OMNIBUS AGREEMENT
Exhibit
10.1
THIS OMNIBUS AGREEMENT (the “Agreement”) is entered as of the 15th day of April, 2011
(the “Effective Date”) by and among Care Investment Trust, Inc., a Maryland corporation
(“Care”), ERC Sub, L.P., a Delaware limited partnership (the “REIT Partnership”),
ERC Sub LLC, a Delaware limited liability company (the “REIT GP,” and together with Care
and the REIT Partnership, collectively, the “Care Parties”); Xxxx-Xxxxxx Xxxxx, an
individual resident of the state of Texas (“Saada”), Cambridge-Crown Atrium, LLC, a
Delaware limited liability company (“Crown Atrium”), Cambridge North Texas Holdings, LLC, a
Delaware limited liability company (“North Texas”), Cambridge-Greenville Dallas, LLC, a
Delaware limited liability company (“Greenville Dallas”), Cambridge B/R, Inc., a Louisiana
corporation (“Baton Rouge”), PMC Cambridge of Plano, Ltd., a Texas limited partnership
(“Plano”) (Saada, Crown Atrium, North Texas, Greenville Dallas, Baton Rouge and Plano, are
collectively referred to herein as the “Cambridge Limited Partners” and each, separately,
as a “Cambridge Limited Partner”); Cambridge Nassau Bay GP LLC, a Texas limited liability
company, CHMP Manager, LLC, a Texas limited liability company, 6000 Greenville, Inc., a Texas
corporation, Allen MOB, Inc., a Texas corporation, Cambridge Onalp, Inc., a Texas corporation, 0000
Xxxxxxx Xxxxx, Inc., a Texas corporation, Xxxxxxx MOB, Inc., a Texas corporation, and Cambridge
Tarrant, Inc., a Texas corporation (each, a “Cambridge Managing Owner”, and collectively,
the “Cambridge Managing Owners”); Cambridge Westgate Medical Center, L.P., a Delaware
limited partnership (“Westgate”), Cambridge Walnut Hill, L.P., a Delaware limited
partnership (“Walnut Hill”), Cambridge Xxxxxxx MOB, L.P., a Texas limited partnership
(“Xxxxxxx MOB”), Cambridge Southlake Partners, L.P., a Texas limited partnership
(“Southlake”), Cambridge Nassau Bay LP, a Texas limited partnership (“Nassau Bay”),
Cambridge Xxxxxx Medical Plaza, LLC, a Louisiana limited liability company (“Xxxxxx XX”),
Cambridge Plano Partners MOB IV, L.P., a Texas limited partnership (“Plano Partners MOB”)
and Cambridge Allen Partners, L.P., a Texas limited partnership (“Allen Partners”)
(Westgate, Walnut Hill, Xxxxxxx MOB, Southlake, Nassau Bay, Xxxxxx XX, Plano Partners MOB and Xxxxx
Partners, are collectively referred to herein as the “Cambridge Partnerships” and each
separately as a “Cambridge Partnership”). The Cambridge Limited Partners and the Cambridge
Managing Owners are sometimes collectively referred to herein as the “Cambridge Partners”,
and separately as a “Cambridge Partner”); the Cambridge Partners and the Cambridge
Partnerships are sometimes collectively referred to herein as the “Cambridge Parties”, and
the Care Parties and the Cambridge Parties are sometimes collectively referred to herein as the
“Parties,” and separately as a “Party”. Cambridge Holdings Incorporated, a
Delaware corporation (“CHI”) and the Cambridge Limited Partners are executing this
Agreement solely for the purposes of agreeing to the modification of Sections 1, 6, 7 and 12 of the
Cambridge Partnership Agreements (as defined below) in the manner set forth herein; provided,
however, that nothing in this Agreement shall be deemed to obligate CHI or any Cambridge Limited
Partner to perform any provision to be performed by the Cambridge Partnerships or the Cambridge
Managing Owners under this Agreement.
RECITALS
The Cambridge Limited Partners have heretofore assigned to the REIT Partnership 85% of the
limited partnership and membership interests in each of the Cambridge Partnerships pursuant to that
certain Contribution and Purchase Agreement dated as of December 31, 2007 (the “Contribution
Agreement”) in exchange for cash consideration, partnership units in the REIT Partnership
(“OP Units”) and certain rights to a certain escrow account (the “Escrow Account”)
held by Amegy Bank
National Association, as escrow agent (the “Escrow Agent”) pursuant to that certain Escrow
Agreement dated as of December 31, 2007 (the “Escrow Agreement”).
The Cambridge Partnerships own and operate nine (9) separate medical office buildings located
in Texas and Louisiana (collectively, the “Properties”, and separately, a
“Property”).
The Care Parties, on the one hand, and CHI, Saada and the Cambridge Partnerships, on the other
hand, together with certain other persons and entities, have been involved in litigation (the
“Partnership Litigation”) relating to certain aspects of the Cambridge Partnerships and the
Properties and the documents relating thereto.
The parties to the Partnership Litigation (collectively, the “Litigation Parties”)
have agreed to settle the Partnership Litigation and to enter into a separate settlement agreement
and mutual release simultaneously with the execution and delivery of this Agreement, a copy of
which is attached hereto as Exhibit A (the “Settlement Agreement”).
In addition to entering into the Settlement Agreement, the Care Parties and the Cambridge
Parties desire to adjust certain of the economic arrangements and other agreements among them with
respect to the Properties and to modify certain provisions of the partnership/limited liability
company agreements (the “Cambridge Partnership Agreements”) governing the Cambridge
Partnerships.
NOW, THEREFORE, in consideration of the Recitals and the mutual covenants, conditions,
representations, agreements, and waivers contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by each of the Parties,
the Parties to this Agreement, intending to be legally bound, agree as follows.
1. Settlement of Partnership Litigation. Simultaneously with the execution and delivery of
this Agreement, the Litigation Parties have executed and delivered the Settlement Agreement. The
Litigation Parties shall promptly cause the Partnership Litigation to be dismissed with prejudice
in accordance with the Settlement Agreement. The Parties understand and agree that the entering
into and performance of the provisions of this Agreement are not intended to be a payment of
damages, compensatory or otherwise, to or by any Party, and no Party shall treat the entering into
and performance of this Agreement as a payment of damages for financial or tax reporting purposes.
2. Termination of Escrow Agreement. The parties to the Escrow Agreement acknowledge that
the Escrow Agent (as defined therein) currently holds less than ten thousand dollars ($10,000) of
funds belonging to Care (the “Care Funds”) as well as outstanding OP Units pursuant to the
Escrow Agreement. The parties to the Escrow Agreement agree to terminate the Escrow Agreement as
of the Closing (as defined in Section 5 hereof), and the Escrow Agent shall deliver the remaining
Care Funds to Care at the Closing. At the Closing, the Escrow Agent shall deliver 200,000 OP Units
(the “Cambridge OP Units”) to Care, as custodian for the Cambridge Partners in proportion
to their relative ownership interests in the REIT Partnership, and Care will continue to hold the
Cambridge OP Units for the benefit of the Cambridge Partners free and clear of any liens or
encumbrances or other rights of third parties until the time the Cambridge Parties are obligated to
return the Care Equity Proceeds (defined below) pursuant to Section 8 or Section 9(r) below. For
the avoidance of doubt, the REIT Partnership shall pay to the Cambridge Partners the Priority
Return as defined in Section 1.63 of the
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Amended and Restated Agreement of Limited Partnership of the REIT Partnership (the “REIT
Partnership Agreement), but the Cambridge Partners shall no longer have the Redemption Right as
defined in Section 8.6 of the REIT Partnership Agreement, it being the intention of the Parties
that the Cambridge OP Units be ultimately delivered to the Care Parties at the applicable time
specified in Section 8 or Section 9(r). Neither Care nor the REIT GP shall take any action to
cause or permit the REIT Partnership Agreement to be amended in any manner that would have an
adverse effect on the right of the holder of the OP Units to receive the Priority Return as set
forth in the REIT Partnership Agreement. The balance of the OP Units held by the Escrow Agent
shall be delivered to the REIT Partnership and cancelled. The Cambridge Partners hereby represent
to Care that they are the lawful owners of the OP Units, free and clear of all liens, security
interests, pledges and encumbrances of any nature or type except as set forth in the Contribution
Agreement or the Escrow Agreement. Effective with the Closing, the Escrow Agreement shall become
null, void and of no further force or effect. The Parties hereby waive and forever release all
claims they might have against each other or the Escrow Agent arising out of the execution,
delivery and/or performance of the Escrow Agreement. At the Closing, the parties to the Escrow
Agreement shall enter into a separate escrow termination agreement, a copy of which is attached
hereto as Exhibit B.
3. [Reserved]
4. Issuance and Delivery of Warrant to Purchase Care Common Stock. Care shall issue and
deliver warrants (the “Warrants”) to purchase an aggregate of 300,000 fully-paid and non
assessable shares of common stock of Care, $0.001 par value per share (“Care Common Stock”), which
Warrants shall be issued and delivered in the numbers and to the persons and/or entities previously
provided to Care by written letter of instructions at least two (2) business days prior to the
Closing. The Warrants shall expire at the expiration of the term of this Agreement, shall be
exercisable at a price of $6.00 per share of Care Common Stock (the “Warrant Strike
Price”), and shall be subject to adjustment for stock splits, stock dividends, reverse stock
splits, reclassifications, reorganizations, recapitalizations and other capital changes which are
applicable to all issued and outstanding Care Common Stock. The Warrants shall be issued in the
form attached hereto as Exhibit C. The Warrants may be exercised in accordance with their
terms by the holder’s delivery of cash to Care in an amount equal to the number of Warrants being
exercised times the Warrant Strike Price (a “Cash Exercise”) or by means of a “cashless”
exercise as defined in the form of Warrant attached hereto (a “Cashless Exercise”). All
shares of Care Common Stock issuable upon a Cash Exercise or Cashless Exercise of the Warrants
shall be issued to the persons or entities previously provided to Care by written letter of
instructions at least two (2) business days prior to the Closing. Such shares of Care Common Stock
shall be issued in book-entry only form and a certificate from the transfer agent certifying to the
foregoing or such other document or instrument reasonably acceptable to Saada evidencing due
issuance and ownership of such Care Common Stock shall be delivered to the owner of such shares.
All shares of Care Common Stock issued pursuant to a Cashless Exercise of the Warrants shall be
held by Care subject to a “stop transfer” notice or transfer restriction provided to Care’s
transfer agent by Care until such time as a Cambridge Option Exercise or other event specified in
Section 8 or Section 9(r) requiring cancellation of Warrants and return of OP Units and Care Common
Stock shall occur (such period being called the “Holding Period”), at which time such
shares of Care Common Stock shall be transferred to Care as treasury stock or cancelled. During
the Holding Period, the Cambridge Parties who are the record owners of such shares of Care Common
Stock received upon the exercise of the Warrants shall have the right to vote such shares and
receive any dividend or distribution with respect to such shares as
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Care may declare and pay. The shares of Care Common Stock issued upon a Cash Exercise of the
Warrants shall be delivered to the holder of the Warrants and held by them subject to the
provisions in Article 7 of the Articles of Incorporation of Care restricting ownership of the Care
Common Stock, and a legend notifying the holder that the shares have been issued and delivered
without registration under the Securities Act of 1933, as amended, and may be sold or otherwise
transferred only upon such registration or pursuant to an exemption from registration under federal
and state securities laws. For the avoidance of doubt, all shares of Care Common Stock acquired
upon a Cash Exercise of the Warrants will not be retained by or subject to return to Care upon the
occurrence of any Cambridge Option Exercise.
5. Closing. The closing of the transactions contemplated by this Agreement (the
“Closing”) shall occur on the Effective Date or at such other time as the Parties shall
mutually agree. At the Closing, each Party shall execute and deliver such certificates, transfer
documents and other instruments as any other Party shall reasonably request for the purpose of
effecting the transactions set forth herein.
6. Release of Holdbacks and Reserves. Notwithstanding any other provision of this
Agreement or any other agreement among any of the Parties, from and after the Closing, (i) Care and
the REIT Partnership shall retain the Buyer Holdbacks (as defined in the Contribution Agreement) in
the amount of approximately $940,000 and the Cambridge Partnerships hereby release any claims to
the Buyer Holdbacks; (ii) neither Care, nor the REIT Partnership nor any of their respective
Affiliates shall have any continuing obligation to fund any tenant improvement at any of the
Properties owned by any of the Cambridge Partnerships or any other deposit or reserve account;
(iii) neither Care, nor the REIT Partnership, nor their respective Affiliates shall have any rights
to any deposit/reserve funds in accounts held by the Cambridge Partnerships or any lender, and the
Cambridge Partners shall be the sole owners of all funds in such accounts and may cause any
remaining such funds to be used for Cambridge Partnership purposes and/or distributed to the
Cambridge Partners, subject only to any restriction on the use or distribution thereof in any loan
documents to which the Cambridge Partnerships are subject; and (iv) to the extent that any such
restrictions on the use or distribution of such deposit/reserve funds owned by the Cambridge
Partners are also contained in any agreement to which any of the Care Parties or any of their
respective Affiliates are a party, including, without limitation, the Escrow Agreement, the
Contribution Agreement, any property management agreement or any partnership or operating
agreement, such restrictions are hereby waived, abandoned, released and forever discharged by the
Care Parties.
7. Interests in Cambridge Partnerships.
(a) The Parties agree that the provisions of this Section 7 and Section 8 shall supersede the
provisions of Articles 1, 6, 7, and 12 of each Cambridge Partnership Agreement in the manner set
forth below and to the extent of any conflict therewith. In addition, the provisions of Sections
7(e) and 7(f) below shall supersede Sections 4.3, 4.5 and 9.2(a)(i) of each Cambridge Partnership
Agreement (or the comparable sections, to the extent the section numbering of each Cambridge
Partnership Agreement is not identical to the others). Effective January 1, 2011, the REIT
Partnership shall be entitled to distributions and payments from the Cambridge Partnerships or
otherwise only pursuant to the terms of this Omnibus Agreement and not pursuant to any other
provision of the Cambridge Partnership Agreements. Capitalized terms in this Section 7 and
elsewhere in this Agreement, to the extent not otherwise defined in this Agreement, shall have the
meanings ascribed to such terms in the Cambridge
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Partnership Agreements. For purposes of this Agreement and the Cambridge Partnership Agreements,
the following terms shall have the following meanings:
“Affiliate” means any person or entity controlled by, controlling, or under common control
with such person or entity.
“Available Cash from Operations” shall mean net income (loss) computed in accordance with
GAAP, increased by the sum of (A) depreciation expense; (B) amortization expense; and (C) negative
adjustment to rental income due to straight-lining of rents (including any ground rents), and
decreased by the sum of (X) all reserves and escrows (exclusive of principal amortization)
(“Lender Reserves”) required by the terms of the loan agreements governing the first
mortgage loans for which the Cambridge Partnerships are the obligors and which are secured by the
Properties (the “Current CMBS Debt”); (Y) positive adjustment to rental income due to
straight-lining of rents (including any ground rents); and (Z) capital expenditures in excess of
lender reserves not exceeding $500,000.00 per year. For the avoidance of doubt, any amount that is
included in (X) above shall not also be an item of expense for purposes of computing net income
(loss) in accordance with GAAP, it being the intention of the parties that amounts not be
“double-counted” in determining Available Cash from Operations. The Cambridge Parties shall
provide to Care on a quarterly basis a statement, schedule or report reflecting the computation of
Available Cash from Operations in sufficient detail to allow Care to properly monitor compliance
with this definition. For the avoidance of doubt, principal amortization or payments on the
Current CMBS Debt and capital expenditures exceeding Lender Reserves plus $500,000 per year shall
in no respect be a charge to Available Cash from Operations.
