EXHIBIT 2.11
EXECUTION COPY
MEMBERSHIP INTEREST PURCHASE AGREEMENT
This MEMBERSHIP INTEREST PURCHASE AGREEMENT (this "Agreement"), dated as of June
29, 2005, is by and among NW SELECT LLC, a Washington limited liability company
("NW Select"), EMERITUS CORPORATION, a Washington corporation ("Emeritus" and,
together with NW Select, the "Sellers", and each individually, a "Seller"),
FIT-ALT INVESTOR LLC, a Delaware limited liability company ("Buyer"), and
BROOKDALE SENIOR LIVING INC., a Delaware corporation ("Newco").
RECITALS
WHEREAS, the Sellers and the Buyer entered into that certain Limited
Liability Company Agreement of FEBC-ALT Investors LLC, a Delaware limited
liability company (the "Company"), dated as of October 14, 2003 and amended as
of November 17, 2003 (the "LLC Agreement"); and each capitalized term used but
not otherwise defined herein has the meaning given to such term in the Amended
and Restated Limited Liability Company Agreement of the Company in the form
attached as Exhibit I hereto (the "Amended LLC Agreement");
WHEREAS, Sellers, as of the date hereof and as Class B Members, own
Membership Interests of the Company representing in the aggregate a 50%
Percentage Interest in the Company;
WHEREAS, Sellers desire to sell, assign and transfer to Buyer, and Buyer
desires to purchase and acquire from Sellers, 50% of each of the Seller's
Membership Interests in the Company as set forth on Schedule A hereto
(collectively, the "Purchased Membership Interests"), for the consideration and
upon the terms and subject to the conditions set forth in this Agreement;
WHEREAS, concurrently with the sale and purchase of the Purchased
Membership Interests, Sellers, Buyer and the Company shall enter into the
Amended LLC Agreement;
WHEREAS, subsequent to the consummation of the sale and purchase of the
Purchased Membership Interests, it is contemplated that each of the Members
shall receive securities ("Newco Shares") of Newco in connection with a
Reorganization Transaction (as such term is defined in the Amended LLC
Agreement);
WHEREAS, simultaneously with the execution of this Agreement, the parties
hereto desire to enter into the Stockholders and Voting Agreement, in the form
attached as Exhibit II hereto (the "Stockholders Agreement"), which sets forth
certain rights and obligations of the Sellers with respect to their Newco
Shares; and
WHEREAS, the Sellers have agreed to sell the Newco Shares to be received
by them in an initial public offering (the "IPO") of Newco Shares pursuant to a
registration statement (the "Registration Statement") under the Securities Act
of 1933, as amended (the "Securities Act"), and, if the Sellers are unable to
sell all such Newco Shares in the IPO, Sellers and Newco shall enter into a
Registration Rights Agreement in the form attached as Exhibit III hereto (the
"Registration Rights Agreement").
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants, promises and agreements hereinafter set forth, the receipt and
sufficiency of which are hereby acknowledged and accepted, the parties hereto
hereby agree as follows:
ARTICLE I
SALE AND TRANSFER OF SHARES
Section 1.1 Sale and Purchase of Purchased Membership Interests. Upon the
terms and subject to the conditions set forth in this Agreement, Sellers hereby
sell, assign, transfer and convey the Purchased Membership Interests to Buyer,
and Buyer hereby purchases and accepts the Purchased Membership Interests from
Sellers, free and clear of all liens, mortgages, pledges, security interests,
claims, encumbrances or other restrictions.
Section 1.2 Consideration for the Purchased Membership Interests. The
aggregate consideration for the Purchased Membership Interests is $50,000,000.
Concurrently with the execution of this Agreement, Buyer shall pay in cash
$23,000,000 to NW Select (the "NW Purchase Price") and $25,000,000 to Emeritus
(the "Emeritus Purchase Price"), in each case by delivery of immediately
available funds by wire transfer to an account designated by each of the Sellers
prior to the execution hereof. The balance of $2,000,000 shall be paid to NW
Select immediately after the receipt from Omega Healthcare Investors, Inc.
