EXHIBIT 1.1
STOCK PURCHASE AGREEMENT
by and among
Fortress Registered Investment Trust
and
Brookdale Living Communities, Inc.
and
Xxxxxxx X. Xxxxxxx
The Prime Group, Inc.
Prime Group II, L.P.
Prime Group VI, L.P.
and
PGLP, Inc.
dated as of
April 20, 2000
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made and
entered into as of this 20th day of April, 2000, by and among Fortress
Registered Investment Trust (the "Purchaser"), Brookdale Living
Communities, Inc. (the "Company"), Xx. Xxxxxxx X. Xxxxxxx ("Xxxxxxx"),
PGLP, Inc. ("PGLP"), The Prime Group, Inc. and the other parties signatory
hereto (The Prime Group, Inc., Prime Group II, L.P. and Prime Group VI,
L.P., individually a "Stockholder," and collectively, "Stockholders";
together with Xxxxxxx and PGLP, collectively, the "Seller").
W I T N E S S E T H:
WHEREAS, the Stockholders are the owners, beneficially and of
record, of 3,929,350 shares (the "Shares"), in aggregate, constituting (i)
3,916,850 shares, which are not subject to any outstanding rights or
agreements granted or entered into by or binding upon the Seller (the
"Prime Shares") and (ii) 12,500 shares, which are subject to an option to
purchase in favor of Blackacre Bridge Capital, LLC on the terms summarized
in Exhibit A ("Blackacre Shares"; such option the "Blackacre Option"), of
the common stock, par value $0.01 per share (the "Common Stock"), of the
Company, as more specifically set forth in Exhibit A attached hereto; and
WHEREAS, the Seller desires to sell, assign and convey to the
Purchaser, the Shares, and the Purchaser desires to purchase, acquire and
accept such Shares from the Seller on and subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the respective
representations and warranties hereinafter set forth and of the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiently of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree
as follows:
1. Sale and Purchase. On and subject to the terms and
conditions contained herein, the Seller hereby agrees to sell, transfer,
assign, convey and deliver to the Purchaser, and the Purchaser hereby
agrees to purchase, acquire and accept from the Seller, (i) all of the
Seller's right, title and interest in and to the Shares, free and clear of
any liens, pledges, security interests, claims or encumbrance of any kind,
and (ii) all rights of Seller under the Registration Rights Agreement dated
as of May 7, 1997, as amended (the "Registration Rights Agreement") by and
among the Company and the Seller, Xxxxxxx shall exercise options for 50,000
shares of the Common Stock ("Xxxxxxx Option Shares"), which are vested and
exercisable as of the date hereof, and sell all such Xxxxxxx Option Shares
to the Purchaser at the Closing (as defined below) for Fifteen Dollars
($15) per share. If Xxxxxxx is permitted to exercise options for 25,000
shares of the Common Stock, which will vest on May 7, 2000 (the "Non-Vested
Options"), Xxxxxxx shall exercise such Non-Vested Options and sell all such
shares to the Purchaser for Fifteen Dollars ($15) per share.
2. Purchase Price. The purchase price for the Prime Shares (the
"Purchase Price") shall be Fifteen Dollars ($15) per share (the "Purchase
Price"). The purchase price of the Blackacre Shares shall be Twelve
Dollars ($12) per share, provided, however, that, if the Blackacre Option
expires without having been exercised on or prior to May 7, 2000 (the
"Expiration Date"), the Purchaser shall pay to the Seller $37,500 (the
"Option Supplement") as promptly as possible, but in any case no later than
the 10th business day after the Expiration Date. Within two business days
from the date hereof, the Purchaser shall deliver to the Seller via wire
transfer of immediately available funds to an account (or accounts)
designated by the Seller the amount of $1,000,000 as partial payment of the
Purchase Price for the Prime Shares (the "Deposit"); provided, however,
that the Deposit shall be immediately returned or otherwise refunded to an
account (or accounts) designated by the Purchaser by wire-transfer of
immediately available funds, if this Agreement shall be terminated for any
reason other than the Purchaser's breach of material agreements contained
herein. On the date of the Closing, the Purchaser shall deliver to the
Seller via wire transfer of immediately available funds to an account (or
accounts) designated by the Seller the amount of (i) $57,752,750 (full
payment of the Purchase Price for the Prime Shares minus the Deposit), (ii)
if the Blackacre Option shall not have been exercised, $150,000 as full
payment of the purchase price for the Blackacre Shares, subject to the
subsequent payment of the Option Supplement for such Blackacre Shares;
(iii) $750,000 for the Xxxxxxx Option Shares; plus (iv) $375,000 for the
shares issued pursuant to the Non-Vested Options, as the case may be.
