Exhibit 10.86
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EXCHANGE AND STOCKHOLDER AGREEMENT
BY AND AMONG
BROOKDALE SENIOR LIVING INC.,
FORTRESS BROOKDALE ACQUISITION LLC,
and
XXXX X. XXXXXXX
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Dated as of September 30, 2005
ARTICLE I DEFINITIONS..................................................... 1
Section 1.1 Defined Terms................................................. 1
ARTICLE II EXCHANGE; TRANSFER RESTRICTIONS................................ 4
Section 2.1 Exchange of Membership Interests.............................. 4
Section 2.2 Transfer Restrictions......................................... 4
Section 2.3 Legend........................................................ 4
ARTICLE III TAG-ALONG AND DRAG-ALONG RIGHTS............................... 5
Section 3.1 Tag-Along Rights.............................................. 5
Section 3.2 Drag-Along Rights............................................. 6
ARTICLE IV REPRESENTATIONS................................................ 8
Section 4.1 Due Organization, Authorization............................... 8
Section 4.2 Enforceability, Etc........................................... 8
Section 4.3 No Conflicts.................................................. 8
Section 4.4 Governmental Approvals........................................ 8
Section 4.5 Litigation.................................................... 8
Section 4.6 Investment.................................................... 9
ARTICLE V MISCELLANEOUS................................................... 9
Section 5.1 Headings...................................................... 9
Section 5.2 Entire Agreement.............................................. 9
Section 5.3 Further Actions; Cooperation.................................. 9
Section 5.4 Notices....................................................... 10
Section 5.5 Applicable Law................................................ 11
Section 5.6 Severability.................................................. 11
Section 5.7 Successors and Assigns........................................ 11
Section 5.8 Amendments.................................................... 11
Section 5.9 Waiver........................................................ 11
Section 5.10 Counterparts................................................. 12
Section 5.11 SUBMISSION TO JURISDICTION................................... 12
Section 5.12 Injunctive Relief............................................ 12
Section 5.13 Recapitalizations, Exchanges, Etc., Affecting the shares of
Common Stock; New Issuances............................... 12
Section 5.14 Termination.................................................. 12
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THIS EXCHANGE AND STOCKHOLDER AGREEMENT (this "Agreement") is made as
of September 30, 2005, by and among Brookdale Senior Living Inc., a Delaware
corporation (the "Company"), Fortress Brookdale Acquisition LLC, a Delaware
limited liability company ("FBA"), and Xxxx X. Xxxxxxx (the "Individual").
Certain capitalized terms used in this Agreement are defined in Article I.
Capitalized terms not defined herein shall have the meaning ascribed to them in
the Amended and Restated Limited Liability Company Agreement of FBA dated as of
July 26, 2000 and amended as of September 15, 2000 (the "LLC Agreement"). Unless
otherwise indicated, references to articles and sections shall be to articles
and sections of this Agreement.
WHEREAS, the Individual is a Member of FBA and FBA is the sole
stockholder of Brookdale Living Communities, Inc. ("BLCI");
WHEREAS, pursuant to the Conveyance Agreement, dated September 30,
2005, by and among the Company, BLCI, BSL Brookdale Merger Inc., a wholly owned
subsidiary of the Company ("Merger Sub"), BSL CCRC Merger Inc., BSL FEBC Merger
Inc., Emeritus Corporation, FEBC-ALT Investors LLC, FIT-ALT Investor LLC,
Fortress CCRC Acquisition LLC, Fortress Investment Trust II, Fortress Registered
Investment Trust, FBA, Health Partners and NW Select LLC, Merger Sub has merged
with and into BLCI (the "Brookdale Merger") and FBA has received shares of
Common Stock (as defined below) as a result of the Brookdale Merger;
WHEREAS, the parties hereto desire that all of the Individual's
Membership Interest in FBA be exchanged for shares of Common Stock owned by FBA;
and
WHEREAS, the parties hereto desire to regulate the transfer of the
Shares (as defined below) and provide certain other rights and obligations with
respect thereto.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. For purposes of this Agreement, the
following terms shall have the following meanings:
(a) "Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under the Exchange Act.
(b) "Approved Sale" shall have the meaning assigned to it in
Section 3.2(a).
(c) A Person shall be deemed to "Beneficially Own" securities if
such Person is deemed to be a "beneficial owner" within the meaning of Rules
13d-3 and 13d-5 under the Exchange Act as in effect on the date of this
Agreement.
