FORM OF SUBSCRIPTION DOCUMENT
FOR PURCHASE OF MEMBERSHIP INTERESTS
Name of Subscriber: The Northwestern Mutual Life Insurance Company
THE OFFER AND SALE OF MEMBERSHIP INTERESTS IN FORTRESS BROOKDALE INVESTMENT
FUND LLC IS MADE SOLELY BY MEANS OF THE CONFIDENTIAL PRIVATE PLACEMENT
MEMORANDUM
FORTRESS BROOKDALE INVESTMENT FUND LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
SUBSCRIPTION DOCUMENTS
FOR
MEMBERSHIP INTERESTS
THIS SUBSCRIPTION PACKAGE CONTAINS:
INSTRUCTIONS TO INVESTORS (P. A-1)
CONFIDENTIAL INVESTOR QUESTIONNAIRE (P. B-1 TO B-3)
SUBSCRIPTION AGREEMENT (P. C-1 TO C-10)
SIGNATURE PAGE (P. D-1)
MEMBERSHIP INTERESTS IN
FORTRESS BROOKDALE INVESTMENT FUND LLC
(THE "MEMBERSHIP INTERESTS")
INSTRUCTIONS TO INVESTORS
AFTER YOU HAVE CAREFULLY REVIEWED THE CONFIDENTIAL PRIVATE PLACEMENT
MEMORANDUM AND HAVE DECIDED TO SUBSCRIBE FOR AND PURCHASE INTERESTS, PLEASE
OBSERVE THE FOLLOWING INSTRUCTIONS (CAPITALIZED TERMS NOT DEFINED HEREIN
HAVE THE SAME MEANINGS AS IN THE CONFIDENTIAL PRIVATE PLACEMENT MEMORANDUM:
Purchase Procedure:
Item A. Confidential Investor An authorized officer, partner, trustee
Questionnaire or individual must complete the
Questionnaire and sign on page B-3.
Item B. Subscription Agreement Read the Subscription Agreement in
its entirety and make the
representations contained therein and
agree to its terms by executing the
Signature Page.
Item C. Signature Page Complete the Signature Page by
indicating the aggregate dollar
amount of the Subscriber's Commitment
and signing the signature page.
Deliver these completed Fortress Brookdale Investment Fund LLC
subscription documents c/o FIG Advisors LLC their entirety to
1301 Avenue of the Americas
New York, New York 10019
Attn: Mr. Randal A. Nardone
ALL INFORMATION SUPPLIED IN THE SUBSCRIPTION DOCUMENTS MUST BE TYPED OR
PRINTED IN INK.
FORTRESS BROOKDALE INVESTMENT FUND LLC
CONFIDENTIAL INVESTOR QUESTIONNAIRE
1. Name of Subscriber The Northwestern Mutual Life Insurance Company
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Address of Principal Office (including Zip Code) 720 E. Wisconsin Avenue,
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Milwaukee, WI 53202
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Telephone No. (414) 665-2673
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Telecopy No. (414) 299-1557
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Type of entity (e.g., corporation, trust, limited partnership, general
partnership, real estate investment trust)
Corporation
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Date of Formation or Incorporation March 2, 1857
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Jurisdiction of Formation or Incorporation Wisconsin
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U.S. Taxpayer Identification Number (if any) 39-0509570
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2. Each Subscriber must initial at least one of the following statements.
__ (a) Subscriber certifies that it is a bank as defined in Section 3(a)(2)
of the Securities Act of 1933, as amended (the "Securities Act") or a
savings and loan association or other institution as defined in
Section 3(a)(5) of the Securities Act, whether acting in its
individual or fiduciary capacity.
__ (b) Subscriber certifies that it is a broker-dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934.
X (c) The Subscriber certifies that it is an insurance company as
-- defined in Section 2(13) of the Securities Act.
__ (d)The Subscriber certifies that it is an investment company registered
under the Investment Company Act of 1940 (the "1940 Act") or a
business development company as defined in Section 2(a)(48) of the
1940 Act or a Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958.
__ (e)The Subscriber certifies that it is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income Security Act
of 1974 ("ERISA") and either (i) whose investment decisions are made
by a plan fiduciary, as defined in Section 3(21) of ERISA, which is
either a bank, savings and loan association, insurance company or
registered investment advisor or (ii) with total assets in excess of
$5,000,000 or a self-directed employee benefit plan whose investment
decisions are made solely by persons that are "Accredited Investors"
as defined in the Securities Act.
