EXHIBIT 10.12
FIRST AMENDMENT TO
LIMITED LIABILITY COMPANY AGREEMENT
OF JER/NHP SENIOR HOUSING, LLC
THIS AMENDMENT (this "Amendment") is made and entered into as of the 7th
day of February, 2002, by and among NATIONWIDE HEALTH PROPERTIES, INC., a
Maryland corporation ("NHP"), and JER SENIOR HOUSING, LLC, a Delaware limited
liability company ("JER"), as members.
B A C K G R O U N D:
A. NHP and JER are parties to that certain limited liability company
agreement (the "LLC Agreement") of JER/NHP Senior Housing, LLC, a Delaware
limited liability company ("Company"), which agreement is captioned "LIMITED
LIABILITY COMPANY AGREEMENT OF JER/NHP SENIOR HOUSING, LLC", and is dated as of
August 28, 2001. Except as otherwise indicated herein, each capitalized term
used herein shall have the meaning set forth for the same in the LLC Agreement.
B. Throughout the Exclusivity Period, NHP is not permitted to acquire a
Target Asset without first providing written notice to JER of the opportunity
for the Company to participate in such acquisition on the terms set forth in the
LLC Agreement.
C. NHP has identified a portfolio of 49 Target Assets (collectively, the
"La Quinta Portfolio") owned by La Quinta Properties, Inc., a Delaware
corporation ("La Quinta") and certain of its subsidiaries (which, together with
La Quinta, are herein called "Sellers"), which are available for purchase.
D. The Members recognize that JER will not approve the participation of the
Company with respect to six of the Target Assets, which are located in North
Carolina and South Carolina (the "Carolina Target Assets"), and desire to
expedite the approval process with respect to the Target Assets in the La Quinta
Portfolio by allowing NHP to present only the remaining 43 Target Assets
(collectively, the "Modified Portfolio") in the La Quinta Portfolio.
E. The Members desire to amend the LLC Agreement on the terms and
conditions hereinafter set forth.
IN LIGHT OF THE FOREGOING, and in consideration of the mutual undertakings
of the parties hereto, it is hereby agreed as follows:
1. Acquisition Procedure. NHP will not be required to provide a separate
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Target Asset Offer Notice under Article VI of the LLC Agreement for each Target
Asset in the La Quinta Portfolio so long as NHP provides a Target Asset Offer
Notice under Article VI of the LLC Agreement with respect to the Modified
Portfolio (with a corresponding $17,000,000 reduction in the price and a
proportionate reduction in any required deposit). Without limitation
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on the foregoing, NHP shall deliver a single proposed preliminary Operating
Budget with respect to any due diligence, market, financial and other
evaluation, documentation and other anticipated costs to be incurred by or on
behalf of the Company in its evaluation of and pursuit of the possible
acquisition of the Modified Portfolio. The Acquisition Memorandum which NHP is
required to deliver under Section 6.2 of the LLC Agreement shall relate to the
Modified Portfolio in its entirety instead of having a separate Acquisition
Memorandum for each of the 43 individual Target Assets in the Modified
Portfolio. The foregoing shall not limit JER's right to require additional
information reasonably requested by JER with respect to any particular Target
Asset in the Modified Portfolio.
2. NHP Acquisition of Carolina Properties. NHP has informed JER of its
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intention to enter into a contract (pursuant to Section 6.3(f) of the LLC
Agreement) to purchase the entire La Quinta Portfolio and to acquire the
Carolina Properties on its own. NHP shall not take any action with respect to
the Carolina Properties that prejudices the rights of the Company with respect
to the Modified Portfolio. Without limitation on the foregoing: (a) such
contract shall permit NHP to assign to the Company NHP's rights to acquire the
Modified Portfolio; and (b) if NHP's failure to acquire the Carolina Properties
results in the loss of the opportunity for the Company to acquire the Modified
Portfolio, then NHP shall promptly pay all of the out-of-pocket costs incurred
by the Company or JER in connection with the La Quinta Portfolio.
3. Exclusivity Period. To the extent more than 50% of the capital required
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to acquire the Modified Portfolio is contributed by the Members because third
party financing is not available at closing, then the excess will not count
towards the $65,000,000 threshold that is part of the definition of the
Exclusivity Period on Exhibit "A" to the LLC Agreement.
4. Designated Representatives. The parties acknowledge that Xxxxx X.
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Xxxxxxxx has been replaced by Xxxxxx X. Best as a Designated Representative of
JER under Section 4.1(e) of the LLC Agreement.
5. Notices. Subject to the right to make changes under Section 14.1 of the
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LLC Agreement, notices that were previously to be sent to the attention of Xxxxx
X. Xxxxxxxx, Esq. shall instead be sent to the attention of "Legal Department
(GRB/DTW)".
6. No Other Changes. Except as expressly modified hereby, the LLC Agreement
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remains unchanged and in full force and effect and is hereby reaffirmed by the
Members.
7. Counterparts; Facsimile. This Amendment may be executed by counterpart
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and delivered by facsimile.
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IN ORDER TO EVIDENCE THEIR AGREEMENT TO THE FOREGOING, the parties hereto
have executed this Amendment in the respective places provided below.
NHP:
NATIONWIDE HEALTH PROPERTIES, INC.,
a Maryland corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Senior Vice President &
General Counsel
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JER:
JER SENIOR HOUSING, LLC,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Vice President
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