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.
"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
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇.
"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 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 performed on the Closing Date shall be subject,
at its election, to the satisfaction or waiver, at or prior to the Closing, of
the following conditions:
(a) The representations and warranties of the Purchaser contained in
this Agreement shall have been true and correct when made and shall be true and
correct in all material respects on and as of the Closing Date with the same
force and effect as though made on and as of the Closing Date.
(b) The Purchaser shall have performed all obligations and
agreements, and complied with all covenants, contained in this Agreement, to be
performed and complied with by the Purchaser at or prior to the Closing.
(c) All governmental and regulatory approvals and clearances and all
third-party Consents necessary for the consummation by the Purchaser of the
transactions contemplated by the Transaction Documents shall have been obtained
and shall be in full force and effect.
(d) The Company shall have received payment of the Purchase Price as
well as payment of all costs incurred by the Company in connection with the sale
of the Subject Interests.
5.2 Conditions to Purchaser's Obligations. The obligations of the
Purchaser hereunder required to be performed at the Closing shall be subject, at
its election, to the satisfaction or waiver, at or prior to the Closing, of the
following conditions:
(a) The representations and warranties of the Company contained in
this Agreement shall have been true and correct when made and shall be true and
correct in all material respects on and as of the Closing Date with the same
force and effect as though made on and as of the Closing Date.
(b) The Company shall have performed all obligations and agreements,
and complied with all covenants, contained in this Agreement, to be performed
and complied with by it at or prior to the Closing Date.
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(c) There shall not exist any Lien on any assets owned by any of the
Creve Coeur Entities other than those contemplated under the Mortgage Loan
Documents, the Mezzanine Loan Documents or any documents executed by Purchaser.
(d) To the extent not already in the possession of the Purchaser or
one of its Affiliates, the Company shall have delivered to the Purchaser, to the
extent in the possession of the Company, a copy of each Creve Coeur Entity'
Organizational Documents, as amended through the Closing Date.
(e) All governmental and regulatory approvals and clearances and all
third-party Consents necessary for the consummation of the transactions
contemplated by the Transaction Documents shall have been obtained and shall be
in full force and effect.
(f) The Purchaser shall have received delivery of the Assignment.
(g) The Purchaser shall have received such other certificates,
instruments and documents in furtherance of the transactions contemplated by
this Agreement as it may reasonably request.
6. INDEMNIFICATION.
6.1 General Indemnification by the Company. The Company covenants and
agrees that it will indemnify, defend, protect and hold harmless the Purchaser
and its officers, stockholders, members, directors, divisions, subdivisions,
affiliates, subsidiaries, parents, agents, employees, successors and assigns
(the "Purchaser Indemnified Parties") at all times from and after the date of
this Agreement, from and against all claims, damages, losses, liabilities,
actions, suits, proceedings, demands, assessments, adjustments, costs and
expenses (including, without limitation, reasonable attorneys' fees and
expenses, which shall include, without limitation, expenses of investigation)
(collectively, "Losses") incurred by the Purchaser Indemnified Parties as a
result of or arising from any breach of the representations and warranties made
by the Company set forth herein or on the schedules or certificates delivered in
connection herewith. Notwithstanding the foregoing, the Company shall have no
obligations to indemnify any Purchaser Indemnified Party against any Losses
resulting from any claims brought under or with respect to any of the Mortgage
Loan or the Mezzanine Loan, except to the extent such claims are directly caused
by the fraud, gross negligence or willful misconduct of any Company Indemnified
Party prior to the effective date hereof.
6.2 Indemnification by the Purchaser. The Purchaser covenants and agrees
that it will indemnify, defend, protect and hold harmless Alliance Holdings,
Inc. ("Alliance"), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and the Company and their officers,
stockholders, directors, members, managers, shareholders, divisions,
subdivisions, affiliates, subsidiaries, parents, agents, employees, successors
and assigns (the "Company Indemnified Parties") at all times from and after the
date of this Agreement, from and against all Losses incurred by the Company
Indemnified Parties as a result of or arising from any breach of the
representations and warranties made by the Purchaser set forth herein or on the
schedules or certificates delivered in connection herewith.
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6.3 Third Party Claims.