3. Closing. On and subject to the terms and conditions set
forth herein, the sale and transfer of the Shares by the Seller to the
Purchaser (the "Closing") shall take place at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx at
10:00 a.m., on the later of (i) the eleventh business day from the date
hereof or (ii) the first business day following the satisfaction and/or
waiver of all conditions to effect the Closing set forth in Section 6
below, but in no event later than the later of (x) May 18, 2000 or (y) the
business day after the date of expiration or termination of the applicable
waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended (the "HSR Act") (the "Closing Date"), unless another date
or place is agreed in writing by each of the parties hereto. At the
Closing, each Stockholder shall deliver to the Purchaser (i) stock
certificates representing the number of Shares set opposite such
Stockholder's name on Exhibit A attached hereto, each such certificate to
be duly and validly endorsed in favor of the Purchaser or accompanied by a
separate stock power duly and validly executed by such Stockholder and
otherwise sufficient to vest in the Purchaser good and marketable title to
such Shares; (ii) an assignment of all right, title and interest of Seller
under the Registration Rights Agreement; and (iii) all other previously
undelivered documents required to be delivered by the Seller to the
Purchaser at or prior to the Closing in connection with this Agreement.
4. Representations and Warranties of Seller and Company. The
Seller hereby, jointly and severally, and the Company, severally, as to
Sections 4.1, 4.2 and 4.3 and only with respect to itself, represents and
warrants to, and agrees with, the other parties hereto as follows:
4.1 Organization and Good Standing. Each of PGLP and the
Stockholders and the Company is an entity duly organized, validly existing
and in good standing under the applicable laws of the State of Delaware, in
the case of the Company, and the State of Illinois, in the case of the
others.
4.2 Authorization; Validity of Agreement. This Agreement
has been duly authorized, executed and delivered by the Company and each
Seller, and constitutes a legal, valid and binding obligation against the
Company and each Seller in accordance with its terms.
4.3 No Conflict. None of the execution or delivery of this
Agreement, or the consummation of the transactions contemplated hereby,
will result in a breach, violation or default of, or give rise to an event
which with the giving of notice or after the passage of time, or both,
would result in a breach, violation or default of, or will require any
consent, approval or notice under, any of the terms or provisions of any
constitutive documents of the Company, PGLP, or any Stockholder, or of any
note, bond, indenture, mortgage, deed of trust, loan agreement or other
material contract, agreement, instrument, restriction or arrangement to
which the Company or any Seller is a party or by which the Company or such
Seller or any of its assets may be bound or affected, or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any Seller, except for any necessary filing under the
HSR Act and the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx").
4.4 Ownership of Shares. The Shares are owned by the
Seller free and clear of all liens, pledges, security interests, claims or
encumbrances of any kind, except as specified in Exhibit A attached hereto.
Each Stockholder owns such number of shares of the Common Stock as
specified in Exhibit A attached hereto. The Shares have been duly
authorized and validly issued and are fully paid and non-assessable. There
are no outstanding rights or agreements granted or entered into by or
binding upon the Seller with respect to any of the Shares except the
Stockholders Agreement (as defined below). Delivery of the Shares at the
Closing together with necessary stock powers will give the Purchaser good
title to the Shares, free of any liens, pledges, security interests, claims
or encumbrances of any kind whatsoever.
5. Representations and Warranties of Purchaser. The Purchaser
hereby represents and warrants to, and agrees with, the Seller as follows:
5.1 Organization and Good Standing. The Purchaser is a
business trust duly formed, validly existing and in good standing under the
laws of the State of Delaware.
