Exhibit 10.11
Conformed Copy
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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]
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
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Name: Xxxxxx X. Xxxxxxx
Title: Secretary
BLC SENIOR HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
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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.
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Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Chief Executive Officer
