EXHIBIT 2.1.2
Conformed Copy
THIS AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT dated as of August
2, 2004 (this "Amendment "), is made among FORTRESS BROOKDALE ACQUISITION LLC, a
Delaware limited liability company ("FBA"), PROVIDENT SENIOR LIVING TRUST, a
Maryland real estate investment trust ("Acquiror"), and BLC SENIOR HOLDINGS,
INC., a Delaware corporation ("Indemnitor").
WITNESSETH
WHEREAS FBA, Acquiror and Indemnitor are parties to that certain
Stock Purchase Agreement dated June 18, 2004 (the "Agreement"); and
WHEREAS the parties hereto desire to amend the Agreement on the
terms set forth herein.
NOW, THEREFORE, the parties to this Agreement agree as follows:
Section 1.01. Amendments. The Agreement is hereby amended as
follows:
(a) Section 2.03 is hereby amended by adding the following text to
the end of such section:
"To the extent Seller is not a "United States Person" within the meaning
of Section 1445 of the Code, Acquiror shall be permitted to withhold from
Seller any amounts required by Law and such amounts shall be treated as
having been paid to Seller for all purposes of this Agreement."
(b) Section 2.05 is hereby amended by (i) inserting "; Purchase
Price Deposit" at the end of the heading of such section, (ii) inserting the
text "(a)" immediately prior to the first sentence of such section, and then
replacing the reference to "Seller" in such subsection (a) with "FBA", and (iii)
adding Section 2.05(b) which shall provide as follows:
"(b) Upon the consummation of the Private Placement, Acquiror shall
advance or cause to be advanced to FBA cash in an amount equal to
$67,500,000 as a good faith, refundable deposit to be applied at the
Closing against the Purchase Price (the "Purchase Price Deposit"). If,
prior to the Closing, Seller or its Affiliates sell or otherwise dispose
of any Acquiror Securities acquired by Seller on the date hereof (such
shares so sold or disposed, "Disposed Securities"), then cash in the
amount of the gross proceeds of such sale or disposition (but not
exceeding the initial purchase price paid by FBA for such Disposed
Securities) shall be remitted to Acquiror promptly after such sale or
disposition and the Purchase Price Deposit shall be reduced by a
corresponding amount. If the transactions contemplated by this Agreement
are terminated for any reason prior to the Closing, Seller shall
concurrently with such termination refund to Acquiror the balance of the
Purchase Price Deposit; provided, however, that Seller's obligation to
refund the balance of the Purchase Price Deposit will be satisfied in full
upon delivery to Acquiror of (x) any Acquiror Securities acquired by
Seller on the date hereof which are then held
by Seller and its Affiliates and (y) cash equal to (A) the sum of (i) any
gross proceeds not remitted to Acquiror as provided above in respect of
Disposed Securities and (ii) the amount, if any, by which the aggregate
initial purchase price paid by FBA for Disposed Securities exceeds the
aggregate gross proceeds received by Seller and its Affiliates for
Disposed Securities, less (B) dividends or other distributions, if any,
declared on the Acquiror Securities delivered to Acquiror in accordance
with clause (x) above, and Acquiror shall have no other recourse against
Seller with respect to its obligation to refund the Purchase Price
Deposit."
(c) Section 2.06(a) is hereby deleted in its entirety and the
following is hereby added in lieu thereof:
"(a) Acquiror shall pay to Seller (i) a net amount (the "Closing
Amount") equal to the Final Purchase Price, less the then current balance
of the Purchase Price Deposit, less the Pay-off Amount, and (ii) the
Amendment Costs (as such term is defined herein), by wire transfer of
immediately available funds to an account designated in writing by Seller
at least three (3) Business Days prior to the Closing Date;"
(d) The reference to "Seller" in Section 2.06(c) is hereby deleted.
(e) The reference to "Seller" in clause (i) of Section 2.06(e) is
hereby deleted, and "Indemnitor" is hereby inserted in lieu thereof.