("Omega") of a consent waiving the net worth requirement in connection with the
proposed purchase by Alterra Healthcare Corporation ("Alterra") (or a Subsidiary
thereof) of the six properties currently subject to leases between Omega and
Alterra (or a Subsidiary thereof), but in any event not later than 30 days
following the date of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Sellers. Each of the Sellers
represents and warrants, severally for itself and not jointly with the other
Seller, as follows:
(a) Authorization; Due Execution and Delivery. Such Seller has all
requisite power and authority to execute, deliver and perform this Agreement and
consummate the transactions contemplated hereby, and the execution and
performance by such Seller of this Agreement have been duly authorized by all
requisite action by such Seller. This Agreement has been duly executed and
delivered by such Seller and, assuming due execution by Buyer and Newco, this
Agreement constitutes a valid and binding obligation of such Seller, enforceable
against such Seller in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws and subject to general principles of equity.
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(b) Title. Such Seller has not sold, transferred or otherwise
disposed of any interest in the Company since it acquired an interest in the
Company on October 14, 2003. Such Seller has valid title to its respective
Membership Interests, free and clear of all liens, mortgages, pledges, security
interests, claims, encumbrances or other restrictions in respect of the
Membership Interests. The sale of the Purchased Membership Interests by such
Seller pursuant to this Agreement will pass good, valid and marketable title in
such Membership Interests to Buyer.
(c) Information. Neither Buyer nor the Company has provided, and
will not be providing, such Seller with any material or information regarding
the transactions contemplated by this Agreement, except as contemplated by
Section 10.8 of the Amended LLC Agreement, and such Seller acknowledges that it
has had the opportunity to ask questions and receive answers from the Company,
the Buyer or any persons acting on behalf of the Company or Buyer, has been
furnished with all other materials that it considers relevant to its investment
in the Company and has been given the opportunity fully to perform its own due
diligence. Such Seller is experienced, sophisticated and knowledgeable in the
trading of public and private companies and the operation of assisted living
facilities and understands the disadvantage to which it is subject on account of
the disparity of information regarding the Company and any Reorganization
Transaction (as such term is defined in the Amended LLC Agreement) between such
Seller and the Buyer.
(d) Reorganization Transaction and Initial Public Offering. Each
Seller acknowledges that there can be no assurance that any Reorganization
Transaction and/or the IPO will be consummated.
Section 2.2 Representations and Warranties of Buyer. Buyer represents and
warrants as follows: Buyer has all requisite power and authority to execute,
deliver and perform this Agreement and consummate the transactions contemplated
hereby, and the execution and performance by Buyer of this Agreement have been
duly authorized by all requisite action by Buyer. This Agreement has been duly
executed and delivered by Buyer and, assuming due execution by Sellers and
Newco, this Agreement constitutes a valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws and subject to general principles of equity.
Section 2.3 Representations and Warranties of Newco. Newco represents and
warrants as follows: Newco has all requisite power and authority to execute,
deliver and perform this Agreement and consummate the transactions contemplated
hereby, and the execution and performance by Newco of this Agreement have been
duly authorized by all requisite action by Newco. This Agreement has been duly
executed and delivered by Newco and, assuming due execution by Sellers and
Buyer, this Agreement constitutes a valid and binding obligation of Newco,
enforceable against Newco in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws and subject to general principles of equity.
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ARTICLE III
CLOSING
Section 3.1 Closing.
(a) The parties confirm that the closing of the transactions
contemplated by this Agreement (the "Closing") took place at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four Times Square, New York, New York,
10036, or such other place as may be mutually agreed upon by the parties on the
date hereof.
(b) At the Closing, each Seller delivered to the Buyer:
(i) a copy of this Agreement duly executed by each of the
Sellers;
(ii) a copy of the Amended LLC Agreement duly executed by each
of the Sellers;
(iii) a copy of the Stockholders Agreement duly executed by
each of the Sellers;
(iv) resignations executed by each of Xxxxxx X. Xxxx and
Xxxxxxx X. Xxxxxxxxxx, dated the date hereof, from each board of directors,
board of managers or similar governing body of the Company, Alterra and any of
their respective subsidiaries, including, without limitation, the Company's
Board of Managers and the Board of Directors of Alterra; and
(v) a copy of the non-foreign status affidavit in the form of
Exhibit IV attached hereto, as required by Section 1445 of the Internal Revenue
Code and the regulations thereunder, duly executed by the Sellers.
