EXHIBIT 10.2
[LTC PROPERTIES, INC. LETTERHEAD]
July 15, 2004
Xxxxx & Steers Capital Advisors, LLC
000 Xxxxx Xxxxxx
New York, New York 10017
Re: PLACEMENT OF PREFERRED SHARES OF LTC PROPERTIES, INC.
Dear Sirs:
This letter (the "AGREEMENT") confirms our agreement to retain
Xxxxx & Steers Capital Advisors, LLC (the "PLACEMENT AGENT") as our exclusive
agent for a period commencing on the date of this letter and terminating on July
27, 2004, unless extended by the parties, to introduce LTC Properties, Inc., a
Maryland corporation (the "COMPANY"), to certain investors as prospective
purchasers (the "OFFER") of up to 2,640,000 shares (the "SECURITIES") of the
Company's 8.0% Series F Cumulative Preferred Stock, par value $0.01 per share
(the "PREFERRED SHARES") (assuming the maximum number of Securities is issued
and sold). The engagement described herein (i) may be terminated by the Company
at any time prior to the Closing (as defined below) and (ii) shall be in
accordance with applicable laws and pursuant to the following procedures and
terms and conditions:
1. The Company will:
(a) Cause the Company's independent public accountants to address to
the Company and the Placement Agent and deliver to the Company, the
Placement Agent and the Purchasers (as such term is defined in the Purchase
Agreements dated the date hereof between the Company and the purchasers
party thereto (the "PURCHASE AGREEMENTS")) (i) a letter or letters (which
letters are frequently referred to as "comfort letters") dated the date
hereof, and (ii) if so requested by the Placement Agent, a "bring-down"
letter delivered the date on which the sale of the Securities is
consummated pursuant to a Purchase Agreement (such date, a "CLOSING DATE"
and the time of such consummation on the Closing Date, a "CLOSING,"),
which, with respect to the letter referred to in clause (i) above, will be
substantially in the form attached hereto as ANNEX I, and with respect to
the letter or letters referred to in clause (ii) above, will be in form
and substance reasonably satisfactory to the Placement Agent.
(b) On the Closing Date, cause special securities counsel to the
Company to deliver opinions to the Placement Agent and the Purchasers
substantially in the form of ANNEX II hereto and otherwise in form and
substance reasonably satisfactory to the Placement Agent and its counsel,
and cause the special Maryland counsel to the Company to deliver opinions
to the Placement Agent and the Purchasers substantially in the form of
ANNEX III hereto.
(c) As soon as practicable, apply for listing the Securities for
trading on the New York Stock Exchange, Inc. ("NYSE") and will use its
reasonable best efforts to obtain approval from the NYSE with respect to
such listing as soon as reasonably practicable within 30 days after the
Closing Date and, if such approval is not obtained within 30 days, to
continue to use its reasonable best efforts to obtain such approval as soon
as practicable thereafter.
(d) Prior to the Closing, the Company shall not sell or approve the
solicitation of offers for the purchase of additional Preferred Shares in
excess of the amount which shall be authorized by the Company or in excess
of the aggregate offering price of the Preferred Shares registered pursuant
to the Registration Statement (as defined below).
(e) Use the proceeds of the offering contemplated hereby as set forth
under the caption "Use of Proceeds" in the Prospectus Supplement (as
defined below).
(f) On the Closing Date, the Company shall deliver to the Placement
Agent and the Purchasers a certificate of the Chief Executive Officer and
Chief Financial Officer of the Company, dated as of the Closing Date,
setting forth that each of the representations and warranties contained in
this Agreement shall be true on and as of the Closing Date as if made as of
the Closing Date and each of the conditions and covenants contained herein
shall have been complied with to the extent compliance is required prior to
the Closing Date, and shall have delivered such other customary
certificates as the Placement Agent shall have reasonably requested.
2. The Company authorizes the Placement Agent to use the Prospectus (as
defined below) in connection with the Offer for such period of time as any such
materials are required by law to be delivered in connection therewith and the
Placement Agent agrees to do so.
