EXHIBIT 10.8
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
This First Amendment to Purchase and Sale Agreement (this "Amendment")
dated as of this ____ day of May, 2002 is made and entered into by and among
Windrose Medical Properties Trust, a Maryland REIT ("BUYER") and CPSIEM, LLC, a
Delaware limited liability company ("CPSIEM") and CPSIEE, LLC, a Delaware
limited liability company ("CPSIEE"). CPSIEM and CPSIEE are referred to herein
individually as a "SELLER".
RECITALS
WHEREAS, the parties heretofore entered into a Purchase and Sale
Agreement dated as of May 10, 2002, (the "Purchase Agreement") for the purchase
and sale of the Properties (as defined in the Purchase Agreement); and,
WHEREAS, pursuant to Section 3.3 of the Purchase Agreement, CPSIEE has
the right to contract with an unaffiliated third party for the sale of 0000 X.
Xxxxxxx Xxxxxx (herein the "4475 Property") at any time prior to Closing (in the
nature of a "back up contract") and has the additional right to terminate the
Purchase Agreement as to 4475 Property by written notice to Buyer on or before
June 14, 2002; and,
WHEREAS, CPSIEE agrees to waive such rights as set forth in Section 3.3
as to the 4475 Property as set forth hereinabove in consideration of the
additional consideration, covenants and agreements of Buyer set forth herein;
WHEREAS, the parties have determined to amend the Purchase Agreement as
set forth in this Amendment; and,
WHEREAS, each of the capitalized terms set forth herein, to the extent
not otherwise herein defined, shall have the meaning ascribed thereto in the
Purchase Agreement.
WHEREAS, whenever this Amendment references a "Section" the reference
is to a Section in the Purchase Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of Ten Dollars ($10.00), the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree to
amend the Purchase Agreement as follows:
1. Each of the recitals set forth above are incorporated herein
as if set forth verbatim.
2. The definition of the term "Purchase Price" contained in
Section 1 shall be deleted and the following definition of "Purchase Price"
shall be substituted in its place and stead.
"Purchase Price" shall mean the Cash Purchase Price and the Warrant and, subject
to the terms and conditions set forth herein, the O.P. Units (as herein
defined).
3. The following definitions are hereby added to Section 1:
"Corporate Partners" shall mean CB Xxxxxxx Xxxxx Corporate Partners, LLC, a
Delaware limited liability company.
"Klipsch" shall mean Xxxx X. Klipsch, an individual and resident of the State of
Indiana.
"O.P. Units" shall mean limited partnership units of Windrose Medical
Properties, L.P., a Virginia limited partnership with Buyer as its sole general
partner. Attached hereto as Schedule 1 is a draft copy of a section from the
draft S-11 relating to the Windrose IPO that describes, in summary, the terms of
the partnership agreement of Windrose Medical Properties, L.P. that will be in
effect upon completion of the Windrose IPO.
4. In Section 3.1 (a), the phrase "(described in Section 3.3
below)" shall be changed to read "(described in Section 3.1 (c) below)".
5. A new Section 3.1 (c) is hereby added as follows:
3.1 (c) Within two (2) Business Days after the execution of this Amendment,
Buyer shall deposit $100,000 in Escrow with Escrow Company in immediately
available funds (the "BETA MONEY"). The Beta Money shall be allocated to the
4475 Property.
6. Section 3.2 is deleted in its entirety and a new Section 3.2
is herby inserted in its place and stead as follows:
A. 3.2 THE WARRANT.
In addition to the Cash Purchase Price (and as to the
4475 Property, the O.P. Units), the consideration for the Properties shall
include a warrant (the "WARRANT") to purchase common stock in Windrose. The
Warrant shall be issued at Closing to Corporate Partners. The exercise price of
the Warrant shall be equal to the price per share of Windrose common stock as
offered to the public in the Windrose IPO. The number of shares that are covered
by the Warrant shall be equal to the fraction whose numerator is $300,000 and
whose denominator is the exercise price of the Warrant. The exercise period for
the Warrant shall expire two (2) years from the closing of the Windrose IPO. The
Warrant shall be in the form attached hereto as Exhibit E.
7. Section 3.3 is deleted in its entirety and a new Section 3.3
is hereby inserted in its place and stead as follows:
3.3 THE O.P. UNITS.
In addition to the Cash Purchase Price and the Warrants, provided Buyer
has not terminated this Agreement as to the 4475 Property pursuant to Section
4(d), 5(e), 15(a), 15(b) or 16(a) or terminated this Agreement as to the other
Properties pursuant to Section 13(a)(ii), the Purchase Price shall include O.P.
Units issued at Closing by Windrose Medical Properties, L.P. to Corporate
Partners. The number of O.P. Units to be issued to Corporate Partners shall be
equal to the fraction whose numerator is $150,000 and whose denominator is equal
to the price per share of Windrose common stock as offered to the public in the
Windrose IPO. The Partnership Agreement of Windrose Medical Properties, L.P.
will provide that in the event that the O.P. Units are tendered for redemption
by the holder, (a) the cash redemption price per Unit will be based on the then
current market trading price (over five day average of most current
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prices) of a single common share of Windrose; and (b) if common shares of
Windrose are issued in exchange for the Units tendered, the number of shares
issued will be exchanged for O.P. Units on a one for one basis. Sellers
acknowledge that Windrose intends to apply to list the common stock as offered
to the public in the Windrose IPO for trading on the New York Stock Exchange.
However, the shares of common stock issuable upon redemption of the O.P. Units
will not be registered under the Securities Act of 1933, as amended (the "1933
Act") and therefore may not be offered for sale, sold, transferred or otherwise
disposed of except pursuant to an effective registration statement under the
1933 Act or pursuant to an exemption from registration under the 1933 Act, and
any certificates representing the common stock issued upon redemption of O.P.