(f) Section 2.06(e)(ii) is hereby deleted in its entirety and the
following is hereby added in lieu thereof:
"(ii) an affidavit, in accordance with the Foreign Investment in
Real Property Tax Act, confirming whether Seller is a "United States
Person" within the meaning of Section 1445 of the Code;"
(g) The text "Seller and" in clause (i) of Section 2.06(f) is hereby
deleted.
(h) Each of the references to "Seller" in the introductory paragraph
of Article III and Sections 3.01(a), 3.13(a), 3.19(h), 3.23 and 3.24 is hereby
deleted, and "FBA" is hereby inserted in lieu thereof in each case.
(i) Section 3.13(b) is hereby amended by adding the text "that will
not have been assumed by Indemnitor" immediately prior to the text "with respect
to" in clause (iii) of such section.
(j) The reference to "limited liability company" in the sixth
sentence of Section 3.03(a) is hereby deleted.
(k) Section 3.26 is hereby amended by adding the following proviso
to the end of the first sentence of such section:
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"; provided, however, that the information set forth in Schedule
3.26 with respect to the ownership structure of FBA and the Company may
change prior to the Closing Date as described in Section 5.16 hereof."
(l) Section 4.06 is hereby deleted in its entirety and the following
is hereby added in lieu thereof:
"Section 4.06. Financial Ability. Acquiror intends to finance the
Final Purchase Price, in part, by issuing stock in Acquiror pursuant to a
private placement transaction (the "Private Placement"). Subject to
receipt of net proceeds of at least $400,000,000 upon the consummation of
the Private Placement, Acquiror will have, at the Closing, the financial
ability to consummate the transactions contemplated by this Agreement."
(m) Each of the references to "Seller" in Section 4.07, other than
the last such reference therein, is hereby deleted, and the text "FBA, the
Selling Stockholders" is hereby inserted in lieu thereof in each case. The text
"each of Seller or Indemnitor" at the end of the penultimate sentence of Section
4.07 is hereby deleted, and the text "any of them" is hereby added in lieu
thereof.
(n) The reference to "Seller" in Section 4.09 is hereby deleted, and
"FBA" is hereby added in lieu thereof.
(o) The first reference to "Seller" in Section 5.13 is hereby
deleted, and "FBA" is hereby added in lieu thereof. Each of the other references
to "Seller" in Section 5.13 is hereby deleted, and "Indemnitor" is hereby added
in lieu thereof in each case.
(p) The Agreement is hereby amended by adding Section 5.16, which
section shall provide as follows:
"Section 5.16. Seller Liquidation. (a) The parties hereto understand
and agree that (i) FBA may be dissolved and liquidated prior to the
Closing Date (a "Seller Liquidation"), or (ii) Fortress Registered
Investment Trust, a Delaware business trust ("FRIT") and Fortress
Brookdale Investment Fund LLC, a Delaware limited liability company
("FBIF") may redeem their interests in Seller (a "Seller Redemption").
Upon a Seller Liquidation, the Shares will be distributed to the Selling
Stockholders as the sole members of FBA and concurrently with such Seller
Liquidation, each of the Selling Stockholders shall jointly agree,
pursuant to a written instrument in form and substance satisfactory to
Acquiror, to be bound by the provisions of this Agreement, other than the
provisions of Article III hereof, as "Seller". Upon a Seller Redemption, a
number of Shares shall be distributed to FRIT and FBIF or Affiliates
thereof equal to their percentage membership interests in FBA immediately
prior to such Seller Redemption, and concurrently therewith each of the
Selling Stockholders (other than FBA) shall jointly agree, pursuant to a
written instrument in form and substance satisfactory to Acquiror, to be
bound by the provisions of this Agreement, other than the provisions of
Article III hereof, as "Seller".