__ (f)The Subscriber certifies that it is a corporation, partnership,
Massachusetts or similar business trust or organization described in
Section 501(c)(3) of the Internal Revenue Code or other entity and
has a net worth of at least five times the aggregate Subscription
Commitment subscribed for or was not formed and is not being utilized
solely for the specific purpose of acquiring the Membership Interests
offered, with total assets in excess of $5,000,000.
__ (g)The Subscriber certifies that it is a plan established and maintained
by a state, its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions, for the
benefit of its employees, with total assets in excess of $5,000,000.
__ (h)The Subscriber certifies that it is an institutional investor that is
a qualified institutional buyer, within the meaning of Rule 144A
under the Securities Act ("QIB").
__ (i)The Subscriber certifies that it is an institutional accredited
investor meeting the requirements of Rule 501(a)(1), (2), (3) or (7)
of Regulation D ("Regulation D") under the Securities Act that is not
a QIB.
__ (j)The subscriber certifies that it is not a "U.S. Person" within the
meaning of Regulation S promulgated under the Securities Act.
3. Each Subscriber must provide the following information:
(A) Corporations MUST provide the articles of incorporation, by-laws (or
other organizational documents as may be applicable under the laws of the
jurisdiction where such corporations are organized) and corporate
resolution or other evidence of the due authorization of the purchase of
the Membership Interest and the authorization of the person(s) signing the
subscription documents to do so. All the documents must be certified by the
Secretary or Assistant Secretary of the corporation (or such other officer
of the Corporation as may be authorized under applicable laws) as being
true and correct copies thereof and in full force and effect.
(B) Partnerships MUST provide a copy of the partnership agreement showing
the date of formation and giving evidence of the authority of the person(s)
signing the subscription documents to do so.
(C) Trusts MUST provide a copy of the trust agreement showing the date of
formation and giving evidence of the authority of the person(s) signing the
subscription documents to do so.
The Subscriber understands that Fortress Brookdale Investment Fund
LLC (the "Fund"), will be relying on the accuracy and completeness of the
representations made above as well as the Subscriber's responses to the
foregoing questions contained in the confidential Investor Questionnaire.
The Subscriber understands that a false representation may constitute a
violation of law, and that any person who suffers damage as a result of a
false representation may have a claim for damages as a result of such false
representation.
ALL INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY BY THE FUND. However, the Subscriber agrees that the Fund
may present this questionnaire to such parties as they deem appropriate if
called upon to establish that the proposed offer and sale of the Membership
Interests is exempt from registration under the Securities Act or meets the
requirements of applicable state securities laws or any other applicable
law or regulation or to establish that the Confidential Private Placement
Memorandum (as amended, supplemented or modified, the "Memorandum"),
pursuant to which the Membership Interests are being offered is exempt from
the registration requirements of the Securities Act, as the case may be.
The Subscriber represents and warrants to the Fund, the Advisor and
its Affiliates as follows:
(i) The representations made above and the answers to the questions
herein are complete and correct and may he relied upon by the Fund, the
Advisor and its Affiliates;
(ii) The Subscriber (if not a natural person) has been duly formed
and is validly existing, with full power and authority to invest in the
Fund;
(iii) The Subscriber's Subscription Agreement and Signature Page have
been duly and validly authorized, executed and delivered by the Subscriber
and, upon the issuance of Membership Interests to the Subscriber, will
constitute the valid, binding and enforceable agreements of the Subscriber;
and
(iv) The Subscriber will notify the Fund and the Advisor immediately
of any material change in any representation made above or any statement
made herein that occurs prior to the closing of the sale of the Membership
Interests in the Fund and will promptly notify the Fund and the Advisor of
any material change in any representation more above or any statement made
herein that occurs subsequent to the closing of the sale of Membership
Interests in the Fund.