3. (a) The Placement Agent will use commercially reasonable efforts on
behalf of the Company in connection with the Placement Agent's services
hereunder. No offers or sales of Securities shall be made to any person
without the prior approval of such person by the Company, such approval to
be at the reasonable discretion of the Company. The Placement Agent's
aggregate fee for its services hereunder will be an amount equal to 2.0% of
the gross proceeds received by the Company in connection with Preferred
Shares sold on the Closing Date (such fee payable by the Company at and
subject to the consummation of the Closing). The Company, upon consultation
with the Placement Agent, may establish in the Company's discretion a
minimum aggregate amount of Preferred Shares to be sold in the offering
contemplated hereby, which minimum aggregate amount shall be reflected in
the Prospectus. The Placement Agent will not enter into any agreement or
arrangement with any broker, dealer or other person in connection with the
placement of Preferred Shares (individually, a "PARTICIPATING PERSON" and
collectively, "PARTICIPATING PERSONS") which will obligate the Company to
pay additional fees or expenses to or on behalf of a Participating Person
without the prior written consent of the Company, it being understood that
Xxxxxxxxx & Company, Inc. will be acting as settlement agent ("SETTLEMENT
AGENT") in connection with the Offer.
(b) The Company agrees that it will pay its own costs and expenses
incident to the performance of the obligations hereunder whether or not any
Preferred Shares are offered or sold pursuant to the Offer, including,
without limitation, (i) the filing fees and expenses, if any, incurred with
respect to any filing with the NYSE, (ii) all costs and expenses incident
to the preparation, issuance, execution and delivery of the Securities,
(iii) all costs and expenses (including filing fees) incident to the
preparation, printing and filing under the Securities Act of 1933, as
amended (the "Act"), of the Registration Statement and the Prospectus,
including, without limitation, in each case, all exhibits, amendments and
supplements thereto, (iv) all costs and expenses incurred in connection
with the required registration or qualification of the Securities issuable
under the laws of such jurisdictions as the Placement Agent may reasonably
designate, if any, (v) all costs and expenses incurred by the Company in
connection with the printing (including word processing and duplication
costs) and delivery of the Prospectus and Registration Statement
(including, without limitation, any preliminary and supplemental blue sky
memoranda) including, without limitation, mailing and shipping, (vi) all
fees and expenses incurred in marketing the Offer, and (vii) the fees and
disbursements of Xxxx Xxxxx, LLP, special securities counsel to the
Company, Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP, special Maryland counsel
to the Company and any other counsel to the Company, and Ernst & Young LLP,
auditors to the Company. In addition (without duplication), upon the
Closing, the Company agrees to reimburse the Placement Agent, from the
proceeds of the sale of the Securities, for all reasonable out-of-pocket
expenses of the Placement Agent in connection with the Offer, including,
without limitation, the reasonable legal fees, expenses and disbursements
of the Placement Agent's counsel in connection with the Offer, in the
aggregate not to exceed $50,000 (it being understood that such amount
includes any amounts due or paid to the Settlement Agent).
(c) The Company will indemnify and hold harmless the Placement Agent
and each of its respective partners, directors, officers, associates,
affiliates, subsidiaries, employees, consultants, attorneys and agents, and
each person, if any, controlling the Placement Agent or any of its
affiliates within the meaning of either Section 15 of the Act or Section 20
of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")
(collectively, the "PLACEMENT AGENT INDEMNITEES"), from and against any and
all losses, claims, damages, liabilities or costs (and any reasonable legal
or other expenses incurred by such Placement Agent in investigating or
defending the same or in giving testimony or furnishing documents in
response to a request of any government agency or to a subpoena) in any way
relating to, arising out of or caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
or in the Prospectus or any preliminary prospectus or in any way relating
to, arising out of or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. Such indemnity agreement shall not, however,
apply to any such loss, claim, damage, liability, cost or expense (i) if
such statement or omission was made in reliance upon or in conformity with
information furnished in writing to the Company by the Placement Agent or
its affiliates or any of the Purchasers, Investment Advisors or
Broker-Dealers (as defined in the Purchase Agreements) or their respective
affiliates expressly for use in the Prospectus Supplement, or (ii) which is
held in a final judgment of a court of competent jurisdiction (not subject
to further appeal) to have arisen out of (x) the gross negligence or
willful misconduct of the Placement Agent or any Placement Agent Indemnitee
described in this paragraph 4(a), or (y) a breach of Placement Agent's
representations and warranties in paragraph 5 hereof.