(c) At the Closing, the Buyer delivered to each Seller:
(i) a copy of this Agreement duly executed by the Buyer;
(ii) a copy of the Amended LLC Agreement duly executed by the
Buyer;
(iii) a copy of the Stockholders Agreement, duly executed by
the Buyer; and
(iv) the NW Purchase Price or the Emeritus Purchase Price, as
applicable.
(d) At the Closing, Newco delivered to each Seller a copy of the
Stockholders Agreement, duly executed by Newco.
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ARTICLE IV
SALE IN INITIAL PUBLIC OFFERING AND ADDITIONAL AGREEMENTS
Section 4.1 Election to Participate in the IPO; Sale in the IPO.
(a) At least 10 days prior to the initial filing of the
Registration Statement with the Securities and Exchange Commission, Newco shall
deliver to Sellers a draft of such Registration Statement and a written notice
stating the anticipated date of such initial filing (the "Filing Date Notice").
At Sellers' sole option, Sellers may elect, by delivery of an irrevocable
written notice to Buyer not for than five days after receipt of the Filing Date
Notice, to sell as a "selling stockholder" pursuant to the Registration
Statement the Newco Shares received, or to be received, by the Sellers in a
Reorganization Transaction (the "Election Notice"). If the Sellers deliver an
Election Notice, each Seller shall promptly furnish to Newco in writing such
information regarding it and its Newco Shares as Newco may from time to time
reasonably request to complete or amend the information required by such
Registration Statement (including, without limitation, information regarding
such Seller's ownership of Newco Shares), shall promptly execute and deliver, or
cause to be executed and delivered, customary agreements and take such other
actions as Newco or an underwriter reasonably requests in connection with the
IPO, including, without limitation, (i) the execution and delivery of any
underwriting agreement, power of attorney, custody agreement, stock power or
medallion guarantee, (ii) the delivery of a reasonable and customary opinion of
counsel and officers' certificate to the underwriters with respect to any Newco
Shares to be sold in the IPO by the Sellers and (iii) the execution and delivery
of an agreement restricting the Transfer (as such term is defined in the
Stockholders Agreement) of any Newco Shares owned by the Sellers as may be
required by underwriters to facilitate the marketing of the securities in the
IPO (so long as such restrictions on Transfer are no greater than the
restrictions contained in a similar agreement with the underwriters with respect
to the Newco Shares of the Fortress Entity (as such term is defined in the
Stockholders Agreement). Each of the Sellers hereby elects to sell as a "selling
stockholder" all of the Newco Shares received or to be received by it in a
Reorganization Transaction in the IPO, and this sentence shall be deemed to be
an Election Notice under this Section 4.1(a) for purposes of the IPO; provided,
however, that this election shall be effective only if the IPO is completed on
or before December 31, 2005. If the IPO is not completed on or before December
31, 2005, then the Sellers' rights to elect to sell Newco Shares under this
Section 4.1(b) shall be reinstated and Newco shall be required to deliver an
Election Date Notice to the Sellers with respect to and IPO thereafter.
(b) Each Seller shall pay its portion of all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale of
such Seller's Newco Shares pursuant to the IPO.
