EXHIBIT 10.3
February 18, 2004
Cohen & Steers Capital Advisors, LLC
757 Third Avenue
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 Cohen &
Steers Capital Advisors, LLC (the "Placement Advisor") as our exclusive advisor
for a period commencing on the date of this letter and terminating on March 1,
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 4,000,000 shares of the Company's 8.0% Series
F Cumulative Preferred Shares, par value $0.01 per share (the "Preferred
Shares") (assuming the maximum number of Preferred Shares is issued and sold).
The engagement described herein (i) may be terminated by the Company at any time
prior to the Initial 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 Advisor and deliver to the Company, the
Placement Advisor 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 Advisor, a "bring-down" letter delivered on each date on
which the sale of Preferred Shares is consummated pursuant to a
Purchase Agreement (each such date, a "Closing Date" and the time of
such consummation on any such Closing Date, a "Closing," the first
such Closing Date, the "Initial Closing Date" and the Closing on the
Initial Closing Date, the "Initial Closing," and the final such
Closing Date, the "Final Closing Date" and the Closing on the Final
Closing Date, the "Final 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 Advisor.
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(b) On each Closing Date, cause special securities counsel to the Company
to deliver opinions to the Placement Advisor and the Purchasers
substantially in the form of Annex II hereto and otherwise in form and
substance reasonably satisfactory to the Placement Advisor and its
counsel, and cause the special Maryland counsel to the Company to
deliver opinions to the Placement Advisor and the Purchasers
substantially in the form of Annex III hereto.
(c) As soon as practicable after the Initial Closing, subject to the
Purchasers' ownership satisfying the distribution requirements for
listing, apply for listing the Preferred Shares 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 Initial
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 Final 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 each Closing Date, the Company shall deliver to the Placement
Advisor and the Purchasers a certificate of the Chief Executive
Officer and Chief Financial Officer of the Company, dated as of such
Closing Date, setting forth that each of the representations and
warranties contained in this Agreement shall be true on and as of such
Closing Date as if made as of such Closing Date and each of the
conditions and covenants contained herein shall have been complied
with to the extent compliance is required prior to such Closing, and
shall have delivered such other customary certificates as the
Placement Advisor shall have reasonably requested.
2. The Company authorizes the Placement Advisor 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 Advisor agrees to do so.
(a) The Placement Advisor will use commercially reasonable efforts on
behalf of the Company in connection with the Placement Advisor's
services hereunder. No offers or sales of Preferred Shares 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 Advisor's aggregate fee for its services
hereunder will be the sum of (a) an amount equal to 1.0% of the gross
proceeds received by the Company in connection with Preferred Shares
sold on the Initial Closing Date and an additional fee of $104,600 for
arranging through a sub-placement advisor for the sale of Preferred
Shares to certain retail accounts (each such fee payable by the
Company at and subject to the consummation of the Initial Closing) and
(b) an amount equal to 1.0% of the gross proceeds received by the
Company in connection with Preferred Shares sold on the Final Closing
Date (such fee payable by the Company at and subject to the
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consummation of the Final Closing). The Company, upon consultation
with the Placement Advisor, 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 Advisor 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 Jefferies & 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 Preferred Shares, (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 Preferred Shares
issuable under the laws of such jurisdictions as the Placement Advisor
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, (vii) the fees and expenses of the Settlement Agent and
(viii) the fees and disbursements of Reed Smith, LLP, special
securities counsel to the Company, Ballard Spahr Andrews & Ingersoll,
LLP, special Maryland counsel to the Company and any other counsel to
the Company, and Ernst & Young LLP, auditors to the Company. In
addition, upon each Closing (without duplication), the Company agrees
to reimburse the Placement Advisor, from the proceeds of the sale of
Preferred Shares, for all reasonable out-of-pocket expenses of the
Placement Advisor in connection with the Offer, including, without
limitation, the reasonable legal fees, expenses and disbursements of
the Placement Advisor's counsel in connection with the Offer, in the
aggregate not to exceed $60,000 (it being understood that such amount
does not include any amounts due or paid to the Settlement Agent).