(b) In the event of a Seller Liquidation or a Seller Redemption, the
parties hereto agree to amend prior to Closing the form of the Agreement
Regarding Leases,
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including Sections 6 and 33(d) thereof (which amendment shall state that
upon a Seller Liquidation or a Seller Redemption, the Selling Stockholders
or a designee thereof may post the security deposit required thereby), the
form of Property Lease, including Section 15(a) thereof, and any other
Transaction Agreements set forth in Exhibits B through E hereto, in each
case as the parties hereto may reasonably agree is necessary in order to
give effect to such Seller Liquidation or a Seller Redemption, as
applicable.
(c) In the event of a Seller Redemption or a Seller Liquidation, the
parties hereto agree to execute an appropriate amendment to the Tax
Matters Agreement. Such amendment, shall provide, without limitation, each
of the Selling Stockholders, other than FBA, the right to assign their
obligations under the Tax Matters Agreement to a limited liability company
wholly owned by such Selling Stockholder, which limited liability company
shall be liable to the same extent that FBA is liable under the Tax
Matters Agreement in the same proportion as the interest held by such
Selling Stockholder in FBA immediately prior to the Seller Redemption or
the Seller Liquidation. In the event of a Seller Redemption, FBA shall be
liable under the Tax Matter Agreement in the proportion of 100% less the
interests redeemed in the Seller Redemption.
(d) The parties hereby agree that the intent of this Section 5.16 is
to enable Seller to elect to redeem, promptly following the Closing, all
of the Units acquired pursuant to the terms of the Unit Subscription
Agreement for common shares of beneficial interest of Acquiror or, at
Acquiror's election, for cash, in accordance with the terms of the Units
so that rents received from Indemnitor and its Subsidiaries pursuant to
the terms of the Agreement Regarding Leases and the Property Leases (as
such term is defined in the Agreement Regarding Leases) may be treated as
"rents from real property" within the meaning of Code Section 856(d).
Accordingly, Seller and Acquiror hereby agrees that the intent of this
Section 5.16 shall be effectuated through either (1) a Seller Liquidation,
(2) a Seller Redemption or (3) a sale of all or a portion of the common
shares of beneficial interest of Acquiror acquired by FBA in the Private
Placement, in each case prior to or concurrently with the Closing. Each
party further agrees that it shall use its reasonable best efforts and
cooperate with each other party to effectuate the intent of this Section
5.16, by completing no later than the Closing one of the alternative
transactions described in the preceding sentence in a manner that would
enable all of the Units to be redeemed for common shares of beneficial
interest of Acquiror or, at Acquiror's election, for cash (which
cooperation shall include, in the case of a Seller Liquidation, the waiver
by Acquiror, as the sole member of the General Partner of PSLT OP, L.P.,
of Health Partners' obligation to make the representation that it is a
"United States person" as required by Section 3.3B(iii) of the Amended and
Restated Agreement of Limited Partnership of PSLT OP, L.P.)."
(q) The Agreement and the form of Agreement Regarding Leases are
each hereby amended by adding Section 5.17 and, with such changes as necessary
to conform defined terms, Section10(d), respectively, which sections shall
provide as follows:
"Indemnitor hereby represents, warrants and covenants that, so long as the
Selling Stockholders own collectively, whether directly or indirectly
pursuant to Section 318 of
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the Code, as modified by Code Section 856(d)(5), ten percent (10%) or more
(by vote or value) of the shares of beneficial interest of Acquiror, each
of the direct and indirect subsidiary entities of Indemnitor which leases,
directly or indirectly, any property owned, directly or indirectly, by the
Company, has been and will continue to be treated as a disregarded entity
of Indemnitor for federal income tax purposes. Indemnitor further agrees
that this covenant shall survive any liquidation or dissolution of FBA."
(r) Section 6.01(f) is hereby deleted in its entirety and the
following is hereby added in lieu thereof:
"(f) Proceeds from Private Placement. The Private Placement has been
consummated and has resulted in net proceeds to Acquiror of at least
$400,000,000."