(d) "Board" means the board of directors of the Company.
(e) "Business Day" means any day other than a Saturday, Sunday or
any other day on which banks in the City of New York are required or permitted
to be closed.
(f) "Common Stock" shall mean the Company's common stock, par
value $0.01 per share and any and all securities of any kind whatsoever of the
Company which may be issued and outstanding on or after the date hereof in
respect of, in exchange for, or upon conversion of shares of Common Stock
pursuant to a merger, consolidation, stock split, stock dividend,
recapitalization of the Company or otherwise.
(g) "Company" shall have the meaning assigned to it in the
introductory paragraph to this Agreement.
(h) "Fortress Stockholders" shall mean collectively (i) FBA and
(ii) each of its Permitted Transferees (other than Health Partners or the
Individual).
(i) "Initial Public Offering" shall mean the initial public
offering of Common Stock pursuant to an effective registration statement under
the Securities Act.
(j) "Liens" shall mean any and all liens, mortgages, pledges,
claims, rights, charges, security interests or other restrictions or
encumbrances.
(k) "Note Agreement" shall mean the Amendment to the Secured
Non-Recourse Promissory Note, dated September 30, 2005, by and between the
Individual and BLCI.
(l) "Permitted Transferee" shall mean, with respect to each
Fortress Stockholder, (i) any other Fortress Stockholder, (ii) such Fortress
Stockholder's Affiliates and (iii) in the case of any Fortress Stockholder, (A)
any general or limited partner or member of such Fortress Stockholder, (B) any
corporation, partnership, limited liability company or other entity that is an
Affiliate of such Fortress Stockholder or any general or limited partner of such
Fortress Stockholder (collectively, "Stockholder Affiliates"), (C) any
investment funds managed directly or indirectly by such Fortress Stockholder or
any Stockholder Affiliates (a "Stockholder Fund"), (D) any general or limited
partner of any Stockholder Fund, (E) any managing director, general partner,
director, limited partner, officer or employee of any Stockholder Affiliate, or
any spouse, lineal descendant, sibling, parent, heir, executor, administrator,
testamentary trustee, legatee or beneficiary of any of the foregoing persons
described in this clause (E) (collectively, "Stockholder Associates") or (F) any
trust, the beneficiaries of which, or any corporation, limited liability company
or partnership, the stockholders, members or
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general or limited partners of which consist solely of any one or more of such
Stockholder, any general or limited partner of such Fortress Stockholder, any
Stockholder Affiliates, any Stockholder Fund, any Stockholder Associates, their
spouses or their lineal descendants.
(m) "Person" shall mean any individual, firm, corporation,
partnership, limited liability company or other entity, and shall include any
successor (by merger or otherwise) of such entity.
(n) "Pro Rata Share" shall mean the ratio of (x) the number of
shares of Common Stock then held by a Person to (y) the total number of shares
of Common Stock then outstanding.
(o) "Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
(p) "Tag-Along Notice " shall have the meaning assigned to it in
Section 3.1(b).
(q) "Tag-Along Notice Period" shall have the meaning assigned to
it in Section 3.1(b).
(r) "Third Party" shall mean any Person other than a Permitted
Transferee.
(s) "Third Party Offer" shall have the meaning assigned to it in
Section 3.1(a).
(t) "Third Party Notice" shall have the meaning assigned to it in
Section 3.1(a).
(u) "Transfer" shall mean, with respect to any shares of Common
Stock, (i) when used as a verb, to sell, assign, dispose of, exchange, pledge,
encumber, hypothecate or otherwise transfer such Common Stock or any
participation or interest therein, whether directly or indirectly, or agree or
commit to do any of the foregoing and (ii) when used as a noun, a direct or
indirect sale, assignment, disposition, exchange, pledge, encumbrance,
hypothecation, or other transfer of such Common Stock or any participation or
interest therein or any agreement or commitment to do any of the foregoing.
(v) "Transferring Stockholder" shall have the meaning assigned to
it in Section 3.1(a).
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ARTICLE II
EXCHANGE; TRANSFER RESTRICTIONS
Section 2.1 Exchange of Membership Interests. Immediately after the
consummation of the Brookdale Merger, FBA will convey, assign, transfer and
deliver to the Individual, free and clear of all Liens (other than pursuant to
the Note Agreement), and the Individual will acquire and accept from FBA, an
aggregate of 248,723 shares of Common Stock (the "Shares"), including FBA's
right, title and interest therein and thereto, free and clear of all Liens, in
exchange for the conveyance, assignment, transfer and delivery to FBA, free and
clear of all Liens, of all of the Individual's Membership Interests in FBA,
including all of the Individual's right, title and interest therein.