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(c) The Company will indemnify and hold harmless the Placement Advisor and
each of its respective partners, directors, officers, associates,
affiliates, subsidiaries, employees, consultants, attorneys and
agents, and each person, if any, controlling the Placement Advisor 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 Advisor
Indemnitees"), from and against any and all losses, claims, damages,
liabilities or costs (and any reasonable legal or other expenses
incurred by such Placement Advisor 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 (other than the
preliminary prospectus dated January 27, 2004) 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 Advisor 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 Advisor or any Placement Advisor
Indemnitee described in this paragraph 4(a), or (y) a breach of
Placement Advisor's representations and warranties in paragraph 5
hereof.
(d) The Placement Advisor 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 Advisor or any of its respective
partners, directors, officers, associates, affiliates, subsidiaries,
employees, consultants, attorneys and agents, and each person, if any,
controlling the Placement Advisor 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
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Company by the Placement Advisor 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 Advisor 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 Advisor, 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 Preferred
Shares by the Company, on the one hand, and the Placement Advisor, on
the other hand (it being understood that, with respect to the
Placement Advisor, such benefits received are limited to fees actually
paid by the Company and received by the Placement Advisor pursuant to
this Agreement), and also the relative fault of the Company, on the
one hand, and the Placement Advisor, on the other hand, in connection
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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 Advisor shall not be
obligated to contribute any amount hereunder that exceeds the fees
received by the Placement Advisor in respect to the offering and sale
of the Preferred Shares.
4. The Company represents and warrants to the Placement Advisor as of the
date hereof and as of each 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
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 each 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 each 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 Advisor 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.
333-106555), as amended by the Post-Effective Amendment No. 1 thereto,
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
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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
Preferred Shares 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 February 17, 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.
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(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 35,000,000 Common Shares, 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 18,002,443 Common Shares, 1,838,520 shares
of 9.5% Series A Cumulative Preferred Stock (the "Series A Preferred
Shares"), 1,988,000 shares of 9.0% Series B Cumulative Preferred Stock
(the "Series B Preferred Shares"), 2,000,000 shares of 8.5% Series C
Cumulative Convertible Preferred Stock (the "Series C Preferred
Shares"), no shares of Series D Junior Participating Preferred Stock
(the "Series D Preferred Shares") and 2,200,000 8.5% Series E
Cumulative Convertible Preferred Stock (the "Series E 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 6,933,480 preferred shares are authorized and
unissued of which 4,000,000 will be designated as the Preferred
Shares. The issued and outstanding shares of the Company have been
duly authorized and validly issued and are fully paid and
non-assessable; the Preferred Shares 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 A, B, C and E Preferred Stock of the
Company conform to all statements relating thereto contained in the
Prospectus; and the issuance of the Preferred Shares 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 (the "Articles Supplementary"), and the issuance and delivery
of the Preferred Shares 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.
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(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 Preferred Shares.
(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 Preferred Shares as contemplated
hereunder, except such as may be required under the Act or the
Regulations or state securities laws or real estate syndication laws.
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(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 will be filed with the State
Department of Assessments and Taxation of Maryland on behalf of the
Company prior to the time that any Preferred Shares 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.
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(n) Any certificate signed by any officer of the Company and delivered to
the Placement Advisor or to counsel for the Placement Advisor shall be
deemed a representation and warranty by the Company to the Placement
Advisor as to the matters covered thereby.
(o) Neither the issuance, sale and delivery of the Preferred Shares 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, 2002 or any subsequent Exchange Act filings
prior to the date hereof that has not been so filed as required.
5. The Placement Advisor 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 Preferred Shares 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 Preferred Shares, the Placement Advisor will conduct
all offers and sales of the Preferred Shares in compliance with the relevant
provisions of the Act and the Regulations and various state securities laws and
regulations, (iii) the Placement Advisor will only act as advisor in those
jurisdictions in which it is authorized to do so and (iv) the Placement Advisor
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
February 17, 2004.
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6. Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing and, if to the Placement Advisor, shall be
sufficient in all respects if delivered or sent by facsimile to 212-446-9181 or
by certified mail to Cohen & Steers Capital Advisors, LLC, 757 Third Avenue, New
York, New York 10017, Attention: Bradley Razook, and, if to the Company, shall
be sufficient in all respects if delivered or sent to the Company by facsimile
to 805-981-8663 or by certified mail to the Company at 22917 Pacific Coast
Highway, Suite 350, Malibu, CA 90265, 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.
12
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:________________________
Name:
Title:
Accepted by:
COHEN & STEERS CAPITAL ADVISORS, LLC
By:_______________________
Name:
Title: