EX-10.5 FIFTH AMENDMENT TO PURCHASE/SALE AGREEMENT






Exhibit 10.5




 

 








FIFTH AMENDMENT TO




PURCHASE AND SALE AGREEMENT




AND ESCROW INSTRUCTIONS




 




BY AND BETWEEN




 




THE SELLER PARTIES IDENTIFIED HEREIN




(“Seller”)




and




THE BUYER PARTIES IDENTIFIED HEREIN




(“Buyer”)




 




Dated effective as of June 18, 2008




 

 








 









 












FIFTH AMENDMENT TO

PURCHASE AND SALE AGREEMENT

AND ESCROW INSTRUCTIONS




     THIS FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (this
“Amendment”) is made effective as of June 18, 2008 (the “Effective Date”), by and
among HCP, INC. (formerly known as Health Care Property Investors, Inc.), a Maryland corporation
(“HCP”), FAEC HOLDINGS (BC), LLC, a Delaware limited liability company (“FAEC”),
HCPI TRUST, a Maryland real estate trust (“HCPIT”), HCP DAS PETERSBURG VA, LP, a Delaware limited
partnership (“HCPDAS”), and TEXAS HCP HOLDING, L.P., a Delaware limited partnership
(“THH”), HCP CLEVELAND-WEBSTER TX 2008, LLC, a Delaware limited liability company (“HCP
Cleveland-Webster”, and together with HCP, HCPIT, HCPDAS, FAEC and THH collectively, the
“Seller”), MPT OPERATING PARTNERSHIP, L.P., a Delaware limited partnership, MPT OF CHERAW,
LLC, a Delaware limited liability company, MPT OF IDAHO FALLS, LLC, a Delaware limited liability
company, MPT OF BENNETTSVILLE, LLC, a Delaware limited liability company, MPT OF CLEVELAND, TEXAS,
L.P, a Delaware limited partnership, MPT OF WEBSTER, L.P., a Delaware limited partnership, MPT OF
TUCSON, LLC, a Delaware limited liability company, MPT OF BOSSIER CITY, LLC, a Delaware limited
liability company, MPT OF WICHITA, LLC, a Delaware limited liability company, MPT OF BRISTOL, LLC,
a Delaware limited liability company, MPT OF ENFIELD, LLC, a Delaware limited liability company,
MPT OF NEWINGTON, LLC, a Delaware limited liability company, MPT OF PROVIDENCE, LLC, a Delaware
limited liability company, MPT OF WARWICK, LLC, a Delaware limited liability company, MPT OF
SPRINGFIELD, LLC, a Delaware limited liability company d/b/a MPW-MPT of Springfield, MPT OF FT.
LAUDERDALE, LLC, a Delaware limited liability company, MPT OF POPLAR BLUFF, LLC, a Delaware limited
liability company, MPT OF WEST VALLEY CITY, LLC, a Delaware limited liability company, and MPT OF
MORGANTOWN, LLC, a Delaware limited liability company (collectively the “Buyer”), and
FAYETTEVILLE HEALTH ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership (the
“Fayetteville LP”).



RECITALS



A. Buyer and Seller entered into that certain Purchase and Sale Agreement and Escrow
Instructions, dated as of March 13, 2008, as amended by that certain First Amendment to
Purchase and Sale Agreement and Escrow Instructions, dated as of March 28, 2008, that certain
Second Amendment to Purchase and Sale Agreement and Escrow Instructions, dated as of April
1, 2008, that certain Third Amendment to Purchase and Sale Agreement and Escrow
Instructions, dated as of April 22, 2008, and that certain Fourth Amendment to Purchase and Sale
Agreement and Escrow Instructions, dated as of May 14, 2008 (as amended, the “Purchase
Agreement”), for the purchase and sale of certain properties more particularly described
therein. All capitalized terms used but not defined in this Amendment shall have the same meanings as
set forth in the Purchase Agreement.