(a) In order for a party hereto eligible to be indemnified hereunder
(an "Indemnified Party") to be entitled to any indemnification provided for
under this Agreement in respect of, arising out of or involving a claim or
demand made by any Person against the Indemnified Party (a "Third Party Claim"),
such Indemnified Party must notify the parties obligated to provide
indemnification pursuant to Section 6.1 or Section 6.2 hereof (each, an
"Indemnifying Party") in writing, and in reasonable detail, of the Third Party
Claim within 30 Business Days after receipt by such Indemnified Party of written
notice of the Third Party Claim; provided, however, that failure to give such
notification shall not affect the indemnification provided hereunder except to
the extent the Indemnifying Party shall have been actually prejudiced as a
result of such failure. Such notice shall state the nature and the basis of such
claim and a reasonable estimate of the amount thereof. Thereafter, the
Indemnified Party shall deliver to the Indemnifying Party, within ten (10)
Business Days after the Indemnified Party's receipt thereof, copies of all
notices and documents (including court papers) received by the Indemnified Party
relating to the Third Party Claim.
(b) The Indemnifying Party shall have the right to defend and
settle, at its own expense and by its own counsel (provided that such counsel is
reasonably acceptable to the Indemnified Party), any Third Party Claim provided
that, and for so long as, the Indemnifying Party pursues the same in good faith
and diligently. If the Indemnifying Party undertakes to defend or settle, it
shall promptly notify the Indemnified Party of its intention to do so, and the
Indemnified Party shall cooperate with the Indemnifying Party and its counsel in
the defense thereof and in any settlement thereof. Notwithstanding the
foregoing, the Indemnified Party shall have the right to participate in any
matter through counsel of its own choosing at its own expense (unless the
Indemnified Party determines in good faith that there is a conflict of interest
that prevents counsel for the Indemnifying Party from representing the
Indemnified Party in which case, the Indemnifying Party will reimburse the
Indemnified Party for the expenses of its counsel). After the Indemnifying Party
has notified the Indemnified Party of its intention to undertake to defend or
settle any such Third Party Claim, and for so long as the Indemnifying Party
diligently pursues such defense, the Indemnifying Party shall not be liable for
any additional legal expenses incurred by the Indemnified Party in connection
with any defense or settlement of such Third Party Claim, except to the extent
such participation is requested by the Indemnifying Party, in which event the
Indemnified Party shall be reimbursed by the Indemnifying Party for reasonable
additional legal expenses and out-of-pocket expenses.
(c) No Indemnifying Party shall, in the defense of any Third Party
Claim, consent to entry of any judgment (other than a judgment of dismissal on
the merits without costs) or enter into any settlement without the written
consent of the Indemnified Party, unless (i) such judgment or settlement
includes as an unconditional term thereof the giving by the claimant or the
plaintiff to the Indemnified Party of a release from all liability in respect of
such claim or matter, (ii) there is no finding or admission of any violation by
such Indemnified Party of law or the rights of any Person and (iii) the sole
relief provided is monetary damages that are paid in full by the Indemnifying
Party.
(d) If the Indemnifying Party does not assume the defense of any
Third Party Claim, then the Indemnified Party may defend against such Third
Party Claim in such manner as it deems appropriate at the expense of the
Indemnifying Party.
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6.4 Additional Indemnification Provisions.
(a) Purchaser and BLCI, jointly and severally, further agree to
indemnify, reimburse, defend and hold harmless the Company Indemnified Parties
for, from and against all Losses (including costs of Remedial Work) asserted
against, resulting to, imposed on, or incurred by any of them, directly or
indirectly, in connection with any of the following:
(i) events, circumstances, or conditions which are alleged to, or
do, form the basis for an Environmental Claim;
(ii) the presence, Use or Release of Hazardous Substances at, on,
in, under or from the Real Property;
(iii) any Environmental Claim against any Person whose liability for
such Environmental Claim Purchaser or BLCI has or may have assumed or
retained either contractually or by operation of law;
(iv) any failure of Purchaser or BLCI to fulfill each and every
obligation undertaken pursuant to this Agreement or the breach of any
representation, warranty or covenant of Purchaser or BLCI set forth in
this Agreement;
(v) events, circumstances, or conditions relating to the Facility,
the operation of the Facility or Purchaser or BLCI or its Affiliates which
form or are alleged to form the basis for any claim under any applicable
laws except to the extent caused directly by any of the Company
Indemnified Parties prior to the effective date hereof;