(s) Section 6.02(a) is hereby deleted in its entirety and the
following is hereby added in lieu thereof:
"(a) Representations and Warranties; Covenants. (i) The
representations and warranties of Indemnitor contained in this Agreement
are true and correct (without giving effect to any limitations as to
materiality) as of the Closing as if made on the Closing Date (other than
representations and warranties made as of another date, which
representations and warranties were true and correct as of such date),
except to the extent that any breaches of such representations and
warranties, individually or in the aggregate, have not had, or would not
reasonably be expected to have, a Material Adverse Effect, and either (x)
if a Seller Liquidation has occurred prior to the Closing, the
representations and warranties of FBA contained in this Agreement are true
and correct (without giving effect to any limitations as to materiality)
as of the date of the Seller Liquidation as if made on such date (other
than representations and warranties made as of another date, which
representations and warranties were true and correct as of such date),
except to the extent that any breaches of such representations and
warranties, individually or in the aggregate, have not had, or would not
reasonably be expected to have, a Material Adverse Effect or (y) if a
Seller Liquidation has not occurred or if a Seller Redemption has
occurred, in each case, prior to the Closing, the representations and
warranties of FBA contained in this Agreement are true and correct
(without giving effect to any limitations as to materiality) as of the
Closing as if made on the Closing Date (other than representations and
warranties made as of another date, which representations and warranties
were true and correct as of such date), except to the extent that any
breaches of such representations and warranties, individually or in the
aggregate, have not had, or would not reasonably be expected to have, a
Material Adverse Effect; (ii) the covenants contained in this Agreement to
be complied with by FBA, the Selling Stockholders and Indemnitor on or
before the Closing have been complied with in all material respects; and
(iii) Acquiror has received a certificate dated the Closing Date of Seller
and Indemnitor to such effect signed by a duly authorized senior executive
officer of each of Seller and Indemnitor."
(t) The text "Seller or" in clause (i) of Section 2.06(g) is hereby
deleted.
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(u) Section 6.02(h) is hereby deleted in its entirety and the
following is hereby added in lieu thereof:
"(h) Proceeds from Private Placement. The Private Placement has been
consummated and has resulted in net proceeds to Acquiror of at least
$400,000,000."
(v) Section 7.01(f) is hereby amended by adding the following text
immediately prior to the period at the end of such section:
", or if Acquiror or PSLT OP, L.P breaches in any material respect
their respective covenants in Section 6 of the Unit Subscription
Agreement"
(w) The reference to "Seller and its Affiliates" in clause (i) of
Section 7.05 is hereby deleted, and the text "FBA, the Selling Stockholders and
their respective Affiliates" is hereby added in lieu thereof.
(x) The reference to "Seller" in clause (ii) of Section 8.01(b) is
hereby deleted, and "FBA" is hereby added in lieu thereof.
(y) The reference to "Seller" in Section 8.02(a) is hereby deleted,
and the text "FBA, the Selling Stockholders" is hereby added in lieu thereof.
(z) The reference to "Seller, Capital Z Financial Services Fund II,
L.P." in clause (i) of Section 8.08 is hereby deleted, and "FBA, the Selling
Stockholders" is hereby added in lieu thereof. The text "Seller from its
agreements" in clause (ii) of the proviso to Section 8.08 is hereby deleted, and
the text "FBA or the Selling Stockholders from their respective agreements" is
hereby added in lieu thereof.
(aa) Each of the references to "Seller" in Section 10.02 is hereby
deleted, and "Indemnitor" is hereby added in lieu thereof in each case. In
addition, the following proviso is hereby added to the end of Section 10.02:
"Notwithstanding anything in this Agreement to the contrary, all costs and
expenses incurred by FBA (including those reasonably incurred by its
members), the Selling Stockholders, the Company and any Company Subsidiary
relating to this Amendment and the consummation of the transactions
contemplated thereby (the "Amendment Costs") shall be paid by Acquiror in
immediately available funds to the Seller at Closing. No Amendment Costs
are deemed to be included in the Purchase Price or the Final Purchase
Price."