The Northwestern Mutual Life Insurance Company
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Print Name of Subscriber
By
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Signature of Officer, Trustee, Partner or Individual
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Print Name of Officer, Trustee or Partner (as applicable)
Title:
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Dated: September____, 2000
SUBSCRIPTION AGREEMENT FOR
FORTRESS BROOKDALE INVESTMENT FUND LLC
Fortress Brookdale Investment Fund LLC
c/o FIG Advisors LLC
1301 Avenue of the Americas
New York, New York 10019
Attn: Mr. Randal A. Nardone
Ladies and Gentlemen:
The undersigned hereby subscribes for the percentage of membership
interests (the "Membership Interests") in Fortress Brookdale Investment
Fund LLC, a Delaware limited liability company (the "Fund"), set forth on
the signature page hereof for the Commitment amount set forth thereon
(minimum subscription $500,000 of Commitments, subject to the discretion of
FIG Advisors LLC ("Advisor") and the Fund to accept subscriptions for less
$500,000 of Commitments). Terms used but not defined herein have the same
meanings ascribed thereto in the Confidential Private Placement Memorandum
(as the same has been amended, supplemented or modified from time to time,
the "Memorandum"), pursuant to which the Membership Interests of the Fund
are being offered. Capitalized terms used but not otherwise defined herein
have the meanings ascribed thereto in the Memorandum.
1. The undersigned hereby agrees that this subscription is and shall
be revocable until accepted by the Fund. The undersigned has been furnished
with and has carefully read the Memorandum. The undersigned is aware that:
(i) The Fund has only recently been formed and has no financial or
operating history.
(ii) The Fund reserves the unrestricted right to reject any
subscription, in whole or in part, and no subscription will be binding
unless and until accepted by the Fund. Subscriptions need not be accepted
in the order received.
(iii) There are substantial risks incident to the purchase of
Membership Interests, as summarized under "Investment Considerations and
Risk Factors" and in other portions of the Memorandum.
(iv) The Advisor will receive compensation in the form of a special
allocation in connection with the Fund's operations. Affiliates of the
Advisor may now be (and in the future may continue to be) engaged in
businesses that are competitive with that of the Fund. The undersigned
agrees and consents to these activities even though there may be conflicts
of interest inherent in such activities and even though the undersigned
will have no interest in such activities, subject to any restrictions with
respect to such activities as set forth in the Memorandum.
(v) No U.S. federal or state government or foreign agency has passed
upon or endorsed the Membership Interests or made any finding or
determination as to the fairness of this investment.
(vi) The discussion of the tax consequences arising from an
investment in the Fund set forth in the Memorandum is general in nature,
and the tax consequences to the undersigned of an investment in the Fund
may depend on its circumstances. Neither the Fund, the Advisor nor any
their respective Affiliates or consultants, assumes any responsibility for
the tax consequences to the undersigned of any investment in the Fund. The
undersigned should consult its own tax advisors regarding such issues.
(vii) There can be no assurance that the Internal Revenue Code of
1986, as amended (the "Code") or the regulations thereunder will not be
amended in such a manner as to materially and adversely affect the tax
treatment of the Fund or its members. There can be no assurance that any
applicable tax treaty or foreign tax law will not be amended or changed in
such a manner is to deprive the holders of Membership Interest of some or
all of the tax benefits they might now receive.
(viii)The undersigned is subscribing for and, upon acceptance by the
Fund, will become obligated to purchase, all of the Membership Interests
subscribed for as indicated on the undersigned's Signature Page attached
hereto.
(ix) Each Subscriber must contribute all of its Commitment on the
date of the Initial Closing.
(x) Should the undersigned default in its obligation to make any
required contribution of any portion of its Commitments, the undersigned
agrees that the Fund may exercise any remedy available to it at law or in
equity. The undersigned agrees that, not in limitation of any of the Fund's
remedies, interest will accrue on the portion of its Commitment which the
undersigned fails to fund, at the prime rate plus 2% per annum, up to the
highest rate permitted under law. The Fund shall also be entitled to
reimbursement from the undersigned for any and all costs and expenses
incurred by the Fund in collecting any portion of the Commitments the
undersigned fails to fund when required from the undersigned including,
without limitation, attorneys' fees and disbursements (to the extent
allowed under applicable law). Additionally, in the event of such a
default, the undersigned may be subject to the additional remedies set
forth in the Memorandum, as more particularly described in the Limited
Liability Company Agreement of the Fund (the "Fund Agreement").
