EXHIBIT 10.5
PURCHASE AND SALE AGREEMENT
BRIERBROOK CLASS A UNITS
THIS PURCHASE AND SALE AGREEMENT (this "AGREEMENT") is made by and
between , ("SELLER") and , , or its assigns ("PURCHASER").
RECITALS
WHEREAS, Seller is the owner of units of Class A limited liability
company interest (the "Units") in Brierbrook Partners, LLC, a Tennessee limited
liability company (the "Company"); and,
WHEREAS, Buyer is the Class B Member of the Company and the Managing
Member of the Company; and,
WHEREAS, pursuant to SECTION 9.2.1 of the Operating Agreement of
Brierbrook Partners, LLC, the Seller has the right to transfer his Units to
Buyer, subject to the terms and conditions of SECTION 9.3 of the Operating
Agreement;
WHEREAS, the Seller desires to sell and the Buyer desires to purchase
all of the Seller's Units upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00),
the mutual covenants and agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller agree as follows:
ARTICLE 1.
SALE OF UNITS
SECTION 1.1 PURCHASE AND SALE OF UNITS.
At the Closing (as herein defined) and upon and subject to
the terms and conditions of this Agreement, Seller agrees to sell and convey to
Purchaser, and Purchaser agrees to purchase from Seller, all of Seller's Units
in the Company for an amount equal to the Purchase Price.
SECTION 1.2 PURCHASE PRICE.
The purchase price (the "PURCHASE PRICE") for the Units shall
be an amount equal to consideration of the Seller's election in accordance with
the Consent to Transaction, Election and Power of Attorney attached hereto as
SCHEDULE 1. At the Closing, the Purchase Price shall be paid by Purchaser
delivering to the Seller a cashier's check or wire transfer of immediately
available funds payable to the order of the Seller in an amount equal to the
Purchase Price or delivery of units of partnership interests in Windrose
Medical Properties, L.P. ("Units").
ARTICLE 2.
CLOSING
SECTION 2.1 CLOSING.
Except for any other provision of this Agreement that may
serve to extend the time for closing hereunder, the closing of the transaction
(the "CLOSING") shall occur at the offices of the Company
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within fifteen (15) days after the satisfaction of all conditions precedent set
forth in ARTICLE 3, or on any earlier date as may be designated by Purchaser
and agreed to by Seller.
ARTICLE 3.
CONDITIONS PRECEDENT
SECTION 3.1 CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATION.
The obligations of Purchaser to purchase the Units and to
consummate the transactions contemplated by this Agreement are subject to the
satisfaction, prior to the Closing, of each of the following conditions:
3.1.1 REPRESENTATIONS AND WARRANTIES. All of the representations
and warranties of Seller set forth in ARTICLE 5 shall be true at all times
prior to and as of the Closing.
3.1.2 STATUS OF SELLER. Seller shall not be in receivership or have
made any assignment for the benefit of creditors, or admitted in writing its
inability to pay its debts as they mature, or have been adjudicated a bankrupt,
or have filed or had filed against it either a petition in voluntary bankruptcy
or a petition seeking reorganization under the federal bankruptcy law or any
other similar law or statute of the United States or any state.
3.1.3 MATERIAL CHANGES. No material change shall have occurred with
respect to the condition, financial or otherwise, of the Units.
3.1.4 COMPLIANCE WITH OPERATING AGREEMENT. All requirements of
SECTION 9.3 of the Operating Agreement shall be complied with by Seller and
Purchaser.
3.1.5 WINDROSE IPO. The Windrose IPO shall be closed and funded.
"Windrose IPO" shall mean an initial public offering of shares of stock in
Windrose Medical Properties Trust, a Maryland REIT, registered and offered to
the public in accordance with the rules and regulations of the SEC and all
state agencies having jurisdiction with respect to such offering. In the event
the Windrose IPO is not closed and funded on or before August 31, 2002, this
Agreement shall become null and void, unless extended by the mutual agreement
of the parties hereto.
SECTION 3.2 FAILURE OF CONDITIONS TO PURCHASER'S OBLIGATIONS.
In the event any one or more of the conditions to Purchaser's
obligation to close on the transaction contemplated hereunder are not
completely satisfied prior to or as of the Closing, Purchaser, at Purchaser's
option, may: (a) terminate this Agreement by giving written notice of
termination to Seller, and the Parties shall have no further obligation to each
other under this Agreement; or (b) proceed to Closing.
ARTICLE 4.
CLOSING OBLIGATIONS
SECTION 4.1 XXXX OF SALE AND ASSIGNMENT OF UNITS.
With this Agreement, Seller has executed and delivered to
Purchaser a Xxxx of Sale and Assignment of Units attached hereto as EXHIBIT A.