Units will bear a legend to that effect. Corporate Partners has, on the date of
this Amendment, executed and delivered to Buyer the Representation Letter
attached hereto as Schedule 2.
8.
A. Each of Section 8(a)(i) and 8(b)(i) is deleted in its entirety and each is
replaced with the following:
(i) Buyer shall not have terminated this Agreement in accordance
with Section 3.4(c), Section 4(d), Section 5(e), Section 13(a)(ii), Section
15(a) or Section 15(b) (and Sellers shall not have terminated this Agreement in
accordance with Section 5(h) or Section 13(a)(ii)) of this Agreement within the
time periods described in such Sections as to the Properties to be sold.
B. A new Section 11 (f) is hereby added as follows:
11 (f) The O.P. Units duly issued by Windrose Medical Properties, L.P. to
Corporate Partners.
9. Section 13 (a) (ii) is deleted in its entirety and a new
Section 13(a) (ii) is hereby inserted in its place and stead as follows:
(ii) If the Windrose IPO is not closed within three Business Days before the
Outside Closing Date (as may be extended pursuant to Section 13 (a) (i)), Buyer
may terminate this Agreement by giving Sellers notice of its election to
terminate based on the failure of the Windrose IPO to timely close at least
three Business Days before the Outside Closing Date. If Buyer makes such
election, then such termination shall apply only to the Properties at 0000-0000
X. Xxxxxxxxxx Xxxx and 000 X. Xxxxxx Xxxxx. With respect to the termination as
to the Property at 0000-0000 X. Xxxxxxxxxx Xxxx and 000 X. Xxxxxx Xxxxx (a)
CPSIEM shall retain all of the Alpha Money as a nonrefundable fee; (b) neither
party shall have any obligation to the other except on account of any breach of
this Agreement or except as expressly provided hereunder as to the Properties at
0000-0000 X. Xxxxxxxxxx Xxxx and 000 X. Xxxxxx Xxxxx. This Agreement shall not
terminate as to the 4475 Property, unless CPSIEE elects within five Business
Days of Buyer's notice of termination to terminate this Agreement as to the 4475
Property. In the event CPSIEE elects to terminate this Agreement as to the 4475
Property, then (a) CPSIEE shall retain all of the Beta Money as a nonrefundable
fee; (b) neither party shall have any obligations to the other except on account
of any breach of this Agreement or except as expressly provided hereunder. In
the event that CPSIEE does not timely terminate this Agreement as to the 4475
Property following Buyer's termination under this Section 13(a)(ii), then(a)
Buyer shall be deemed to have assigned this Agreement to Klipsch, and Klipsch
shall be deemed to have accepted such assignment and assumed the obligations of
Buyer hereunder; (b) Klipsch shall proceed with the purchase of the 4475
Property in accordance with the terms hereof, and (c) the Purchase Price for the
4475 Property shall be the Cash Purchase Price of $13,100,000.00. Klipsch shall
have the right to
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assign this Agreement to a limited liability company or limited partnership
organized by Klipsch for the purchase of the Property, but such assignment shall
not relieve Klipsch of his obligations hereunder.
10. The second sentence of Section 18 (l) is amended by adding at
the start of such sentence, the phrase "Except as set forth in Section 13 (a)
(ii),".
11. The Purchase Agreement, as amended by this Amendment, shall
remain in full force and effect as originally executed and delivered by the
parties hereto, except as expressly modified and amended herein. The parties
hereto hereby confirm and reaffirm all of their obligations under the Purchase
Agreement, as modified and amended by this Amendment.
12. In the event any provision of this Amendment shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding
shall not invalidate or render unenforceable any other provision hereof.
13. This Amendment may be executed in any number of counterparts
with the same effect as if all of the parties hereto had signed the same
document. All counterparts shall be construed together and shall constitute one
instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the day and year first above written.
SELLERS: CPSIEM, LLC,
A Delaware limited liability company
By:
-----------------------------------------
Xxxxxx Xxxxx, Manager
CPSIEE, LLC,
A Delaware limited liability company
By:
-----------------------------------------
Xxxxxx Xxxxx, Manager
BUYER: WINDROSE MEDICAL PROPERTIES TRUST,
A Maryland REIT
By:
-----------------------------------------
Xxxx Klipsch, Chairman and CEO
Xxxx X. Klipsch joins in this Agreement for the sole and express purpose of
evidencing his agreement that in the event Buyer is unable to purchase the 4475
Property in accordance with Section 13 (a) (ii), he hereby accepts the
assignment of this Agreement by Buyer and assumes the rights of Buyer and agrees
to fulfill the obligations of Buyer to purchase the 4475 Property in accordance
with the provisions of this Agreement at the Cash Purchase Price as set forth in
Section 13 (a) (ii), (including his right to the formation of a limited
liability company or partnership as set forth in Section 13 (a) (ii)). In such
event, prior to Closing, Klipsch and Buyer
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shall execute (and deliver to CPSIEE) an Assignment reasonably acceptable to
CPSIEE confirming such assignment and assumption. In the event Klipsch defaults
in his obligation to purchase the 4475 Property or to cause such Property to be
purchased, all in accordance with Section 13 (a) (ii), then Klipsch shall pay to
CPSIEE the sum of Four Hundred Thousand Dollars ($400,000) as liquidated damages
and not as a penalty. Such $400,000 payment shall be in addition to any
nonrefundable fee paid to CPSIEE under the Purchase Agreement. Upon such
payment, this agreement shall terminate as to the 4475 Property and neither
Klipsch nor Buyer shall have any further obligation to CPSIEE.
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Xxxx Klipsch
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