Exhibit 99.17
OPTION PURCHASE AGREEMENT
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This OPTION PURCHASE AGREEMENT (this "Agreement") is made and entered into
as of the 7th day of December, 1999, by and among Brookdale Living Communities,
Inc., a Delaware corporation ("Brookdale"), Xxxxxx X. Xxxxxxxx, Xx., an
individual currently residing at 00 Xxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000
("DWC"), The Prime Group, Inc., an Illinois corporation ("PGI"), and Prime Group
III, L.P., an Illinois limited partnership ("PG3LP").
WITNESSETH
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WHEREAS, PGI and DWC are parties to that certain Stock Option and Deposit
Agreement (the "First Option Agreement"), dated as of May 7, 1997, pursuant to
which PGI granted DWC an option to purchase from PGI 100,000 shares of
Brookdale's common stock (the "First Option Shares") for an aggregate purchase
price of $1,000.00 (the "First Option"); and
WHEREAS, PGI, Prime Group VI, L.P., an Illinois limited partnership
("PG6LP"), and DWC are parties to that certain Stock Purchase Agreement and
Agreement Concerning Option Shares (the "Second Option Agreement", and together
with the First Option Agreement, the "Option Agreements"), dated as of May 7,
1997, pursuant to which PG6LP granted DWC an option to purchase from PG6LP
25,000 shares of Brookdale's common stock (the "Second Option Shares", and
together with the First Option Shares, the "Option Shares") for an aggregate
purchase price of $272,722.50 (the "Second Option", and together with the First
Option, the "Options"); and
WHEREAS, PG3LP assumed all of PG6LP's obligations under the Second Option
Agreement pursuant to an Assumption Agreement, dated as of December 18, 1998, by
and between PG6LP and PG3LP; and
WHEREAS, Brookdale desires to purchase from DWC, and DWC desires to sell to
Brookdale, the Options upon the terms and subject to the conditions set forth in
this Agreement; and
WHEREAS, immediately following the purchase and sale of the Options,
Brookdale desires to purchase the Option Shares from PGI and PG3LP, and PGI and
PG3LP desire to sell the Option Shares to Brookdale, upon the terms and subject
to the conditions set forth in this Agreement;
NOW, THEREFORE, for good and adequate consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Purchase and Sale of the Options. Brookdale shall purchase and
acquire from DWC, and DWC shall sell, transfer, convey, assign and deliver to
Brookdale, all of the rights, title and interests of DWC in and to the Options,
upon the following terms and conditions:
(a) the purchase price for the First Option shall be One Million Two
Hundred Fifty Thousand Dollars ($1,250,000.00), payable by Brookdale to DWC
on the date hereof by wire transfer of immediately available funds in such
amount; and
(b) the purchase price for the Second Option shall be Seventy-Five
Thousand Dollars ($75,000.00), payable by Brookdale (i) to DWC on the date
hereof by wire transfer of immediately available funds in the amount of
$38,743.55 and (ii) to PG3LP on the date hereof by wire transfer of
immediately available funds in the amount of $36,256.45 in payment of all
unpaid Periodic Payments (as defined in the Second Option Agreement) due
PG3LP as of the date hereof.
2. Purchase and Sale of the Option Shares. Immediately following the
purchase and sale of the Options pursuant to Section 1 above, Brookdale shall
purchase and acquire from PGI and PG3LP, and PGI and PG3LP shall sell, transfer,
convey, assign and deliver to Brookdale, all of the rights, title and interests
of PGI and PG3LP in and to the Option Shares, upon the following terms and
conditions:
(a) the purchase price for the First Option Shares shall be One
Thousand Dollars ($1,000.00), payable by Brookdale to PGI on the date
hereof by wire transfer of immediately available funds in such amount; and
(b) the purchase price for the Second Option Shares shall be Two
Hundred Seventy-Two Thousand Seven Hundred Twenty-Two and 50/100 Dollars
($272,722.50), payable by Brookdale to PG3LP on the date hereof by wire
transfer of immediately available funds in such amount.
3. Delivery. Upon payment of the respective purchase prices for the
Option Shares, (a) PGI and PG3LP shall instruct Winston & Xxxxxx, as Escrow
Agent under the Option Agreements, to deliver the stock certificates
representing the Option Shares, together with the accompanying stock power for
the stock certificate representing the First Option Shares, currently held in
escrow by the Escrow Agent, to Brookdale and (b) PG3LP shall execute and deliver
to Brookdale a stock power for the stock certificate representing the Second
Option Shares.
4. Closing. Subject to the satisfaction of the conditions to
effectiveness set forth in Section 6 below, the closing of the purchase and sale
of the Options and the subsequent purchase and sale of the Option Shares (the
"Closing") pursuant to this Agreement shall occur on the date hereof. In the
event the Closing does not occur on the date hereof, Brookdale's right to
purchase the Options, and DWC's obligation to sell the Options, shall
automatically terminate, and Brookdale's right to purchase the Option Shares,
and PGI's and PG3LP's obligations to sell the Option Shares, shall automatically
terminate.