The Xxxx of Sale and Assignment of Units shall be effective, without further
action on the part of the Seller and upon payment by Purchaser in full of the
Purchase Price to Seller as evidenced by either (a) the confirmation
Purchaser's bank of the wire transfer
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of the Purchase Price to the account specified by Seller in EXHIBIT B attached
hereto; or (b) delivery of a cashier's check made payable to Seller in the
amount of the Purchase Price by certified mail or established overnight
delivery service to Seller's address set forth in SECTION 8.3 or delivery of
Units.
SECTION 4.2 PURCHASER'S OBLIGATIONS AT CLOSING.
Purchaser shall deliver to Seller the Purchase Price by
cashier's check or wire transfer of immediately available funds or delivery of
Units.
ARTICLE 5.
SELLER'S REPRESENTATIONS AND WARRANTIES.
To induce Purchaser to purchase the Units, Seller represents and
warrants to Purchaser the following, which shall be true and accurate on the
Effective Date and on the date of Closing:
5.1.1 AUTHORITY AND BINDING NATURE. Seller has duly and validly
authorized and executed this Agreement, and has full right, title, power and
authority to enter into this Agreement and to consummate the transactions
provided for herein, and the joinder of no person or entity, except as set
forth in the Operating Agreement will be necessary to convey the Units fully
and completely to Purchaser at Closing. All documents executed by Seller and
delivered to Purchaser are duly executed, authorized and delivered by Seller
and constitute the valid, binding legal obligations of Seller.
5.1.2 TITLE. Seller has and at the Closing will have, and will
convey, transfer and assign to Purchaser, good and marketable title to the
Units, free and clear of any encumbrances, liens, security interests,
judgments, claims and any other matters affecting title to the Units, except
for the requirements of the Operating Agreement. Seller has not conveyed to any
person or entity other than Purchaser any rights to acquire any interest in the
Units.
5.1.3 VIOLATION OF AGREEMENTS. Neither execution by Seller of this
Agreement nor the consummation by Seller of the transactions contemplated by
this Agreement (i) result in a breach of any of the terms or provisions of, or
constitute a default or a condition which upon notice or lapse of time would
ripen into a default under any agreement, instrument or obligation to which
Seller is a party or by which the Units is bound; or (ii) to Seller's knowledge
constitute a violation of any Laws, order, rule or regulation applicable to
Seller or the Units of any federal, state or municipal body, or other
governmental or quasi-governmental body having jurisdiction over Seller or the
Units.
5.1.4 LITIGATION AND ADMINISTRATIVE PROCEEDINGS. There are no
lawsuits or other proceedings of any kind pending or, to Seller's actual
knowledge; threatened against Seller relating to the Units nor does Seller have
any knowledge of any basis for any such action. Seller has received no notices
of and there are no lawsuits or other proceedings or judgments relating to the
violation of any laws, ordinances, regulations, codes, orders or other
requirements specifically affecting the Units.
5.1.5 COMPLETE DOCUMENTS. All documents and materials delivered by
Seller to Purchaser pursuant to this Agreement are true, correct and complete.
5.1.6 LIENS. Seller shall not voluntarily create any additional
encumbrances on the Units prior to the Closing.
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ARTICLE 6.
REPRESENTATIONS AND COVENANTS OF PURCHASER.
SECTION 6.1 AUTHORITY AND BINDING NATURE. Purchaser has all requisite
power and authority to execute, deliver and perform this Agreement and all
instruments and agreements contemplated hereby. This Agreement has been duly
authorized, executed and delivered by Purchaser, and all consents required
under Purchaser's organizational documents or from any third party or from any
governmental authority have been obtained. All documents executed by Purchaser
and delivered to Purchaser are duly executed, authorized and delivered by
Purchaser and constitute the valid, binding legal obligations of Purchaser.
SECTION 6.2 JOINDER OF OPERATING AGREEMENT. Purchaser is the Class B
Member of the Company. With respect to the purchase of the Units, Purchaser
hereby agrees that the Class A Units purchased pursuant to this Agreement shall
be bound by the provisions of the Operating Agreement respecting Class A Units.
SECTION 6.3 OPINIONS OF COUNSEL. Purchaser shall acquire, at its expense,
all opinions of counsel required under SECTION 9.3 of the Operating Agreement
for the purchase of the Units as set forth herein.
SECTION 6.4 SURVIVAL AND INDEMNIFICATION.
6.4.1 SURVIVAL. Each party's representations and warranties survive
for a period of one year after the date of Closing.