Section 2.2 Transfer Restrictions.
(a) The Individual shall not (voluntarily or involuntarily)
directly or indirectly, Transfer his Shares or any economic benefit therein
(including a Transfer pursuant to a foreclosure sale of any of the assets of the
Individual), or in any part thereof without the prior written consent of the
Board (which may be withheld for any or no reason) except as provided in Article
III hereof.
(b) Any purported Transfer of Shares or any economic interest
therein not in compliance with Section 2.1 hereof shall be null and void ab
initio, regardless of any notice provided to the Company, and shall not create
any obligation or liability of the Company to the purported transferee.
(c) In the case of an attempted Transfer of any Shares or any
economic benefit therein that is not in compliance with Section 2.1, the parties
engaging or attempting to engage in such Transfer shall indemnify and hold
harmless the Company and the Board from all cost, liability and damage that any
of such indemnified persons may incur (including, without limitation,
incremental tax liability and attorneys' fees and expenses) as a result of such
Transfer or attempted Transfer and the enforcement of this indemnity.
Section 2.3 Legend. Each certificate representing the Shares shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
"The shares represented by this certificate are subject to the provisions
contained in the Exchange and Stockholders Agreement dated as of September 30,
2005."
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ARTICLE III
TAG-ALONG AND DRAG-ALONG RIGHTS
Section 3.1 Tag-Along Rights.
(a) Except for Transfers to (i) Permitted Transferees, and (ii)
Transfers permitted by the express terms of Section 3.2, if a Fortress
Stockholder (the "Transferring Stockholder") intends to Transfer any or all of
the Common Stock then owned by or in the name of such Transferring Stockholder
to a Third Party (each, a "Third Party Offer"), the Transferring Stockholder
shall promptly, acting in good faith (A) cause the Third Party Offer to be
reduced to writing, which shall identify the Third Party, the Common Stock
proposed to be transferred to the Third Party by the Transferring Stockholder,
the price to be paid in cash by the Third Party and all other material terms and
conditions of the Third Party Offer and (B) provide written notice (the "Third
Party Notice") of such Third Party Offer to the Individual, which Third Party
Notice shall (x) contain an offer by such Third Party to purchase or otherwise
acquire from the Individual the Individual's Shares (to the extent such Third
Party Offer shall be allocable to the Individual pursuant to Section 3.1(c)
hereof) on the same terms and conditions as the Third Party Offer and (y) be
accompanied by a true and correct copy of the Third Party Offer.
(b) If the Individual desires to accept the offer set forth in
the Third Party Notice, the Individual shall, within five (5) Business Days
after the date the Third Party Notice is received by the Individual (as such
period may be extended pursuant to Section 3.1(d) hereof) (each, a "Tag-Along
Notice Period"), deliver a written notice to the Transferring Stockholder (each,
a "Tag-Along Notice"), which notice shall (i) specify the number of Shares that
the Individual wishes to Transfer pursuant to the Third Party Offer and the
number of Shares then owned by the Individual and (ii) constitute a firm
acceptance by the Individual of the Third Party Offer, except as otherwise
provided in Sections 3.1(c) and (d) hereof.
(c) If the Individual gives the Transferring Stockholder a timely
Tag-Along Notice, then the Transferring Stockholder shall use all reasonable
efforts to cause the Third Party to agree to acquire all Shares identified in
all Tag-Along Notices that are timely given to the Transferring Stockholder,
upon the same terms and conditions as are applicable to the Transferring
Stockholder's Common Stock. If such Third Party is unwilling or unable to
acquire all of such Shares upon such terms, then the Transferring Stockholder
may elect to either cancel such proposed Transfer or allocate the maximum number
of shares of Common Stock that such Third Party is willing to purchase among the
Transferring Stockholder and the Individual, with (i) the Individual permitted
to sell that number of Shares corresponding to the product of (x) its Pro Rata
Share and (y) the maximum number of shares of Common Stock that such Third Party
is willing to purchase and (ii) the Transferring Stockholder permitted to sell
the number of shares of
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Common Stock equal to the remaining shares of Common Stock that such Third Party
is willing to purchase.