(c) If, in connection with the IPO, any managing underwriter
advises Newco in writing that, in its opinion, the inclusion of all the equity
securities sought to be included in the IPO by (i) Newco, (ii) the Sellers
pursuant to Section 4.1(a), and (iii) any other proposed seller of equity
securities of Newco which is an Affiliate of Buyer (other than Newco) (such
persons being "Other Proposed Sellers"), would adversely affect the
marketability of the equity securities sought to be sold in the IPO (an "IPO
Reduction"), then Buyer shall cause Newco to include in the Registration
Statement only such equity securities as Newco is so
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advised by such underwriter can be sold without such an effect, as follows and
in the following order of priority: (i) first, such number of equity securities
to be sold by Newco as Newco, in its reasonable judgment and acting in good
faith and in accordance with sound financial practice, shall have determined and
(B) second, that number of Newco Shares to be sold by the Sellers (allocated on
a pro rata basis amongst each Seller) and (C) third, other equity securities
held by any Other Proposed Sellers. As used herein, "Affiliate" shall have the
meaning set forth in Rule 12b-2 promulgated under the Securities Exchange Act of
1934, as amended; provided that no person shall be deemed an Affiliate of any
other person solely by reason of any investment in Newco .
Section 4.2 Indemnification.
(a)(i) Newco shall indemnify and hold harmless, to the fullest
extent permitted by law, each Seller, its officers, directors, employees,
managers, partners and agents and each person who controls (within the meaning
of Section 15 of the Securities Act and Section 20 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) such Seller or such other
indemnified person from and against all losses, claims, damages, liabilities and
expenses (including reasonable expenses of investigation and reasonable
attorneys' fees and expenses) (collectively, the "Losses") caused by, resulting
from or relating to any untrue statement (or alleged untrue statement) of a
material fact contained in any registration statement (including, without
limitation, the Registration Statement), prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission (or alleged
omission) of a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, except insofar as the same are caused by any information
furnished in writing to Newco by such Seller expressly for use therein or by
such Seller's failure to deliver a copy of a current prospectus or any
amendments or supplements thereto (which does not contain any such material
misstatements or omissions) after Newco has furnished such holder with a
sufficient number of copies of the same.
(ii) To the extent permitted by law, each Seller shall,
severally and not jointly, indemnify Newco, its directors, officers, employees
and agents and each Person who controls (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act) Newco or such other
indemnified Person against all Losses caused by any untrue statement of material
fact contained in any registration statement (including, without limitation, the
Registration Statement), prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission of a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, but only to the extent
that such untrue statement or omission is caused by and contained in such
information so furnished in writing by such Seller expressly for use therein;
provided, however, that each Seller's obligation to indemnify Newco hereunder
shall, to the extent more than one Seller is subject to the same indemnification
obligation, be apportioned between each Seller based upon the net amount
received by each Seller from the sale of Newco Shares, as compared to the total
net amount received in aggregate by the Sellers for securities sold pursuant to
such registration statement. Notwithstanding the foregoing, no Seller shall be
liable to the Company for amounts in excess of the lesser of (i) such
apportionment and (ii) the amount received by such holder in the offering giving
rise to such liability.
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(b) Any person entitled to indemnification under this Section 4.2
shall give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification; provided, however, the failure to
give such notice shall not release the indemnifying party from its obligation,
except to the extent that the indemnifying party has been materially prejudiced
by such failure to provide such notice on a timely basis.
(c) In any case in which any such action is brought against any
indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not (so long as it shall continue to have the right to
defend, contest, litigate and settle the matter in question in accordance with
this paragraph) be liable to such indemnified party hereunder for any legal or
other expense subsequently incurred by such indemnified party in connection with
the defense thereof other than reasonable costs of investigation, supervision
and monitoring (unless (i) such indemnified party reasonably objects to such
assumption on the grounds that there may be defenses available to it which are
different from or in addition to the defenses available to such indemnifying
party or (ii) the indemnifying party shall have failed within a reasonable
period of time to assume such defense and the indemnified party is or is
reasonably likely to be prejudiced by such delay, in either event the
indemnified party shall be promptly reimbursed by the indemnifying party for the
expenses incurred in connection with retaining separate legal counsel). An
indemnifying party shall not be liable for any settlement of an action or claim
effected without its consent. The indemnifying party shall lose its right to
defend, contest, litigate and settle a matter if it shall fail to diligently
contest such matter (except to the extent settled in accordance with the next
following sentence). No matter shall be settled by an indemnifying party without
the consent of the indemnified party (which consent shall not be unreasonably
withheld, it being understood that the indemnified party shall not be deemed to
be unreasonable in withholding its consent if the proposed settlement imposes
any obligation on the indemnified party other than the payment of money).
