|
Exhibit 2.6
FIFTH AMENDMENT
TO
FORMATION AND CONTRIBUTION
AGREEMENT
AND JOINT ESCROW
INSTRUCTIONS
THIS FIFTH AMENDMENT TO
FORMATION AND CONTRIBUTION AGREEMENT AND JOINT ESCROW INSTRUCTIONS
(this “ Amendment ”) is made and entered into as
of April 22, 2008, 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 (“ PMB LLC ”), (iv) PMB
SPE SANTA CLARITA LLC, a California limited liability company
(“ Clarita LLC ”), (v) PMB CHULA VISTA LLC,
a California limited liability company (“ Vista LLC
”), (vi) LILIHA PARTNERS L.P., a California limited
partnership (“ Liliha LP ”), (vii) ST.
FRANCIS-LYNWOOD MEDICAL PLAZA L.P., a California limited
partnership (“ Francis LP ”), (viii) EDEN
MEDICAL PLAZA LP, a California limited partnership (“ Eden
LP ”), (ix) PMB BURBANK #1 LLC, a California limited
liability company (“ Burbank 1 LLC ”),
(x) SAN GABRIEL VALLEY MEDICAL PLAZA LLC, a California limited
liability company (“ SG Valley LLC ”),
(xi) PMB GREEN VALLEY LLC, a Nevada limited liability company
(“ Green LLC ”), (xii) THE PLAZA AT WASHOE,
LLC, a Nevada limited liability company (“ Washoe LLC
”), (xiii) THE TERRACE AT SOUTH MEADOWS, LLC, a Nevada
limited liability company (“ Terrace LLC ”),
(xiv) PMB HILLSBORO LLC, an Oregon limited liability company
(“ Hillsboro LLC ”), (xv) PMB TORRANCE 1
LLC, a California limited liability company (“ Torrance
LLC ”), (xvi) PMB BURBANK #2 LLC, a California
limited liability company (“ Burbank 2 LLC ”),
(xvii) PDP ORANGE LLC, a Delaware limited liability company
(“ Orange LLC ”), (xviii) PDP MISSION VIEJO
LLC, a Delaware limited liability company (“ Mission
LLC ”), (xix) PDP POMERADO LLC, a California limited
liability company (“ Pomerado LLC ”),
(xx) PMB PASADENA LLC, a California limited liability company
(“ Pasadena LLC ”), and (xxi) PMB GILBERT
LLC, a Delaware limited liability company (“ Gilbert
LLC ” and, together with Clarita LLC, Vista LLC, Liliha
LP, Francis LP, Eden LP, Burbank 1 LLC, SG Valley LLC, Green LLC,
Washoe LLC, Terrace LLC, Hillsboro LLC, Torrance LLC, Burbank 2
LLC, Orange LLC, Mission LLC, Pomerado LLC and Pasadena LLC, the
“ Transferors ”).
R E C I T A L
S
A. NHP, PMB LLC and the
Transferors 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 ”), and 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 ,” together with
the Third Amendment, the
1
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.
B. NHP, the Operating
Partnership, PMB LLC and the Transferors 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, PMB LLC and the Transferors hereby agree as
follows:
1. AMENDMENTS .
1.1 Existing Property
Closing Date . The Contribution Agreement is hereby amended by
deleting the first sentence of Section 7.1.1 thereof in its
entirety and inserting the following in lieu thereof:
“Subject to the
provisions of this Agreement, the Closing with respect to all of
the Existing Properties shall take place concurrently on
April 1, 2008 or such other date as the parties hereto may
agree; provided, however, that (a) the Closing of the
Contribution Transaction relating to the Property leased by Green
LLC shall take place on May 1, 2008, (b) the Closing of
the Contribution Transactions relating to the Properties leased by
Liliha LP, Terrace LLC and Hillsboro LLC shall take place on
June 1, 2008, and (c) the Closing of the Contribution
Transaction relating to the Property owned by Vista LLC shall take
place on November 1, 2008. Notwithstanding anything to the
contrary contained in Sections 7.1.3, 7.5.1 and 16.18 hereof, to
the extent that any of the dates specified in the preceding
sentence fall on a Saturday, Sunday or legal holiday, the Closing
shall take place on the next Business Day, provided that, for
purposes of any and all adjustments and prorations hereunder, the
Closing Date shall be deemed to have occurred on the dates
specified in the preceding sentence.”
1.2 Extension of Approval
Period by AIG . The Contribution Agreement is hereby amended by
deleting the last sentence of Section 16.25 thereof in its
entirety and inserting the following in lieu thereof:
“In the event that PMB
LLC fails to notify NHP in writing of the approval of this
Agreement with respect to Mission LLC, Orange LLC and the
applicable Properties by AIG on or before June 25, 2008,
(a) this Agreement shall automatically terminate with respect
to Mission LLC, Orange LLC and the applicable Properties,
(b) Mission LLC, Orange LLC and the applicable Properties
shall be removed and excluded from the terms of this Agreement, and
(c) the remainder of the terms of this Agreement shall remain
in full force and effect with respect to the other Transferors and
Properties.”
2
1.3 Investor Documents
. Notwithstanding anything to the contrary contained in the
Contribution Agreement (including Section 1.2.7 of the Third
Amendment), Transferee shall have the right to delay the issuance
of OP Units and any Certificates to the extent it reasonably
determines that any Investor Documents are materially incomplete or
inaccurate (and delay its determination as to whether the
applicable persons or entities are “Accredited
Investors” under the terms of the last sentence of
Section 2.3(b) of the Contribution Agreement) for a reasonable
period ending no later than May 7, 2008, and the delivery of
the applicable Indemnity Pledge Agreements may be delayed until the
day on which the delivery of each of the applicable Certificates
has been made.
2. MISCELLANEOUS PROVISIONS
.
2.1 Governing Law .
This Amendment and the legal relations between the parties hereto
shall be governed by and construed and enforced in accordance with
the laws of the State of California, without regard to its
principles of conflicts of law.
2.2 Counterparts .
This Amendment may be executed in as many counterparts as may be
deemed necessary and convenient, and by the different parties
hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall
constitute one and the same instrument.
2.3 Headings . The
Section headings of this Amendment are for convenience of reference
only and shall not be deemed to modify, explain, restrict, alter or
affect the meaning or interpretation of any provision
hereof.
2.4 Construction .
This Amendment shall not be construed more strictly against one
party hereto than against any other party hereto merely by virtue
of the fact that it may have been prepared by counsel for one of
the parties.
2.5 Effect of
Amendment .
|
