EXHIBIT 4.13
ACKNOWLEDGMENT AND CONSENT
THIS ACKNOWLEDGMENT AND CONSENT (this "Agreement") dated as of June 12,
2002 is by and among Xxxxxxx Xxxxx Private Finance Inc., a Delaware corporation
("Lender"), The Xxxxx Company, L.C., a Utah limited liability company
("Borrower"), HCPI/Utah, LLC, a Delaware limited liability company (the "Down
REIT Sub"), each of the entities that is affiliated with Borrower and that is a
signatory hereto under the designation "Pledgor" (individually and collectively,
as the context requires, "Pledgor"), and Health Care Property Investors, Inc., a
Maryland corporation ("HCPI").
RECITALS:
1. Each Pledgor is a Non-Managing Member of the Down REIT Sub pursuant to
that certain Amended and Restated Limited Liability Company Agreement of
HCPI/Utah, LLC, dated as of January 20, 1999, as amended by Amendment Nos. 1, 2,
3, 4, 5, 6, 7, 8 and 9 dated as of June 30, 1999, November 12, 1999, January 12,
2000, March 1, 2000, December 1, 2000, March 16, 2001, March 30, 2001, October
1, 2001 and October 30, 2001, respectively (the "LLC Agreement"). Further, each
Pledgor is the record owner of the number of Non-Managing Member Units, as set
forth opposite such Pledgor's name on Exhibit A attached hereto (collectively,
the "Pledged Units"). As of the date of this Agreement, the Pledged Units are
evidenced by the LLC Unit Certificates referred to on Exhibit A (collectively,
the "Certificates"). All references herein to the Pledged Units shall include
all additional or substituted Non-Managing Member Units, from time to time
pledged to Lender pursuant to the Loan Agreement, as defined below, and all
references herein to the Certificates shall include the Certificates related to
such additional or substituted Non-Managing Member Units.
2. Lender is a party to that certain Loan and Collateral Account Agreement
(Demand Loan), dated as of the date hereof, by and among Borrower, Pledgor,
Lender and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (as such agreement
has been or may hereafter be amended, supplemented or otherwise modified from
time to time, the "Loan Agreement"), whereby Lender has agreed to lend to
Borrower from time to time, on a revolving basis, an amount not to exceed
$20,000,000 as presently established.
3. Pursuant to the Loan Agreement, the loan contemplated therein is secured
by, inter alia, (i) all of Pledgor's right, title and interest in the Pledged
Units, and (ii) all of Pledgor's right, title and interest in the Registration
Rights Agreement dated as of June 30, 1999 among Xxxxx-BPMA Holdings, L.C., a
Utah limited liability company ("Xxxxx-BPMA"), Spring Creek Medical Building,
L.L.C., a Utah limited liability company, and HCPI, as amended, and those
certain Registration Rights Agreements between each Pledgor (other than
Xxxxx-BPMA) and HCPI, as amended with respect to certain of the Pledged Units
(individually and collectively, referred to herein as the "Registration Rights
Agreement"). The loan contemplated in the Loan Agreement is also secured,
pursuant to the Loan Agreement, by similar collateral security pertaining to
HCPI/Utah II, LLC, a Delaware limited liability company ("HCPI/Utah II, LLC") as
confirmed in the Acknowledgment and Consent, dated as of the date hereof (the
"Utah II Acknowledgment and Consent"), among Lender, Borrower, HCPI, HCPI/Utah
II, LLC and certain other pledgors specified therein.
4. The parties hereto desire to enter into this Agreement for the purpose
of setting forth certain agreements among Lender, Borrower, Pledgor, HCPI and
the Down REIT Sub with respect to the Collateral.
5. Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to them in the LLC Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. As used in this Agreement, the following terms shall have the
-----------
meanings hereinafter set forth unless the context shall otherwise require.
a. "Collateral" shall mean, collectively, the Pledged Units, the Pledged
Shares and any and all securities issued or issuable on the conversion
or redemption of the Pledged Units or Pledged Shares, or cash or other
distributions of every kind in respect of any of the foregoing.
b. "Commission" shall mean the Securities and Exchange Commission.
c. "Default" shall mean a Remedy Event as defined in the Loan Agreement
or a demand under Section 8.3 of the Loan Agreement.
d. "Material Adverse Effect" shall mean (i) an adverse condition or event
material to, (ii) a material adverse effect on, or (iii) a material
adverse change in, as the case may be, any one or more of the
following: (A) the business, assets, results of operations, financial
condition or prospects of HCPI or the Down REIT Sub, as the case may
be, or (B) the ability of HCPI or the Down REIT Sub, as the case may
be, to perform its obligations under any material contract to which it
is a party.
e. "Pledged Shares" shall mean REIT Shares which are exchanged by HCPI
for any Pledged Units which are tendered to HCPI, as the Managing
Member of the Down REIT Sub, pursuant to the exchange provisions set
forth in Section 8.6 of the LLC Agreement, as the same are amended as
provided in Section 7.b.i below.
f. "Registration Rights" shall mean a Pledgor's rights under the
Registration Rights Agreement, as supplemented and modified in Section
7.b below.
g. "S-3 Expiration Date" means the date on which Form S-3 (or a similar
successor form of registration statement) is not available to HCPI for
the registration of REIT Shares pursuant to the Securities Act.
h. "Securities Act" shall mean the Securities Act of 1933, as amended.
2
2. Acknowledgment of Pledge, etc.
a. HCPI and the Down REIT Sub hereby agree, acknowledge and approve, as
being subject to, but complying with Section 11.3 of the LLC
Agreement, (i) the grant by Pledgor to Lender of a security interest
in the Collateral pursuant to the Loan Agreement, and (ii) subject to
Section 7.a below, the Transfer, to Lender or other purchaser at
foreclosure, of the Pledged Units upon foreclosure (or transfer in
lieu of foreclosure, with each reference herein to foreclosure to
include such a transfer) thereon by Lender under or pursuant to the
Loan Agreement; provided, however, that such acknowledgement and
approval of the Down REIT Sub is not, and shall not be construed to
be, the consent to or approval of any other Transfer in the event
Lender or other purchaser at foreclosure becomes the owner of any of
the Pledged Units. HCPI agrees to note in its and the Down REIT Sub's
books and records that the undersigned Pledgors have granted to Lender
security interests in the Collateral and agrees that upon delivery to
HCPI by Lender of the Certificates evidencing ownership of the Pledged
Units, together with original unit powers duly executed by Pledgor in
blank in the form attached hereto as Exhibit B, if requested by
Lender, HCPI will register in its books and records, or the books and
records of the Down REIT Sub, ownership of such Pledged Units in the
name of Lender or its nominee. HCPI agrees that it will not register
the Pledged Units (or any entitlement to any dividend, distribution or
other proceeds thereof) into the name of any person other than the
Pledgor listed as the owner thereof on Exhibit A attached hereto, or
recognize any person other than such Pledgor as the owner of such
Pledged Units, without the prior written consent of Lender.
