SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
BROOKDALE LIVING COMMUNITIES, INC.
(NAME OF ISSUER)
COMMON STOCK, PAR VALUE $.01 PER SHARE
(TITLE OF CLASS OF SECURITIES)
112462 10 6
(CUSIP NUMBER)
Randal A. Nardone
Vice President, Chief Operating Officer and Secretary
Fortress Registered Investment Trust
1301 Avenue of the Americas
New York, New York 10019
(212) 798-6100
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS)
COPY TO:
Edmund C. Duffy
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
(212) 735-3000
May 19 , 2000
(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d(f) or 13d-1(g), check
the following box |_| .
CUSIP NO. 112462 10 6 13D PAGE 2 OF 18 PAGES
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
FORTRESS BROOKDALE ACQUISITION LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC/AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER - 0 -
SHARES
BENEFICIALLY 8 SHARED VOTING POWER - 4,004,350 - (inclusive of
OWNED BY 75,000 shares issued after
EACH April 10, 2000 pursuant to
REPORTING exercise of stock options)
PERSON WITH
9 SOLE DISPOSITIVE POWER - 0 -
10 SHARED DISPOSITIVE POWER - 4,004,350 -
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
- 4,004,350 -
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
NOT APPLICABLE
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
40.3% (based on 9,850,749 shares of common stock outstanding as of
April 10, 2000, plus 75,000 shares issued after April 10, 2000
pursuant to exercise of stock options)
14 TYPE OF REPORTING PERSON
OO
CUSIP NO. 112462 10 6 13D PAGE 3 OF 18 PAGES
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
FORTRESS REGISTERED INVESTMENT TRUST
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC/AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER - 0 -
SHARES
BENEFICIALLY 8 SHARED VOTING POWER - 4,004,350* - (inclusive of
OWNED BY 75,000 shares issued after
EACH April 10, 2000 pursuant to
REPORTING exercise of stock options)
PERSON WITH
9 SOLE DISPOSITIVE POWER - 0 -
10 SHARED DISPOSITIVE POWER - 4,004,350* -
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
- 4,004,350* -
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
NOT APPLICABLE
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
40.3% (based on 9,850,749 shares of common stock outstanding as of
April 10, 2000, plus 75,000 shares issued after April 10, 2000
pursuant to exercise of stock options)
14 TYPE OF REPORTING PERSON
OO
* Solely in its capacity as the sole member of Fortress Brookdale
Acquisition LLC.
CUSIP NO. 112462 10 6 13D PAGE 4 OF 18 PAGES
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
FORTRESS INVESTMENT FUND LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
NOT APPLICABLE
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER - 0 -
SHARES
BENEFICIALLY 8 SHARED VOTING POWER - 4,004,350* - (inclusive of
OWNED BY 75,000 shares issued after
EACH April 10, 2000 pursuant to
REPORTING exercise of stock options)
PERSON WITH
9 SOLE DISPOSITIVE POWER - 0 -
10 SHARED DISPOSITIVE POWER - 4,004,350* -
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
- 4,004,350* -
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
NOT APPLICABLE
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
40.3% (based on 9,850,749 shares of common stock outstanding as of
April 10, 2000, plus 75,000 shares issued after April 10, 2000
pursuant to exercise of stock options)
14 TYPE OF REPORTING PERSON
OO
- ------------------------------------------------------------------------------
* Solely in its capacity as the holder of all issued and outstanding shares
of beneficial interest of Fortress Registered Investment Trust.
CUSIP NO. 112462 10 6 13D PAGE 5 OF 18 PAGES
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
FORTRESS FUND MM LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
NOT APPLICABLE
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER - 0 -
SHARES
BENEFICIALLY 8 SHARED VOTING POWER - 4,004,350* - (inclusive of
OWNED BY 75,000 shares issued after
EACH April 10, 2000 pursuant to
REPORTING exercise of stock options)
PERSON WITH
9 SOLE DISPOSITIVE POWER - 0 -
10 SHARED DISPOSITIVE POWER - 4,004,350* -
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
- 4,004,350* -
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
NOT APPLICABLE
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
40.3% (based on 9,850,749 shares of common stock outstanding as of
April 10, 2000, plus 75,000 shares issued after April 10, 2000
pursuant to exercise of stock options)
14 TYPE OF REPORTING PERSON
OO
- ------------------------------------------------------------------------------
* Solely in its capacity as the managing member of Fortress Investment Fund
LLC.