“Available Cash from Special Events” shall mean net cash received from (1) the sale or
refinancing of any Cambridge Partnership Property, (2) the sale of any Cambridge Partnership
Interest, and (3) any Additional Capital Contribution designated by the Cambridge Parties as
Available Cash from Special Events pursuant to Section 7(f) hereof.
“Care Deemed Investment” shall mean an amount computed solely for the purpose of this
Agreement and for no other purpose, having a beginning aggregate balance as of January 1, 2011
equal to the Care Initial Deemed Investment (defined below), to which shall be added the IRR
Accrual (defined below) and from which shall be subtracted all cash distributions to the REIT
Partnership. The Care Deemed Investment shall not be a general ledger account of the Cambridge
Partnerships.
“Care Initial Deemed Investment” shall mean an amount equal to $40,000,000.
“Care Required Distribution” shall mean an amount computed on the first day of each
calendar quarter commencing January 1, 2011 equal to the lesser of (i) the amount of the Care
Initial Deemed Investment times 12.0% (which percentage shall increase by 1.0% each year beginning
on January 1, 2017) divided by four (4); or (ii) the balance of the Care Deemed Investment as of
the first day of each calendar quarter times the Targeted IRR Rate (defined below) divided by four
(4). The Parties acknowledge and agree that, although the Effective Date of this Agreement is
after January 1, 2011 and April 1, 2011, for purposes of determining the “Care Required
Distribution” this Agreement shall be deemed to have been executed and effective as of the first
day of each quarter beginning January 1, 2011.
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“IRR Accrual” shall mean an accrual made as of the IRR Accrual Date (defined below) in an
amount equal to the balance of the Care Deemed Investment from time to time multiplied by the rate
per annum equal to the Targeted IRR Rate in effect during the computation period.
“IRR Accrual Date” shall mean the day any payment is received pursuant to Section 7(c)
below or any other date when the Care Deemed Investment and/or Payout must be computed hereunder,
but in any event not less than quarterly.
“Payout” shall mean cumulative distributions to the REIT Partnership equal to the Care
Initial Deemed Investment plus a cumulative internal rate of return on the Care Initial Deemed
Investment equal to the Targeted IRR Rate as adjusted from time to time.
“Payout Date” shall mean the date on which the REIT Partnership has received the Payout.
“Senior Required Distribution” shall mean an amount equal to $875,000.00 per quarter.
“Targeted IRR Rate” shall mean, initially, 14% per annum, which rate shall increase by 1%
per annum on the first day of each calendar year commencing January 1, 2017.
(b) Maintenance of Care Deemed Investment Account. On the date of the Closing, the Cambridge
Partnerships shall establish a book-entry account solely for the purpose of computing distributions
to the Partners of such Cambridge Partnerships pursuant to this Agreement and for no other purpose.
The book-entry account shall be known as the “Care Deemed Investment Account.” The Care
Deemed Investment Account shall be credited on the date of the Closing with the Care Initial Deemed
Investment and, until the Payout Date, shall be credited on each IRR Accrual Date as provided
herein and shall be debited by cash distributions to the REIT Partnership at the time such
distributions are made. At the Payout Date, the Care Deemed Investment Account shall have been
fully distributed to the REIT Partnership and shall thereafter cease to exist. The Cambridge
Partnerships shall periodically, but not less frequently than quarterly, provide to Care an
accounting of the Care Deemed Investment Account maintained by the Cambridge Partnerships, which
shall be subject to review by Care.
(c) Distribution of Available Cash Prior To Payout Date. No later than fifteen (15) business days
following the quarterly periods ending March 31, June 30 and September 30 of each calendar year and
twenty (20) business days following the end of each calendar year, the Cambridge Partnerships shall
(i) compute the aggregate Available Cash from Operations for such Cambridge Partnerships, (ii)
recompute the Care Deemed Investment Account and (iii) within five (5) business days after such
date distribute Available Cash from Operations; provided, however, that for the quarter ended March
31, 2011, that time period shall be extended by an additional ten (10) business days. Available
Cash from Operations shall be distributed (i) first to the REIT Partnership to the extent of (A)
the aggregate Care Required Distributions accrued for all prior periods minus (B) the
amount of Care Required Distributions previously paid to the REIT Partnership (it being understood
and agreed by the Parties that the payment of the Care Required Distribution shall be in arrears,
cumulative, and payable solely out of Available Cash from Operations and/or Additional Capital
Contributions; provided, however, that in no event shall the amount of such payment in any quarter
be less than the Senior Required Distribution, regardless of whether the Available Cash from
Operations is less than the amount of the
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Senior Required Distribution); and (ii) any balance to the other Partners in such Cambridge
Partnerships. If the amount of Available Cash from Operations is insufficient to pay the Care
Required Distribution, the amount of such shortfall in excess of the Senior Required Distribution
shall accrue and be added to the Care Deemed Investment, it being understood that the Senior
Required Distribution shall be paid quarterly in all events, regardless of the amount of Available
Cash from Operations. Prior to the Payout Date, the Cambridge Partnerships shall cause all
Available Cash from Special Events to be distributed to the REIT Partnership at the closing of any
sale, refinancing, or Additional Capital Contribution (as defined in Section 7(f) hereof) resulting
in such Available Cash from Special Events out of the net proceeds of such sale, refinancing, or
Additional Capital Contribution. In the event that Available Cash from Operations or Available
Cash from Special Events is available for distribution to the REIT Partnership in an amount that
would exceed the amount necessary to achieve Payout, then only so much of the Available Cash from
Operations or Available Cash from Special Events as shall achieve Payout will be distributed to the
REIT Partnership under this paragraph (c).
(d) [Reserved]
(e) Allocation of Profits and Losses. All Profits (as defined in each Cambridge Partnership
Agreement) of each Cambridge Partnership for each Fiscal Year shall be allocated among the Partners
pro rata in accordance with all distributions to such Partners with respect to such Fiscal Year.
All Losses (as defined in each Cambridge Partnership Agreement) of each Cambridge Partnership shall
be allocated among the Partners in a manner that reflects the relative sharing of proceeds upon a
hypothetical dissolution of the Cambridge Partnership at the end of the Fiscal Year followed by a
distribution of such proceeds in accordance with the Cambridge Partnership Agreement, as modified
by this Section 7, provided that any such allocation shall have “substantial economic effect”
pursuant to the Treasury Regulations under Section 704 of the Internal Revenue Code of 1986, as
amended. For purposes of this calculation, the deemed liquidation value of all the Cambridge
Partnerships shall be not less than the balance of the Care Deemed Investment Account as of the end
of each Fiscal Year, divided by 85%. The Parties agree that for purposes of effecting this
allocation methodology, allocations of gross income shall be permitted. The allocations set forth
in this subparagraph (e) are subject to the application of the special allocation provisions set
forth in Section 6.3 of each Cambridge Partnership Agreement.
(f) Additional Contributions. The Cambridge Partners may, at any time and from time to time, make
such additional cash contributions to the capital of one (1) or more of the Cambridge Partnerships
(an “Additional Capital Contribution”) as they may, in their absolute discretion, elect to
make. Additional Capital Contributions may be designated Available Cash from Special Events and
subject to distribution in accordance with Section 7(c) above, or may be designated for use by the
Cambridge Partnership in the ownership and operation of its Property (including, without
limitation, for the purpose of making any Senior Required Distribution), in which event such
Additional Capital Contribution is not subject to distribution in accordance with Section 7(c)
above. In that regard, and for the avoidance of doubt, the Partners agree that Sections 4.5 and
9.2(a)(i) of each Cambridge Partnership Agreement (or the comparable sections, to the extent the
section numbering of each Cambridge Partnership Agreement is not identical to the others) shall
have no continuing effect.
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8. Right of Sale; Care Right of First Refusal; Cambridge Purchase Obligations.
(a) Subject to the covenants, conditions, rights and provisions set forth in this Section 8, at
any time and from time to time after the Closing, each Cambridge Partnership shall have the right
to sell or otherwise convey the Property owned by such Cambridge Partnership to a third party
(including any entity in which any Cambridge Party and/or any Affiliate of a Cambridge Party owns
not more than a fifteen percent (15%) passive interest in the nature of an investment) who shall
have made a bona fide written offer (a “Third Party Offer”) to the Cambridge Partnership.
For the avoidance of doubt, a property management relationship between a Cambridge Party or its
Affiliates and such an entity shall not result in the Cambridge ownership interest being deemed
other than “passive.” For purposes of this Section 8, a “bona fide written offer” shall be an
offer to purchase the subject Property which (A) is in writing, (B) is signed by the offeror, (C)
is addressed to the Cambridge Partnership that owns the subject Property, (D) is an offer the
Cambridge Partnership is willing to accept, (E) states a definitive purchase price for the subject
Property and a definitive closing date for the purchase, and (F) contains a representation that the
offeror is ready, willing and able, with adequate funding, to close the purchase on the closing
date specified in the offer. A third party may acquire a Property by making a Third Party Offer to
purchase all, but not less than all, of the Interests in such Cambridge Partnership, which Third
Party Offer shall contain all the other provisions and meet all the other requirements for a bona
fide written offer for a Property as set forth above in this Section 8(a). In such event, the
provisions of this Section 8 shall apply as if the Third Party Offer had been made with respect to
the purchase of the entire Property, with Care having the rights under Section 8(d) below with
respect to the purchase of the Interests of the Cambridge Partners that would accomplish the same
effect as Care’s exercise of the ROFR with respect to the Property as described below. Except for
the purchase of all, but not less than all, of the Interests in a Cambridge Partnership in the
circumstances specifically described in this Section 8, nothing in this Section 8 is intended to
modify or supersede the provisions in Article 10 of each Cambridge Partnership Agreement with
respect to the transfers of partnership interests in the Cambridge Partnerships, which provisions
shall remain in full force and effect except as modified hereby.
(b) The sales price for each such Property (or Interests with respect to such Property) shall not
be less than the amount which would be reasonably expected to generate Equity Proceeds (defined
below) to the Cambridge Partnership that owns such Property (or to the Partners of such Cambridge
Partnership in exchange for all Interests in such Cambridge Partnership, provided all, but not less
than all, of the Interests are sold in accordance with this Section 8) of not less than the
following minimum sale prices (the “Minimum Sale Price”):
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| Minimum Sale Price | ||||
| Property | (net of debt and other third party costs) | |||
Westgate |
$ | 2,491,972 | ||
PMC Dallas |
$ | 10,062,954 | ||
Southlake MOB |
$ | 2,504,596 | ||
Southlake Hospital |
$ | 7,050,148 | ||
Christus Nassau Bay |
$ | 5,651,238 | ||
PMC Baton Rouge |
$ | 2,411,996 | ||
Presbyterian Plano Center |
$ | 13,414,304 | ||
Presbyterian Xxxxx |
$ | 2,412,792 | ||
Entire Portfolio |
$ | 46,000,000 | ||
For purposes of this Agreement, the term “Equity Proceeds” means, with respect to a
Property sale, the gross sales price for a Property, less the amount of indebtedness to which the
Property is subject and less third party closing costs, and, with respect to the sale of Interests
in any Cambridge Partnership, provided all, but not less than all, of the Interests in a Cambridge
Partnership are sold, the net proceeds payable to the holders of all the Interests in such
Cambridge Partnership. If the Properties (or Interests, if applicable) of more than one (1) of the
Cambridge Partnerships are sold in a single transaction or a series of related transactions, the
Minimum Sales Price for the Property (or Interests, if applicable) of any one of the Cambridge
Partnerships may be less than the Minimum Sale Price set forth above so long as the aggregate of
the sale prices of all of the Properties of (or all of the Interests in, if applicable) the selling
Cambridge Partnerships at least equal the Minimum Sales Prices with respect to all such Properties
(and/or Interests) sold.
(c) Each of the Care Parties, for itself and each of its Affiliates agrees to timely execute and
deliver such consents, approvals, waivers, assignments, bills of sale, and other documents as may
be reasonably necessary or appropriate to consummate any such sale of any of the Properties of,
and/or Interests in, any one (1) or more of the Cambridge Partnerships.
(d) In the event that any Cambridge Partnership shall receive a Third Party Offer for the purchase
of any Property of such Cambridge Partnership or for all, but not less than all, of the Interests
in such Cambridge Partnership, within five (5) days after receiving the Third Party Offer the
Cambridge Managing Owner shall deliver a copy of the Third Party Offer to Care. During the
Acceptance Period (defined below) Care or its Affiliates shall have the absolute right after
receipt of such notice to submit to the Cambridge Managing Owner a competing offer for the
Cambridge Property that is the subject of the Third Party Offer (a “Topping Bid”), so long
as the Topping Bid is higher than that set forth in the Third Party Offer, in which case the
Topping Bid will serve as the trigger for any right of first refusal that may exist with respect to
the Cambridge Property. In addition, the receipt of the Third Party Offer by Care shall be deemed
an offer by the applicable Cambridge Partnership(s) to sell the Property to Care (the “Deemed
Offer”) for the price and on the terms set forth in the Third Party Offer. At any time from
the date of the Deemed Offer until the twentieth (20th) day (the “Acceptance
Period”) after Care’s actual receipt of a copy of the Third Party Offer, Care shall have the
right (the “ROFR”), subordinated as set forth below, to accept the Deemed Offer and enter
into a binding and enforceable contract with the selling Cambridge Partnership(s) to acquire the
Property on the terms (including the
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price and closing date) and subject to the conditions set
forth in the Third Party Offer, subject to such
amendments and modifications as the parties to the Deemed Offer may mutually agree. Care may
exercise the ROFR by delivering a written acceptance of the Deemed Offer and a signed binding and
enforceable contract containing all the provisions contained in the Third Party Offer to the
selling Cambridge Partnership(s) within the Acceptance Period. In the event Care shall exercise
the ROFR in the manner provided herein, Care may assign the right to acquire the Property to which
the ROFR applies to any affiliate. Notwithstanding the foregoing or any other provision contained
herein, the ROFR granted to Care hereunder shall be subordinated to any existing right of first
refusal with respect to a Cambridge Property that shall have been granted to any person prior to
the date of this Agreement, which rights of first refusal have been identified to Care in writing.
If Care fails to timely accept the Deemed Offer and enter into a binding and enforceable contract
with the selling Cambridge Partnership(s) prior to the expiration of the Acceptance Period, the
selling Cambridge Partnership(s) and/or Cambridge Partners, as applicable, may proceed to accept
the Third Party Offer and consummate the transaction contemplated in the Third Party Offer for the
same sales price (within a variance of not more than 5% in the aggregate Equity Proceeds but in no
event generating Equity Proceeds less than the lesser of (1) the unpaid balance in the Care Deemed
Investment Account, or (2) the aggregate Minimum Sales Price) and on substantially the same terms
as set forth in the Third Party Offer, so long as the closing of the transaction occurs by the
closing date set forth in the Third Party Offer. Notwithstanding any other provisions of this
Agreement, if the transaction pursuant to the Third Party Offer does not close by such scheduled
closing date, the provisions of this Section 8(d) shall be and remain in full force and effect.