5.2 Authorization; Validity of Agreement. This Agreement
has been duly authorized, executed and delivered by the Purchaser, and
constitutes a legal, valid and binding obligation against the Purchaser in
accordance with its terms.
5.3 No Conflict. None of the execution and delivery of
this Agreement, and the consummation of the transactions contemplated
hereby, will result in a breach, violation or default of, or give rise to
an event which with the giving of notice or after the passage of time, or
both, would result in a breach, violation or default of, or will require
any consent, approval or notice under, any of the terms or provisions of
the Purchaser's Declaration of Trust or By-laws, or of any note, bond,
indenture, mortgage, deed of trust, loan agreement or other material
contract, agreement, instrument, restriction or arrangement to which the
Purchaser is a party or by which the Purchaser or any of its assets may be
bound or affected, or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Purchaser, except
for any necessary filing under the HSR Act and the Exchange Act.
5.4 Investment Representation. The Purchaser is acquiring
the Shares for investment for its own account, not as a nominee or agent,
and not with a view to, or for resale in connection with, any distribution
thereof in violation of the Securities Act of 1933, as amended (the
"Securities Act"). The Purchaser understands and acknowledges that the
sale by the Seller to the Purchaser of the Prime Shares, the Blackacre
Shares, the Xxxxxxx Option Shares, and the shares issued pursuant to Non-
Vested Options has not been, and will not be, registered under the
Securities Act or any other applicable securities law and, unless so
registered, may not be offered, sold or otherwise transferred except in
compliance with the registration requirements of the Securities Act or any
other applicable securities law, pursuant to or exemption therefrom or in a
transaction not subject thereto.
6. Conditions to Effect the Closing. The respective obligation
of each party to effect the Closing shall be subject to the satisfaction at
or prior to the Closing Date of each of the following conditions (except
that Section 6.6 shall be a condition to closing by the Purchaser only):
6.1 Statutes; Court Orders. No statute, rule or regulation
shall have been enacted or promulgated by any governmental authority which
prohibits the consummation of the Closing; and there shall be no order or
injunction of a court of competent jurisdiction in effect precluding
consummation of the Closing;
6.2 HSR Approval. The applicable waiting period under the
HSR Act shall have expired or been terminated;
6.3 Representations and Warranties. The representations
and warranties of the other party or parties set forth in Sections 4 or 5,
respectively, shall be true in all material respects on the date of this
Agreement and as of the Closing.
6.4 Approval of the Board. The Board of the Directors of
the Company (or the appropriate committee thereof) shall have approved (i)
the Purchaser (or any person controlling, controlled by or under common
control with Purchaser, including any person of which the Purchaser owns at
least 50% of the ownership interest) becoming an interested stockholder for
purposes of Section 203 of the General Corporation Law of the State of
Delaware, and (ii) the Company's entrance into a standstill agreement (the
"Standstill Agreement"), substantially in the form attached hereto as
Exhibit B.
6.5 Stockholders Agreement; Registration Rights Agreement.
The Stockholders Agreement by and among the Company, the Stockholders and
Health Partners, dated May 14, 1999 (the "Stockholders Agreement"), shall
have been amended so that the Purchaser shall be deemed to be "Prime
Holders" for purposes of the Stockholders Agreement, and otherwise the
Stockholders Agreement shall be in effect as if "Prime Holders" continued
to be a party to the Agreement; and the Purchaser agrees to be bound by the
terms of the Stockholders Agreement pursuant to Section 4.1 thereof.
Notwithstanding the foregoing, it is understood by the parties that nothing
in the Stockholders Agreement shall affect the obligations of the Purchaser
pursuant to the Standstill Agreement. The Company shall have consented to
the assignment to the Purchaser of all right, title and interest the Seller
has under the Registration Rights Agreement.
6.6 Board of Directors. Xxxxxxx shall have resigned, and
two designees of the Purchaser shall have been elected, as directors of the
Company to fill the vacancy resulting from Xxxxxxx'x resignation and to
fill the current vacancy in the Board.