CUSIP NO. 112462 10 6 13D PAGE 6 OF 18 PAGES
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
FORTRESS INVESTMENT GROUP LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
NOT APPLICABLE
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER - 0 -
SHARES
BENEFICIALLY 8 SHARED VOTING POWER - 4,004,350* - (inclusive of
OWNED BY 75,000 shares issued after
EACH April 10, 2000 pursuant to
REPORTING exercise of stock options)
PERSON WITH
9 SOLE DISPOSITIVE POWER - 0 -
10 SHARED DISPOSITIVE POWER - 4,004,350* -
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
- 4,004,350* -
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
40.3% (based on 9,850,749 shares of common stock outstanding as of
April 10, 2000, plus 75,000 shares issued after April 10, 2000
pursuant to exercise of stock options)
14 TYPE OF REPORTING PERSON
OO
* Solely in its capacity as the managing member of Fortress Fund MM LLC
CUSIP NO. 112462 10 6 13D PAGE 7 OF 18 PAGES
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
FORTRESS INVESTMENT HOLDINGS LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
NOT APPLICABLE
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER - 0 -
SHARES
BENEFICIALLY 8 SHARED VOTING POWER - 4,004,350* - (inclusive of
OWNED BY 75,000 shares issued after
EACH April 10, 2000 pursuant to
REPORTING exercise of stock options)
PERSON WITH
9 SOLE DISPOSITIVE POWER - 0 -
10 SHARED DISPOSITIVE POWER - 4,004,350* -
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
- 4,004,350* -
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
40.3% (based on 9,850,749 shares of common stock outstanding as of
April 10, 2000, plus 75,000 shares issued after April 10, 2000
pursuant to exercise of stock options)
14 TYPE OF REPORTING PERSON
OO
* Solely in its capacity as the sole member of Fortress Invest Group LLC
ITEM 1. SECURITY AND ISSUER.
This statement relates to shares of common stock, par value
$0.01 per share ("Common Stock"), of Brookdale Living Communities,
Inc., a Delaware corporation (the "Issuer"). The principal executives
offices of the Issuer are located at 330 North Wabash, Suite 1400,
Chicago, IL 60611.
ITEM 2. IDENTITY AND BACKGROUND.
(a) - (c), (f) This statement is being filed jointly by
Fortress Brookdale Acquisition LLC ("FBA"), Fortress Registered
Investment Trust, a Delaware business trust ("FRIT"), Fortress
Investment Fund LLC, a Delaware limited liability company ("FIF"),
Fortress Fund MM LLC, a Delaware limited liability company ("FFMM"),
Fortress Investment Group LLC, a Delaware limited liability company
("FIG"), and Fortress Investment Holdings LLC, a Delaware limited
liability company ("FIH"; together with FBA, FRIT, FIF, FFMM, and
FIG, collectively, the "Reporting Persons"; individually, a
"Reporting Person"). The business address of each of the Reporting
Persons is 1301 Avenue of the Americas, New York, New York 10019. The
principal business of each Reporting Person is real estate-related
investments.
Set forth in Annex A attached hereto is a listing of the
director and the executive officers of FIG, and the managers and
members of FIH (collectively, the "Covered Persons"), and the
business address and present principal occupation or employment of
each of the Covered Persons, and is incorporated herein by reference.
Each of the Covered Persons is a United States citizen.
(d) - (e) None of the Reporting Persons, or, to the best of
their knowledge, the Covered Persons has, during the past five years,
(i) been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (ii) been party to a civil
proceeding of a judicial or administrative body of competent
jurisdiction as a result of which any of them is or was subject to a
judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state
securities laws or finding a violation in respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The total amount of funds required to purchase the shares of
Common Stock to be beneficially owned by FRIT, as described in Item 5
below, was $60,065,250 (inclusive of the consideration paid for
75,000 shares issued after April 10, 2000 pursuant to exercise of
stock options and for the Option Supplement (as defined in the Stock
Purchase Agreement) in accordance with the terms of the Stock
Purchase Agreement.
FBA obtained the funds to purchase the shares of Common Stock
reported in Item 5 below from a capital contribution made to FBA's
working capital by FIF.
ITEM 4. PURPOSE OF TRANSACTION.
FRIT, through FBA, an entity controlled by FRIT, acquired the
shares of Common Stock reported in Item 5 below for investment
purposes. FRIT views such shares of Common Stock as an attractive
investment opportunity at this time.
On April 20, 2000, FRIT entered into a Stock Purchase Agreement
(the "Stock Purchase Agreement") with the Issuer, Mr. Michael W.
