interests and the shares, membership
interests and partnership interests in each
of the AH Entities have been dully
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 AH Entities has any employees.
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3.7
Employee Benefit Plans. None of the AH 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 AH
Entities or their respective assets or
properties before or by any Governmental
Authority other than those related to the
Mortgage Loan, the Subordinated Loan,
the Investor 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 AH Entities owns
any
assets other than (i) equity interests in
one or more of the other AH Entity as
described in the Recitals to this Agreement
and on Exhibit A attached hereto,
and (ii) other assets related to such
equity interests or to the Facility.
(b) To the Company's Knowledge, none of the AH 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 AH 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 AH 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 AH 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 WARRANTIES OF ANY KIND OR
NATURE WITH REGARD TO THE AH ENTITIES,
THE FACILITY, OR THE FINANCIAL CONDITION OF
THE AH 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
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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.
5. CONDITIONS PRECEDENT
TO CLOSING.
5.1
Conditions to the Company's Obligations. The obligations of the
Company hereunder required to be
performe
