Exhibit 10.29(c)
SECOND AMENDMENT TO
THE
AMENDED AND
RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
NHP/PMB L.P.
This SECOND AMENDMENT TO THE AMENDED
AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF NHP/PMB L.P.,
dated as of February 9, 2009 (this “ Amendment
”), is being executed by NHP/PMB GP LLC, a Delaware limited
liability company (the “ General Partner ”), as
the general partner of NHP/PMB L.P., a Delaware limited partnership
(the “ Partnership ”). Capitalized terms used,
but not otherwise defined herein, shall have the respective
meanings ascribed thereto in the Partnership Agreement (as defined
below).
WHEREAS, the General Partner, the
Limited Partners and Nationwide Health Properties, Inc., a Maryland
corporation (for the sole purpose of agreeing to the provisions of
Article XVI thereof) entered into that certain Amended and Restated
Agreement of Limited Partnership of NHP/PMB L.P., dated as of
April 1, 2008, as amended by the First Amendment thereto,
dated as of May 12, 2008 (as so amended, the “
Partnership Agreement ”);
WHEREAS, the General Partner has
proposed this amendment of the Partnership Agreement, and Limited
Partners holding a majority of the outstanding Class A
Partnership Units (or their attorney-in-fact) held by all Limited
Partners have approved or consented to it pursuant to
Section 14.2 of the Partnership Agreement.
NOW, THEREFORE, in consideration of
the foregoing, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
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1.
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Amendment
to Definition of “Adjustment Factor”
.
Section 1.6 of the Partnership Agreement is hereby amended to
read in its entirety as follows:
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“Section 1.6 “
Adjustment Factor ” means 1.0; provided, however, that
if, after the date of the Contribution Agreement: (a) NHP
(i) declares or pays a dividend on its outstanding REIT Shares
in REIT Shares or makes a distribution to all holders of its
outstanding REIT Shares in REIT Shares; (ii) splits or
subdivides its outstanding REIT Shares; or (iii) effects a
reverse stock split or otherwise combines its outstanding REIT
Shares into a smaller number of REIT Shares, unless, in any such
event, a similar transaction is effected with respect to the
Partnership Units (so that the value of a Class A Partnership
Unit relative to a REIT Share remains unchanged) (herein, an
“ Equivalent Class A Partnership Unit Value
Transaction ”), then the Adjustment Factor shall be
adjusted by multiplying the Adjustment Factor in effect immediately
prior to such adjustment by a fraction, (1) the numerator of
which shall be the number of REIT Shares issued and outstanding on
the record date for such dividend, distribution, split,
subdivision, reverse split or combination (assuming for such
purposes that such dividend, distribution, split, subdivision,
reverse split or
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combination has occurred as of such
time) and (2) the denominator of which shall be the number of
REIT Shares issued and outstanding on the record date for such
dividend, distribution, split, subdivision, reverse split or
combination (assuming for such purposes that such dividend,
distribution, split, subdivision, reverse split or combination has
not occurred as of such time); (b) NHP distributes any rights,
options or warrants to all holders of its REIT Shares to subscribe
for or to purchase or to otherwise acquire REIT Shares (or other
securities or rights convertible into, exchangeable for or
exercisable for REIT Shares) at a price per share less than the
Market Value of a REIT Share on the record date for such
distribution (each a “ Distributed Right ”),
unless a similar transaction is effected with respect to the
Partnership Units (in which holders of Partnership Units receive
similar rights, options or warrants to subscribe for or purchase
Partnership Units at a price per unit equal to the price per share
for each Distributed Right multiplied by the Adjustment Factor),
then the Adjustment Factor shall be adjusted by multiplying the
Adjustment Factor previously in effect by a fraction, (i) the
numerator of which shall be the number of REIT Shares issued and
outstanding on the record date plus the maximum number of REIT
Shares purchasable under such Distributed Rights and (ii) the
denominator of which shall be the number of REIT Shares issued and
outstanding on the record date plus a fraction, (1) the
numerator of which is the maximum number of REIT Shares purchasable
under such Distributed Rights times the minimum purchase price per
REIT Share under such Distributed Rights and (2) the
denominator of which is the Value of a REIT Share as of the record
date; provided, however , that, if any such Distributed
Rights expire or become no longer exercisable, then the Adjustment
Factor shall be adjusted, effective retroactive to the date of
distribution of the Distributed Rights, to reflect a reduced
maximum number of REIT Shares or any change in the minimum purchase
price for the purposes of the above fractions; or (c) NHP
shall, by dividend or otherwise, distribute to all holders of its
REIT Shares evidences of its indebtedness or assets (including
securities, but excluding cash and excluding any dividend or
distribution referred to in subsection (a) above), other than
evidences of indebtedness or assets received by NHP, directly or
indirectly, pursuant to a distribution by the Partnership, then the
Adjustment Factor shall be adjusted to equal the amount determined
by multiplying the Adjustment Factor in effect immediately prior to
the close of business on the date fixed for determination of
shareholders entitled to receive such distribution by a fraction,
(i) the numerator shall be such Market Value of a REIT Share
on the date fixed for such determination and (ii) the
denominator shall be the Market Value of a REIT Share on the dated
fixed for such determination less the then fair market value (as
reasonably determined by NHP) of the portion of the evidences of
indebtedness or assets so distributed applicable to one REIT Share.
Any adjustments to the Adjustment Factor shall become effective
immediately after the effective date of such event, retroactive to
the record date, if any, for such event. By way of example of an
Equivalent Class A Partnership Unit Value Transaction, and not
as a limitation thereof, if NHP declares or pays a dividend on its
outstanding REIT Shares in REIT Shares or makes a distribution to
all holders of its outstanding REIT Shares in
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REIT Shares (including a dividend in
REIT Shares in which holders of outstanding REIT Shares may elect
to receive all or a portion of such dividend in cash, additional
REIT Shares, or a combination thereof), the Adjustment Factor shall
not be adjusted if, concurrently therewith, the Partnership
declares and promptly thereafter issues with respect to each
Class A Partnership Unit a number of new Class A
Partnership Units (or fraction thereof) equal to the product of
multiplying (x) the quotient obtained by dividing
(A)
