Amendment No. 1 to Stockholders Agreement among Brookdale Living Communities, Inc. and Others

Summary

This amendment updates the Stockholders Agreement originally signed on May 14, 1999, among Brookdale Living Communities, Inc., The Prime Group, Inc., Prime Group II, L.P., Prime Group VI, L.P., Health Partners, and Fortress Brookdale Acquisition LLC. The amendment replaces references to "Prime Holders" with "Fortress Holders" to reflect the sale of stock from the Prime Holders to Fortress Brookdale Acquisition LLC. The Purchaser agrees to be bound by the terms of the original agreement, which otherwise remains unchanged. The amendment is governed by Delaware law.

EX-10.3 2 0002.txt 1ST AMENDMENT TO STOCKHOLDERS AGREEMENT EXHIBIT 10.3 AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT ---------------------- 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 -------- 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 ---------- 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 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] 2 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 --------------------------------------- Name: Mark J. Schulte Title: President and Chief Executive Officer 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 3 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 ---------------------------------- 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 4