Reschke ("Reschke"), The Prime Group, Inc. ("PGI"), Prime Group II,
L.P. ("PGII"), Prime Group VI, L.P. ("PGVI"), and PGLP, Inc. ("PGLP";
together with Reschke, PGI, PGII, and PGVI, collectively the
"Seller"), whereby the Seller agreed to sell to Fortress (i)
3,916,850 shares of Common Stock beneficially owned by the Seller
(the "Prime Shares"), (ii) 12,500 shares of Common Stock subject to
an option to purchase granted to Blackacre Bridge Capital, LLC by PGI
(the "Blackacre Shares"), (iii) 50,000 shares of Common Stock subject
to vested options to purchase granted to Reschke by the Issuer (the
"Reschke Option Shares") and (iv) 25,000 shares of Common Stock
subject to non-vested options to purchase granted to Reschke by the
Issuer (the "Non-Vested Options"), if Reschke is permitted to
exercise such Non-Vested Options. Completion of the sale is subject
to certain customary closing conditions, including satisfaction of
the applicable requirements of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"). In addition,
the conditions to the sale include Reschke's resignation from the
Issuer's board of directors and the election of two of FRIT's
designees to the Issuer's board to fill the vacancy created by
Reschke's resignation and to fill the currently existing vacancy on
the board. A copy of the Stock Purchase Agreement is attached hereto
as Exhibit 1.1, and is incorporated herein by reference.
FRIT also entered into a Standstill Agreement by and between it
and the Issuer, dated as of April 20, 2000 (the "Standstill
Agreement"). The Standstill Agreement provides that FRIT may not
acquire during its term additional shares of Common Stock or engage
in other activity designed to acquire control of the Issuer, except
in the context of a cash tender offer for all the shares of Common
Stock at not less than $15 per share, which tender offer cannot occur
without the board's consent prior to July 5, 2000. The Standstill
Agreement terminates after the earlier of two years or such time as
FRIT beneficially own a majority of the Issuer's Common Stock. A copy
of the Standstill Agreement is attached hereto as Exhibit 1.2, and is
incorporated herein by reference.
FRIT entered into an Amendment to the Stock Purchase Agreement,
dated as of May 17, 2000 (the "Amendment"), to assign to FBA its
rights and obligations it may have under the Agreement and to amend
certain terms set forth in the Agreement (the Stock Purchase Agreement
as amended by the Amendment, the "Amended Stock Purchase Agreement").
Under the Amendment, FBA agreed to be bound by the terms of the
Standstill Agreement as well as the Stock Purchase Agreement.
The sale and transfer of the shares of Common Stock by the
Seller to FBA took place on May 18, 2000. Pursuant to the Amended
Stock Purchase Agreement, FBA paid the purchase price in the amount
of: (i) $57,752,750 (full payment of the purchase price for the Prime
Shares minus a $1,000,000 deposit paid on April 24, 2000); (ii)
$150,000 for the Blackacre Shares plus $37,500 for the Option
Supplement (as defined in the Amended Stock Purchase Agreement);
(iii) $750,000 for the Reschke Option Shares; and (iv) $375,000 for
the shares issued pursuant to the Non-Vested Options.
Subject to the terms and conditions set forth in the
Standstill Agreement and depending upon prevailing market conditions,
FBA, by itself or through its affiliates, currently intends to offer
to acquire all outstanding shares of Common Stock by a tender offer
and to acquire any balance of the equity interest of the Company
through a merger of FBA or its affiliate with and into the Company.
FBA (or its affiliate, as the case may be) currently intends to vote
all of the shares of Common Stock that it may acquire pursuant to the
Stock Purchase Agreement and in the subsequent tender offer in favor
of the Merger.
Notwithstanding the foregoing, subject to the terms and
restrictions contained in the Standstill Agreement, market conditions
and other factors, FBA and its controlling persons and affiliates may
acquire or dispose of shares of Common Stock from time to time in
future open market, privately negotiated or other transactions, or
otherwise maintain its holdings at current levels, may enter into
agreements with third parties relating to acquisitions of securities
issued or to be issued by the Issuer (or depositions thereof), or may
effect other similar agreements or transactions.
Except as set forth above, each Reporting Person has no present
plans or intentions which would result in or relate to any of the
transactions described in subparagraphs (a) through (j) of Item 4 of
Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) - (b) For the reason set forth below, each of the Reporting
Persons may be deemed to beneficially own 4,004,350 shares of Common
Stock (inclusive of 50,000 Reschke Option Shares and 25,000 shares of
Common Stock issued under Non-Vested Options (All capitalized terms
are defined in the Stock Purchase Agreement attached hereto as
Exhibit 1.1.)) by virtue of FRIT's ability to acquire such shares
pursuant to the Stock Purchase Agreement. Each of FRIT, FIF,
FFMM, FIG and FIH does not directly own any securities of the Issuer
pursuant to the Amended Stock Purchase Agreement. However, (i) FRIT
has the ability to direct the management of FBA's businesses and
affairs as the sole member of FBA; (ii) FIF has the ability to direct
the management of FRIT's business and affairs as the holder of all
issued and outstanding shares of beneficial interest of FRIT; (iii)
FFMM has the ability to direct the management of FIF's business and
affairs as the managing member of FIF; (iv) FIG has the ability to
direct the management of FFMM's business and affairs as the managing
member of FFMM, and (v) FIH has the ability to direct the management
of FIG's business and affairs as the sole member of FIG.
