EX-10.4 FOURTH AMENDMENT PURCHASE/SALE AGREEMENT






Exhibit 10.4




 

 








 




 




 




FOURTH 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 May 14, 2008




 




 




 

 






 









 












FOURTH AMENDMENT TO

PURCHASE AND SALE AGREEMENT

AND ESCROW INSTRUCTIONS




     THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (this
“Amendment”) is made effective as of May 14, 2008 (the “Effective Date”), by and
between 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”, and
together with HCP, HCPIT, HCPDAS and FAEC collectively, the “Seller”), and 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, and MPT
OF WEST VALLEY CITY, LLC, a Delaware limited liability company (collectively, the “Buyer”).



RECITALS




     A. Buyer and Seller entered into that certain Purchase and Sale 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, and that certain Third Amendment to Purchase and Sale Agreement and Escrow
Instructions, dated as of April 17, 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, Buyer
and Seller agree that the Purchase Agreement is amended as follows:



     1. Section 4.1(c). The parties agree that the date “May 15, 2008” contained in
Section 4.1(c) of the Purchase Agreement shall, in each instance, be replaced with the date
“June 30, 2008.”



     2. 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.



     3. 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.



     4. 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.



     5. 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.



     6. 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]




2









 








     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




 









 








	 	 	 	 	 	 	 
	 	 	HCPI TRUST,

a Maryland real estate trust
	 
	 	 	 	 	 	 
	 	 	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






Signature Page




 









 








	 	 	 	 	 	 	 	 	 
	 	 	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






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