(d) In the event that the terms and conditions of any Third Party
Offer shall be modified in any way prior to the consummation of the respective
Transfers of Common Stock contemplated by such Third Party Offer, the
Transferring Stockholder shall send a copy of the amended Third Party Offer to
the Individual. If the Individual desires to amend or withdraw its Tag-Along
Notice, the Individual may do so by delivering notice within three (3) Business
Days after receipt of such amended Third Party Offer to the Transferring
Stockholder. If such notice is not timely delivered, the Individual shall be
deemed to have elected to participate in such Third Party Offer under the terms
and conditions of the amended Third Party Offer.
(e) Within three (3) Business Days after the termination of the
Tag-Along Notice Period (including any extension thereof) with respect to any
Third Party Offer, the Transferring Stockholder, after review of the Tag-Along
Notice, if any, received, and notices of withdrawal, if any, shall, if the
Individual has delivered a Tag-Along Notice and has not delivered a notice of
withdrawal, give written notice to the Individual of (A) the Individual 's
Shares to be purchased pursuant to the Third Party Offer, showing the basis for
the calculation thereof, and (B) the time and place of the closing, which shall
occur not fewer than two (2) Business Days and not more than thirty (30)
Business Days from the date such notice is given. At the closing, the Individual
shall, and hereby covenants to, Transfer the Individual's Shares to be sold to
such Third Party free and clear of any and all Liens against payment of the
purchase price for such Shares. If the Individual fails to deliver any Shares to
the Third Party, the Transferring Stockholder shall be entitled to increase
accordingly the number of shares of Common Stock that it may Transfer in
connection with the Third Party Offer. If such Third Party does not purchase
such Shares from the Individual on the same terms and conditions applicable to
the Transferring Stockholder, then the entire proposed Transfer by the
Transferring Stockholder to such Third Party shall be invalid.
(f) If at the termination of the Tag-Along Notice Period (and any
extension thereof) the Individual shall not have accepted the offer contained in
the Third Party Notice, the Individual shall be deemed to have waived any and
all of his or its rights under this Section 3.1 to Transfer his Shares to such
Third Party on the terms specified in the Third Party Offer pursuant to that
Third Party Notice but not pursuant to any subsequent Third Party Notice.
Section 3.2 Drag-Along Rights.
(a) If the Board approves a sale of the Company or substantially
all of its assets to a Third Party (an "Approved Sale"), whether by way of
merger, consolidation, sale of interests or assets, or otherwise, the Individual
shall consent to and raise no objections against the Approved Sale, and if the
Approved Sale is structured as (i) a merger or consolidation of the Company, or
a sale of all or substantially all of the Company's assets, the Individual shall
waive any dissenters rights, appraisal rights or
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similar rights in connection with such merger, consolidation or asset sale, or
(ii) a sale of Common Stock, the Individual shall agree to sell the Individual's
Shares on the terms and conditions approved by the Board in accordance with the
terms hereof. The Individual shall take all necessary and desirable actions
approved by the Board in connection with the consummation of the Approved Sale,
including the execution of such agreements and such instruments and other
actions reasonably necessary (i) to provide the representations, warranties,
indemnities, covenants, conditions, escrow agreements and other provisions and
agreements relating to such Approved Sale, to the extent reasonably customary in
similar transactions, and (ii) to effectuate the allocation and distribution of
the aggregate consideration upon the Approved Sale as set forth below.
(b) The obligations of the Individual pursuant to this Section
3.2 are subject to the following conditions:
(i) upon consummation of the Approved Sale, the Individual
shall receive from the Approved Sale the same amount of consideration with
respect to each of its Shares that all other holders of Common Stock shall
receive with respect to each share of such Common Stock;
(ii) if any holder of Common Stock is given an option as to
the form and amount of consideration to be received, the Individual will be
given the same option;
(iii) the Individual shall not be obligated to make any
out-of-pocket expenditure prior to the consummation of the Approved Sale
(excluding modest expenditures for postage, copies, etc.) and the Individual
shall not be obligated to pay more than his pro rata share (based upon the
amount of consideration received) of reasonable expenses incurred in connection
with a consummated Approved Sale to the extent such costs are incurred for the
benefit of all securityholders of the Company and are not otherwise paid by the
Company or the acquiring party, provided that the Individual's liability for
such expenses shall be capped at the total purchase price received by the
Individual for his Shares; and
(c) in the event that the Individual is required to provide any
representations or indemnities in connection with the Approved Sale (other than
representations and indemnities concerning the Individual 's valid ownership of
his Shares, free and clear of any and all Liens, the Individual's authority,
power and right to enter into and consummate such purchase or merger agreement
without violating any other agreement and other representations and indemnities
that are individual to the Individual), then the Individual shall not be liable
for more than his Pro Rata Share of any liability for misrepresentation or
indemnity and such liability shall not exceed the total purchase price received
by the Individual for his Shares.