(bb) Section 10.07 is hereby amended by adding immediately after the
reference to "the Closing" and immediately prior to the semicolon in the first
sentence of such section, the following text:
"and FBA may assign any or all of its rights hereunder to the Selling
Stockholders upon a Seller Liquidation or Seller Redemption."
Section 1.02. Exhibit A.
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(a) Exhibit A to the Agreement is hereby amended by deleting the
definition of Seller, and adding the following in lieu thereof:
"Seller" means (i) prior to the Seller Liquidation, FBA, and (ii)
upon and after a Seller Liquidation or Seller Redemption, collectively,
the Selling Stockholders."
(b) Exhibit A to the Agreement is hereby amended to add the
following definitions:
"Acquiror Securities" means, collectively, 2,675,623 common shares
of beneficial interest of Acquiror, the Units and any common shares of
beneficial interest of Acquiror issued in redemption of the Units.
"Amendment Costs" has the meaning specified in Section 10.02.
"Disposed Securities" has the meaning specified in Section 2.05(b).
"FBA" means Fortress Brookdale Acquisition LLC, a Delaware limited
liability company.
"FBIF" has the meaning specified in Section 5.16.
"FRIT" has the meaning specified in Section 5.16.
"Health Partners" means Health Partners, a Bermuda exempt
partnership.
"Purchase Price Deposit" has the meaning specified in Section
2.05(b).
"Seller Liquidation" has the meaning specified in Section 5.16.
"Seller Redemption" has the meaning specified in Section 5.16.
"Selling Stockholders" collectively means: (i) in the event of a
Seller Liquidation, FRIT, FBIF, Health Partners and Xxxx X. Xxxxxxx or the
respective Affiliates thereof; provided, however, that if any such Person
has transferred any Shares received upon such liquidation to an Affiliate
prior to Closing, such Affiliate shall be deemed to be a "Selling
Stockholder" in lieu of such transferee; and (ii) in the event of a Seller
Redemption, (A) FBA and (B) FRIT, FBIF or the respective Affiliates
thereof; provided, however, that if either of FRIT or FBIF has transferred
any Shares received upon such liquidation to an Affiliate prior to
Closing, such Affiliate shall be deemed to be a "Selling Stockholder" in
lieu of such transferee. Each Selling Stockholder shall execute the
joinder to this Agreement contemplated by Section 5.16 hereof upon
receiving any Acquiror Securities.
"Units" means 1,824,377 units of limited partnership of PSLT OP,
L.P., a Delaware limited partnership.
"Unit Subscription Agreement" means that certain Unit Subscription
Agreement, dated as of August 2, 2004, executed by FBA, PSLT OP, L.P. and
Acquiror.
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Section 1.03. Company Disclosure Schedule. Schedules 3.04(a) and
3.04(b) are hereby amended by adding the following:
"Consent of Ventas Inc."
Section 1.04. No Other Amendment or Waiver. Except as expressly set
forth herein, all of the terms and provisions of the Agreement shall remain in
full force and effect and the parties hereto make no other amendment, alteration
or modification of the Agreement nor do they, nor does any of them, by executing
this Amendment, waive any provision of the Agreement or any right that they or
it may have thereunder.
Section 1.05. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW PRINCIPLES OF SUCH STATE THAT
MIGHT REFER THE GOVERNANCE, CONSTRUCTION OR INTERPRETATION OF SUCH AGREEMENTS TO
THE LAWS OF ANOTHER JURISDICTION.
Section 1.06. Counterparts. This Amendment may be executed in one or
more counterparts, and by the different parties to each such agreement in
separate 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. Delivery of an executed counterpart of a signature page to this
Amendment by facsimile shall be as effective as delivery of a manually executed
counterpart of this Amendment.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed on the date first written above by their respective duly authorized
officers.
FORTRESS BROOKDALE ACQUISITION LLC,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
BLC SENIOR HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman, Chief Executive Officer
PROVIDENT SENIOR LIVING TRUST,
a Maryland real estate investment trust
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
---------------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Chief Executive Officer
