1
EXHIBIT 99.3
FIRST AMENDMENT TO PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT (this "Amendment") is made
and entered into as of May 31, 2000, by and among ALTERRA HEALTHCARE
CORPORATION, a Delaware corporation (the "Company"), and RDVEPCO, L.L.C., a
Michigan limited liability company, GROUP ONE INVESTORS, L.L.C., a Delaware
limited liability company and HOLIDAY RETIREMENT 2000, LLC, a Washington
limited liability company (each individually an "Original Purchaser" and,
collectively, the "Original Purchasers"), and the ELSA D. PRINCE LIVING TRUST
(the "Trust") and RDV MANOR CARE, L.L.C., a Michigan limited liability company
("RDVMC" and, together with the Trust, the "TPI-HCR Holders").
R E C I T A L S:
WHEREAS, the Company and the Original Purchasers entered into that
certain Purchase Agreement dated as of April 26, 2000 ("the Original Purchase
Agreement"), whereby the Original Purchasers agreed to purchase the
"Securities" (as such term is defined in the Original Purchase Agreement); and
WHEREAS, the Company and the Original Purchasers desire to modify and
amend the Original Purchase Agreement in certain respects, as is more
particularly described below.
NOW, THEREFORE, the parties hereto promise and agree as follows:
ARTICLE I
Definitions and References
Section 1.1. Terms Defined in the Original Purchase Agreement.
Unless the context otherwise requires or unless otherwise expressly defined
herein, the terms defined in the Original Purchase Agreement shall have the
same meanings whenever used in this Amendment.
Section 1.2. Other Defined Terms. Unless the context otherwise
requires, the following terms when used in this Amendment shall have the
meanings assigned to them in this Section 1.2.:
"Amendment" means this First Amendment to Purchase Agreement.
"Purchase Agreement" means the Original Purchase Agreement as
amended hereby.
2
ARTICLE II
Amendments to Original Purchase Agreement
Section 2.1. Identity of Parties. The first paragraph of the
Original Purchase Agreement is hereby amended (i) to add the TPI-HCR Holders as
parties; (ii) to include the TPI-HCR Holders in the definitions of "Purchaser"
and "Purchasers"; and (iii) to indicate that Group One Investors, L.L.C. is a
Delaware limited liability company, not a Michigan limited liability company.
Section 2.2. Recitals. The first and second paragraphs contained
in the Recitals section of the Original Purchase Agreement are hereby deleted
in their entirety and the following recitals substituted in lieu thereof:
Subject to the terms and conditions of this Agreement, the
Company proposes to issue and sell to the Purchasers, and the
Purchasers propose to purchase from the Company, 1,250,000 shares of
the Company's Series A 9.75% Convertible Pay-In-Kind Preferred Stock,
stated value $4.00 per share (the "Series A Stock"), $42,500,000.00
face amount of the Company's Series A 9.75% Convertible Pay-In-Kind
Debentures (the "Series A Debentures"), and a minimum of $90,426,000
face amount of the Company's Series B 9.75% Convertible Pay-In-Kind
Debentures (the "Series B Debentures"); and
Pursuant to Sections 2.2(a) and 8.2 hereof, the Company has
the option to issue up to $65,000,000.00 face amount of the Company's
Series C 9.75% Convertible Pay-In-Kind Debentures (the "Series C
Debentures", together with the Series A Debentures and the Series B
Debentures, collectively the "Debentures"); and
The Debentures and the Series A Stock to be purchased
hereunder by the Purchaser and others in accordance herewith are
sometimes referred to as the "Securities."
Section 2.3. Definitions. The following definition contained in
Article I of the Original Purchase Agreement is hereby deleted and replaced in
its entirety by the following:
"Agreement" means this agreement and all of the exhibits and
schedules thereto, each as amended from time to time.
Section 2.4. Additional Debentures. Section 2.2(a) of the Original
Purchase Agreement is hereby deleted in its entirety and the following
substituted in lieu thereof:
(a) On the terms and subject to the conditions herein set
forth, at any time after the Initial Closing Date and not later than
one hundred and eighty (180) days
2
3
after the Initial Closing Date (the "Option Period"), each Purchaser
shall have the right from time to time to purchase at the face amount
thereof from the Company a pro rata portion of Series B Debentures
having an aggregate face amount of $65,000,000 (said amount to be
reduced by the face amount of any Series C Debentures issued by the
Company pursuant to this Section 2.2(a) and the face amount of any
Debentures issued pursuant to Section 8.2 hereof) as set forth
opposite the name of each Purchaser on Schedule 2.1(a) by tendering
payment therefor to the Company; provided, however, that no Purchaser
may exercise its right to purchase Debentures pursuant hereto more
than twice without the prior consent of the Company. During the Option
Period, the Company shall have the concurrent right to issue Series C
Debentures to parties approved in advance by the Acting Purchasers,
such consent not to be unreasonably withheld, delayed or conditioned,
in an aggregate face amount of $65,000,000 (said amount to be reduced
by the face amount of Debentures acquired by Purchasers upon the
exercise of their option pursuant to this Section 2.2(a) and the face
amount of Debentures issued prior thereto pursuant to Section 8.2
hereof). Any Debentures issued pursuant to this Section 2.2(a) are
referred to herein as "Additional Debentures."