(xi) The undersigned must bear the economic risk of its investment in
the Fund for an indefinite period of time since the Membership Interests
have not been registered for sale under the Securities Act and, therefore,
cannot be sold or otherwise transferred unless either they are subsequently
registered under the Securities Act or an exemption from such registration
is available, and the Membership Interests cannot be sold or otherwise
transferred unless they are registered under applicable state securities or
blue sky laws or an exemption from such registration is available. The Fund
currently has no intention of registering Membership Interests, and will be
under no obligation to do so now or in the future.
(xii) There is no established market for the Membership Interests,
none is expected to develop and the undersigned bears the risk that no
active trading market will develop. The Fund currently has no intention to
facilitate the transfer of Membership Interests.
(xiii)The undersigned's right to transfer the Membership Interests is
restricted by the terms of the Fund Agreement.
(xiv) The Membership Interests are being purchased for the
undersigned's own account for investment, and not for distribution or
resale to others. The undersigned agrees that it will only sell or
otherwise transfer the Membership Interests in compliance with the
Securities Act and other applicable laws and only (1) pursuant to Rule 144A
under the Securities Act to an institutional investor that the holder
reasonably believes is a qualified institutional buyer, within the meaning
of Rule 144A ("QIB") purchasing for its own account or a QIB purchasing for
the account of a QIB, whom the holder has informed, in each case, that the
reoffer, resale, pledge, or other transfer is being made in reliance on
Rule 144A, (2) in an offshore transaction in accordance with Rule 903 or
904 of Regulation S under the Securities Act, (3) pursuant to an exemption
from registration provided by Rule 144 under the Securities Act (if
available), subject to (a) the receipt by the Fund of a letter
substantially in the form of Schedule 1 or Schedule 2 attached hereto or
(b) the receipt by the Fund of an opinion of counsel acceptable to the Fund
that such reoffer, resale, pledge or other transfer is in compliance with
the Securities Act, or (4) to the Fund or its Affiliates. The undersigned
represents that it has adequate means of providing for its current needs
and possible personal contingencies, and that it has no need for liquidity
of this investment; (ii) the undersigned understands that all documents,
records and books pertaining to this investment have been made available
for inspection by the undersigned and the undersigned's attorney and/or
accountant and/or offeree representative, and that the books and records of
the Fund will be available on reasonably advance notice, for inspection by
investors during reasonable hours at its principal place of business; and
(iii) the undersigned understands that the Fund annually will provide
financial statements, including a balance sheet and the related statements
of income and retained earnings and changes in financial position,
accompanied by a report of an independent public accountant stating that an
audit of such financial statements has been made in accordance with
generally accepted auditing standards, stating the opinion of the
accountant in respect of the financial statements and the accounting
principles and practice reflected therein and as to the consistency of the
application of the accounting principles, and identifying any matters to
which the accountant takes exception and stating, to the extent
practicable, the effect of each such exception on such financial
statements.
(xv) The undersigned acknowledges and agrees that it is not entitled
to cancel, terminate or revoke this subscription or any agreements of the
undersigned hereunder, except as otherwise provided (i) herein, or (ii)
under applicable law, and such subscription and agreements shall survive
(x) changes in the transaction, documents and instruments described in the
Memorandum which in the aggregate are not material or which are
contemplated by the Memorandum and (y) the death, disability, incapacity,
incompetency, termination, bankruptcy, insolvency or dissolution of the
undersigned; provided, however, that if the Fund shall not have accepted
this subscription on or before the latest date on which the Fund accepts
subscriptions for Membership Interests, this subscription, all agreements
of the undersigned hereunder shall be canceled, and this Subscription
Agreement will be returned to the Investor.
2. The undersigned represents and warrants to the Advisor, its
Affiliates and the Fund that (the following representations and warranties
shall survive the closing date applicable to the undersigned):
(a) The undersigned has carefully reviewed and understands the risks
of, and other considerations relating to, a purchase of the Membership
Interests and an investment in the Fund, including the risks set forth
under "Investment Considerations and Risk Factors" in the Memorandum and
the considerations described under "Tax Considerations" in the Memorandum.
The undersigned has carefully read the Memorandum, including the exhibits
thereto.