(d) The indemnification provided for under this Section 4.2 shall
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified person and will survive the transfer of the Newco
Shares and the termination of this Agreement.
(e) If recovery is not available under the foregoing indemnification
provisions for any reason or reasons other than as specified therein, any person
who would otherwise be entitled to indemnification by the terms thereof shall
nevertheless be entitled to contribution with respect to any Losses with respect
to which such person would be entitled to such indemnification but for such
reason or reasons. In determining the amount of contribution to which the
respective persons are entitled, there shall be considered the persons' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission, and other equitable considerations appropriate under the
circumstances. It is hereby agreed that it would not necessarily be equitable if
the amount of such contribution were determined by pro rata or per capita
allocation. No person guilty of fraudulent misrepresentation (within the meaning
of
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Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not found guilty of such fraudulent misrepresentation.
Notwithstanding the foregoing, no Seller or transferee thereof shall be required
to make a contribution in excess of the net amount received by such holder from
its sale of Newco Shares in connection with the offering that gave rise to the
contribution obligation.
Section 4.3 Registration Rights Agreement. In the event (i) an IPO
Reduction occurs and the Sellers are unable to sell all of the Newco Shares
owned by them in the IPO, or (ii) the IPO is not completed on or before December
31, 2005 but occurs thereafter and the terms of the Registration Rights
Agreement would be applicable to either of the Sellers after the completion of
that IPO, Newco shall, simultaneously with the consummation of the IPO, execute
and deliver to Sellers, and Sellers shall execute and deliver to Newco, the
Registration Rights Agreement.
ARTICLE V
MISCELLANEOUS
Section 5.1 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or by commercial
delivery service, or sent via telecopy (receipt confirmed) to the parties at the
addresses or telecopy numbers (or at such other address or telecopy numbers for
a party as shall be specified by like notice) set forth in Section 10.12 of the
Amended LLC Agreement or if to Newco, at the address or telecopy numbers set
forth in Section 10.12 of the Amended LLC Agreement for the Buyer.
Section 5.2 Further Action. Subject to the terms and conditions provided
herein, each of the parties hereto will at any time from and after the execution
hereof, execute, acknowledge and deliver all such further acts, deeds,
assignments, transfers, certificates, instruments, conveyances, powers of
attorney, assurances and other documents as may be required to carry out the
intent of this Agreement, and to transfer and vest title to the Membership
Interests being transferred hereunder, and to protect the right, title and
interest in and enjoyment of the Membership Interests sold, assigned and
transferred pursuant to this Agreement; provided, however, that this Agreement
shall be effective regardless of whether any such additional documents are
executed.
Section 5.3 Assignment. This Agreement and the rights and obligations
hereunder shall be assignable or transferable by Buyer in its discretion,
without the need for any consent of the other parties. This Agreement will apply
to, be binding in all respects upon and inure to the benefit of any assigns of
Buyer. Notwithstanding any assignment by Buyer, Buyer shall remain liable for
any and all obligations under this Agreement.
Section 5.4 Waivers and Amendments. This Agreement may be amended or
modified only by a written instrument executed by the parties hereto. Any
failure of a party hereto to comply with any obligation, covenant, agreement or
condition herein may be waived by the party entitled to the benefits thereof
only by a written instrument signed by the party granting such waiver.
Section 5.5 Headings. The headings in this Agreement are for convenience
of
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reference only and shall not be deemed to alter or affect the meaning or
interpretation of any provision hereof.
Section 5.6 Severability. In the event that any one or more of the terms
or provisions contained in this Agreement shall be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other term or provision of this Agreement. Any term or
provision of this Agreement held invalid or unenforceable only in part, degree
or within certain jurisdictions will remain in full force and effect to the
extent not held invalid or unenforceable to the extent consistent with the
intent of the parties as reflected by this Agreement.