B. Buyer and Seller wish to amend the Purchase Agreement as set forth below.




 









 








AGREEMENT




     NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned parties hereby agree that the Purchase Agreement is amended as follows:


1.
Fayetteville LP Joinder.  Fayetteville LP, by executing and delivering this Amendment,
hereby becomes a Seller under the Purchase Agreement with respect to the Fayetteville Property
and agrees to be bound by all of the terms of the Purchase Agreement to the extent that they
pertain to the Fayetteville Property, including, without limitation, Section 1.6 thereof.



2. HCP
Cleveland-Webster Joinder.  HCP Cleveland-Webster, by executing and delivering
this Amendment, hereby becomes a Seller under the Purchase Agreement and agrees to be bound
by all of the terms of the Purchase Agreement, including, without limitation, Section 1.6 thereof.
The provisions of this Section 2 shall be retroactively effective as of March 28, 2008.



3.
Fayetteville Property.  Notwithstanding any provision to the contrary contained in
Article
XII of the Purchase Agreement, Fayetteville LP shall convey and transfer to Buyer with respect
to the Fayetteville Property, fee simple title to such Fayetteville Property upon the Closing
thereof and in accordance with the provisions of the Purchase Agreement. The parties hereby
agree that as of the date hereof (i) the provisions of Article XII of the Purchase Agreement shall
have no further force or effect to the extent that they pertain to the Fayetteville Property (other
than the definitions set forth in Section 12.1 and the representations and warranties set forth in
Section 12.3(c) of the Purchase Agreement), and (ii) notwithstanding the foregoing, all
provisions of Article XII of the Purchase Agreement shall remain in full force and effect to the
extent that they pertain to the Wichita Property and the Wichita Partnership Interest.



4.
Partial Termination.  Notwithstanding anything contained herein or in the Purchase
Agreement to the contrary, in the event HCP does not, to the extent required, receive (a) consents
from the limited partners under the LP Agreements to convey and transfer fee simple title to the
Fayetteville Property to Buyer, and (b) a waiver or expiration of any rights of first refusal
granted to the Tenant or any other third party pursuant to the Lease pertaining to the Fayetteville
Property, then unless HCP and Buyer shall otherwise agree, the Purchase Agreement shall be
Partially Terminated with regard to the Fayetteville Property and the Fayetteville Property shall
be deemed to be a “Deleted Property” for purposes of the Purchase Agreement.



5.
Amendment to Schedule 1.3 - Allocated Purchase Price.  Schedule 1.3 of the Purchase
Agreement is hereby amended by replacing the rows with respect to the Allocated Purchase Price
of the Fayetteville Partnership Interest in their entirety as follows:




	 	 	 	 	 	 	 	 	 
	Fayetteville
	 	Arkansas
	 	 	19,452,000	 	 	 

	 	 	Arkansas Total:
	 	 	19,452,000	 	 	 







2









 





6.
Several Liability.  Notwithstanding any provision to the contrary contained in the
Purchase Agreement, Buyer acknowledges and agrees that the obligations of Fayetteville LP, as
seller of the Fayetteville Property under the Purchase Agreement, are several and not joint, and
that Fayetteville LP shall be personally liable and responsible only with respect to the
representations, warranties, covenants and other obligations of the Seller under the Purchase
Agreement with respect to the Fayetteville Property.



7.
Continuity of Purchase Agreement.  Except as amended by this Amendment, the
Purchase Agreement remains in full force and effect and is hereby ratified and confirmed.



8.
Counterparts.  This Amendment may be executed in counterparts, all such executed
counterparts shall constitute the same agreement, and the signature of any party to any
counterpart shall be deemed a signature to, and may be appended to, any other counterpart.



9.
Electronically Transmitted Signatures.  Telecopied signatures or signatures sent by
electronic mail may be used in place of original signatures on this Amendment. Seller and Buyer
intend to be bound by the signatures on the telecopied or electronically mailed document, are
aware that the other party will rely on the telecopied or electronically mailed signatures, and
hereby waive any defenses to the enforcement of the terms of this Amendment based on the form
of signature. Following any facsimile or electronic mail transmittal, the party shall promptly
deliver the original instrument by reputable overnight courier in accordance with the notice
provisions of the Purchase Agreement.



10.
Severability.  If any provision of this Amendment is determined by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Amendment shall nonetheless
remain in full force and effect.