With respect to such shares of Common Stock, (i) none of the
Reporting Persons has the sole power to vote or to direct the vote,
or to dispose or to direct the disposition, of such shares; and (ii)
each of the Reporting Persons has the shared power to vote or to
direct the vote, or to dispose or to direct the disposition of such
shares. As a result of acquisition of such shares, FBA controls 40.3%
of the outstanding voting capital stock of the Issuer. The purchase
price for all such shares acquired by FBA is $60,065,250.
None of the Covered Persons directly owns any securities of the
Issuer. However, by reason of their status as managers or executive
officers, or members of the Reporting Persons, Covered Persons may be
deemed to be the beneficial owners of the shares of Common Stock
owned directly or otherwise beneficially by such Reporting Persons.
The Reporting Persons have been advised that each of the Covered
Persons disclaims beneficial ownership of the shares of Common Stock
from time to time owned directly or otherwise beneficially by such
Reporting Persons.
(c) With respect to transactions in shares of Common Stock that
were effected within the past 60 days, please see Item 4 above.
(d) - (e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS, OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
See Item 4 above. Except as provided in the Stock Purchase
Agreement, the Standstill Agreement or as set forth herein, neither
any of the Reporting Persons nor, to the best of such Reporting
Persons' knowledge, any of the Covered Persons has any contracts,
arrangements, understandings or relationships (legal or otherwise),
with any person with respect to any securities of the Issuer,
including, but not limited to, transfer or voting of any securities,
finder's fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, division of profits or losses, or the
giving or withholding or proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit No. Description
1.1 Stock Purchase Agreement, dated as of April 20, 2000, by and
between Fortress Registered Investment Trust, Brookdale Living
Communities, Inc., and Michael W. Reschke, The Prime Group,
Inc., Prime Group II, L.P., Prime Group IV, L.P., and PGLP,
Inc.
1.2 Standstill Agreement, dated as of April 20, 2000, by and
between Fortress Registered Investment Trust and Brookdale
Living Communities, Inc.
1.3 Joint Filing Agreement, dated as of May 19, 2000, by and
between Fortress Brookdale Acquisition LLC, Fortress Registered
Investment Trust, a Delaware business trust, Fortress
Investment Fund LLC, a Delaware limited liability company,
Fortress Fund MM LLC, a Delaware limited liability company,
Fortress Investment Group LLC, a Delaware limited liability
company, and Fortress Investment Holdings LLC, a Delaware
limited liability company.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
May 19, 2000
FORTRESS BROOKDALE ACQUISITION LLC
By: /s/ Randal A. Nardone
-----------------------------------------------
Randal A. Nardone
as Vice President, Chief Operating Officer and
Secretary of Fortress Registered Investment
Trust, the sole member of Fortress Brookdale
Acquisition LLC
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
May 19, 2000
FORTRESS REGISTERED INVESTMENT TRUST
By: /s/ Randal A. Nardone
-----------------------------------------------
Randal A. Nardone
as Vice President, Chief Operating Officer
and Secretary
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
May 19, 2000
FORTRESS INVESTMENT FUND LLC
By: /s/ Randal A. Nardone
-----------------------------------------------
Randal A. Nardone
as Chief Operating Officer and
Secretary of Fortress Fund MM LLC,
managing member of Fortress
Investment Fund LLC
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
May 19, 2000
FORTRESS FUND MM LLC
By: /s/ Randal A. Nardone
-----------------------------------------------
Randal A. Nardone
as Chief Operating Officer and Secretary
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
May 19, 2000
FORTRESS INVESTMENT GROUP LLC
By: /s/ Randal A. Nardone
-----------------------------------------------
Randal A. Nardone
as Chief Operating Officer
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
May 19, 2000
FORTRESS INVESTMENT HOLDINGS LLC
By: /s/ Randal A. Nardone
-----------------------------------------------
Randal A. Nardone
as Manager
ANNEX A
DIRECTORS AND EXECUTIVE OFFICERS
OF FORTRESS INVESTMENT GROUP LLC
The name and principal occupation of each of the directors and
executive officers of Fortress Investment Group LLC, the managing member of
Fortress Fund MM LLC, are listed below. The principal business address of
each of the directors and executive officers of Fortress Registered
Investment Trust is 1301 Avenue of the Americas, New York, NY 10019.
