EQUITY OPTION AGREEMENT
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This Equity Option Agreement (this "Agreement"), dated as of August 24,
1999, is made and entered into by and among AH Battery Park Member, LLC, an Ohio
limited liability company (the "Member"), AH Battery Park Owner, LLC, an Ohio
limited liability company (the "Owner", and together with the Member shall be
individually referred to as an "Owner Related Entity" and shall be collectively
referred to as the "Owner Related Entities"), and Brookdale Living Communities
of New York-BPC, Inc., a Delaware corporation ("Brookdale").
RECITALS
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WHEREAS, the Member was formed on or about September of 1998 by the
filing and recording of the Member's Articles of Organization in the Office of
the Secretary of State of the State of Ohio, pursuant to an Operating Agreement
dated as of September 16, 1998 and amended and restated pursuant to an Amended
and Restated Operating Agreement dated as of June 19, 1999 (as so amended and
restated, and as it may be further amended from time to time with the consent of
Brookdale, the "Member Operating Agreement");
WHEREAS, the Member is the sole member and manager of, and owns one
hundred percent (100%) of the membership interests (the "Membership Interests")
in, the Owner;
WHEREAS, the Owner was formed on or about September of 1998 by the
filing and recording of the Owner's Articles of Organization in the Office of
the Secretary of State of the State of Ohio, pursuant to an Operating Agreement
dated as of September 16, 1998 and amended and restated pursuant to an Amended
and Restated Operating Agreement dated as of June 19, 1999 (as so amended and
restated, and as it may be further amended from time to time with the consent of
Brookdale, the "Owner Operating Agreement");
WHEREAS, the Owner intends to develop a senior congregate and
non-licensed assisted living facility in Battery Park City, New York, (the
"Project");
WHEREAS, Key Corporate Capital, Inc., Fleet National Bank and European
American Bank (collectively, the "Senior Lender"), have agreed to make a loan
(the "Senior Loan") to the Owner up to the sum of $49,125,000to fund a portion
of the costs of the Project pursuant to (i) that certain Building Loan Agreement
of even date herewith (as it may be amended from time to time with the consent
of Brookdale, the "Senior Loan Agreement") between the Owner and the Senior
Lender and (ii) the other "Loan Documents" (as such term is defined in the
Senior Loan Agreement; as the same may be amended from time to time with the
consent of Brookdale, collectively with Senior Loan Agreement, the "Senior Loan
Documents");
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WHEREAS, Banc One Capital Partners IV, Ltd., an Ohio limited liability
company (the "Subordinate Lender"), has agreed to loan (the "Subordinate Loan")
to the Member an amount up to the sum of $13,674,590.00, which the Member has or
will contribute as equity to the Owner to fund a portion of the costs of the
Project, pursuant to (i) that certain Promissory Note of even date herewith (as
it may be amended from time to time with the consent of Brookdale, the
"Subordinate Note") from to the Member to the Subordinate Lender; (ii) the other
loan documents related to and/or securing the Subordinate Note; as the same may
be amended from time to time with the consent of Brookdale, collectively with
the Subordinate Note, the "Subordinate Loan Documents")(the Senior Loan
Documents and the Subordinate Loan Documents shall be collectively referred to
as the "Loan Documents");
WHEREAS Brookdale is the developer of the Project pursuant to that
certain Amended and Restated Development Agreement dated as of August 24, 1999
(as it may be amended from time to time, the "Development Agreement") between
the Owner and Brookdale and, upon substantial completion of the Project, will be
the manager of the Project pursuant to a Management Agreement of even date
herewith (as it may be amended from time to time, the "Management Agreement")
between the Owner and Brookdale; and
WHEREAS, the Member is willing to grant an option to Brookdale to
purchase the Membership Interests upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Owner Related Entities and
Brookdale hereby agree as follows:
1. The Option. The Member hereby grants an irrevocable option (the
"Option") to Brookdale (or its nominee) to purchase the Membership
Interests at the Purchase Price (as defined in Section 2 hereof) in
accordance with the terms of this Agreement. The Option shall terminate
and expire on the date (the "Option Termination Date") that is thirty
(30) days after the stated maturity date of the Senior Loan, as it may
be extended.