11.
Governing Law.  This Amendment shall be governed by and construed in accordance
with the laws of the State of New York without regard to any principle or rule of law that would
require the application of the law of any other jurisdiction.




[Signature Pages Follow]





3









 








     IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the
Effective Date.



	 	 	 	 	 	 	 
	 	 	SELLER:	 	 
	 
	 	 	 	 	 	 
	 	 	HCP, INC.,

a Maryland corporation
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Brian J. Maas
	 	 	 	 	 
	 	 	Name:	 	Brian J. Maas
	 	 	Its:	 	Senior Vice President
	 
	 	 	 	 	 	 
	 	 	FAEC HOLDINGS (BC), LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 
	 	 	By:	 	HCP, INC., a Maryland corporation

its Sole Member
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Brian J. Maas
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Brian J. Maas
	 

	 	 	 	Its:
	 	Senior Vice President
	 
	 	 	 	 	 	 
	 	 	HCP DAS PETERSBURG VA, LP,

a Delaware limited partnership
	 
	 	 	 	 	 	 
	 	 	By:	 	HCP DAS PETERSBURG VA GP, LLC,

a Delaware limited liability company, its

General Partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Brian J. Maas
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Brian J. Maas
	 

	 	 	 	Its:
	 	Senior Vice President
	 
	 	 	 	 	 	 
	 	 	TEXAS HCP HOLDING, L.P.,

a Delaware limited partnership
	 
	 	 	 	 	 	 
	 	 	By:	 	TEXAS HCP G.P., INC., a Delaware

corporation, its General Partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Brian J. Maas
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Brian J. Maas
	 

	 	 	 	Its:
	 	Senior Vice President






Signature Page





 









 








	 	 	 	 	 	 	 	 	 
	 	 	HCP CLEVELAND-WEBSTER TX 2008, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	TEXAS HCP HOLDING, L.P., a Delaware

limited partnership, its Sole Member
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	TEXAS HCP G.P., INC., a Delaware

corporation, its General Partner
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ Brian J. Maas
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	Brian J. Maas
	 

	 	 	 	 	 	Its:
	 	Senior Vice President
	 
	 	 	 	 	 	 	 	 
	 	 	HCPI TRUST,

a Maryland real estate trust
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Brian J. Maas
	 	 	 	 	 
	 	 	Name:	 	Brian J. Maas
	 	 	Its:	 	Senior Vice President
	 
	 	 	 	 	 	 	 	 
	 	 	FAYETTEVILLE LP:
	 
	 	 	 	 	 	 	 	 
	 	 	FAYETTEVILLE HEALTH ASSOCIATES

LIMITED PARTNERSHIP,

a Delaware limited partnership
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	HCP, INC., a Maryland corporation,

its sole general partner
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ Brian J. Maas
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Brian J. Maas
	 	 	 	 	Its:	 	Senior Vice President






Signature Page




 









 








	 	 	 	 	 	 	 
	 	 	BUYER:
	 
	 	 	 	 	 	 
	 	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Michael G. Stewart
	 	 	 	 	 
	 	 	Name:	 	Michael G. Stewart
	 	 	Its:	 	EVP & General Counsel
	 
	 	 	 	 	 	 
	 	 	MPT OF BENNETTSVILLE, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 
	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Michael G. Stewart
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Michael G. Stewart
	 

	 	 	 	Its:
	 	EVP & General Counsel
	 
	 	 	 	 	 	 
	 	 	MPT OF CHERAW, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 
	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Michael G. Stewart
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Michael G. Stewart
	 

	 	 	 	Its:
	 	EVP & General Counsel






Signature Page




 









 








	 	 	 	 	 	 	 	 	 
	 	 	MPT OF CLEVELAND, TEXAS, L.P.,

a Delaware limited partnership
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	MPT OF CLEVELAND, TEXAS, LLC,

a Delaware limited liability company,

its General Partner
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ Michael G. Stewart
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	Michael G. Stewart
	 

	 	 	 	 	 	Its:
	 	EVP & General Counsel
	 
	 	 	 	 	 	 	 	 
	 	 	MPT OF BOSSIER CITY, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ Michael G. Stewart
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Michael G. Stewart
	 	 	 	 	Its:	 	EVP & General Counsel
	 