NAME PRINCIPAL OCCUPATION
- ------------------------------------------------------------------------------
Wesley R. Edens Chief Executive Officer of Fortress Investment
Group LLC
Robert I. Kauffman President of Fortress Investment Group LLC
Randal A. Nardone Chief Operating Officer of Fortress Investment
Group LLC
Erik P. Nygaard Chief Information Officer and Treasurer of
Fortress Investment Group LLC
Gregory F. Hughes Chief Financial Officer of Fortress Investment
Group LLC
MEMBERS AND MANAGERS
OF FORTRESS INVESTMENT HOLDINGS LLC
The name and principal occupation of each of the members and managers
of Fortress Investment Holdings LLC, the managing member of Fortress
Investment Group LLC, are listed below. The principal business address of
each of the members and managers of Fortress Registered Investment Trust is
1301 Avenue of the Americas, New York, NY 10019.
NAME PRINCIPAL OCCUPATION
- ------------------------------------------------------------------------------
Wesley R. Edens Chief Executive Officer of Fortress Investment
Group LLC
Robert I. Kauffman President of Fortress Investment Group LLC
Randal A. Nardone Chief Operating Officer of Fortress Investment
Group LLC
Erik P. Nygaard Chief Information Officer and Treasurer of
Fortress Investment Group LLC
EXHIBIT 1.1
STOCK PURCHASE AGREEMENT
by and among
Fortress Registered Investment Trust
and
Brookdale Living Communities, Inc.
and
Michael W. Reschke
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"), Mr. Michael W. Reschke ("Reschke"),
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 Reschke 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, Reschke shall exercise options for 50,000
shares of the Common Stock ("Reschke Option Shares"), which are vested and
exercisable as of the date hereof, and sell all such Reschke Option Shares
to the Purchaser at the Closing (as defined below) for Fifteen Dollars
($15) per share. If Reschke is permitted to exercise options for 25,000
shares of the Common Stock, which will vest on May 7, 2000 (the "Non-Vested
Options"), Reschke 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 Reschke 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, Meagher & Flom LLP, 333 West Wacker Drive, Chicago, Illinois 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 Hart-Scott-Rodino 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 1934 (the "Exchange Act").
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 Reschke 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. Reschke shall have resigned, and
two designees of the Purchaser shall have been elected, as directors of the
Company to fill the vacancy resulting from Reschke's 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 Reschke, 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
42nd Floor
New York, New York 10019
Attention: Randal Nardone
Facsimile No.: (212)798-6133
Copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
Attention: Edmund C. Duffy, Esq.
Facsimile No.: (212)735-2000
If to Reschke/PGLP/Stockholders:
c/o The Prime Group, Inc.
77 West Wacker Drive, Suite 4200
Chicago, Illinois 60601
Attention: Michael W. Reschke
Facsimile No.: (312) 917-1511
Copy to:
c/o The Prime Group, Inc.
77 West Wacker Drive, Suite 4200
Chicago, Illinois 60601
Attention: Robert J. Rudnik, Esq.
Facsimile No.: (312) 917-8442
and to:
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
Attention: Wayne D. Boberg, Esq.
Facsimile No.: (312) 558-5700
If to the Company:
Brookdale Living Communities, Inc.
330 North Wabash, Suite 1400
Chicago, Illinois 60611
Attention: Mark J. Schulte
Facsimile No.: (312) 977-3699
Copy to:
Brookdale Living Communities, Inc.
330 North Wabash, Suite 1400
Chicago, Illinois 60611
Attention: Robert J. Rudnik
Facsimile No.: (312) 977-3769
and to:
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
Attention: Wayne D. Boberg, Esq.
Facsimile No.: (312) 558-5700
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/ Randal Nardone
__________________________
Name: Randal Nardone
Title: Chief Operating Officer
THE COMPANY:
BROOKDALE LIVING COMMUNITIES, INC.
By: /s/ Mark J. Schulte
__________________________
Name: Mark J. Schulte
Title: President and Chief Executive Officer
THE PARTIES CONSTITUTING THE
SELLER:
/s/ Michael W. Reschke
__________________________
MICHAEL W. RESCHKE
THE PRIME GROUP, INC.
By: /s/ Michael W. Reschke
__________________________
Name: Michael W. Reschke
Title: President
PRIME GROUP II, L.P.
By: PGLP, Inc., Managing General Partner
By: /s/ Michael W. Reschke
__________________________
Name: Michael W. Reschke
Title: President
PRIME GROUP VI, L.P.
By: PGLP, Inc., Managing General Partner
By: /s/ Michael W. Reschke
__________________________
Name: Michael W. Reschke
Title: President
PGLP, INC.
