Exhibit 99(h)
CONTRIBUTION AGREEMENT
Between
FORTRESS REGISTERED INVESTMENT TRUST
HEALTH PARTNERS
and
FORTRESS BROOKDALE ACQUISITION LLC
Dated: As of July 26, 2000
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CONTRIBUTION AGREEMENT
Contribution Agreement (this "Agreement") made as of the 26th
day of July, 2000, by and among FORTRESS REGISTERED INVESTMENT TRUST, a Delaware
business trust ("Fortress"), HEALTH PARTNERS, a Bermuda exempted partnership
("Health Partners") and FORTRESS BROOKDALE ACQUISITION LLC, a Delaware limited
liability company (the "Company").
(All capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the LLC Agreement (as defined below)).
WHEREAS:
1. The parties hereto have entered into that certain Amended and
Restated Limited Liability Company Agreement of Fortress Brookdale Acquisition
LLC (the "LLC Agreement"), dated as of July 26, 2000;
2. Fortress had previously contributed 4,004,350 shares of common
stock of Brookdale Living Communities, Inc. ("Brookdale") to the Company in
return for Membership Interests in the Company;
3. Fortress desires to contribute to the Company cash in return for
additional Membership Interests in the Company pursuant to Article II of the LLC
Agreement;
4. Health Partners is the legal and beneficial owner of $100,000,000
principal amount of 5 1/2% Convertible Subordinated Notes Due 2009 of Brookdale,
purchased pursuant to that certain Note Purchase Agreement, dated as of April
27, 1999, between Brookdale and Health Partners (such convertible notes,
collectively, together with all of Health Partners' rights in connection with
the ownership therewith, the ("Convertible Notes");
5. Health Partners desires to contribute to the Company its legal and
beneficial interest in the Convertible Notes in return for Membership Interests
in the Company pursuant to Article II of the LLC Agreement; and
6. It is contemplated that the Company will enter into an Agreement
and Plan of Merger with Brookdale pursuant to which each outstanding share of
common
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stock of Brookdale will be converted into the right to receive $15.25 in cash
(the "Merger") and in furtherance of the Merger the Company will commence an
offer to purchase for cash any and all of the outstanding shares of common stock
of Brookdale at $15.25 per share (the "Offer").
NOW THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Contribution of Cash and Convertible Notes; Issuance of Membership
Interests. Upon receipt of an Initial Capital Demand Notice from the Operating
Committee in accordance with the provisions of Section 2.1(b) of the LLC
Agreement, (a) Fortress will contribute to the Company cash in an amount
necessary to pay all costs and expenses of the Offer and the Merger, including
but not limited to payments to stockholders of Brookdale, attorneys' fees,
printing costs, filing fees and related expenses; provided, however, that such
amount contributed by Fortress to the Company shall not exceed $98,933,633, in
exchange for Membership Interests which when taken together with its existing
Membership Interests and after giving effect to the contribution of Health
Partners will result in its Percentage Interest being fifty nine and three
tenths of one percent (59.3%); and (b) Health Partners will contribute the
Convertible Note in exchange for Membership Interests which, after giving effect
to the contributions of Fortress described above will result in Health
Partners's Percentage Interest being forty and seven tenths of one percent
(40.7%). Unless affirmatively requested to do otherwise by the Operating
Committee, Health Partners shall contribute the Convertible Note to the Company
on the date immediately following the expiration or earlier termination date of
the Offer.
2. Assignment of Rights. Health Partners, in addition to contributing
the Convertible Notes, shall assign to the Company, concurrent with the
contribution of the Convertible Note as described in Section 1 above, to the
fullest extent assignable, all right, title and interest of Health Partners in
and to the benefit of any and all representation and warranties made to Health
Partners (or its predecessor-in-interest with respect to the Convertible Notes)
in connection with the holding of the Convertible Notes by Health Partners,
together with all right, title and interest of any assignor in any enforcement
rights, indemnification rights and any other rights contained in any agreement
associated with any prior conveyance of the Convertible Notes.
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3. Miscellaneous.
3.1 This Agreement shall be interpreted and enforced according to
the laws of the State of New York without regard to the
principles of conflicts of law.
3.2 All headings and sections of this Agreement are inserted for
convenience only and do not form part of this Agreement or
limit, expand or otherwise alter the meaning of any provisions
hereof.
3.3 This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of
which shall constitute one and the same agreement. Facsimile
signatures shall be deemed effective execution of this
Agreement and may be relied upon as such by the other parties
hereto. In the event facsimile signatures are delivered,
originals of such signatures shall be delivered to the other
parties hereto within three (3) business days after execution.
3.4 The provisions of this Agreement are intended to be for the
sole benefit of the parties hereto and their respective
successors and assigns, and none of the provisions of this
Agreement are intended to be, nor shall they be construed to
be, for the benefit of any third party.
3.5 This Agreement and the LLC Agreement, taken together,
represent the entire agreement between the parties hereto
covering everything agreed upon or understood in this
transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of
any kind as conditions or inducements to the execution hereof
or in effect between the parties hereto. No change or addition
shall be made to this Agreement except by a written agreement
executed by the parties hereto.
3.6 The persons executing this Agreement for and on behalf of the
parties hereto each represent that they have the requisite
authority to bind the entities on whose behalf they are
signing.
3.7 If any term, covenant or condition of this Agreement is held
to be invalid or unenforceable in any respect, such invalidity
or unenforceability shall
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not affect any other provision hereof, and this Agreement
shall be construed as if such invalid or unenforceable
provision had never been contained herein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above.
FORTRESS:
FORTRESS REGISTERED INVESTMENT TRUST,
a Delaware business trust
By: /s/ Wesley R. Edens
-------------------------------------------------
Name: Wesley R. Edens
Title: Chief Executive Officer
HEALTH PARTNERS:
HEALTH PARTNERS, a Bermuda exempted
partnership
By: Capital Z Financial Services Fund II, L.P.,
its general partner
By: Capital Z Partners, L.P., its general partner
By: Capital Z Partners, Ltd., its general partner
By: /s/ Paul H. Warren
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Name: Paul H. Warren
Title: Senior Vice President
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THE COMPANY:
FORTRESS BROOKDALE ACQUISITION LLC,
a Delaware limited liability company
By: Fortress Registered Investment Trust, its
managing member
By: /s/ Wesley R. Edens
-------------------------------------------------
Name: Wesley R. Edens
Title: Chief Executive Officer
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