7. Acknowledgments and Agreements of the Parties.
(1) The Seller hereby agrees that, except as set forth
herein, it will not convert, retire, sell, hypothecate or otherwise
transfer any rights relating to the Shares or the Blackacre Shares,
including, but not limited to, stock options, without the prior written
consent of the Purchaser.
(2) The parties hereby agree to take promptly all actions
necessary to make the filings required of them or any of their affiliates
under the HSR Act. Concurrently with the filing of notifications under the
HSR Act or as soon thereafter as practicable, the Seller, the Purchaser and
the Company shall each request early termination of the HSR Act waiting
period.
(3) The Seller shall use its best efforts to obtain the
release of any liens on, or any restriction on the sale of, the Prime
Shares at or prior to the Closing, including using the proceeds of the Sale
to repay any indebtedness secured by the applicable Prime Shares subject to
such lien or restriction.
8. Survival; Indemnification.
8.1 Survival; Remedy for Breach. The covenants,
agreements, representations, warranties and indemnities of the parties
hereto contained herein or in any certificate or other writing attached
hereto, or required by the terms hereof to be delivered by the Purchaser or
the Seller, shall survive the Closing.
8.2 Indemnification by Seller.
(1) Each of Xxxxxxx, PGLP and the Stockholders hereby
jointly and severally indemnify the Purchaser, its shareholders, officers,
directors and affiliates (collectively, the "Indemnified Parties") against
and agree to hold each of them harmless from any and all damage, loss,
liability, expense (including, without limitation, reasonable out-of-pocket
expenses of investigation and attorneys' fees and expenses in connection
with any action, suit or proceeding brought against or involving any
Indemnified Parties) and costs (collectively, "Purchaser Indemnified
Amounts") incurred or suffered by any Indemnified Parties arising out of
any misrepresentation or breach of warranty, covenant or agreement made or
to be performed by the Seller pursuant to this Agreement.
(2) The agreements and indemnities of the Seller contained
herein shall be cumulative, except that an Indemnified Party shall not
recover more than once for the same Purchaser Indemnified Amount.
(3) The Indemnified Parties agree to give notice to the
Seller promptly after learning of the assertion of any claim, or the
commencement of any suit, action or proceeding, in respect of which
indemnity may be sought hereunder; provided, however, that the failure of
any Indemnified Party to give such notice shall not constitute a waiver of
its rights hereunder in respect of the claim, suit, action or proceeding
with respect to which such notice was required to have been given
hereunder.
(4) The Seller shall not be liable under this Section 8.2
for any settlement effected without its consent of any claim, litigation or
proceeding in respect of which indemnity may be sought hereunder. No
investigation by the Purchaser at or prior to the Closing shall relieve the
Seller of any liability hereunder.
(5) The amount required to be paid to an Indemnified Party
by the Seller for any Purchaser Indemnified Amounts hereunder shall be paid
not later than thirty (30) days after receipt by the Seller of written
notice from an Indemnified Party stating that such Purchaser Indemnified
Amounts have been incurred and the amount thereof and of the related
indemnity payment.
8.3 Indemnification by the Purchaser.
(1) The Purchaser hereby indemnifies the Seller, its
shareholders, officers, directors and affiliates (collectively, the "Seller
Indemnified Parties") against and agrees to hold each of them harmless from
any and all damages, loss, liability, expense (including, without
limitation, reasonable out-of-pocket expenses of investigation and
reasonable attorneys' fees and expenses in connection with any action, suit
or proceeding brought against or involving the Seller) and costs
(collectively, "Seller Indemnified Amounts") incurred or suffered by any of
the Seller Indemnified Parties arising out of any misrepresentation or
breach of warranty, covenant or agreement made or to be performed by the
Purchaser pursuant to this Agreement.
(2) The agreements and indemnities of the Purchaser
contained herein shall be cumulative, except that any of the Seller
Indemnified Parties shall not recover more than once for the same Seller
Indemnified Amount.