2. Purchase Price. The purchase price (the "Purchase Price") for the
Membership Interests shall be an amount equal to the outstanding
balance under the Subordinate Loan, minus the aggregate amount of any
distributions made by the Owner to the Member.
3. Exercise of the Option. Brookdale may exercise the Option by giving the
Member, the Subordinate Lender, and the Escrow Agent (as defined in
Section 12 hereof) at least five (5) days' prior written notice (the
"Option Notice") at any time prior to the Option Termination Date. The
Option Notice shall specify the date (the "Closing Date") of the
exercise of the Option, which shall also be the date of the repayment
in full by Member of the Subordinate Loan, and in any case shall not be
later than the Option Termination Date. If Brookdale exercises the
Option prior to the Option Termination Date but fails to close prior to
the Option Termination Date due to no fault of any Owner Related
Entities, then the Option shall terminate and Brookdale's rights shall
cease and be null and void. The Member hereby appoints Brookdale as its
true and lawful attorney-in-fact for purposes of giving notice of
optional prepayment of the Subordinate Note, which appointment as
attorney-in-fact is irrevocable and is coupled with an interest.
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4. Closing.
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a. Upon receipt of the Option Notice, the Member and Brookdale
shall schedule a closing (the "Closing") to occur on the Closing
Date at the Chicago, Illinois offices of counsel to Brookdale.
The Member and Brookdale shall each be solely responsible for
its own costs incurred in connection with the Closing; provided,
however, that Brookdale shall pay, or reimburse the Member for,
all reasonable legal fees and expenses of the Member incurred in
connection with the Closing in an amount not to exceed $2,500
when aggregated with all other legal fees and expenses paid or
reimbursed by Brookdale pursuant to Section 7(c) of the Property
Option Agreement of even date herewith (as it may be amended
from time to time, the "Property Option Agreement") among the
Member, the Owner and Brookdale.
b. Contemporaneously with the execution and delivery of this
Agreement, the Member is delivering to the Escrow Agent an
Assignment and Acceptance Agreement in the form of Exhibit A
attached hereto (the "Assignment" and together with any other
documents and instruments delivered pursuant to Section 4(c)
below, the "Assignment Documents"), undated, but otherwise duly
executed by the Member.
c. At the Closing, the Escrow Agent shall, in accordance with the
escrow instructions set forth in Section 12 hereof, deliver the
Purchase Price to, or as directed by, the Member, and the
Assignment to Brookdale (or its nominee), and the Member shall
deliver to Brookdale (or its nominee) the following items:
i. original executed copies (or if unavailable, certified
copies) of the Member's and Owner's Articles of
Organization, the Member Operating Agreement, the Owner
Operating Agreement, all certified by an appropriate
officer of the relevant Owner Related Entity as of the
Closing Date, as being true, correct, complete and
unamended or if amended with the consent of Brookdale,
certified to such effect) and in full force and effect
as of such date;
ii. a certificate of an appropriate officer of each Owner
Related Entity, dated the Closing Date, certifying that
the representations and warranties of such Owner
Related Entity set forth in the applicable Section of
this Agreement are true, correct and complete as of the
Closing Date as though made by such Owner Related
Entity on the Closing Date;
iii. the books and records of each Owner Related Entity;
iv. such other documents and instruments of transfer as are
necessary to complete the transfer of the Membership
Interests; and
v. evidence that the Subordinate Loan will be repaid with
the Purchase Price.
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d. The representations and warranties made by the Owner Related
Entities as of the Closing Date shall survive the Closing.
e. Prior to the Closing, Brookdale may conduct Uniform Commercial
Code, tax lien, pending suit and judgment and any other
appropriate searches (collectively, the "Searches") against each
of the Owner Related Entities and the Project to confirm that no
liens and/or security interests have been created by any Owner
Related Entities (or their creditors) except those in favor of
Senior Lender or Subordinate Lender or those consented to by, or
requested or permitted by, Brookdale or its affiliates (an
"Unpermitted Exception"). If said Searches reveal any such
Unpermitted Exception, then the Owner Related Entities shall
cause such Unpermitted Exception to be released of record at its
sole cost and expense.