For the avoidance of doubt, if the Third Party Offer relates to Interests rather than a Property,
the sale of Interests to the purchaser shall be treated the same as a sale of the Property for
purposes of applying the provisions of Section 7 above, and all proceeds from such sale shall be
allocated among the owners of the Interests in the same manner as if the Property had been sold and
the net proceeds from the sale deposited into the applicable Cambridge Partnership. In the event
Care shall exercise its ROFR with respect to a sale of Interests, then, absent a written agreement
to the contrary among the Parties, the contract between Care and the Cambridge Partnership shall be
for the purchase of the underlying Property and the Cambridge Partnership shall sell the Property
to Care on the same terms as would result if the Third Party Offer were converted to an offer to
purchase the Property rather than the Interests, it being the express intention of the Parties that
Care will only buy a Property and not Interests in connection with its exercise of the ROFR, absent
an express agreement to the contrary.
(e) At any time and from time to time after the Closing, (i) any Cambridge Partner, any Affiliate
of a Cambridge Partner or a group consisting of Cambridge Partners and/or Affiliates of Cambridge
Partners; (ii) any entity in which (A) any Cambridge Party, any Affiliate of a Cambridge Party, or
a group consisting of one or more Cambridge Parties and/or one or more Affiliates of Cambridge
Parties owns at least a fifteen percent (15%) interest and (B) a Cambridge Party or an Affiliate of
a Cambridge Party is the general partner or managing member; and/or (iii) any entity in connection
with a public offering in which any Cambridge Party or any Affiliate of a Cambridge Party is a
participant; (each a “Cambridge Purchaser”) may deliver to Care, with a copy to the REIT
Partnership and the REIT GP, a written notice (a “Cambridge Option Exercise”) to purchase
(x) all, but not less than all, of Care’s outstanding interests in the REIT Partnership; or (y)
all, but not less than all, of Care’s Interests in all of the Cambridge Partnerships; or (z) all of
the Properties owned by the Cambridge Partnerships (collectively, the “Cambridge Exit
Property”) which notice shall specify the Cambridge Exit Property to be acquired. In the event
of a Cambridge Option Exercise, Care, the REIT GP and any Affiliate
10
thereof shall sell, assign,
transfer, and convey to the Cambridge Purchaser, and the Cambridge
Purchaser shall purchase, at a closing date agreed upon by the Parties but not later than
forty-five (45) days after the Cambridge Option Exercise (the “Option Closing Date”), the
Cambridge Exit Property set forth in the Cambridge Option Exercise. For the avoidance of doubt,
for all purposes of this Agreement, the term Option Closing Date refers only to the date and time
on which a closing of the Cambridge Option Exercise and the sales, assignment, transfer and
conveyance of the Cambridge Exit Property actually occurs. The price for the Cambridge Exit
Property (the “Option Price”) shall be (A) the cash amount equal to the then outstanding
balance of the Care Deemed Investment Account,, plus (B)(i) $2,000,000 if the Cambridge Option
Exercise occurs on or before the first anniversary date of the Closing of this Agreement; (ii)
$4,000,000 if the Cambridge Option Exercise occurs after the first anniversary date but on or
before the second anniversary date of the Closing of this Agreement; and (iii) $5,000,000
(increased by $1,000,000 on each succeeding anniversary date) after the second anniversary date of
the Closing (the amount determined pursuant to this clause B being referred to as the “Option
Premium”); plus (C) cancellation of the Cambridge OP Units, any Care Common Stock acquired
pursuant to a Cashless Exercise of the Warrants and all unexercised Warrants then held by any of
the Cambridge Parties or their Affiliates (collectively, the “Care Equity Proceeds”). On
the Option Closing Date, each Party shall deliver to the appropriate person or entity such
documents and instruments as may be reasonably necessary or required to effect the transfer of the
Cambridge Exit Property to the Cambridge Purchaser and the cancellation of the Care Equity
Proceeds, the Care Parties shall take all such actions are may be reasonably requested by the
Cambridge Purchaser to withdraw from the Cambridge Partnerships and/or to substitute the Cambridge
Purchaser in the place of the REIT Partnership as a limited partner in the Cambridge Partnerships,
and to entirely waive, release, and abandon all rights and remedies which any of the Care Parties
or any of their respective Affiliates may have under this Agreement, the Cambridge Partnership
Agreements or otherwise with respect to the Cambridge Partnerships, including, without limitation,
all capital accounts, all rights to distributions upon dissolution of the Cambridge Partnerships
(including pursuant to Article 12 of the Cambridge Partnership Agreements, which is hereby
superseded), and all other distributable assets (including cash) of the Cambridge Partnerships from
whatever source. For avoidance of doubt, after the Option Closing Date, all distributable assets
(including cash) of the Cambridge Partnerships shall belong solely to the Cambridge Partners.
Notwithstanding any other provisions of this Agreement, if a transaction pursuant to a Cambridge
Option Exercise fails to close for any reason, the provisions of Sections 8(e) and 8(f) shall be
and continue in full force and effect.
(f) On the earlier to occur of (A) the Payout Date, or (B) June 1, 2017, the Cambridge
Partnerships shall become obligated to effect the redemption or purchase of the Cambridge Exit
Property specified by such Cambridge Purchaser. Care shall provide written notice to the Cambridge
Partnerships of the occurrence of the Payout Date or the redemption/purchase obligation as of June
1, 2017, as applicable. Within thirty (30) days after its receipt of such notice (the “Care
Redemption Date”), a Cambridge Purchaser shall acquire the Cambridge Exit Property pursuant to
a structure specified by a Cambridge Purchaser as if effecting a Cambridge Option Exercise pursuant
to Section 8(e) above for a cash price equal to the Option Price defined in Section 8(e) above.
For purposes of determining the Option Premium portion of the Option Price, all as defined in
Section 8(e) above, the earlier of the Payout Date or June 1, 2017 will be substituted for the date
of the Cambridge Option Exercise. For example, if the Payout Date occurs on or before the first
anniversary date of the closing of this Agreement, the Option Premium would be $2,000,000
($4,000,000 if on or before the second anniversary date, and so on), and if the Care Redemption
Date is June 1, 2017, the Option Premium would be $8,000,000.
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Upon the reasonable request of the
Cambridge Purchaser for good cause shown, the REIT Partnership
shall extend the Care Redemption Date for thirty (30) calendar days. On the Care Redemption Date,
each Party shall deliver to the appropriate person or entity such documents and instruments as may
be reasonably necessary or required to effect the transfer of the Cambridge Exit Property to the
Cambridge Purchaser and the Care Parties shall take all such actions are may be reasonably
requested by the Cambridge Purchaser to withdraw from the Cambridge Partnerships and/or to
substitute the Cambridge Purchaser in the place of the REIT Partnership as a limited partner in the
Cambridge Partnerships, and to entirely waive, release, and abandon all rights and remedies which
any of the Care Parties or any of their respective Affiliates may have under this Agreement, the
Cambridge Partnership Agreements or otherwise with respect to the Cambridge Partnerships,
including, without limitation, all capital accounts, all rights to distributions upon dissolution
of the Cambridge Partnerships (including pursuant to Article 12 of the Cambridge Partnership
Agreements, which is hereby superseded), and all other distributable assets (including cash) of the
Cambridge Partnerships from whatever source. For avoidance of doubt, after the Care Redemption
Date described in this paragraph, all distributable assets (including cash) of the Cambridge
Partnerships shall belong solely to the Cambridge Partners.
In the event that the Cambridge Purchaser shall fail to purchase the Cambridge Exit Property
on the Care Redemption Date for any reason other than Care’s failure to deliver the Cambridge Exit
Property or otherwise close the transaction (plus any extensions that Care may, in its absolute
discretion, grant to the Cambridge Purchaser after the initial 30-day extension), then Care and/or
its Affiliates (a “Care Purchaser”) shall purchase from the Cambridge Partners, and the
Cambridge Partners shall sell to the Care Purchasers all rights, title and interest in and to the
Cambridge Partnerships then owned by such Cambridge Partners plus all Care Equity Proceeds held by
the Cambridge Parties for an aggregate price equal to one dollar ($1.00) (a “Care
Purchase”). In the event of any Care Purchase, the Cambridge Parties shall take all such
actions as may be reasonably requested by the Care Purchaser to resign or withdraw as general
partners of the Cambridge Partnerships, otherwise withdraw as partners or members from the
Cambridge Partnerships and/or to substitute the Care Purchaser in the place of the applicable
Cambridge Parties as a partner or member in the Cambridge Partnerships, and to entirely waive,
release, and abandon all rights and remedies which any of the Cambridge Parties or any of their
respective Affiliates may have under this Agreement, the Cambridge Partnership Agreements or
otherwise with respect to the Cambridge Partnerships, including, without limitation, all capital
accounts, all rights to distributions upon dissolution of the Cambridge Partnerships (including
pursuant to Article 12 of the Cambridge Partnership Agreements, which is hereby superseded), and
all other distributable assets (including cash) of the Cambridge Partnerships from whatever source.
For avoidance of doubt, after the consummation of any Care Purchase, all distributable assets
(including cash) of the Cambridge Partnerships and all Care Equity Proceeds shall be the sole and
exclusive property of the Care Purchaser.
9. General Provisions.
(a) Applicable Law. This Agreement shall be governed, construed and interpreted in
accordance with the laws of the State of Delaware, except any provision herein specifically related
to ownership or transfer of any real property located in Texas or Care’s Interests in any Cambridge
Partnership owning real property in Texas (each, a “Texas Transaction”) shall be governed,
construed and interpreted in accordance with the laws of the State of Texas. All parties to this
Agreement hereby irrevocably and unconditionally submit to the sole and exclusive jurisdiction of
the courts of the State of Delaware or
12
any court of the United States located in the State of
Delaware (the “Delaware Courts”) for any
litigation arising out of or relating to all terms and provisions of this Agreement except any
Texas Transaction, or the negotiation, validity or performance of any provision in this Agreement
except a Texas Transaction, or the transactions contemplated hereby except a Texas Transaction (and
agrees not to commence any litigation relating thereto except in such courts), waives any objection
to the laying of venue of any such litigation in the Delaware Courts and agrees not to plead or
claim in any Delaware Court that such litigation brought therein has been brought in any
inconvenient forum. All Parties hereby irrevocably and unconditionally submit to the sole and
exclusive jurisdiction of the courts of the State of Texas or any court of the United States
located in the State of Texas (the “Texas Courts”) with respect to all matters involving
any Texas Transaction or the purchase, sale or transfer of real property. Each of the Parties
agrees, to the extent such Party is not otherwise subject to service of process in the State of
Delaware or the State of Texas, as the case may be, to appoint and maintain an agent in the State
of Delaware and/or the State of Texas, as appropriate, as such party’s agent for acceptance of
legal process. Service made pursuant to the preceding sentence shall have the same legal force and
effect as if served upon such party personally within the State of Delaware or the State of Texas,
as applicable.
(b) Waiver of Jury Trial. Each party hereto hereby waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in respect of any suit,
action or other proceeding arising out of this Agreement or the transactions contemplated hereby.
Each party hereto (a) certifies that no person has represented, expressly or otherwise, that such
party would not, in the event of any action, suit or proceeding, seek to enforce the foregoing
waiver and (b) acknowledges that it and the other parties hereto have been induced to enter into
this Agreement, by, among other things, the mutual waiver and certifications in this subparagraph
(b).
(c) Waivers. Except as provided in this Agreement, no action taken pursuant to this
Agreement shall be deemed to constitute a waiver by the Party taking such action of compliance with
any representations, warranties, covenants or agreements of this Agreement or any other agreement
between the Care Parties and their respective Affiliates, on the one hand, and the Cambridge
Parties and their respective Affiliates, on the other hand. The waiver by any Party of a breach of
any provision hereunder shall not operate or be construed as a waiver of any prior or subsequent
breach of the same or any other provision hereunder.
(d) Amendments. This Agreement may be changed, modified or amended at any time, and from
time to time, only by a written document signed by the Parties.
(e) Captions. All Section titles or captions contained in this Agreement are for
convenience of reference only and shall not be deemed part of this Agreement.
(f) Gender and Number. All nouns, pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular or plural as the context may require.
(g) Counterparts. This Agreement may be executed upon an original and one or more
duplicate originals, all of which taken together shall constitute one Agreement. In order to
facilitate execution of this Agreement, the Parties may execute and exchange by facsimile or
electronic mail counterpart of the signature pages which shall be deemed original signatures for
all purposes.
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(h) Successors and Assigns. This Agreement shall inure to the benefit of and be binding
upon all Parties and their respective successors, assigns and legal representatives. Except to
Affiliates, no Party may assign, transfer, encumber, or convey any of such Party’s duties,
obligations, undertakings, rights or remedies hereunder without the prior written consent of the
other Parties.
(i) Waiver of Section 5.6 of Contribution Agreement and Section 9.7(b)(i) of the Cambridge
Partnership Agreements.
(A) The Parties acknowledge that Section 5.6 of the Contribution Agreement and Section
9.7(b)(i) (or the equivalent provision) of the Cambridge Partnership Agreements provide that,
without the consent of REIT Partnership, Saada shall not effect a change in control of CHI. The
REIT Partnership by these presents, acknowledges and agrees that said Sections 5.6 and 9.7(b)(i)
are hereby waived and terminated for all purposes, and the REIT Partnership waives, releases, and
abandons any and all restrictions and limitations on the ownership of shares in CHI and the conduct
of the business of CHI. Notwithstanding the preceding sentence, during the term of this Agreement,
Saada agrees to, and/or to cause his Affiliates to, continue to own more than 50% of the ownership
interests in (a) the Cambridge Managing Owners and (b) the Manager under the Management and Leasing
Agreement by and between the Manager and each Cambridge Partnership with respect to any Property
owned by a Cambridge Partnership that remains subject to this Agreement.
(B) Moreover, for the avoidance of doubt, the Cambridge Parties agree that , subject to the
provisions of Section 9(r) below, notwithstanding any provision in any agreement between or among
the Parties, no Cambridge Party has any right to consent or object to any corporate transaction
(each, a “Corporate Transaction”) that may be undertaken by Care, including, without
limitation, any merger, share exchange, share issuance, financing, property acquisition or
disposition, liquidation, sale of substantially all its assets or recapitalization, provided,
however, that until the earlier of the Option Closing Date or December 31, 2014 Care may only
assign its economic rights pursuant to the Cambridge Partnership Agreements and otherwise shall
comply with the provisions of Article XI of the REIT Partnership Agreement and shall not sell its
outstanding interests in the REIT Partnership or seek to admit as a general partner or limited
partner of the REIT Partnership any such assignee of Care’s economic rights pursuant to the
Cambridge Partnership Agreements. As a condition to such assignment of its economic interests,
Care shall provide prior written notice to CHI of such assignment and shall provide prior written
notice to the assignee (and confirm in writing such notification to CHI) of the provisions
contained in Sections 8(e), 8(f) and 9(r) hereof.