By: /s/ Michael W. Reschke
__________________________
Name: Michael W. Reschke
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) Michael W. Reschke 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 Kemper
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
MICHAEL W. RESCHKE,
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"), Mr.
Michael W. Reschke, PGLP, Inc., The Prime Group, Inc., Prime Group II, L.P.
and Prime Group VI, L.P. (Mr. Michael W. Reschke, 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/ Randal A. Nardone
-----------------------------------------------
Randal A. Nardone
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/ Randal A. Nardone
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Randal A. Nardone
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/ Mark J. Schulte
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Name: Mark J. Schulte
Title: President and Chief Executive Officer
THE PARTIES CONSTITUTING THE
SELLER:
/s/ Michael W. Reschke
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MICHAEL W. RESCHKE
THE PRIME GROUP, INC.
/s/ Michael W. Reschke
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Name: Michael W. Reschke
Title: President
PRIME GROUP II, L.P.
By: PGLP, Inc., Managing General Partner
/s/ Michael W. Reschke
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Name: Michael W. Reschke
Title: President
PRIME GROUP VI, L.P.
By: PGLP, Inc., Managing General Partner
/s/ Michael W. Reschke
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Name: Michael W. Reschke
Title: President
PGLP, INC.
/s/ Michael W. Reschke
--------------------------
Name: Michael W. Reschke
Title: President
EXHIBIT 1.2
STANDSTILL AGREEMENT
THIS STANDSTILL AGREEMENT (this "Standstill Agreement") dated as
of April 20, 2000, is entered into by and between Brookdale Living
Communities, Inc., a Delaware corporation (including its successors, the
"Company"), and Fortress Registered Investment Trust, a Delaware business
trust (the "Purchaser").
WHEREAS, the Purchaser wishes to acquire all of the common stock,
$0.01 par value, of the Corporation (the "Common Stock") currently owned
(including shares subject to currently outstanding options) by The Prime
Group, Inc. certain of its affiliates and Mr. Michael W. Reschke
(collectively, the "Seller") as set forth in Exhibit A (the "Prime Shares")
pursuant to the Stock Purchase Agreement by and among the Company, the
Seller, and the Purchaser (the "Stock Purchase Agreement");
WHEREAS, the Board of Directors of the Company approved the
Purchaser becoming an interested stockholder for purposes of Section 203 of
the General Corporation Law of the State of Delaware so as to eliminate any
restriction under such Section 203 on a subsequent business combination
involving the Corporation and the Purchaser (the "Section 203 Approval");
WHEREAS, as a condition to the Section 203 Approval, the Board of
Directors of the Company has required the Purchaser to execute this
Agreement on and subject to the terms and conditions set forth herein;
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 sufficiency of which are hereby acknowledged,
and intending to be legally bound, the parties hereto agree as follows:
Section 1. Standstill. (a) For a period commencing upon the
date of this Agreement and ending on May 14, 2002 (the "Expiration Day"),
neither the Purchaser, any persons controlling the Purchaser (the
"Controlling Person"), nor any of their affiliates shall (nor shall the
Controlling Person permit the Purchaser to), without the prior written
consent of the Company (without counting as a director for such purpose any
director designated by the Purchaser or the Controlling Person), directly
or indirectly:
(i) purchase, offer to purchase, agree to acquire or otherwise
acquire Beneficial Ownership (as defined below) of additional Common Stock
or any equivalents to the Common Stock (the "Common Stock Equivalents"),
except pursuant to the Stock Purchase Agreement;
(ii) except as required by law, propose to enter into, or announce or
disclose any intention to propose to enter into, directly or indirectly,
any merger or business combination involving the Company of any of its
subsidiaries or to purchase, directly or indirectly, all or substantially
all of the assets of the Company and its subsidiaries, taken as a whole;
(iii) request the Company (or its directors, officers, employees
or agents), directly or indirectly, to take any action which would require
the Company to make a public announcement regarding the possibility of (A)
a business combination or merger involving the Company or any of its
subsidiaries, on the one hand, or Purchaser or any Controlling Person, or
any affiliate, on the other hand, or (B) the sale to the Purchaser or any
Controlling Person, or any affiliate thereof of all or substantially all of
the assets of the Company and its subsidiaries, taken as a whole;
(iv) make, or in any way participate in, directly or indirectly, any
"solicitation" of "proxies" (as such terms are defined or used in
Regulation 14A of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), to vote, or seek to advise or influence any person with
respect to the voting of, any Common Stock, or become a "participant" in
any "election contest" (as such terms are used or defined in Regulation 14A
of the Exchange Act);
(v) form, join or in any way participate in a "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) or otherwise act in
concert with any person for the purpose of circumventing the provisions of
this Agreement;
