EXHIBIT 10.3
AMENDMENT NO. 1 TO
STOCKHOLDERS AGREEMENT
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This AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT (this "Amendment"), dated as
of May 17, 2000, is entered into by and among Brookdale Living Communities, Inc.
(including its successors, the "Company"), The Prime Group, Inc., Prime Group
II, L.P., Prime Group VI, L.P., Health Partners, and Fortress Brookdale
Acquisition LLC (the "Purchaser").
RECITALS
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WHEREAS, the Company and the Holders are party to that certain Stockholders
Agreement, dated as of May 14, 1999, by and among the Company and the other
parties signatory thereto (the "Stockholders Agreement");
WHEREAS, pursuant to the Stock Purchase Agreement, dated as of April 20,
2000, by and among Fortress Registered Investment Trust ("Fortress Trust"), the
Prime Holders, Mr. Michael W. Reschke, PGLP, Inc. and the Company (the "Stock
Purchase Agreement"), the Prime Holders have agreed to sell all of the Common
Stock held by them to Fortress Trust, and Fortress Trust has assigned any rights
and obligations it may have under the Stock Purchase Agreement to the Purchaser
in accordance with Section 14 of the Stock Purchase Agreement;
WHEREAS, Section 4.1 of the Stockholders Agreement requires that, in
connection with such sale, the Prime Holders shall cause the Purchaser to agree
to take and hold the Common Stock subject to the provisions and upon the
conditions specified in the Stockholders Agreement and to become a party to the
Stockholders Agreement;
WHEREAS, it is a condition to the closing of the sale of Common Stock by
the Prime Holders to the Purchaser that the Stockholders Agreement be amended so
that the Purchaser shall be deemed to be "Prime Holders" for purposes of the
Stockholders Agreement; and
WHEREAS, for the aforementioned purposes and in accordance with Section
6.7.2 of the Stockholders Agreement, the parties hereto wish to amend the
Stockholders Agreement as set forth below.
AGREEMENTS
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NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements hereinafter contained and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used but not otherwise
defined herein shall have the meanings given to such terms in the Stockholders
Agreement.
SECTION 2. AGREEMENTS OF THE PURCHASER. Pursuant to Section 4.1 of the
Stockholders Agreement, the Purchaser hereby agrees (x) to take and hold the
Common Stock
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purchased by it from the Prime Holders subject to the provisions and upon the
conditions specified in the Stockholders Agreement and (y) that by executing
this Amendment, the Purchaser shall become a party to the Stockholders Agreement
with the same force and effect as if it had executed a counterpart signature
page thereto.
SECTION 3. AMENDMENTS. The Stockholders Agreement is hereby amended as
follows:
(i) Section 1.1 (Definitions) of the Stockholders Agreement
shall be amended by deleting the definition of "Prime" in its
entirety and inserting the definition of "Fortress" as follows:
"Fortress" means Fortress Brookdale Acquisition LLC.
(ii) Section 1.1 (Definitions) of the Stockholders Agreement
shall be amended by deleting the definition of "Prime Holders" in
its entirety and inserting the definition of "Fortress Holders" as
follows:
"Fortress Holders" means, collectively, Fortress and any
Affiliates of Fortress who own any Common Stock or Common
Stock Equivalents or any interest therein.
(iii) Any and all references to "Prime" or "Prime Holders" in the
Stockholders Agreement shall be deleted and replaced by the terms
"Fortress" and "Fortress Holders," respectively.
SECTION 4. FULL FORCE AND EFFECT. The Stockholders Agreement remains in
full force and effect in each and every respect except as amended hereby.
SECTION 5. BINDING EFFECT. This Amendment and the Stockholders
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.
SECTION 6. GOVERNING LAW. 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.
SECTION 7. DUPLICATE ORIGINALS. All parties may sign any number of
copies of this Amendment. Each signed copy shall be an original, but all of them
together shall represent the same agreement.
SECTION 8. SEVERABILITY. In case any provision in this Amendment shall
be held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and the remaining provisions shall not in any way be affected or
impaired thereby.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto duly executed this Amendment as of the
date first written above.
BROOKDALE LIVING COMMUNITIES, INC.
By: /s/ Mark J. Schulte
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Name: Mark J. Schulte
Title: President and Chief Executive
Officer
THE PRIME GROUP, INC.
By: /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
By: /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
By: /s/ Michael W. Reschke
---------------------------------------
Name: Michael W. Reschke
Title: President
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HEALTH PARTNERS
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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Paul H. Warren
Senior Vice President
FORTRESS BROOKDALE ACQUSITION LLC
By: Fortress Registered Investment Trust, its
sole member
By: /s/ Randal Nardone
------------------------------------
Name: Randal Nardone
Title: Vice President, Chief Operating
Officer and Secretary of Fortress
Registered Investment Trust
Address:
1301 Avenue of the Americas
42nd Floor
New York, New York 10019
Attention: Randal Nardone
Facsimile No. (212) 798-6133
With 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
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