Exhibit 10.5
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT (the "Agreement") is made as of this 26th day of
February, 1999, by and among Meditrust Corporation, a Delaware corporation
("REIT"), Meditrust Operating Company, a Delaware corporation ("OPCO" and,
together with REIT, the "Companies" and each a "Company"), Xxxxxxx Xxxxx
International ("MLI") and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as
agent acting for the account of MLI and as owner of the Purchase Shares (as
defined in the Purchase Agreement (as defined herein)) and successor to the
rights and obligations of MLI under the Purchase Agreement ("Xxxxxxx Xxxxx" and,
together with MLI, the "Xxxxxxx Xxxxx Parties"). Reference is made to the
Purchase Agreement dated as of February 26, 1998 by and among the parties hereto
(as amended from time to time, the "Purchase Agreement"), the Unsecured Purchase
Price Adjustment Mechanism Agreement dated as of February 26, 1998 by and among
the parties hereto (the "Unsecured Adjustment Agreement"), and the Amended and
Restated Settlement Agreement dated as of November 11, 1998 by and among the
parties hereto (the "Settlement Agreement" and, collectively with the Purchase
Agreement and the Unsecured Adjustment Agreement, the "Forward Equity
Agreements").
NOW, THEREFORE, in consideration of the agreements and covenants set forth
herein, the parties hereto hereby covenant and agree as follows:
SECTION 1. EXTENSION OF MATURITY. The parties hereto agree that the
Maturity Date set forth in Section 1(v) of the Unsecured Adjustment Agreement
shall be March 31, 1999. The parties agree that the extension of the Maturity
Date is not intended to limit the rights of the Xxxxxxx Xxxxx Parties under
Sections 4 and 5 of the Unsecured Adjustment Agreement.
SECTION 2. EXTENSION OF STANDSTILL. The parties hereto agree to extend the
Standstill (as defined in the Settlement Agreement) until March 31, 1999;
provided, that the Standstill shall terminate if (i) the Companies fail to
deliver to MLI any Interim Settlement Shares (as defined in the Unsecured
Adjustment Agreement), dividends on Interim Settlement Shares (as defined in the
Unsecured Adjustment Agreement) and cash required by Section 5 of the Unsecured
Adjustment Agreement within one (1) Business Day of any date on which such
delivery is required, and (ii) the Companies challenge in any legal proceeding
the adequacy of the consideration received by the Companies in connection with
their delivery of, or agreement to deliver, the Standstill Consideration (as
defined in the Settlement Agreement) under the Settlement Agreement or the
Excess Net Cash Proceeds (as defined below) under this Agreement. If the
Standstill is terminated pursuant to the proviso of the foregoing sentence each
day from and after February 26, 1999 through the termination of this Agreement
shall be deemed to be a Black-out Day (as defined in the Unsecured Adjustment
Agreement).
SECTION 3. COBBLESTONE EXCESS PROCEEDS. In consideration of the extension
of the Standstill by the Xxxxxxx Xxxxx Parties, the Companies agree to pay or to
otherwise deliver to the Xxxxxxx Xxxxx Parties the amount of the pre-tax cash
proceeds (net of reasonable out-of-pocket costs directly attributable to such
sale) from the sale of the entities generally known as the Cobblestone Golf
Group (the "Cobblestone Sale") in excess of $300 million (the "Excess Net Cash
Proceeds") (up to the maximum amount of the then outstanding Reference Amount
(as defined in the Unsecured Adjustment Agreement)), which Excess Net Cash
Proceeds will, upon delivery to the Xxxxxxx Xxxxx Parties, reduce the Reference
Amount in accordance with the provisions of Section 3.3 of the Unsecured
Adjustment Agreement.
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SECTION 4. BLACK-OUT PERIOD. In the event that (a) the Companies have not
closed the Cobblestone Sale and paid or otherwise delivered to the Xxxxxxx Xxxxx
Parties the Excess Net Cash Proceeds and (b) the Companies have not caused a
Resale Registration Statement (as defined in the Purchase Agreement) to be
effective, provided the Xxxxxxx Xxxxx Parties with a deliverable Prospectus and
Prospectus Supplement and provided the appropriate Resale Closing Documents (as
such terms are defined in the Purchase Agreement), in each case on or before
March 31, 1999, the Companies shall have the right to pay or otherwise deliver
to the Xxxxxxx Xxxxx Parties a Black-out Period Extension Fee (as defined in the
Purchase Agreement) of $25 million on or before April 1, 1999 (the "April 1
Extension Fee"), and solely for the purposes of extending the Black-out Period
(as defined in the Purchase Agreement) under Section 5.2 of the Purchase
Agreement, upon receipt by the Xxxxxxx Xxxxx Parties, such April 1 Extension Fee
shall have the effect of a Black-out Period Extension Fee paid or delivered to
the Xxxxxxx Xxxxx Parties on March 18, 1999 had the Maturity Date not been
extended to March 31, 1999 by Section 1 hereof, and the Black-out Period shall
be extended to April 7, 1999. The Companies acknowledge that, in the event that
the Companies have not closed the Cobblestone Sale and paid or otherwise
delivered to the Xxxxxxx Xxxxx Parties the Excess Net Cash Proceeds on or before
March 31, 1999, the continuation of the Black-out Period beyond March 31, 1999
shall entitle the Xxxxxxx Xxxxx Parties to a claim for the April 1 Extension Fee
and the continuation of the Black-out Period beyond April 7, 1999 shall entitle
the Xxxxxxx Xxxxx Parties to a claim for additional Black-out Period Extension
Fees of $25 million for each twenty (20) days thereafter as provided in Section
5.2 of the Purchase Agreement. The April 1 Extension Fee and any subsequent
Black-out Period
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Extension Fees paid or otherwise delivered to the Xxxxxxx Xxxxx Parties shall
reduce the Reference Amount (as defined in the Unsecured Adjustment Agreement)
in the manner set forth in Section 3.3 of the Unsecured Adjustment Agreement.
SECTION 5. EXPENSES. Except as specifically provided herein, the parties
shall each pay their respective fees and expenses incurred in connection with
the negotiation and execution of this Agreement and the consummation of the
transactions contemplated hereby; provided, that the Companies shall reimburse
the Xxxxxxx Xxxxx Parties for their reasonable, documented out-of-pocket
expenses incurred in connection with the transactions contemplated hereby. Such
reimbursable expenses are in addition to the amounts referred to in Section 13.9
of the Settlement Agreement.
SECTION 6. PRESS RELEASES. The provisions of the first sentence of Section
10 of the Settlement Agreement shall be applicable to the transactions
contemplated by this Agreement.
SECTION 7. EFFECT ON OTHER AGREEMENTS; CONFLICTS WITH OTHER AGREEMENTS. In
the event of any conflict between the provisions of this Agreement and the
Forward Equity Agreements, the terms and provisions of this Agreement shall
govern. Except as explicitly amended hereby, all other terms and conditions of
the Forward Equity Agreements shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first above written.
XXXXXXX XXXXX INTERNATIONAL
By:___________________________________
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By:___________________________________
Name:
Title:
MEDITRUST OPERATING COMPANY
By:___________________________________
Name:
Title:
MEDITRUST CORPORATION
By:___________________________________
Name:
Title:
