Exhibit 2.1
ELEVENTH AMENDMENT
TO
FORMATION AND CONTRIBUTION
AGREEMENT AND JOINT ESCROW INSTRUCTIONS
THIS ELEVENTH AMENDMENT TO FORMATION
AND CONTRIBUTION AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this
“ Amendment” ) is made and entered into as of
June 1, 2009 (the “ Effective Date” ), by
and among (i) NATIONWIDE HEALTH PROPERTIES, INC., a Maryland
corporation (“ NHP” ), (ii) NHP/PMB L.P., a
Delaware limited partnership (the “ Operating
Partnership ”), (iii) PACIFIC MEDICAL BUILDINGS LLC,
a California limited liability company (“ Pac Med
LLC” ), (iv) PDP POMERADO LLC, a California limited
liability company (“ Pomerado LLC” ),
(v) PMB GILBERT LLC, a Delaware limited liability company
(“ Gilbert LLC ”), (vi) PMB BURBANK #2 LLC,
a California limited liability company (“ Burbank 2
LLC” ) and (vii) PMB PASADENA LLC, a California
limited liability company (“ Pasadena LLC” , and
together with Burbank 2 LLC, the “ Remaining Development
Property Transferors” ).
R E C I T A L S
A.(i) NHP, (ii) Pac Med LLC,
(iii) the Remaining Development Property Transferors,
(iv) Pomerado LLC, (v) Gilbert LLC, (vi) PDP Orange
LLC, a Delaware limited liability company (“ Orange
LLC” ), (vii) PDP Mission Viejo LLC, a Delaware
limited liability company (“ Mission LLC” ),
(viii) Liliha Partners L.P., a California limited partnership
(“ Liliha LP” ), (ix) The Plaza at Washoe,
LLC, a Nevada limited liability company (“ Washoe LLC
”), (x) The Terrace at South Meadows, LLC, a Nevada
limited liability company (“ Terrace LLC” ),
(xi) PMB SPE Santa Clarita LLC, a California limited liability
company (“ Clarita LLC ”), (xii) St.
Francis-Lynwood Medical Plaza L.P., a California limited
partnership (“ Francis LP” ), (xiii) Eden
Medical Plaza LP, a California limited partnership (“ Eden
LP” ), (xiv) PMB Burbank #1 LLC, a California
limited liability company (“ Burbank 1 LLC” ),
(xv) San Gabriel Valley Medical Plaza LLC, a California
limited liability company (“ SG Valley LLC” ),
(xvi) PMB Green Valley LLC, a Nevada limited liability company
(“ Green LLC” ), (xvii) PMB Torrance 1 LLC,
a California limited liability company (“ Torrance
LLC” ), (xviii) PMB Hillsboro LLC, an Oregon limited
liability company (“ Hillsboro LLC ”), and
(xix) PMB Chula Vista LLC, a California limited liability
company (“ Vista LLC” ) , entered into
that certain Formation and Contribution Agreement and Joint Escrow
Instructions, dated as of February 25, 2008 (the “
Original Contribution Agreement” ), as amended by that
certain First Amendment to Formation and Contribution Agreement and
Joint Escrow Instructions, dated as of March 10, 2008 (the
“ First Amendment” ), as further amended by that
certain Letter Agreement Re: Due Diligence Waiver Letter and Second
Amendment to that certain Formation and Contribution Agreement and
Joint Escrow Instructions, dated as of March 14, 2008 (the
“ Second Amendment ”), as further amended by
that certain Third Amendment to Formation and Contribution
Agreement and Joint Escrow Instructions, dated as of March 26,
2008 (the “ Third Amendment” ), as further
amended by that certain Fourth Amendment to Formation and
Contribution Agreement and Joint Escrow Instructions, dated as of
March 28, 2008 (the “ Fourth Amendment ”),
as further amended by that certain Fifth Amendment to Formation and
Contribution Agreement and Joint Escrow Instructions, dated as of
April 22, 2008 (the “ Fifth Amendment” ),
as further amended by that certain Sixth Amendment to Formation and
Contribution Agreement and Joint Escrow Instructions, dated as of
May 12, 2008 (the “ Sixth Amendment” ), as
further amended by that certain Seventh Amendment to Formation and
Contribution Agreement and Joint Escrow Instructions, dated as of
June 24, 2008 (the “ Seventh Amendment ”),
as further amended by that certain Eighth Amendment to Formation
and Contribution Agreement and
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Joint Escrow Instructions, dated as of
July 25, 2008 (the “ Eighth Amendment” ),
as further amended by that certain Ninth Amendment to Formation and
Contribution Agreement and Joint Escrow Instructions, dated as of
August 27, 2008 (the “ Ninth Amendment” ),
and as further amended by that certain Tenth Amendment to Formation
and Contribution Agreement and Joint Escrow Instructions, entered
into on October 21, 2008, but effective as of
September 30, 2008 (the “ Tenth Amendment
”, and together with the Ninth Amendment, the Eighth
Amendment, the Seventh Amendment, the Sixth Amendment, the Fifth
Amendment, the Fourth Amendment, the Third Amendment, the Second
Amendment, the First Amendment and the Original Contribution
Agreement, the “ Contribution Agreement ”). All
capitalized terms used but not otherwise defined herein shall have
the meanings set forth for the same in the Contribution Agreement.