(b) The undersigned has been furnished any materials relating to the
Fund, the offering of the Membership Interests or anything set forth in the
Memorandum that it has requested, including the Fund Agreement, and has
been afforded the opportunity to ask questions and receive answers
concerning the terms and conditions of the Offering and obtain any
additional information which the Fund or the Advisor possesses or can
acquire without unreasonable effort or expense that is necessary to verify
the accuracy of any representations or information set forth in the
Memorandum.
(c) Representatives of the Fund or the Advisor have answered all
inquiries that the undersigned has made of them concerning the Fund or any
other matters relating to the formation and proposed operation of the Fund
and the offering and sale of the Membership Interests. No statement,
printed material or inducement that is contrary to the information
contained in the Memorandum has been given or made by or on behalf of the
Fund or the Advisor to the undersigned. Other than as set forth in the
Memorandum and the Fund Agreement, the undersigned is not relying on any
other information, representation or warranty of the Fund. The undersigned
has consulted to the extent deemed appropriate by the undersigned with the
undersigned's own tax advisor as to the financial, tax, legal and related
matters concerning an investment in Membership Interests and on that basis
believes that an investment in the Membership Interests is suitable and
appropriate for the undersigned. The undersigned understands that Skadden,
Arps, Slate, Meagher & Flom LLP acts as counsel to the Fund and the Advisor
and no attorney client relationship exists with any other persons solely by
virtue of such person making an investment.
(d) The undersigned has not been furnished any offering literature
other than the Memorandum, the documents attached as exhibits thereto and
other materials that the Fund or the Advisor may have provided as
contemplated in the Memorandum or at the request of the undersigned; and
the undersigned has relied only on the information contained in the
Memorandum and such exhibits and the information furnished or made
available to the undersigned by the Fund or the Advisor as described in
subparagraph (b) above.
(e) The undersigned's ordinary business includes buying or selling
shares and debentures (whether as principal or agent) or the undersigned
has such knowledge and experience in financial and business matters that
the undersigned is capable of evaluating the merits and risks of investment
in the Fund and of making an informed investment decision.
(f) The undersigned has adequate means of providing for its current
needs and possible future contingencies, and it has no need, and
anticipates no need in the foreseeable future, to sell the Membership
Interests for which it subscribes. The undersigned is able to bear the
economic risks of this investment and, consequently, without limiting the
generality of the foregoing, it is able to hold the Membership Interests
for an indefinite period of time and has sufficient net worth to sustain a
loss of its entire investment in the Fund in the event such loss should
occur.
(g) The undersigned has no need for liquidity with respect to its
investment in the Fund and will have sufficient liquid assets to purchase
all of the Membership Interests subscribed for hereunder.
(h) Except as otherwise indicated herein, the undersigned is the sole
party in interest as to its investment in the Fund, and it is acquiring the
Membership Interests solely for investment for its own account and has no
present agreement, understanding or arrangement to subdivide, sell, assign,
transfer or otherwise dispose of all or any part of its Membership
Interests to any other person.
(i) All of the representations and information provided in the
undersigned's Confidential Investor Questionnaire, and any additional
information that the undersigned has furnished to the Fund with respect to
the undersigned's financial position are accurate and complete as of the
date of this Subscription Agreement. If there should be any material
adverse change in any such representations or information either prior or
subsequent to the issuance of the Membership Interests to the undersigned,
the undersigned will promptly furnish accurate and complete information
concerning any such material change to the Fund. The undersigned shall
furnish to the Fund any additional information that it may reasonably
request.
(j) The undersigned has not distributed the Memorandum to any other
entities and no entities other than the undersigned have used the
Memorandum.
(k) The undersigned has not been organized or reorganized for the
specific purpose of acquiring the Membership Interests. If the undersigned
is a corporation, it has enclosed with this Subscription Agreement copies
of its Articles of Incorporation, By-laws (or other organizational
documents as may be applicable under the laws of the jurisdiction where it
is organized) and the corporate resolution or other evidence of the due
authorization of the individual executing the Signature Page so to act on
behalf of the corporation, all of which have been certified by the
Secretary or an Assistant Secretary of the corporation (or such other
officer of the corporation as may be authorized under applicable law) as
being true and correct copies thereof and in full force and effect. If the
undersigned is a partnership, limited liability company or a trust, the
undersigned has enclosed with this Subscription Agreement a copy of its
partnership agreement or operating agreement (or other governing agreement)
or a copy of its declaration of trust (or other governing instrument), as
the case may be, together with evidence of the due authorization of the
individual executing the Signature Page so to act on behalf of such
partnership, limited liability company or trust, all of which have been
certified by an appropriate officer or trustee of such Subscriber. All such
documentation is complete, current and in effect as of the date hereof.