(3) The Seller Indemnified Parties agree to give notice to
the Purchaser promptly after learning of the assertion of any claim, or the
commencement of any suit, action or proceeding, in respect of which
indemnity may be sought hereunder, provided, however, that the failure of
any of the Seller Indemnified Parties to give such notice shall not
constitute a waiver of its rights hereunder in respect of the claim, suit,
action or proceeding with respect to which such notice was required to have
been given hereunder.
(4) The Purchaser shall not be liable under this Section
8.3 for any settlement effected without its consent of any claim,
litigation or proceeding in respect of which indemnity may be sought.
(5) The amount required to be paid to any of the Seller
Indemnified Parties by the Purchaser for any Seller Indemnified Amounts
hereunder shall be paid not later than thirty (30) days after receipt by
the Purchaser of written notice from such party, stating that such Seller
Indemnified Amounts have been incurred and the amount thereof and of the
related indemnity payment.
9. Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if sent by facsimile
transmission and confirmed by registered or certified mail, postage
prepaid, addressed as follows:
If to the Purchaser:
c/o Fortress Investment Group LLC
1301 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Facsimile No.: (000)000-0000
Copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: (000)000-0000
If to Xxxxxxx/PGLP/Stockholders:
c/o The Prime Group, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
Copy to:
c/o The Prime Group, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
and to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Company:
Brookdale Living Communities, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
Copy to:
Brookdale Living Communities, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
and to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
or to such other addresses as shall be furnished by like notice by such
party. Any such notice or communication given by mail shall be effective
upon receipt thereof.
10. Further Assurances. The Seller agrees that, at any time
after the date hereof, upon the request of the Purchaser, it will do,
execute, acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered, all such further acknowledgments, deeds,
assignments, bills of sale, transfers, conveyances, instruments, consents
and assurances as may reasonably be required for the better assuring and
confirming to the Purchaser, its successors and assigns, absolute ownership
to the Shares to be sold to the Purchaser hereunder.
11. Entire Agreement; Modification. This Agreement (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to
the subject matter hereof and thereof and (ii) is not intended to confer
upon any person other than the parties hereto any rights or remedies
hereunder. This Agreement may not be modified or amended except by an
instrument in writing duly signed by or on behalf of the parties hereto and
dated on or subsequent to the date hereof.
12. Termination. This Agreement may be terminated or abandoned
at any time prior to the Closing Date:
(i) by the mutual written consent of the Purchaser and the
Seller; or
(ii) by the non-breaching party, if the Seller or the Purchaser
shall have breached in any material respect any of its representations,
warranties, covenants or other agreements contained in this Agreement,
which breach cannot be or has not been cured within 15 days after the
giving of written notice by the non-breaching party, specifying such
breach.
Notwithstanding the foregoing, the Agreement shall be terminated by either
party if the Closing shall not have taken place by the later of (i) May 18,
2000, or (ii) one business day following expiration or termination of the
applicable waiting period under HSR, unless the parties agree otherwise.
13. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within the
State.
14. Binding Effect; Assignment. This Agreement shall be binding
upon the parties hereto and shall not be assigned without the written
consent of the other parties, provided, however, that the Purchaser may
assign this Agreement to any persons directly or indirectly controlling,
controlled by, or under direct or indirect common control with, the
Purchaser or any entity 50% or more of the equity interest of which is
owned by Purchaser, without the consent of the other parties, only if such
assignee agrees in writing to be bound to the Standstill Agreement and this
Agreement.
15. Counterparts. This Agreement may be executed simultaneously
in any number of counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same instrument.
16. Paragraph Headings. The paragraph headings in this
Agreement are for convenience of reference only and shall not be deemed to
alter or affect any provision hereof.
17. Transaction Expenses. Notwithstanding anything else to this
Agreement to the contrary, the parties hereto shall each be responsible for
the payment of any and all of its or his own expenses, including, without
limitation, the fees and expenses of counsel, accountants and other
advisers, arising out of or relating directly or indirectly to the
transactions contemplated by this Agreement, whether or not such
transactions are consummated in whole or in part.