(j) Entire Agreement. The combination of this Agreement, the Exhibits to this Agreement,
and the Cambridge Partnership Agreements constitutes the entire agreement among the Parties and
supersedes all prior oral and written understandings among the Parties. The Parties acknowledge
and agree that the following agreements/documents have expired and/or are hereby cancelled,
terminated, and declared null and void, all of which are of no further force and effect: (1)
Option Agreement (Development Facilities) dated as of December 31, 2007, (2) Option Agreement (San
Diego) dated as of December 31, 2007, (3) $2,500,000 Irrevocable Standby Letter of Credit, (4) Put
Agreement dated as of December 31, 2007, (5) Contribution Agreement, (6) Agreement (Walnut Hill
Separation) dated as of December 31, 2007, and (7) Letter Agreement (Cambridge-Southlake Ground
Leases) dated December 31, 2007. In addition, the Parties acknowledge and agree that the following
agreements/documents shall remain in full force and effect, notwithstanding the Settlement and the
14
execution and delivery of this Agreement: (A) Side Agreement dated as of December 31, 2007
relating to the delivery of certain reports, rent rolls and bad debts, (B) Letter Agreement dated
December 31, 2007 relating to a certain Letter Agreement between CHI and Xxxx Brothers RE, LLC, (C)
Lease Agreement dated as of December 31, 2007 relating to approximately 2,095 square feet of
rentable area in the Xxxxxx Medical Plaza, (D) Parking Lease Agreement dated as of December 31,
2007 relating to parking area at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, (E) Letter Agreement
(Cambridge Plano HQ) dated December 31, 2007, relating to Section 27(c) of a certain lease
agreement dated as of March 2007, by and between Cambridge Plano and CHI, and (F) Amended and
Restated Agreement of Limited Partnership of ERC Sub, L.P dated as of December 31, 2007.
(k) Severability. If any part of this Agreement, or the application thereof to any Person
or circumstance, is for any reason held invalid or unenforceable, it shall be deemed severable, and
the validity of the remainder of this Agreement or the applications of such provision to other
Persons or circumstances shall not be affected thereby.
(l) Lists. Any list of one or more items preceded by the words “include” or “including”
shall not be deemed to be limited to the stated items but shall be deemed to be without limitation.
(m) Notices. Any notice to any Party to this Agreement may be given to such Party in the
manner provided in Section 15.1 of the Cambridge Partnership Agreements, which provisions are
incorporated herein by reference. Notwithstanding any other provision herein or in any Cambridge
Partnership Agreement or other agreement between or among the Parties, the address for any Care
Party shall be c/o Care Investment Trust, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 and for any Cambridge Party shall be c/o Cambridge Holdings, Inc., 0000 Xxxx Xxxxxx,
00xx Xxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxxx-Xxxxxx Xxxxx.
(n) Representations and Warranties. Each Party represents and warrants to the other
Parties that it has the requisite power and corporate, limited partnership, or limited liability
company, as applicable, authority to execute, deliver and perform this Agreement and, upon
execution and delivery of this Agreement by all Parties, this Agreement shall be the legal and
binding obligation of each Party, enforceable according to its terms, subject to applicable
bankruptcy, insolvency, moratorium and other laws affecting the rights of creditors generally and
principles of equity. Each person or entity that is to receive shares of Care Common Stock and
Warrants pursuant hereto is an “Accredited Investor” as defined in Rule 501 of Regulation D under
the Securities Act of 1933, as amended, and has done its own due diligence investigation into the
business and affairs of Care sufficient to permit such person or entity to make an investment
decision with respect to the Care Common Stock and Warrants deliverable hereunder. Each Party
further represents and warrants to the other Parties (i) that it is in compliance with all
applicable laws, rules, regulations, and court orders applicable to it and all of its constituent
documents; and (ii) that its Interests in the Cambridge Partnerships are owned by it free and clear
of all Liens and shall remain free and clear of all Liens during the Term of this Agreement. Care
further represents and warrants to the Cambridge Parties that it is a reporting company under the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended.
(o) Confidentiality. Except as otherwise provided in this subsection (o), for a period of
two (2) years after the Effective Date, the Parties and their respective agents, auditors, lenders,
advisors and affiliates, including counsel and employees, agree not to disclose any of the terms of
this Agreement
15
or the substance of any of the discussions among the Parties with respect to this Agreement
(“Confidential Matters”). Such persons will make no disclosures about the Confidential
Matters, whether directly or indirectly, whether personally or through any agent and whether public
or private, except as necessary to permit the preparation of tax returns and proper tax and
financial reporting (including the audit thereof) of the transactions contemplated by this
Agreement, as required to permit Care to fulfill its reporting obligations under applicable
securities laws or as otherwise required by law, and except as reasonably necessary in connection
with any future transaction involving the future disposition of any Property or Interests
contemplated by this Agreement. The Parties acknowledge that they shall not discuss or distribute
information concerning Confidential Matters with the news media, MOB Competitors (defined below) or
with any tenant, supplier, or vendor (or the representative of any person or entity) of such Party.
Upon termination of this Agreement, Care shall remove all references to a continuing relationship
with the Cambridge Parties or the Cambridge Properties from Care’s website and all its marketing
materials.
(p) Term. This Agreement shall be and remain in full force and effect for a term
commencing on the Effective Date and ending on the earlier of the Option Closing Date, the Care
Redemption Date or the closing of a Change of Control Optional Purchase.
(q) Audit Requirement. The Parties acknowledge and agree that the provisions of Section
8.1(d) of each Cambridge Partnership Agreement (or the comparable sections, to the extent the
section numbering of each Cambridge Partnership Agreement is not identical to the others) remains
in force and effect and the Cambridge Managing Owners agree to comply with the provisions of said
Section 8.1(d).
(r) Care Change of Control. The provisions of this Section 9(r) shall apply with respect
to the Corporate Transactions that Care or its Affiliates may undertake described herein. For
purposes of this Section 9(r), the following definitions shall apply:
“Applicable Period” means the two year period beginning with the date of this
Agreement and ending on the second anniversary of the date of this Agreement.
“Care Change of Control” means any Corporate Transaction occurring during the
Applicable Period after the consummation of which (A) any MOB Competitor owns a greater number of
the outstanding voting securities of Care than any other person or entity, and (B) a majority of
the persons comprising Care’s Board of Directors as of the date of the Corporate Transaction
resulting in the application of clause (A) above shall have resigned, been removed, been replaced
or otherwise shall have discontinued service on Care’s Board of Directors. For the avoidance of
doubt, a Care Change of Control shall not include any underwritten public offering of Care Common
Stock unless after closing of such offering (A) any MOB Competitor owns a greater number of the
outstanding voting securities of Care than any other party, and (B) a majority of the persons
comprising Care’s Board of Directors as of the date of the Corporate Transaction resulting in the
application of clause (A) above shall resign, be removed, be replaced or shall otherwise
discontinue service on Care’s Board of Directors after closing of the offering.
“MOB” means any office building that is primarily leased to, or marketed for lease to,
physicians, specialty hospitals, ambulatory care centers or other providers of healthcare services.
For
16
the avoidance of doubt, no skilled nursing facility, assisted living facility, independent
living facility, senior care facility or other type of hospital shall be classified as an MOB.
“MOB Competitor” means any person or entity that owns one or more MOBs having a
historical cost basis as reflected in current financial statements as of a date before consummation
of any Corporate Transaction with any Care Party or Affiliate of any Care Party in excess of
$100,000,000, or any Affiliate of such person or entity. For the avoidance of doubt, no person
shall become an MOB Competitor solely because of acquiring an interest in the Cambridge Properties,
but rather must have met the definition of MOB Competitor before executing any transaction with a
Care Party or Affiliate of a Care Party.
In the event that during the Applicable Period a Care Change of Control shall occur, a
Cambridge Purchaser shall have the option (a “Change of Control Option”), exercisable for a
period of thirty (30) days after Saada shall have received written notice of such Care Change of
Control, to purchase (a “Change of Control Optional Purchase”) the Cambridge Exit Property
pursuant to a structure specified by Saada as if effecting a Cambridge Option Exercise pursuant to
Section 8(e) above, for a cash price (the “Change of Control Option Price”) equal to (1)
$37,500,000, less all Available Cash from Special Events distributed to the REIT Partnership prior
to such purchase, plus return of the Care Equity Proceeds, if the Care Change of Control shall
occur prior to the first anniversary date of the date of this Agreement, and (2) $40,000,000, less
all Available Cash from Special Events distributed to the REIT Partnership prior to such purchase,
plus return of the Care Equity Proceeds, if the Care Change of Control shall occur after the first
anniversary date but before the second anniversary date of the date of this Agreement. The Change
of Control Option shall be exercised by written notice given by Saada to Care within the 30 day
option exercise period described above. The closing date for any Change of Control Optional
Purchase shall occur not later than the 90th day after Saada shall have exercised the
Change of Control Option. In the event a Cambridge Purchaser is not able to close the Change of
Control Optional Purchase on or before the 90th day after Saada shall have exercised the
Change of Control Option, then (i) Saada shall provide to Care at least ten (10) days prior to the
scheduled closing date a written request for an extension of time to close the Change of Control
Optional Purchase, (ii) a Care Purchaser shall deliver to the REIT Partnership no later than the
originally scheduled closing date cash in the amount of 10% of the Change of Control Option Price,
which cash shall be retained by the REIT Partnership if a Care Purchaser shall fail to close the
Change of Control Optional Purchase, and (iii) a Care Purchaser shall close the Change of Control
Optional Purchase no later than the 180th day following Saada’s providing notice of the
exercise of the Change of Control Option. On the closing date for such Change of Control Optional
Purchase, each Party shall deliver to the appropriate person or entity such documents and
instruments as may be reasonably necessary or required to effect the transfer of the Cambridge Exit
Property to the Cambridge Purchaser and the Care Parties shall take all such actions are may be
reasonably requested by the Cambridge Purchaser to withdraw from the Cambridge Partnerships and/or
to substitute the Cambridge Purchaser in the place of the REIT Partnership as a limited partner in
the Cambridge Partnerships, and to entirely waive, release, and abandon all rights and remedies
which any of the Care Parties or any of their respective Affiliates may have under this Agreement
and the Cambridge Partnership Agreements with respect to the Cambridge Partnerships, including,
without limitation, all capital accounts, all rights to distributions upon dissolution of the
Cambridge Partnerships (including pursuant to Article 12 of the Cambridge Partnership Agreements,
which is hereby superseded), and all other distributable assets (including cash) of the Cambridge
Partnerships from whatever source. For
17
avoidance of doubt, after the Care Redemption Date described in this paragraph, all
distributable assets (including cash) of the Cambridge Partnerships shall belong solely to the
Cambridge Partners. During the Applicable Period, no Care Party or any Care Affiliate shall
provide to any MOB Competitor any rent roll, account receivable, leasing or occupancy, financial or
other data involving the Properties, directly or indirectly, to any MOB Competitor.
[Signature Pages Follow]
18
IN WITNESS WHEREOF, the Parties have signed and delivered this Agreement as of the Effective
Date.
| CARE PARTIES Care Investment Trust, Inc. |
||||
| By: | /s/ Xxxxxxxxx (Xxxxx) X. Xxxx, Xx. | |||
| Xxxxxxxxx (Xxxxx) X. Xxxx, Xx., Chief Executive Officer | ||||
| ERC Sub, L.P. By: ERC Sub, LLC, its general partner |
||||
| By: | /s/ Xxxxxxxxx (Xxxxx) X. Xxxx, Xx. | |||
| Xxxxxxxxx (Xxxxx) X. Xxxx, Xx. | ||||
| ERC Sub, LLC |
||||
| By: | /s/ Xxxxxxxxx (Xxxxx) X. Xxxx, Xx. | |||
| Xxxxxxxxx (Xxxxx) X. Xxxx, Xx. | ||||
| CAMBRIDGE LIMITED PARTNERS |
||||
| /s/ Xxxx-Xxxxxx Xxxxx | ||||
| Xxxx-Xxxxxx Xxxxx | ||||
| Cambridge-Crown Atrium, LLC |
||||
| By: | /s/ Xxxx-Xxxxxx Xxxxx | |||
| Xxxx-Xxxxxx Xxxxx, Managing Member | ||||
| Cambridge North Texas Holdings, LLC |
||||
| By: | /s/ Xxxx-Xxxxxx Xxxxx | |||
| Xxxx-Xxxxxx Xxxxx, Managing Member | ||||
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| Cambridge-Greenville Dallas, LLC |
||||
| By: | /s/ Xxxx-Xxxxxx Xxxxx | |||
| Xxxx-Xxxxxx Xxxxx, Managing Member | ||||
| Cambridge B/R, Inc. |
||||
| By: | /s/ Xxxx-Xxxxxx Xxxxx | |||
| Xxxx-Xxxxxx Xxxxx, Chairman and CEO | ||||
| PMC Cambridge of Plano, Ltd. By: Cambridge-Collin, Inc., its general partner |
||||
| By: | /s/ Xxxx-Xxxxxx Xxxxx | |||
| Xxxx-Xxxxxx Xxxxx, Chairman and CEO | ||||
| CAMBRIDGE MANAGING OWNERS Cambridge Nassau Bay GP, LLC |
||||
| By: | /s/ Xxxx-Xxxxxx Xxxxx | |||
| Xxxx-Xxxxxx Xxxxx, Sole Member | ||||
| CHMP Manager, LLC |
||||
| By: | /s/ Xxxx-Xxxxxx Xxxxx | |||
| Xxxx-Xxxxxx Xxxxx, Sole Member | ||||
| 6000 Greenville, Inc. |
||||
| By: | /s/ Xxxx-Xxxxxx Xxxxx | |||
| Xxxx-Xxxxxx Xxxxx, Chairman and CEO | ||||
| Xxxxx MOB, Inc. |
||||
| By: | /s/ Xxxx-Xxxxxx Xxxxx | |||
| Xxxx-Xxxxxx Xxxxx, Chairman and CEO | ||||
20
| Cambridge Onalp, Inc. |
||||
| By: | /s/ Xxxx-Xxxxxx Xxxxx | |||
| Xxxx-Xxxxxx Xxxxx, Chairman and CEO | ||||
| 0000 Xxxxxxx Xxxxx, Inc. |
||||
| By: | /s/ Xxxx-Xxxxxx Xxxxx | |||
| Xxxx-Xxxxxx Xxxxx, Chairman and CEO | ||||
| Xxxxxxx MOB, Inc. |
||||
| By: | /s/ Xxxx-Xxxxxx Xxxxx | |||
| Xxxx-Xxxxxx Xxxxx, Chairman and CEO | ||||
| Cambridge Tarrant, Inc. |
||||
| By: | /s/ Xxxx-Xxxxxx Xxxxx | |||
| Xxxx-Xxxxxx Xxxxx, Chairman and CEO | ||||
| CAMBRIDGE PARTNERSHIPS Cambridge Westgate Medical Center, L.P. By: 0000 Xxxxxxx Xxxxx, Inc., its general partner |
||||
| By: /s/ Xxxx-Xxxxxx Xxxxx | ||||
Xxxx-Xxxxxx Xxxxx, Chairman and CEO |
||||
| Cambridge Walnut Hill, L.P. By: 6000 Greenville, Inc., its general partner |
||||
| By: /s/ Xxxx-Xxxxxx Xxxxx | ||||
Xxxx-Xxxxxx Xxxxx, Chairman and CEO |
||||
| Cambridge Xxxxxxx MOB, L.P. By: Xxxxxxx, MOB, Inc., its general partner |
||||
| By: /s/ Xxxx-Xxxxxx Xxxxx | ||||
Xxxx-Xxxxxx Xxxxx, Chairman and CEO |
||||
21
| Cambridge Southlake Partners, L.P. By: Cambridge Tarrant, Inc., its general partner |
||||
| By: /s/ Xxxx-Xxxxxx Xxxxx | ||||
Xxxx-Xxxxxx Xxxxx, Chairman and CEO |
||||
| Cambridge Nassau Bay LP By: Cambridge Nassau Bay GP LLC, its general partner |
||||
| By: /s/ Xxxx-Xxxxxx Xxxxx | ||||
Xxxx-Xxxxxx Xxxxx, Sole Member |
||||
| Cambridge Xxxxxx Medical Plaza, LLC By: CHMP Manager, LLC, its manager |
||||
| By: /s/ Xxxx-Xxxxxx Xxxxx | ||||
Xxxx-Xxxxxx Xxxxx, Sole Member |
||||
| Cambridge Plano Partners MOB IV, L.P. By: Cambridge Onalp, Inc., its general partner |
||||
| By: /s/ Xxxx-Xxxxxx Xxxxx | ||||
Xxxx-Xxxxxx Xxxxx, Chairman and CEO |
||||
| Cambridge Xxxxx Partners, L.P. By: Xxxxx MOB, Inc., its general partner |
||||
| By: /s/ Xxxx-Xxxxxx Xxxxx | ||||
Xxxx-Xxxxxx Xxxxx, Chairman and CEO |
||||
| CHI Cambridge Holdings Incorporated |
||||
| By: | /s/ Xxxx-Xxxxxx Xxxxx | |||
| Xxxx-Xxxxxx Xxxxx, Chairman and CEO | ||||
22
EXHIBIT A
The Settlement Agreement
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
This Mutual Release and Settlement Agreement (“Agreement”) is entered into as of April 15,
2011, by and among: (i) Care Investment Trust Inc.; ERC Sub, L.P.; and ERC Sub LLC (collectively,
“Care”); and CIT Healthcare LLC and Flint X. Xxxxxxxx (collectively with Care, the “Care Litigation
Parties”); and (ii) Xxxx-Xxxxxx Xxxxx; Cambridge Onalp, Inc.; Cambridge Nassau Bay GP LLC; 6000
Greenville, Inc.; Xxxxx MOB, Inc.; 0000 Xxxxxxx Xxxxx, Inc.; Cambridge Xxxxxxx MOB, Inc.; Cambridge
Tarrant, Inc.; CHMP Manager, LLC; Cambridge B/R, Inc.; Cambridge-Greenville Dallas, LLC; PMC
Cambridge of Plano, Ltd.; Cambridge-Crown Atrium LLC; and Cambridge North Texas Holdings, LLC
(collectively, the “Cambridge Litigation Parties”). The Care Litigation Parties and the Cambridge
Litigation Parties are sometimes referred to herein collectively as the “Litigation Parties.”