5. Grant of Security Interest.
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a. To secure the performance by the Owner Related Entities of their
respective obligations hereunder and the repayment of any and
all indebtedness and other liabilities arising from any breach
by any of the Owner Related Entities of its obligations
hereunder the Property Option Agreement, the Management
Agreement or the Development Agreement (collectively, the
"Brookdale Documents") the Member hereby grants to Brookdale a
continuing security interest in the Membership Interests and all
proceeds thereof, including, without limitation, the right to
receive any and all payments or distributions of any and every
kind whatsoever, whether in cash, property or otherwise, at any
time made, owing or payable with respect to the Membership
Interests, together with all applicable rights, powers and
privileges of the Member as the sole member and manager of the
Owner pursuant to the Owner Operating Agreement (all of the
foregoing being hereinafter collectively referred to as the
"Collateral".
b. The Member does hereby irrevocably constitute and appoint
Brookdale its true and lawful attorney-in-fact, with full power
of substitution, for the Member and in its name, place and
stead, to ask, demand, collect, receive, receipt for, xxx for,
compound and give acquittance for any and all sums or properties
which may be or become due, payable or distributable with
respect to the Collateral, with full power to settle, adjust or
compromise any claim thereunder as fully as the Member could do,
and to endorse or sign the name of the Member on all items,
instruments and commercial paper given in payment or in part
payment thereof, and all documents of satisfaction, discharge or
receipt required or requested in connection therewith, and, in
its discretion, to file any claim or take any other action or
proceeding, either in its own name or in the name of the Member,
or otherwise, which Brookdale may deem necessary or appropriate
to perfect Brookdale's security interest in or collect or
otherwise realize upon any and all of the Collateral, or effect
a transfer thereof pursuant to the Member Operating Agreement,
the Owner Operating Agreement or this Agreement, or which may be
necessary or appropriate to protect and preserve the right,
title and interest of Brookdale in and to the Collateral and the
security intended to be afforded hereby.
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c. Without limiting the foregoing, the Member agrees that it will,
upon request of Brookdale, execute and deliver such further
documents and instruments (including, without limitation,
Uniform Commercial Code Financing Statements) and do and perform
such other acts and things (including, without limitation,
obtaining such consents hereto, and giving such notices hereof,
as Brookdale may reasonably request from time to time) as
Brookdale may deem necessary or appropriate to more effectively
vest in and secure to Brookdale the Collateral or other rights
or interests due or hereafter to become due.
d. Upon the occurrence and continuance of default of any of the
Owner Related Entities under any of the Brookdale Documents, in
addition to the rights and remedies Brookdale may have
hereunder, it shall have all the rights and remedies of a
secured party under applicable law with respect to the
Collateral. All costs and expenses of any kind whatsoever, of
collection and enforcement of the obligations secured hereby or
any rights or remedies hereunder (including without limitation,
all costs of disposing of the Collateral, together with court
costs and reasonable attorneys' fees), or incurred in realizing
upon the Collateral or in enforcing this Agreement, shall be
deemed to be additional obligations secured hereby, and may be
deducted and retained by Brookdale from the proceeds of
disposition of the Collateral and applied to the payment and
satisfaction of such costs and expenses.
e. The security interest of Brookdale in the Collateral shall
terminate upon the earlier of the Closing or the Option
Termination Date, and upon such termination, Brookdale shall
promptly deliver to the Member the appropriate Uniform
Commercial Code termination statements.