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ARTICLE IV
REPRESENTATIONS
Each party hereto hereby represents and warrants solely as to itself to
each of the other parties hereto as follows (except with respect to Section 4.6
hereof, which representation and warranty is made solely by the Individual to
each of the other parties hereto):
Section 4.1 Due Organization, Authorization. Such party is either (a)
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization or (b) a natural person that is competent and has
legal capacity to execute, deliver and perform its obligations under this
Agreement. The execution, delivery and performance by such party of this
Agreement, if not a natural person, and the consummation by such party of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate and other action on its part.
Section 4.2 Enforceability, Etc. This Agreement has been duly executed
and delivered by such party. This Agreement constitutes a legal, valid and
binding obligation of such party, enforceable against such party in accordance
with its terms, subject to any limitations imposed by bankruptcy, insolvency, or
other laws of general application relating to enforcement of creditors' rights
or general equity principles.
Section 4.3 No Conflicts. The execution, delivery and performance of
this Agreement by such party and the consummation by such party of the
transactions contemplated hereby will not (a) result in a violation of, be in
conflict with or constitute a default (with or without notice or lapse of time
or both) under (i) any law applicable to such party or any of its assets, (ii)
any provision of its organizational documents, if such party is not a natural
person, (iii) any order or judgment of any court or other agency of government
applicable to such party or any of its assets or (iv) any contractual
restriction binding on or affecting such party or any of its assets or (b)
result in the creation or imposition of any lien, mortgage, pledge, claim,
right, charge, security interest or other restriction or encumbrance
(collectively, "Liens") upon any of such party's assets.
Section 4.4 Governmental Approvals. To the best of such party's
knowledge, no consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other governmental authority or instrumentality, including under federal or
state law or otherwise, is required to be obtained or made by or with respect to
such party in connection with its execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby by such party (other
than those which are not material).
Section 4.5 Litigation. There is no lawsuit, claim, proceeding or
investigation pending or threatened by or against such party or any of its
properties, assets, operations, businesses or prospects, which relates to the
transactions contemplated by this Agreement.
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Section 4.6 Investment
(a) The Individual is acquiring the Shares for investment for his
own account, and not with a view to any distribution thereof in violation of the
securities laws. The Individual understands that such Shares have not been
registered under the Securities Act by reason of specific exemptions therefrom
which depend upon, among other things, the bona fide nature of the investment
intent and the accuracy of such the Individual's representations as expressed
herein.
(b) The Individual's financial condition and investments are such
that he is in a position to bear the economic risks of the investment and
withstand the complete loss of the investment. The Individual has extensive
knowledge and experience in financial and business matters and has the
capability to evaluate the merits and risks of an investment in the Common
Stock.
(c) The Individual qualifies as an "accredited investor" as such
term is defined in Section 2(15) of the Securities Act and Regulation D
promulgated thereunder.
ARTICLE V
MISCELLANEOUS
Section 5.1 Headings. The headings in this Agreement are for
convenience of reference only and shall not control or effect the meaning or
construction of any provisions hereof.
Section 5.2 Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein, and there are no restrictions, promises,
representations, warranties, covenants, conditions or undertakings with respect
to the subject matter hereof, other than those expressly set forth or referred
to herein. This Agreement supersedes all prior agreements and understandings
between the parties hereto with respect to the subject matter hereof.
Section 5.3 Further Actions; Cooperation. The Individual agrees to use
its reasonable efforts to take, or cause to be taken, all actions and to do, or
cause to be done, and to assist and cooperate with the other parties in doing,
all things necessary, proper or advisable to give effect to the transactions
contemplated by this Agreement and the Initial Public Offering, including,
without limitation, the prompt execution and delivery of an agreement
restricting the transfer of any securities of the Company owned by the
Individual as may be required by underwriters to facilitate the marketing of the
securities in the Initial Public Offering.