b. HCPI and the Down REIT Sub agree that notwithstanding Section 11.3.D
of the LLC Agreement, they will not require an opinion of counsel in
order for the Down REIT Sub and HCPI to recognize the Pledgor's pledge
of the Pledged Units and the grant of a security interest to Lender in
the Collateral.
c. HCPI and the Down REIT Sub hereby acknowledge receipt of copies of the
Instructions to Register Security Interest attached hereto as Exhibit
C (the "Instructions") and the notice of Lender's security interest
contained therein and agree to comply with the terms of the
Instructions.
d. HCPI and the Down REIT Sub hereby agree that by virtue of Lender
holding a security interest in the Pledged Units (i) Lender does not
and shall not become a Substituted Member under Section 11.4 of the
LLC Agreement unless and until Lender forecloses on the Pledged Units
and (ii) Lender does not and shall not undertake any obligations or
liabilities of Pledgor of any nature whatsoever pertaining to the
Pledged Units or under the LLC Agreement, both before or after any
foreclosure by Lender on the Pledged Units.
e. HCPI and the Down REIT Sub acknowledge and agree that upon the
execution and delivery to Lender by the Pledgors of this Agreement,
the Loan Agreement and all schedules hereto and thereto to which the
Pledgors are parties, and the
3
Certificates, the Pledgors will not be required to sign any
other documents or take any other action with respect to the
Transfer of the Pledged Units to Lender in connection with
the exercise of Lender's rights under this Agreement.
f. The parties acknowledge and agree that Lender and Borrower
may from time to time further modify the Loan Agreement,
including by way of adding additional entities as Pledgors
thereunder and/or by adding additional Non-Managing Member
Units as Pledged Units. Any such additional entities added
as Pledgors and/or any existing Pledgors who pledge
additional Pledged Units shall concurrently acknowledge
their status as parties to this Agreement on such terms and
with the same force and effect as if each such entity had
originally executed and delivered same. Lender shall give
written notice thereof to the Down REIT Sub, HCPI and each
Pledgor contemporaneously with any such modification of the
Loan Agreement; no written consent or other acknowledgement
shall be required from any entity to which such notice is
sent as a condition to the effectiveness of the foregoing.
Such notice shall include such further amendment and
restatement of Exhibit A and Exhibit C to this Agreement as
necessary in order to reflect the additional Pledged Units
of each such entity added as an additional Pledgor and/or
the additional Pledged Units of each such existing Pledgor.
Following such notification from Lender, each reference to
"Pledgor" in this Agreement shall be understood to include
for all purposes any such entity so added to the Loan
Agreement.
3. Notices. Unless and until HCPI has received written notice from
Lender to the effect that Lender no longer claims any interest in
the Collateral, (a) HCPI shall send to Lender a copy of each
notice sent to holders of LLC Units by HCPI under the LLC
Agreement as and when it delivers such notice to Pledgor,
including any notice of Reduction pursuant to Section 8.6.D of
the LLC Agreement, and (b) at the written request of Lender, HCPI
shall send to Lender a copy of each other communication, report
or other information from time to time sent to Pledgor as holder
of the Pledged Units or Pledged Shares.
4. Amendments to Registration Rights Agreement and the LLC
Agreement. Unless and until HCPI has received written notice from
Lender to the effect that Lender no longer claims any interest in
the Collateral, (a) no amendment of, termination of, or
supplement to, the Registration Rights Agreement shall be
effective without the prior written consent of Lender, and (b) no
amendment of, termination of or supplement to the LLC Agreement
for which the consent of any Pledgor is required shall be
effective without the prior written consent of Lender, which
consent shall not be unreasonably withheld; provided that if
written disapproval is not received from Lender within 10
Business Days following receipt by Lender of a written request to
approve such amendment (which request shall specifically
reference the time limitation imposed by this Section 4), then
Lender's approval of such amendment shall be deemed to have been
given.
5. Distributions, etc.
a. Following receipt by the Down REIT Sub of written notice
(which notice shall specifically reference this Section 5 of
this Agreement) from Lender that a
4
Default has occurred and is continuing (a "Default Notice"):
(i) upon the written instruction of Lender and until
instructions to the contrary are received from Lender, the
Down REIT Sub shall remit to Lender all cash distributions
otherwise payable to Pledgor in respect of the Pledged
Units, and HCPI shall remit to Lender all cash dividends
otherwise payable to Pledgor in respect of the Pledged
Shares, of any nature, and (ii) upon the written instruction
of Lender and until instructions to the contrary are
received from Lender, all rights of Pledgor to exercise the
voting or other consensual rights that Pledgor would
otherwise be entitled to exercise in respect of the
Collateral shall cease, and all such rights (and any other
rights Pledgor may have in respect of the Collateral) shall
thereupon become vested in Lender, which shall have the sole
right to exercise such rights, until further notice from
Lender. With respect to cash distributions payable during
such time as no event of Default is occurring, each Pledgor
hereby directs the Down REIT Sub and/or HCPI, as the case
may be, and the Down REIT Sub and/or HCPI, as the case may
be, agrees to deposit any and all such dividends and
distributions in the following account as set forth in
Section 3.1. of the Loan Agreement: 43JO7293. Any amounts
paid to the Lender or its designee as contemplated by the
terms of the foregoing shall be treated as amounts paid or
distributed to Pledgor for all purposes of the LLC
Agreement, or other agreement pursuant to which the payment
or distribution is made or is required to be made and shall
be deemed to satisfy the obligations of the Down REIT Sub or
HCPI to make such payment thereunder. Each Pledgor hereby
agrees that neither the Down REIT Sub nor HCPI shall be
deemed to be in breach of its obligations under, or in
violation of the provisions of, any such agreement by virtue
of having made such payments in the foregoing manner.
