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EXHIBIT 10.01
SCHEDULE 4.02-1 TO THE
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
WINDROSE MEDICAL PROPERTIES, L.P.
DESIGNATION OF 7.5% SERIES A
CUMULATIVE CONVERTIBLE PREFERRED UNITS
JUNE 30, 2005
Pursuant to
Section 4.02 and Article XI of the First Amended and Restated
Agreement of Limited Partnership of
Windrose Medical Properties, L.P., the
General Partner hereby amends the
Partnership Agreement as follows in connection
with the issuance of 2,100,000 shares of
7.5% Series A Cumulative Convertible
Preferred Shares of Beneficial Interest by
Windrose Medical Properties Trust:
1. Designation and Number. A series of
Preferred Units (as defined below),
designated the "7.5% Series A Cumulative
Convertible Preferred Units" (the
"Series A Preferred Units"), is hereby
established. The number of authorized
Series A Preferred Units shall be
2,100,000.
2. Defined Terms. Capitalized terms used
herein and not otherwise defined shall
have the meanings given to such terms in
the Partnership Agreement. The
following defined terms used in this
Schedule 4.02-1 to the Partnership
Agreement shall have the meanings specified
below:
"Articles
Supplementary" means the Articles Supplementary of the General
Partner filed with the State Department of
Assessments and Taxation of the State
of Maryland on June 28, 2005, designating
the terms, rights and preferences of
the 7.5% Series A Cumulative Convertible
Preferred Shares of Beneficial
Interest, $0.01 par value per share.
"Common Units"
means all Partnership Units that are not specifically
designated as Preferred Units pursuant to
Section 4.02 of the Partnership
Agreement.
"Preferred
Units" means all Partnership Interests designated as preferred
units by the General Partner from time to
time in accordance with Section 4.02
of the Partnership Agreement.
"Series A
Preferred Return" shall have the meaning provided in Section
5(a).
"Series A
Preferred Shares" means the 7.5% Series A Cumulative
Convertible
Preferred Shares of Beneficial Interest,
$0.01 par value per share, of the
General Partner.
3. Maturity. The Series A Preferred Units
have no stated maturity and will not
be subject to any sinking fund or mandatory
redemption.
4. Rank. The Series A Preferred Units will,
with respect to distribution rights
and rights upon liquidation, dissolution or
winding up of the Partnership, rank
(a) prior or senior to all classes or
series of Common Units of the Partnership
and to all classes or series of Preferred
Units ranking junior to the Series A
Preferred Units with respect to
distribution rights or rights upon liquidation,
dissolution or winding up of the
Partnership (the "Junior Preferred Units"); (b)
on a parity with all classes or series of
Preferred Units issued by the
Partnership, the terms of
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which specifically provide that such
Preferred Units rank on a parity with the
Series A Preferred Units with respect to
distribution rights and rights upon
liquidation, dissolution or winding up of
the Partnership (the "Parity Preferred
Units"); (c) junior to all classes or
series of Preferred Units issued by the
Partnership, the terms of which
specifically provide that such Preferred Units
rank senior to the Series A Preferred Units
with respect to distribution rights
or rights upon liquidation, dissolution or
winding up of the Partnership (the
"Senior Preferred Units"); and (d) junior
to all existing and future
indebtedness of the Partnership. The term
"Preferred Units" does not include
convertible debt securities of the
Partnership, which shall rank senior to the
Series A Preferred Units prior to
conversion.
5. Distributions.
(a) Holders of
the Series A Preferred Units shall be entitled to receive,
when and as authorized by the General
Partner, and declared by the Partnership
out of funds of the Partnership legally
available for payment, preferential
cumulative cash distributions at the rate
of 7.5% per annum of the Base
Liquidation Preference (as defined below)
per share (equivalent to a fixed
annual amount of $1.875 per share) (the
"Series A Preferred Return"). Such
distributions shall be cumulative from the
date of original issue and shall be
payable quarterly on or before the 20th day
of February, May, August and
November of each year (or, if not a
business day, the next succeeding business
day, each a "Distribution Payment Date")
for the period ending on such
Distribution Payment Date, commencing on
the date of issue. "Business day" shall
mean any day other than a Saturday, Sunday
or other day on which commercial
banks in the City of New York are
authorized or required to close. The first
distribution will be paid on August 20,
2005 with respect to the period
beginning on the date of issue and ending
on August 5, 2005. Any quarterly
distribution payable on the Series A
Preferred Units for any partial
distribution period will be computed on the
basis of twelve 30-day months and a
360-day year. Distributions will be payable
in arrears to holders of record of
the Series A Preferred Units as they appear
on the records of the Partnership at
the close of business on the applicable
record date, which shall be the fifth
day of the calendar month in which the
Distribution Payment Date occurs or such
other date designated by the General
Partner of the Partnership for the payment
of distributions that is not more than 30
nor less than 10 days prior to such
Distribution Payment Date (each, a "Record
Date").