5. Representations and Warranties.
(a) DWC represents and warrants to and agrees with Brookdale that:
(i) DWC has valid title to the Options, free and clear of any
pledge, lien, security interest, encumbrance, claim or equitable
interest whatsoever other than pursuant to this Agreement; and upon
payment of the respective purchase prices for the Options as herein
contemplated, Brookdale will obtain valid title to the Options, free
and clear of any pledge, lien, security interest, encumbrance, claim
or equitable interest;
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(ii) no third-party consents, approvals, authorizations or
orders are required for the execution and delivery by DWC of this
Agreement and the sale of the Options to Brookdale hereunder;
(iii) DWC has full legal capacity to execute and deliver this
Agreement and perform his obligations hereunder; and
(iv) this Agreement constitutes the valid and legally binding
obligation of DWC, enforceable against DWC in accordance with its
terms;
(b) PGI and PG3LP represent and warrant to and agree with Brookdale
that:
(i) PGI and PG3LP have valid title to the Option Shares, free
and clear of any pledge, lien, security interest, encumbrance, claim
or equitable interest whatsoever other than pursuant to this
Agreement; and upon payment of the respective purchase prices for the
Option Shares as herein contemplated, Brookdale will obtain valid
title to the Option Shares, free and clear of any pledge, lien,
security interest, encumbrance, claim or equitable interest;
(ii) no third-party consents, approvals, authorizations or
orders are required for the execution and delivery by PGI and PG3LP of
this Agreement and the sale of the Option Shares to Brookdale
hereunder;
(iii) PGI and PG3LP have full legal capacity to execute and
deliver this Agreement and perform their obligations hereunder; and
(iv) this Agreement constitutes the valid and legally binding
obligation of PGI and PG3LP, enforceable against PGI and PG3LP in
accordance with its terms; and
(c) Brookdale represents and warrants to and agrees with DWC, PGI and
PG3LP that:
(i) Brookdale is validly existing and in good standing under
the laws of the State of Delaware; and
(ii) Brookdale has the corporate power and authority to execute
and deliver this Agreement and perform its obligations hereunder.
6. Conditions to Effectiveness. This Agreement shall become effective
contemporaneously with, and subject to:
(a) the execution and delivery of this Agreement by all of the
parties hereto;
(b) the payment by Brookdale of the respective purchase prices for
the Options to DWC and PG3LP as provided in Section 1 above;
(c) the payment by Brookdale of the respective purchase prices for
the Option Shares to PGI and PG3LP as provided in Section 2 above; and
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(d) the delivery by the Escrow Agent of the stock certificates
representing the Option Shares, together with the accompanying stock power
for the stock certificate representing the First Option Shares, to
Brookdale as provided in Section 3 above.
7. Release. Upon satisfaction of the conditions to effectiveness set
forth in Section 6 above, each of Brookdale, DWC, PGI and PG3LP does hereby
forever release, discharge and acquit the other parties hereto and the Escrow
Agent from any and all claims, demands, obligations and liabilities, whensoever
arising out of, connected with or relating to the Option Agreements, the
Options, the purchase and sale of the Options, the Option Shares and the
purchase and sale of the Option Shares (except for claims, demands, obligations
and liabilities arising from any breach of a representation or warranty
contained herein).
8. Severability. Any invalidity, illegality or unenforceability of any
provision of this Agreement shall not render invalid, illegal or unenforceable
the remaining provisions hereof.
9. Headings. The headings contained herein are for convenience of
reference only and shall not be deemed to be part of this Agreement.
10. Counterparts. This Agreement may be executed in counterparts, all of
which together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart. Each party shall become bound by this Agreement immediately
upon affixing its signature hereto.
11. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Illinois without regard to the principles of
conflicts of laws.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BROOKDALE LIVING COMMUNITIES, INC.
By: /s/ Brookdale Living Communities, Inc.
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Name: Brookdale Living Communities, Inc.
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Title: Authorized Signatory
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/s/ Xxxxxx X. Xxxxxxxx, Xx.
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Xxxxxx X. Xxxxxxxx, Xx.
THE PRIME GROUP, INC.
By: /s/ The Prime Group, Inc.
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Name: The Prime Group, Inc.
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Title: Authorized Signatory
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PRIME GROUP III, L.P.
By: PGLP, Inc.,
Managing General Partner
By: /s/ PGLP, Inc.
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Name: PGLP, Inc.
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Title: Authorized Signatory
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ACKNOWLEDGED BY:
WINSTON & XXXXXX
By: /s/ Winston & Xxxxxx
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Name: Winston & Xxxxxx
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Title: Authorized Signatory
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