b. From and after the date of this Agreement, and whether or
not a Default has occurred and is continuing, if Pledgor
shall become entitled to receive, in connection with any of
the Collateral, any:
i. LLC Units or stock certificates (including, without
limitation, stock certificates relating to the Pledged
Shares), including, without limitation, any
certificates (1) issued in respect of additional
properties contributed by such Pledgor to the Down REIT
Sub, or (2) representing a dividend or distribution or
issued in connection with any increase or reduction of
capital, reclassification, merger, consolidation, sale
of assets, combination of shares or partnership units,
stock or partnership units split, spin-off, or
split-off;
ii. Options, warrants, rights or other securities or
instruments, whether as an addition to, or in
substitution or in exchange for, any of the Collateral,
or otherwise;
iii. Dividends or distributions payable in property other
than cash, including securities issued by other than
the issuer of any of the Collateral; or
iv. Any sums paid in redemption of any of the Collateral,
5
then HCPI shall deliver the same to Lender, to be held by
Lender as part of the Collateral. Any amounts paid to the
Lender or its designee as contemplated by the terms of the
foregoing shall be treated as amounts paid or distributed to
Pledgor for all purposes of the LLC Agreement, or other
agreement pursuant to which the payment or distribution is
made or is required to be made and shall be deemed to
satisfy the obligations of the Down REIT Sub or HCPI to make
such payment thereunder. Each Pledgor hereby agrees that
neither the Down REIT Sub nor HCPI shall be deemed to be in
breach of its obligations under, or in violation of the
provisions of, any such agreement by virtue of having made
such payments in the foregoing manner.
6. Registration Rights and Registration Statements.
a. Shelf Registration Statement. HCPI hereby represents and
warrants to Lender that it has filed pursuant to the
Securities Act, and has kept continuously effective, a
registration statement on Form S-3, dated January 27, 2000
(such registration statement, including all amendments
(including post-effective amendments) and all exhibits
thereto and materials incorporated by reference therein, the
"Shelf Registration Statement") that relates to the offer
and sale of certain REIT Shares issued or to be issued by
the Down REIT Sub upon exchange of those Pledged Units
described on Exhibit D attached hereto (the "Registered
Pledged Units"). HCPI hereby agrees, if not so amended prior
to the date of this Agreement, to amend and supplement the
Shelf Registration Statement within 10 Business Days after
the date of this Agreement and to file such amendment and
supplement with the Commission as required by Rule 424 or
similar rule that may be adopted under the Securities Act to
include Lender as a "Selling Shareholder" thereunder.
b. Registration Rights. In addition to the specific
registration rights set forth in this Agreement, in the name
of and on behalf of Pledgor, Lender shall have the right to
exercise Pledgor's Registration Rights with respect to any
Pledged Units then owned by Pledgor and held by Lender,
including without limitation (i) subject to the terms and
conditions of the Registration Rights Agreement, the right
to enforce the applicable provisions of the Registration
Rights Agreement pertaining to HCPI's obligation to file
with the commission a registration statement on Form S-3
(the "Issuance Registration Statement") covering, among
other things, the issuance to Lender of REIT Shares issued
or to be issued by the Down REIT Sub upon exchange of those
Pledged Units described on Exhibit E attached hereto and
naming Lender as a "Selling Shareholder" thereunder and (ii)
the right to request, at the times and in the manner set
forth in the Registration Rights Agreement, HCPI to register
for sale under the Securities Act any Pledged Shares
issuable or issued upon exchange of Pledged Units; provided,
however, that, in the case of a Demand Registration pursuant
to Section 3.1(a) of the Registration Rights Agreement, the
Down REIT Sub agrees that Lender shall not be subject to the
once-every-twelve-months limitation set forth in clause (i)
thereof (provided that if at any time Lender has exercised a
Demand Registration right in the previous twelve month
period, for which the Down REIT Sub or HCPI has paid the
expenses thereof, as provided in Section 3.4 of the
Registration Rights
6
Agreement, Lender shall pay the expenses described in
Section 3.4 of the Registration Rights Agreement in
connection with the filing of such Demand Registration), nor
shall Lender be subject to the $1,000,000 minimum
requirement referred to in clause (ii) thereof if Lender is
exercising Demand Registration Rights with respect to all of
the Pledged Shares it owns or has the right to acquire upon
an Exchange. Pledgor hereby irrevocably appoints Lender as
his attorney-in-fact to exercise any such Registration
Rights, and irrevocably instructs HCPI to honor any such
exercise by Lender of Pledgor's Registration Rights.
7. Rights upon Remedy Events.
a. Restrictions on Transfer Upon foreclosure of any Pledged
Units, the Lender shall be entitled to Transfer such Pledged
Units, in whole or in part, subject to applicable
restrictions set forth in Section 11.3 through 11.6 of the
LLC Agreement; provided, however, that HCPI and the Down
REIT Sub acknowledge and agree that (i) the provisions of
Section 11.6.C shall not apply to any foreclosure by Lender
on any Pledged Units, (ii) to the extent any such
restrictions require the consent of HCPI or the Down REIT
Sub, HCPI and the Down REIT Sub hereby provide their consent
to such foreclosure, (iii) if Lender or a purchaser of
Pledged Units at foreclosure is prohibited from becoming a
Substituted Member of HCPI, Lender or such purchaser may
become an Assignee in accordance with such restrictions,
(iv) the Down REIT Sub shall conduct its business in the
ordinary course in accordance with past practices, and (v)
neither Lender nor any purchaser of Pledged Units or Pledged
Shares at foreclosure shall be obligated to assume, or
otherwise be responsible for, any obligation a Pledgor may
have under the LLC Agreement or any other obligation of
Pledgor accrued prior to foreclosure under the LLC
Agreement; provided that nothing in this subclause 7.a.(v)
shall release or reduce any prior obligations of a Pledgor
to HCPI or the Down REIT Sub, it being acknowledged and
agreed by the Down REIT Sub or HCPI that the Down REIT Sub
and HCPI have recourse against any such Pledgor only and not
against Lender. HCPI further acknowledges and agrees that
the aforesaid restrictions do not apply to Pledged Shares.
Lender acknowledges and agrees that the Pledged Shares are
subject to certain restrictions on ownership and transfer as
set forth in the Charter of the HCPI, as amended from time
to time.
b. Exchange of Pledged Shares; Foreclosure. In addition to (i)
Lender's rights under Section 5 of this Agreement, (ii)
Lender's rights as a pledgee, transferee or Assignee at
foreclosure of LLC Units or a Membership Interest as
provided in the LLC Agreement, and (iii) any and all other
rights Lender may have in respect of a Default under any
other agreement, document or instrument, or under applicable
law, upon the occurrence of any one or more Defaults
(including, without limitation, the right of Lender to
exercise its rights under the Loan Agreement to foreclose on
or acquire the entire interest of Pledgor in all or any
portion of any Collateral), Lender shall thereupon and
thereafter during the continuance thereof
7
have the right, in its sole and absolute discretion, to do or cause to
be done any one or more of the following:
i. Exchange of Registered Pledged Units.