(vi) anything occurring at or around, or in connection with, the
Facility or the operation of the Facility, except to the extent caused
directly by any of the Company Indemnified Parties prior to the effective
date hereof;
(vii) any liability asserted against any Company Indemnified Party
arising directly or indirectly out of the Facility or related to the
Facility other than liabilities caused directly by any Company Indemnified
Party prior to the effective date hereof and where the action giving rise
to such liabilities is outside of the scope of activities contemplated by
and permitted under and any and all documents and/or agreements signed by
Creve Coeur Owner, Creve Couer Member, KG Capital, BLCI, or their
Affiliates, which are related to the acquisition, development or
management of the Facility;
(viii) any foreclosure or other action by any creditor of the
Purchaser, BLCI or any Affiliate of BLCI against any Company Indemnified
Parties or the Facility;
(ix) the breach of any representation, warranty or covenant
regarding Environmental Laws set forth in any document evidencing
financing provided to Creve Coeur Owner, Creve Couer Member, KG Capital or
any Company Indemnified Party in connection with the Real Property or the
Facility, except to the extent caused by any Company Indemnified Party
prior to the effective date hereof;
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(x) all Losses asserted against, resulting to, imposed on, or
incurred by any Company Indemnified Party, directly or indirectly, in
connection with any claim or liability resulting from or arising out of
any financing provided to Creve Coeur Owner, Creve Couer Member, KG
Capital or any Company Indemnified Party in connection with the Real
Property or the Facility, except for Losses caused directly by an Company
Indemnified Party prior to the effective date hereof;
(xi) all Losses relating to the transfer of the Subject Interests
pursuant to this Agreement;
(xii) all Losses relating to (A) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇'▇ membership
interests in the KG Capital Company, and (B) any breach of the Acquisition
Agreement by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇; or
(xiii) any Tax audit or related proceedings directly arising out of
the transactions contemplated by this Agreement or any agreements entered
into by the parties hereto and their Affiliates in connection with this
Facility or the Real Property.
(b) Nothing in this Agreement shall be deemed to deprive an Company
Indemnified Party of any rights or remedies provided to such Company Indemnified
Party elsewhere in this Agreement or otherwise available to such Company
Indemnified Party under law. Purchaser waives and releases each Company
Indemnified Party from any rights or defenses Purchaser may have under common
law or Environmental Laws for liability arising from or resulting from the
presence, Use or Release of Hazardous Substances except to the extent directly
caused by the gross negligence, fraud or willful misconduct of such Company
Indemnified Party.
(c) With respect to those matters for which Purchaser and BLCI have
agreed to indemnify each Company Indemnified Party hereunder, and to the maximum
extent permitted by applicable law, each of Purchaser and BLCI waives and
releases each Company Indemnified Party from any rights or defenses Purchaser
and BLCI may have under common law or Environmental Laws for liability arising
from or resulting from the presence, Use or Release of Hazardous Substances
except to the extent directly caused by the fraud, gross negligence or willful
misconduct of any Company Indemnified Party prior to the effective date hereof.
(d) For purposes of this Section 6.4, the following terms shall have
the following meanings:
(i) "Acquisition Agreement" means that certain Assignment and
Assumption Agreement by and between the Company and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ dated
as of June 30, 2002.
(ii) "Environmental Claim" means any written request for information
by a Governmental Authority, or any written notice, notification, claim,
administrative, regulatory or judicial action, suit, judgment, demand or
other written communication by any Person or Governmental Authority
requiring, alleging or asserting liability with respect to any of the
Company Indemnified Parties or the Real Property, whether for damages,
contribution, indemnification, cost recovery, compensation, injunctive
relief, investigatory, response, remedial or cleanup costs, damages to
natural resources, personal injuries, fines or penalties arising out of,
based on or resulting from (i) the presence, Use, Release or threatened
Release into the environment of any Hazardous Substance in
11
violation of any Environmental Law originating at or from, or otherwise
affecting, the Real Property, (ii) any fact, circumstance, condition or
occurrence forming the basis of any violation, or alleged violation, of
any Environmental Law by any of the Company Indemnified Parties or
otherwise affecting the Real Property or (iii) any alleged injury or
threat of injury to health, safety or the environment by any of the
Company Indemnified Parties or otherwise affecting the Real Property
arising from actions which are in violation of Environmental Laws.