(d) The Placement Agent will indemnify and hold harmless the Company
and each of its directors, officers, associates, affiliates, subsidiaries,
employees, consultants, attorneys, agents, and each person controlling the
Company or any of its affiliates within the meaning of either Section 15 of
the Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages, liabilities, costs or expenses (and any reasonable
legal or other expenses incurred by such indemnitee in investigating or
defending the same or in giving testimony or furnishing documents in
response to a request of any government agency or to a subpoena) (i) which
are held in a final judgment of a court of competent jurisdiction (not
subject to further appeal) to have arisen out of the gross negligence or
willful misconduct of such Placement Agent or any of its respective
partners, directors, officers, associates, affiliates, subsidiaries,
employees, consultants, attorneys and agents, and each person, if any,
controlling the Placement Agent or any of its affiliates within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act or (ii) relating
to, arising out of or caused by any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus Supplement or in
any way relating to, arising out of or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, if such statement or omission
was made in reliance upon or in conformity with information furnished in
writing to the Company by the Placement Agent or its affiliates or any of
the Purchasers, Investment Advisors or Broker-Dealers or their respective
affiliates expressly for use in the Prospectus Supplement, or (iii) which
result from violations by the Placement Agent of law or of requirements,
rules or regulations of federal or state securities regulators,
self-regulatory associations or organizations in the securities industry,
stock exchanges or organizations with similar functions or responsibilities
with respect to securities brokers or dealers, as determined by a court of
competent jurisdiction or applicable federal or state securities
regulators, self-regulatory associations or organizations in the securities
industry or stock exchanges or organizations, as applicable.
(e) If any action, proceeding or investigation is commenced as to
which any indemnified party hereunder proposes to demand indemnification
under this letter agreement, such indemnified party will notify the
indemnifying party with reasonable promptness. The indemnifying party shall
have the right to retain counsel of its own choice (which counsel shall be
reasonably satisfactory to the indemnified party) to represent it and such
counsel shall, to the extent consistent with its professional
responsibilities, cooperate with the indemnified party and any counsel
designated by the indemnified party; PROVIDED, HOWEVER, it is understood
and agreed that if the indemnifying party assumes the defense of a claim
for which indemnification is sought hereunder, it shall have no obligation
to pay the expenses of separate counsel for the indemnified party, unless
defenses are available to the indemnified party that make it impracticable
for the indemnifying party and the indemnified party to be represented by
the same counsel in which case the indemnified party shall be entitled to
retain one counsel. The indemnifying party will not be liable under this
letter agreement for any settlement of any claim against the indemnified
party made without the indemnifying party's written consent.
(f) In order to provide for just and equitable contribution, if a
claim for indemnification pursuant to this paragraph 4 is made but it is
found in a final judgment by a court of competent jurisdiction (not subject
to further appeal) that such indemnification may not be enforced in such
case, even though the express provisions hereof provided for
indemnification in such case, then the Company, on the one hand, and the
Placement Agent, on the other hand, shall contribute to the losses, claims,
damages, liabilities or costs to which the indemnified persons may be
subject in accordance with the relative benefits received from the offering
and sale of the Securities by the Company, on the one hand, and the
Placement Agent, on the other hand (it being understood that, with respect
to the Placement Agent, such benefits received are limited to fees actually
paid by the Company and received by the Placement Agent pursuant to this
Agreement), and also the relative fault of the Company, on the one hand,
and the Placement Agent, on the other hand, in connection with the
statements, acts or omissions which resulted in such losses, claims,
damages, liabilities or costs, and any relevant equitable considerations
shall also be considered. No person found liable for a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who is not also found liable for
such fraudulent misrepresentation. Notwithstanding the foregoing, the
Placement Agent shall not be obligated to contribute any amount hereunder
that exceeds the fees received by the Placement Agent in respect to the
offering and sale of the Preferred Shares.