6. Member Representations. The Member represents and warrants to Brookdale
as follows as of the date hereof and as of the Closing Date:
a. The Member is a limited liability company duly organized,
validly existing and in good standing under the laws of the
State of Ohio and has all requisite power and authority to
execute, deliver and perform its obligations under this
Agreement and the Assignment Documents and to own and operate
its property and to carry on its business as now conducted. The
Member is duly qualified to do business in each jurisdiction
where the nature of its operations and applicable laws require
such qualification, except where the failure to be so qualified
would not have a material adverse effect on the Member.
b. The execution, delivery and performance of this Agreement and
the Assignment Documents by the Member have been duly authorized
by all necessary organizational action, and this Agreement is
the legal, valid and binding obligation of the Member,
enforceable in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency or the laws or
equitable principles affecting the enforcement of creditors'
rights generally.
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c. The execution, delivery and performance by the Member of this
Agreement and the Assignment Documents do not contravene the
terms of the Member's Articles of Organization or the Member
Operating Agreement, true, correct and complete copies of which
have been delivered to Brookdale, conflict with or result in any
breach or contravention of, or the creation of any lien under,
any agreements or instruments to which it is a party or by which
it or any of its property is bound or violate any state or
federal law and all required approvals therefor, if any, have
been duly obtained.
d. The Membership Interests constitute all of the membership
interests in the Owner, and the Member owns the Membership
Interests, free of any liens, claims or encumbrances, other than
the security interest created pursuant to this Agreement and the
interest of Brookdale created pursuant to the Member Operating
Agreement.
e. There is no litigation or other proceeding pending against the
Member which could have a material adverse effect on the
Member's ability to consummate the transactions contemplated by
this Agreement and the Assignment Documents.
f. The Member is the sole member and manager of the Owner other
than Brookdale's special management rights created pursuant to
the Member Operating Agreement. . The Member's sole place of
business is located at its address set forth in the notice
section of this Agreement.
g. The Membership Interests are not represented by any certificates
and/or similar instruments, and the Membership Operating
Agreement contains a description of the rights of Brookdale
pursuant to this Agreement.
h. There is no litigation or other proceeding pending against the
Member which could have a material adverse effect on the
Member's ability to consummate the transactions contemplated by
the Property Option Agreement and as of the Closing Date, if
applicable, the Assignment (as defined therein).
i. All of the representations and warranties of the Member set
forth in the Subordinate Loan Documents are true and correct as
though such representations and warranties were set forth herein
for Brookdale's benefit.
j. All of the representations and warranties of the Member set
forth in the Property Option Agreement are true and correct.
k. The Member has no outstanding liabilities, contingent or
otherwise, other than, as of the date hereof, (i) the
indebtedness evidenced by the Subordinated Notes and (ii)
liabilities for which Brookdale or the Subordinate Lender (or
any one or more of their affiliates) is liable to the Member.
7. Owner Representations. The Owner represents and warrants to Brookdale
as follows as of the date hereof and as of the Closing Date:
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a. The Owner is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of
Ohio and has all requisite power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and
to own and operate its property and to carry on its business as
now conducted. The Owner is duly qualified to do business in
each jurisdiction where the nature of its operations and
applicable laws require such qualification, except where the
failure to be so qualified would not have a material adverse
effect on the Owner.
b. The execution and delivery of this Agreement and the performance
by the Owner of its obligations hereunder have been duly
authorized by all necessary organizational action, and this
Agreement is the legal, valid and binding obligation of the
Owner, enforceable in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or the laws
or equitable principles affecting the enforcement of creditors'
rights generally.
c. The execution and delivery of this Agreement and the performance
by the Owner of its obligations hereunder do not contravene the
terms of the Ownership Operating Agreement, a true, correct and
complete copy of which has been delivered to Brookdale, conflict
with or result in any breach or contravention of, or the
creation of any lien under, any agreements or instruments to
which it is a party or by which it or any of its property is
bound or violate any state or federal law and all required
approvals therefor, if any, have been duly obtained
d. There is no litigation or other proceeding pending against the
Owner which could have a material adverse effect on the Owner's
ability to consummate the transactions contemplated by the
Property Option Agreement and as of the Closing Date, if
applicable, the Property Conveyance Documents (as defined in the
Property Option Agreement).
e. All of the representations and warranties made on behalf of the
Owner relating to Owner (as opposed to the Project) set forth in
the Senior Loan Documents are true and correct as though such
representations and warranties were set forth herein for
Brookdale's benefit.
f. All of the representations and warranties of the Owner set forth
in the Property Option Agreement are true and correct.
g. The Owner has no outstanding liabilities, contingent or
otherwise, other than those incurred under or permitted by the
Senior Loan Documents, the Management Agreement and the
Development Agreement.