(iii) "Environmental Laws" means any and all applicable federal,
state, local and foreign laws, rules, regulations or municipal ordinances
each as amended from time to time, and any permits, approvals, licenses,
registrations, filings and authorizations, in each case as in effect as of
the relevant date, relating to the environment, health or safety, and
pertaining to or imposing liability or standards of conduct concerning
environmental regulation, contamination or clean-up, including the
Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act, the Emergency Planning and
Community Right-to-Know Act of 1986, the Hazardous Substances
Transportation Act, the Solid Waste Disposal Act, the Clean Water Act, the
Clean Air Act, the Toxic Substance Control Act, the Safe Drinking Water
Act, the Occupational Safety and Health Act, any state super-lien and
environmental clean-up statutes and all amendments to and regulations in
respect of the foregoing laws.
(iv) "Hazardous Substance" means, collectively, (i) any petroleum or
petroleum products or waste oils, explosives, radioactive materials,
asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls
("PCBs"), lead in drinking water, and lead based paint, the presence,
generation, use, transportation, storage or disposal of or exposure to
which (x) is regulated or could lead to liability under any Environmental
Law or (y) is subject to notice or reporting requirements under any
Environmental Law, (ii) any chemicals or other materials or substances
which are now or hereafter become defined as or included in the definition
of "hazardous substances," "hazardous wastes," "hazardous materials,"
"extremely hazardous wastes," "restricted hazardous wastes," "toxic
substances," "toxic pollutants," "contaminants," "pollutants" or words of
similar import under any Environmental Law and (iii) any other chemical or
any other material or substance, exposure to which is now or hereafter
prohibited, limited or regulated under any Environmental Law.
(v) "Release" means, with respect to any Hazardous Substances, any
release, threatened release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the
indoor or outdoor environment, including, without limitation, the movement
of Hazardous Substances through ambient air, soil, surface water, ground
water, wetlands, land or subsurface strata.
(vi) "Remedial Work" means any investigation, site monitoring,
containment, cleanup, removal, restoration or other work of any kind
reasonably necessary or required under an applicable Environmental Law.
(vii) "Use" means, with respect to any Hazardous Substance, the
generation, manufacture, processing, distribution, handling, use,
treatment, recycling or storage of such Hazardous Substance in violation
of Environmental Laws or transportation to or from
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the property of such Person of such Hazardous Substance in violation of
Environmental Laws.
(e) Notwithstanding anything to the contrary contained herein, the
indemnity obligation provided hereunder shall survive in perpetuity.
Notwithstanding the foregoing, Purchaser and BLCI shall not indemnify any
Company Indemnified Party with respect to any Losses incurred in connection
with, or as a direct result of, any or all of the matters described above in
Section 6.4(a)(i) through 6.4(a)(iii) to the extent that Purchaser or BLCI can
establish directly and solely that such Losses result from Hazardous Substances
being placed on, above or under the Property by the affirmative act or gross
negligence of such Company Indemnified Party.
7. MISCELLANEOUS.
7.1 Notices. All notices, demands, requests, Consents, or other
communications (collectively, "Notices") required or permitted to be given
hereunder or which are given with respect to this Agreement shall be in writing
and shall be personally served, delivered by reputable air courier service with
charges prepaid, or transmitted by hand delivery, telegram, telex or facsimile,
addressed as set forth below, or to such other address as such party shall have
specified most recently by written notice. Notice shall be deemed given on the
date of service or transmission if personally served or transmitted by telegram,
telex or facsimile (with confirmation of successful transmission obtained);
provided, that if such service or transmission is not on a Business Day or is
after normal business hours, then such notice shall be deemed given on the next
Business Day. Notice otherwise sent as provided herein shall be deemed given on
the next Business Day following timely delivery of such notice to a reputable
air courier service.
To the Company:
DBF Consulting, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
To the Purchaser:
Brookdale Development, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
7.2 Governing Law. This Agreement shall be governed by, interpreted under,
and construed in accordance with the internal laws of the State of Ohio
applicable to agreements made and to be performed within the State of Ohio,
without giving effect to any choice-of-law provisions thereof that would compel
the application of the substantive laws of any other jurisdiction. Each party
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts located in Franklin County, Ohio, for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, and hereby
13
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is brought in an inconvenient forum
or that the venue of such suit, action or proceeding is improper.
7.3 Entire Agreement. This Agreement and the other Transaction Documents
(including all agreements entered into pursuant hereto and all certificates and
instruments delivered pursuant hereto and thereto) constitute the entire
agreement of the parties with respect to the subject matter hereof and supersede
all prior and contemporaneous agreements, representations, understandings,
negotiations and discussions between the parties, whether oral or written.