(l) Except as previously disclosed to the Fund, no Affiliate of the
undersigned has subscribed to purchase any Membership Interests.
(m) The undersigned (i) is a QIB or an institutional accredited
investor meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act that is not a QIB, (ii) has not and
will not solicit offers for, or offer or sell, the Membership Interests by
means of any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act and has not and will not engage in any directed selling
efforts (as defined in Rule 902 under the Securities Act) in the United
States in connection with the Membership Interests, (iii) is not purchasing
with a view to or for offer or sale in connection with any distribution
that would be in violation of federal or state law and (iv) will solicit
offers for the Membership Interests pursuant to Rule 144A, Section 4(2) of
the Securities Act or Regulation S, as applicable, only from, and will
offer, sell or deliver the Membership Interests only to, respectively, (A)
persons in the United States whom it reasonably believes to be QIBs, (B)
institutional accredited investors meeting the requirements of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act that
are not QIBs or (C) non-U.S. persons outside the United States in reliance
upon Regulation S under the Securities Act.
3. The undersigned recognizes that the sale of Membership Interests
to it will be based upon its representations and warranties set forth
above, and the undersigned agrees on demand to indemnify and to hold
harmless the Fund, the Advisor, its Affiliates and each officer, director,
stockholder, employee, affiliate and/or partner of and of the foregoing,
and their successors and assigns, from and against any and all loss,
damage, liability or expense, including costs and attorneys' fees (to the
extent allowed under applicable law), to which they may be put or which
they may incur by reason of, or in connection with, any misrepresentation
made by the undersigned in this Subscription Agreement or in any other
subscription document delivered herewith, any breach by the undersigned of
warranties and/or any failure by the undersigned to fulfill any covenants
or agreements set forth in this Subscription Agreement or in the other
subscription documents or arising out of the sale or distribution of any
Membership Interests by it in violation of the Securities Act or any
applicable state securities or blue sky 1aws or the securities laws of any
applicable jurisdiction. All representations, warranties and covenants and
the indemnification contained in this Subscription Agreement and in the
other subscription documents shall survive the acceptance of this
subscription and issuance of the Membership Interests to the undersigned.
4. The undersigned certifies, under penalties of fraud, (i) that the
U.S. taxpayer identification number, if any, shown on the Confidential
Purchaser Questionnaire is true, correct and complete and (ii) that the
undersigned, if and to the extent the undersigned is subject to taxation in
the U.S., is not subject to backup withholding either because the
undersigned has not been notified that it is subject to backup withholding
as a result of a failure to report all interest or dividends, or the
Internal Revenue Service ("IRS") has notified the undersigned that it is no
longer subject to backup withholding. NOTE: If you have been notified by
the IRS that you are subject to backup withholding of your taxable interest
and dividends because you have under-reported interest or dividends and you
have not received a notice from the IRS that backup withholding has
terminated, you should strike the underlined portion of the preceding
sentence.
5. The undersigned understands and agrees that the following
restrictions and limitations are applicable to its purchase and any resale
or other transfer it may make of the Membership Interests:
(a) The Membership Interests may only be sold or otherwise
transferred in compliance with the Securities Act and other applicable laws
and only (1) pursuant to Rule 144A under the Securities Act to an
institutional investor that the holder reasonably believes is a QIB
purchasing for its own account or a QIB purchasing for the account of a
QIB, whom the holder has informed, in each case, that the reoffer, resale,
pledge, or other transfer is being made in reliance on Rule 144A, (2) in an
offshore jurisdiction in accordance with Rule 903 or 904 of Regulation S
under the Securities Act, (3) pursuant to an exemption from registration
provided by Rule 144 under the Securities Act (if available), subject to
(a) the receipt by the Fund of a letter substantially in the form of
Schedule 1 or Schedule 2 attached hereto or (b) the receipt by the Fund of
an opinion of counsel acceptable to the Fund that such reoffer, resale,
pledge or other transfer is in compliance with the Securities Act, or (4)
to the Fund or its Affiliates.