8. Member Covenants. Until the earlier of the Closing or the Option
Termination Date, unless Brookdale otherwise consents in writing, the
Member:
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a. Shall preserve and maintain its legal existence, rights,
franchises and privileges in the State of Ohio, and shall
qualify and remain qualified in each jurisdiction in which such
qualification is necessary or desirable in view of its business
and operations or the ownership of its property.
b. Shall at all times observe and comply with the provisions of its
Articles of Organization as in effect on the date hereof.
c. Shall not amend the Member's Articles of Organization or the
Member Operating Agreement and shall at all times observe and
comply with the provisions thereof.
d. Shall not cause or permit the dissolution of the Member or the
Owner.
e. Shall not permit the issuance of any member's interests (or any
other interests) in the Owner in addition to the Membership
Interests.
f. Shall continue to own the Membership Interests (which shall
continue to constitute 100% of the membership interests in the
Owner), free of any liens, claims or encumbrances, other than
the security interest created by this Agreement and the interest
of Brookdale created pursuant to the Member Operating Agreement.
g. Shall not file a voluntary petition in bankruptcy and shall use
its best efforts to contest any involuntary petition filed
against it.
h. Shall not permit or accept any distributions by the Owner or
Member.
i. Shall give Brookdale at least thirty (30) days' prior written
notice of any change in its place of business.
j. Shall not take any actions that might adversely affect
Brookdale's rights under, or be inconsistent with the terms of,
this Agreement.
9. Owner Covenants. Until the earlier of the Closing or the Option
Termination Date, unless Brookdale otherwise consents in writing, the
Owner:
a. Shall not amend the Articles of Organization or amend or consent
to the amendment of the Owner Operating Agreement, and shall at
all times observe and comply with the provisions thereof.
b. Shall not amend, or request any waiver of any provision of, the
Senior Loan Agreement and/or Senior Loan Documents.
c. Shall not permit any distributions by the Owner to Member.
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d. Shall give Brookdale at least thirty (30) days' prior written
notice of any change in its place of business.
e. Shall comply with all of the covenants applicable to it set
forth in the Senior Loan Documents (except for those
responsibilities delegated to Brookdale pursuant to the
Development Agreement or the Management Agreement) and shall
promptly deliver to Brookdale copies of all financial
statements, reports, notices, certificates or other writings
delivered to, or received from, the Senior Lender pursuant
thereto.
f. Shall not incur any liabilities or obligations, contingent or
otherwise, except expenses incurred in the ordinary course of
administering its business or those that are incurred under or
are necessary to comply or are permitted by with the provisions
of the Senior Loan Documents, and shall not enter into any
agreement or contract, whether oral or written, except this
Agreement, the Property Option Agreement, the Intercreditor
Agreement, the Senior Loan Documents to which it is a party, the
Development Agreement and the Management Agreement, and
agreements entered into in the ordinary course of administering
its business, which are terminable without penalty with no more
than thirty (30) days prior written notice.
g. Shall continue to own the Property (as defined in the Property
Option Agreement), free of any liens, claims, or encumbrances,
other than Permitted Exceptions (as defined in the Property
Option Agreement).
h. Shall not take any actions that might adversely affect
Brookdale's rights under, or be inconsistent with the terms of,
this Agreement other than as may be required by the Senior Loan
Documents.