WHEREAS, the Litigation Parties wish to resolve any and all disputes, claims, and actions or
causes of action with regard to the matter captioned Care Investment Trust Inc. v. Xxxx-Xxxxxx
Xxxxx, et al., No. 3:09-cv-02256-K (N.D. Tex.) (the “Lawsuit”) and provide mutual releases as set
forth herein; and
WHEREAS, Care Investment Trust, Inc.; ERC Sub, L.P.; ERC Sub LLC; Xxxx-Xxxxxx Xxxxx;
Cambridge-Crown Atrium, LLC; Cambridge-Greenville Dallas, LLC; Cambridge B/R, Inc.; PMC Cambridge
of Plano, Ltd.; Cambridge Nassau Bay GP LLC; CHMP Manager, LLC; 6000 Greenville, Inc.; Xxxxx MOB,
Inc.; Cambridge Onalp, Inc.; 0000 Xxxxxxx Xxxxx, Inc.; Xxxxxxx MOB, Inc.; Cambridge Tarrant, Inc.;
Cambridge Westgate Medical Center, L.P.; Cambridge Walnut Hill, L.P.; Cambridge Xxxxxxx MOB, L.P.;
Cambridge Southlake Partners, L.P.; Cambridge Nassau Bay LP; Cambridge Xxxxxx Medical Plaza, LLC;
Cambridge Plano Partners MOB IV, L.P.; and Cambridge Xxxxx Partners, L.P. (the “Omnibus Agreement
Parties”), simultaneously herewith, have entered into the Omnibus Agreement to which this Agreement
is appended (the “Omnibus Agreement”), which sets forth terms pursuant to which the Omnibus
Agreement Parties are to alter their existing business relationship in conjunction with resolving
the Lawsuit (capitalized terms not otherwise defined herein shall have the meanings ascribed to
such terms in the Omnibus Agreement);
NOW THEREFORE, in consideration of the premises and mutual covenants contained herein and the
mutual execution and performance of this Agreement and the Omnibus Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Litigation Parties hereby specifically agree, contract and covenant as follows:
1. The Omnibus Agreement Parties shall, simultaneously herewith, enter into or cause to be
entered into, the Omnibus Agreement to which this Agreement is appended in accordance with the
terms prescribed therein. This Agreement is contingent upon the Omnibus Agreement Parties’
execution of the Omnibus Agreement; this Agreement shall be null and void and of no legal effect if
the Omnibus Agreement Parties do not execute the Omnibus Agreement.
2. Promptly after execution of the Omnibus Agreement in accordance with paragraph 1 above, the
Litigation Parties shall cause the Lawsuit to be voluntarily dismissed with prejudice, with each
party bearing its own costs and attorneys’ fees, through the submission to the Court of a
Stipulation of Dismissal with Prejudice and proposed Agreed Order of Dismissal in substantially the
form appended hereto as Exhibit 1.
3. Each and every one of the Cambridge Litigation Parties and their respective past and
present parent companies, subsidiaries, affiliates, partnerships, owners and partners and the
predecessors and successors of each of them (the “Cambridge Releasors”) hereby irrevocably and
unconditionally releases each and every one of the Care Litigation Parties and their respective
parent companies, subsidiaries, affiliates, partnerships, owners, officers, directors and partners,
and the predecessors and successors of each of them (the “Care Releasees”), from any and all
disputes, claims, actions or causes of action, appeals, liabilities, suits, rights, demands, costs,
losses, debts, accounts, covenants, and any other claims of any nature whatsoever, known or
unknown, suspected or unsuspected, of every nature, character and description, without limitation
in law, equity or otherwise, which any of the Cambridge Releasors, or any person, corporation or
entity claiming or purporting to claim by or through them, now has, has heretofore had, or may
hereafter at any time have against any of the Care Releasees with respect to any matter, cause or
thing incurred, done, omitted or suffered to be done from the beginning of time to the date hereof,
including without limitation any claims that were asserted or that could have been asserted in the
Lawsuit. Further, each of the Cambridge Releasors hereby covenants and agrees not to xxx any of the
Care Releasees on or in connection with any of the above-released claims. The obligations imposed
upon the Litigation Parties by this Agreement, and the obligations imposed on the Omnibus Agreement
Parties by the Omnibus Agreement and the continuing provisions of the Cambridge Partnership
Agreements (as defined in and modified by the Omnibus Agreement) are hereby expressly excluded from
the releases set forth in the immediately preceding sentence, it being understood and agreed that
nothing in this Agreement is intended to effect a termination or revocation of any Cambridge
Partnership Agreement (as defined in and modified by the Omnibus Agreement) or any duty thereunder
or under the Omnibus Agreement.
4. Each and every one of the Care Litigation Parties and their respective past and present
parent companies, subsidiaries, affiliates, partnerships, owners and partners and the predecessors
and successors of each of them (the “Care Releasors”) hereby irrevocably and unconditionally
releases each and every one of the Cambridge Litigation Parties and their respective parent
companies, subsidiaries, affiliates, partnerships, owners, officers, directors and partners, and
the predecessors and successors of each of them (the “Cambridge Releasees”), from any and all
disputes, claims, actions or causes of action, appeals, liabilities, suits, rights, demands, costs,
losses, debts, accounts, covenants, and any other claims of any nature whatsoever, known or
unknown, suspected or unsuspected, of every nature, character and description, without limitation
in law, equity or otherwise, which any of the Care Releasors, or any person, corporation or entity
claiming or purporting to claim by or through them, now has, has heretofore had, or may
- 2 -
hereafter at any time have against any of the Cambridge Releasees with respect to any matter,
cause or thing incurred, done, omitted or suffered to be done from the beginning of time to the
date hereof, including without limitation any claims that were asserted or that could have been
asserted in the Lawsuit. Further, each of the Care Releasors hereby covenants and agrees not to xxx
any of the Cambridge Releasees on or in connection with any of the above-released claims. The
obligations imposed upon the Litigation Parties by this Agreement, and the obligations imposed on
the Omnibus Agreement Parties by the Omnibus Agreement and the continuing provisions of the
Cambridge Partnership Agreements (as defined in and modified by the Omnibus Agreement) are hereby
expressly excluded from the releases set forth in the immediately preceding sentence, it being
understood and agreed that nothing in this Agreement is intended to effect a termination or
revocation of any Cambridge Partnership Agreement (as defined in and modified by the Omnibus
Agreement) or any duty thereunder or under the Omnibus Agreement.
5. This Agreement is solely a compromise and settlement of the Lawsuit, and is not and shall
not be treated as an admission of liability or wrongdoing by any of the Litigation Parties in
connection with the Lawsuit or with respect to any other act.
6. This Agreement and the obligations and rights hereunder shall be binding upon, inure to
the benefit of, and be enforceable by (and against) the Litigation Parties and their respective
heirs, successors and assigns to the fullest extent permitted by law.
7. The Litigation Parties hereby represent and warrant that they have not heretofore assigned,
transferred to, or attempted or purported to assign or transfer to, any person, firm, corporation,
or other entity, any of the disputes, claims, actions or causes of action in the Lawsuit which are
released and discharged herein.
8. Care and the Cambridge Litigation Parties agree to make the following joint press release
upon entry of the final order dismissing the Lawsuit: “Care Investment Trust Inc. and Cambridge
Holdings, Inc. are pleased to jointly announce that the litigation pending between them and certain
of their affiliates in the United States District Court for the Northern District of Texas has been
settled, all complaints in connection therewith have been dismissed with prejudice and all claims
the parties may have against each other arising out of the subject matter of the litigation have
been released.” Care may file such press release with the United States Securities and Exchange
Commission on a current report on Form 8-K. No party shall otherwise make any public statement
with respect to the Lawsuit other than that such Lawsuit has been dismissed and the parties have
mutually released all claims against each other. The parties agree that Section 9(o) of the
Omnibus Agreement will govern all disclosures with respect to the Omnibus Agreement, and nothing in
this paragraph 8 shall be deemed to modify or supersede Section 9(o) of the Omnibus Agreement.
9. The validity and enforcement of this Agreement shall be determined in accordance with the
laws of the State of Texas applicable to contracts executed and performed entirely within the State
of Texas, without regard for the choice of law
- 3 -
provisions thereof. Exclusive venue of any dispute arising under this Agreement shall be in
the federal or state courts in Dallas County, Texas.
10. This Agreement — and for the Litigation Parties that are also Omnibus Agreement Parties,
the Omnibus Agreement and the Exhibits to the Omnibus Agreement and the Cambridge Partnership
Agreements (as defined in and modified by the Omnibus Agreement) — comprise the full and final
expression of the intention of the Litigation Parties. All prior communications, representations
and agreements with respect to the subject matter hereof have been merged into this Agreement.
This Agreement may not be modified except by written agreement signed by the Litigation Parties.
This Agreement supersedes all prior negotiations, understandings, agreements, or representations,
oral or written, between or among the Litigation Parties with respect to the subject matter hereof.
11. The Litigation Parties declare and affirm that they have the authority, pursuant to the
respective corporate governing documents through which they conduct business, to execute and bind
themselves to this Agreement, that they have not assigned any claim which is the subject of this
Agreement to any third party, and that the person executing this Agreement on behalf of any of the
Litigation Parties expressly warrants and represents that he/she is authorized to sign this
Agreement for the purpose of duly binding said Litigation Parties to the terms and conditions
contained herein.
12. This Agreement may be executed in counterparts, all of which shall be considered one and
the same Agreement, and shall become effective when one or more such counterparts have been signed
by each of the Litigation Parties and delivered to the other Litigation Parties.
13. In the event any one or more of the provisions contained in this Agreement should be held
invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or impaired thereby.
14. The terms and provisions of this Agreement are intended solely for the benefit of the
Litigation Parties and their respective heirs, legal representatives, successors, and permitted
assigns, and it is not the intention of the Litigation Parties to confer third-party beneficiary
rights on any other party.
15. The Litigation Parties acknowledge and agree that prior to executing this Agreement they
have consulted with counsel of their own choosing regarding this Agreement. Each of the Litigation
Parties further certifies that in executing this Agreement it is not relying on any information or
statement made or provided by any other of the Litigation Parties (or any of its representatives)
other than as set forth expressly in this Agreement; that it completely understands this Agreement,
its content and effect; that it fully intends by this Agreement to unconditionally and completely
release the designated releasees as provided herein; and that it has executed this Agreement
voluntarily and of its own free act and deed, with the specific intention of being bound by it.
- 4 -
16. The failure of any of the Litigation Parties to enforce any right arising under this
Agreement on any one or more occasion does not operate as a waiver of that or any other right on
that or any other occasion.
17. This Agreement has been completely negotiated by and among the Litigation Parties and is
not to be construed more strictly against any of the Litigation Parties.
18. The Litigation Parties agree that irreparable damage would occur in the event that the
provisions of this Agreement were not performed in accordance with their specific terms.
Accordingly, it is hereby agreed that, in addition to any other remedy to which they are entitled
at law or in equity, the Litigation Parties shall be entitled to an injunction or injunctions to
enforce specifically the terms and provisions hereof.
IN WITNESS WHEREOF, the Litigation Parties have executed and delivered this Agreement as of
the date first above written.