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Section 5.4 Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated on
the signature pages of this Agreement or in writing by such party to the other
parties:
(a) If to the Company to:
Brookdale Living Communities, Inc.
000 X. Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
with a copy (which shall not constitute notice) to:
Fortress Investment Group, LLC
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Xxxxxx X. Coco, Esq.
(b) If to any of the Fortress Stockholders, to:
c/o Fortress Investment Group, LLC
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Xxxxxx X. Coco, Esq.
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(c) If to the Individual:
Xxxx X. Xxxxxxx
00000 Xxxxxxxxxx
Xxxxxxxxxx, XX 00000
All such notices, requests, consents and other communications shall be deemed to
have been given or made if and when received (including by overnight courier) by
the parties at the above addresses or sent by electronic transmission, with
confirmation received, to the telecopy numbers specified above (or at such other
address or telecopy number for a party as shall be specified by like notice).
Any notice delivered by any party hereto to any other party hereto shall also be
delivered to each other party hereto simultaneously with delivery to the first
party receiving such notice.
Section 5.5 Applicable Law. 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. THE PARTIES
HERETO WAIVE THEIR RIGHT TO A JURY TRIAL WITH RESPECT TO DISPUTES HEREUNDER.
Section 5.6 Severability. The invalidity, illegality or
unenforceability of one or more of the provisions of this Agreement in any
jurisdiction shall not affect the validity, legality or enforceability of the
remainder of this Agreement, including any such provisions, in any other
jurisdiction, it being intended that all rights and obligations of the parties
hereunder shall be enforceable to the fullest extent permitted by law.
Section 5.7 Successors and Assigns. Except as otherwise provided
herein, all the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective
successors and permitted assigns of the parties hereto. The Individual may not
assign any of its rights hereunder to any Person without the prior written
consent of FBA and the Company.
Section 5.8 Amendments. This Agreement may not be amended, modified or
supplemented unless such amendment, modification or supplement is in writing and
signed by each of the parties hereto.
Section 5.9 Waiver. The failure of a party hereto at any time or times
to require performance of any provision hereof shall in no manner affect its
right at a later time to enforce the same. No waiver by a party of any condition
or of any breach of any term, covenant, representation or warranty contained in
this Agreement shall be effective unless in a writing signed by the party
against whom the waiver is to be effective, and no waiver in any one or more
instances shall be deemed to be a further or continuing waiver of any such
condition or breach in other instances or a waiver of any other condition or
breach of any other term, covenant, representation or warranty.
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Section 5.10 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same Agreement.
Section 5.11 SUBMISSION TO JURISDICTION. 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.
Section 5.12 Injunctive Relief. Each party hereto acknowledges and
agrees that a violation of any of the terms of this Agreement will cause the
other parties irreparable injury for which an adequate remedy at law is not
available. Therefore, each party agrees that each party shall be entitled to an
injunction, restraining order, specific performance or other equitable relief
from any court of competent jurisdiction, restraining any party from committing
any violations of the provisions of this Agreement.
Section 5.13 Recapitalizations, Exchanges, Etc., Affecting the shares
of Common Stock; New Issuances. The provisions of this Agreement shall apply, to
the full extent set forth herein with respect to Common Stock and to any and all
equity or debt securities of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets or otherwise) that may
be issued in respect of, in exchange for, or in substitution of, such Common
Stock and shall be appropriately adjusted for any stock dividends, splits,
reverse splits, combinations, reclassifications, recapitalizations,
reorganizations and the like occurring after the date hereof.
Section 5.14 Termination. This Agreement shall terminate and the terms
of this Agreement shall be of no further force and effect upon the earliest to
occur of the following: (i) the mutual consent of all of the parties hereto,
(ii) the consummation of the
12
Initial Public Offering, (iii) solely with respect to the Fortress Stockholders,
such time as the Fortress Stockholders and their respective Affiliates and
Permitted Transferees cease to Beneficially Own any Common Stock, and (iv) such
time as the Individual shall cease to Beneficially Own any Shares; provided,
however, that the provisions of Sections 5.5, 5.11 and this Section 5.14 shall
survive the termination of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly as of the
date first above written.
BROOKDALE LIVING COMMUNITIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------------------
Title: Executive Vice President, General Counsel
-----------------------------------------
FORTRESS BROOKDALE ACQUISITION LLC
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------
Title:
---------------------------------
/s/ Xxxx X. Xxxxxxx
----------------------------------------
XXXX X. XXXXXXX