10. Defaults. A "Default" shall mean the occurrence of one or more of the
following described events:
a. A material breach by any Owner Related Entity of any of the
representations and warranties contained herein.
b. Any Owner Related Entity defaults in the performance or
observation of any covenant of such Owner Related Entity
contained in this Agreement and such default shall continue
without cure for fifteen (15) days after notice thereof by
Brookdale to such Owner Related Entity and the Subordinate
Lender.
c. An "Event of Default" (as defined in the Subordinate Note)
occurs, which "Event of Default" has not been caused, directly
or indirectly, by Brookdale.
d. An "Event of Default" (as defined in the Senior Loan Documents)
occurs, which "Event of Default" has not been caused, directly
or indirectly, by Brookdale.
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e. An "Event of Default" (as defined in the Development Agreement)
by the Owner occurs.
f. An "Event of Default" (as defined in the Management Agreement)
by the Owner occurs.
g. Any Owner Related Entity makes an assignment for the benefit of
creditors.
h. Any Owner Related Entity petitions or applies to any tribunal
for the appointment of a trustee or receiver for itself or any
substantial part of its assets or the Member and/or Owner
commences any proceeding relating to it under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction whether now
or hereafter in effect.
i. Any petitions or applications are filed, or any proceedings are
commenced, against any Owner Related Entity seeking the
adjudication of it as bankrupt and such Owner Related Entity by
any act indicates its admission or consent thereto, or
acquiescence therein, or any order is entered appointing a
trustee or receiver, or adjudicating such Owner Related Entity
bankrupt or insolvent, or approving the petition in any such
proceedings and such order remains unstayed or undischarged for
more than sixty (60) days.
j. Any order is entered in any proceeding against any Owner Related
Entity decreeing the dissolution of such Owner Related Entity
and such order remains unstayed or undischarged for more than
sixty (60) days.
k. Any judgment or order is entered in any proceedings which
affects the Membership Interests, or any lien, claim or other
encumbrance encumbers any thereof, other than, in the case of
the Membership Interests, the interest of Brookdale created
pursuant to the Operating Agreement.
11. Notice of Certain Events. Owner and each other Owner Related Entity
agrees to promptly give notice to Brookdale of:
a. Any Default known to Owner or such other Owner Related Entity;
b. Any notice of any default or "Event of Default" or any other
notice received from the Senior Lender under the Senior Loan
Documents (unless a copy of such notice is required to be
delivered to Brookdale pursuant thereto);
c. Any notice of any default or "Event of Default" or any other
notice received from the Subordinate Lender under the
Subordinate Loan Documents (unless a copy of such notice is
required to be delivered to Brookdale pursuant thereto); and
d. Any notice given by Owner or any other Owner Related Entity to
the Senior Lender or the Subordinate Lender.
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Each notice pursuant to this Section shall be accompanied by a
statement of the chief executive officer of the relevant Owner
Related Entity setting forth the details of the occurrence
referred to therein and, if applicable, stating what action such
Owner Related Entity proposes to take with respect thereto.
12. Appointment of Escrow Agent and Establishment of Escrow.
a. Brookdale and the Member agree to appoint Squire, Xxxxxxx &
Xxxxxxx, LLP as Escrow Agent (in such capacity, together with
any successor thereto, the "Escrow Agent") pursuant to the terms
of the Escrow Agent Appointment Agreement attached hereto as
Exhibit B (the "Escrow Agent Appointment Agreement").
b. Brookdale and the Member hereby establish an escrow to hold the
Assignment and to facilitate the Closing.
c. The Escrow Agent agrees to act in accordance with the Escrow
Agent Appointment Agreement and this Section.
d. On the Closing Date, Brookdale (or its nominee) shall deliver to
the Escrow Agent, (i) the Purchase Price by wire transfer of
immediately available funds to an account designated by the
Escrow Agent, (ii) a certificate (the "Purchase Price
Certificate") of a Treasurer or an Assistant Treasurer of
Brookdale, dated as of the Closing Date or a date within the
preceding five (5) days, stating that (A) the Option Termination
Date has not occurred, (B) in the event that Brookdale desires
the Assignment to be delivered to a nominee, the name of such
nominee, (C) the Purchase Price has been accurately calculated
and showing such calculation, and (E) a payoff letter from the
Subordinate Lender confirming that, upon receipt the amount
referenced therein, the Subordinate Loan will have been paid in
full in accordance with the Subordinate Loan Documents.