Section 2.5. Post-Closing Amendment to Shareholder Rights Plan.
Article VII of the Original Purchase Agreement is hereby amended by the
addition of the following Section 7.8:
Section 7.8. Amendment to Shareholder Rights Plan and Related
Matters. On or before September 30, 2000, Alterra shall have taken
such action as is reasonably required by the Acting Purchasers
(including without limitation, amending the Rights Plan) so that the
holders of the Series A Stock and Series B Stock will have rights and
benefits which are substantially similar and proportionate to the
rights distributed to the holders of Common Stock pursuant to the
Rights Plan and the benefits to be derived by the holders of Common
Stock with respect to such rights.
Section 2.6. TPI-HCR. Section 8.2 of the Original Purchase
Agreement is hereby deleted in its entirety and the following substituted in
lieu thereof:
Section 8.2. Offer to Remaining Holders of TPI-HCR Membership
Interests. During the one hundred eighty (180) day period following
the Initial Closing Date, the Company shall offer, to all remaining
holders of TPI-HCR Membership Interests, to exchange for any or all of
the TPI-HCR Membership Interests not then owned by the Company, Series
C Debentures in an aggregate principal amount equal to the TPI-HCR
Membership Interests Value of the TPI-HCR Membership Interests so
exchanged through the date of closing of such exchange.
Section 2.7 Permitted Purchaser Assignees. Each of the TPI-HCR
Holders shall be "Permitted Purchasers Assignees" as contemplated by Section
14.4 of the Original Purchase Agreement, shall purchase the amount of Initial
Securities set forth opposite their respective name on Schedule 2.1(a) to the
Purchase Agreement, shall convey TPI-HCR Membership
3
4
Interests to the Company pursuant to Section 8.1 of the Purchase Agreement in
payment for such Initial Securities and shall otherwise assume the obligations
of a "Purchaser" pursuant to the Purchase Agreement.
Section 2.8. Exhibits and Schedules. Exhibits A-1 (Certificate of
Designation of Series A Preferred Stock), A-2 (Certificate of Designation of
Series B Preferred Stock), B (form of Indenture) and C (Restated Bylaws)
attached to the Original Purchase Agreement are hereby deleted in their
entirety and the Exhibits A (Certificate of Designation of the Series A and B
Preferred Stock), B (form of Indenture) and C (Restated Bylaws) attached to
this Amendment are hereby substituted in lieu thereof.
Section 2.9. Disclosure Schedule. Schedules 2.1(a), 3.1(c),
3.1(k), 3.1(z) and 3.1(ee) attached to the Original Purchase Agreement are
hereby deleted in their entirety and the Schedules 2.1(a), 3.1(c), 3.1(k),
3.1(z) and 3.1(ee) attached hereto are hereby substituted in lieu thereof.
ARTICLE III
Miscellaneous
Section 3.1. Ratification of Agreements. The Original Purchase
Agreement, as hereby amended, is hereby ratified and confirmed in all respects.
Section 3.2. Governing Law. This Amendment shall be governed by
and construed in accordance the laws of the State of Michigan and any
applicable laws of the United States of America in all respects, including
construction, validity and performance.
Section 3.3. Counterparts; Fax. This Amendment may be separately
executed in counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute one
and the same Amendment. This Amendment may be validly executed by facsimile or
other electronic transmission.
[SIGNATURES FOLLOW ON NEXT PAGE]
4
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date first above written.
ALTERRA HEALTHCARE CORPORATION
By: /s/ William F. Lasky
----------------------------------------
Name: William F. Lasky
Title: Chief Executive Officer and President
RDVEPCO, L.L.C.
By: RDV Altco, L.L.C., a member
By: RDV Corporation, a member
By: /s/ Robert H. Schierbeek
----------------------------------------
Name: Robert H. Schierbeek
Title: Authorized Signatory
By: EDP Assisted Living Properties, L.L.C.,
a member
By: Elsa D. Prince Living Trust u/a dated
January 24, 1976
By: /s/ Elsa D. Prince
----------------------------------------
Name: Elsa D. Prince
Title: Trustee
GROUP ONE INVESTORS, L.L.C.
By: RDV Corporation, its manager
By: /s/ Robert H. Schierbeek
----------------------------------------
Name: Robert H. Schierbeek
Title: Authorized Signatory
HOLIDAY RETIREMENT 2000, LLC
By: /s/ Daniel R. Baty
----------------------------------------
Name: Daniel R. Baty
Title: a member
[SIGNATURES FOLLOW ON NEXT PAGE]
5
6
ELSA D. PRINCE LIVING TRUST u/a dated
January 24, 1976
By: /s/ Elsa D. Prince
----------------------------------------
Elsa D. Prince, as Trustee
RDV MANOR CARE, L.L.C.
By: RDV Corporation, its manager
By: /s/ Robert H. Schierbeek
----------------------------------------
Title:
6