(b) No
distributions on Series A Preferred Units shall be authorized by
the
General Partner or declared or paid or set
apart for payment by the Partnership
at such time as the terms and provisions of
any agreement of the General Partner
or the Partnership, including any agreement
relating to the indebtedness of
either of them, prohibits such declaration,
payment or setting apart for payment
or provides that such declaration, payment
or setting apart for payment would
constitute a breach thereof or a default
thereunder, or if such declaration or
payment shall be restricted or prohibited
by law.
(c)
Notwithstanding the foregoing, distributions on the Series A
Preferred
Units will accrue whether or not the
Partnership has earnings, whether or not
there are funds legally available for the
payment of such distributions and
whether or not such distributions are
declared and whether or not such is
prohibited by agreement. Accrued but unpaid
distributions on the Series A
Preferred Units will not bear interest and
holders of the Series A Preferred
Units will not be entitled to any
distributions in excess of full cumulative
distributions described above. Except as
set forth in the next sentence, no
distributions will be declared or paid or
set apart for
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payment on any Common Units of the
Partnership or any other series of Preferred
Units ranking, as to distributions, on a
parity with or junior to the Series A
Preferred Units (other than a distribution
in Common Units of the Partnership or
in any other Preferred Units ranking junior
to the Series A Preferred Units as
to distributions and upon liquidation) for
any period unless full cumulative
distributions have been or
contemporaneously are declared and paid or declared
and a sum sufficient for the payment
thereof is set apart for such payment on
the Series A Preferred Units for all past
distribution periods and the then
current distribution period. When
distributions are not paid in full (or a sum
sufficient for such full payment is not so
set apart) upon the Series A
Preferred Units and any other series of
Preferred Units ranking on a parity as
to distributions with the Series A
Preferred Units, all distributions declared
upon the Series A Preferred Units and any
other series of Preferred Units
ranking on a parity as to distributions
with the Series A Preferred Units shall
be declared pro rata so that the amount of
distributions declared per Series A
Preferred Unit and such other series of
Preferred Units shall in all cases bear
to each other the same ratio that accrued
distributions per Series A Preferred
Unit and such other series of Preferred
Units (which shall not include any
accrual in respect of unpaid distributions
for prior distribution periods if
such Preferred Units do not have a
cumulative distribution) bear to each other.
(d) Except as
provided in the immediately preceding paragraph, unless full
cumulative distributions on the Series A
Preferred Units have been or
contemporaneously are declared and paid or
declared and a sum sufficient for the
payment thereof is set apart for payment
for all past distribution periods and
the then current distribution period, no
distributions (other than in Common
Units of the Partnership or in any other
Preferred Units ranking junior to the
Series A Preferred Units as to
distributions and upon liquidation) shall be
declared or paid or set aside for payment
nor shall any other distribution be
declared or made upon the Common Units or
any other Preferred Units of the
Partnership ranking junior to or on a
parity with the Series A Preferred Units
as to distributions or upon liquidation,
nor shall any Common Units or any other
Preferred Units of the Partnership ranking
junior to or on a parity with the
Series A Preferred Units as to
distributions or upon liquidation be redeemed,
purchased or otherwise acquired for any
consideration (or any moneys be paid to
or made available for a sinking fund for
the redemption of any such shares) by
the Partnership (except by conversion into
or exchange for Common Units or other
Preferred Units of the Partnership ranking
junior to the Series A Preferred
Units as to distributions). Holders of
Series A Preferred Units shall not be
entitled to any distribution, whether
payable in cash, property or stock, in
excess of full cumulative distributions on
the Series A Preferred Units as
provided above. Any distribution made on
the Series A Preferred Units shall
first be credited against the earliest
accrued but unpaid distribution due with
respect to such shares which remains
payable.
6. Liquidation Preference.
(a) Upon any
voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Partnership, the
holders of the Series A Preferred
Units are entitled to be paid out of the
assets of the Partnership legally
available for distribution to its Partners
a liquidation preference of (x) $25
per Series A Preferred Unit (the "Base
Liquidation Preference") in cash or
property at its fair market value as
determined by the General Partner, or (y)
in the event the Partnership shall be a
party to a Transaction, as defined in
subparagraph 8(e) of the Articles
Supplementary of the General Partner, prior to
June 30, 2010 in which a majority of
the
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Common Units of the Partnership are
converted into the right to receive cash,
property or other consideration at a price,
or having a fair market value, as
determined by the General Partner, per
Series A Preferred Unit, of less than
105% of the Conversion Price as defined in,
and determined in accordance with,
the Articles Supplementary of the General
Partner in effect at the time of any
such Transaction, $26.25 per share in cash
or property at its fair market value,
as determined by the General Partner (the
"Stepped Up Liquidation Preference"),
plus in each case, an amount equal to any
accrued and unpaid distributions to
the date of payment, but without interest,
before any distribution of assets is
made to holders of the Common Units of the
Partnership or any other Preferred
Units of the Partnership that rank junior
to the Series A Preferred Units as to
liquidation rights. Notwithstanding the
foregoing, unless the Partnership is a
party to a Transaction prior to June 30,
2010, the liquidation preference on or
after June 30, 2010 shall be the Base
Liquidation Preference plus an amount
equal to any accrued and unpaid
distributions to the date of payment, but
without i