[The remainder of this page is intentionally left blank]
- 5 -
| CARE INVESTMENT TRUST INC. | ||||
By: |
||||
Its: |
||||
Date: |
||||
| CIT HEALTHCARE LLC | ||||
By: |
||||
Its: |
||||
Date: |
||||
| FLINT X. XXXXXXXX | ||||
By: |
||||
Date: |
||||
| ERC SUB, LP | ||||
By: |
||||
Its: |
||||
Date: |
||||
- 6 -
| ERC SUB, LLC | ||||
By: |
||||
Its: |
||||
Date: |
||||
| XXXX-XXXXXX XXXXX | ||||
By: |
||||
Its: |
||||
Date: |
||||
| CAMBRIDGE ONALP, INC. | ||||
By: |
||||
Its: |
||||
Date: |
||||
| CAMBRIDGE NASSAU BAY GP LLC | ||||
By: |
||||
Its: |
||||
Date: |
||||
| 6000 GREENVILLE, INC. | ||||
By: |
||||
Its: |
||||
Date: |
||||
- 7 -
| XXXXX MOB, INC. | ||||
By: |
||||
Its: |
||||
Date: |
||||
| 0000 XXXXXXX XXXXX, INC. | ||||
By: |
||||
Its: |
||||
Date: |
||||
| CAMBRIDGE XXXXXXX MOB, INC. | ||||
By: |
||||
Its: |
||||
Date: |
||||
| CAMBRIDGE TARRANT, INC. | ||||
By: |
||||
Its: |
||||
Date: |
||||
- 8 -
| CHMP MANAGER, LLC | ||||
By: |
||||
Its: |
||||
Date: |
||||
| CAMBRIDGE B/R, INC. | ||||
By: |
||||
Its: |
||||
Date: |
||||
| CAMBRIDGE-GREENVILLE DALLAS, LLC | ||||
By: |
||||
Its: |
||||
Date: |
||||
| PMC CAMBRIDGE OF PLANO, LTD. | ||||
By: |
||||
Its: |
||||
Date: |
||||
- 9 -
| CAMBRIDGE-CROWN ATRIUM LLC | ||||
By: |
||||
Its: |
||||
Date: |
||||
| CAMBRIDGE NORTH TEXAS HOLDINGS, LLC | ||||
By: |
||||
Its: |
||||
Date: |
||||
- 10 -
EXHIBIT 0
XXXXXX XXXXXX XXXXXXXX XXXXX
XXXXXXXX XXXXXXXX XX XXXXX
DALLAS DIVISION
XXXXXXXX XXXXXXXX XX XXXXX
DALLAS DIVISION
Plaintiff, |
|||
v. |
|||
XXXX-XXXXXX XXXXX; CAMBRIDGE ONALP, INC.; CAMBRIDGE
NASSAU BAY GP LLC; 6000 GREENVILLE, INC.; XXXXX MOB,
INC.; 0000 XXXXXXX XXXXX, INC.; CAMBRIDGE XXXXXXX
MOB, INC.; CAMBRIDGE TARRANT, INC.; CHMP MANAGER,
LLC; CAMBRIDGE B/R, INC.; CAMBRIDGE-GREENVILLE
DALLAS, LLC; PMC CAMBRIDGE OF PLANO, LTD;
CAMBRIDGE-CROWN ATRIUM LLC; and CAMBRIDGE NORTH
TEXAS HOLDINGS, LLC,
|
No. 3:09-cv-02256-K | ||
Defendants. |
|||
XXXX-XXXXXX XXXXX; CAMBRIDGE ONALP, INC.; CAMBRIDGE
NASSAU BAY GP LLC; 6000 GREENVILLE, INC.; XXXXX MOB,
INC.; 0000 XXXXXXX XXXXX, INC.; CAMBRIDGE XXXXXXX
MOB, INC.; CAMBRIDGE TARRANT, INC.; CHMP MANAGER,
LLC; CAMBRIDGE B/R, INC.; CAMBRIDGE-GREENVILLE
DALLAS, LLC; PMC CAMBRIDGE OF PLANO, LTD;
CAMBRIDGE-CROWN ATRIUM LLC; and CAMBRIDGE NORTH
TEXAS HOLDINGS, LLC, |
|||
Counterclaim Plaintiffs, |
|||
v. |
|||
CARE INVESTMENT TRUST INC.; CIT HEALTHCARE LLC;
FLINT X. XXXXXXXX; ERC SUB, L.P.; and ERC SUB LLC, |
|||
Counterclaim and Third |
|||
Party Defendants. |
|||
STIPULATION OF DISMISSAL, WITH PREJUDICE
STIPULATION OF DISMISSAL, WITH PREJUDICE
Pursuant to Rule 41(a)(1)(A)(ii) of
the Federal Rules of Civil Procedure, Plaintiff and Counterclaim Defendant Care Investment
Trust, Inc. (“Care”), Third Party Defendants CIT Healthcare LLC, Flint X. Xxxxxxxx, ERC Sub,
L.P. and ERC Sub LLC (collectively with Care, the “Care Parties”), and Defendants and
Counterclaim Plaintiffs, Xxxx-Xxxxxx Xxxxx, Cambridge Onalp Inc., Cambridge Nassau Bay GP LLC,
6000 Greenville Inc., Xxxxx MOB Inc., 0000 Xxxxxxx Xxxxx Inc., Cambridge Xxxxxxx MOB Inc.,
Cambridge Tarrant Inc., CHMP Manager LLC, Cambridge B/R Inc., Cambridge-Greenville Dallas LLC,
PMC Cambridge of Plano Ltd., Cambridge Crown Atrium LLC and Cambridge North Texas Holdings LLC
(collectively, the “Cambridge Parties”), state that the Care Parties and the Cambridge Parties
(collectively, the “Parties”) have settled and resolved all disputes between them relating to
all claims that were asserted or could have been asserted against each other in this action.
The Parties desire to dismiss this action, with prejudice, and hereby stipulate to the dismissal
with prejudice, of all claims, cross-claims, counterclaims, and third-party claims herein. The
Parties respectfully request that the Court grant this Stipulation and enter the proposed Agreed
Order of Dismissal, With Prejudice, submitted concurrently herewith.
- 2 -
| Respectfully submitted, | ||||||||||
By:
|
By: | |||||||||
| Texas Bar No. 06983000 | Texas Bar No. 04506600 | |||||||||
| E-mail: xxxxxx.xxxxxx@xxxxxx.xxx | Email: xxxxxx@xx.xxx | |||||||||
| FIGARI & XXXXXXXXX, LLP | Xxxxxxx X. Xxxxxxxx | |||||||||
| 0000 Xxxx xx Xxxxxxx Xxxxx | Xxxxx Bar No. 24007151 | |||||||||
| 000 Xxxx Xxxxxx, Xxxxx 0000 | Email: xxxxxxxxx@xx.xxx | |||||||||
| Xxxxxx, Xxxxx 00000-0000 | XXXXXXX XXXXXX L.L.P. | |||||||||
| Telephone: (000) 000-0000 | 000 Xxxx Xxxxxx, Xxxxx 0000 | |||||||||
| Facsimile: (000) 000-0000 | Xxxxxx, Xxxxx 00000 | |||||||||
| Telephone: (000) 000-0000 | ||||||||||
| Facsimile: (000) 000-0000 | ||||||||||
By:
|
By: | |||||||||
| Xxxxx X. Xxxxxxxxxx (pro hac vice) | Xxxxxxx X. Xxxxx (pro hac vice) | |||||||||
| E-mail: xxxxxxxxxxx@xxx.xxx | E-mail: xxxxxx@xxxxxxxxx.xxx | |||||||||
| Xxxxx X. Xxxxxx (pro hac vice) | Xxxxx X. Xxxxxxx (pro hac vice) | |||||||||
| E-mail: xxxxxxx@xxx.xxx | E-mail: xxxxxxxx@xxxxxxxxx.xxx | |||||||||
| XxXXXXXXX WILL & XXXXX LLP | XXXX, WEISS, RIFKIND, | |||||||||
| 000 Xxxxxxxxxx Xxxxxx, X.X. | XXXXXXX & XXXXXXXX LLP | |||||||||
| Washington, D.C. 20005-3096 | 1285 Avenue of the Americas | |||||||||
| Telephone: (000) 000-0000 | Xxx Xxxx, Xxx Xxxx 00000-0000 | |||||||||
| Facsimile: (000) 000-0000 | Telephone: (000) 000-0000 | |||||||||
| Facsimile: (000) 000-0000 | ||||||||||
| Attorneys for Plaintiff and Counterclaim Defendant Care Investment Trust, Inc. and for Third-Party Defendants CIT Healthcare LLC; Flint X. Xxxxxxxx; ERC Sub, L.P.; and ERC Sub LLC | Attorneys for Defendants and Counterclaim Plaintiffs Xxxx-Xxxxxx Xxxxx, Cambridge Onalp Inc., Cambridge Nassau Bay GP LLC, 6000 Greenville Inc., Xxxxx MOB Inc., 0000 Xxxxxxx Xxxxx Inc., Cambridge Xxxxxxx MOB Inc., Cambridge Tarrant Inc., CHMP Manager LLC, Cambridge B/R Inc., Cambridge-Greenville Dallas LLC, PMC Cambridge of Plano Ltd., Cambridge Crown Atrium LLC and Cambridge North Texas Holdings LLC | |||||||||
- 3 -
CERTIFICATE OF SERVICE
This is to certify that on this ___ day of ______, 2011, I electronically submitted the
foregoing document with the Clerk of Court for the U.S. District Court, Northern District of
Texas, using the electronic case filing system of the Courts. I hereby certify that I have
served all counsel of record electronically as authorized by Federal Rules of Civil Procedure
5(b)(2).
- 4 -
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
Plaintiff, |
|||
v. |
|||
XXXX-XXXXXX XXXXX; CAMBRIDGE ONALP, INC.; CAMBRIDGE
NASSAU BAY GP LLC; 6000 GREENVILLE, INC.; XXXXX MOB,
INC.; 0000 XXXXXXX XXXXX, INC.; CAMBRIDGE XXXXXXX
MOB, INC.; CAMBRIDGE TARRANT, INC.; CHMP MANAGER,
LLC; CAMBRIDGE B/R, INC.; CAMBRIDGE-GREENVILLE
DALLAS, LLC; PMC CAMBRIDGE OF PLANO, LTD;
CAMBRIDGE-CROWN ATRIUM LLC; and CAMBRIDGE NORTH
TEXAS HOLDINGS, LLC,
|
No. 3:09-cv-02256-K |
||
Defendants. |
|||
XXXX-XXXXXX XXXXX; CAMBRIDGE ONALP, INC.; CAMBRIDGE
NASSAU BAY GP LLC; 6000 GREENVILLE, INC.; XXXXX MOB,
INC.; 0000 XXXXXXX XXXXX, INC.; CAMBRIDGE XXXXXXX
MOB, INC.; CAMBRIDGE TARRANT, INC.; CHMP MANAGER,
LLC; CAMBRIDGE B/R, INC.; CAMBRIDGE-GREENVILLE
DALLAS, LLC; PMC CAMBRIDGE OF PLANO, LTD;
CAMBRIDGE-CROWN ATRIUM LLC; and CAMBRIDGE NORTH
TEXAS HOLDINGS, LLC, |
|||
Counterclaim Plaintiffs, |
|||
v. |
|||
CARE INVESTMENT TRUST INC.; CIT HEALTHCARE LLC;
FLINT X. XXXXXXXX; ERC SUB, L.P.; and ERC SUB LLC, |
|||
Counterclaim and Third |
|||
Party Defendants. |
|||
[PROPOSED] AGREED ORDER OF DISMISSAL, WITH PREJUDICE
[PROPOSED] AGREED ORDER OF DISMISSAL, WITH PREJUDICE
The Court has considered the Parties’ Stipulation of Dismissal, With Prejudice, and finds
that the same should be GRANTED.
IT IS, THEREFORE, ORDERED, that the captioned action, and all claims, cross-claims,
counterclaims, and third-party claims asserted therein, are hereby DISMISSED, WITH PREJUDICE.
Each Party shall bear its own costs.
SO ORDERED.
Signed on ________________, 2011.
| XX XXXXXXXX | ||||
| UNITED STATES DISTRICT JUDGE | ||||
AGREED AS TO FORM AND SUBSTANCE:
By:
|
By: | |||||||||
| Texas Bar No. 06983000 | Texas Bar No. 04506600 | |||||||||
| E-mail: xxxxxx.xxxxxx@xxxxxx.xxx | Email: xxxxxx@xx.xxx | |||||||||
| FIGARI & XXXXXXXXX, LLP | Xxxxxxx X. Xxxxxxxx | |||||||||
| 0000 Xxxx xx Xxxxxxx Xxxxx | Xxxxx Bar No. 24007151 | |||||||||
| 000 Xxxx Xxxxxx, Xxxxx 0000 | Email: xxxxxxxxx@xx.xxx | |||||||||
| Xxxxxx, Xxxxx 00000-0000 | XXXXXXX XXXXXX L.L.P. | |||||||||
| Telephone: (000) 000-0000 | 000 Xxxx Xxxxxx, Xxxxx 0000 | |||||||||
| Facsimile: (000) 000-0000 | Xxxxxx, Xxxxx 00000 | |||||||||
| Telephone: (000) 000-0000 | ||||||||||
| Facsimile: (000) 000-0000 | ||||||||||
By:
|
By: | |||||||||
| Xxxxx X. Xxxxxxxxxx (pro hac vice)
E-mail: xxxxxxxxxxx@xxx.xxx Xxxxx X. Xxxxxx (pro hac vice) E-mail: xxxxxxx@xxx.xxx XxXXXXXXX WILL & XXXXX LLP 000 Xxxxxxxxxx Xxxxxx, X.X. Xxxxxxxxxx, X.X. 00000-0000 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 |
Xxxxxxx X. Xxxxx (pro hac vice)
E-mail: xxxxxx@xxxxxxxxx.xxx Xxxxx X. Xxxxxxx (pro hac vice) E-mail: xxxxxxxx@xxxxxxxxx.xxx XXXX, WEISS, RIFKIND, XXXXXXX & XXXXXXXX LLP 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 |
|||||||||
| Attorneys for Plaintiff and Counterclaim Defendant Care Investment Trust, Inc. and for Third-Party Defendants CIT Healthcare LLC; Flint X. Xxxxxxxx; ERC Sub, L.P.; and ERC Sub LLC | Attorneys for Defendants and Counterclaim Plaintiffs Xxxx-Xxxxxx Xxxxx, Cambridge Onalp Inc., Cambridge Nassau Bay GP LLC, 6000 Greenville Inc., Xxxxx MOB Inc., 0000 Xxxxxxx Xxxxx Inc., Cambridge Xxxxxxx MOB Inc., Cambridge Tarrant Inc., CHMP Manager LLC, Cambridge B/R Inc., Cambridge-Greenville Dallas LLC, PMC Cambridge of Plano Ltd., Cambridge Crown Atrium LLC and Cambridge North Texas Holdings LLC | |||||||||
EXHIBIT B
Escrow Termination Agreement
ESCROW TERMINATION AGREEMENT
THIS ESCROW TERMINATION AGREEMENT (the “Termination Agreement”) is dated effective as
of April 15, 2011 (the “Termination Date”), by and among ERC SUB, L.P. (the “Care
Party”), a Delaware limited partnership; the CAMBRIDGE LIMITED PARTNERS (the “Cambridge
Limited Partners”) and the CAMBRIDGE MANAGING OWNERS (the “Cambridge Managing Owners”)
each as identified on Exhibit A attached hereto (such Cambridge Limited Partners and
Cambridge Managing Owners being collectively referred to herein as the “Cambridge Parties”,
and each, separately, as a “Cambridge Party”); and AMEGY BANK NATIONAL ASSOCIATION
(“Escrow Agent”), a national banking association. The Care Party, the Cambridge Parties,
and Escrow Agent are sometimes collectively referred to herein as the “Parties”, and
separately as a “Party”.