(vi) nominate a slate of directors or seek to change the size of the
Board of Directors of the Company together or in connection with any other
person or group; or
(vii) challenge the legality of the foregoing restrictions;
provided that after July 5, 2000 the Purchaser or any of its affiliates may
commence a cash tender offer for not less than all shares of Common Stock
not owned by it for a price equal to the greater of $15 per share or the
price paid to the Seller pursuant to the Stock Purchase Agreement and may
acquire all shares tendered pursuant thereto (it being understood that the
foregoing restrictions shall not prohibit or limit the Purchaser from
taking any appropriate action to disclose its intentions or seeking the
support of the Board of Directors of the Company with respect to such
tender offer), and, if the Purchaser shall thereafter Beneficially Own a
majority (not including for such purposes shares owned by or acquired from
Cap Z (as hereinafter defined)) of the Common Stock, the foregoing
restrictions shall no longer be applicable. Notwithstanding the foregoing,
for the purposes of calculating the number of shares of Common Stock and/or
Common Stock Equivalents Beneficially Owned by the Purchaser, the
Controlling Person and their affiliates, there shall be excluded from such
calculation any shares owned by any institution which is controlled by the
Controlling Person as part of such institution's investment portfolio (and
not owned for the purpose of affecting control of the Company). For
purposes of this Agreement, "Beneficially Own" or "Beneficial Ownership"
means beneficial ownership determined in accordance with Rule 13d-3
promulgated under the Exchange Act, and "Fully Diluted Common Stock" means
all outstanding shares of Common Stock and all shares of Common Stock
issuable upon the conversion or exchange of all then outstanding Common
Stock Equivalents.
(b) The provisions of this Section 1 shall terminate prior to
the Expiration Day, and the Purchaser, the Controlling Person or any of
their affiliates shall be free to acquire Common Stock and/or Common Stock
Equivalents without regard to the Standstill, at and following the earliest
time that (A) any person other than the Purchaser, the Controlling Person,
Health Partners, Capital Z Partners, Ltd. (the ultimate general partner of
Health Partners, hereinafter "Cap Z") or any of their affiliates (and other
than a person acting in concert with any of the foregoing) acquires
Beneficial Ownership of Common Stock and/or Common Stock Equivalents
representing, together with any Common Stock and/or Common Stock
Equivalents already Beneficially Owned by such person and its affiliates,
at least 20% of the total Fully-Diluted Common Stock, (B) any person other
than the Purchaser, the Controlling Person or any of their affiliates
notifies in writing the Company or its Board of Directors or publicly
announces that it has acquired or has offered to acquire (including but not
limited to any offer to acquire by means of a tender offer) Beneficial
Ownership of Common Stock and/or Common Stock Equivalents representing,
together with any Common Stock and/or Common Stock Equivalents already
Beneficially Owned (as determined in accordance with Rule l3d-3 promulgated
under the Exchange Act) by such person and its affiliates, at least 20% of
the total Fully-Diluted Common Stock, (C) any person commences (or publicly
announces its intention to commence) a proxy contest pursuant to which such
person seeks to defeat or otherwise challenge the election of the designees
of the Purchaser as directors of the Company, (D) the restrictions set
forth in Article 2 "Health Partners Standstill" of the Stockholder
Agreement, dated May 14, 1999, shall be amended, modified, waived, or
otherwise terminated without the prior written consent of the Purchaser or
(E) the Stock Purchase Agreement shall have terminated without the
Purchaser or any assignee thereof having acquired shares of Common Stock
pursuant thereto.
Section 2. Representations and Warranties of the Company. The
Company hereby represents and warrants to, and agrees with, the Purchaser
as follows:
2.1 Organization and Good Standing. The Company is a
corporation duly formed, validly existing and in good standing under the
laws of the State of Delaware.
2.2 Authorization; Validity of Agreement. This Agreement
has been duly authorized, executed and delivered by the Company, and
constitutes a legal, valid and binding obligations enforceable against the
Company in accordance with its terms.
2.3 No Conflict. None of the execution and delivery of
this Agreement, and the consummation of the transaction 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 Company's Certificate of Incorporation or By-laws, or of any material
note, bond, indenture, mortgage, deed of trust, loan agreement or other
material contract, agreement, instrument, restriction, or arrangement to
which the Company is a party or by which the Company 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.
2.4 Approval of the Board. The Board of the Directors of
the Company have approved the Purchaser (or any person controlling,
controlled by or under common control with Purchaser, including any person
of which the Purchaser owns, directly or indirectly, 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.
Section 3. Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to, and agrees with, the Company
as follows:
3.1 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.
3.2 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.