For avoidance of confusion, however, the parties acknowledge that
all references in the Contribution Agreement to “PMB
LLC” shall mean and refer to Pac Med LLC (as defined herein),
and where the term “PMB LLC” is used in this Amendment,
the same shall instead mean and refer to PMB LLC, a California
limited liability company (“ PMB LLC ”). Pac Med
LLC and PMB LLC are affiliates, but are separate legal
entities.
B. Pursuant
to that certain letter agreement entitled “Termination
Acknowledgement (Pomerado, Washoe and Liliha),” dated
February 26, 2009 (the “ Pomerado, Washoe and Liliha
Termination Acknowledgement ”), by and among NHP, the
Operating Partnership, Pac Med LLC, PMB LLC, PMBRES, Pomerado LLC,
Washoe LLC, and Liliha LP, the parties thereto mutually terminated
the portion of the Contribution Agreement relating to the Property
leased by Pomerado LLC (the “ Pomerado Property
”), the Property leased by Washoe LLC (the “ Washoe
Property ”), and the Property leased by Liliha LP (the
“ Liliha Property ”), upon and subject to the
terms thereof.
C. Pursuant
to that certain letter agreement entitled “Termination
Acknowledgement – Mission,” dated April 7, 2009
(the “ Mission Termination Acknowledgement ”),
by and among NHP, the Operating Partnership, Pac Med LLC, PMB LLC,
PMBRES and Mission LLC, the parties thereto mutually terminated the
portion of the Contribution Agreement relating to the Property
leased by Mission LLC (the “ Mission Property
”), upon and subject to the terms thereof.
D. Pursuant
to that certain letter agreement entitled “Termination
Acknowledgement – Orange,” dated April 7, 2009
(the “ Orange Termination Acknowledgement ”), by
and among NHP, the Operating Partnership, Pac Med LLC, PMB LLC,
PMBRES and Orange LLC, the parties thereto mutually terminated the
portion of the Contribution Agreement relating to the Property
leased by Orange LLC (the “ Orange Property ”),
upon and subject to the terms thereof.
E. Pursuant
to that certain letter agreement entitled “Termination
Acknowledgement – Gilbert,” dated June 1, 2009
(the “ Gilbert Termination Acknowledgement ”),
by and among NHP, the Operating Partnership, Pac Med LLC, PMB LLC,
PMBRES and Gilbert LLC, the parties thereto mutually terminated the
portion of the Contribution Agreement relating to the Property
leased by Gilbert LLC (the “ Gilbert Property
”), upon and subject to the terms thereof. The Pomerado,
Washoe and Liliha Termination Acknowledgement, the Mission
Termination Acknowledgement, the Orange Termination
Acknowledgement, and the Gilbert Termination Acknowledgement shall
be referred to herein, collectively, as the “ Termination
Acknowledgements .”