4. The Company represents and warrants to the Placement Agent as of the
date hereof and as of the Closing Date as follows:
(a) The Company meets the requirements for use of Form S-3 under the
Act and meets the requirements pursuant to the standards for such Form as
(i) are in effect on the date hereof and (ii) as were in effect immediately
prior to October 21, 1992. The Company's Registration Statement (as defined
below) was declared effective by the SEC (as defined below) and the Company
has filed such post-effective amendments thereto as may be required under
applicable law prior to the execution of this Agreement and each such
post-effective amendment became effective. The SEC has not issued, nor to
the Company's knowledge, has the SEC threatened to issue or intends to
issue, a stop order with respect to the Registration Statement, nor has it
otherwise suspended or withdrawn the effectiveness of the Registration
Statement or, to the Company's knowledge, threatened to do so, either
temporarily or permanently, nor, to the Company's knowledge, does it intend
to do so. On the effective date, the Registration Statement complied in all
material respects with the requirements of the Act and the rules and
regulations promulgated under the Act (the "REGULATIONS"); at the effective
date the Basic Prospectus (as defined below) complied, and at the Closing
the Prospectus will comply, in all material respects with the requirements
of the Act and the Regulations; each of the Basic Prospectus and the
Prospectus as of its date and at the Closing Date did not, does not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED, HOWEVER, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
Placement Agent or its affiliates or by or on behalf of any of the
Purchasers, Investment Advisors or Broker-Dealers or any of their
respective affiliates, in each case, expressly for use therein. As used in
this Agreement, the term "REGISTRATION STATEMENT" means the "shelf"
registration statement on Form S-3 (File No. 333-113847), as declared
effective by the Securities and Exchange Commission (the "SEC"), including
exhibits, financial statements, schedules and documents incorporated by
reference therein. The term "BASIC PROSPECTUS" means the prospectus
included in the Registration Statement, as amended, or as supplemented and
filed with the SEC pursuant to Rule 424 under the Act in connection with
the sale of the Securities hereunder. The term "PROSPECTUS SUPPLEMENT"
means the prospectus supplement specifically relating to the Preferred
Shares as to be filed with the SEC pursuant to Rule 424 under the Act in
connection with the sale of the Preferred Shares. The term "PROSPECTUS"
means the Basic Prospectus and the Prospectus Supplement taken together.
The term "PRELIMINARY PROSPECTUS" means any form of preliminary prospectus
used in connection with the marketing of the Preferred Shares, including
the preliminary prospectus supplement dated as of July 15, 2004 and the
Basic Prospectus used with any such preliminary prospectus supplement in
connection with the marketing of the Preferred Shares. Any reference in
this Agreement to the Registration Statement. the Prospectus or any
preliminary prospectus shall be deemed to refer to and include the
documents incorporated by reference therein as of the date hereof or the
date of the Prospectus or any preliminary prospectus, as the case may be,
and any reference herein to any amendment or supplement to the Registration
Statement, the Prospectus or any preliminary prospectus shall be deemed to
refer to and include any documents filed after such date and through the
date of such amendment or supplement under the Exchange Act and so
incorporated by reference.
(b) Since the date as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (i) there has been no material adverse change or any development
which could reasonably be expected to give rise to a prospective material
adverse change in or affecting the condition, financial or otherwise, or in
the earnings, business affairs or, to the Company's knowledge, business
prospects of the Company and the subsidiaries of the Company, if any (the
"SUBSIDIARIES") considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) there have been no transactions entered
into by the Company or any of its Subsidiaries, other than those in the
ordinary course of business, which are material with respect to the Company
and its Subsidiaries considered as one enterprise, and (iii) other than
regular quarterly dividends, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its shares
of equity securities.
(c) The Company has been duly organized as a corporation and is
validly existing in good standing under the laws of the State of Maryland.
Each of the Subsidiaries of the Company has been duly organized and is
validly existing in good standing under the laws of its jurisdiction of
organization. Each of the Company and its Subsidiaries has the required
power and authority to own and lease its properties and to conduct its
business as described in the Prospectus; and each of the Company and its
Subsidiaries is duly qualified to transact business in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or, to the
Company's knowledge, business prospects of the Company and its Subsidiaries
considered as one enterprise.