	 	 	 	 	 	 	 	 
	 	 	MPT OF TUCSON, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ Michael G. Stewart
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Michael G. Stewart
	 	 	 	 	Its:	 	EVP & General Counsel






Exhibit A




 









 








	 	 	 	 	 	 	 	 	 
	 	 	MPT OF WEBSTER, L.P.,

a Delaware limited partnership
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	MPT OF WEBSTER, LLC,

a Delaware limited liability company,

its General Partner
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ Michael G. Stewart
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	Michael G. Stewart
	 

	 	 	 	 	 	Its:
	 	EVP & General Counsel
	 
	 	 	 	 	 	 	 	 
	 	 	MPT OF IDAHO FALLS, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ Michael G. Stewart
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Michael G. Stewart
	 	 	 	 	Its:	 	EVP & General Counsel
	 
	 	 	 	 	 	 	 	 
	 	 	MPT OF WICHITA, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ Michael G. Stewart
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Michael G. Stewart
	 	 	 	 	Its:	 	EVP & General Counsel






Signature Page




 









 








	 	 	 	 	 	 	 	 	 
	 	 	MPT OF BRISTOL, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ Michael G. Stewart
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Michael G. Stewart
	 	 	 	 	Its:	 	EVP & General Counsel
	 
	 	 	 	 	 	 	 	 
	 	 	MPT OF ENFIELD, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ Michael G. Stewart
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Michael G. Stewart
	 	 	 	 	Its:	 	EVP & General Counsel
	 
	 	 	 	 	 	 	 	 
	 	 	MPT OF NEWINGTON, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ Michael G. Stewart
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Michael G. Stewart
	 	 	 	 	Its:	 	EVP & General Counsel
	 
	 	 	 	 	 	 	 	 
	 	 	MPT OF PROVIDENCE, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ Michael G. Stewart
	 	 	 	 	 	 	 
	 	 	 	 	Name:	 	Michael G. Stewart
	 	 	 	 	Its:	 	EVP & General Counsel






Signature Page




 









 








	 	 	 	 	 	 	 
	 	 	MPT OF WARWICK, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 
	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Michael G. Stewart
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Michael G. Stewart
	 

	 	 	 	Its:
	 	EVP & General Counsel
	 
	 	 	 	 	 	 
	 	 	MPT OF SPRINGFIELD, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 
	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Michael G. Stewart
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Michael G. Stewart
	 

	 	 	 	Its:
	 	EVP & General Counsel
	 
	 	 	 	 	 	 
	 	 	MPT OF FT. LAUDERDALE, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 
	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Michael G. Stewart
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Michael G. Stewart
	 

	 	 	 	Its:
	 	EVP & General Counsel
	 
	 	 	 	 	 	 
	 	 	MPT OF WEST VALLEY CITY, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 
	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Michael G. Stewart
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Michael G. Stewart
	 

	 	 	 	Its:
	 	EVP & General Counsel






Signature Page




 









 








	 	 	 	 	 	 	 
	 	 	MPT OF POPLAR BLUFF, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 
	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Michael G. Stewart
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Michael G. Stewart
	 

	 	 	 	Its:
	 	EVP & General Counsel
	 
	 	 	 	 	 	 
	 	 	MPT OF MORGANTOWN, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 
	 	 	By:	 	MPT OPERATING PARTNERSHIP, L.P.,

a Delaware limited partnership,

its Sole Member
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Michael G. Stewart
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Michael G. Stewart
	 

	 	 	 	Its:
	 	EVP & General Counsel






Signature Page




 









 








	 	 	 	 	 	 	 
	 	 	TITLE COMPANY:
	 
	 	 	 	 	 	 
	 	 	FIRST AMERICAN TITLE INSURANCE COMPANY
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ James R. Lomenick
	 	 	 	 	 
	 	 	Name:	 	James R. Lomenick
	 	 	Title:	 	Underwriting Counsel

National Commercial Services

First American Title Insurance Company
	 
	 	 	 	 	 	 
	 	 	 	 	for 5th Amendment.






Signature Page