Lender shall have the right, upon written notice to the Down REIT
Sub and in the name of and on behalf of Pledgor, to exercise
Pledgor's exchange rights and require HCPI to exchange all or any
portion (as selected and in such order as Lender may elect in its
sole discretion) of the Registered Pledged Units in accordance
with Section 8.6.A of the LLC Agreement (the "Exchange Rights").
Any request for such exchange shall be made on the form of Notice
of Exchange attached hereto as Exhibit F. Pledgor hereby
irrevocably appoints Lender as its attorney-in-fact to exercise
such Exchange Rights, and irrevocably instructs the Down REIT Sub
and HCPI to honor any such exercise by Lender of the Exchange
Rights. HCPI hereby agrees that upon any such exercise of the
Exchange Rights, HCPI shall deliver the entire Cash Amount or
REIT Shares to Lender, in each case without deduction in respect
of any claim which HCPI or the Down REIT Sub may from time to
time have of any nature or kind against Pledgor (other than with
respect to any withholding tax obligation imposed by law on the
Down REIT Sub with respect to any amount distributable or
allocable to a Pledgor in respect of Registered Pledged Units, as
contemplated in Section 5.3 of the LLC Agreement).
In addition to the foregoing, the second sentence of Section
8.6.A of the LLC Agreement is hereby amended with respect to
Lender to provide that notwithstanding the first sentence of
Section 8.6.A of the LLC Agreement, after, or concurrently with,
receipt by HCPI of any Default Notice, the Lender shall have the
right to (i) tender Registered Pledged Units for Exchange
(subject to the following terms and conditions of Section 8.6.A
of the LLC Agreement) and require the Down REIT Sub to acquire up
to the number of Registered Pledged Units specified in the Notice
of Exchange as referred to in the definition of "Specified
Exchange Date" set forth in subparagraph (c) immediately
following; provided, however that Lender may tender Registered
Pledged Units for Exchange hereunder once, irrespective of the
aggregate market value of such Registered Pledged Units, and an
unlimited number of times, provided the aggregate market value of
such Registered Pledged Units is at least $1,000,000 on the date
of any such Notice of Exchange.
In connection with the foregoing, the definition of the term
"Specified Exchange Date" in the LLC Agreement shall, with
respect to Lender and only with respect to Lender, be amended to
read as follows:
"Specified Exchange Date" means in the case of an Exchange
pursuant to Section 8.6.A hereof, that date specified by
Lender in a Notice of Exchange to the
8
Company; provided, however, that such date shall in no event
be less than fourteen (14) days (or if such day is not a
Business Day, the next following Business Day) after HCPI's
receipt of such Notice of Exchange and provided further that
the Specified Exchange Date, as well as the closing of an
Exchange on the Specified Exchange Date, may be deferred in
the Managing Member's sole and absolute discretion, for such
time as may be reasonably required to effect, as applicable,
(i) necessary funding arrangements, (ii) compliance with the
Securities Act or other applicable laws (including, but not
limited to, (a) state "blue sky" or other securities laws
and (b) the expiration or termination of the applicable
waiting period, if any, under the Xxxx Xxxxx Xxxxxx
Antitrust Improvements Act of 1976, as amended, and (iii)
satisfaction or waiver of other commercially reasonable and
customary closing conditions and requirements for a
transaction of such nature (provided that in no event shall
such Exchange be delayed more than 30 days in the aggregate
with respect to (i) and (iii) above, or more than 150 days
in the aggregate with respect to (ii) above.
ii. Put for Unregistered Pledged Units.
Until such time as HCPI has filed, pursuant to Section 6 of this
Agreement, (i) an amendment to the Shelf Registration Statement, and
(ii) the Issuance Registration Statement, as the case may be, Lender
shall have the right upon written notice to HCPI in the form of
Deficiency Notice attached hereto as Exhibit G (a "Deficiency Notice"),
to exchange all or any portion of the Unregistered Pledged Units for
one or more cash payments from HCPI on any foreclosure of the
Unregistered Pledged Units, where the cash or fair market value of
Pledged Shares (determined based on the closing price of the REIT
Shares on the date of the Deficiency Notice, as reported on the New
York Stock Exchange or such other exchange on which the REIT Shares are
then listed) issued on exchange of Registered Pledged Units will be
insufficient to satisfy Borrower's Obligations (as defined in the Loan
Agreement) under the Loan Agreement, in an amount (the "Unregistered
Units Cash Payment") equal to (i) the fair market value of such
Unregistered Pledged Units (determined based on the closing price of
the REIT Shares on the date of the Deficiency Notice on the New York
Stock Exchange or such other exchange on which the REIT Shares are then
listed), multiplied by (ii) the number of such Unregistered Pledged
Units exchanged, less (iii) 1% of the product of (i) and (ii). Each
Unregistered Units Cash Payment shall be payable by HCPI within 14 days
following its receipt of the Deficiency Notice with respect thereto;
provided, however, that at such time as Lender receives written notice
from HCPI of the filing and effectiveness
9
of the Issuance Registration Statement, Lender's rights
pursuant to this Section 7.b.ii shall terminate with respect
to any such Unregistered Pledged Units covered by such
registration, so long as such registration remains
effective. In the event and to the extent that any
registration statement with respect to any Pledged Units
ceases to be effective, the provisions of this Section
7.b.ii shall again apply with respect to all affected
Pledged Units and/or Pledged Shares.