18. Severability. If any provision of this Agreement is
invalid, illegal, or unenforceable, the balance of this Agreement shall
remain in effect, and if any provision is inapplicable to any person or
circumstance, it shall nevertheless remain applicable to all other persons
and circumstances.
19. Waiver. The waiver of one breach or default hereunder shall
not constitute the waiver of any other or subsequent breach or default.
20. No Agency. This Agreement shall not constitute any party
the legal representative or agent of the other, nor shall any party have
the right or authority to assume, create, or incur any liability or any
obligation of any kind, express or implied, against or in the name of or on
behalf of the other party.
21. Adjustment upon Changes in Capitalization. In the case of
any changes affecting the Company's capitalization, including, but not
limited to, stock dividends, cash dividends in excess of normal quarterly
cash dividends consistent with past practice, stock splits,
recapitalization and the like, the number of the Shares, the Purchase Price
and any other items affected by such change shall be appropriately
adjusted.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto duly executed this
Agreement the day and date first above written.
THE PURCHASER:
FORTRESS REGISTERED INVESTMENT TRUST
By: /s/ Xxxxxx Xxxxxxx
__________________________
Name: Xxxxxx Xxxxxxx
Title: Chief Operating Officer
THE COMPANY:
BROOKDALE LIVING COMMUNITIES, INC.
By: /s/ Xxxx X. Xxxxxxx
__________________________
Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive Officer
THE PARTIES CONSTITUTING THE
SELLER:
/s/ Xxxxxxx X. Xxxxxxx
__________________________
XXXXXXX X. XXXXXXX
THE PRIME GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
__________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
PRIME GROUP II, L.P.
By: PGLP, Inc., Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
__________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
PRIME GROUP VI, L.P.
By: PGLP, Inc., Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
__________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
PGLP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
__________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
EXHIBIT A
Name of Stockholder(1) Number of Shares Owned
------------------- ----------------------
The Prime Group, Inc. 31,784(2)
Prime Group II, L.P. 320,633(3)
Prime Group VI, L.P. 3,576,933(4)
------------------------------------------------------------------------
Total 3,929,350(5)
--------------------
(1) Xxxxxxx X. Xxxxxxx has the ability to control The Prime Group, Inc.
and PGLP, Inc., which is the managing general partner of Prime
Group II, L.P. and Prime Group VI, L.P.
(2) 12,500 shares are subject to an option, by which Blackacre Bridge
Capital LLC may purchase such shares at a price of $12 per share.
(3) The Shares owned by Prime Group II, L.P. are pledged to Xxxxxx
Investors Life Insurance Company, which pledge shall be released on
or prior to the Closing.
(4) The Shares owned by Prime Group VI, L.P. are pledged to LaSalle
Bank National Association, which pledge shall be released on or
prior to the Closing. Subject to a no sale agreement in favor of
FBR Assets Investment Corporation, which shall be waived at the
Closing.
(5) All of the shares are subject to the terms of the Stockholders
Agreement, dated as of May 14, 1999, among the Company, the
Stockholders and Health Partners.
AMENDMENT
TO
STOCK PURCHASE AGREEMENT
BY AND AMONG
FORTRESS REGISTERED INVESTMENT TRUST
FORTRESS BROOKDALE ACQUISITION LLC
AND
BROOKDALE LIVING COMMUNITIES, INC.
AND
XXXXXXX X. XXXXXXX,
THE PRIME GROUP, INC.,
PRIME GROUP II, L.P.,
PRIME GROUP VI, L.P.,
AND
PGLP, INC.
DATED AS OF
MAY 17, 2000
AMENDMENT TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT (this "Amendment") is made and entered into
as of this 17th day of May, 2000, by and among Fortress Registered
Investment Trust (the "Purchaser"), Fortress Brookdale Acquisition LLC (the
"Assignee"), Brookdale Living Communities, Inc. (the "Company"), Xx.
Xxxxxxx X. Xxxxxxx, PGLP, Inc., The Prime Group, Inc., Prime Group II, L.P.
and Prime Group VI, L.P. (Xx. Xxxxxxx X. Xxxxxxx, PGLP, Inc., The Prime
Group, Inc., Prime Group II, L.P. and Prime Group VI, L.P., collectively,
the "Seller").