RECITALS:
| A. | The Parties have heretofore entered into that certain Escrow Agreement (the “Escrow Agreement”) dated as of December 31, 2007. | ||
| B. | The Care Party, certain Affiliates of the Care Party, the Cambridge Parties and certain Affiliates of the Cambridge Parties have contemporaneously herewith entered into a certain Omnibus Agreement (the “Omnibus Agreement”) pursuant to which the parties thereto agreed to cancel and terminate the Escrow Agreement. |
NOW, THEREFORE, in consideration of the Recitals and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged and confessed by the Parties, the
Parties contract and agree as provided in this Termination Agreement.
1. Recitals. The Recitals are true and correct and are incorporated herein by this
reference.
2. Termination. The Parties hereby cancel and terminate the Escrow Agreement to be
effective as of the “Termination Date”.
3. Distributions. The Care Party and the Cambridge Parties hereby jointly instruct
Escrow Agent (a) to pay to Care Investment Trust, Inc. (“Care”), a Maryland corporation,
all of the cash funds currently held by Escrow Agent pursuant to the Escrow Agreement not to exceed
$10,000; (b) to deliver 200,000 units of Escrow Security Interests (as defined in the Escrow
Agreement) to Care, as custodian for the Cambridge Parties in proportion of their relative
ownership in the Care Party, and (c) the balance of the units of Escrow Security Interests shall be
delivered to the Care Party and thereafter cancelled (collectively, the “Remaining Escrow
Property”).
4. Payment of Escrow Agent Fees. Each of (a) the Care Party and (b) the Cambridge
Parties shall pay to Escrow Agent one-half of the fees and expenses payable to Escrow Agent through
the Termination Date, as provided in Section 9 of the Escrow Agreement.
5. Waiver and Release of all Claims. Upon delivery to Care of the Remaining Escrow
Property, the Care Party, and the Cambridge Parties hereby forever waive, release, abandon, and
declare to be fully satisfied any and all claims, demands, actions, causes of action, rights and
remedies in any way or manner directly or indirectly related to the Escrow Agreement or any action,
or failure to act, of the Escrow Agent pursuant to the provisions of the Escrow Agreement.
6. Governing Law. This Termination Agreement shall be construed in accordance with
and governed by the laws of the State of Texas without giving effect to the principles of conflicts
of law thereof.
7. Binding Effect; Benefit; No Assignment. This Termination Agreement shall be
binding upon and inure to the benefit of the successors and permitted assigns of the Parties. This
Termination Agreement shall not be assignable by any Party without the prior written consent of the
other Parties.
8. Modification. This Termination Agreement may be amended or modified at any time
only by a writing executed by all of the Parties.
9. Counterparts. This Termination Agreement may be executed in one or more
counterparts (including facsimile versions), each of which will be deemed an original, but all of
which together will constitute one and the same instrument. In making proof of this Termination
Agreement, it shall not be necessary to produce or account for more than one such counterpart
executed by the party against whom enforcement of this Termination Agreement is sought.
10. Headings. The section headings contained in this Termination Agreement are
inserted for convenience only, and shall not affect in any way the meaning or interpretation of
this Termination Agreement.
11. Entire Agreement; Severability and Further Assurances. This Termination Agreement
constitutes the entire agreement among the Parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous agreements and undertakings of the Parties in connection
herewith. In the event that any one or more of the provisions contained in this Termination
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect,
then to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall
not affect any other provision of this Termination Agreement. Each of the Parties shall, at the
request of any other Party, deliver to the requesting Party all further documents or other
assurances as may reasonably be necessary or desirable in connection with this Termination
Agreement.
2
IN WITNESS WHEREOF, the Parties hereto have caused this Termination Agreement to be executed
as of the date first written above.
| CARE PARTY: | ||||||||
| ERC SUB, L.P. | ||||||||
| By: | ERC Sub, LLC, its general partner | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| CAMBRIDGE LIMITED PARTNERS: | ||||||||
| XXXX-XXXXXX XXXXX | ||||||||
| CAMBRIDGE B/R, INC. | ||||||||
| By: | ||||||||
| Name: | Xxxx-Xxxxxx Xxxxx | |||||||
| Title: | Chairman and CEO | |||||||
| CAMBRIDGE-GREENVILLE DALLAS, LLC | ||||||||
| By: | ||||||||
| Name: | Xxxx-Xxxxxx Xxxxx | |||||||
| Title: | Managing Member | |||||||
| PMC CAMBRIDGE OF PLANO, LTD. | ||||||||
| By: | Cambridge Collin, Inc., its general partner | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | Chairman and CEO | |||||||
| CAMBRIDGE-CROWN ATRIUM, LLC | ||||||||
| By: | ||||||||
| Name: | Xxxx-Xxxxxx Xxxxx | |||||||
| Title: | Managing Member | |||||||
0
| XXXXXXXXX XXXXX XXXXX HOLDINGS, LLC | ||||||||
| By: | ||||||||
| Name: | Xxxx-Xxxxxx Xxxxx | |||||||
| Title: | Managing Member | |||||||
| CAMBRIDGE MANAGING OWNERS: | ||||||||
| CAMBRIDGE NASSAU BAY GP LLC | ||||||||
| By: | ||||||||
| Name: | Xxxx-Xxxxxx Xxxxx | |||||||
| Title: | Sole Member | |||||||
| CHMP MANAGER, LLC | ||||||||
| By: | ||||||||
| Name: | Xxxx-Xxxxxx Xxxxx | |||||||
| Title: | Member | |||||||
| 6000 GREENVILLE, INC. | ||||||||
| By: | ||||||||
| Name: | Xxxx-Xxxxxx Xxxxx | |||||||
| Title: | Chairman and CEO | |||||||
| XXXXX MOB, INC. | ||||||||
| By: | ||||||||
| Name: | Xxxx-Xxxxxx Xxxxx | |||||||
| Title: | Chairman and CEO | |||||||
| CAMBRIDGE ONALP, INC. | ||||||||
| By: | ||||||||
| Name: | Xxxx-Xxxxxx Xxxxx | |||||||
| Title: | Chairman and CEO | |||||||
| 0000 XXXXXXX XXXXX, INC. | ||||||||
| By: | ||||||||
| Name: | Xxxx-Xxxxxx Xxxxx | |||||||
| Title: | Chairman and CEO | |||||||
4
| XXXXXXX MOB, INC. | ||||||||
| By: | ||||||||
| Name: | Xxxx-Xxxxxx Xxxxx | |||||||
| Title: | Chairman and CEO | |||||||
| CAMBRIDGE TARRANT, INC. | ||||||||
| By: | ||||||||
| Name: | Xxxx-Xxxxxx Xxxxx | |||||||
| Title: | Chairman and CEO | |||||||
| ESCROW AGENT: | ||||||||
| AMEGY BANK NATIONAL ASSOCIATION | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
5
EXHIBIT “A”
Cambridge Limited Partners:
Xxxx-Xxxxxx Xxxxx
Cambridge B/R, Inc.
Cambridge-Greenville Dallas, LLC
PMC Cambridge of Plano, Ltd.
Cambridge-Crown Atrium, LLC
Cambridge North Texas Holdings, LLC
Cambridge B/R, Inc.
Cambridge-Greenville Dallas, LLC
PMC Cambridge of Plano, Ltd.
Cambridge-Crown Atrium, LLC
Cambridge North Texas Holdings, LLC
Cambridge Managing Owners:
Cambridge Nassau Bay GP LLC
CHMP Manager, LLC
6000 Greenville, Inc.
Xxxxx MOB, Inc.
Cambridge Onalp, Inc.
0000 Xxxxxxx Xxxxx, Inc.
Xxxxxxx MOB, Inc.
Cambridge Tarrant, Inc.
CHMP Manager, LLC
6000 Greenville, Inc.
Xxxxx MOB, Inc.
Cambridge Onalp, Inc.
0000 Xxxxxxx Xxxxx, Inc.
Xxxxxxx MOB, Inc.
Cambridge Tarrant, Inc.
6
EXHIBIT C
The Warrants
| THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE OR FOREIGN SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT. |
| Date of Issuance | Void after | |
April 15, 2011
|
June 30, 2017 |
CARE INVESMENT TRUST, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
This Warrant is issued this 15th day of April, 2011 to Cambridge Holdings Incorporated, a
Delaware corporation (“Holdings”), or its assigns (the “Holder”) by Care Investment Trust, Inc., a
Maryland corporation (the “Company”).
1. Purchase of Shares.
(a) Number of Shares. Subject to the terms and conditions
set forth herein, the Holder is entitled, upon surrender of this Warrant at the
principal office of the Company (or at such other place as the Company shall notify
the Holder in writing), to purchase from the Company up to 300,000 fully paid and
nonassessable shares of the Company’s Common Stock, par value $0.001 per share (the
“Common Stock”).
(b) Exercise Price. The exercise price for the shares of
Common Stock issuable pursuant to this Section 1 (the “Shares”) shall be $6.00 per
share (the “Exercise Price”). The Shares and the Exercise Price shall be subject to
adjustment pursuant to Section 8 hereof.
2. Exercise Period.
(a) Subject to the terms and conditions hereof, at any time or from
time to time after the date hereof and prior to 5:00 p.m., New York time, on the
earlier of Option Closing Date set forth in Section 8(e) of that certain Omnibus
Agreement dated as of April 15, 2011 to which both the Company and Holdings are
parties (the “Omnibus Agreement”), the Care Redemption Date set forth in Section
8(f) of the Omnibus Agreement, or the date of closing of a Change of Control
Optional Purchase set forth in Section 9(r) of the Omnibus Agreement or, if such day
is not a business day, which is any day except a Saturday, Sunday or legal holiday,
on which banking institutions in the city of New York are authorized or obligated by
law or executive order to close, on the next preceding business day (the “Exercise
Period”), the Holder of this Warrant may exercise this Warrant for all or any part
of the Shares purchasable hereunder (subject to adjustment as provided herein).
3. Method of Exercise.
(a) While this Warrant remains outstanding and exercisable in
accordance with Section 2 above, the Holder may exercise, in whole or in part, the
purchase rights evidenced hereby. Such exercise shall be effected by:
(i) the surrender of the Warrant, together with a duly executed copy
of the Notice of Exercise attached hereto, to the Secretary of the Company at its
principal office (or at such other place as the Company shall notify the Holder in
writing); and
(ii) the payment to the Company of an amount equal to the aggregate
Exercise Price for the number of Shares being purchased in cash by delivery to the
Company of a certified or official bank check payable to the order of the Company or
by wire transfer of immediately available funds to an account designated by the
Company.
(b) Each exercise of this Warrant shall be deemed to have been
effected immediately prior to the close of business on the day on which this Warrant
is surrendered to the Company as provided in Section 3(a) above. At such time, the
person or persons in whose name or names any certificate for the Shares shall be
issuable upon such exercise as provided in Section 3(c) below shall be deemed to
have become the holder or holders of record of the Shares represented by such
certificate.
(c) As soon as practicable after the exercise of this Warrant in
whole or in part, the Company at its expense will cause to be issued in the name of,
and delivered to, the Holder, or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct:
(i) the Shares, in book-entry only form, evidenced by a certificate
from the transfer agent certifying the issuance of the Shares or such other document
or instrument reasonably acceptable to the holder of the Warrant evidencing due
issuance and ownership of the Shares, and
2
(ii) in case such exercise is in part only, a new warrant or warrants
(dated the date hereof) of like tenor, calling in the aggregate on the face or faces
thereof for the number of Shares equal to the number of such Shares described in
this Warrant minus the number of such Shares purchased by the Holder upon all
exercises made in accordance with Section 3(a) above or Section 4 below.
4. Cashless Exercise. In lieu of exercising this Warrant
by payment in cash, the Holder may elect to receive shares equal to the value of
this Warrant (or the portion thereof being exercised) by surrender of this Warrant
at the principal office of the Company together with notice of such election (a
“Cashless Exercise”). A Holder who Cashless Exercises shall have the rights
described in Sections 3(b) and 3(c) hereof, and the Company shall issue to such
Holder a number of Shares computed using the following formula:
X =
|
Y (A - B) | |
| A |
Where
X =
|
The number of Shares to be issued to the Holder. |
Y =
|
The number of Shares purchasable under this Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being cancelled (at the date of such calculation). | |
A =
|
The fair value of one (1) Share (at the date of such calculation). | |
B =
|
The Exercise Price (as adjusted to the date of such calculation). |
For purposes of this Section 4, the fair value of a Share shall mean the average of the
closing prices of the Shares quoted in the over-the-counter market in which the Shares are traded
or the closing price quoted on any exchange or electronic securities market on which the Shares are
listed, whichever is applicable, as published in The Wall Street Journal for the ten (10)
trading days prior to the date of determination of fair value (or such shorter period of time
during which such Shares were traded over-the-counter or on such exchange). If the Shares are not
traded on the over-the-counter market, an exchange or an electronic securities market, the fair
value shall be the price per Share as determined in good faith by the Company’s Board of Directors;
provided, the Board of Directors in determining the fair value shall not apply any discount for
lack of marketability or minority interest.
Notwithstanding any other provision herein to the contrary, the Shares issued pursuant to a
Cashless Exercise shall be held in the name of the Company pursuant to Section 4 of that certain
Omnibus Agreement dated as of April 15, 2011 and shall be subject to delivery to the Company and
cancellation for no additional consideration at such times as are set forth in Sections 8 and 9 of
the Omnibus Agreement. The Company’s transfer agent shall be notified of such provisions and shall
receive from the Company a “stop transfer” notice or transfer
3
restriction with respect to such Shares acquired through a Cashless Exercise. Shares
purchased in an exercise for cash pursuant to this Warrant shall not be subject to such
restrictions
5. Representations and Warranties of the Company. In
connection with the transactions provided for herein, the Company hereby represents
and warrants to the Holder that:
(a) Organization, Good Standing, and Qualification. The
Company is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Maryland and has all requisite corporate power and
authority to carry on its business as now conducted.
(b) Authorization. All corporate action has been taken on
the part of the Company necessary for the authorization, execution and delivery of
this Warrant. The Company has taken all corporate action required to make all the
obligations of the Company reflected in the provisions of this Warrant the valid and
enforceable obligations they purport to be. Upon the execution and delivery by the
Company of the Warrant, the Warrant will constitute the legal, valid, and binding
obligation of the Company, enforceable against the Company in accordance with its
terms, except as enforceability may be limited by bankruptcy laws, other similar
laws affecting creditors’ rights and general principles of equity affecting the
availability of specific performance and other equitable remedies.
(c) Valid Issuance of Common Stock. The Shares, when issued,
sold, and delivered in accordance with the terms of the Warrant for the
consideration expressed therein, will be duly and validly issued, fully paid and
nonassessable and free and clear of all encumbrances and preemptive rights and,
based in part upon the representations and warranties of the Holder in this Warrant,
will be issued in compliance with all applicable federal and state securities laws.
All of the outstanding shares of capital stock of the Company are validly issued and
outstanding, fully paid and nonassessable with no personal liability attaching to the ownership
thereof. The designations, powers, preferences, rights, qualifications, limitations and
restrictions in respect of each class of authorized capital stock of the Company are as set forth
in the Certificate of Incorporation delivered to Holdings and all such designations, powers,
preferences, rights, qualifications, limitations and restrictions are valid, binding and
enforceable and in accordance with all applicable laws. Except as provided for in the Certificate
of Incorporation, the Company does not have any obligation (contingent or other) to purchase,
redeem or otherwise acquire any of its equity securities or any interest therein or to pay any
dividend or make any other distribution in respect thereof. Except as set forth in the Certificate
of Incorporation, there are no voting trusts or agreements, stockholders’ agreements, pledge
agreements, buy-sell agreements, rights of first refusal, preemptive rights or proxies relating to
any securities of the Company (whether or not the Company is a party thereto).