Notwithstanding the provisions of Section 7.b.ii above, but
subject to Section 7.b.iii below and Section 7.b.iii of the
Utah II Acknowledgement and Consent, Lender agrees that to
the extent Lender has the right to exchange Registered
Pledged Units under either this Agreement or under the Utah
II Acknowledgment and Consent on or before the specified
date in the applicable Notice of Exchange, Lender shall
exercise any and all such exchange rights hereunder and
thereunder, prior to delivering a Deficiency Notice under
Section 7.b.ii above.
iii. Put for Exchange Delays in Pledged Units. Notwithstanding
anything to the contrary in this Agreement, in the event
that the Specified Exchange Date under Section 7.b.i is
deferred to a date that is later than the date specified in
the applicable Notice of Exchange and where the cash or fair
market value of the Pledged Units (determined based on the
closing price of the REIT Shares on the date of the
Deficiency Notice on the New York Stock Exchange or such
other exchange on which the REIT Shares are then listed), if
any, which may be exchanged on or before the specified date
in the applicable Notice of Exchange will be insufficient to
satisfy Borrower's Obligations (as defined in the Loan
Agreement) under the Loan Agreement, Lender shall have the
right, upon providing a Deficiency Notice to HCPI, to
exchange all or any portion of the affected Pledged Units
for one or more cash payments from HCPI in an amount (the
"Exchange Delay Cash Payment") equal to (i) the fair market
value (determined based on the closing price of the REIT
Shares on the date of the Deficiency Notice on the New York
Stock Exchange or such other exchange on which the REIT
Shares are then listed) of such affected Pledged Units,
multiplied by (ii) the number of such affected Pledged Units
to be exchanged, less (iii) 1% of the product of (i) and
(ii). Each Exchange Delay Cash Payment shall be payable by
HCPI within 14 days following its receipt of the Deficiency
Notice with respect thereto.
In addition, the parties hereto agree and acknowledge that
the obligation of HCPI, HCPI/Utah II, LLC and/or the Down
REIT Sub, as the case may be, to make Unregistered Units
Cash Payments and/or Exchange Delay Cash Payments under this
Section 7 and under Section 7 of the Utah II Acknowledgment
and Consent shall not exceed, in the aggregate, $20,000,000.
10
iv. Concurrent Exercise. The rights exercisable by Lender under
this Section 7.b may be invoked before or after foreclosure
under the Loan Agreement in Lender's sole discretion, and
all without further notice to or any requirement of consent
by Pledgor, which hereby irrevocably and unconditionally
waives any right to give any contrary instructions to HCPI.
All parties acknowledge that Lender desires to consummate
any necessary foreclosure under the Loan Agreement on a
basis that such foreclosure occurs concurrent with the
closing of an Exchange; all parties agree to cooperate
reasonably with Lender to that end. HCPI agrees that it will
not act on any separate instructions or communications from
Pledgor pertaining to the Pledged Units or Pledged Shares or
Registration Rights Agreement without the express written
consent of Lender. Nothing in this subparagraph (v) shall in
any way obligate Lender to consummate any necessary
foreclosure under the Loan Agreement in the manner referred
to above; Lender may, in its sole discretion, determine that
another method of realization upon the Collateral is
preferable or required, and such determination by Lender
shall in no manner limit or restrict the obligations of
Borrower, Pledgor or any other person or entity with respect
to the loans contemplated herein.
v. Foreclosure. Subject to the terms and conditions of the Loan
Agreement, Lender shall have the right to foreclose on or
acquire the entire interest of Pledgor in all or any portion
of any Pledged Shares (including all of Pledgor's right,
title and interest in the Registration Rights Agreement to
the extent applicable to such Pledged Shares) owned by
Pledgor, by foreclosure or in any other manner. In the event
that Lender elects to exercise its rights under this Section
7.b.v, Lender shall deliver to HCPI a notice of its intent
to do so no later than 10 Business Days prior to the date of
any sale, public or private, or of any transfer in lieu of
foreclosure, and HCPI (without limitation on its own right,
under applicable law, to participate in any sale or other
disposition of any of the Collateral) shall reasonably
cooperate, at no expense to itself, with Lender in
completing its foreclosure on the affected Pledged Shares in
compliance with applicable laws, including, if applicable,
all actions reasonably necessary to comply with the filing
requirements described in Rule 144(c)(1) of the Securities
Act, so as to enable the Lender to sell such Pledged Shares
without registration under the Securities Act.
8. Representations and Warranties by the Down REIT Sub and HCPI. The Down REIT
Sub and HCPI hereby represent and warrant to Lender as follows as of the
date hereof:
a. LLC Agreement. A true and correct copy of the LLC Agreement as in
effect as of the date hereof is attached as Exhibit H hereto.
b. Organization And Authority of the Down REIT Sub. The Down REIT Sub has
been duly formed, is validly existing as a limited liability company
in good standing under the laws of the State of Delaware, and is duly
qualified to transact
11
business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or
leasing of property requires such qualification except where
the absence of such qualification would not have a Material
Adverse Effect. The Down REIT Sub has all requisite power
and authority to own or hold under lease the property it
purports to own or hold under lease, to carry on its
business as now conducted and as proposed to be conducted
except as would not have a Material Adverse Effect, and to
execute and deliver this Agreement and to perform its
obligations hereunder.
c. Authorization by the Down REIT Sub; Binding Effect. The Down
REIT Sub has by all necessary action duly authorized (i) the
execution and delivery of this Agreement and (ii) the
performance of its obligations hereunder. This Agreement
constitutes the legal, valid and binding obligation of the
Down REIT Sub, enforceable against it in accordance with its
terms, except as enforcement may be limited by equitable
principles and by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to creditors' rights
generally.
d. Pledged Units; Managing Member of the Down REIT Sub. All of
the Pledged Units are validly issued and non-assessable. The
identity of the registered owners, the total number of
Pledged Units and the corresponding Certificates evidencing
ownership thereof are accurately set forth on Exhibit A
attached hereto. No security interest in the Pledged Units
has been registered on the records of the Down REIT Sub (or
its transfer agent). HCPI is the sole Managing Member of the
Down REIT Sub and owns the only Managing Member Units
thereof.
e. Organization and Authority of HCPI. HCPI is a corporation
duly organized, validly existing and in good standing under
the laws of Maryland, and is duly qualified to transact
business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or
leasing of property requires such qualification except where
the absence of such qualification would not have a Material
Adverse Effect. HCPI has all requisite power and authority
to own or hold under lease the property it purports to own
or hold under lease, to carry on its business as now
conducted and as proposed to be conducted except as would
not have a Material Adverse Effect, and to execute and
deliver this Agreement and to perform its obligations
hereunder.
f. No Claims. To their knowledge, neither HCPI nor the Down
REIT Sub has any existing claim, defense, setoff or right of
recoupment under the LLC Agreement, any other agreement, or
any law, rule or regulation, against or with respect to (i)
any of the Pledged Units, (ii) any of REIT Shares that may
be issuable or any amount that may be payable in connection
with the exchange of any Pledged Units or (iii) any
obligation of Pledgor under the LLC Agreement or any other
agreement with respect to any of the Pledged Units, any of
the REIT Shares that may be issued or any amount that may be
payable in connection with the redemption of any Pledged
Units.