(d) As of the date hereof, the authorized capital stock of the Company
consisted of 45,000,000 Common Stock, par value $0.01 per share (the
"COMMON STOCK"), and 15,000,000 shares of Preferred Stock, par value $0.01
per share, of which 19,652,947 Common Stock, 2,000,000 shares of 8.5%
Series C Cumulative Convertible Preferred Stock (the "SERIES C PREFERRED
STOCK"), 1,394,200 shares of 8.5% Series E Cumulative Convertible Preferred
Stock (the "SERIES E PREFERRED STOCK") and 4,000,000 shares of Preferred
Shares are issued and outstanding as of such date (without giving effect to
any Preferred Shares issued or to be issued as contemplated by this
Agreement or the application of the proceeds of the offering contemplated
hereby) and 6,800,000 preferred shares are authorized, unclassified and
unissued of which 2,640,000 will be designated as additional Preferred
Shares. There are 805,800 shares of classified Series E Preferred Stock
which have been converted into Common Stock and are available for
reclassification as authorized and unissued preferred stock. The issued and
outstanding shares of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; the Securities have been duly
authorized, and when issued in accordance with the terms of the Articles
Supplementary (as defined below) and delivered as contemplated hereby, will
be validly issued, fully paid and non-assessable; the Preferred Shares, the
Common Stock and the Series C, E and F Preferred Stock of the Company
conform to all statements relating thereto contained in the Prospectus; and
the issuance of the Securities is not subject to preemptive or other
similar rights.
(e) Neither the Company nor any of its Subsidiaries is in violation of
its organizational documents or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note, lease or
other instrument or agreement to which the Company or any of its
Subsidiaries is a party or by which it or any of them are bound, or to
which any of the property or assets of the Company or any of its
Subsidiaries is subject except where such violation or default would not
have a material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or, to the Company's knowledge, business
prospects of the Company and its Subsidiaries considered as one enterprise;
and the execution, delivery and performance of this Agreement, the
execution and filing of the articles supplementary of the Company relating
to the Preferred Shares, as supplemented to also relate to the Securities
(the "ARTICLES SUPPLEMENTARY"), and the issuance and delivery of the
Securities and the consummation of the transactions contemplated herein
have been duly authorized by all necessary action and will not conflict
with or constitute a material breach of, or material default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any material property or assets of the Company or any of its
Subsidiaries pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument or agreement to which the
Company or any of its Subsidiaries is a party or by which it or any of them
are bound, or to which any of the property or assets of the Company or any
of its Subsidiaries is subject, nor will any such action result in any
violation of the provisions of the Articles of Incorporation of the
Company, as amended and supplemented by the Articles Supplementary, by-laws
or other organizational documents of the Company or any of its Subsidiaries
or any law, administrative regulation or administrative or court decree
applicable to the Company.
(f) The Company is organized in conformity with the requirements for
qualification and, as of the date hereof and as of each Closing, operates
in a manner that qualifies it as a "real estate investment trust" under the
Internal Revenue Code of 1986, as amended, and the rules and regulations
thereunder and will be so qualified after giving effect to the sale of the
Securities.
(g) The Company is not required to be registered under the Investment
Company Act of 1940, as amended.
(h) No legal or governmental proceedings are pending to which the
Company or any of its Subsidiaries is a party or to which the property of
the Company or any of its Subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not
described therein, and no such proceedings have been threatened against the
Company or any of its Subsidiaries or with respect to any of their
respective properties that are required to be described in the Registration
Statement or the Prospectus and are not described therein.
(i) No authorization, approval or consent of any court or United
States federal or state governmental authority or agency is necessary in
connection with the sale of the Securities as contemplated hereunder,
except such as may be required under the Act or the Regulations or state
securities laws or real estate syndication laws.
(j) The Company and its Subsidiaries possess such certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now
conducted by them, except where the failure to possess such certificates,
authority or permits would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or, to
the Company's knowledge, business prospects of the Company and its
Subsidiaries considered as one enterprise. Neither the Company nor any of
its Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business affairs or, to
the Company's knowledge, business prospects of the Company and its
Subsidiaries considered as one enterprise, nor, to the knowledge of the
Company, are any such proceedings threatened or contemplated.
(k) The Company has full power and authority to enter into this
Agreement, and this Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms except as may be limited by (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights or remedies of creditors or (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding in
equity or at law and the discretion of the court before which any
proceeding therefor may be brought (collectively, the "ENFORCEABILITY
EXCEPTIONS").
(l) The Articles Supplementary, and the filing of the Articles
Supplementary with the State Department of Assessments and Taxation of
Maryland on behalf of the Company, have each been duly authorized by the
Company, the Articles Supplementary have been, or will be, filed with the
State Department of Assessments and Taxation of Maryland on behalf of the
Company prior to the time that any of the Securities will be delivered
pursuant to the Purchase Agreements and when so filed will constitute a
valid and legally binding supplement to the Articles of Incorporation of
the Company enforceable against the Company in accordance with its terms,
except as enforceability may be limited by the Enforceability Exceptions.