6.4.2 INDEMNIFICATION. Each party (the "defaulting party") hereby
agrees, at its sole cost and expense, to indemnify, defend and hold the other
party (the "non-defaulting party"), its successors and assigns, harmless from
and against with respect to any and all claims, demands, actions, causes of
action, losses, damages, liabilities, costs and expenses (including, without
limitation, reasonable attorneys' fees and court costs) of any and every kind
or type, known or unknown, asserted against or incurred by the non-defaulting
party at any time arising out of (i) the breach of any representation or
warranty of a defaulting party as set forth in this Agreement; or, (ii) the
failure of the defaulting party to perform any obligation required to be
performed by such party pursuant to this Agreement. The obligation of the
defaulting party to indemnify, defend and hold the non-defaulting party armless
as aforementioned shall survive the Closing of the transaction contemplated by
this Agreement and shall continue thereafter in full force and effect for the
benefit of non-defaulting party, its successors and assigns.
ARTICLE 7.
DEFAULT
SECTION 7.1 DEFAULT.
In the event of any default under this Agreement on the part
of either party which continues for ten (10) days after receipt of notice from
the other party (except that no notice is required for default under any
obligations to be performed at Closing), the parties shall have the following
remedies:
7.1.1 DEFAULT BY PURCHASER. If Purchaser is the defaulting party,
Seller, as its sole remedy, waiving all other remedies, may terminate this
Agreement.
7.1.2 DEFAULT BY SELLER. If Seller is the defaulting party,
Purchaser, as its sole and exclusive remedies, waiving all other remedies, may,
in addition to its other legal remedies seek specific performance.
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ARTICLE 8.
MISCELLANEOUS
SECTION 8.1 BENEFITS AND RISKS OF OWNERSHIP PRIOR TO CLOSING.
Until Closing, all of the rights and liabilities of ownership
of the Units shall belong to Seller and Seller shall be entitled to all
distributions related to the Units for the period prior to Closing. All risk of
loss to the Units shall remain with Seller until Closing.
SECTION 8.2 TIME FOR PERFORMANCE.
Whenever under the terms of this Agreement the time for
performance falls on a Saturday, Sunday or federal or state legal holiday, the
time for performance shall be on the next day that is not a Saturday, Sunday or
legal holiday.
SECTION 8.3 NOTICES.
All notices, statements, demands, requests, consents,
approvals, authorizations, offers, agreements, appointments or designations
required under this Agreement or by law by either party to the other shall be
in writing and shall be given by registered or certified mail, return receipt
requested, postage prepaid, by facsimile transmission, or by reasonably
reliable courier service providing overnight or sooner delivery, delivery fee
prepaid, and addressed as follows:
TO SELLER:
TO PURCHASER:
Either party may change its address by notice to the other party. Each
notice, approval, or other communication is deemed delivered and received by
the addressee upon receipt, or upon refusal to accept delivery (the refusal
being evidenced by the U.S. Postal Service's return receipt or similar advice
from the courier company).
SECTION 8.4 INVALID PROVISIONS.
If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws, such provision shall be
fully severable. This Agreement shall be construed as if such illegal, invalid
or unenforceable provision had never comprised a part of this Agreement and the
remaining provisions of this Agreement shall remain in full force and effect
and shall not be affected by such illegal, invalid or unenforceable provision
or by its severance from this Agreement.
SECTION 8.5 COUNTERPARTS.
This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
SECTION 8.6 ENTIRE AGREEMENT.
This Agreement embodies the entire agreement and
understanding between the parties relating to the transaction contemplated
hereby and may not be amended, waived or discharged except by an instrument in
writing executed by the party against whom enforcement of such amendment,
waiver or discharge is sought.
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SECTION 8.7 GOVERNING LAW AND VENUE.
THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE
WITH AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TENNESSEE AND
VENUE SHALL BE IN XXXXXXXXXX COUNTY, TENNESSEE.
SECTION 8.8 ASSIGNMENT.
Purchaser may assign its rights under this Agreement without
Seller's consent to its affiliates. In the event of any assignment of this
Agreement by Purchaser, the assignee assumes all obligations of Purchaser
hereunder and Purchaser remains liable for all obligations of Purchaser
hereunder, jointly and severally with the assignee.
SECTION 8.9 WAIVER OF CONDITIONS.
Any Party may, at any time, waive any of the conditions to
its obligations under this Agreement; provided, however, that any such waiver
must be in writing and signed by such Party. No waiver by a Party of any breach
of this Agreement by the other Party shall be deemed to be a waiver of any
other breach by such other Party, and no acceptance of payment or performance
by a Party after any breach by the other Party shall be deemed to be a waiver
of any breach of this Agreement by such other Party. No failure or delay by a
Party to exercise any right it may have by reason of a default of the other
Party shall operate as a waiver of default or shall prevent the first Party
from exercising its remedies for such default.
SECTION 8.10 EFFECTIVE DATE.
For purposes of this Agreement, the Effective Date shall be
the date that a counterpart or counterparts of this Agreement, executed by
Seller and Purchaser, are delivered one to the other.
SECTION 8.11 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit
of the parties and their respective heirs, representatives, successors and
assigns.
SECTION 8.12 PREVAILING PARTY.
The prevailing party in any litigation concerning the
interpretation or enforcement of this Agreement is entitled to recover from the
losing party the prevailing party's attorneys' fees, court costs, and expenses,
whether at the trial or appellate level. A prevailing party includes, without
limitation, one who substantially obtains or defeats the relief sought, as the
case may be, whether by compromise, settlement, judgment, or abandonment by the
other party of its claim or defense.
[SIGNATURE PAGE FOLLOWS]
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SELLER:
BY:
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NAME:
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TITLE:
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DATE:
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PURCHASER:
BY:
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NAME:
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TITLE:
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DATE:
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EXHIBIT A
XXXX OF SALE AND ASSIGNMENT OF UNITS
TO: ("Purchaser")
FROM:
RE: Limited Liability Company Units of Brierbrook Partners, LLC
(the "Company")
STATE OF
COUNTY OF
KNOW ALL MEN BY THESE PRESENTS THAT, , , in accordance with its
operating agreement of Brierbrook Partners, LLC ( the "Company"), for and in
consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and
valuable consideration to it in hand paid by Med Properties Asset Group,
L.L.C., an Indiana limited liability company ("Buyer") has GRANTED, SOLD,
ASSIGNED, TRANSFERRED, CONVEYED, and DELIVERED and does by these presents
GRANT, SELL, ASSIGN, TRANSFER, CONVEY and DELIVER unto Buyer, all of Seller's
right, title and interest in and to of the limited liability units (the
"Units") owned by Seller in the Company.
TO HAVE AND TO HOLD the Units unto Buyer, its successors and assigns,
forever, and Seller does hereby bind itself and its successors to warrant and
forever defend, all and singular, the Units unto Buyer, its successors and
assigns, against every person whomsoever lawfully claiming or to claim the
same, or any part thereof by, through or under Seller, but not otherwise.
The agreements, covenants, warranties and representations herein set
forth shall be binding upon Seller, its successors and assigns.
hereby accepts this Xxxx of Sale and Assignment of the Units Buyer
does hereby assume and agree to perform all of Seller's rights, duties,
obligations and liabilities, as a Member, with respect to the Units to the
extent such rights, duties, obligations and liabilities arise, are to be
performed, and are attributable to the period beginning after the Closing Date.
Buyer agrees to indemnify, defend and hold harmless Seller from and
against any claim (including reasonable attorney's fees) arising out of or
relating to the Units to the extent such claim arises after the Closing Date
and is attributable to the period beginning after the Closing Date so long as
such claim is not caused by an act or omission of Seller, its employees or
agents and did not arise prior to the Closing Date. Seller agrees to indemnify,
defend and hold harmless Buyer from and against any claim (including reasonable
attorney's fees) arising out of or relating to the Units to the extent such
claim arose prior to the Closing Date or is attributable to the period ending
on the Closing Date.
This Assignment shall be binding upon Seller, its successors and
assigns and shall inure to the benefit of Buyer, its successors and assigns and
any subsequent owner of the Units.
This Assignment shall be governed by the laws of the State of
Tennessee.
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IN WITNESS WHEREOF, Seller has caused this Xxxx of Sale to be executed
by its duly authorized officer effective upon delivery of the Purchase Price as
set forth in the Agreement.
[SIGNATURE PAGE FOLLOWS]
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SELLER:
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STATE OF _________________
COUNTY OF ________________
PERSONALLY appeared before me, the undersigned authority, a Notary
Public in and for said County and State____________, with whom I am personally
acquainted, or proved to me on the basis of satisfactory evidence and who upon
oath, acknowledged himself/herself to be the within named bargainor, and that
he/she, as such bargainor executed the within instrument for the purposes
therein contained, by signing the his/her name to said Agreement.
WITNESS my hand and official seal at office in _______________________
County, _____________________ this _____ day of ________, 2002.
My Commission Expires:
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Notary Public
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EXHIBIT B
SELLER:
SELLER'S TAXPAYER IDENTIFICATION NUMBER: _________________
PURCHASE PRICE:
SELLER'S ACCOUNT: The Account set forth below is the account designated by
Seller for the wire transfer of the Purchase Price pursuant to the Agreement is
the following Account maintained by the Seller:
FINANCIAL INSTITUTION: _______________________
STREET ADDRESS: _______________________
CITY, STATE, ZIP CODE: _______________________
ABA NUMBER: _______________________
BANK'S TELEPHONE NUMBER: _______________________
SELLER'S ACCOUNT NUMBER: _______________________
CONTACT INFORMATION FOR SELLER TO CONFIRM WIRE:
____________________ (Business Telephone)
____________________ (Alternative Telephone)
____________________ (Fax Telephone)
____________________ (email)
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