12
g. Authorization by HCPI; Binding Effect. HCPI has by all necessary
action duly authorized the execution and delivery of this Agreement
and the performance of its obligations hereunder. This Agreement
constitutes the legal, valid and binding obligation of HCPI,
enforceable against it in accordance with its terms, except as
enforcement may be limited by equitable principles and by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to
creditors' rights generally.
h. HCPI Status. HCPI is organized in conformity with the requirements for
qualification as a real estate investment trust under the Code and its
ownership and method of operation enables it to meet the requirements
for taxation as a real estate investment trust under the Code.
i. No Conflict. The execution, delivery and performance by HCPI of this
Agreement, and the consummation of the transactions contemplated
hereby, do not and will not violate any provision of the charter or
bylaws of HCPI, or the LLC Agreement, or any contractual or other
undertaking by which HCPI or any of its assets are bound. As of the
date of this Agreement, the Pledged Units are not evidenced by writing
or certificate except by the Certificates expressly referred to on
Exhibit A hereto.
j. Registration Rights Agreement. A true and complete copy of the
Registration Rights Agreement, including any amendments and
supplements thereto, is attached to this Agreement as Exhibit I. The
Registration Rights Agreement remains in full force and effect as of
the date of this Agreement, and is the legal, valid and binding
obligation of HCPI enforceable against it in accordance with its
terms, except as enforcement may be limited by equitable principles
and by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to creditors' rights generally.
k. Governmental or Other Approvals. No governmental or other approval is
or will be required in connection with the execution, delivery and
performance by the Down REIT Sub or HCPI of this Agreement or the
transactions contemplated hereby or to ensure the legality, validity
or enforceability hereof.
9. Representations and Warranties by Pledgor. To its knowledge, Pledgor does
not have any existing claims, defenses, setoff rights or rights of
recoupment under the LLC Agreement, under any other agreement, or any law,
rule or regulation, against or with respect to any obligation of either
HCPI or the Down REIT Sub under the LLC Agreement or any other agreement.
10. Compliance with Securities Laws. Lender, Borrower and Pledgor hereby
acknowledge that a portion of the Collateral has not been registered for
sale under the Securities Act, that Lender may be unable to effect a public
sale (under applicable provisions of the Uniform Commercial Code) of all or
any part of the Collateral, and subject to the restrictions on transfer
described above, may be compelled to resort to one or more private sales to
a restricted group of purchasers who will be obligated to agree, among
13
other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof.
Lender and Pledgors hereby further acknowledge that any such private
sales may be at prices and on terms less favorable than those of
public sales.
11. Liability to Pledgor. Pledgor and Borrower assume all risks of the
acts or omissions of Lender with respect to its exercise of its rights
hereunder. Neither the Down REIT Sub, HCPI, nor any of their officers,
directors, partners, employees or agents shall be liable or
responsible for any acts or omissions of the Lender, including without
limitation the validity of any determination by Lender that a Default
has occurred or is continuing, nor shall any of such persons have any
responsibility for investigation into the facts and circumstances
giving rise to any such determination by Lender, nor shall any such
person be liable or responsible for following the instructions of
Lender in accordance with this Agreement regardless of any notice,
information or instructions to the contrary received by HCPI from
Pledgor or any other person, including without limitation following
instruction of Lender (a) to remit distributions by the Down REIT Sub
made in respect of the Pledged Units, and distributions of HCPI made
in respect of Pledged Shares, to Lender, pursuant to Section 5 above,
(b) to terminate the voting and/or other consensual rights of Pledgor
(and consider such right to have vested in Lender) pursuant to Section
5 above, (c) to exercise Pledgor's Exchange Rights in the name of and
on behalf of Pledgor pursuant to Section 7 above, or (d) to exercise
Pledgor's Registration Rights in the name of and on behalf of Pledgor,
pursuant to Section 6 above.
12. Separate Actions; Waiver of Statute of Limitations. The obligations of
HCPI and Pledgor hereunder shall be in addition to any obligations of
Pledgor under the Loan Agreement. Without limiting the provisions of
the Loan Agreement, a separate action or actions may be brought and
prosecuted against any one or more of the parties hereto whether or
not action is brought against any other person or whether any other
person is joined in any such action or actions. HCPI and Pledgor
acknowledge that there are no conditions precedent to the
effectiveness of this Agreement and that this Agreement is in full
force and effect and is binding on such person as of the date hereof.
To the extent permitted under applicable law, Pledgor waives the
benefit of any statute of limitations affecting such person's
liability hereunder or the enforcement thereof. Lender hereby agrees
that neither the Down REIT Sub nor HCPI shall have any obligation or
liability under the Loan Agreement or any other agreement related to
the loan contemplated by the Loan Agreement except as expressly set
forth herein and in the Instructions. Pledgor agrees that nothing set
forth herein shall alter, diminish or otherwise affect its obligations
under the LLC Agreement or any other agreement between Pledgor and
HCPI or the Down REIT Sub relating to the Pledged Units or Pledged
Shares.
13. Continuing Obligations. Borrower and Pledgor shall indemnify and hold
harmless Lender from and against any and all obligations, claims,
losses, liabilities, damages, expenses or costs (including reasonable
attorneys' fees and expenses and fees and expenses of expert
witnesses) arising from or in any way connected with the obligations
or liabilities of either such person with respect to agreements,
documents or other instruments, whether now existing or hereafter
incurred, or the conditions and obligations to be observed and
performed by Borrower or Pledgor under any agreement, document or
14
other instrument relating to the Collateral, except for those arising
from Lender's gross negligence or willful misconduct. In addition,
Borrower shall indemnify and hold harmless Lender from and against any
and all obligations, claims, losses, liabilities, damages, expenses or
costs (including reasonable attorneys' fees and expenses and fees and
expenses of expert witnesses) arising from or in any way connected with
the exercise by Lender of any rights or remedies under the Loan
Agreement or this Agreement with respect to the Collateral, including,
without limitation, all costs and expenses associated with the exercise
of any foreclosure rights and/or exchange rights pursuant to Section
6.b above or otherwise.
14. Appointment as Attorney-in-Fact. Pledgor hereby appoints Lender as its
true and lawful attorney-in-fact, with full power of substitution, for
the purpose of carrying out the provisions of this Agreement and taking
any action and executing any instruments either in the name of Pledgor
or in the name of Lender, which such attorney-in-fact may deem
necessary or advisable to accomplish the purposes hereof, which
appointment as attorney-in-fact is irrevocable and coupled with an
interest; provided, that nothing in this section shall require the
Lender to take any action or execute any instruments.