Nothing herein shall be deemed to limit in any way the rights of Alliance under
the Indemnification Agreement.
7.4 Modifications and Amendments. No amendment, modification or
termination of this Agreement shall be binding upon any party unless executed in
writing by the parties hereto intending to be bound thereby.
7.5 Waivers and Extensions. Any party to this Agreement may waive any
right, breach or default which such party has the right to waive, provided that
such waiver will not be effective against the waiving party unless it is in
writing, is signed by such party, and specifically refers to this Agreement.
Waivers may be made in advance or after the right waived has arisen or the
breach or default waived has occurred. Any waiver may be conditional. No waiver
of any breach of any agreement or provision herein contained shall be deemed a
waiver of any preceding or succeeding breach thereof nor of any other agreement
or provision herein contained. No waiver or extension of time for performance of
any obligations or acts shall be deemed a waiver or extension of the time for
performance of any other obligations or acts.
7.6 Titles and Headings. Titles and headings of sections of this Agreement
are for convenience only and shall not affect the construction of any provision
of this Agreement.
7.7 Exhibits and Schedules. Each of the exhibits and schedules referred to
herein and attached hereto is an integral part of this Agreement and is
incorporated herein by reference.
7.8 Assignment; No Third Party Beneficiaries. This Agreement and the
rights, duties and obligations of the Company hereunder may be assigned or
delegated by the Company without the prior written consent of the Purchaser.
This Agreement and the rights, duties and obligations of the Purchaser hereunder
may not be assigned or delegated by the Purchaser. Any assignment or delegation
of rights, duties or obligations hereunder made that requires consent and is
made without the prior written consent of the other party hereto shall be void
and of no effect. This Agreement and the provisions hereof shall be binding upon
and shall inure to the benefit of each of the parties and their respective
successors and permitted assigns. This Agreement is not intended to confer any
rights or benefits on any Persons that are not party hereto other than as
expressly set forth in Section 6.
7.9 Counterparts. This Agreement may be executed by facsimile and in
multiple counterparts, each of which shall be deemed an original, and all of
which taken together shall constitute one and the same instrument.
7.10 Further Assurances. Each party hereto, upon the request of any other
party hereto, shall do all such further acts and execute, acknowledge and
deliver all such further instruments and
14
documents as may be necessary or desirable to carry out the transactions
contemplated by this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Membership Interest
Purchase Agreement to be executed and delivered by their duly authorized
representatives as of the date first written above.
COMPANY DBF CONSULTING, LLC ,
a Pennsylvania limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager
PURCHASER BROOKDALE DEVELOPMENT, LLC,
a Delaware limited liability company
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
For purposes of Section 6.4 only:
BROOKDALE LIVING COMMUNITIES, INC.
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
Membership Interest Purchase Agreement - Creve Coeur
1
CONSENT
The undersigned has executed this instrument to consent to the sale of
Subject Interests contemplated by this Agreement and to agree that the
effectuation of such sale will not constitute an event of default under the loan
documents evidencing the $37,320,000.00 loan from the undersigned to KG
Missouri-CC Owner, LLC.
U.S. BANK, N.A.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
______________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
____________________________________
Its: Vice President
_____________________________________
2
EXHIBIT A
SUBJECT INTERESTS
ISSUER TYPE PERCENTAGE MEMBER
----------------------- ------------------- ---------- -------------------
KG Capital Company, LLC Membership Interest 100% DBF Consulting, LLC
ISSUER TYPE PERCENTAGE MEMBER
----------------------- ------------------- ---------- -----------------------
KG Missouri-CC Member, LLC Membership Interest 100% KG Capital Company, LLC
ISSUER TYPE PERCENTAGE MEMBER
----------------------- ------------------- ---------- --------------------------
KG Missouri-CC Owner, LLC Membership Interest 100% KG Missouri-CC Member, LLC
i
EXHIBIT B
MEZZANINE LOAN
The $16,668,895.00 loan evidenced by that certain Promissory Note dated
September 30, 2004 by KG Missouri-CC Member, LLC, in favor of Brookdale Living
Communities of Missouri-CC, LLC.
i
EXHIBIT C
MORTGAGE LOAN
The $37,320,000.00 loan made pursuant to that certain Construction Loan
Agreement dated March 30, 2001, as amended, by and among KG Missouri-CC Owner,
LLC and U.S. Bank, N.A., as agent.
1