W I T N E S S E T H:
WHEREAS, the Purchaser, the Company and the Seller made and
entered into a Stock Purchase Agreement (the "Stock Purchase Agreement"),
dated as of April 20, 2000;
WHEREAS, the Purchaser wishes to assign the Stock Purchase
Agreement to the Assignee in accordance with the terms thereof; and
WHEREAS, the parties hereto wish to amend the Stock Purchase
Agreement, reflecting such assignment and such other terms as the parties
agree to amend hereby.
NOW, THEREFORE, in consideration of the foregoing premises,
the parties hereby agree as follows:
1. The Purchaser hereby represents that the Assignee is a
permissible assignee under Section 14 of the Stock Purchase Agreement, and
hereby assigns any rights and obligations it may have under the Stock
Purchase Agreement to the Assignee, and the Assignee hereby agrees to be
bound by the terms of the Standstill Agreement, dated as of April 20, 2000,
by and between the Purchaser and the Company and the Stock Purchase
Agreement as amended hereby pursuant to Section 14 thereof.
2. Upon the execution hereof, the Stock Purchase Agreement
shall be amended so that the Assignee shall be deemed to be the Purchaser
for purposes of the Stock Purchase Agreement; provided that all references
to "Fortress Registered Investment Trust" and the term "business trust" in
the Stock Purchase Agreement shall be deemed to be references to "Fortress
Brookdale Acquisition LLC" and "limited liability company" respectively,
and the phrase "the Purchaser's Declaration of Trust or By-laws" in Section
5.3 of the Stock Purchase Agreement shall be read as "the Purchaser's
Certificate of Formation or Limited Liability Company Agreement."
3. Section 6.6 Board of Directors of the Stock Purchase
Agreement is hereby amended to add the following sentences at the end of
Section 6.6:
If, prior to his or her election as a director of the Company
pursuant to this Section, any of the designees of the Purchaser
shall be unable or unwilling to serve as a director of the Company,
then the Purchaser shall be entitled to designate a replacement
designee ("Replacement Designee"). If, after his or her election as
a director of the Company pursuant to this Section, any of the
designees of the Purchaser shall resign or be removed or be unable
to serve for any reason prior to the expiration of his or her term
as a director of the Company, then the Purchaser shall, within
thirty (30) days of such event, notify the Company in writing of a
Replacement Designee, and the Company shall use its best efforts to
cause the election of such Replacement Designee as a director of
the Company to fill the unexpired term of the director of the
Company who such new designee of the Purchaser is replacing.
4. This Amendment and the Stock Purchase Agreement as
amended hereby shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto,
provided, however, that nothing herein shall prevent the Assignee to assign
the Stock Purchase Agreement as amended hereto to any persons directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, the Purchaser, the Assignee or any entity 50% or more of the
equity interest of which is owned by Purchaser or the Assignee, without the
consent of the other parties, pursuant to, and in accordance with, Section
14 of the Stock Purchase Agreement.
5. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
6. Except as amended hereby, the Stock Purchase Agreement
shall continue in full force and effect.
7. This Amendment may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
THE PURCHASER:
FORTRESS REGISTERED INVESTMENT TRUST
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxxx
as Vice President, Chief Operating Officer
and Secretary of Fortress Registered
Investment Trust, the sole member of
Fortress Brookdale Acquisition LLC
THE ASSIGNEE:
FORTRESS BROOKDALE ACQUISITION LLC
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxxx
as Vice President, Chief Operating Officer
and Secretary of Fortress Registered
Investment Trust, the sole member of
Fortress Brookdale Acquisition LLC
THE COMPANY:
BROOKDALE LIVING COMMUNITIES, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive Officer
THE PARTIES CONSTITUTING THE
SELLER:
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
XXXXXXX X. XXXXXXX
THE PRIME GROUP, INC.
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
PRIME GROUP II, L.P.
By: PGLP, Inc., Managing General Partner
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
PRIME GROUP VI, L.P.
By: PGLP, Inc., Managing General Partner
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
PGLP, INC.
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President