e. On the Closing Date, upon receipt of the Purchase Price and the
Purchase Price Certificate, the Escrow Agent shall take the
following actions:
i. Date the Assignment the Closing Date, insert the name
of the "Assignee" in the preamble thereto and deliver
the Assignment to Brookdale (or its nominee); and
ii. Deliver the Purchase Price to the Member by wire
transfer of immediately available funds to an account
designated by the Member.
f. In the event that Brookdale assigns its rights under this
Agreement pursuant to Section 13(d) hereof, it shall so notify
the Escrow Agent.
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13. Miscellaneous.
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a. Equitable Relief. Each Owner Related Entity and Brookdale agree
that money damages or other remedy at law would not alone be
sufficient or adequate remedy for any breach or violation of, or
a default under, this Agreement by such Owner Related Entity and
that, in addition to all other remedies available to Brookdale,
Brookdale shall be entitled to an injunction restraining such
breach, violation or default or threatened breach, violation or
default and to any other equitable relief, including, without
limitation, specific performance, without bond or other security
being required.
b. Notices. Any notices required or permitted to be sent hereunder
shall be delivered personally or by facsimile (with answer back
acknowledged) or mailed, certified mail, return receipt
requested, or delivered by overnight courier service to the
following addresses, or such other addresses as shall be given
by notice delivered hereunder, and shall be deemed to have been
given upon delivery, if delivered personally, upon receipt with
answer back acknowledged, if delivered by facsimile, three (3)
business days after mailing, if mailed, or one business day
after delivery to the courier, if delivery by overnight courier
service:
If to any Owner
Related Entities: AH Battery Park Member, LLC
c/o Alliance Holdings, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to: Squire, Xxxxxxx & Xxxxxxx, L.L.P.
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxx, Jr.
Facsimile: (000) 000-0000
If to Brookdale: Brookdale Living Communities of
New York-BPC, Inc.
c/o Brookdale Living Communities, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Xx.
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx and
Xxxxx Xxxxxx
Facsimile: (000) 000-0000
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A copy of any notice sent hereunder shall be sent to the Escrow
Agent at Squire, Xxxxxxx & Xxxxxxx L.L.P., 00 Xxxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000, Attention: Xxxxx Xxxxxx, Jr., Facsimile:
(000) 000-0000 (or such other address as shall be given by
notice delivered hereunder).
c. Entire Agreement. This Agreement (including the schedule and
exhibits hereto) constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral and
written, among the parties hereto with respect to the subject
matter hereof.
d. Binding Effect; Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their
respective successors and assigns. Brookdale may assign its
rights under this Agreement without the consent of any Owner
Related Entities. In the event that Brookdale assigns its rights
under this Agreement, it shall so notify the other parties
hereto, and references herein, including, without limitation, in
Section 12 hereof, and in the Escrow Agent Appointment
Agreement, to Brookdale shall be deemed to be references to the
assignee to whom such rights have been assigned upon the
execution and delivery by Brookdale and such assignee of an
assignment and assumption agreement with respect to the Escrow
Appointment Agreement and this Agreement and delivery of a copy
thereof to each of the other parties hereto and the Escrow
Agent.
e. No Third Party Beneficiaries. This Agreement is not intended to
and does not benefit or confer rights upon, and is not intended
to be and is not enforceable by, any persons or entities not
party to this Agreement, including, without limitation, the
Senior Lender and the Subordinate Lender.
f. Amendment; Waiver. No provision of this Agreement may be
amended, waived or otherwise modified without the prior written
consent of the parties hereto, and, in the case of any amendment
to, or waiver or modification of, the provisions of Section 12
hereof, the acknowledgment and agreement of the Escrow Agent.
g. Section Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
h. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original
and all of which together shall be deemed to be one and the same
instrument.
i. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois
(without giving effect to principles of conflicts of law).