(b) Each Member will be required, upon demand, to disclose to the
Fund in writing such information with respect to direct and indirect
ownership of the Membership Interests as the Fund deems necessary to comply
with provisions of the Code applicable to the Fund or with the requirements
of any other appropriate authority.
(c) Although it is intended that the Membership Interests will be
uncertificated, and no plan exists to cause such Membership Interests to be
certificated, should the Membership Interests become certificated a legend
in substantially the following form will be placed on any certificate(s)
evidencing the Membership Interests:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), NOR IS SUCH REGISTRATION CONTEMPLATED.
BY ITS ACCEPTANCE OF THIS CERTIFICATE THE HOLDER HEREOF IS DEEMED TO
REPRESENT TO FORTRESS BROOKDALE INVESTMENT FUND LLC (THE "COMPANY"),
THAT (i) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (WITHIN THE MEANING
OF RULE 144A UNDER THE ACT) UNDER SECTION 4(2) OF THE ACT OR (ii) IT
IS AN "INSTITUTIONAL ACCREDITED INVESTOR" AS DEFINED IN RULE 501 OF
REGULATION D PROMULGATED UNDER THE ACT MEETING THE REQUIREMENTS OF
RULE 501(a)(1), (2), (3) OR (7) OR (iii) THAT IT IS A NON "U.S.
PERSON" AS DEFINED IN REGULATION S, AS PROMULGATED UNDER THE ACT AND
THAT IT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT (AND NOT FOR
THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH
OTHERS ALSO ARE ACCREDITED INVESTORS OR NON U.S. PERSONS; UNLESS THE
HOLDER IS A BANK ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT AND
NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH THE
PUBLIC DISTRIBUTION HEREOF.
SUCH SECURITIES MAY ONLY BE SOLD OR OTHERWISE TRANSFERRED IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY
(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A
("QIB") PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE
ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT
THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (3)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO (A) THE RECEIPT BY THE
FUND OF A LETTER SUBSTANTIALLY IN THE FORM OF SCHEDULE 1 OR SCHEDULE
2 TO THE SUBSCRIPTION AGREEMENT OR (B) THE RECEIPT BY THE FUND OF AN
OPINION OF COUNSEL ACCEPTABLE TO THE FUND THAT SUCH REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR
(4) TO THE FUND OR ITS AFFILIATES.
6. The undersigned is delivering with this Subscription Agreement (i)
a fully executed Signature Page and (ii) a completed Confidential Investor
Questionnaire. The undersigned agrees to provide any additional documents
and information the Fund or the Advisor reasonably requests.
7. The undersigned agrees to purchase up to the number of Membership
Interests subscribed for as indicated on the Signature Page hereof in
amounts and at times designated by the Fund in the manner and upon the
terms and conditions set forth in the Memorandum.
8. The undersigned agrees to fund any capital commitment required to
be funded at the closing of its purchase of Membership Interests of the
Fund (i) by wire transfer, in lawful money of the United States of America
in federal or other immediately available funds (or by such other means as
may be agreed upon by the Fund), to such bank account of the Fund as it
shall designate by two days' prior notice to the undersigned for its credit
no later than 12:00 noon, New York City time, on such designated date or
(ii) by delivery of a certified or bank check payable to the order of the
Fund in lawful money of the United States of America and delivered to the
Fund by 12:00 noon, New York City time, on such designated date.
9. The undersigned understands that it may revoke its subscription by
delivery of notice to the Fund prior to the acceptance of the undersigned's
subscription by the Fund.
10. The undersigned understands that this Subscription Agreement may
not be assigned without the prior written consent of the Fund, which
consent may be withheld for any reason or no reason within the sole
discretion of the Fund.
11. This Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without reference to
such State's principles of conflicts of laws.