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F. NHP,
the Operating Partnership, Pac Med LLC, the Remaining Development
Party Transferors, Pomerado LLC and Gilbert LLC (notwithstanding
the termination of the portion of the Contribution Agreement
relating to the Pomerado Property pursuant to the Pomerado, Washoe
and Liliha Termination Acknowledgement or the Gilbert Property
pursuant to the Gilbert Termination Acknowledgement) desire to
amend the Contribution Agreement in accordance with the terms and
conditions set forth herein.
A G R E E M E N T
NOW, THEREFORE, in consideration of
the mutual covenants contained in this Amendment and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, NHP, the Operating Partnership, Pac Med
LLC, the Remaining Development Property Transferors, Pomerado LLC
and/or Gilbert LLC (as more particularly described below) hereby
agree as follows:
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1.
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COMPLETION
NOTICES AND CERTIFICATES OF OCCUPANCY .
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1.1
Completion Notice Delivery . In order
to correctly reflect the original intent of the parties, NHP, the
Operating Partnership, Pac Med LLC and the Remaining Development
Property Transferors hereby agree that Section 4.4 of the
Contribution Agreement is hereby amended by deleting the phrase
“the thirteenth (13 th ) month anniversary of the
date on which the permanent certificate of occupancy for such
Development Property was obtained, and (b) the third (3
rd
) anniversary
of the date on which the permanent certificate of occupancy for
such Development Property was obtained” and inserting the
following phrase in lieu thereof: “the thirteenth (13
th
) month
anniversary of the date on which such Development Property was
first placed in service (in a condition or state of readiness and
availability for its intended use), and (b) the third
(3 rd ) anniversary of the date
on which such Development Property was first placed in service (in
a condition or state of readiness and availability for its intended
use).”
1.2
Certificate of Occupancy Closing Delivery
. In order to correctly reflect the original
intent of the parties, NHP, the Operating Partnership, Pac Med LLC
and the Remaining Development Property Transferors hereby agree
that Section 6.1.19 of the Contribution Agreement is hereby
deleted in its entirety and replaced with the following paragraph
in lieu thereof: “Development Property Requirements. With
respect to each Development Property Contribution Transaction, the
applicable Transferor shall have (a) obtained (and delivered a
copy to Transferee of) a permanent or temporary certificate of
occupancy for such Development Property and (b) delivered a
Completion Notice and a Certificate of Representations in
accordance with Section 4.4 hereof.”
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2.
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RIGHTS OF
FIRST OFFER .
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2.1
Certain Defined Terms . As used in
this Section 2, the following defined terms shall have the
following meanings:
“ Exempt Transaction
” shall mean any of the following: (i) the leasing of
any space within any applicable Property; (ii) (A) a
“Transfer” (as hereinafter defined) of any applicable
Property or portion thereof or interest therein as security to a
bona fide lender for value, or (B) a Transfer of such Property
or portion thereof or interest therein to any such
lender
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or any subsequent holder of the note secured by
an interest in such Property or portion thereof or interest therein
by reason of a foreclosure or deed in lieu of foreclosure; or
(iii) a Transfer of any applicable Property or portion thereof
or interest therein to any affiliate of a “PMB ROFO
Party” (as hereinafter defined) or Pac Med LLC.
“ Pipeline Property
Agreement ” shall mean that certain Pipeline Property
Agreement, dated April 1, 2008 (as amended or modified from
time to time in accordance with the terms thereof), by and among
NHP, the Operating Partnership, PMB LLC and PMBRES.
“ PMB ROFO Party
” shall mean with respect to (i) the Pomerado Property,
Pomerado LLC or any affiliate of Pomerado LLC or Pac Med LLC that
acquires all or substantially all of Pomerado LLC’s right,
title and interest in and to the Pomerado Property in an Exempt
Transaction, (ii) the Gilbert Property, Gilbert LLC or any
affiliate of Gilbert LLC or Pac Med LLC that acquires all or
substantially all of Gilbert LLC’s right, title and interest
in and to the Gilbert Property in an Exempt Transaction,
(iii) the Orange Property, Orange LLC or any affiliate of
Orange LLC or Pac Med LLC that acquires all or substantially all of
Orange LLC’s right, title and interest in and to the Orange
Property in an Exempt Transaction, (iv) the Mission Property,
Mission LLC or any affiliate of Mission LLC or Pac Med LLC that
acquires all or substantially all of Mission LLC’s right,
title and interest in and to the Mission Property in an Exempt
Transaction and (v) any “Remaining Development
Property” (as hereinafter defined), Burbank 2 LLC or Pasadena
LLC, as applicable, or any affiliate of Burbank 2 LLC or Pasadena
LLC, as applicable, or Pac Med LLC that acquires all or
substantially all of Burbank 2 LLC’s or Pasadena LLC’s,
as applicable, right, title and interest in and to such Remaining
Development Property in an Exempt Transaction.