(m) As of the dates set forth therein or incorporated by reference,
the Company had good and marketable title to all of the properties and
assets reflected in the audited financial statements contained in the
Prospectus, subject to no lien, mortgage, pledge or encumbrance of any kind
except (i) those reflected in such financial statements, (ii) as are
otherwise described in the Prospectus, (iii) as do not materially adversely
affect the value of such property or interests or interfere with the use
made or proposed to be made of such property or interests by the Company
and each of its Subsidiaries or (iv) which constitute customary provisions
of mortgage loans secured by the Company's properties creating obligations
of the Company with respect to proceeds of the properties, environmental
liabilities and other customary protections for the mortgagees.
(n) Any certificate signed by any officer of the Company and delivered
to the Placement Agent or to counsel for the Placement Agent shall be
deemed a representation and warranty by the Company to the Placement Agent
as to the matters covered thereby.
(o) Neither the issuance, sale and delivery of the Securities nor the
application of the proceeds thereof by the Company as described in the
Prospectus will cause the Company to violate or be in violation of
Regulation T, U or X of the Board of Governors of the Federal Reserve
System or any other regulation of such Board of Governors.
(p) The statements set forth in the Basic Prospectus under the caption
"Description of Preferred Stock" and the statements set forth in the
Prospectus Supplement under the caption "Description of Our Capital
Stock--Series F Preferred Stock," in each case, in so far as such
statements purport to summarize provisions of laws or documents referred to
therein, are correct in all material respects and fairly present the
information required to be presented therein.
(q) There is no contract, agreement, indenture or other document to
which the Company or of its Subsidiary is a party required to be filed as
an exhibit to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2003 or any subsequent Exchange Act filings prior to the
date hereof that has not been so filed as required.
5. The Placement Agent represents and warrants to the Company that (i) it
is duly registered and in good standing as a broker-dealer under the Exchange
Act and licensed or otherwise qualified to do business as a broker-dealer with
the National Association of Securities Dealers, Inc. and in all states in which
it will offer any of the Securities pursuant to this Agreement, (ii) assuming
the Prospectus complies with all relevant provisions of the Act in connection
with the offer and sale of the Securities, the Placement Agent will conduct all
offers and sales of the Securities in compliance with the relevant provisions of
the Act and the Regulations and various state securities laws and regulations,
(iii) the Placement Agent will only act as agent in those jurisdictions in which
it is authorized to do so and (iv) the Placement Agent will not distribute to
any Purchaser, Investment Advisor or Broker-Dealer any written material relating
to the offering contemplated hereby other than the Registration Statement, the
Prospectus or the preliminary prospectus dated July 15, 2004.
6. Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing and, if to the Placement Agent, shall be
sufficient in all respects if delivered or sent by facsimile to 000-000-0000 or
by certified mail to Xxxxx & Steers Capital Advisors, LLC, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxx, and, if to the Company, shall
be sufficient in all respects if delivered or sent to the Company by facsimile
to 000-000-0000 or by certified mail to the Company at 00000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxx 000, Xxxxxx, XX 00000, Attention: Chief Financial Officer.
7. This Agreement shall be governed by the laws of the State of New York
governing contracts made and to be performed in such State without giving effect
to principles of conflicts of law.
8. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall be
deemed to be the same Agreement. Executed counterparts may be delivered by
facsimile.
9. When used herein, the phrase "to the knowledge of" the Company or "known
to" the Company or any similar phrase means the actual knowledge of the Chief
Executive Officer, Chief Financial Officer or Chief Operating Officer of the
Company and includes the knowledge that such officers would have obtained of the
matter represented after reasonable due and diligent inquiry of those employees
of the Company whom such officers reasonably believe would have actual knowledge
of the matters represented.
If the foregoing is in accord with your understanding of our agreement,
please sign in the space provided below and return a signed copy of this letter
to the Company.
Sincerely,
LTC PROPERTIES, INC.
By: /s/ XXXXX X. XXXXXXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Chairman, President and
Chief Executive Officer
Accepted by:
XXXXX & STEERS CAPITAL ADVISORS, LLC
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