Section 5.7 Binding Effect; Entire Agreement. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, successors, executors, administrators and assigns. This
Agreement, together with any other documents contemplated hereby, constitutes
the entire agreement of the parties hereto with respect to the subject matter
hereof, and supersedes any prior agreements or undertakings between the parties,
both written and oral, with respect to the subject matter hereof.
Section 5.8 Applicable Law; Venue. The substantive laws of the State of
Delaware shall govern the interpretation, validity and performance of the terms
of this Agreement, without regard to conflicts of law doctrines. Any legal
action or proceeding with respect to this Agreement and any action for
enforcement of any judgment in respect thereof may be brought in the courts of
the State of New York or of the United States of America for the Southern
District of New York and, by execution and delivery of this Agreement, each
party hereto hereby accepts for itself and in respect of its property, generally
and unconditionally, the non-exclusive jurisdiction of the aforesaid courts and
the appellate courts thereof. Each party hereto irrevocably consents to the
service of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to such party at the address for notices set forth herein. Each
party hereto hereby irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement brought in the
courts referred to above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum. EACH PARTY HERETO
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER
BASED IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY TRANSACTION OR AGREEMENT CONTEMPLATED HEREBY OR THE ACTIONS OF
ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
HEREOF.
Section 5.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which when executed shall be deemed to be an original, but
all of which taken together shall constitute one and the same agreement.
Section 5.10 Injunctive Relief. The parties hereto acknowledge and agree
that it will be impossible to measure in money the damages that would be
suffered if any party hereto violates any of the terms of this Agreement and
that any such violation will cause an aggrieved party
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irreparable injury for which an adequate remedy at law is not available.
Therefore, the parties hereto shall be entitled (in addition to any other remedy
to which they may be entitled in law or in equity) to specific performance or an
injunction, restraining order or other equitable relief from any court of
competent jurisdiction, restraining any party hereto from committing any
violations of the provisions of this Agreement, and none of the parties hereto
shall raise the defense that there is an adequate remedy at law or request that
any bond be posted in connection with seeking such equitable relief.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered, each as of the date first above written.
BROOKDALE SENIOR LIVING INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title:
FIT-ALT INVESTOR
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title:
EMERITUS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President of Finance
NW SELECT LLC
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Manager
SCHEDULE A
MEMBERSHIP INTERESTS TO BE PURCHASED BY BUYER
SELLER PERCENTAGE INTEREST
------ -------------------
Emeritus 12.5%
NW Select 12.5%
EXHIBIT I
AMENDED LLC AGREEMENT
EXHIBIT II
STOCKHOLDERS AND VOTING AGREEMENT
EXHIBIT III
REGISTRATION RIGHTS AGREEMENT
EXHIBIT IV
NON-FOREIGN CERTIFICATE
Section 1445 of the Internal Revenue Code provides that a transferee of a
United States real property interest must withhold tax if the transferor is a
foreign person. For U.S. tax purposes (including Section 1445), the owner of a
disregarded entity (which has legal title to a U.S. real property interest under
local law) will be the transferor of the property and not the disregarded
entity. To inform FIT ALT Investor LLC ("Buyer") that withholding of tax is not
required upon the disposition of a United States real property interest by
____________________, a Washington [limited liability company/corporation] (the
"Seller"), the undersigned hereby certifies the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations); and
2. Seller is not a disregarded entity as defined in Section
1.1445-2(b)(2)(iii) of the Income Tax Regulations issued under the
Internal Revenue Code.
3. Seller's U.S. employer tax identification number is __________; and
4. Seller's office address is _______________________.
Seller understands that this certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
The undersigned declares that the undersigned has examined this
certification and to the best of the undersigned's knowledge and belief it is
true, correct and complete, and the undersigned further declares that such party
has authority to sign this document on behalf of Seller.
Certified, sworn to and subscribed SELLER: ____________________, a
before Washington [limited liability company /
me this ___ day of ____________, corporation]
2005.
By: ______________________________
Name:
________________________________
Title:
Notary Public
My Commission Expires:
________________________________
(NOTARIAL SEAL)