15. Notices. Any notice, demand, request or report required or permitted to
be given or made to a party to this Agreement shall be in writing and
shall be deemed given or made when delivered in person or when sent by
first class United States mail or by other means of written
communication (including by telecopy, facsimile, or commercial courier
service) (a) in the case of a Pledgor, to that Pledgor at the address
set forth below and (ii) in the case of each other party, at its
address for notices set forth below or at such other address as such
party may give notice of in accordance with the provisions of this
Section:
Borrower and each Pledgor: c/o The Xxxxx Company, L.C.
127 South 000 Xxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone No.: 000-000-0000
Telecopier: 000-000-0000
Lender: Xxxxxxx Xxxxx Private Finance Inc.
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxx X. Xxxxxxx
Telephone No.: 000-000-0000
Telecopier: 000-000-0000
HCPI and/or Down REIT Sub: Health Care Property Investors, Inc.
0000 XxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Legal Department
Telephone No.: (000) 000-0000
Telecopier: (000) 000-0000
15
16. Assignments. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Nothing contained herein, express or
implied, is intended to confer on any person other than the parties
hereto or their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this
Agreement.
17. Governing Law. This Agreement and the legal relations between the
parties hereto shall be governed by and construed in accordance with
the internal laws of the State of New York applicable to contracts made
and to be performed in that State, without regard to conflict of laws
principles.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all
of which together shall constitute but one agreement. This Agreement
may be executed and delivered by facsimile.
19. Entire Agreement; Amendments. This Agreement (including the instruments
between the parties referred to herein) constitutes the entire
agreement among the parties and supersedes all other prior agreements
and understandings, both written and oral, among the parties, or any of
them, with respect to the subject matter hereof. All references to
sections, subsections, clauses, exhibits and schedules shall be deemed
references to such part of this Agreement, unless the context shall
otherwise require. No provisions of this Agreement may be effectively
waived, changed or amended, or the termination or discharge thereof
agreed to or acknowledged, orally, but only by an agreement in writing
signed by the party against whom the enforcement of any waiver, change,
amendment, termination or discharge is sought.
20. Headings. The headings contained in this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
21. Invalidity. If any provision of this Agreement is held invalid or
unenforceable, the remainder of this Agreement shall nevertheless
remain in full force and effect.
22. Attorneys' Fees. In the event of any controversy, claim or dispute
between the parties hereto arising out of or relating to this Agreement
or any of the documents provided for herein, or the breach thereof, the
prevailing party shall be entitled to recover from the losing party
reasonable attorneys' fees, expenses and costs.
[Remainder of page intentionally left blank.]
16
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
LENDER:
XXXXXXX XXXXX PRIVATE FINANCE INC.,
a Delaware corporation
By: /s/ Authorized Signatory
-----------------------------------------
Date: 6/12/02
---------------------------------------
Title: Director
--------------------------------------
BORROWER:
THE XXXXX COMPANY, L.C.,
a Utah limited liability company
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Date: 6/12/02
---------------------------------------
Title: Manager
--------------------------------------
THE DOWN REIT SUB:
HCPI/UTAH, LLC,
a Delaware limited liability company
By: HEALTH CARE PROPERTY
INVESTORS, INC., its Managing Member
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Date: 6/12/02
--------------------------------
Title: Senior Vice President
-------------------------------
HCPI:
HEALTH CARE PROPERTY INVESTORS, INC.,
a Maryland corporation
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Date: 6/12/02
---------------------------------------
Title: Senior Vice President
--------------------------------------
17
PLEDGORS:
AMARILLO XXXX ASSOCIATES,
a Utah general partnership
By: THE XXXXX COMPANY, L.C.,
its Partner
By: /s/ Xxxxx Xxxxxx
--------------------------------
Date: 6/12/02
------------------------------
Title: Manager
-----------------------------
XXXXX-BPMA HOLDINGS, L.C.,
a Utah limited liability company
By: THE XXXXX COMPANY, L.C.,
its Manager
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title: Manager
-----------------------------
XXXXX CASTLE XXXX MEDICAL CLINIC,
L.L.C., a Utah limited liability company
By: THE XXXXX COMPANY, L.C.,
its Manager
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title: Manager
-----------------------------
18
PLEDGORS:
XXXXX CENTERVILLE CLINIC COMPANY,
L.C., a Utah limited liability company
By: THE XXXXX COMPANY, L.C.,
its Manager
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
--------------------------------
Title: Manager
-------------------------------
XXXXX XXXXX NORTH MEDICAL ASSOCIATES,
LTD., a Utah limited partnership
By: THE XXXXX COMPANY, L.C.,
its General Partner
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
--------------------------------
Title: Manager
-------------------------------
XXXXX DESERT SPRINGS, L.C.,
a Utah limited liability company
By: THE XXXXX COMPANY, L.C.,
its Manager
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
--------------------------------
Title: Manager
-------------------------------
XXXXX XXXX, X.X.,
a Utah limited liability company
By: THE XXXXX COMPANY, L.C.,
its Manager
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
--------------------------------
Title: Manager
-------------------------------
19
PLEDGORS:
XXXXX GRANTSVILLE MEDICAL, L.C.,
a Utah limited liability company
By: THE XXXXX COMPANY, L.C.,
its Manager
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
---------------------------------------
Title: Manager
--------------------------------------
XXXXX IOMEGA, L.C.,
a Utah limited liability company
By: THE XXXXX COMPANY, L.C.,
its Manager
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
---------------------------------------
Title: Manager
--------------------------------------
XXXXX XXXXX-XXX ASSOCIATES, LTD.,
a Utah limited partnership
By: XXXXX MEDICAL SURGICAL
ASSOCIATES, LTD., its General Partner
By: THE XXXXX COMPANY, L.C.,
its General Partner
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
---------------------------------
Title: Manager
--------------------------------
XXXXX-XXXXX MEDICAL ASSOCIATES, LTD.,
a Utah limited partnership
By: THE XXXXX COMPANY, L.C.,
its General Partner
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
---------------------------------------
Title: Manager
--------------------------------------
20
PLEDGORS:
XXXXX-XXXXX MEDICAL ASSOCIATES NO. 2,
LTD., a Utah limited partnership
By: THE XXXXX COMPANY, L.C.,
its General Partner
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------
Title: Manager
----------------------------------
XXXXX PRIMARY CARE CLINICS ASSOCIATES, LTD.