4
6. Representations and Warranties of the Holder. In
connection with the transactions provided for herein, the Holder hereby represents
and warrants to the Company that:
(a) Authorization. Holder represents that it has full power
and authority to enter into this Warrant. This Warrant constitutes the Holder’s
valid and legally binding obligation, enforceable in accordance with its terms,
except as may be limited by (i) applicable bankruptcy, insolvency, reorganization,
or similar laws relating to or affecting the enforcement of creditors’ rights and
(ii) laws relating to the availability of specific performance, injunctive relief or
other equitable remedies.
(b) Purchase Entirely for Own Account. The Holder
acknowledges that this Warrant is entered into by the Holder in reliance upon such
Holder’s representation to the Company that the Warrant and the Shares
(collectively, the “Securities”) will be acquired for investment for the Holder’s
own account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that the Holder has no present intention of
selling, granting any participation in or otherwise distributing the same. By
acknowledging this Warrant, the Holder further represents that the Holder does not
have any contract, undertaking, agreement, or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with respect
to the Securities.
(c) Disclosure of Information. The Holder acknowledges that
it has received all the information it considers necessary or appropriate for
deciding whether to acquire the Warrant. The Holder further represents that it has
had an opportunity to ask questions and receive answers from the Company regarding
the terms and conditions of the offering of the Securities.
(d) Investment Experience. The Holder acknowledges that it
is able to fend for itself, can bear the economic risk of its investment, and has
such knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment in the Securities. The Holder
also represents it has not been organized solely for the purpose of acquiring the
Securities.
(e) Accredited Investor. The Holder is an “accredited
investor” within the meaning of Rule 501 of Regulation D, as presently in effect, as
promulgated by the Securities and Exchange Commission (the “SEC”) under the
Securities Act of 1933, as amended (the “Act”).
(f) Restricted Securities. The Holder understands that the
Securities are characterized as “restricted securities” under the Act inasmuch as
they are being acquired from the Company in a transaction not involving a public
offering and that under such laws and applicable regulations such securities may be
resold without registration under the Act, only in certain limited circumstances.
In this connection, the Holder represents that it is familiar with Rule 144, as
presently in
5
effect, as promulgated by the SEC under the Act (“Rule 144”), and understands
the resale limitations imposed thereby and by the Act.
(g) Legends. It is understood that the Securities may bear
the following legend:
| “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE OR FOREIGN SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.” |
7. Covenants of the Company. The Company covenants and
agrees that all Shares that may be issued upon the exercise of this Warrant will,
upon issuance in accordance with the terms hereof, be validly issued and
outstanding, fully paid and nonassessable, and free from all encumbrances,
preemptive rights, taxes, liens and charges with respect to the issuance thereof.
The Company further covenants and agrees that the Company will at all times during
the Exercise Period, have authorized and reserved, free from preemptive rights, a
sufficient number of shares of Common Stock to provide for the exercise of the
rights represented by this Warrant. If at any time during the Exercise Period the
number of authorized but unissued shares of Common Stock shall not be sufficient to
permit exercise of this Warrant, the Company will take such corporate action as may,
in the opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such
purposes.
8. Adjustment of Exercise Price and Number of Shares. The
number and kind of Shares purchasable upon exercise of this Warrant and the Exercise
Price shall be subject to adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If the
Company shall at any time after the issuance but prior to the expiration of this
Warrant subdivide its Common Stock, by splitup or otherwise, or combine its Common
Stock, or issue additional shares of its Common Stock as a dividend with respect to
any shares of its Common Stock, the number of Shares issuable on the exercise of
this Warrant shall forthwith be proportionately increased in the case of a
subdivision or stock dividend, or proportionately decreased in the case of a
combination. Appropriate adjustments shall also be made to the Exercise Price
payable per share, but the aggregate Exercise Price payable for the total number of
Shares purchasable under this Warrant (as adjusted) shall remain the same. Any
adjustment under this Section 8(a) shall become effective at the close of business
on the date the subdivision or combination becomes effective, or as of
6
the record date of such dividend, or in the event that no record date is fixed,
upon the making of such dividend.
(b) Reclassification, Reorganization and Consolidation. In
case of any reclassification, capital reorganization or change in the capital stock
of the Company (other than as a result of a subdivision, combination or stock
dividend provided for in Section 8(a) above), then, as a condition of such
reclassification, reorganization or change, lawful provision shall be made, and duly
executed documents evidencing the same from the Company or its successor shall be
delivered to the Holder, so that the Holder shall have the right at any time prior
to the expiration of this Warrant to purchase, at a total price equal to that
payable upon the exercise of this Warrant, the kind and amount of shares of stock
and other securities or property receivable in connection with such
reclassification, reorganization or change by a holder of the same number and type
of securities as were purchasable as Shares by the Holder immediately prior to such
reclassification, reorganization or change. In any such case appropriate provisions
shall be made with respect to the rights and interest of the Holder so that the
provisions hereof shall thereafter be applicable with respect to any shares of stock
or other securities or property deliverable upon exercise hereof, and appropriate
adjustments shall be made to the Exercise Price per Share payable hereunder,
provided the aggregate Exercise Price shall remain the same.
(c) Adjustment for Dividends or Distributions of Stock or Other
Securities or Property. In case the Company shall make or issue, or shall fix a
record date for the determination of eligible holders entitled to receive, a
dividend or other distribution with respect to the Common Stock (or any shares of
stock or other securities at the time issuable upon exercise of the Warrant) payable
in (a) securities of the Company or (b) assets (excluding regularly scheduled cash
dividends paid or payable), then, in each such case, the Holder of this Warrant on
exercise hereof at any time after the consummation, effective date or record date of
such dividend or other distribution, shall receive, in addition to the shares of
Common Stock (or such other stock or securities) issuable on such exercise prior to
such date, and without the payment of additional consideration therefore, the
securities or such other assets of the Company to which such Holder would have been
entitled upon such date if such Holder had exercised this Warrant on the date hereof
and had thereafter, during the period from the date hereof to and including the date
of such exercise, retained such shares and/or all other additional stock available
by it as aforesaid during such period giving effect to all adjustments called for by
this Section 8.
(d) Certain Events. If any event occurs of the type
contemplated by the provisions of this Section 8 but not expressly provided for by
such provisions, then the Company’s Board of Directors will make an appropriate
adjustment in the Exercise Price and the number of Shares of Common Stock issuable
upon exercise of this Warrant so as to protect the rights of the holder of the
Warrant.
7
(e) Notices.
(i) When any adjustment is required to be made in the number or kind
of shares purchasable upon exercise of the Warrant, or in the Exercise Price, the
Company shall promptly notify the Holder of such event and of the number of Shares
or other securities or property thereafter purchasable upon exercise of this
Warrant.
(ii) The Company will give written notice to the Holder at least 20
days prior to the date on which the Company closes its books or takes a record (y)
with respect to any dividend or distribution upon Common Stock or (z) with respect
to any pro rata subscription offer to holders of Common Stock.
9. No Fractional Shares or Scrip. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash payment
therefor on the basis of the Exercise Price then in effect.
10. No Stockholder Rights. Prior to exercise of this
Warrant and except as otherwise provided herein, the Holder shall not be entitled to
any rights of a stockholder with respect to the Shares, including (without
limitation) the right to vote such Shares, receive dividends or other distributions
thereon, exercise preemptive rights or be notified of stockholder meetings, and,
except as otherwise provided in this Warrant, such Holder shall not be entitled to
any stockholder notice or other communication concerning the business or affairs of
the Company.
11. Transfer and Exchange. This Warrant and all rights
hereunder may be transferred in whole or in part, on the books of the Company
maintained for such purpose at the principal office of the Company referred to
above, by the Holder hereof in person, or by duly authorized attorney, upon
surrender of this Warrant properly endorsed and upon payment of any necessary
transfer tax or other governmental charge imposed upon such transfer, provided such
transfer shall only be made to an Affiliate of such Holder, and such transfer shall
be subject to all the terms set forth in Sections 4 and 12 hereof. Upon any partial
transfer, the Company will issue and deliver to the Holder a new Warrant or Warrants
with respect to the shares of Common Stock not so transferred. Each taker and
holder of this Warrant, by taking or holding the same, consents and agrees that when
this Warrant shall have been so endorsed, the person in possession of this Warrant
may be treated by the Company, and all other persons dealing with this Warrant, as
the absolute owner hereof for any purpose and as the person entitled to exercise the
rights represented hereby, any notice to the contrary notwithstanding; provided,
however that until a transfer of this Warrant is duly registered on the books of the
Company, the Company may treat the Holder hereof as the owner for all purposes.
12. Restrictions on Transfer. No Shares acquired pursuant
to a Cashless Exercise shall be transferable by the Holder other than to an
Affiliate of such
8
Holder and subject to actual notification of the transferee of the restriction
imposed by this sentence, which restriction the transferee shall acknowledge in
writing and to which such transferee shall be subject. The Holder, by acceptance
hereof, agrees that, absent an effective registration statement filed with the SEC
under the Act, covering the disposition or sale of this Warrant or the Common Stock
issued or issuable upon exercise hereof, as the case may be, and registration or
qualification under applicable state securities laws, such Holder will not sell,
transfer, pledge, or hypothecate any or all such Warrant or Common Stock, as the
case may be, unless either (i) the Company has received an opinion of counsel, in
form and substance reasonably satisfactory to the Company, to the effect that such
registration is not required in connection with such disposition or (ii) the sale of
such securities is made pursuant to Rule 144.
13. Governing Law. This Warrant shall be governed by and
construed under the laws of the State of Maryland.
14. Successors and Assigns. The terms and provisions of
this Warrant shall inure to the benefit of, and be binding upon, the Company and the
holders hereof and their respective successors and assigns.
15. Titles and Subtitles. The titles and subtitles used
in this Warrant are used for convenience only and are not to be considered in
construing or interpreting this Warrant.
16. Notices. All notices and other communications given
or made pursuant hereto shall be in writing and shall be deemed effectively given:
(a) upon personal delivery to the party to be notified, (b) when sent by confirmed
electronic mail or facsimile if sent during normal business hours of the recipient,
and if not so confirmed, then on the next business day, (c) five (5) days after
having been sent by registered or certified mail, return receipt requested, postage
prepaid, or (d) one (1) day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of receipt. All
communications shall be sent to the respective parties at the following addresses
(or at such other addresses as shall be specified by notice given in accordance with
this Section 16):
9
If to the Company:
Care Investment Trust
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Holder:
Cambridge Holdings, Inc.
0000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
0000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
17. Finder’s Fee. Each party represents that it neither
is nor will be obligated for any finder’s fee or commission in connection with this
transaction. The Holder agrees to indemnify and to hold harmless the Company from
any liability for any commission or compensation in the nature of a finder’s fee
(and the costs and expenses of defending against such liability or asserted
liability) for which the Holder or any of its officers, partners, employees or
representatives is responsible. The Company agrees to indemnify and hold harmless
the Holder from any liability for any commission or compensation in the nature of a
finder’s fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Company or any of its officers, employees or
representatives is responsible.
18. Expenses. If any action at law or in equity is
necessary to enforce or interpret the terms of this Warrant, the prevailing party
shall be entitled to reasonable attorneys’ fees in addition to any other relief to
which such party may be entitled.
19. Entire Agreement; Amendments and Waivers. This
Warrant and any other documents delivered pursuant hereto constitute the full and
entire understanding and agreement between the parties with regard to the subjects
hereof and thereof. Nonetheless, any term of this Warrant may be amended and the
observance of any term of this Warrant may be waived (either generally or in a
particular instance and either retroactively or prospectively), with the written
consent of the Company and the Holder; or if this Warrant has been assigned in part,
by the holders or rights to purchase a majority of the Shares originally issuable
pursuant to this Warrant.
20. Severability. If any provision of this Warrant is
held to be unenforceable under applicable law, such provision shall be excluded from
this Warrant and the balance of the Warrant shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its terms.
10
21. “Market Stand-Off” Agreement. The Holder hereby agrees
that, if requested by the managing underwriter and provided the directors and
executive officers of the Company also agree to the provisions of this Section 21,
it will not, without the prior written consent of the managing underwriter, during
the period commencing on the date of the final prospectus relating to the Company’s
firm commitment underwritten sale of its Common Stock pursuant to a registration
statement filed under the Act (“Underwritten Public Offering”) and ending on the
date specified by the Company and the managing underwriter (such period not to
exceed ninety (90) days unless extended by the managing underwriter to comply with
applicable laws, rules or regulations, including, without limitation, rules of the
Financial Industry Regulatory Authority) (a) lend, offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of the Company’s capital stock
acquired through the exercise of this Warrant, or (b) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Company’s capital stock acquired through the
exercise of this Warrant, whether any such transaction described in clause (a) or
(b) above is to be settled by delivery of securities, in cash or otherwise. The
underwriters in connection with the Company’s Underwritten Public Offering are
intended third party beneficiaries of this Section and shall have the right, power
and authority to enforce the provisions hereof as though they were a party hereto.
Holder further agrees to execute such agreements as may be reasonably requested by
the underwriters in the Company’s Underwritten Public Offering that are consistent
with this Section 21 or that are reasonably necessary to give further effect
thereto.
11
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date above written,
| CARE INVESTMENT TRUST, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| ACKNOWLEDGED AND AGREED: | ||||
| CAMBRIDGE HOLDINGS INCORPORATED | ||||
By: |
||||
Name: |
||||
Title: |
||||
12
NOTICE OF EXERCISE
CARE INVESTMENT TRUST, INC.
Attention: Corporate Secretary
Attention: Corporate Secretary
The undersigned hereby elects to purchase, pursuant to the provisions of the Warrant, as
follows:
| ______ ____________ shares of Common Stock pursuant to the terms of the attached Warrant, and tenders herewith payment in cash of the Exercise Price of such Shares in full, together with all applicable transfer taxes, if any. | |||
| ______ Cashless Exercise the attached Warrant with respect to __________ Shares. | |||
The undersigned hereby represents and warrants that Representations and Warranties in Section
6 hereof are true and correct as of the date hereof.
| HOLDER: | ||||||||||
Date:
|
By: | |||||||||
| Name in which shares should be registered: | ||||||||||
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute
this form and supply required information.
Do not use this form to purchase shares.)
this form and supply required information.
Do not use this form to purchase shares.)
For Value Received, the foregoing Warrant and all rights evidenced thereby are hereby
assigned to
Name: |
||||
Address: |
||||
Dated: _________________
Holder’s |
||||
Signature: |
||||
Holder’s |
||||
Address: |
||||
NOTE: The signature to this Assignment Form must correspond with the name as it appears on the
face of the Warrant. Officers of corporations and those acting in a fiduciary or other
representative capacity should provide proper evidence of authority to assign the foregoing
Warrant.
| Agreed: | ||||||
| CARE INVESTMENT TRUST, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Date: | ||||||
