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
1
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,
2
reorganization,
fraudulent conveyance, moratorium or other similar laws and subject to general
principles of equity.
(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
5
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 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 indemnifica-tion 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. Notwith-standing the foregoing, no Seller shall be
6
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.
(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
7
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 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 obliga-tion.
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 applcable 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
8
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 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.
9
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 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]
10
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
Xxxxxxx X. Xxxx
Name:
Xxxxxx X. Xxxx
Title:
Manager
11
Schedule
A
Membership
Interests to be Purchased by Buyer
|
Seller
|
Percentage
Interest
|
|
Emeritus
|
12.5%
|
|
NW
Select
|
12.5%
|
12
Exhibit
I
Amended
LLC Agreement
13
Exhibit
II
Stockholders
and Voting Agreement
14
Exhibit
III
Registration
Rights Agreement
15
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 NW
SELECT
LLC,
a
Washington limited liability company (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 00-0000000;
and
|
|
4.
|
Seller's
office address is 000 Xxxxxxxxxx Xx, Xxxxx 0000, Xxxxxxx XX
.98101.
|
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.
16
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 before
me
this ___ day of ____________, 2005.
_________________________________
Notary
Public
My
Commission Expires:
_________________________________
(NOTARIAL
SEAL)
|
SELLER:
NW SELECT LLC,
a
Washington limited liability company
By:
_/s/
Xxxxxx X. Xxxx
Name:
Xxxxxx X. Xxxx
Title:
Manager
|
17
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
EMERITUS
CORPORATION,
a
Washington 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 00-0000000;
and
|
|
4.
|
Seller's
office address is 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx XX
.98121.
|
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.
18
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 before
me
this ___ day of ____________, 2005.
_________________________________
Notary
Public
My
Commission Expires:
_________________________________
(NOTARIAL
SEAL)
|
SELLER:
EMERITUS CORPORTION,
a
Washington corporation
By:
_/s/
Xxxxxxx X. Xxxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxxx
Title:
Vice President of Finance
|
19