13
j. Waiver of Jury Trial. Each party hereto, after consulting or
having had the opportunity to consult with counsel, knowingly,
voluntarily and intentionally waives any right any of them may
have to a trial by jury in any litigation based upon or arising
out of this Agreement, or any of the transactions contemplated
by this Agreement, or any course of conduct, dealing, statements
(whether oral or written) or actions of any of them. No such
party shall seek to consolidate, by counterclaim or otherwise,
any action in which a jury trial has been waived with any other
action in which a jury trial cannot be or has not been waived
unless failure to so consolidate would result in a loss of such
claim.
k. Limitation of Personal Liability. Notwithstanding any other
provision of this Agreement to the contrary, (i) in no event
shall any officer, director, member, partner, manager,
shareholder, incorporator or agent of any Owner Related Entity
be personally liable to Brookdale for any of such Owner Related
Entity's obligations under this Agreement, and (ii) if the Owner
defaults in connection with any representation or covenant of
the Owner set forth in this Agreement, it will not create any
personal liability against the Owner or any lien rights against
the Property. Notwithstanding any other provision of this
Agreement to the contrary, in no event shall any officer,
director, member, partner, manager, shareholder, incorporator or
agent of Brookdale be personally liable to any Owner Related
Entity for any of Brookdale's obligations under this Agreement.
l. Confidentiality. Owner Related Entities acknowledge that
Brookdale may suffer irreparable harm if the information
provided to any of the Owner Related Entities pursuant to this
Agreement or this Agreement was disclosed to any third parties.
Accordingly, Owner Related Entities shall keep this Agreement
and all such information confidential and shall not disclose any
of such information not already known to the public to any party
except Owner Related Entities' lenders, attorneys, accountants
and other professional advisors in connection with the
transactions contemplated by this Agreement or as otherwise
required by law or court order. Owner Related Entities shall
endeavor to minimize the number of persons who have copies of
this Agreement and shall inform each of such persons of the
confidential nature thereof. The provisions of this Section
13(l) shall not prohibit any affiliate of any of the Owner
Related Entities from participating in other similar
transactions with parties other than Brookdale, Developer or
their affiliates.
[Signature page to follow]
14
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the date first above written.
MEMBER:
AH Battery Park Member, LLC
By: Alliance Holdings, Inc.,
its sole member and manager
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Its: President
OWNER:
AH Battery Park Owner, LLC
By: AH Battery Park Member, LLC,
its sole member and manager
By: Alliance Holdings, Inc.,
its sole member and manager
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Its: President
BROOKDALE:
BROOKDALE LIVING COMMUNITIES
OF NEW YORK-BPC, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxx
Its: President
JOINDER
-------
The undersigned hereby joins in the execution and delivery of the
foregoing Agreement for the sole purpose of acknowledging and agreeing to the
provisions of Section 12 thereof.
SQUIRE, XXXXXXX & XXXXXXX, L.L.P.
By:
--------------------------------
Name:
---------------------------
EXHIBIT A
ASSIGNMENT AND ACCEPTANCE AGREEMENT
THIS AGREEMENT made as of ___________________, by and between AH
BATTERY PARK MEMBER, LLC, an Ohio limited liability company ("Assignor"), and
_______________________________________ ("Assignee").
WITNESSETH:
1. For good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Assignor does hereby transfer, assign and
convey to Assignee a one hundred percent (100%) interest (the "Interest") as
Member in AH Battery Park Owner, LLC an Ohio limited liability company (the
"LLC").
2. Assignor does hereby warrant and represent that it is the sole
and lawful owner of the Interest herein transferred, free of any liens, claims
or encumbrances and that it has full power and authority to make such transfer.
3. Assignee does hereby accept the foregoing assignment and agrees
to become a Member of the LLC.
ASSIGNOR:
AH BATTERY PARK MEMBER, LLC
By: Alliance Holdings, Inc.,
its sole member and manager
By:
Title:
Its:
ASSIGNEE:
By:
Title:
EXHIBIT B