3.3 No Conflict. None of the execution and delivery of
this Agreement, and the consummation of the transaction 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 Declaration of Trust and By-laws of the Purchaser, or of any note,
bond, indenture, mortgage, deed of trust, loan agreement or other 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.
Section 4. 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.
Section 5. 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.
Section 6. Binding Effect. This Agreement shall be binding upon
the parties and inure to the benefits of the successors and assigns of the
respective parties hereto.
Section 7. 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.
Section 8. 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.
Section 9. Transaction Expenses. Notwithstanding anything else
in this Agreement to the contrary, the parties hereto shall each by
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.
Section 10. 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.
Section 11. Waiver. The waiver of one breach or default
hereunder shall not constitute the waiver of any other or subsequent breach
or default.
Section 12. 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.
Section 13. 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 shares and any other items
affected by such change shall be appropriately adjusted.
Section 14. Interpretation. The words "hereof", "herein" and
"herewith" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement, and article, section, paragraph, exhibit and
schedule references are to the articles, sections, paragraphs, exhibits and
schedules of this Agreement unless otherwise specified. Whenever the words
"include", "includes" or "including" are used in this Agreement they shall
be deemed to be followed by the words "without limitation". The words
describing the singular number shall include the plural and vice versa, and
words denoting any gender shall include all genders and words denoting
natural persons shall include corporations and partnerships and vice versa.
As used in this Agreement, the term "affiliate(s)" shall have the meaning
set forth in Rule l2b-2 of the Exchange Act. As used in this Agreement,
the term "person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the parties and no presumption or burden
of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
IN WITNESS WHEREOF, the Purchaser and the Company have caused
this Agreement to be signed by their respective officers thereunto duly
authorized as of the date first written above.
FORTRESS REGISTERED
INVESTMENT TRUST
By: /s/ Randal Nardone
__________________________
Name: Randal Nardone
Title: Chief Operating Officer
BROOKDALE LIVING
COMMUNITIES, INC.
By: /s/ Mark J. Schulte
__________________________
Name: Mark J. Schulte
Title: President and Chief
Executive Officer
EXHIBIT 1.3
JOINT FILING AGREEMENT
This JOINT FILING AGREEMENT, dated as of May 19, 2000, is made
by and between Fortress Brookdale Acquisition LLC ("FBA"), Fortress
Registered Investment Trust., a Delaware business trust ("FRIT"), Fortress
Investment Fund LLC, a Delaware limited liability company ("FIF"), Fortress
Fund MM LLC, a Delaware limited liability company ("FFMM"), Fortress
Investment Group LLC, a Delaware limited liability company ("FIG"), and
Fortress Investment Holdings LLC, a Delaware limited liability company
("FIH"). FBA, FRIT, FIF, FFMM, FIG and FIH collectively referred to herein
as the "Parties" and each individually as a "Party." Pursuant to Rule
13d-1(k)(1)(iii) promulgated under the Securities Exchange Act of 1934, as
amended, the Parties hereby acknowledge and agree that Schedule 13D is
filed on behalf of each such Party and that all subsequent amendments to
the Statement on Schedule 13D shall be filed on behalf of each of the
Parties without the necessity of filing additional joint acquisition
statements. The Parties hereby acknowledge that each Party shall be
responsible for timely filing of such amendments, and for the completeness
and accuracy of the information concerning such Party contained therein,
but shall not be responsible for the completeness and accuracy of the
information concerning any other Party, except to the extent that such
Party knows or has reason to believe that such information is inaccurate.
IN WITNESS WHEREOF, the Parties hereto have executed this Joint
Filing Agreement as of the day and year first above written.
FORTRESS BROOKDALE ACQUISITION LLC
By: /s/ Randal A. Nardone
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Randal A. Nardone
as Vice President, Chief Operating Officer and
Secretary of Fortress Registered Investment
Trust, the sole member of Fortress Brookdale
Acquisition LLC
FORTRESS REGISTERED INVESTMENT TRUST
By: /s/ Randal A. Nardone
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Randal A. Nardone
as Vice President, Chief Operating
Officer and Secretary
FORTRESS INVESTMENT FUND LLC
By: /s/ Randal A. Nardone
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Randal A. Nardone
as Chief Operating Officer and
Secretary of Fortress Fund MM,
LLC, managing member of Fortress
Investment Fund, LLC
FORTRESS FUND MM LLC
By: /s/ Randal A. Nardone
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Randal A. Nardone
Chief Operating Officer and Secretary
FORTRESS INVESTMENT GROUP LLC
By: /s/ Randal A. Nardone
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Randal A. Nardone
as Chief Operating Officer
FORTRESS INVESTMENT HOLDINGS LLC
By: /s/ Randal A. Nardone
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Randal A. Nardone
as Manager