12. ANY CLAIM, CONTROVERSY, DISPUTE OR DEADLOCK ARISING UNDER THIS
AGREEMENT (COLLECTIVELY, A "DISPUTE") SHALL BE SETTLED BY ARBITRATION
ADMINISTERED UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION
("AAA") IN NEW YORK, NEW YORK. ANY ARBITRATION AND AWARD OF THE
ARBITRATORS, OR A MAJORITY OF THEM, SHALL BE FINAL AND THE JUDGMENT UPON
THE AWARD RENDERED MAY BE ENTERED IN ANY STATE OR FEDERAL COURT HAVING
JURISDICTION. NO PUNITIVE DAMAGES ARE TO BE AWARDED. ANY DISPUTE SHALL BE
HEARD BY THREE ARBITRATORS OF WHICH EACH PARTY SHALL SELECT ONE WITHIN 10
DAYS OF THE DEMAND FOR ARBITRATION. THE TWO PARTY-APPOINTED ARBITRATORS
SHALL SELECT A THIRD ARBITRATOR TO SERVE AS CHAIR OF THE TRIBUNAL WITHIN 10
DAYS OF THE SELECTION OF THE SECOND ARBITRATOR. IF ANY ARBITRATOR HAS NOT
BEEN APPOINTED WITHIN THE TIME LIMITS SPECIFIED HEREIN, SUCH APPOINTMENT
SHALL BE MADE BY THE AAA UPON THE WRITTEN REQUEST OF EITHER PARTY WITHIN 10
DAYS OF THE REQUEST.
IN WITNESS WHEREOF, the undersigned executes and agrees to be bound
by this Subscription Agreement by executing the Signature Page attached
hereon on the date therein indicated.
SCHEDULE 1
[FORM OF RULE 144A TRANSFER CERTIFICATE]
[Name and Address of Transferor]
Re: Membership Interests of Fortress Brookdale Investment Fund LLC
--------------------------------------------------------------
This letter relates to % Membership Interests of Fortress Brookdale
Investment Fund LLC (the "Membership Interests") which are held by [insert
name of transferor] (the "Transferor"). [Name of transferee] (the
"Transferee") has offered to purchase the Membership Interests from the
Transferor.
In connection with such offer, and in respect of such Membership
Interests, I, [name of officer], a duly appointed [vice president] of the
Transferee do hereby certify that the Transferee is a "qualified
institutional buyer" within the meaning of Rule 144A promulgated under the
Securities Act of 1933, as amended.
Name:
Title:
Dated:
---------------------
cc: Fortress Brookdale Investment Fund LLC
c/o FIG Advisors LLC 1301 Avenue of the Americas
New York, New York 10019
Attn: Mr. Randal A. Nardone
SCHEDULE 2
[FORM OF REGULATION S TRANSFER CERTIFICATE]
[Name and Address of Transferor]
Re: Membership Interests of
Fortress Brookdale Investment Fund LLC
This letter relates to % Membership Interests of Fortress Investment
Fund LLC (the "Membership Interests") which are held by [insert name of
transferor]) (the "Transferor"). [Name of transferee] (the "Transferee")
has offered to purchase the Membership Interests from the Transferor.
In connection with such offer, and in respect of such Membership
Interests, I, [name of officer], a duly appointed [vice president] of the
Transferee do hereby certify that the Transferee is not a "U.S. Person"
within the meaning of Regulation S promulgated under the Securities Act of
1933, as awarded.
Name:
Title:
Dated:
---------------------
cc: Fortress Brookdale Investment Fund LLC
c/o FIG Advisors LLC
1301 Avenue of the Americas
New York, New York 10019 Attn:
Mr. Randal A. Nardone
SIGNATURE PAGE FOR
FORTRESS BROOKDALE INVESTMENT FUND
SUBSCRIPTION AGREEMENT
The undersigned, by executing this Signature Page, hereby swears to,
adopt and agrees to all terms, conditions, representations, warranties and
covenants contained in the Subscription Agreement included in the
Subscription Documents.
Membership Interests Subscribed for: 67 % Membership Interests
Aggregate Dollar Amount of Subscriber's Membership Interests
Commitment: $10,000,000
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this document as of the 6th day of September 2000.
The Northwestern Mutual Life Insurance Company
----------------------------------------------
Print name of subscriber
By:
--------------------------------------------
Signature of authorized representative or
individual
-----------------------------------------
Print name of authorized representative (as applicable)
-----------------------------------------
Capacity of authorized representative (as applicable)