“ ROFO Term Expiration
” shall mean the earlier of (a) the date that none of
the Operating Partnership and/or NHP, directly or indirectly, own
any material portion of any Property acquired pursuant to the
Contribution Agreement, this Amendment, or any “Approved
Property” acquired pursuant to a “Pipeline Property
Contribution Agreement” (each as defined in the Pipeline
Property Agreement), and (b) the “Stipulated Expiration
Date” (as defined in the Pipeline Property
Agreement).
“ Transfer ”
shall mean any sale, assignment, transfer, grant, contribution or
conveyance of all or substantially all of the applicable PMB ROFO
Party’s right, title and interest in and to the applicable
Property.
2.2
Pomerado . Notwithstanding anything
to the contrary contained in the Contribution Agreement or the
Pomerado, Washoe and Liliha Termination Acknowledgement, for the
period from the Effective Date hereof until the ROFO Term
Expiration, if the applicable PMB ROFO Party desires to Transfer
all or substantially all of its right, title and interest in and to
the Pomerado Property, other than pursuant to an Exempt
Transaction, then such PMB ROFO Party shall and Pac Med LLC shall
cause such PMB ROFO Party to deliver a “Right of First Offer
Notice” (as hereinafter defined) to NHP and the Operating
Partnership, and the Operating Partnership shall have a
“Right of First Offer” (as hereinafter defined) to
acquire the Pomerado Property, all in accordance with the
“ROFO Procedures” (as hereinafter defined).
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2.3.
Gilbert . Notwithstanding anything to
the contrary contained in the Contribution Agreement or the Gilbert
Termination Acknowledgement, for the period from the Effective Date
hereof until the ROFO Term Expiration, if the applicable PMB ROFO
Party desires to Transfer all or substantially all of its right,
title and interest in and to the Gilbert Property, other than
pursuant to an Exempt Transaction, then such PMB ROFO Party shall
and Pac Med LLC shall cause such PMB ROFO Party to deliver a Right
of First Offer Notice to NHP and the Operating Partnership, and the
Operating Partnership shall have a Right of First Offer to acquire
the Gilbert Property, all in accordance with the ROFO
Procedures.
2.4
Orange . Notwithstanding anything to
the contrary contained in the Contribution Agreement or the Orange
Termination Acknowledgement, if anytime following the Effective
Date hereof, Pac Med LLC, Orange LLC, or any of their affiliates
acquire all of AIG’s current direct and/or indirect interests
in Orange LLC (an “ AIG Orange Buy-Out ”), then
for the period from and after such AIG Orange Buy-Out until the
ROFO Term Expiration, if the applicable PMB ROFO Party desires to
Transfer all or substantially all of its right, title and interest
in and to the Orange Property, other than pursuant to an Exempt
Transaction, then such PMB ROFO Party shall and Pac Med LLC shall
cause such PMB ROFO Party to deliver a Right of First Offer Notice
to NHP and the Operating Partnership, and the Operating Partnership
shall have a Right of First Offer to acquire the Orange Property,
all in accordance with the ROFO Procedures.
2.5
Mission . Notwithstanding anything to
the contrary contained in the Contribution Agreement or the Mission
Termination Acknowledgement, if anytime following the Effective
Date hereof, Pac Med LLC, Mission LLC, or any of their affiliates
acquire all of AIG’s current direct and/or indirect interests
in Mission LLC (an “ AIG Mission Buy-Out ”),
then for the period from and after such AIG Mission Buy-Out until
the ROFO Term Expiration, if the applicable PMB ROFO Party desires
to Transfer all or substantially all of its right, title and
interest in and to the Mission Property, other than pursuant to an
Exempt Transaction, then such PMB ROFO Party shall and Pac Med LLC
shall cause such PMB ROFO Party to deliver a Right of First Offer
Notice to NHP and the Operating Partnership, and the Operating
Partnership shall have a Right of First Offer to acquire the
Mission Property, all in accordance with the ROFO
Procedures.