#2, a Utah limited partnership
By: THE XXXXX COMPANY, L.C.,
its General Partner
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------
Title: Manager
----------------------------------
BOYER-SALT LAKE INDUSTRIAL CLINIC
ASSOCIATES, LTD., a Utah limited partnership
By: THE XXXXX COMPANY, L.C.,
its General Partner
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------
Title: Manager
----------------------------------
XXXXX SPRINGVILLE, L.C.,
a Utah limited liability company
By: THE XXXXX COMPANY, L.C.,
its Manager
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------
Title: Manager
----------------------------------
21
PLEDGORS:
XXXXX-ST. MARKS MEDICAL ASSOCIATES,
LTD., a Utah limited partnership
By: THE XXXXX COMPANY, L.C.,
its General Partner
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
---------------------------------
Title: Manager
--------------------------------
XXXXX ST. MARK'S MEDICAL ASSOCIATES
#2, LTD., a Utah limited partnership
By: THE XXXXX COMPANY, L.C.,
its General Partner
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
---------------------------------
Title: Manager
--------------------------------
22
EXHIBIT A
PLEDGED UNITS
------------------------------------------------------------------------------------------------------
Member Name Certificate Nos. Number of Non-Managing
Member Units Pledged
------------------------------------------------------------------------------------------------------
Amarillo Xxxx Associates 105, 106, 128, 129 29,189
------------------------------------------------------------------------------------------------------
Xxxxx-BPMA Holdings, L.C. 88 13,093
------------------------------------------------------------------------------------------------------
Xxxxx Castle Xxxx Medical Clinic, L.L.C. 72 5,595
------------------------------------------------------------------------------------------------------
Xxxxx Centerville Clinic Company, L.C. 48, 49 11,740
------------------------------------------------------------------------------------------------------
Xxxxx Xxxxx North Medical Associates, Ltd. 95 8,977
------------------------------------------------------------------------------------------------------
Xxxxx Desert Springs, L.C. 82, 101, 108 162,538
------------------------------------------------------------------------------------------------------
Xxxxx Xxxx, X.X. 62 18,988
------------------------------------------------------------------------------------------------------
Xxxxx Grantsville Medical, L.C. 55, 56 3,737
------------------------------------------------------------------------------------------------------
Xxxxx Iomega, L.C. 67, 68 55,723
------------------------------------------------------------------------------------------------------
Xxxxx XxXxx-Xxx Associates, Ltd. 24, 25, 27 63,275
------------------------------------------------------------------------------------------------------
Xxxxx-Xxxxx Medical Associates, Ltd. 28, 29 628
------------------------------------------------------------------------------------------------------
Xxxxx-Xxxxx Medical Associates No. 2, Ltd. 32 29,277
------------------------------------------------------------------------------------------------------
Xxxxx Primary Care Clinics Associates, Ltd. #2 41, 42 14,685
------------------------------------------------------------------------------------------------------
Xxxxx-Salt Lake Industrial Clinic Associates, Ltd. 36, 37 9,880
------------------------------------------------------------------------------------------------------
Xxxxx Springville, L.C. 76 33,344
------------------------------------------------------------------------------------------------------
Xxxxx-St. Marks Medical Associates, Ltd. 123, 126 86,680
------------------------------------------------------------------------------------------------------
Xxxxx St. Mark's Medical Associates #2, Ltd. 20, 21 36,836
------------------------------------------------------------------------------------------------------
TOTAL: 584,185
------------------------------------------------------------------------------------------------------
23
EXHIBIT B
IRREVOCABLE UNIT POWER
24
EXHIBIT C
THE INSTRUCTIONS
25
EXHIBIT D
REGISTERED PLEDGED UNITS
-----------------------------------------------------------------------------------------------
Member Name Certificate Number of Registered
No. Pledged Units Owned
-----------------------------------------------------------------------------------------------
Xxxxx Castle Xxxx Medical Clinic, L.L.C. 72 5,595
-----------------------------------------------------------------------------------------------
Xxxxx Centerville Clinic Company, L.C. 48,49 11,740
-----------------------------------------------------------------------------------------------
Xxxxx Desert Springs, L.C. 82 86,506
-----------------------------------------------------------------------------------------------
Xxxxx Xxxx, X.X. 62 18,988
-----------------------------------------------------------------------------------------------
Xxxxx Grantsville Medical, L.C. 55, 56 3,737
-----------------------------------------------------------------------------------------------
Xxxxx Iomega, L.C. 67, 68 55,723
-----------------------------------------------------------------------------------------------
Xxxxx XxXxx-Xxx Associates, Ltd. 24, 25, 27 63,275
-----------------------------------------------------------------------------------------------
Xxxxx-Xxxxx Medical Associates, Ltd. 28, 29 628
-----------------------------------------------------------------------------------------------
Xxxxx-Xxxxx Medical Associates No. 2, Ltd. 32 29,277
-----------------------------------------------------------------------------------------------
Xxxxx Primary Care Clinics Associates, Ltd. #2 41, 42 14,685
-----------------------------------------------------------------------------------------------
Xxxxx-Salt Lake Industrial Clinic Associates, Ltd. 36, 37 9,880
-----------------------------------------------------------------------------------------------
Xxxxx Springville, L.C. 76 33,344
-----------------------------------------------------------------------------------------------
Xxxxx-St. Marks Medical Associates, Ltd. 123, 126 86,680
-----------------------------------------------------------------------------------------------
Xxxxx St. Mark's Medical Associates #2, Ltd. 20, 21 36,836
-----------------------------------------------------------------------------------------------
TOTAL: 456,894
-----------------------------------------------------------------------------------------------
26
EXHIBIT E
UNREGISTERED PLEDGED UNITS
---------------------------------------------------------------------------------------
Member Name Certificate Number of Unregistered
Nos. Pledged Units Owned
----------------------------------------------------------------------------------------
Amarillo Xxxx Associates 105, 106, 29,189
128, 129
----------------------------------------------------------------------------------------
Xxxxx-BPMA Holdings, L.C. 88 13,093
----------------------------------------------------------------------------------------
Xxxxx Xxxxx North Medical Associates, Ltd. 95 8,977
----------------------------------------------------------------------------------------
Xxxxx Desert Springs, L.C. 101, 108 76,032
----------------------------------------------------------------------------------------
TOTAL: 127,291
----------------------------------------------------------------------------------------
27
EXHIBIT F
NOTICE OF EXCHANGE
28
EXHIBIT G
DEFICIENCY NOTICE
29
EXHIBIT H
LLC AGREEMENT
30
EXHIBIT I
REGISTRATION RIGHTS AGREEMENT
31