2.6
Remaining Development Properties
. Notwithstanding anything to the contrary
contained in the Contribution Agreement, if the portion of the
Contribution Agreement relating to the Property leased by Burbank 2
LLC or Pasadena LLC (each, a “ Remaining Development
Property ”) is terminated (and the Closing of the
Contribution Transaction for such Remaining Development Property
fails to occur) for any reason other than a default by NHP under
the Contribution Agreement, then for the period from and after any
such termination with respect to such Remaining Development
Property until the ROFO Term Expiration, if the applicable PMB ROFO
Party desires to Transfer all or substantially all of its right,
title and interest in and to the applicable Remaining Development
Property, other than pursuant to an Exempt Transaction, then such
PMB ROFO Party shall and Pac Med LLC shall cause such PMB ROFO
Party to deliver a Right of First Offer Notice to NHP and the
Operating Partnership, and the Operating Partnership shall have a
Right of First Offer to acquire such Remaining Development
Property, all in accordance with the ROFO Procedures.
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2.7 ROFO
Procedures .
(a) As used
herein, the term “ ROFO Procedures ” shall mean
the procedures set forth in this Section 2.7.
(b) If and
when required under this Section 2 (and prior to seeking or
negotiating with any third party), the applicable PMB ROFO Party
shall and Pac Med LLC shall cause such PMB ROFO Party to deliver to
NHP and the Operating Partnership a written notice (a “
Right of First Offer Notice ”) of the applicable PMB
ROFO Party’s desire to Transfer all or substantially all of
its right, title and interest in and to the applicable Property,
which notice shall (i) contain the material economic terms
upon which such PMB ROFO Party would be willing to consummate a
Transfer of such Property, and (ii) offer (in each case, a
“ Right of First Offer “) to the Operating
Partnership the right to acquire such Property on the economic
terms as are set forth in such Right of First Offer Notice and in
accordance with the other terms of this Section 2.7. The
applicable PMB ROFO Party shall and Pac Med LLC shall cause such
PMB ROFO Party to also provide any reasonable additional
information that they have with respect to any such proposed
Transfer and the Property, which the Operating Partnership may
reasonably request in connection with its consideration of the
transaction.
(c) The
Operating Partnership shall have ten (10) Business Days from
the date upon which it receives a Right of First Offer Notice to
notify the applicable PMB ROFO Party of its exercise of such Right
of First Offer (or to notify such PMB ROFO Party of its intention
to exercise such Right of First Offer subject to the approval of
NHP’s Board of Directors, in which case the Operating
Partnership shall notify such PMB ROFO Party of its exercise of
such Right of First Offer on or before the twentieth (20
th
) Business Day
following the date upon which it receives the Right of First Offer
Notice). If the Operating Partnership has not responded to a Right
of First Offer Notice within the aforementioned time periods, the
Operating Partnership shall have been deemed to waive its Right of
First Offer with respect to such Property, subject to the
“Right of First Refusal” (as hereinafter defined) and
the other express terms of this Section 2.7 relating to such
Property. Upon the Operating Partnership’s rejection, or
deemed rejection of a Right of First Offer with respect to a
Property, the applicable PMB ROFO Party shall then have the right
to consummate a Transfer of such Property with any third party,
provided that (i) the closing of such transaction occurs
within six (6) months of the date on which the Operating
Partnership is deemed to have waived such Right of First Offer, and
(ii) there are no “ Material Changes to the ROFO
Terms ” (as hereinafter defined) from those set forth in
the original Right of First Offer Notice for such Property. As used
herein, “Material Changes to the ROFO Terms” shall mean
that the aggregate effective economic terms are less than one
hundred percent (100%) of the aggregate effective economic
terms set forth in the applicable Right of First Offer Notice. If
any such Transfer with a third party relating to a Property does
not close within six (6) months of the date on which the
Operating Partnership is deemed to have waived its Right of First
Offer with respect there
